KS
DRAFT
3/31/03
================================================================================
EXHIBIT 10.22
LOAN AGREEMENT
Dated as of April 1, 2003
Between
PFP COLUMBUS, LLC,
as Borrower
and
UBS WARBURG REAL ESTATE INVESTMENTS INC.,
as Lender
================================================================================
March 31, 2003
TABLE OF CONTENTS
Page
----
I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION................................................................. 1
Section 1.1 Specific Definitions......................................................................... 1
Section 1.2 Index of Other Definitions................................................................... 13
Section 1.3 Principles of Construction................................................................... 15
II. THE LOAN................................................................................................ 15
Section 2.1 The Loan..................................................................................... 15
2.1.1 AGREEMENT TO LEND AND BORROW................................................................. 15
2.1.2 SINGLE DISBURSEMENT TO BORROWER.............................................................. 15
2.1.3 THE NOTE..................................................................................... 15
2.1.4 USE OF PROCEEDS.............................................................................. 15
Section 2.2 Interest Rate................................................................................ 16
2.2.1 INTEREST RATE................................................................................ 16
2.2.2 DEFAULT RATE................................................................................. 16
2.2.3 INTEREST CALCULATION......................................................................... 16
2.2.4 USURY SAVINGS................................................................................ 16
Section 2.3 Loan Payments................................................................................ 17
2.3.1 PAYMENTS..................................................................................... 17
2.3.2 PAYMENTS GENERALLY........................................................................... 17
2.3.3 PAYMENT ON MATURITY DATE..................................................................... 17
2.3.4 LATE PAYMENT CHARGE.......................................................................... 17
2.3.5 METHOD AND PLACE OF PAYMENT.................................................................. 17
Section 2.4 Prepayments.................................................................................. 17
2.4.1 VOLUNTARY PREPAYMENTS........................................................................ 17
2.4.2 MANDATORY PREPAYMENTS........................................................................ 17
2.4.3 PREPAYMENTS AFTER DEFAULT.................................................................... 17
Section 2.5 Defeasance................................................................................... 17
2.5.1 CONDITIONS TO DEFEASANCE..................................................................... 17
2.5.2 DEFEASANCE COLLATERAL ACCOUNT................................................................ 17
2.5.3 SUCCESSOR BORROWER........................................................................... 17
2.5.4 APPOINTMENT AS ATTORNEY IN FACT.............................................................. 17
Section 2.6 Release of DSW Parcel........................................................................ 17
III. REPRESENTATIONS AND WARRANTIES.......................................................................... 17
Section 3.1 Borrower Representations..................................................................... 17
3.1.1 ORGANIZATION................................................................................. 17
3.1.2 PROCEEDINGS.................................................................................. 17
3.1.3 NO CONFLICTS................................................................................. 17
3.1.4 LITIGATION................................................................................... 00
Xxxxx 00, 0000
-x-
Page
----
3.1.5 AGREEMENTS................................................................................... 17
3.1.6 CONSENTS..................................................................................... 17
3.1.7 TITLE........................................................................................ 17
3.1.8 NO PLAN ASSETS............................................................................... 17
3.1.9 COMPLIANCE................................................................................... 17
3.1.10 FINANCIAL INFORMATION........................................................................ 17
3.1.11 CONDEMNATION................................................................................. 17
3.1.12 EASEMENTS; UTILITIES AND PUBLIC ACCESS....................................................... 17
3.1.13 SEPARATE LOTS................................................................................ 17
3.1.14 ASSESSMENTS.................................................................................. 17
3.1.15 ENFORCEABILITY............................................................................... 17
3.1.16 ASSIGNMENT OF LEASES......................................................................... 17
3.1.17 INSURANCE.................................................................................... 17
3.1.18 LICENSES..................................................................................... 17
3.1.19 FLOOD ZONE................................................................................... 17
3.1.20 PHYSICAL CONDITION........................................................................... 17
3.1.21 BOUNDARIES................................................................................... 17
3.1.22 LEASES....................................................................................... 17
3.1.23 FILING AND RECORDING TAXES................................................................... 17
3.1.24 SINGLE PURPOSE............................................................................... 17
3.1.25 TAX FILINGS.................................................................................. 17
3.1.26 SOLVENCY..................................................................................... 17
3.1.27 FEDERAL RESERVE REGULATIONS.................................................................. 17
3.1.28 ORGANIZATIONAL CHART......................................................................... 17
3.1.29 ORGANIZATIONAL STATUS........................................................................ 17
3.1.30 BANK HOLDING COMPANY......................................................................... 17
3.1.31 NO CASUALTY.................................................................................. 17
3.1.32 PURCHASE OPTIONS............................................................................. 17
3.1.33 FIRPTA....................................................................................... 17
3.1.34 PUHCA........................................................................................ 17
3.1.35 INVESTMENT COMPANY ACT....................................................................... 17
3.1.36 USE OF PROPERTY.............................................................................. 17
3.1.37 FISCAL YEAR.................................................................................. 17
3.1.38 NO OTHER FINANCING........................................................................... 17
3.1.39 CONTRACTS.................................................................................... 17
3.1.40 FULL AND ACCURATE DISCLOSURE................................................................. 17
3.1.41 OTHER OBLIGATIONS AND LIABILITIES............................................................ 17
3.1.42 REA.......................................................................................... 17
3.1.43 Survival of Representations.................................................................. 17
IV. BORROWER COVENANTS...................................................................................... 17
Section 4.1 Borrower Affirmative Covenants............................................................... 17
4.1.1 PAYMENT AND PERFORMANCE OF OBLIGATIONS....................................................... 17
4.1.2 EXISTENCE; COMPLIANCE WITH LEGAL REQUIREMENTS................................................ 17
4.1.3 TAXES AND OTHER CHARGES...................................................................... 17
March 31, 2003
-ii-
Page
----
4.1.4 LITIGATION................................................................................... 17
4.1.5 ACCESS TO PROPERTY........................................................................... 17
4.1.6 FURTHER ASSURANCES; SUPPLEMENTAL MORTGAGE AFFIDAVITS......................................... 17
4.1.7 FINANCIAL REPORTING.......................................................................... 17
4.1.8 TITLE TO THE PROPERTY........................................................................ 17
4.1.9 ESTOPPEL STATEMENT........................................................................... 17
4.1.10 LEASES....................................................................................... 17
4.1.11 ALTERATIONS.................................................................................. 17
4.1.12 APPROVAL OF MAJOR CONTRACTS.................................................................. 17
4.1.13 AFTER ACQUIRED PROPERTY...................................................................... 17
Section 4.2 Borrower Negative Covenants.................................................................. 17
4.2.1 DUE ON SALE AND ENCUMBRANCE; TRANSFERS OF INTERESTS.......................................... 17
4.2.2 LIENS........................................................................................ 17
4.2.3 DISSOLUTION.................................................................................. 17
4.2.4 CHANGE IN BUSINESS........................................................................... 17
4.2.5 DEBT CANCELLATION............................................................................ 17
4.2.6 AFFILIATE TRANSACTIONS....................................................................... 17
4.2.7 ZONING....................................................................................... 17
4.2.8 ASSETS....................................................................................... 17
4.2.9 NO JOINT ASSESSMENT.......................................................................... 17
4.2.10 PRINCIPAL PLACE OF BUSINESS.................................................................. 17
4.2.11 CHANGE OF NAME, IDENTITY OR STRUCTURE........................................................ 17
4.2.12 SPECIAL PURPOSE.............................................................................. 17
4.2.13 ERISA........................................................................................ 17
4.2.14 COMPLIANCE WITH RESTRICTIVE COVENANTS, ETC................................................... 17
V. INSURANCE, CASUALTY AND CONDEMNATION.................................................................... 17
Section 5.1 Insurance.................................................................................... 17
5.1.1 INSURANCE POLICIES........................................................................... 17
5.1.2 INSURANCE COMPANY............................................................................ 17
Section 5.2 Casualty and Condemnation.................................................................... 17
5.2.1 CASUALTY..................................................................................... 17
5.2.2 CONDEMNATION................................................................................. 17
5.2.3 CASUALTY AND CONDEMNATION PROCEEDS........................................................... 17
Section 5.3 Delivery of Net Proceeds..................................................................... 17
5.3.1 MINOR CASUALTY OR CONDEMNATION............................................................... 17
5.3.2 MAJOR CASUALTY OR CONDEMNATION............................................................... 17
VI. CASH MANAGEMENT AND RESERVE FUNDS....................................................................... 17
Section 6.1 Cash Management Arrangements................................................................. 17
Section 6.2 Required Repair Funds........................................................................ 17
6.2.1 DEPOSIT OF REQUIRED REPAIR FUNDS............................................................. 17
6.2.2 RELEASE OF REQUIRED REPAIR FUNDS............................................................. 17
Section 6.3 Tax Funds.................................................................................... 17
March 31, 2003
-iii-
Page
----
6.3.1 DEPOSITS OF TAX FUNDS........................................................................ 17
6.3.2 RELEASE OF TAX FUNDS......................................................................... 17
Section 6.4 Insurance Funds.............................................................................. 17
6.4.1 DEPOSITS OF INSURANCE FUNDS.................................................................. 17
6.4.2 RELEASE OF INSURANCE FUNDS................................................................... 17
Section 6.5 Capital Expenditure Funds.................................................................... 17
6.5.1 DEPOSITS OF CAPITAL EXPENDITURE FUNDS........................................................ 17
6.5.2 RELEASE OF CAPITAL EXPENDITURE FUNDS......................................................... 17
Section 6.6 Rollover Funds............................................................................... 17
6.6.1 DEPOSITS OF ROLLOVER FUNDS................................................................... 17
6.6.2 RELEASE OF ROLLOVER FUNDS.................................................................... 17
Section 6.7 Security Interest in Reserve Funds........................................................... 17
6.7.1 GRANT OF SECURITY INTEREST................................................................... 17
6.7.2 INCOME TAXES; INTEREST....................................................................... 17
6.7.3 PROHIBITION AGAINST FURTHER ENCUMBRANCE...................................................... 17
Section 6.8 Property Cash Flow Allocation................................................................ 17
6.8.1 ORDER OF PRIORITY OF FUNDS IN DEPOSIT ACCOUNT................................................ 17
6.8.2 FAILURE TO MAKE PAYMENTS..................................................................... 17
6.8.3 APPLICATION AFTER EVENT OF DEFAULT........................................................... 17
VII. PROPERTY MANAGEMENT..................................................................................... 17
Section 7.1 The Management Agreement..................................................................... 17
Section 7.2 Prohibition Against Termination or Modification.............................................. 17
Section 7.3 Replacement of Manager....................................................................... 17
VIII. PERMITTED TRANSFERS..................................................................................... 17
Section 8.1 Permitted Transfer of the Property........................................................... 17
Section 8.2 Permitted Transfers of Interest in Borrower.................................................. 17
IX. SALE AND SECURITIZATION OF MORTGAGE..................................................................... 17
Section 9.1 Sale of Mortgage and Securitization.......................................................... 17
Section 9.2 Securitization Indemnification............................................................... 17
Section 9.3 Rating Surveillance.......................................................................... 17
Section 9.4 Severance Documentation...................................................................... 17
X. DEFAULTS ............................................................................................... 17
Section 10.1 Event of Default............................................................................. 17
Section 10.2 Remedies..................................................................................... 17
Section 10.3 Lender's Right to Perform.................................................................... 17
Section 10.4 Remedies Cumulative.......................................................................... 17
March 31, 2003
-iv-
Page
----
XI. MISCELLANEOUS........................................................................................... 17
Section 11.1 Successors and Assigns....................................................................... 17
Section 11.2 Lender's Discretion.......................................................................... 17
Section 11.3 Governing Law................................................................................ 17
Section 11.4 Modification, Waiver in Writing.............................................................. 17
Section 11.5 Delay Not a Waiver........................................................................... 17
Section 11.6 Notices...................................................................................... 17
Section 11.7 No Trial by Jury............................................................................. 17
Section 11.8 Headings..................................................................................... 17
Section 11.9 Severability................................................................................. 17
Section 11.10 Preferences.................................................................................. 17
Section 11.11 Waiver of Notice............................................................................. 17
Section 11.12 Remedies of Borrower......................................................................... 17
Section 11.13 Expenses; Indemnity.......................................................................... 17
Section 11.14 Schedules Incorporated....................................................................... 17
Section 11.15 Offsets, Counterclaims and Defenses.......................................................... 17
Section 11.16 No Joint Venture or Partnership; No Third Party Beneficiaries................................ 17
Section 11.17 Publicity.................................................................................... 17
Section 11.18 Waiver of Marshalling of Assets.............................................................. 17
Section 11.19 Waiver of Offsets/Defenses/Counterclaims..................................................... 17
Section 11.20 Conflict; Construction of Documents; Reliance................................................ 17
Section 11.21 Brokers and Financial Advisors............................................................... 17
Section 11.22 Exculpation.................................................................................. 17
Section 11.23 Prior Agreements............................................................................. 17
Section 11.24 Servicer..................................................................................... 17
Section 11.25 Joint and Several Liability.................................................................. 17
Section 11.26 Creation of Security Interest................................................................ 17
Section 11.27 Assignments and Participations............................................................... 17
Section 11.28 Counterparts................................................................................. 17
Section 11.29 Set-Off...................................................................................... 17
SCHEDULES
Schedule I - Rent Roll
Schedule II - Intentionally Deleted
Schedule III - Organizational Chart
Schedule IV - Exceptions to Representations and Warranties
Schedule V - Special Purpose Bankruptcy Remote Covenants
Schedule VI - Description of DSW Parcel
Schedule VII - Description of REA
Schedule VIII - Tax Parcels
March 31, 2003
-v-
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of April 1, 2003 (as amended,
restated, replaced, supplemented or otherwise modified from time to time, this
"Agreement"), between UBS WARBURG REAL ESTATE INVESTMENTS INC., a Delaware
corporation, having an address at 1285 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 (together with its successors and assigns, collectively,
"Lender") and PFP COLUMBUS, LLC a Delaware limited liability company, having an
address at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (together with its
permitted successors and assigns, collectively, "Borrower").
All capitalized terms used herein shall have the respective
meanings set forth in Article I hereof.
W I T N E S S E T H :
WHEREAS, Borrower desires to obtain the Loan from Lender; and
WHEREAS, Lender is willing to make the Loan to Borrower,
subject to and in accordance with the conditions and terms of this Agreement and
the other Loan Documents.
NOW, THEREFORE, in consideration of the covenants set forth in
this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree,
represent and warrant as follows:
I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION
SECTION 1.1. SPECIFIC DEFINITIONS.
For all purposes of this Agreement, except as otherwise
expressly provided:
"AFFILIATE" shall mean, as to any Person, any other Person
that (i) owns directly or indirectly forty-nine percent (49%) or more of all
equity interests in such Person, and/or (ii) is in control of, is controlled by
or is under common ownership or control with such Person and/or (iii) is a
director or officer of such Person or of an Affiliate of such Person, and/or
(iv) is the spouse, issue or parent of such Person or of an Affiliate of such
Person. As used in this definition, the term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management, policies or activities of such Person, whether through ownership of
voting securities, by contract or otherwise.
"AGENT" shall mean Wachovia Bank, National Association and any
successor Eligible Institution thereto.
"ALTA" shall mean American Land Title Association, or any
successor thereto.
"ANNUAL BUDGET" shall mean the operating and capital budget
for the Property setting forth, on a month-by-month basis, in reasonable detail,
each line item of Borrower's good faith estimate of anticipated Gross Revenue,
Operating Expenses, and Capital Expenditures for the applicable Fiscal Year.
March 31, 2003
-1-
"APPROVED CAPITAL EXPENDITURES" shall mean Capital
Expenditures incurred by Borrower and either (i) included in the Annual Budget
or (ii) approved by Lender, which approval shall not be unreasonably withheld or
delayed.
"APPROVED LEASING EXPENSES" shall mean actual out-of-pocket
expenses incurred by Borrower in leasing space at the Property pursuant to
Leases entered into in accordance with the Loan Documents, including brokerage
commissions and tenant improvements, which expenses (i) are (A) specifically
approved by Lender in connection with approving the applicable Lease, (B)
incurred in the ordinary course of business and on market terms and conditions
in connection with Leases which do not require Lender's approval under the Loan
Documents, and Lender shall have received and approved a budget for such tenant
improvement costs and a schedule of leasing commissions payments payable in
connection therewith, or (C) otherwise approved by Lender, which approval shall
not be unreasonably withheld or delayed, and (ii) are substantiated by executed
Lease documents and brokerage agreements.
"ASSIGNMENT OF LEASES" shall mean that certain first priority
Assignment of Leases and Rents, dated as of the date hereof, from Borrower, as
assignor, to Lender, as assignee, as the same may be amended, restated,
replaced, supplemented or otherwise modified from time to time.
"ASSIGNMENT OF MANAGEMENT AGREEMENT" shall mean that certain
Assignment of Management Agreement and Subordination of Management Fees dated as
of the date hereof among Borrower, Manager and Lender, as the same may be
amended, restated, replaced, supplemented or otherwise modified from time to
time.
"AWARD" shall mean any compensation paid by any Governmental
Authority in connection with a Condemnation in respect of all or any part of the
Property.
"BANKRUPTCY CODE" shall mean Title 11 of the United States
Code entitled "Bankruptcy", as amended from time to time, and any successor
statute or statutes and all rules and regulations from time to time promulgated
thereunder, and any comparable foreign laws relating to bankruptcy, insolvency
or creditors' rights.
"BUSINESS DAY" shall mean any day other than a Saturday, a
Sunday or a legal holiday on which national banks are not open for general
business in (i) the State of New York, (ii) the state where the corporate trust
office of the Trustee is located, or (iii) the state where the servicing offices
of the Servicer are located.
"CALCULATION DATE" shall mean the last day of each calendar
quarter.
"CAPITAL EXPENDITURES" for any period shall mean amounts
expended for replacements and alterations to the Property (excluding tenant
improvements) and required to be capitalized according to GAAP.
"CAPITAL EXPENDITURES WORK" shall mean any labor performed or
materials installed in connection with any Capital Expenditure.
March 31, 2003
-2-
"CASH MANAGEMENT AGREEMENT" shall mean that certain Cash
Management Agreement of even date herewith among Lender, Borrower, Manager and
Agent.
"CASUALTY" shall mean the occurrence of any casualty, damage
or injury, by fire or otherwise, to the Property or any part thereof.
"CLEARING ACCOUNT AGREEMENT" shall mean that certain Clearing
Account Agreement dated the date hereof by and among Borrower, Lender, Manager
and the Clearing Bank.
"CLOSING DATE" shall mean the date of funding the Loan.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended, and as it may be further amended from time to time, any successor
statutes thereto, and applicable U.S. Department of Treasury regulations issued
pursuant thereto in temporary or final form.
"COMPONENT" shall mean, individually, any one of Component
X-0, Xxxxxxxxx X-0, Xxxxxxxxx X-0, Component B-2, Component B-3, Component B-4
or Component B-5.
"COMPONENT A-1" shall mean that certain Component of Note A
having the original principal amount set forth in Section 2.1.5.
"COMPONENT A-2" shall mean that certain Component of Note A
having the original principal amount set forth in Section 2.1.5.
"COMPONENT B-1" shall mean that certain Component of Note B
having the original principal amount set forth in Section 2.1.5.
"COMPONENT B-2" shall mean that certain Component of Note B
having the original principal amount set forth in Section 2.1.5.
"COMPONENT B-3" shall mean that certain Component of Note B
having the original principal amount set forth in Section 2.1.5.
"COMPONENT B-4" shall mean that certain Component of Note B
having the original principal amount set forth in Section 2.1.5.
"COMPONENT B-5" shall mean that certain Component of Note B
having the original principal amount set forth in Section 2.1.5.
"COMPONENTS" shall mean, collectively, Component X-0,
Xxxxxxxxx X-0, Xxxxxxxxx X-0, Component B-2, Component B-3, Component B-4 and
Component B-5.
"CONDEMNATION" shall mean a temporary or permanent taking by
any Governmental Authority as the result or in lieu or in anticipation of the
exercise of the right of condemnation or eminent domain, of all or any part of
the Property, or any interest therein or right accruing thereto, including any
right of access thereto or any change of grade affecting the Property or any
part thereof.
March 31, 2003
-3-
"CONTROL" shall mean, with respect to any Person, the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities or other beneficial interest,
or by contract or otherwise. "Controlling" and "Controlled" have meanings
correlative thereto.
"DEBT" shall mean the outstanding principal amount of the Loan
together with all interest accrued and unpaid thereon and all other sums
(including the Yield Maintenance Premium) due to Lender from time to time in
respect of the Loan under the Note, this Agreement, the Mortgage, the
Environmental Indemnity or any other Loan Document.
"DEBT SERVICE" shall mean, with respect to any particular
period of time, the aggregate amount of the scheduled principal and interest
payments due and payable under the Note.
"DEBT SERVICE COVERAGE RATIO" shall mean, as of any
Calculation Date, the ratio calculated by Lender of (i) the Net Cash Flow for
the twelve (12) calendar month period immediately preceding the date of
calculation to (ii) the projected Debt Service that would be due for the twelve
(12) calendar month period immediately following such calculation.
"DEFAULT" shall mean the occurrence of any event hereunder or
under any other Loan Document which, but for the giving of notice or passage of
time, or both, would be an Event of Default.
"DEFAULT RATE" shall mean, with respect to each Component, a
rate per annum equal to the lesser of (i) the Maximum Legal Rate, or (ii) five
percent (5%) above the Interest Rate for such Component.
"DEFEASANCE COLLATERAL" shall mean U.S. Obligations, which
provide payments (i) on or prior to, but as close as possible to, all Monthly
Payment Dates and other scheduled payment dates, if any, under the Note after
the Defeasance Date and up to and including the Stated Maturity Date, and (ii)
in amounts equal to or greater than the Scheduled Defeasance Payments.
"DSW PURCHASE OPTION" shall mean the option vested in Polaris
Mall, LLC, a Ohio limited liability company, ("DSW") to purchase the portion of
the Property described on Schedule VI (the "DSW PARCEL") in accordance with
Section 20.01 of that certain Ground Lease Agreement dated As of April 30th,
2002 between Sole Member (predecessor-in-interest to Borrower), as landlord, and
DSW, as tenant.
"ELIGIBLE ACCOUNT" shall mean a separate and identifiable
account from all other funds held by the holding institution that is either (i)
an account or accounts maintained with a federal or state-chartered depository
institution or trust company which complies with the definition of Eligible
Institution or (ii) a segregated trust account or accounts maintained with a
federal or state chartered depository institution or trust company acting in its
fiduciary capacity which, in the case of a state chartered depository
institution or trust company is subject to regulations substantially similar to
12 C.F.R. Section 9.10(b), having in either case a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by federal and
state
March 31, 2003
-4-
authorities. An Eligible Account will not be evidenced by a certificate of
deposit, passbook or other instrument.
"ELIGIBLE INSTITUTION" shall mean a depository institution
insured by the Federal Deposit Insurance Corporation the short term unsecured
debt obligations or commercial paper of which are rated at least A-1 by Standard
& Poor's Ratings Group, P-1 by Xxxxx'x Investors Service, Inc., and F-1+ by
Fitch IBCA, Inc. in the case of accounts in which funds are held for thirty (30)
days or less or, in the case of Letters of Credit or accounts in which funds are
held for more than thirty (30) days, the long term unsecured debt obligations of
which are rated at least "AA" by Fitch and S&P and "Aa2" by Moody's.
"ENVIRONMENTAL INDEMNITY" shall mean that certain
Environmental Indemnity Agreement dated as of the date hereof executed by
Borrower in connection with the Loan for the benefit of Lender.
"FIDELITY L/C RELEASE EVENT" shall occur if either (i) Lender
receives an estoppel certificate no later than April 1, 2004 from Fidelity in a
form reasonably satisfactory to Lender pursuant to which Fidelity certifies to
Lender that (1) Fidelity has taken occupancy of its demised premises, (2) all of
the conditions precedent to Fidelity's obligation to commence the payment of
rent under the Fidelity Lease have been satisfied, (3) Fidelity has commenced
the payment of rent under the Fidelity Lease, without any right of abatement or
offset with respect to Borrower's construction obligations, (4) Fidelity has no
further right to terminate the Fidelity Lease pursuant to Section 3.02 thereof
and (5) neither Borrower nor Fidelity are in default under the Fidelity Lease,
(ii) on or before April 1, 2004, Borrower re-lets the space demised under the
Fidelity Lease in accordance with this Agreement on terms no less than favorable
than the Fidelity Lease to a new tenant no less creditworthy than Fidelity as
reasonably determined by Lender and Lender receives an estoppel certificate no
later than April 1, 2004 from such new tenant in a form reasonably satisfactory
to Lender pursuant to which such new tenant certifies to Lender that (1) such
new tenant has taken occupancy of its demised premises, (2) all of the
conditions precedent to such new tenant's obligation to commence the payment of
rent under its Lease have been satisfied, (3) such new tenant has commenced the
payment of rent under its Lease, without any right of abatement or offset with
respect to Borrower's construction obligations, (4) such new tenant has no right
to terminate its Lease (except in the event of a Casualty, Condemnation or
landlord default) and (5) neither Borrower nor such new tenant are in default
under such Lease or (iii) as of any Calculation Date, the Debt Service Coverage
Ratio shall be greater than 1.69:1 (provided that for purposes of the
determination of the Debt Service Ratio for purposes of this Fidelity L/C
Release Event definition, the Net Cash Flow shall not include any Rents payable
with respect to the space demised by the Fidelity Lease, whether pursuant to the
Fidelity Lease or any other Lease of such space). Borrower and Lender agree that
clauses (i) and (ii) of this definition shall be of no further effect after
April 1, 2004 and that after April 1, 2004 this definition shall be deemed to
consist solely of clause (iii).
"FIDELITY LEASE" shall mean that Lease dated as of March 19,
2003 between Fidelity Brokerage Services, LLC, a Delaware limited liability
company ("FIDELITY"), as tenant, and Borrower, as landlord, pursuant to which
Fidelity leased a certain portion of the Property from Borrower.
March 31, 2003
-5-
"FISCAL YEAR" shall mean each twelve month period commencing
on January 1 and ending on December 31 during each year of the Term.
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the accounting
profession), or in such other statements by such entity as may be in general use
by significant segments of the U.S. accounting profession.
"GOVERNMENTAL AUTHORITY" shall mean any court, board, agency,
commission, office or authority of any nature whatsoever or any governmental
xxxx (xxxxxxx, xxxxx, xxxxxx, xxxxxxxx, xxxxxxxxx, xxxx or otherwise) whether
now or hereafter in existence.
"GROSS REVENUE" shall mean all revenue derived from the
ownership and operation of the Property from whatever source, including Rents
and any Insurance Proceeds, but only if and to the extent Lender elects to treat
any such Insurance Proceeds as business or rental interruption Insurance
Proceeds pursuant to Section 5.4 hereof.
"GUARANTOR" shall mean Glimcher Properties Limited
Partnership, a Delaware limited partnership.
"GUARANTY" shall mean, collectively, the Recourse Guaranty and
the Payment Guaranty.
"INDEBTEDNESS" shall mean, for any Person, without
duplication: (i) all indebtedness of such Person for borrowed money, for amounts
drawn under a letter of credit, or for the deferred purchase price of property
for which such Person or its assets is liable, (ii) all unfunded amounts under a
loan agreement, letter of credit, or other credit facility for which such Person
would be liable if such amounts were advanced thereunder, (iii) all amounts
required to be paid by such Person as a guaranteed payment to partners or a
preferred or special dividend, including any mandatory redemption of shares or
interests, (iv) all indebtedness guaranteed by such Person, directly or
indirectly, (v) all obligations under leases that constitute capital leases for
which such Person is liable, and (vi) all obligations of such Person under
interest rate swaps, caps, floors, collars and other interest hedge agreements,
in each case whether such Person is liable contingently or otherwise, as
obligor, guarantor or otherwise, or in respect of which obligations such Person
otherwise assures a creditor against loss.
"INSOLVENCY OPINION" shall mean that certain bankruptcy
non-consolidation opinion letter dated the date hereof delivered by Xxxxx Xxxxx
Xxxx LLC in connection with the Loan.
"INTEREST RATE" shall mean (a) the following rates per annum
with respect to the corresponding Components comprising Note A as set forth
below:
March 31, 2003
-6-
COMPONENT INTEREST RATE
--------- -------------
Component A-1 5.24 % per annum
Component A-2 5.24 % per annum
and (b) the following rates per annum with respect to the corresponding
Components comprising Note B as set forth below:
COMPONENT INTEREST RATE
--------- -------------
Component B-1 5.24 % per annum
Component B-2 5.24 % per annum
Component B-3 5.24 % per annum
Component B-4 5.24 % per annum
Component B-5 5.24 % per annum
"KEY PRINCIPAL" shall mean Glimcher Realty Trust, a Maryland
real estate investment trust.
"LEASE" shall mean any lease, sublease or sub-sublease,
letting, license, concession or other agreement (whether written or oral and
whether now or hereafter in effect) pursuant to which any Person is granted a
possessory interest in, or right to use or occupy all or any portion of any
space in the Property, and every modification, amendment or other agreement
relating to such lease, sublease, sub-sublease, or other agreement entered into
in connection with such lease, sublease, sub-sublease, or other agreement and
every guarantee of the performance and observance of the covenants, conditions
and agreements to be performed and observed by the other party thereto.
"LEGAL REQUIREMENTS" shall mean all federal, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations,
ordinances, judgments, decrees and injunctions of Governmental Authorities
affecting Borrower or the Property or any part thereof or the construction, use,
alteration or operation thereof, or any part thereof, whether now or hereafter
enacted and in force, including the Americans with Disabilities Act of 1990, and
all permits, licenses and authorizations and regulations relating thereto, and
all covenants, agreements, restrictions and encumbrances contained in any
instruments, either of record or known to Borrower, at any time in force
affecting the Property or any part thereof, including any which may (i) require
repairs, modifications or alterations in or to the Property or any part thereof,
or (ii) in any way limit the use and enjoyment thereof.
"LETTER OF CREDIT" shall mean an irrevocable, unconditional,
transferable, clean sight draft letter of credit acceptable to Lender and the
Rating Agencies (which letter of credit
March 31, 2003
-7-
shall provide that such letter of credit shall be deemed to be automatically
renewed, without amendment, for consecutive periods of one year each, unless the
issuing bank sends a written notice (a "NON-RENEWAL NOTICE") to Lender by
certified or registered mail, return receipt requested, not less than thirty
(30) days preceding the then expiration date of such letter of credit, that it
elects not to have such letter of credit renewed) in favor of Lender and
entitling Lender to draw thereon in New York, New York (or by facsimile or
overnight mail), issued by a domestic Eligible Institution or the U.S. agency or
branch of a foreign Eligible Institution.
"LIEN" shall mean any mortgage, deed of trust, lien (statutory
or otherwise), pledge, hypothecation, easement, restrictive covenant,
preference, assignment, security interest, or any other encumbrance, charge or
transfer of, or any agreement to enter into or create any of the foregoing, on
or affecting all or any portion of the Property or any interest therein, or any
direct or indirect interest in Borrower or Sole Member, including any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, the filing of
any financing statement, and mechanic's, materialmen's and other similar liens
and encumbrances.
"LOAN" shall mean the loan in the original principal amount
of $150,000,000 made by Lender to Borrower pursuant to this Agreement.
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the
Note, the Mortgage, the Assignment of Leases, the Cash Management Agreement, the
Clearing Account Agreement, the Environmental Indemnity, the Assignment of
Management Agreement, the Recourse Guaranty and any other documents, agreements
and instruments now or hereafter evidencing, securing or delivered to Lender in
connection with the Loan
"MAJOR CONTRACT" shall mean (i) any management, brokerage or
leasing agreement or (ii) any cleaning, maintenance, service or other contract
or agreement of any kind (other than Leases) of a material nature (materiality
for these purposes to include only those contracts having payments due
thereunder in excess of $500,000 per annum) relating to the ownership, leasing,
management, use, operation, maintenance, repair or restoration of the Property,
whether written or oral.
"MAJOR LEASE" shall mean any Lease which, either individually,
or when taken together with any other Lease with the same Tenant or its
Affiliates (i) cover more than 7,500 square feet at the Property.
"MANAGEMENT AGREEMENT" shall mean the management agreement
entered into by and between Borrower, the Manager and Glimcher Development
Corporation, pursuant to which the Manager is to provide management and other
services with respect to the Property.
"MANAGER" shall mean Glimcher Properties Limited Partnership,
a Delaware limited partnership., or any other manager approved by Lender and the
Rating Agencies in accordance with the terms and conditions of the Loan
Documents.
"MATERIAL ALTERATION" shall mean any alteration (i) affecting
structural elements of the Property the cost of which exceeds $2,000,000 or (ii)
which could reasonably be expected to have a material adverse affect Borrower's
financial condition or the value or Net Cash Flow of
March 31, 2003
-8-
the Property; provided, however, that in no event shall (A) any tenant
improvement work performed pursuant to any Lease existing on the date hereof or
entered into hereafter in accordance with the provisions of this Agreement, or
(B) alterations performed as part of the Restoration of the Property after a
Casualty or Condemnation, constitute a Material Alteration.
"MATURITY DATE" shall mean the date on which the final payment
of principal of the Note becomes due and payable as therein provided, whether at
the Stated Maturity Date, by declaration of acceleration, or otherwise.
"MAXIMUM LEGAL RATE" shall mean the maximum nonusurious
interest rate, if any, that at any time or from time to time may be contracted
for, taken, reserved, charged or received on the indebtedness evidenced by the
Note and as provided for herein or the other Loan Documents, under the laws of
such state or states whose laws are held by any court of competent jurisdiction
to govern the interest rate provisions of the Loan.
"MINIMUM DISBURSEMENT AMOUNT" shall mean Twenty-Five Thousand
and No/100 Dollars ($25,000).
"MONTHLY DEBT SERVICE PAYMENT AMOUNT" shall mean a constant
monthly payment of $827,376.73 which is based on the Interest Rate and a
360-month amortization schedule.
"MONTHLY PAYMENT DATE" shall mean the eleventh (11th) day of
every calendar month occurring during the Term. The first Monthly Payment Date
shall be May 11, 2003.
"MORTGAGE" shall mean that certain first priority Mortgage,
Assignment of Leases and Rents and Security Agreement, dated the date hereof,
executed and delivered by Borrower as security for the Loan and encumbering the
Property, as the same may be amended, restated, replaced, supplemented or
otherwise modified from time to time.
"NET CASH FLOW" shall mean, for any period, the net cash flow
of the Property as determined by Lender in its sole but good faith discretion in
accordance with Lender's then current underwriting standards for loans of this
type and the then current underwriting standards of the Rating Agencies.
"NET PROCEEDS" shall mean: (i) the net amount of all insurance
proceeds payable as a result of a Casualty to the Property, after deduction of
reasonable costs and expenses (including reasonable attorneys' fees and costs),
if any, in collecting such insurance proceeds, or (ii) the net amount of the
Award, after deduction of reasonable costs and expenses (including reasonable
attorneys' fees and costs), if any, in collecting such Award.
"NOTE" shall mean, collectively, Note A and Note B.
"NOTE A" shall mean that certain Promissory Note A dated as of
the date hereof in the stated principal amount of $135,000,000 executed by
Borrower and payable to the order of Lender in evidence of a portion of the
Loan, as the same may be amended, supplemented, restated, increased, extended or
consolidated from time to time.
March 31, 2003
-9-
"NOTE B" shall mean that certain Promissory Note B dated as of
the date hereof in the stated principal amount of $15,000,000 executed by
Borrower and payable to the order of Lender in evidence of a portion of the
Loan, as the same may be amended, supplemented, restated, increased, extended or
consolidated from time to time.
"OBLIGATIONS" shall mean, collectively, Borrower's obligations
for the payment of the Debt and the performance of the Other Obligations.
"OFFICER'S CERTIFICATE" shall mean a certificate delivered to
Lender by Borrower which is signed by the chief financial officer of Sole
Member.
"OTHER CHARGES" shall mean all ground rents, maintenance
charges, impositions other than Taxes, and any other charges, including vault
charges and license fees for the use of vaults, chutes and similar areas
adjoining the Property, now or hereafter levied or assessed or imposed against
the Property or any part thereof.
"OTHER OBLIGATIONS" shall mean (a) the performance of all
obligations of Borrower contained herein; (b) the performance of each obligation
of Borrower contained in any other Loan Document; and (c) the performance of
each obligation of Borrower contained in any renewal, extension, amendment,
modification, consolidation, change of, or substitution or replacement for, all
or any part of this Agreement, the Note or any other Loan Document.
"PAYMENT GUARANTY" shall mean that certain Guaranty of even
date herewith from Guarantor for the benefit of Lender.
"PERMITTED ENCUMBRANCES" shall mean, collectively, (i) the
Liens and security interests created by the Loan Documents, (ii) all
encumbrances and other matters disclosed in the Title Insurance Policy, (iii)
Liens, if any, for Taxes imposed by any Governmental Authority not yet due or
delinquent, (iv) any workers', mechanics' or similar Liens on the Property
provided any such Lien is discharged or bonded in accordance with Section 3.6 of
the Mortgage, and (v) such other title and survey exceptions as Lender has
approved or may approve in writing in Lender's sole discretion.
"PERMITTED TRANSFEREE" shall mean a corporation, partnership
or limited liability company (i) acceptable to Lender in its reasonable
discretion, (ii) that qualifies as a single purpose, bankruptcy remote entity
under criteria established by the Rating Agencies, (iii) whose counsel has
delivered to Lender a non-consolidation opinion acceptable to Lender and the
Rating Agencies in their reasonable discretion, (iv) is a creditworthy Person
with sufficient financial worth considering the obligations assumed and
undertaken, as evidenced by financial statements and other information
reasonably requested by Lender.
"PERSON" shall mean any individual, corporation, partnership,
limited liability company, joint venture, estate, trust, unincorporated
association, any other entity, any federal, state, county or municipal
government or any bureau, department or agency thereof and any fiduciary acting
in such capacity on behalf of any of the foregoing.
"PREPAYMENT DATE" shall mean the date on which the Loan is
prepaid in accordance with the terms hereof.
March 31, 2003
-10-
"PROPERTY" shall mean the parcels of real property, the
Improvements thereon and all personal property owned by Borrower and encumbered
by the Mortgage, together with all rights pertaining to such property and
Improvements, all as more particularly described in the granting clauses of the
Mortgage.
"RATING AGENCIES" shall mean, prior to the final
Securitization of the Loan, each of Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc., Xxxxx'x Investors Service, Inc. and
Fitch IBCA, Inc., Duff & Xxxxxx, or any other nationally-recognized statistical
rating agency which has been designated by Lender and, after the final
Securitization of the Loan, shall mean any of the foregoing that have rated any
of the Securities.
"RATING AGENCY CONFIRMATION" shall mean a written affirmation
from each of the Rating Agencies that the credit rating of the Securities by
such Rating Agency immediately prior to the occurrence of the event with respect
to which such Rating Agency Confirmation is sought will not be qualified,
downgraded or withdrawn as a result of the occurrence of such event, which
affirmation may be granted or withheld in such Rating Agency's sole and absolute
discretion.
"REA" shall mean, collectively, as the same may be amended,
restated, supplemented or otherwise modified from time to time, that certain
Construction, Operation and Reciprocal Easement Agreement more specifically
described on Schedule VII attached hereto and made a part hereof.
"RECOURSE GUARANTY" shall mean that certain Guaranty of
Recourse Obligations of even date herewith from Guarantor for the benefit of
Lender.
"RELEASE DATE" shall mean the earlier to occur of (i) the
fourth (4th) anniversary of the Closing Date and (ii) the date that is two (2)
years from the "startup day" (within the meaning of Section 860G(a)(9) of the
Code) of the REMIC Trust established in connection with a Securitization
involving this Loan.
"REMIC TRUST" shall mean a "real estate mortgage investment
conduit" within the meaning of Section 860D of the Code that holds the Note.
"RENTS" shall mean all rents, rent equivalents, moneys payable
as damages (including payments by reason of the rejection of a Lease in a
Bankruptcy proceeding) or in lieu of rent or rent equivalents, royalties
(including all oil and gas or other mineral royalties and bonuses), income,
fees, receivables, receipts, revenues, deposits (including security, utility and
other deposits), accounts, cash, issues, profits, charges for services rendered,
and other payment and consideration of whatever form or nature received by or
paid to or for the account of or benefit of Borrower, Manager or any of their
agents or employees from any and all sources arising from or attributable to the
Property and the Improvements, including all receivables, customer obligations,
installment payment obligations and other obligations now existing or hereafter
arising or created out of the sale, lease, sublease, license, concession or
other grant of the right of the use and occupancy of the Property or rendering
of services by Borrower, Manager or any of their agents or employees and
proceeds, if any, from business interruption or other loss of income insurance,
but only to the extent Lender elects to treat such Insurance Proceeds as
business or rental interruption Insurance Proceeds pursuant to Section 5.4
hereof.
March 31, 2003
-11-
Notwithstanding anything herein to the contrary, fees payable to Manager under
the management agreement shall not constitute Rents.
"RESERVE FUNDS" shall mean, collectively, all funds deposited
by Borrower with Lender or Agent pursuant to Article 6 of this Agreement,
including the Capital Expenditure Funds, the Insurance Funds, the Tax Funds, the
Required Repair Funds, the Operating Expense Funds and the Rollover Funds.
"RESTORATION" in connection with a Casualty or a Condemnation,
the repair and restoration of the Property as nearly as possible to the
condition the Property was in immediately prior to such Casualty or
Condemnation.
"SCHEDULED DEFEASANCE PAYMENTS" shall mean scheduled payments
of interest and principal under the Note for all Monthly Payment Dates occurring
after the Defeasance Date and up to and including the Stated Maturity Date
(including the outstanding principal balance on the Note as of the Stated
Maturity Date), and all payments required after the Defeasance Date, if any,
under the Loan Documents for servicing fees, Rating Surveillance Charges and
other similar charges.
"SECURITY AGREEMENT" shall mean a security agreement in form
and substance that would be satisfactory to Lender pursuant to which Borrower
grants Lender a perfected, first priority security interest in the Defeasance
Collateral Account and the Defeasance Collateral.
"SOLE MEMBER" shall mean Polaris Mall, LLC, a Delaware limited
liability company, the sole member of Borrower.
"STATE" shall mean the State or Commonwealth in which the
Property or any part thereof is located.
"STATED MATURITY DATE" shall mean April 11, 2013.
"SURVEY" shall mean a survey of the Property prepared by a
surveyor licensed in the State and satisfactory to Lender and the company or
companies issuing the Title Insurance Policy, and containing a certification of
such surveyor satisfactory to Lender.
"TAXES" shall mean all real estate and personal property
taxes, assessments, water rates, sewer rents or service payments in-lieu-of ad
valorem taxes now or hereafter levied or assessed or imposed against the
Property or part thereof, together with all interest and penalties thereon.
"TENANT" shall mean any Person obligated by contract or
otherwise to pay monies (including a percentage of gross income, revenue or
profits) under any Lease now or hereafter affecting all or any part of the
Property.
"TERM" shall mean the entire term of this Agreement, which
shall expire upon repayment in full of the Debt and full performance of each and
every obligation to be performed by Borrower pursuant to the Loan Documents.
March 31, 2003
-12-
"TITLE INSURANCE POLICY" shall mean an ALTA mortgagee title
insurance policy in the form acceptable to Lender issued with respect to the
Property and insuring the lien of the Mortgage.
"TRUSTEE" shall mean any trustee holding the Loan in a
Securitization.
"UCC" or "UNIFORM COMMERCIAL CODE" shall mean the Uniform
Commercial Code as in effect in the State.
"U.S. OBLIGATIONS" shall mean direct full faith and credit
obligations of the United States of America that are not subject to prepayment,
call or early redemption.
"YIELD MAINTENANCE PREMIUM" shall mean an amount which, when
added to the outstanding principal balance of the Loan, would be sufficient to
purchase U.S. Obligations which provide payments (a) on or prior to, but as
close as possible to, all successive scheduled payment dates under this
Agreement through the Stated Maturity Date and (b) in amounts equal to the
Monthly Debt Service Payment Amount required under this Agreement through the
Stated Maturity Date together with the outstanding principal balance of the Note
as of the Stated Maturity Date assuming all such Monthly Debt Service Payments
are made (including any servicing costs associated therewith). In no event shall
the Yield Maintenance Premium be less than zero.
SECTION 1.2 INDEX OF OTHER DEFINITIONS. The following terms
are defined in the sections or Loan Documents indicated below:
"Accounts" - Section 6.1
"Acquired Property Statements" - Section 9.1(c)
"Borrower's Recourse Liabilities" Section 11.22
"Capital Expenditure Account" - Section 6.5.1
"Capital Expenditure Funds" - Section 6.5.1
"Cash Collateral Account" Section 6.8.3
"Cash Collateral Funds" Section 6.8.3
"Casualty and Condemnation Account" - Cash Management Agreement
"Casualty Consultant" - Section 5.3.2(c)
"Casualty Retainage" - Section 5.3.2(d)
"Clearing Account" - Section 6.1
"Clearing Bank" - Section 6.1
"Debt Service Account" - Cash Management Agreement
"Defeasance Collateral Account" - Section 2.5.2
"Defeasance Date" - Section 2.5.1(a)(i)
"Defeasance Event" - Section 2.5.1(a)
"Defeased Note" - Section 2.5.1(a)
"Deposit Account" - Section 6.1
"Disclosure Document" - Section 9.2(a)
"Disclosure Document Date" - Section 9.1(c)(iv)
"Easements" - Section 3.1.12
"Equipment" - Mortgage
"ERISA" - Section 4.2.13
March 31, 2003
-13-
"Event of Xxxxxxx" - Xxxxxxx 00.0
"Xxxxxxxx Xxx" - Section 9.2(a)
"Exchange Act Filing" - Section 9.1(c)(vi)
"Extraordinary Expense" - Section 4.1.7(e)
"Fidelity L/C" - Section 6.8.2
"Full Defeasance" - Section 2.5.1(a)
"Improvements" - Mortgage
"Indemnified Liabilities" - Section 11.13(b)
"Independent Director" - Schedule V
"Initial Interest Period" - Section 2.3.1
"Insurance Account" - Section 6.4.1
"Insurance Funds" - Section 6.4.1
"Insurance Premiums" - Section 5.1.1(b)
"Interest Period" - Section 2.3
"Key Principal" - Section 8.2
"Lease Termination Payments" - Section 6.6.1(b)(i)
"Liabilities" - Section 9.2(b)
"Manager Termination Ratio" - Section 7.3
"Net Proceeds Deficiency" - Section 5.3.2(f)
"Note" - Section 2.1.3
"Notice" - Section 11.6
"Operating Expense Account" - Section 6.8
"Operating Expense Funds" - Section 6.8
"Optional Prepayment Date": - Section 2.4.1
"Partial Defeasance" - Section 2.5.1(a)
"Permitted Indebtedness" - Schedule V
"Permitted Investments" - Cash Management Agreement
"Permitted Transfer" - Section 8.2
"Policies" - Section 5.1.1(b)
"Rating Surveillance Charge" - Section 9.3
"Registration Statement" - Section 9.2(b)
"Remaining Property" - Section 2.6
"Restoration" - Section 5.2.1
"Rollover Account" - Section 6.6.1
"Rollover Funds" - Section 6.6.1
"Secondary Market Transaction" - Section 9.1(a)
"Securities" - Section 9.1(a)
"Securities Act" - Section 9.2(a)
"Securitization" - Section 9.1(a)
"Servicer" - Section 11.24
"Servicing Agreements" - Section 11.24
"Severed Loan Documents" - Section 10.2(c)
"Special Member" - Schedule V
"Springing Recourse Event" - Section 11.22
"Standard Statements" - Section 9.1(c)
"Successor Borrower" - Section 2.5.3
"Tax Account" - Section 6.3.1
March 31, 2003
-14-
"Tax Funds" - Section 6.3.1
"Transfer" - Section 4.2.1
"UBS" - Section 9.2(b)
"UBS Group" - Section 9.2(b)
"Undefeased Note" - Section 2.5.1(a)
"Underwriter Group" - Section 9.2(b)
"Updated Information" - Section 9.1(b)(i)
SECTION 1.3 PRINCIPLES OF CONSTRUCTION.
All references to sections and schedules are to sections and
schedules in or to this Agreement unless otherwise specified. Unless otherwise
specified, the words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement and the word "including" shall
mean "including but not limited to". Unless otherwise specified, all meanings
attributed to defined terms herein shall be equally applicable to both the
singular and plural forms of the terms so defined.
II. THE LOAN
SECTION 2.1 THE LOAN.
2.1.1 AGREEMENT TO LEND AND BORROW. Subject to and upon the
terms and conditions set forth herein, Lender shall make the Loan to Borrower
and Borrower shall accept the Loan from Lender on the Closing Date.
2.1.2 SINGLE DISBURSEMENT TO BORROWER. Borrower shall
receive only one borrowing hereunder in respect of the Loan and any amount
borrowed and repaid hereunder in respect of the Loan may not be reborrowed.
2.1.3 THE NOTE. The Loan shall be evidenced by the Note and
shall be repaid in accordance with the terms of this Agreement and the Note.
2.1.4 USE OF PROCEEDS. Borrower shall use proceeds of the
Loan to (i) pay and discharge any existing loans relating to the Property, (ii)
pay all past-due Taxes, insurance premiums and Other Charges, if any, in respect
of the Property, (iii) make initial deposits of the Reserve Funds, (iv) pay
costs and expenses incurred in connection with the closing of the Loan, as
approved by Lender and (v) fund any working capital requirements of the
Property, as approved by Lender. Any excess proceeds may be used for any lawful
purpose.
2.1.5 COMPONENTS OF THE LOAN. For the purpose of computing
interest payable from time to time on the principal amount of the Loan and
certain other computations set forth herein, the principal balance of Note A
shall be divided into Component A-1 and Component A-2 and the principal balance
of Note B shall be divided into Component X-0, Xxxxxxxxx X-0, Component B-3 and
Component B-4. The principal amount of the Components shall be as follows:
March 31, 2003
-15-
COMPONENT PRINCIPAL AMOUNT
--------- ----------------
A-1 $67,500,000
A-2 $67,500,000
B-1 $ 3,000,000
B-2 $ 3,000,000
B-3 $ 3,000,000
B-4 $ 3,000,000
B-5 $ 3,000,000
SECTION 2.2 INTEREST RATE.
2.2.1 INTEREST RATE. Interest on the outstanding principal
balance of the Loan shall accrue from the Closing Date up to but excluding the
Stated Maturity Date, at the Interest Rate.
2.2.2 DEFAULT RATE. In the event that, and for so long as,
any Event of Default shall have occurred and be continuing, the outstanding
principal balance of the Loan and, to the extent permitted by law, overdue
interest in respect of the Loan, shall accrue interest at the Default Rate,
calculated from the date such payment was due without regard to any grace or
cure periods contained herein.
2.2.3 INTEREST CALCULATION. Interest on the outstanding
principal balance of each Component shall be calculated by multiplying (a) the
actual number of days elapsed in the period for which the calculation is being
made by (b) a daily rate based on a three hundred sixty (360) day year (that is,
the Interest Rate for such Component or the Default Rate, as then applicable,
expressed as an annual rate divided by 360) by (c) the outstanding principal
balance of such Component. The accrual period for calculating interest due on
each Monthly Payment Date shall be the Interest Period immediately prior to such
Monthly Payment Date.
2.2.4 USURY SAVINGS. This Agreement and the other Loan
Documents are subject to the express condition that at no time shall Borrower be
required to pay interest on the principal balance of the Loan at a rate which
could subject Lender to either civil or criminal liability as a result of being
in excess of the Maximum Legal Rate. If by the terms of this Agreement or the
other Loan Documents, Borrower is at any time required or obligated to pay
interest on the principal balance due hereunder at a rate in excess of the
Maximum Legal Rate, the Interest Rate or the Default Rate, as the case may be,
shall be deemed to be immediately reduced to the Maximum Legal Rate and all
previous payments in excess of the Maximum Legal Rate shall be deemed to have
been payments in reduction of principal and not on account of the interest due
hereunder. All sums paid or agreed to be paid to Lender for the use,
forbearance, or detention of the sums due under the Loan, shall, to the extent
permitted by applicable law, be
March 31, 2003
-16-
amortized, prorated, allocated, and spread throughout the full stated term of
the Loan until payment in full so that the rate or amount of interest on account
of the Loan does not exceed the Maximum Legal Rate from time to time in effect
and applicable to the Loan for so long as the Loan is outstanding.
SECTION 2.3 LOAN PAYMENTS.
2.3.1 PAYMENTS. Borrower shall pay to Lender (a) on the
date hereof, an amount equal to interest only on the outstanding principal
balance of the Loan from the Closing Date up to and including April 10, 2003
(the "INITIAL INTEREST PERIOD"), (b) on each Monthly Payment Date thereafter
beginning on May 11, 2003 throughout the Term, a payment of principal and
interest in an amount equal to the Monthly Debt Service Payment Amount, which
payments shall be applied which payments shall be applied, (i) first, to accrued
and unpaid interest on Note A (and any Components thereunder in numerical
order), (ii) second, to the reduction of the principal balance of Note A (and
any Components thereunder in numerical order) in an amount equal to the
applicable installment of principal, if any, then due for the month in which
such Monthly Payment, (iii) third, to accrued and unpaid interest on Note B (and
any Components thereunder in numerical order), (iv) fourth, to the reduction of
the principal balance of Note A (and any Components thereunder in numerical
order), until such principal balance is reduced to zero, and (v) fifth, to the
reduction of the principal balance of Note B (and any Components thereunder in
numerical order) until such principal balance is reduced to zero, and (c) all
amounts required in respect of Reserve Funds as set forth in Article 6 hereof.
2.3.2 PAYMENTS GENERALLY. After the Initial Interest
Period, each interest accrual period thereafter (each, an "INTEREST PERIOD")
shall commence on the eleventh (11th) day of each calendar month during the term
of the Loan and shall end on and include the tenth (10th) day of the next
occurring calendar month. For purposes of making payments hereunder, but not for
purposes of calculating interest accrual periods, if the day on which such
payment is due is not a Business Day, then amounts due on such date shall be due
on the immediately succeeding Business Day. Lender shall have the right from
time to time, in its sole discretion, upon not less than thirty (30) days prior
written notice to Borrower, to change the Monthly Payment Date to a different
calendar day each month which is not more than five (5) days earlier nor more
than five (5) days later than the eleventh day of each calendar month; provided,
however, that if Lender shall have elected to change the Monthly Payment Date as
aforesaid, Lender shall have the option, but not the obligation, to adjust the
Interest Period accordingly. With respect to payments of principal due on the
Maturity Date, interest shall be payable at the Interest Rate or the Default
Rate, as the case may be, through and including the day immediately preceding
such Maturity Date. All amounts due pursuant to this Agreement, the Note and the
other Loan Documents shall be payable without setoff, counterclaim, defense or
any other deduction whatsoever.
2.3.3 PAYMENT ON MATURITY DATE. Borrower shall pay to
Lender on the Maturity Date the outstanding principal balance of the Loan, all
accrued and unpaid interest and all other amounts due hereunder and under the
Note, the Mortgage and the other Loan Documents.
March 31, 2003
-17-
2.3.4 LATE PAYMENT CHARGE. If any principal, interest or
any other sum due under the Loan Documents, including the payment of principal
due on the Maturity Date (but only to the extent that such principal payment due
on the Maturity Date is not paid within five days of the Maturity Date), is not
paid by Borrower on the date on which it is due, Borrower shall pay to Lender
upon demand an amount equal to the lesser of five percent (5%) of such unpaid
sum or the maximum amount permitted by applicable law in order to defray the
expense incurred by Lender in handling and processing such delinquent payment
and to compensate Lender for the loss of the use of such delinquent payment;
provided, however that such late payment charge shall not apply if adequate
funds are available at the time in question in the Deposit Account for such
payments and Agent failed (or Lender failed to cause Agent) to allocate such
funds accordingly. Any such amount shall be secured by the Mortgage and the
other Loan Documents.
2.3.5 METHOD AND PLACE OF PAYMENT.
(a) Except as otherwise specifically provided herein, all
payments and prepayments under this Agreement and the Note shall be made to
Lender not later than 2:00 P.M., New York City time, on the date when due and
shall be made in lawful money of the United States of America in immediately
available funds at Lender's office or at such other place as Lender shall from
time to time designate, and any funds received by Lender after such time shall,
for all purposes hereof, be deemed to have been paid on the next succeeding
Business Day.
(b) Whenever any payment to be made hereunder or under
any other Loan Document shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be the Business Day immediately
preceding such due date.
SECTION 2.4 PREPAYMENTS.
2.4.1 VOLUNTARY PREPAYMENTS.
(a) Except as otherwise provided herein, Borrower shall
not have the right to prepay the Loan in whole or in part. From and after the
date which is ninety (90) days prior to the Stated Maturity Date (the "Optional
Prepayment Date"), Borrower may, at its option and upon no less than thirty (30)
days prior notice to Lender, prepay the Debt in whole only without payment of
the Yield Maintenance Premium; provided that, any prepayment received by Lender
on a date other than a Monthly Payment Date shall include interest which would
have accrued thereon to the next Monthly Payment Date.
(b) If Borrower has elected to prepay the Loan in whole
from and after the Optional Prepayment Date and the requirements of this Section
2.4.1 have been satisfied, the Property shall be released from the Lien of the
Mortgage. In connection with such release of the Lien, Borrower shall submit to
Lender, not less than thirty (30) days prior to the Prepayment Date (or such
shorter time as is acceptable to Lender in its sole discretion), a release of
Lien (and related Loan Documents) for execution by Lender. Such release shall be
in a form appropriate in the jurisdiction in which the Property is located and
contain standard provisions protecting the rights of the releasing lender. In
addition, Borrower shall provide all other documentation Lender reasonably
requires to be delivered by Borrower in connection with such release, together
with an Officer's Certificate certifying that such documentation (i) is in
compliance with all
March 31, 2003
-18-
Legal Requirements, and (ii) will effect such release in accordance with the
terms of this Agreement. Borrower shall pay all costs, taxes and expenses
associated with the release of the Lien of the Mortgage, including Lender's
reasonable attorneys' fees. Except as set forth in this Section 2.4, no
repayment or prepayment of all or any portion of the Note shall cause, give rise
to a right to require, or otherwise result in, the release of the Lien of the
Mortgage on the Property.
2.4.2 MANDATORY PREPAYMENTS. If Lender is not obligated to
make Net Proceeds available to Borrower for a Restoration, on the next occurring
Monthly Payment Date following the date on which (a) Lender actually receives
any Net Proceeds, and (b) Lender has determined that such Net Proceeds shall be
applied against the outstanding principal balance of the Loan, Borrower shall,
at Lender's option, prepay the outstanding principal balance of the Loan in an
amount equal to one hundred percent (100%) of such Net Proceeds. So long as no
Event of Default is continuing, no Yield Maintenance Premium shall be due in
connection with any prepayment made pursuant to this Section 2.4.2.
2.4.3 PREPAYMENTS AFTER DEFAULT. If after an Event of
Default, payment of all or any part of the principal of the Loan is tendered by
Borrower or any other Person, or otherwise recovered by Lender (including
through application of any Reserve Funds), such tender or recovery shall be
deemed to be in violation of the prohibition against prepayment set forth in
Section 2.4.1 and Borrower shall pay, in addition to the outstanding principal
balance of the Loan (i) all accrued and unpaid interest and other amounts
payable under the Loan Documents and (ii) the Yield Maintenance Premium.
2.4.4 APPLICATION OF PREPAYMENTS TO COMPONENTS. Any
prepayment of the principal balance of the Loan, in whole or in part (including
pursuant to Section 2.4.2), shall be applied (i) first, to the payment of costs
and expenses of Lender, if any (if, and only if, the payment of such costs and
expenses is required pursuant to the terms of the Loan Documents (other than
this Section 2.4.4)), including, without limitation, reasonable attorneys' fees
and disbursements, actually incurred in connection with such prepayment, (ii)
second, to the payment of all accrued and unpaid interest on Note A, (iii)
third, to reduce the principal balance of Note A (and any Components thereunder
in numerical order) until such principal balance is reduced to zero, (iv)
fourth, to the payment of all accrued and unpaid interest on Note B and (v)
fifth, to reduce the principal balance of Note B (and any Components thereunder
in numerical order) until such principal balance is reduced to zero.
SECTION 2.5 DEFEASANCE.
2.5.1 CONDITIONS TO DEFEASANCE.
(a) Provided no Event of Default shall have occurred and
remain uncured, Borrower shall have the right at any time after the Release Date
and prior to the Optional Prepayment Date to voluntarily defease the entire Loan
(a "Full Defeasance") or, in the event of the exercise of the DSW Purchase
Option, a portion thereof (a "Partial Defeasance") and obtain a full or partial
release, as the case may be, of the lien of the Mortgage by providing Lender
with the Defeasance Collateral (any such Full Defeasance or Partial Defeasance
is hereinafter, a "Defeasance Event"), subject to the satisfaction of the
following conditions precedent:
March 31, 2003
-19-
(i) Borrower shall provide Lender not less than
thirty (30) days notice (or such shorter period of time if permitted by
Lender in its sole discretion) specifying a date (the "Defeasance
Date") on which the Defeasance Event is to occur;
(ii) Borrower shall pay to Lender (A) all
payments of principal and interest due on the Loan to and including the
Defeasance Date and (B) all other sums, then due under the Note, this
Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower shall deposit the Defeasance
Collateral into the Defeasance Collateral Account and otherwise comply
with the provisions of Sections 2.5.2 and 2.5.3 hereof;
(iv) Borrower shall execute and deliver to Lender
a Security Agreement in respect of the Defeasance Collateral Account
and the Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion
of counsel for Borrower that is standard in commercial lending
transactions and subject only to customary qualifications, assumptions
and exceptions opining, among other things, that (A) Lender has a legal
and valid perfected first priority security interest in the Defeasance
Collateral Account and the Defeasance Collateral, (B) if a
Securitization has occurred, the REMIC Trust formed pursuant to such
Securitization will not fail to maintain its status as a "real estate
mortgage investment conduit" within the meaning of Section 860D of the
Code as a result of a Defeasance Event pursuant to this Section 2.5,
(C) the Defeasance Event will not result in a significant modification
and will not be an exchange of the Note for purposes of Section 1001 of
the Code and the Treasury Regulations thereunder, and will not
adversely affect the status of the Note as indebtedness for federal
income tax purposes, (D) delivery of the Defeasance Collateral and the
grant of a security interest therein to Lender shall not constitute an
avoidable preference under Section 547 of the Bankruptcy Code or
applicable state law and (E) a non-consolidation opinion with respect
to any Successor Borrower;
(vi) In the case of a Partial Defeasance, the
execution and delivery by Borrowers of all necessary documents to amend
and restate the Note and issue two substitute notes: one having a
principal balance equal to the defeased portion of the original Note
(the "Defeased Note") and the other having a principal balance equal to
the undefeased portion of the original Note (the "Undefeased Note").
The Defeased Note and Undefeased Note shall have terms identical to the
terms of the Note, except for the principal balance and a pro rata
allocation of the Monthly Debt Service Payment Amount. (After a Partial
Defeasance, all references hereunder and in the other Loan Documents to
"Note" shall be deemed to mean the Undefeased Note, unless expressly
provided to the contrary.) A Defeased Note cannot be the subject of any
further Defeasance;
(vii) Borrower shall deliver to Lender a Rating
Agency Confirmation as to the Defeasance Event;
(viii) Borrower shall deliver an Officer's
Certificate certifying that the requirements set forth in this Section
2.5 have been satisfied;
March 31, 2003
-20-
(ix) Borrower shall deliver a certificate from a
nationally recognized public accounting firm acceptable to Lender
certifying that the Defeasance Collateral will generate monthly amounts
equal to or greater than the Scheduled Defeasance Payments;
(x) Borrower shall deliver such other
certificates, opinions, documents and instruments as Lender may
reasonably request; and
(xi) Borrower shall pay all costs and expenses of
Lender incurred in connection with the Defeasance Event, including
Lender's reasonable attorneys' fees and expenses and Rating Agency fees
and expenses.
(ii) If Borrower has elected a Full Defeasance and the
requirements of this Section 2.5 have been satisfied, the Property shall be
released from the Lien of the Mortgage and the Defeasance Collateral pledged
pursuant to the Security Agreement shall be the sole source of collateral
securing the Note. In connection with the release of the Lien, Borrower shall
submit to Lender, not less than thirty (30) days prior to the Defeasance Date
(or such shorter time as is acceptable to Lender in its sole discretion), a
release of Lien (and related Loan Documents) for execution by Lender. Such
release shall be in a form appropriate in the jurisdiction in which the Property
is located and contain standard provisions protecting the rights of the
releasing lender. In addition, Borrower shall provide all other documentation
Lender reasonably requires to be delivered by Borrower in connection with such
release, together with an Officer's Certificate certifying that such
documentation (i) is in compliance with all Legal Requirements, and (ii) will
effect such release in accordance with the terms of this Agreement. Borrower
shall pay all costs, taxes and expenses associated with the release of the Lien
of the Mortgage, including Lender's reasonable attorneys' fees. Except as set
forth in Section 2.4 and this Section 2.5, no repayment, prepayment or
defeasance of all or any portion of the Note shall cause, give rise to a right
to require, or otherwise result in, the release of the Lien of the Mortgage on
the Property.
2.5.2 DEFEASANCE COLLATERAL ACCOUNT. On or before the date
on which Borrower delivers the Defeasance Collateral, Borrower shall open at any
Eligible Institution the defeasance collateral account (the "Defeasance
Collateral Account") which shall at all times be an Eligible Account. The
Defeasance Collateral Account shall contain only (i) Defeasance Collateral, and
(ii) cash from interest and principal paid on the Defeasance Collateral. All
cash from interest and principal payments paid on the Defeasance Collateral
shall be paid over to Lender on each Monthly Payment Date and applied first to
accrued and unpaid interest and then to principal. Any cash from interest and
principal paid on the Defeasance Collateral not needed to pay accrued and unpaid
interest or principal shall be retained in the Defeasance Collateral Account as
additional collateral for the Loan. Borrower shall cause the Eligible
Institution at which the Defeasance Collateral is deposited to enter an
agreement with Borrower and Lender, satisfactory to Lender in its sole
discretion, pursuant to which such Eligible Institution shall agree to hold and
distribute the Defeasance Collateral in accordance with this Agreement. The
Successor Borrower shall be the owner of the Defeasance Collateral Account and
shall report all income accrued on Defeasance Collateral for federal, state and
local income tax purposes in its income tax return. Borrower shall prepay all
costs and expenses associated with opening and maintaining the Defeasance
Collateral Account. Lender shall not in any way be liable by reason of any
insufficiency in the Defeasance Collateral Account.
March 31, 2003
-21-
2.5.3 SUCCESSOR BORROWER. In connection with a Defeasance
Event under this Section 2.5, Borrower shall, if required by the Rating Agencies
or at Lender's option, establish or designate a successor entity (the "Successor
Borrower") which shall be a single purpose bankruptcy remote entity and which
shall be approved by the Rating Agencies and Lender. Any such Successor Borrower
may, at Borrower's option, be an Affiliate of Borrower unless the Rating
Agencies shall require otherwise. Borrower shall transfer and assign all
obligations, rights and duties under and to the Defeased Note, together with the
Defeasance Collateral to such Successor Borrower. Such Successor Borrower shall
assume the obligations under the Defeased Note and the Security Agreement. As
conditions to such assignment and assumption, Borrower shall deliver to Lender
an opinion of counsel in form and substance and delivered by counsel
satisfactory to Lender in its sole discretion stating, among other things, that
such assumption agreement is enforceable against Borrower and such Successor
Borrower in accordance with its terms and that the Defeased Note, Security
Agreement and other Loan Documents, as so assumed, are enforceable against such
Successor Borrower in accordance with their respective terms. Borrower shall pay
all costs and expenses incurred by Lender, including Lender's attorney's fees
and expenses, incurred in connection therewith.
2.5.4 APPOINTMENT AS ATTORNEY IN FACT. Upon the release of
the Property in accordance with Section 2.5.1(b), Borrower shall have no further
right to prepay the Note pursuant to the other provisions of this Section 2.5 or
otherwise. In connection with the conditions set forth in this Section 2.5,
Borrower hereby appoints Lender as its agent and attorney-in-fact for the
purpose of purchasing the Defeasance Collateral with funds provided by Borrower.
Borrower shall pay any and all expenses incurred in the purchase of the
Defeasance Collateral and any revenue, documentary stamp or intangible taxes or
any other tax or charge due in connection with the transfer of the Note or
otherwise required to accomplish the agreements of this paragraph.
SECTION 2.6 RELEASE OF DSW PARCEL. Borrower may obtain (i) the
release of the DSW Parcel from the Lien of the Mortgage (and related Loan
Documents) and (ii) the release of Borrower's obligations under the Loan
Documents with respect to the DSW Parcel (other than those obligations expressly
stated to survive), provided each of the following conditions are satisfied:
(a) Borrower shall satisfy the requirements set forth in
Section 2.5 with respect to a Partial Defeasance;
(b) such release is made only in connection with a
conveyance of the DSW Parcel to DSW (or an Affiliate thereof) pursuant to the
DSW Purchase Option;
(c) DSW shall have duly exercised the DSW Purchase
Option;
(d) Borrower shall defease a portion of the outstanding
principal in the amount of $2,672,500;
(e) the DSW Parcel shall constitute a separate, legally
subdivided parcel of land and a separate tax lot;
March 31, 2003
-22-
(f) the conveyance of the DSW Parcel does not (1)
adversely affect the operation of or access to or from the portion of the
Property continuing to be subject to the Lien of the Mortgage after such release
(the "Remaining Property"), (2) cause any portion of the Remaining Property to
be in violation of any Legal Requirements, (3) create any Liens on the Remaining
Property, or (4) violate any Leases, reciprocal easement agreements or operating
agreements affecting the Property;
(g) no Event of Default shall exist;
(h) the representations and warranties made by Borrower
in this Agreement and the other Loan Documents shall be true and correct in all
material respects on and as of the date of such conveyance (and after giving
effect to such conveyance);
(i) Borrower shall submit to Lender, not less than 30
days prior to the date of such release:
(i) a release of Lien for the DSW Parcel (for
execution by Lender) in a form appropriate in the State and
satisfactory to Lender in its reasonable discretion;
(ii) if required by Lender in its reasonable
discretion, a proposed form of easement and operating agreement (or
amendment to any existing easement or operating agreement) between
Borrower and the transferee of the DSW Parcel, in form and substance
satisfactory to Lender in its reasonable discretion, pursuant to which
Borrower shall receive such easements, and the right to enforce such
restrictive covenants, over the DSW Parcel that are reasonably required
for the continued use and operation of the Remaining Property;
(iii) zoning opinions or other evidence reasonably
satisfactory to Lender (which may include an appropriate endorsement to
the title insurance policy or a letter/certificate from the applicable
municipal authority reasonably acceptable to Lender) that (1) the DSW
Parcel being released and the Remaining Property have been legally
subdivided into separate parcels, (2) the Remaining Property complies
with all material zoning laws, (3) all of the then existing
certificates of occupancy applicable to the Remaining Property shall
remain in full force and effect after the conveyance of the DSW Parcel
to be released and (4) no portion of the Remaining Property shall for
any purpose whatsoever be part of a tax lot with all or part of any of
the DSW Parcel being released; and
(iv) an Officer's Certificate certifying that
such documentation (A) is in compliance with all Legal Requirements,
and (B) will not impair or otherwise adversely affect the Liens and
other rights of Lender under the Loan Documents;
(j) if reasonably required by Lender in accordance with
paragraph (i)(ii) above, concurrently with such release, Borrower shall deliver
to Lender an executed original of the easement agreement referred to in
paragraph (i)(ii) above;
March 31, 2003
-23-
(k) if the parcel released shall deviate from the
description of the DSW Parcel attached hereto as Schedule VI, the shape,
location and configuration of the Remaining Property shall be reasonably
satisfactory to Lender;
(l) if such release occurs after a Secondary Market
Transaction, an opinion of counsel for Borrower in form satisfactory to Lender
stating that the release of the DSW Parcel will not adversely affect the status
of any REMIC Trust formed in connection with a Secondary Market Transaction;
(m) immediately after giving effect to such release,
Borrower shall continue to be in compliance with the representations, warranties
and covenants set forth in Sections 3.1.24 and 4.2.12;
(n) Borrower shall pay all expenses incurred by Lender
(including reasonable attorneys' fees) in connection with such release; and
(o) Borrower shall satisfy such other conditions imposed
by Lender in its reasonable discretion.
III. REPRESENTATIONS AND WARRANTIES
SECTION 3.1 BORROWER REPRESENTATIONS.
Borrower represents and warrants that, except to the extent
(if any) disclosed on Schedule IV with reference to a specific Section of this
Article 3:
3.1.1 ORGANIZATION. Each of Borrower and Sole Member is
duly organized, validly existing and in good standing with full power and
authority to own its assets and conduct its business, and is duly qualified in
all jurisdictions in which the ownership or lease of its property or the conduct
of its business requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on its ability to perform its
obligations hereunder, and Borrower has taken all necessary action to authorize
the execution, delivery and performance of this Agreement and the other Loan
Documents by it, and has the power and authority to execute, deliver and perform
under this Agreement, the other Loan Documents and all the transactions
contemplated hereby.
3.1.2 PROCEEDINGS. This Agreement and the other Loan
Documents have been duly authorized, executed and delivered by Borrower and
constitute a legal, valid and binding obligation of Borrower, enforceable
against Borrower in accordance with their respective terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors' rights generally,
and by general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
3.1.3 NO CONFLICTS. The execution and delivery of this
Agreement and the other Loan Documents by Borrower and the performance of its
obligations hereunder and thereunder will not conflict with any provision of any
law or regulation to which Borrower is subject, or conflict with, result in a
breach of, or constitute a default under, any of the terms, conditions or
March 31, 2003
-24-
provisions of any of Borrower's organizational documents or any agreement or
instrument to which Borrower is a party or by which it is bound, or any order or
decree applicable to Borrower, or result in the creation or imposition of any
Lien on any of Borrower's assets or property (other than pursuant to the Loan
Documents).
3.1.4 LITIGATION. There is no action, suit, proceeding or
investigation pending or, to Borrower's knowledge, threatened against Borrower,
Sole Member, the Manager or the Property in any court or by or before any other
Governmental Authority which, if adversely determined, might materially and
adversely affect the condition (financial or otherwise) or business of Borrower
(including the ability of Borrower to carry out the transactions contemplated by
this Agreement), Sole Member, Manager or the condition or ownership of the
Property.
3.1.5 AGREEMENTS. Borrower is not in default with respect
to any order or decree of any court or any order, regulation or demand of any
Governmental Authority, which default might have consequences that would
materially and adversely affect the condition (financial or other) or operations
of Borrower or its properties or might have consequences that would adversely
affect its performance hereunder. Borrower is not in default in any material
respect in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any Permitted Encumbrance or any other
agreement or instrument to which it is a party or by which it or the Property is
bound.
3.1.6 CONSENTS. No consent, approval, authorization or
order of any court or Governmental Authority is required for the execution,
delivery and performance by Borrower of, or compliance by Borrower with, this
Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby, other than those which have been obtained by Borrower.
3.1.7 TITLE. Borrower has good, marketable and insurable
fee simple title to the real property comprising part of the Property and good
title to the balance of the Property owned by it, free and clear of all Liens
whatsoever except the Permitted Encumbrances. The Mortgage, when properly
recorded in the appropriate records, together with any Uniform Commercial Code
financing statements required to be filed in connection therewith, will create
(i) a valid, first priority, perfected lien on Borrower's interest in the
Property, subject only to Permitted Encumbrances and (ii) perfected security
interests in and to, and perfected collateral assignments of, all personalty
(including the Leases), all in accordance with the terms thereof, in each case
subject only to any Permitted Encumbrances. There are no mechanics',
materialman's or other similar liens or claims which have been filed for work,
labor or materials affecting the Property which are or may be liens prior to, or
equal or coordinate with, the lien of the Mortgage. None of the Permitted
Encumbrances, individually or in the aggregate, materially interfere with the
benefits of the security intended to be provided by the Mortgage and this Loan
Agreement, materially and adversely affect the value of the Property, impair the
use or operations of the Property or impair Borrower's ability to pay its
obligations in a timely manner.
3.1.8 NO PLAN ASSETS. As of the date hereof and throughout
the Term (i) Borrower is not and will not be an "employee benefit plan," as
defined in Section 3(3) of ERISA, subject to Title I of ERISA, (ii) none of the
assets of Borrower constitutes or will
March 31, 2003
-25-
constitute "plan assets" of one or more such plans within the meaning of 29
C.F.R. Section 2510.3-101, (iii) Borrower is not and will not be a "governmental
plan" within the meaning of Section 3(32) of ERISA, and (iv) transactions by or
with Borrower are not and will not be subject to state statutes regulating
investment of, and fiduciary obligations with respect to, governmental plans.
3.1.9 COMPLIANCE. Borrower and the Property (including,
without limitation, all of the Improvements thereof) and the use thereof comply
in all material respects with all applicable Legal Requirements, including
building and zoning and land use laws, ordinances, rules, regulations, codes,
covenants and restrictions (including, without limitation, subdivision and
parking requirements). Borrower has not received any notice of any violation of
any of the foregoing. Borrower is not in default or violation of any order,
writ, injunction, decree or demand of any Governmental Authority, the violation
of which might adversely affect the condition (financial or otherwise) or
business of Borrower. Borrower has not committed any act which may give any
Governmental Authority the right to cause Borrower to forfeit the Property or
any part thereof or any monies paid in performance of Borrower's obligations
under any of the Loan Documents. The Property is used exclusively for a shopping
center and other appurtenant and related uses and all permits, certifications,
licenses, and approvals required for the legal use, occupancy and operation of
the Property have been obtained and are in full force and effect. In the event
that all or any part of the Improvements are destroyed or damaged, said
Improvements can be legally reconstructed to their condition prior to such
damage or destruction, and thereafter exist for the same use without violating
any zoning or other ordinances applicable thereto and without the necessity of
obtaining any variances or special permits. No legal proceedings are pending or,
to the knowledge of Borrower, threatened with respect to the zoning of the
Property. Neither the zoning nor any other right to construct, use or operate
the Property is in any way dependent upon or related to any property other than
the Property except as set forth in the REA. The use being made of the Property
is in conformity with the certificate of occupancy issued for the Property and
all other restrictions, covenants and conditions affecting the Property.
3.1.10 FINANCIAL INFORMATION. All financial data, including
the statements of cash flow and income and operating expense, that have been
delivered to Lender in respect of the Property (i) are true, complete and
correct in all material respects, (ii) accurately represent the financial
condition of the Property as of the date of such reports, and (iii) have been
prepared in accordance with GAAP throughout the periods covered, except as
disclosed therein. Borrower does not have any contingent liabilities,
liabilities for taxes, unusual forward or long-term commitments or unrealized or
anticipated losses from any unfavorable commitments that are known to Borrower
and reasonably likely to have a materially adverse effect on the Property or the
operation thereof, except as referred to or reflected in said financial
statements. Since the date of the financial statements, there has been no
material adverse change in the financial condition, operations or business of
Borrower or the Property from that set forth in said financial statements.
3.1.11 CONDEMNATION. No Condemnation or other proceeding has
been commenced or, to Borrower's best knowledge, is contemplated with respect to
all or any portion of the Property or for the relocation of roadways providing
access to the Property.
March 31, 2003
-26-
3.1.12 EASEMENTS; UTILITIES AND PUBLIC ACCESS. All
easements, cross easements, licenses, air rights and rights-of-way or other
similar property interests (collectively, "Easements"), if any, necessary for
the full utilization of the Improvements for their intended purposes have been
obtained, are described in the Title Insurance Policy and are in full force and
effect without default thereunder. The Property has rights of access to public
ways and is served by water, sewer, sanitary sewer and storm drain facilities
adequate to service the Property for its intended uses. All public utilities
necessary or convenient to the full use and enjoyment of the Property are
located in the public right-of-way abutting the Property or in valid, recorded
easements, and all such utilities are connected so as to serve the Property
without passing over other property absent a valid easement. All roads necessary
for the use of the Property for its current purpose have been completed, and
either dedicated to public use and accepted by all Governmental Authorities, or
subject to the REA which gives Borrower all necessary access rights.
3.1.13 SEPARATE LOTS. The Property is comprised of one (1)
or more parcels which constitute separate tax lots and do not constitute a
portion of any other tax lot not a part of the Property.
3.1.14 ASSESSMENTS. There are no pending or proposed special
or other assessments for public improvements or otherwise affecting the
Property, nor are there any contemplated improvements to the Property that may
result in such special or other assessments.
3.1.15 ENFORCEABILITY. The Loan Documents are not subject to
any right of rescission, set-off, counterclaim or defense by Borrower, including
the defense of usury, nor would the operation of any of the terms of the Loan
Documents, or the exercise of any right thereunder, render the Loan Documents
unenforceable, and Borrower has not asserted any right of rescission, set-off,
counterclaim or defense with respect thereto.
3.1.16 ASSIGNMENT OF LEASES. The Assignment of Leases
creates a valid assignment of, or a valid security interest in, certain rights
under the Leases, subject only to a license granted to Borrower to exercise
certain rights and to perform certain obligations of the lessor under the
Leases, including the right to operate the Property. No Person other than Lender
has any interest in or assignment of the Leases or any portion of the Rents due
and payable or to become due and payable thereunder.
3.1.17 INSURANCE. Borrower has obtained and has delivered to
Lender original or certified copies of all of the Policies, with all premiums
prepaid thereunder, reflecting the insurance coverages, amounts and other
requirements set forth in this Agreement. No claims have been made under any of
the Policies, and no Person, including Borrower, has done, by act or omission,
anything which would impair the coverage of any of the Policies.
3.1.18 LICENSES. All permits and approvals, including
without limitation, certificates of occupancy required by any Governmental
Authority for the use, occupancy and operation of the Property in the manner in
which the Property is currently being used, occupied and operated have been
obtained and are in full force and effect.
3.1.19 FLOOD ZONE. None of the Improvements on the Property
is located in an area identified by the Federal Emergency Management Agency as a
special flood hazard area.
March 31, 2003
-27-
3.1.20 PHYSICAL CONDITION. The Property, including all
buildings, improvements, parking facilities, sidewalks, storm drainage systems,
roofs, plumbing systems, HVAC systems, fire protection systems, electrical
systems, equipment, elevators, exterior sidings and doors, landscaping,
irrigation systems and all structural components, are in good condition, order
and repair in all material respects; there exists no structural or other
material defects or damages in the Property, whether latent or otherwise, and
Borrower has not received notice from any insurance company or bonding company
of any defects or inadequacies in the Property, or any part thereof, which would
adversely affect the insurability of the same or cause the imposition of
extraordinary premiums or charges thereon or of any termination or threatened
termination of any policy of insurance or bond.
3.1.21 BOUNDARIES. All of the Improvements which were
included in determining the appraised value of the Property lie wholly within
the boundaries and building restriction lines of the Property, and, except as
permitted by the REA, no improvements on adjoining properties encroach upon the
Property, and, except as permitted by the REA, no easements or other
encumbrances affecting the Property encroach upon any of the Improvements, so as
to affect the value or marketability of the Property except those which are
insured against by the Title Insurance Policy.
3.1.22 LEASES. The rent roll attached hereto as Schedule I
is true, complete and correct and the Property is not subject to any Leases
other than the Leases described in Schedule I. The Leases identified on Schedule
I are in full force and effect and there are no defaults thereunder by either
party. The copies of the Leases delivered to Lender are true and complete, and
there are no oral agreements with respect thereto. No Rent (including security
deposits) has been paid more than one (1) month in advance of its due date.
Except as provided on Schedule I (i) all work to be performed by Borrower under
each Lease has been performed as required and has been accepted by the
applicable Tenant, (ii) any payments, free rent, partial rent, rebate of rent or
other payments, credits, allowances or abatements required to be given by
Borrower to any Tenant has already been received by such Tenant and (iii) the
Tenants under the Leases have accepted possession of and are in occupancy of all
of their respective demised premises and have commenced the payment of rent
under the Leases. Borrower has delivered to Lender a true, correct and complete
list of all security deposits made by Tenants at the Property which have not
been applied (including accrued interest thereon), all of which are held by
Borrower in accordance with the terms of the applicable Lease and applicable
Legal Requirements. To the best of Borrower's knowledge (without independent
inquiry), each Tenant is free from bankruptcy or reorganization proceedings. No
Tenant under any Lease (or any sublease) is an Affiliate of Borrower, except as
may be disclosed otherwise on Schedule I. There are no brokerage fees or
commissions due and payable in connection with the leasing of space at the
Property, except as has been previously disclosed to Lender in writing, and no
such fees or commissions will become due and payable in the future in connection
with the Leases, including by reason of any extension of such Lease or expansion
of the space leased thereunder, except as has previously been disclosed to
Lender in writing.
3.1.23 FILING AND RECORDING TAXES. All transfer taxes, deed
stamps, intangible taxes or other amounts in the nature of transfer taxes
required to be paid under applicable Legal Requirements in connection with the
transfer of the Property to Borrower have been paid or are being paid
simultaneously herewith. All mortgage, mortgage recording, stamp, intangible or
March 31, 2003
-28-
other similar tax required to be paid under applicable Legal Requirements in
connection with the execution, delivery, recordation, filing, registration,
perfection or enforcement of any of the Loan Documents, including the Mortgage,
have been paid or are being paid simultaneously herewith. All taxes and
governmental assessments due and owing in respect of the Property have been
paid, or an escrow of funds in an amount sufficient to cover such payments has
been established hereunder or are insured against by the Title Insurance Policy.
3.1.24 SINGLE PURPOSE. Borrower hereby represents and
warrants to, and covenants with, Lender that as of the date hereof and until
such time as the Debt shall be paid in full, Borrower shall comply with the
special purpose bankruptcy remote covenants set forth on Schedule V.
3.1.25 TAX FILINGS. To the extent required, Borrower has
filed (or has obtained effective extensions for filing) all federal, state and
local tax returns required to be filed and have paid or made adequate provision
for the payment of all federal, state and local taxes, charges and assessments
payable by Borrower. Borrower believes that its tax returns (if any) properly
reflect the income and taxes of Borrower for the periods covered thereby,
subject only to reasonable adjustments required by the Internal Revenue Service
or other applicable tax authority upon audit.
3.1.26 SOLVENCY. Borrower (i) has not entered into the
transaction or any Loan Document with the actual intent to hinder, delay, or
defraud any creditor and (ii) received reasonably equivalent value in exchange
for its obligations under the Loan Documents. Giving effect to the Loan, the
fair saleable value of Borrower's assets exceeds and will, immediately following
the making of the Loan, exceed Borrower's total liabilities, including
subordinated, unliquidated, disputed and contingent liabilities. The fair
saleable value of Borrower's assets is and will, immediately following the
making of the Loan, be greater than Borrower's probable liabilities, including
the maximum amount of its contingent liabilities on its debts as such debts
become absolute and matured. Borrower's assets do not and, immediately following
the making of the Loan will not, constitute unreasonably small capital to carry
out its business as conducted or as proposed to be conducted. Borrower does not
intend to, and does not believe that it will, incur Indebtedness and liabilities
(including contingent liabilities and other commitments) beyond its ability to
pay such Indebtedness and liabilities as they mature (taking into account the
timing and amounts of cash to be received by Borrower and the amounts to be
payable on or in respect of obligations of Borrower).
3.1.27 FEDERAL RESERVE REGULATIONS. No part of the proceeds
of the Loan will be used for the purpose of purchasing or acquiring any "margin
stock" within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System or for any other purpose which would be inconsistent with
such Regulation U or any other Regulations of such Board of Governors, or for
any purposes prohibited by Legal Requirements or by the terms and conditions of
this Agreement or the other Loan Documents.
3.1.28 ORGANIZATIONAL CHART. The organizational chart
attached as Schedule III hereto, relating to Borrower and certain Affiliates and
other parties, is true, complete and correct on and as of the date hereof. No
Person other than those Persons shown on Schedule III have any ownership
interest in, or right of control, directly or indirectly, in Borrower.
March 31, 2003
-29-
3.1.29 ORGANIZATIONAL STATUS. Borrower's exact legal name
is: PFP Columbus, LLC, a Delaware limited liability company. Borrower's Tax I.D.
number is 00-0000000 and Borrower's Delaware Organizational I.D. number is
3628991.
3.1.30 BANK HOLDING COMPANY. Borrower is not a "bank holding
company" or a direct or indirect subsidiary of a "bank holding company" as
defined in the Bank Holding Company Act of 1956, as amended, and Regulation Y
thereunder of the Board of Governors of the Federal Reserve System.
3.1.31 NO CASUALTY. The Improvements have suffered no
material casualty or damage which has not been fully repaired and the cost
thereof fully paid.
3.1.32 PURCHASE OPTIONS. Neither the Property nor any part
thereof are subject to any purchase options or other similar rights in favor of
third parties, except for the DSW Purchase Option.
3.1.33 FIRPTA. Borrower is not a "foreign person" within the
meaning of Sections 1445 or 7701 of the Code.
3.1.34 PUHCA. Borrower is not a "holding company" or a
"subsidiary company" of a "holding company" or an "affiliate" of either a
"holding company" or a "subsidiary company", all as defined in the Public
Utility Holding Company Act of 1935, as amended.
3.1.35 INVESTMENT COMPANY ACT. Borrower is not (i) an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or (ii) subject
to any other United States federal or state law or regulation which purports to
restrict or regulate its ability to borrow money.
3.1.36 USE OF PROPERTY. The Property consists solely of a
shopping center and related operations and is used for no other purpose.
3.1.37 FISCAL YEAR. Each fiscal year of Borrower commences
on January 1.
3.1.38 NO OTHER FINANCING. Borrower has not borrowed any
funds which have not heretofore been repaid in full, except for the Loan.
Borrower has no indebtedness other than Permitted Indebtedness.
3.1.39 CONTRACTS.
(a) Borrower has not entered into, and is not bound by,
any Major Contract which continues in existence, except those previously
disclosed in writing to Lender.
(b) Each of the Major Contracts is in full force and
effect, there are no monetary or other material defaults by Borrower thereunder
and, to the best knowledge of Borrower, there are no monetary or other material
defaults thereunder by any other party thereto. None of Borrower, Manager or any
other Person acting on Borrower's behalf has given or
March 31, 2003
-30-
received any notice of default under any of the Major Contracts that remains
uncured or in dispute.
(c) Borrower has delivered true, correct and complete
copies of the Major Contracts (including all amendments and supplements thereto)
to Lender.
(d) Except for the Manager under the Management
Agreement, no Major Contract has as a party an Affiliate of Borrower. All fees
and other compensation for services previously performed under the Management
Agreement have been paid in full.
3.1.40 FULL AND ACCURATE DISCLOSURE. No statement of fact
made by Borrower in this Agreement or in any of the other Loan Documents
contains any untrue statement of a material fact or omits to state any material
fact necessary to make statements contained herein or therein not misleading.
There is no material fact presently known to Borrower which has not been
disclosed to Lender which adversely affects, nor as far as Borrower can foresee,
might adversely affect, the Property or the business, operations or condition
(financial or otherwise) of Borrower, other than with regard to market risk
inherent in projecting future operations.
3.1.41 OTHER OBLIGATIONS AND LIABILITIES. Borrower has
no liabilities or other obligations that arose or accrued prior to the date
hereof that, either individually or in the aggregate, could have a material
adverse effect. Borrower has no known contingent liabilities.
3.1.42 REA. The REA is in full force and effect and neither
Borrower nor, to Borrower's knowledge, any other party to the REA, is in default
thereunder, and to the best of Borrower's knowledge, there are no conditions
which, with the passage of time or the giving of notice, or both, would
constitute a default thereunder. Except as set forth on Schedule IV, the REA has
not been modified, amended or supplemented.
3.1.43 Survival of Representations.
The representations and warranties set forth in Section 3.1
shall survive for so long as any amount remains payable to Lender under this
Agreement or any of the other Loan Documents.
IV. BORROWER COVENANTS
SECTION 4.1 BORROWER AFFIRMATIVE COVENANTS.
Borrower hereby covenants and agrees with Lender that:
4.1.1 PAYMENT AND PERFORMANCE OF OBLIGATIONS. Borrower
shall pay and otherwise perform the Obligations in accordance with the terms of
this Agreement and the other Loan Documents.
4.1.2 EXISTENCE; COMPLIANCE WITH LEGAL REQUIREMENTS. Each
of Borrower and Sole Member shall do or cause to be done all things necessary to
preserve, renew and keep
March 31, 2003
-31-
in full force and effect its existence, rights, licenses, permits and franchises
and comply with all Legal Requirements applicable to it and the Property.
4.1.3 TAXES AND OTHER CHARGES. Borrower shall pay all Taxes
and Other Charges now or hereafter levied, assessed or imposed as the same
become due and payable, and furnish to Lender receipts for the payment of the
Taxes and the Other Charges prior to the date the same shall become delinquent
(provided, however, that Borrower need not pay directly Taxes nor furnish such
receipts for payment of Taxes to the extent that such Taxes have been deposited
into the Tax Account pursuant to Section 6.3 hereof). Borrower shall not permit
or suffer and shall promptly discharge any lien or charge against the Property,
and shall promptly pay for all utility services provided to the Property. After
prior notice to Lender, Borrower, at its own expense, may contest by appropriate
legal proceeding, conducted in good faith and with due diligence, the amount or
validity of any Taxes or Other Charges, provided that (i) no Default or Event of
Default has occurred and remains uncured; (ii) such proceeding shall be
permitted under and be conducted in accordance with all applicable statutes,
laws and ordinances; (iii) neither the Property nor any part thereof or interest
therein will be in danger of being sold, forfeited, terminated, canceled or
lost; (iv) Borrower shall promptly upon final determination thereof pay the
amount of any such Taxes or Other Charges, together with all costs, interest and
penalties which may be payable in connection therewith; (v) such proceeding
shall suspend the collection of Taxes or Other Charges from the Property (or
Borrower shall pay such Taxes or Other Charges under protest); and (vi) unless
Borrower has paid such Taxes or Other Charges under protest, Borrower shall
deposit with Lender cash, or other security as may be approved by Lender, in an
amount equal to one hundred twenty-five percent (125%) of the contested amount,
to insure the payment of any such Taxes or Other Charges, together with all
interest and penalties thereon. Lender may pay over any such cash or other
security held by Lender to the claimant entitled thereto at any time when, in
the reasonable judgment of Lender, the entitlement of such claimant is
established. Upon the payment of such Taxes or Other Charges or the final
determination by the appropriate Governmental Authority that such Taxes or Other
Charges are not due, Lender shall return any such security or part thereof
(together with any interest earned thereon) held by Lender to Borrower, within
10 days after the delivery by Borrower to Lender of a request therefor provided
that (1) no Event of Default shall be continuing and (2) the request for
disbursement is accompanied by evidence reasonably satisfactory to Lender that
Borrower has paid the applicable Taxes or Other Charges (or that the appropriate
Governmental Authority has made a final determination that such Taxes or Other
Charges are not due.
4.1.4 LITIGATION. Borrower shall give prompt notice to
Lender of any litigation or governmental proceedings pending or threatened
against Borrower or Sole Member which might materially adversely affect the
Property or Borrower's or Sole Member's condition (financial or otherwise) or
business (including Borrower's ability to perform its obligations hereunder or
under the other Loan Documents).
4.1.5 ACCESS TO PROPERTY. Borrower shall permit agents,
representatives, consultants and employees of Lender to inspect the Property or
any part thereof at reasonable hours upon reasonable advance notice, subject to
the rights of tenants.
4.1.6 FURTHER ASSURANCES; SUPPLEMENTAL MORTGAGE AFFIDAVITS.
Borrower shall, at Borrower's sole cost and expense:
March 31, 2003
-32-
(a) execute and deliver to Lender such documents,
instruments, certificates, assignments and other writings, and do such other
acts necessary or desirable, to evidence, preserve and/or protect the collateral
at any time securing or intended to secure the Debt, as Lender may reasonably
require; and
(b) do and execute all and such further lawful and
reasonable acts, conveyances and assurances for the better and more effective
carrying out of the intents and purposes of this Agreement and the other Loan
Documents, as Lender shall reasonably require from time to time.
4.1.7 FINANCIAL REPORTING.
(a) Borrower shall keep and maintain or will cause to be
kept and maintained proper and accurate books and records, in accordance with
GAAP, reflecting the financial affairs of Borrower. Lender shall have the right
from time to time during normal business hours upon reasonable notice to
Borrower to examine such books and records at the office of Borrower or other
Person maintaining such books and records and to make such copies or extracts
thereof as Lender shall desire. After an Event of Default, Borrower shall pay
any costs incurred by Lender to examine such books, records and accounts, as
Lender shall determine to be necessary or appropriate in the protection of
Lender's interest.
(b) Borrower shall furnish Lender annually, within ninety
(90) days following the end of each Fiscal Year, a complete copy of Borrower's
annual financial statements audited by a "Big Four" accounting firm or other
independent certified public accountant acceptable to Lender prepared in
accordance with GAAP covering the Property, including statements of income and
expense and cash flow for Borrower and the Property and a balance sheet for
Borrower. Such statements shall set forth Net Cash Flow, Gross Revenue and
Operating Expenses for the Property. Borrower's annual financial statements
shall be accompanied by an Officer's Certificate certifying (i) that such annual
financial statement presents fairly the financial condition and the results of
operations of Borrower and the Property and (ii) whether to the best of
Borrower's knowledge there exists an event or circumstance which constitutes a
Default or Event of Default by Borrower under the Loan Documents and if such
Default or Event of Default exists, the nature thereof, the period of time it
has existed and the action then being taken to remedy the same.
(c) Borrower will furnish Lender on or before the
forty-fifth (45th) day after the end of each calendar quarter throughout the
Term, the following items, accompanied by an Officer's Certificate certifying
that such items are true, correct, accurate and complete and fairly present the
financial condition and results of the operations of Borrower and the Property
in accordance with GAAP as applicable:
(i) quarterly and year-to-date statements of
income and expense and cash flow prepared for such quarter with respect
to the Property, with a balance sheet for such quarter for Borrower;
(ii) a calculation reflecting the net operating
income of the Property as of the last day of such quarter, for such
quarter and the last four quarters; and
March 31, 2003
-33-
(iii) a current rent roll for the Property; and
(iv) a summary report containing each of the
following with respect to the Property for the most recently completed
calendar year: (A) if reasonably requested by Lender and only to the
extent such information is available to Borrower, aggregate sales by
Tenants under Leases or other occupants of the Property, both on an
actual (or to the extent such information is not provided by Tenants,
Manager's or Borrower's best estimate) and on a comparable store basis,
(B) rent per square foot payable by each Tenant, and (C) aggregate
occupancy of the Property by anchor space and in-line store space as of
December 31.
(d) Borrower will furnish Lender on or before the
thirtieth (30th) day after the end of each calendar month the following items,
accompanied by an Officer's Certificate certifying that such items are true,
correct, accurate, and complete and fairly present the financial condition and
results of the operations of Borrower and the Property in a manner consistent
with GAAP, as applicable:
(i) monthly and year-to-date statements of
income and expense and cash flow prepared for such month with respect
to the Property;
(ii) a comparison of the budgeted income and
expenses as set forth in the Annual Budget and the actual income and
expenses for such month and year to date for the Property;
(iii) a current rent roll for the Property; and
(iv) any notice received from a Tenant under a
Major Lease threatening non-payment of Rent or other default, alleging
or acknowledging a default by landlord (but only to the extent that
Borrower reasonably determines that Tenant has a good faith basis for
such threat or allegation), requesting a termination of a Major Lease
or a material modification of any Major Lease or notifying Borrower of
the exercise or non-exercise of any option provided for in such
Tenant's Major Lease, or any other similar material correspondence
received by Borrower from Tenants under a Major Lease during the
subject month.
(e) Borrower shall submit to Lender by November 15 of
each year the Annual Budget for the succeeding Fiscal Year.
(f) Borrower shall furnish to Lender (to the extent not
previously furnished), within five (5) Business Days after request any notice
received from a Tenant under a Lease threatening non-payment of Rent or other
default, alleging or acknowledging a default by landlord, requesting a
termination of a Lease or a material modification of any Lease or notifying
Borrower of the exercise or non-exercise of any option provided for in such
Tenant's Lease, or any other similar material correspondence received by
Borrower from Tenants under a Lease during the subject month;
(g) Borrower shall furnish to Lender, within five (5)
Business Days after request (or as soon thereafter as may be reasonably
possible), such further detailed information
March 31, 2003
-34-
with respect to the operation of the Property and the financial affairs of
Borrower as may be reasonably requested by Lender, including a comparison of the
budgeted income and expenses and the actual income and expenses for a quarter
and year to date for the Property, together with a detailed explanation of any
variances of more than five percent (5%) between budgeted and actual amounts for
such period and year to date.
4.1.8 TITLE TO THE PROPERTY. Borrower will warrant and
defend the validity and priority of the Liens of the Mortgage and the Assignment
of Leases on the Property against the claims of all Persons whomsoever, subject
only to Permitted Encumbrances.
4.1.9 ESTOPPEL STATEMENT.
(a) After request by Lender, Borrower shall within ten
(10) Business Days furnish Lender with a statement, duly acknowledged and
certified, stating (i) the unpaid principal amount of the Note, (ii) the
Interest Rate of the Note, (iii) the date installments of interest and/or
principal were last paid, (iv) any offsets or defenses to the payment and
performance of the Obligations, if any, and (v) that this Agreement and the
other Loan Documents have not been modified or if modified, giving particulars
of such modification.
(b) After request by Borrower, Lender shall within ten
(10) Business Days furnish Borrower with a statement, duly acknowledged and
certified, stating (i) the unpaid principal amount of the Note, (ii) the
Interest Rate of the Note, (iii) the date installments of interest and/or
principal were last paid and (iv) whether or not Lender has sent any notice of
default under the Loan Documents which remains uncured in the opinion of Lender.
(c) Borrower shall deliver to Lender, upon request, an
estoppel certificate from each Tenant under any Lease (provided that Borrower
shall only be required to use commercially reasonable efforts to obtain an
estoppel certificate from any Tenant not required to provide an estoppel
certificate under its Lease); provided that such certificate may be in the form
required under such Lease; provided further that Borrower shall not be required
to deliver such certificates more frequently than one time (1) time in any
calendar year unless such second request in any calendar year is in connection
with a Secondary Market Transaction..
(d) Borrower shall deliver to Lender, upon request,
estoppel certificates from each party under the REA; provided, that such
certificates may be in the form required under the REA; and provided, further,
that Borrower shall not be required to deliver such certificates more than three
(3) times during the Term and not more frequently than once per calendar year
(or twice during any calendar year in which a Securitization occurs).
4.1.10 LEASES.
(a) All Leases and all renewals of Leases executed after
the date hereof (other than renewals of existing Leases which are required
pursuant to the terms of such Leases) shall (i) provide for economic terms,
including rental rates comparable to existing local market rates for similar
properties, (ii) be on commercially reasonable terms, (iii) unless Lender
approves in writing a shorter term, have a term of not less than one (1) year
(provided that the requirement set forth in this clause (iii) shall not apply to
license agreements or Leases which demise less than 5,000 square feet of space
at the Property), (iv) provide that such Lease is subordinate to the
March 31, 2003
-35-
Mortgage and the Assignment of Leases and that the tenant thereunder will attorn
to Lender and any purchaser at a foreclosure sale, (v) be written substantially
in accordance with the standard form of Lease which shall have been approved by
Lender (subject to any commercially reasonable changes made in the course of
negotiations with the applicable tenant), (vi) not be to an Affiliate of
Borrower or any Guarantor and (vii) not contain any option to purchase, any
right of first refusal to purchase, any requirement for a non-disturbance or
recognition agreement (provided that any Lease with a national retailer may
contain a requirement that Lender enter into a subordination, non-disturbance
and recognition agreement on Lender's then current form), or any other terms
which would materially adversely affect Lender's rights under the Loan
Documents. All Major Leases and all renewals, amendments and modifications
thereof executed after the date hereof shall be subject to Lender's prior
approval, which approval shall not, so long as no Event of Default is
continuing, be unreasonably withheld or delayed (provided, that Lender's failure
to approve or disapprove Borrower's request to enter into, renew or modify such
Major Lease within 10 Business Days after Lender's receipt of such request
containing a legend in bold letters stating that Lender's failure to respond
within ten (10) Business Days shall be deemed consent or approval, Lender shall
be deemed to have approved or consented to the matter for which Lender's consent
or approval was sought if Lender fails to respond to such written request before
the expiration of such ten (10) Business Day period). Lender shall execute and
deliver a subordination non-disturbance and attornment agreement in form and
substance acceptable to Lender to Tenants under any future Major Lease approved
by Lender or any other Lease with a national retailer promptly upon request with
such commercially reasonable changes as may be requested by Tenants, from time
to time, and which are reasonably acceptable to Lender.
(b) Borrower (i) shall observe and perform the
obligations imposed upon the lessor under the Leases in a commercially
reasonable manner; (ii) shall enforce the terms, covenants and conditions
contained in the Leases upon the part of the lessee thereunder to be observed or
performed in a commercially reasonable manner, provided, however, Borrower shall
not terminate or accept a surrender of a Lease without Lender's prior approval,
which shall not be unreasonably withheld (provided that Lender's approval shall
not be required for the termination or surrender of any Lease (1) which demises
less than 5,000 square feet of space at the Property or (2) to the extent that
the subject space is concurrently relet to a creditworthy tenant); (iii) shall
not collect any of the Rents more than one (1) month in advance (other than
security deposits); (iv) shall not execute any assignment of lessor's interest
in the Leases or the Rents (except as contemplated by the Loan Documents); and
(v) shall not without Lender's consent, which consent shall not be unreasonably
withheld, alter, modify or change any Lease so as to decrease the amount of or
payment date for rent, shorten the term in any material respect or materially
reduce the obligations of the lessee or increase the obligations of lessor
(provided that Lender's consent shall not be required with respect to any Lease
which demises less than 5,000 square feet of space at the Property). Upon
request, Borrower shall furnish Lender with executed copies of all Leases.
(c) Notwithstanding anything to the contrary contained in
this Section 4.1.10:
(i) whenever Lender's approval or consent is required
pursuant to the provisions of this Section 4.1.10, Borrower shall have the right
to submit a term sheet of such transaction to Lender for Lender's approval, such
approval not to be unreasonably withheld,
March 31, 2003
-36-
conditioned or delayed. Any such term sheet submitted to Lender shall set forth
all material terms of the proposed transaction including, without limitation,
identity of tenant, square footage, term, rent, rent credits, abatements, work
allowances and tenant improvements to be constructed by Borrower. Lender shall
use good faith efforts to respond within five (5) Business Days after Lender's
receipt of Borrower's written request for approval or consent of such term
sheet. If Lender fails to respond to such request within five (5) Business Days,
and Borrower sends a second request containing a legend in bold letters stating
that Lender's failure to respond within five (5) Business Days shall be deemed
consent or approval, Lender shall be deemed to have approved or consented to
such term sheet if Lender fails to respond to such second written request before
the expiration of such five (5) Business Day period;
(ii) whenever Lender's approval or consent is required
pursuant to the provisions of this Section 4.1.10 for any matter that Lender has
not previously approved a term sheet pursuant to Section 4.1.10(c)(i) above,
Lender shall use good faith efforts to respond within five (5) Business Days
after Lender's receipt of Borrower's written request for such approval or
consent. If Lender fails to respond to such request within five (5) Business
Days, and Borrower sends a second request containing a legend in bold letters
stating that Lender's failure to respond within five (5) Business Days shall be
deemed consent or approval, Lender shall be deemed to have approved or consented
to the matter for which Lender's consent or approval was sought if Lender fails
to respond to such second written request before the expiration of such five (5)
Business Day period;
(iii) whenever Lender's approval or consent is required
pursuant to the provisions of this Section 4.1.10 for any matter that Lender has
previously approved a term sheet pursuant to Section 4.1.10(c)(i) above, Lender
shall use good faith efforts to respond within five (5) Business Days after
Lender's receipt of Borrower's written request for such approval or consent. If
Lender fails to respond to such request within five (5) Business Days, and
Borrower sends a second request containing a legend in bold letters stating that
Lender's failure to respond within five (5) Business Days shall be deemed
consent or approval, Lender shall be deemed to have approved or consented to the
matter for which Lender's consent or approval was sought if Lender fails to
respond to such second written request before the expiration of such five (5)
Business Day period, provided that there have been no material deviations from
the term sheet and that the aggregate economics of the transaction are no less
favorable to Borrower than as set forth in the term sheet;
(iv) in the event that Lender shall have approved (or be
deemed to have approved) a term sheet submitted by Borrower with respect to a
certain Lease, Lender shall not withhold its approval or consent with respect to
such Lease on the basis of any provisions of such Lease dealing with the items
contained in the approved term sheet.
(d) All security deposits of Tenants, whether held in
cash or any other form, shall not be commingled with any other funds of Borrower
and, if cash, shall be deposited by Borrower at a separately designated account
under Borrower's control at the Clearing Bank. Borrower shall, upon Lender's
request, if permitted by applicable Legal Requirements, cause all such security
deposits (and any interest theretofore earned thereon) to be transferred into
the Deposit Account (which shall then be held by Agent in a separate Account),
which shall be held by Agent subject to the terms of the Leases. Any bond or
other instrument which Borrower is
March 31, 2003
-37-
permitted to hold in lieu of cash security deposits under any applicable Legal
Requirements (i) shall be maintained in full force and effect in the full amount
of such deposits unless replaced by cash deposits as herein above described,
(ii) shall be issued by an institution reasonably satisfactory to Lender, (iii)
shall, if permitted pursuant to any Legal Requirements, name Lender as payee or
mortgagee thereunder (or at Lender's option, be fully assignable to Lender), and
(iv) shall in all respects comply with any applicable Legal Requirements and
otherwise be satisfactory to Lender. Borrower shall, upon request, provide
Lender with evidence satisfactory to Lender of Borrower's compliance with the
foregoing.
4.1.11 ALTERATIONS. Borrower may, without Lender's consent,
perform alterations to the Improvements and Equipment which (i) do not
constitute a Material Alteration and (ii) are in the ordinary course of
Borrower's business. Borrower shall not perform any Material Alteration without
Lender's prior written consent, which consent shall not be unreasonably
withheld, conditioned or delayed; provided, however, that Lender may, in its
sole but good faith discretion, withhold consent to any Material Alteration the
cost of which is reasonably estimated to exceed $2,000,000 or which is likely to
result in a decrease of Net Cash Flow by 2.5% or more for a period of 60 days or
longer. If the total unpaid amounts incurred and to be incurred with respect to
such alterations to the Improvements shall at any time exceed $2,000,000,
Borrower shall promptly deliver to Lender as security for the payment of such
amounts and as additional security for Borrower's obligations under the Loan
Documents any of the following at Borrower's option: (i) cash, (ii) Letters of
Credit, (iii) U.S. Obligations, (iv) other securities acceptable to Lender,
provided that Lender shall have received a Rating Agency Confirmation as to the
form and issuer of same, or (v) a payment and performance bond from an issuer
rated "AA" or higher by S&P. Such security shall be in an amount equal to the
excess of the total unpaid amounts incurred and to be incurred with respect to
such alterations to the Improvements (other than such amounts to be paid or
reimbursed by Tenants under the Leases) over $2,000,000. Upon substantial
completion of any Material Alteration, Borrower shall provide evidence
satisfactory to Lender that (i) the Material Alteration was constructed in
accordance with applicable Legal Requirements, (ii) all contractors,
subcontractors, materialmen and professionals who provided work, materials or
services in connection with the Material Alteration have been paid in full and
have delivered unconditional releases of lien and (iii) all material licenses
and permits necessary for the use, operation and occupancy of the Material
Alteration (other than those which depend on the performance of tenant
improvement work) have been issued.
4.1.12 APPROVAL OF MAJOR CONTRACTS. Borrower shall be
required to obtain Lender's prior written approval to any and all Major
Contracts affecting the Property, which approval may be granted or withheld in
Lender's reasonable discretion.
4.1.13 AFTER ACQUIRED PROPERTY. Borrower will grant to
Lender a first lien security interest in and to all equipment and other personal
property owned by Borrower, whether or not used in the construction, maintenance
and/or operation of the Improvements, immediately upon acquisition of same or
any part of same.
4.1.14 OPERATION OF PROPERTY. Borrower shall operate the
Property in compliance with the REA.
March 31, 2003
-38-
SECTION 4.2 BORROWER NEGATIVE COVENANTS.
Borrower covenants and agrees with Lender that:
4.2.1 DUE ON SALE AND ENCUMBRANCE; TRANSFERS OF INTERESTS.
Without the prior written consent of Lender, but, in each instance, subject to
the provisions of Article 8 permitting certain Transfers described in Article 8,
neither Borrower nor Sole Member nor any other Person having a direct or
indirect ownership or beneficial interest in Borrower or Sole Member shall sell,
convey, mortgage, grant, bargain, encumber, pledge, assign or transfer the
Property or any part thereof, or any interest, direct or indirect, in Borrower,
Sole Member, whether voluntarily or involuntarily (a "Transfer"). A Transfer
within the meaning of this Section 4.2.1 shall be deemed to include (i) an
installment sales agreement wherein Borrower agrees to sell the Property or any
part thereof for a price to be paid in installments; (ii) an agreement by
Borrower leasing all or a substantial part of the Property for other than actual
occupancy by a space tenant thereunder or a sale, assignment or other transfer
of, or the grant of a security interest in, Borrower's right, title and interest
in and to any Leases or any Rents; (iii) if Borrower, Guarantor, or any general
partner, managing member or controlling shareholder of Borrower or Guarantor is
a corporation, the voluntary or involuntary sale, conveyance or transfer of such
corporation's stock (or the stock of any corporation directly or indirectly
controlling such corporation by operation of law or otherwise) or the creation
or issuance of new stock in one or a series of transactions by which an
aggregate of more than 10% of such corporation's stock shall be vested in a
party or parties who are not now stockholders or any change in the control of
such corporation; (iv) if Borrower, Sole Member any Guarantor or any general
partner, managing member or controlling shareholder of Borrower, Sole Member or
any Guarantor is a limited or general partnership, joint venture or limited
liability company, the change, removal, resignation or addition of a general
partner, managing partner, limited partner, joint venturer or member or the
transfer of the partnership interest of any general partner, managing partner or
limited partner or the transfer of the interest of any joint venturer or member;
and (v) any pledge, hypothecation, assignment, transfer or other encumbrance of
any direct or indirect ownership interest in Borrower or Sole Member.
4.2.2 LIENS. Borrower shall not create, incur, assume or
suffer to exist any Lien on any direct or indirect interest in Borrower or Sole
Member (except to the extent that such Lien is a Permitted Transfer) or any
portion of the Property except for Permitted Encumbrances.
4.2.3 DISSOLUTION. Borrower shall not (i) engage in any
dissolution, liquidation or consolidation or merger with or into any other
business entity, (ii) engage in any business activity not related to the
ownership and operation of the Property, (iii) transfer, lease or sell, in one
transaction or any combination of transactions, all or substantially all of the
property or assets of Borrower except to the extent expressly permitted by the
Loan Documents, or (iv) cause, permit or suffer Sole Member to (A) dissolve,
wind up or liquidate or take any action, or omit to take an action, as a result
of which Sole Member would be dissolved, wound up or liquidated in whole or in
part without obtaining the prior consent of Lender, (B) amend or modify the
operating agreement of Sole Member to the extent that such amendment or
modification would result in a change in Control of the Sole Member without
obtaining the prior consent of Lender or (C) terminate the operating agreement
of Sole Member without obtaining the prior consent of Lender.
March 31, 2003
-39-
4.2.4 CHANGE IN BUSINESS. Borrower shall not enter into any
line of business other than the ownership and operation of the Property.
Borrower shall not change the current use of the Property in any material
respect.
4.2.5 DEBT CANCELLATION. Borrower shall not cancel or
otherwise forgive or release any claim or debt (other than termination of Leases
in accordance herewith) owed to Borrower by any Person, except for adequate
consideration and in the ordinary course of Borrower's business.
4.2.6 AFFILIATE TRANSACTIONS. Borrower shall not enter
into, or be a party to, any transaction with an Affiliate of Borrower or any of
the partners, members or shareholders, as applicable, of Borrower except in the
ordinary course of business and on terms which are fully disclosed to Lender in
advance and are no less favorable to Borrower or such Affiliate than would be
obtained in a comparable arm's-length transaction with an unrelated third party.
Lender acknowledges that the Management Agreement is a contract between Borrower
and an Affiliate of Borrower.
4.2.7 ZONING. Borrower shall not initiate or consent to any
zoning reclassification of any portion of the Property or seek any variance
under any existing zoning ordinance or use or permit the use of any portion of
the Property in any manner that could result in such use becoming a
non-conforming use under any zoning ordinance or any other applicable land use
law, rule or regulation, without the prior consent of Lender (provided, that
Lender's failure to approve or disapprove Borrower's request to within 10
Business Days after Lender's receipt of such request containing a legend in bold
letters stating that Lender's failure to respond within ten (10) Business Days
shall be deemed consent or approval, Lender shall be deemed to have approved or
consented to the matter for which Lender's consent or approval was sought if
Lender fails to respond to such written request before the expiration of such
ten (10) Business Day period).
4.2.8 ASSETS. Borrower shall not purchase or own any
property other than the Property and any property necessary or incidental for
the operation of the Property.
4.2.9 NO JOINT ASSESSMENT. Borrower shall not suffer,
permit or initiate the joint assessment of the Property (i) with any other real
property constituting a tax lot separate from the Property, and (ii) with any
portion of the Property which may be deemed to constitute personal property, or
any other procedure whereby the lien of any taxes which may be levied against
such personal property shall be assessed or levied or charged to the Property.
4.2.10 PRINCIPAL PLACE OF BUSINESS. Borrower shall not
change its principal place of business from the address set forth on the first
page of this Agreement without first giving Lender thirty (30) days prior
notice.
4.2.11 CHANGE OF NAME, IDENTITY OR STRUCTURE. Borrower shall
not change Borrower's name, identity (including its trade name or names) or, if
not an individual, Borrower's corporate, partnership or other structure without
notifying Lender of such change in writing at least thirty (30) days prior to
the effective date of such change and, in the case of a change in Borrower's
structure, without first obtaining the prior written consent of Lender (unless
such change in structure constitutes a Permitted Transfer). Borrower shall
execute and
March 31, 2003
-40-
deliver to Lender, prior to or contemporaneously with the effective date of any
such change, any financing statement or financing statement change required by
Lender to establish or maintain the validity, perfection and priority of the
security interest granted herein. At the request of Lender, Borrower shall
execute a certificate in form satisfactory to Lender listing the trade names
under which Borrower intends to operate the Property, and representing and
warranting that Borrower does business under no other trade name with respect to
the Property.
4.2.12 SPECIAL PURPOSE. Without in any way limiting the
provisions of this Article IV, Borrower shall not take or permit any action that
would result in Borrower not being in compliance with the representations,
warranties and covenants set forth in Schedule V.
4.2.13 ERISA.
(a) Borrower shall not engage in any transaction which
would cause any obligation, or action taken or to be taken, hereunder (or the
exercise by Lender of any of its rights under the Note, this Agreement or the
other Loan Documents) to be a non-exempt (under a statutory or administrative
class exemption) prohibited transaction under the Employee Retirement Income
Security Act of 1974, as amended ("ERISA").
(b) Borrower shall deliver to Lender such certifications
or other evidence from time to time throughout the Term, as requested by Lender
in its sole discretion, that (A) Borrower is not and does not maintain an
"employee benefit plan" as defined in Section 3(3) of ERISA, which is subject to
Title I of ERISA, or a "governmental plan" within the meaning of Section 3(3) of
ERISA; (B) Borrower is not subject to state statutes regulating investments and
fiduciary obligations with respect to governmental plans; and (C) one or more of
the following circumstances is true:
(i) Equity interests in Borrower are publicly
offered securities, within the meaning of 29 C.F.R.
Section 2510.3-101(b)(2);
(ii) Less than twenty-five percent (25%) of each
outstanding class of equity interests in Borrower are held by "benefit
plan investors" within the meaning of 29 C.F.R.
Section 2510.3-101(f)(2); or
(iii) Borrower qualifies as an "operating company"
or a "real estate operating company" within the meaning of 29 C.F.R.
Section 2510.3-101(c) or (e)
4.2.14 COMPLIANCE WITH RESTRICTIVE COVENANTS, ETC. Borrower
will not modify in any material respect, waive in any material respect or
release any Easements, restrictive covenants or other Permitted Encumbrances, or
suffer, consent to or permit the foregoing, without Lender's prior written
consent, which consent may be granted or denied in Lender's reasonable
discretion.
V. INSURANCE, CASUALTY AND CONDEMNATION
SECTION 5.1 INSURANCE.
5.1.1 INSURANCE POLICIES.
March 31, 2003
-41-
(a) Borrower, at its sole cost and expense, shall obtain
and maintain during the entire Term, or cause to be maintained, insurance
policies for Borrower and the Property providing at least the following
coverages (to the extent that such coverages are commercially available):
(i) Casualty insurance against loss or damage by
fire, lightning and such other perils as are included in a standard
"special form" policy (formerly known as an "all-risk" endorsement
policy), and against loss or damage by all other risks and hazards
covered by a standard extended coverage insurance policy, including
riot and civil commotion, vandalism, terrorist actions, malicious
mischief, burglary and theft and contingent liability from Operation of
Building Laws, Demolition Costs and Increased Cost of Construction
Endorsements, in each case (A) in an amount equal to one hundred
percent (100%) of the "Full Replacement Cost" of the Property, which
for purposes of this Agreement shall mean actual replacement value
(exclusive of costs of excavations, foundations, underground utilities
and footings) with a waiver of depreciation, but the amount shall in no
event be less than the outstanding principal balance of the Loan; (B)
containing an agreed amount endorsement with respect to the
Improvements and personal property at the Property waiving all
co-insurance provisions; (C) providing for no deductible in excess of
One Hundred Thousand and No/100 Dollars ($100,000.00) for all such
insurance coverage; and (D) containing an "Ordinance or Law Coverage"
or "Enforcement" endorsement if any of the Improvements or the use of
the Property shall at any time constitute legal non-conforming
structures or uses, and compensating for loss of value or property
resulting from operation of law and the cost of demolition and the
increased cost of construction in amounts as required by Lender. In
addition, Borrower shall obtain: (y) if any portion of the Improvements
is currently or at any time in the future located in a federally
designated "special flood hazard area", flood hazard insurance in an
amount equal to the lesser of (1) the outstanding principal balance of
the Note or (2) the maximum amount of such insurance available under
the National Flood Insurance Act of 1968, the Flood Disaster Protection
Act of 1973 or the National Flood Insurance Reform Act of 1994, as each
may be amended or such greater amount as Lender shall require; and (z)
earthquake insurance in amounts and in form and substance satisfactory
to Lender in the event the Property is located in an area with a high
degree of seismic activity, provided that the insurance pursuant to
clauses (y) and (z) hereof shall be on terms consistent with the
comprehensive all risk insurance policy required under this subsection
(i).
(ii) commercial general liability insurance,
including a broad form comprehensive general liability endorsement and
coverages against claims for personal injury, bodily injury, death or
property damage occurring upon, in or about the Property, such
insurance (A) to be on the so-called "occurrence" form and containing
minimum limits per occurrence of $1,000,000, with a combined limit per
policy year, excluding umbrella coverage, of not less than Two Million
and No/100 Dollars ($2,000,000); (B) to continue at not less than the
aforesaid limit until required to be changed by Lender by reason of
changed economic conditions making such protection inadequate; and (C)
to cover at least the following hazards: (1) premises and operations;
(2) products and completed operations on an "if any" basis; (3)
independent contractors; (4) blanket
March 31, 2003
-42-
contractual liability for all legal contracts; and (5) contractual
liability covering the indemnities contained in Article 9 of the
Mortgage to the extent the same is available;
(iii) rental loss and/or business income
interruption insurance (A) with loss payable to Lender; (B) covering
all risks required to be covered by the insurance provided for in
subsection (i) above and Section 5.1.1(h) below; (C) in an amount equal
to one hundred percent (100%) of the projected Rents from the Property
for a period of twelve (12) months; and (D) containing an extended
period of indemnity endorsement which provides that after the physical
loss to the Improvements and Personal Property has been repaired, the
continued loss of income will be insured until such income either
returns to the same level it was at prior to the loss, or the
expiration of twelve (12) months from the date that the Property is
repaired or replaced and operations are resumed, whichever first
occurs, and notwithstanding that the policy may expire prior to the end
of such period; and (D) in an amount equal to one hundred percent
(100%) of the projected Gross Revenue from the Property for a period of
twenty-four (24) months from the date that the Property is repaired or
replaced and operations are resumed. The amount of such business income
insurance shall be determined prior to the date hereof and at least
once each year thereafter based on Borrower's reasonable estimate of
the Gross Revenues from the Property for the succeeding twenty-four
(24) month period. All proceeds payable to Lender pursuant to this
subsection shall be held by Lender and shall be applied to the
Obligations secured by the Loan Documents from time to time due and
payable hereunder and under the Note; provided, however, that nothing
herein contained shall be deemed to relieve Borrower of its obligations
to pay the Debt on the respective dates of payment provided for in the
Note and the other Loan Documents except to the extent such amounts are
actually paid out of the proceeds of such business income insurance;
(iv) at all times during which structural
construction, repairs or alterations are being made with respect to the
Improvements, and only if the Property coverage form does not otherwise
apply, (A) owner's contingent or protective liability insurance
covering claims not covered by or under the terms or provisions of the
above mentioned commercial general liability insurance policy; and (B)
the insurance provided for in subsection (i) above written in a
so-called builder's risk completed value form (1) on a non-reporting
basis, (2) against all risks insured against pursuant to subsection (i)
above, (3) including permission to occupy the Property, and (4) with an
agreed amount endorsement waiving co-insurance provisions;
(v) workers' compensation, subject to the
statutory limits of the state in which the Property is located, and
employer's liability insurance with a limit of at least One Million and
No/100 Dollars ($1,000,000) per accident and per disease per employee,
and One Million and No/100 Dollars ($1,000,000) for disease aggregate
in respect of any work or operations on or about the Property, or in
connection with the Property or its operation (if applicable);
(vi) comprehensive boiler and machinery
insurance, if applicable, in amounts as shall be reasonably required by
Lender on terms consistent with the commercial property insurance
policy required under subsection (i) above;
March 31, 2003
-43-
(vii) umbrella liability insurance in addition to
primary coverage in an amount not less than $60,000,000 per occurrence
on terms consistent with the commercial general liability insurance
policy required under subsection (ii) above and (viii) below;
(viii) motor vehicle liability coverage for all
owned and non-owned vehicles, including rented and leased vehicles
containing minimum limits per occurrence, including umbrella coverage,
of Five Million and No/100 Dollars ($5,000,000);
(ix) windstorm insurance in an amount equal to
the outstanding principal balance of the Loan or such lesser amount as
agreed to by Lender in writing;
(x) insurance against employee dishonesty in an
amount not less than one (1) month of Gross Revenue from the Property
and with a deductible not greater than Ten Thousand and No/100 Dollars
($10,000); and
(xi) upon sixty (60) days' notice, such other
reasonable insurance and in such reasonable amounts as Lender from time
to time may reasonably request against such other insurable hazards
which at the time are commonly insured against for property similar to
the Property located in or around the region in which the Property is
located.
(b) All insurance provided for in Section 5.1.1(a) shall
be obtained under valid and enforceable policies (collectively, the "Policies"
or in the singular, the "Policy") and shall be subject to the approval of Lender
as to form and substance including deductibles, loss payees and insureds. Not
less than ten (10) days prior to the expiration dates of the Policies
theretofore furnished to Lender, certificates of insurance evidencing the
Policies accompanied by evidence satisfactory to Lender of payment of the
premiums then due thereunder (the "Insurance Premiums"), shall be delivered by
Borrower to Lender.
(c) Any blanket insurance Policy shall specifically
allocate to the Property the amount of coverage from time to time required
hereunder and shall otherwise provide the same protection as would a separate
Policy insuring only the Property in compliance with the provisions of Section
5.1.1(a).
(d) All Policies of insurance provided for or
contemplated by Section 5.1.1(a), except for the Policy referenced in Section
5.1.1(a)(v), shall name Borrower as the insured and Lender and its successors
and/or assigns as the additional insured, as its interests may appear, and in
the case of property damage, boiler and machinery, flood and earthquake
insurance, shall contain a so-called New York standard non-contributing
mortgagee clause in favor of Lender providing that the loss thereunder shall be
payable to Lender. Additionally, if Borrower obtains property insurance coverage
in addition to or in excess of that required by Section 5.1.1(a)(i), then such
insurance policies shall also contain a so-called New York standard
non-contributing mortgagee clause in favor of Lender providing that the loss
thereunder shall be payable to Lender.
(e) All Policies of insurance provided for in Section
5.1.1(a), except for the Policies referenced in Section 5.1.1(a)(v) and
(a)(viii) shall contain clauses or endorsements to the effect that:
Xxxxx 00, 0000
-00-
(x) xx xxx or negligence of Borrower, or anyone
acting for Borrower, or of any Tenant or other occupant, or failure to
comply with the provisions of any Policy, which might otherwise result
in a forfeiture of the insurance or any part thereof, shall in any way
affect the validity or enforceability of the insurance insofar as
Lender is concerned;
(ii) the Policy shall not be canceled without at
least thirty (30) days' written notice to Lender and any other party
named therein as an additional insured and, if obtainable by Borrower
using commercially reasonable efforts, shall not be materially changed
(other than to increase the coverage provided thereby) without such a
thirty (30) day notice; and
(iii) Lender shall not be liable for any Insurance
Premiums thereon or subject to any assessments thereunder.
(f) If at any time Lender is not in receipt of written
evidence that all insurance required hereunder is in full force and effect,
Lender shall have the right, without notice to Borrower, to take such action as
Lender deems necessary to protect its interest in the Property, including the
obtaining of such insurance coverage as Lender in its sole discretion deems
appropriate and all premiums incurred by Lender in connection with such action
or in obtaining such insurance and keeping it in effect shall be paid by
Borrower to Lender upon demand and until paid shall be secured by the Mortgage
and shall bear interest at the Default Rate.
(g) In the event of foreclosure of the Mortgage or other
transfer of title to the Property in extinguishment in whole or in part of the
Obligations, all right, title and interest of Borrower in and to the Policies
that are not blanket Policies then in force concerning the Property and all
proceeds payable thereunder shall thereupon vest in the purchaser at such
foreclosure or Lender or other transferee in the event of such other transfer of
title.
(h) Notwithstanding anything in Section 5.1.1(a)(i) above
to the contrary, Borrower shall be required to obtain and maintain coverage in
its property insurance Policy (or by a separate Policy) against loss or damage
by terrorist acts provided that such coverage is available. If the required
terrorism coverage is not available from an insurance company having the ratings
required under Section 5.1.2, then Borrower shall obtain such coverage from the
highest rated insurance company providing such coverage. If such coverage with
respect to terrorist acts is available as aforesaid, Borrower shall obtain and
maintain such coverage in an amount equal to 100% of the "Full Replacement Cost"
of the Property.
5.1.2 INSURANCE COMPANY. All Policies required pursuant to
Section 5.1.1: (i) shall be issued by companies licensed to do business in the
state where the Property is located, with a financial strength and claims paying
ability rating of at least A:X from A.M. Best Company and "AA" or better by
Standard & Poor's Ratings Services, a division of the XxXxxx-Xxxx Companies,
Inc.; (ii) shall, with respect to all property insurance policies, name Lender
and its successors and/or assigns as their interest may appear as the Lender and
Mortgagee; (iii) shall, with respect to all property insurance policies and
rental loss and/or business interruption insurance policies, contain a Standard
Mortgagee Clause and a Lender's Loss Payable Endorsement, or their equivalents,
naming Lender as the person to which all payments made by such insurance company
shall be paid; (iv) shall, with respect to all liability policies, name
March 31, 2003
-45-
Lender and its successors and/or assigns as an additional insured; (v) shall
contain a waiver of subrogation against Lender; (vi) shall contain such
provisions as Lender deems reasonably necessary or desirable to protect its
interest including endorsements providing that neither Borrower, Lender nor any
other party shall be a co-insurer under said Policies and that Lender shall
receive at least thirty (30) days prior written notice of any modification,
reduction or cancellation; and (vii) shall be satisfactory in form and substance
to Lender and shall be approved by Lender as to amounts, form, risk coverage,
deductibles, loss payees and insureds. Certified copies of the Policies shall be
delivered to Lender, c/o UBS Warburg Real Estate Investments Inc., 1285 Avenue
of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxx Xxxxxxxxx,
Director, on the date hereof with respect to the current Policies and within 30
days after the effective date thereof with respect to all renewal Policies.
Borrower shall pay to Lender the cost of Lender's review of the Policies and any
certificates and renewals relating thereto. Borrower shall pay the Insurance
Premiums annually in advance as the same become due and payable and shall
furnish to Lender evidence of the renewal of each of the Policies with receipts
for the payment of the Insurance Premiums or other evidence of such payment
reasonably satisfactory to Lender (provided, however, that Borrower shall not be
required to pay such Insurance Premiums nor furnish such evidence of payment to
Lender in the event that such Insurance Premiums have been deposited into the
Insurance Account pursuant to Section 6.4 hereof). In addition to the insurance
coverages described in Section 5.1.1) above, Borrower shall obtain such other
insurance as may from time to time be reasonably required by Lender in order to
protect its interests. Within thirty (30) days after request by Lender, Borrower
shall obtain such increases in the amounts of coverage required hereunder as may
be reasonably requested by Lender, taking into consideration changes in the
value of money over time, changes in liability laws, changes in prudent customs
and practices, and the like.
SECTION 5.2 CASUALTY AND CONDEMNATION.
5.2.1 CASUALTY. If the Property shall sustain a Casualty,
Borrower shall give prompt notice of such Casualty to Lender and shall promptly
commence and diligently prosecute to completion the Restoration and otherwise in
accordance with Section 5.3, it being understood, however, that Borrower shall
not be obligated to restore the Property to the precise condition of the
Property prior to such Casualty provided the Property is restored, to the extent
practicable, to be of at least equal value and of substantially the same
character as prior to the Casualty. Borrower shall pay all costs of such
Restoration whether or not such costs are covered by insurance. Lender may, but
shall not be obligated to, submit proof of loss if not submitted promptly by
Borrower. In the event of a Casualty where the loss does not exceed $1,500,000,
Borrower may settle and adjust such claim; provided that (i) no Event of Default
has occurred and is continuing and (ii) such adjustment is carried out in a
commercially reasonable and timely manner. In the event of a Casualty where the
loss exceeds $1,500,000 or if an Event of Default then exists, Borrower may
settle and adjust such claim only with the consent of Lender (which consent
shall not be unreasonably withheld or delayed) and Lender shall have the
opportunity to participate, at Borrower's cost, in any such adjustments;
provided, however, if Borrower fails to settle and adjust such claim within 60
days after the Casualty, Lender shall have the right to settle and adjust such
claim at Borrower's cost and without Borrower's consent. Notwithstanding any
Casualty, Borrower shall continue to pay the Debt at the time and in the manner
provided for its payment in the Note and in this Agreement.
March 31, 2003
-46-
5.2.2 CONDEMNATION. Borrower shall give Lender prompt
notice of any actual or threatened Condemnation by any Governmental Authority of
all or any part of the Property and shall deliver to Lender a copy of any and
all papers served in connection with such proceedings. Provided no Event of
Default has occurred and is continuing, in the event of a Condemnation where the
amount of the taking does not exceed $1,500,000, Borrower may settle and
compromise such Condemnation; provided that the same is effected in a
commercially reasonable and timely manner. In the event a Condemnation where the
amount of the taking exceeds $1,500,000 or if an Event of Default then exists,
Borrower may settle and compromise the Condemnation only with the consent of
Lender (which consent shall not be unreasonably withheld or delayed) and Lender
shall have the opportunity to participate, at Borrower's cost, in any litigation
and settlement discussions in respect thereof and Borrower shall from time to
time deliver to Lender all instruments requested by Lender to permit such
participation. Borrower shall, at its expense, diligently prosecute any such
proceedings, and shall consult with Lender, its attorneys and experts, and
cooperate with them in the carrying on or defense of any such proceedings.
Notwithstanding any Condemnation, Borrower shall continue to pay the Debt at the
time and in the manner provided for its payment in the Note and in this
Agreement. Lender shall not be limited to the interest paid on the Award by any
Governmental Authority but shall be entitled to receive out of the Award
interest at the rate or rates provided herein or in the Note. If the Property or
any portion thereof is taken by any Governmental Authority, Borrower shall
promptly commence and diligently prosecute the Restoration of the Property and
otherwise comply with the provisions of Section 5.3. If the Property is sold,
through foreclosure or otherwise, prior to the receipt by Lender of the Award,
Lender shall have the right, whether or not a deficiency judgment on the Note
shall have been sought, recovered or denied, to receive the Award, or a portion
thereof sufficient to pay the Debt.
5.2.3 CASUALTY AND CONDEMNATION PROCEEDS. Payments received
on account of the business interruption insurance specified in Subsection
5.1.1(a)(iii) above with respect to any Casualty or Condemnation shall be
deposited directly into the Casualty and Condemnation Account. Notwithstanding
anything to the contrary contained herein, if in connection with a Casualty any
insurance carrier makes a payment under a property insurance Policy that
Borrower proposes be treated as business or rental interruption insurance, then,
notwithstanding any designation (or lack of designation) by the insurance
carrier as to the purpose of such payment, as between Lender and Borrower, such
payment shall not be treated as business or rental interruption insurance
proceeds unless Borrower has demonstrated to Lender's satisfaction that the
remaining Net Proceeds that will be received from the property insurance
carriers are sufficient to pay 100% of the cost of fully restoring the
Improvements or, if such Net Proceeds are to be applied repay the Loan in
accordance with the terms hereof, that such remaining Net Proceeds will be
sufficient to pay off the Debt in full.
SECTION 5.3 DELIVERY OF NET PROCEEDS.
5.3.1 MINOR CASUALTY OR CONDEMNATION. If a Casualty or
Condemnation has occurred to the Property and the Net Proceeds shall be less
than $1,500,000 and the costs of completing the Restoration shall be less than
$1,500,000, and provided no Event of Default shall have occurred and remain
uncured, the Net Proceeds will be disbursed by Lender to Borrower promptly after
Lender's receipt thereof from the insurance company. Promptly after receipt of
the Net Proceeds, Borrower shall commence and satisfactorily complete with due
diligence the
March 31, 2003
-47-
Restoration in accordance with the terms of this Agreement. If any Net Proceeds
are received by Borrower and may be retained by Borrower pursuant to the terms
hereof, such Net Proceeds shall, until completion of the Restoration, be held in
trust for Lender and shall be segregated from other funds of Borrower to be used
to pay for the cost of Restoration in accordance with the terms hereof.
5.3.2 MAJOR CASUALTY OR CONDEMNATION.
(a) If a Casualty or Condemnation has occurred to the
Property and the Net Proceeds are equal to or greater than $1,500,000 or the
costs of completing the Restoration is equal to or greater than $1,500,000,
Lender shall make the Net Proceeds available for the Restoration, provided that
each of the following conditions are met:
(i) no Event of Default shall have occurred and
be continuing;
(ii) (A) in the event the Net Proceeds are
insurance proceeds, the loss is in an aggregate amount less than
fifteen percent (15%) of the original principal balance of the Loan or
(B) in the event the Net Proceeds are an Award, less than ten percent
(10%) of the land constituting the Property is taken, and such land is
located along the perimeter or periphery of the Property, and no
portion of the Improvements is the subject of the Condemnation;
(iii) Leases requiring payment of annual rent
equal to ninety percent (90%) of the Gross Revenue received by Borrower
during the twelve (12) month period immediately preceding the Casualty
or Condemnation and all Major Leases shall remain in full force and
effect during and after the completion of the Restoration without
abatement of rent beyond the time required for Restoration,
notwithstanding the occurrence of such Casualty or Condemnation.
(iv) Borrower shall commence the Restoration as
soon as reasonably practicable (but in no event later than ninety (90)
days after such Casualty or Condemnation, whichever the case may be,
occurs) and shall diligently pursue the same to satisfactory
completion;
(v) Lender shall be satisfied that any operating
deficits and all payments of principal and interest under the Note will
be paid during the period required for Restoration from (A) the Net
Proceeds, or (B) other funds of Borrower;
(vi) Lender shall be satisfied that the
Restoration will be completed on or before the earliest to occur of (A)
the date nine (9) months prior to the Stated Maturity Date, (B) the
earliest date required for such completion under the terms of any Major
Lease or the REA, (C) such time as may be required under applicable
Legal Requirements in order to repair and restore the Property to the
condition it was in immediately prior to such Casualty or Condemnation,
as applicable or (D) prior to the expiration of the insurance coverage
referred to in Section 5.1.1(a)(iii);
(vii) the Property and the use thereof after the
Restoration will be in compliance with and permitted under all
applicable Legal Requirements;
March 31, 2003
-48-
(viii) the Restoration shall be done and completed
by Borrower in an expeditious and diligent fashion and in compliance
with all applicable Legal Requirements; and
(ix) such Casualty or Condemnation, as
applicable, does not result in a material loss of access to the
Property or the related Improvements.
(b) The Net Proceeds shall be paid directly to Lender for
deposit into the Casualty and Condemnation Account and, until disbursed in
accordance with the provisions of this Section 5.3.2, shall constitute
additional security for the Debt. The Net Proceeds shall be disbursed by Lender
to, or as directed by, Borrower from time to time during the course of the
Restoration, upon receipt of evidence satisfactory to Lender that (i) all
requirements set forth in Section 5.3.2(a) have been satisfied, (ii) all
materials installed and work and labor performed (except to the extent that they
are to be paid for out of the requested disbursement) in connection with the
Restoration have been paid for in full, and (iii) there exist no notices of
pendency, stop orders, mechanic's or materialman's liens or notices of intention
to file same, or any other liens or encumbrances of any nature whatsoever on the
Property arising out of the Restoration which have not either been fully bonded
to the satisfaction of Lender and discharged of record or in the alternative
fully insured to the satisfaction of Lender by the title company issuing the
Title Insurance Policy.
(c) All plans and specifications required in connection
with the Restoration shall be subject to prior approval of Lender and an
independent architect selected by Lender (the "Casualty Consultant"). The plans
and specifications shall require that the Restoration be completed in a
first-class workmanlike manner at least equivalent to the quality and character
of the original work in the Improvements (provided, however, that in the case of
a partial Condemnation, the Restoration shall be done to the extent reasonable
practicable after taking into account the consequences of such partial
Condemnation), so that upon completion thereof, the Property shall be at least
equal in value and general utility to the Property prior to the damage or
destruction; it being understood, however, that Borrower shall not be obligated
to restore the Property to the precise condition of the Property prior to such
Casualty or Condemnation, as applicable, provided the Property is restored, to
the extent practicable, to be of at least equal value and of substantially the
same character as prior to the Casualty or Condemnation, as applicable. Borrower
shall restore all Improvements such that when they are fully restored and/or
repaired, such Improvements and their contemplated use fully comply with all
applicable material Legal Requirements. The identity of the contractors,
subcontractors and materialmen engaged in the Restoration, as well as the
contracts under which they have been engaged, shall be subject to approval of
Lender and the Casualty Consultant. All costs and expenses incurred by Lender in
connection with recovering, holding and advancing the Net Proceeds for the
Restoration including reasonable attorneys' fees and disbursements and the
Casualty Consultant's fees and disbursements, shall be paid by Borrower.
(d) In no event shall Lender be obligated to make
disbursements of the Net Proceeds in excess of an amount equal to the costs
actually incurred from time to time for work in place as part of the
Restoration, as certified by the Casualty Consultant, less the Casualty
Retainage. The term "Casualty Retainage" shall mean, as to each contractor,
subcontractor or materialman engaged in the Restoration, an amount equal to ten
percent (10%) of the costs
March 31, 2003
-49-
actually incurred for work in place as part of the Restoration, as certified by
the Casualty Consultant, until the Restoration has been completed. The Casualty
Retainage shall in no event, and notwithstanding anything to the contrary set
forth above in this Section 5.3.2(d), be less than the amount actually held back
by Borrower from contractors, subcontractors and materialmen engaged in the
Restoration. The Casualty Retainage shall not be released until the Casualty
Consultant certifies to Lender that the Restoration has been completed in
accordance with the provisions of this Section 5.3.2(d) and that all approvals
necessary for the re-occupancy and use of the Property have been obtained from
all appropriate Governmental Authorities, and Lender receives evidence
satisfactory to Lender that the costs of the Restoration have been paid in full
or will be paid in full out of the Casualty Retainage; provided, however, that
Lender will release the portion of the Casualty Retainage being held with
respect to any contractor, subcontractor or materialman engaged in the
Restoration as of the date upon which the Casualty Consultant certifies to
Lender that the contractor, subcontractor or materialman has satisfactorily
completed all work and has supplied all materials in accordance with the
provisions of the contractor's, subcontractor's or materialman's contract, the
contractor, subcontractor or materialman delivers the lien waivers and evidence
of payment in full of all sums due to the contractor, subcontractor or
materialman as may be reasonably requested by Lender or by the title company
issuing the Title Insurance Policy, and Lender receives an endorsement to the
Title Insurance Policy insuring the continued priority of the lien of the
Mortgage and evidence of payment of any premium payable for such endorsement. If
required by Lender, the release of any such portion of the Casualty Retainage
shall be approved by the surety company, if any, which has issued a payment or
performance bond with respect to the contractor, subcontractor or materialman.
(e) Lender shall not be obligated to make disbursements
of the Net Proceeds more frequently than once every calendar month.
(f) If at any time the Net Proceeds or the undisbursed
balance thereof shall not, in the opinion of Lender in consultation with the
Casualty Consultant, be sufficient to pay in full the balance of the costs which
are estimated by the Casualty Consultant to be incurred in connection with the
completion of the Restoration, Borrower shall deposit the deficiency (the "Net
Proceeds Deficiency") with Lender (for deposit into the Casualty and
Condemnation Account) before any further disbursement of the Net Proceeds shall
be made. The Net Proceeds Deficiency deposited with Lender shall be deposited by
Lender into the Casualty and Condemnation Account and shall be disbursed for
costs actually incurred in connection with the Restoration on the same
conditions applicable to the disbursement of the Net Proceeds, and until so
disbursed pursuant to this Section 5.3.2 shall constitute additional security
for the Debt.
(g) The excess, if any, of the Net Proceeds and the
remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender
after the Casualty Consultant certifies to Lender that the Restoration has been
completed in accordance with the provisions of this Section 5.3.2, and the
receipt by Lender of evidence satisfactory to Lender that all costs incurred in
connection with the Restoration have been paid in full, shall be remitted by
Lender to Borrower, provided no Event of Default shall have occurred and shall
be continuing under any of the Loan Documents; provided, however, the amount of
such excess returned to Borrower in the case of a Condemnation shall not exceed
the amount of Net Proceeds Deficiency deposited by Borrower with the balance
being applied to the Debt in the manner provided for in subsection 5.3.2(h).
March 31, 2003
-50-
(h) All Net Proceeds not required (i) to be made
available for the Restoration or (ii) to be returned to Borrower as excess Net
Proceeds pursuant to Section 5.3.2(g) may be retained and applied by Lender
toward the payment of the Debt, whether or not then due and payable, in such
order, priority and proportions as Lender in its sole discretion shall deem
proper, or, at the discretion of Lender, the same may be paid, either in whole
or in part, to Borrower for such purposes as Lender shall designate.
(i) If Lender shall have the right or option hereunder to
apply Net Proceeds to payment of the Debt, but under any controlling provision
in the REA such Net Proceeds are required to be applied to Restoration, then,
notwithstanding anything to the contrary in this Article 5, provided that no
Event of Default shall be continuing, such Net Proceeds shall be applied to
Restoration in accordance with the REA, subject to such reasonable conditions
and procedures as Lender may impose which are not inconsistent with the terms of
the REA.
VI. CASH MANAGEMENT AND RESERVE FUNDS
SECTION 6.1 CASH MANAGEMENT ARRANGEMENTS. Borrower shall cause
all Rents to be transmitted directly by non-residential tenants of the Property
into a trust account (the "Clearing Account") established and maintained by
Borrower at a local bank selected by Borrower and reasonably approved by Lender
(the "Clearing Bank") as more fully described in the Clearing Account Agreement.
Without in any way limiting the foregoing, if Borrower or Manager receive any
Gross Revenue from the Property, then (i) such amounts shall be deemed to be
collateral for the Obligations and shall be held in trust for the benefit, and
as the property, of Lender, (ii) such amounts shall not be commingled with any
other funds or property of Borrower or Manager, and (iii) Borrower or Manager
shall deposit such amounts in the Clearing Account within one (1) Business Day
of receipt. Funds deposited into the Clearing Account shall be swept by the
Clearing Bank on a daily basis into an Eligible Account at the Deposit Bank
controlled by Lender (the "Deposit Account") and applied and disbursed in
accordance with this Agreement and the Cash Management Agreement. Funds in the
Deposit Account shall be invested in Permitted Investments, as more particularly
set forth in the Cash Management Agreement. Lender may also establish
subaccounts of the Deposit Account which shall at all times be Eligible Accounts
(and may be ledger or book entry accounts and not actual accounts) (such
subaccounts are referred to herein as "Accounts"). The Deposit Account and all
other Accounts will be under the sole control and dominion of Lender, and
Borrower shall have no right of withdrawal therefrom. Borrower shall pay for all
expenses of opening and maintaining all of the above accounts.
SECTION 6.2 INTENTIONALLY DELETED.
SECTION 6.3 TAX FUNDS.
6.3.1 DEPOSITS OF TAX FUNDS. Borrower shall deposit with
Agent (i) the amount of $319,888.83 and No/100 Dollars on the Closing Date and
(ii) on each Monthly Payment Date, an amount equal to one-twelfth of the Taxes
that Lender estimates will be payable during the next ensuing twelve (12) months
in order to accumulate sufficient funds to pay all such Taxes at least ten (10)
days prior to their respective due dates, which amounts shall be
March 31, 2003
-51-
transferred by Agent into an Account (the "Tax Account"). Amounts deposited into
the Tax Account pursuant to this Section 6.3.1 are referred to herein as the
"Tax Funds". The current parcel numbers for the Property are identified on
Schedule VIII. If at any time Lender reasonably determines that the Tax Funds
will not be sufficient to pay the Taxes, Lender shall notify Borrower of such
determination and the monthly deposits for Taxes shall be increased by the
amount that Lender estimates is sufficient to make up the deficiency at least
ten (10) days prior to the respective due dates for the Taxes; provided that if
Borrower receives notice of any deficiency after the date that is ten (10) days
prior to the date that Taxes are due, Borrower will deposit such amount within
one (1) Business Day after its receipt of such notice.
6.3.2 RELEASE OF TAX FUNDS. Provided no Event of Default
shall exist and remain uncured, Lender shall direct Agent to apply the Tax Funds
in the Tax Account to payments of Taxes. In making any payment relating to
Taxes, Lender may do so according to any xxxx, statement or estimate procured
from the appropriate public office (with respect to Taxes) without inquiry into
the accuracy of such xxxx, statement or estimate or into the validity of any
tax, assessment, sale, forfeiture, tax lien or title or claim thereof. If the
amount of the Tax Funds shall exceed the amounts due for Taxes, Lender shall, in
its sole discretion, return any excess to Borrower or credit such excess against
future payments to be made to the Tax Funds. Any Tax Funds remaining in the Tax
Account after the Obligations have been paid in full shall be returned to
Borrower.
SECTION 6.4 INSURANCE FUNDS.
6.4.1 DEPOSITS OF INSURANCE FUNDS. Borrower shall deposit
with Agent (i) the amount of $50,756.33 and No/100 Dollars on the Closing Date
and (ii) on each Monthly Payment Date, an amount equal to one-twelfth of the
Insurance Premiums that Lender estimates will be payable for the renewal of the
coverage afforded by the Policies upon the expiration thereof in order to
accumulate sufficient funds to pay all such Insurance Premiums at least thirty
(30) days prior to the expiration of the Policies, which amounts shall be
transferred by Agent into an Account (the "Insurance Account"). Amounts
deposited pursuant to this Section 6.4.1 are referred to herein as the
"Insurance Funds". If at any time Lender reasonably determines that the
Insurance Funds will not be sufficient to pay the Insurance Premiums, Lender
shall notify Borrower of such determination and the monthly deposits for
Insurance Premiums shall be increased by the amount that Lender estimates is
sufficient to make up the deficiency at least thirty (30) days prior to
expiration of the Policies.
6.4.2 RELEASE OF INSURANCE FUNDS. Provided no Event of
Default shall exist and remain uncured, Lender shall direct Agent to apply the
Insurance Funds in the Insurance Account to payment of Insurance Premiums. In
making any payment relating to Insurance Premiums, Lender may do so according to
any xxxx, statement or estimate procured from the insurer or its agent, without
inquiry into the accuracy of such xxxx, statement or estimate. If the amount of
the Insurance Funds shall exceed the amounts due for Insurance Premiums, Lender
shall, in its sole discretion, return any excess to Borrower or credit such
excess against future payments to be made to the Insurance Funds. Any Insurance
Funds remaining in the Insurance Account after the Debt has been paid in full
shall be returned to Borrower.
March 31, 2003
-52-
SECTION 6.5 CAPITAL EXPENDITURE FUNDS.
6.5.1 DEPOSITS OF CAPITAL EXPENDITURE FUNDS. Borrower shall
deposit with Agent on each Monthly Payment Date an amount equal to one-twelfth
of the product obtained by multiplying $0.20 by the aggregate number of rentable
square feet of space in the Property for annual Capital Expenditures, which
amounts shall be transferred by Agent into an Account (the "Capital Expenditure
Account"). Amounts deposited pursuant to this Section 6.5.1 are referred to
herein as the "Capital Expenditure Funds". Lender may reassess its estimate of
the amount necessary for capital expenditures from time to time and, and may
require Borrower to increase the monthly deposits required pursuant to this
Section 6.5.1 upon thirty (30) days notice to Borrower if Lender determines in
its reasonable discretion that an increase is necessary to maintain proper
operation of the Property. Notwithstanding the foregoing, Borrower shall not be
required to make any deposits into the Capital Expenditure Account pursuant to
this Section 6.5.1 so long as the Debt Service Coverage Ratio is greater than
1.25:1.00; provided that if, on any Calculation Date, the Debt Service Coverage
Ratio shall be 1.25:1.00 or less, Borrower shall be required to make the monthly
deposits into the Capital Expenditure Account in accordance with this Section
6.5.1 on the next succeeding Monthly Payment Date and on each Monthly Payment
Date thereafter until the Debt Service Coverage Ratio shall have been greater
than 1.25:1 on two consecutive Calculation Dates.
6.5.2 RELEASE OF CAPITAL EXPENDITURE FUNDS.
(a) Lender shall direct Agent to disburse the Capital
Expenditure Funds to Borrower out of the Capital Expenditure Account upon
satisfaction by Borrower of each of the following conditions: (i) such
disbursement is for an Approved Capital Expenditure, (ii) Borrower shall submit
a request for payment to Lender at least ten (10) days prior to the date on
which Borrower requests such payment be made and specifies the Capital
Expenditures to be paid (and Lender shall process any such request within said
ten (10) day period), (iii) on the date such request is received by Lender and
on the date such payment is to be made, no Event of Default shall exist and
remain uncured, (iv) Lender shall have received (1) an Officer's Certificate
from Borrower (A) stating that the items to be funded by the requested
disbursement are Approved Capital Expenditures, and a description thereof, (B)
stating that all Approved Capital Expenditures at the Property to be funded by
the requested disbursement have been completed in a good and workmanlike manner
and in accordance with all applicable Legal Requirements, (C) identifying each
Person that supplied materials or labor in connection with the Approved Capital
Expenditures to be funded by the requested disbursement, (D) stating that each
such Person has been paid in full or will be paid in full upon such
disbursement, (E) stating that the same has not been the subject of a previous
disbursement, (F) stating that all previous disbursements have been used to pay
the previously identified Approved Capital Expenses and (G) stating that all
outstanding trade payables (other than those to be paid from the requested
disbursement or those constituting Permitted Indebtedness) have been paid in
full, (2) a copy of any license, permit or other approval required by any
Governmental Authority in connection with the Approved Capital Expenditures, (3)
lien waivers (with respect to any payment to in excess of $25,000), Borrower's
cancelled check or other evidence of payment satisfactory to Lender, (4) at
Lender's option in connection with a disbursement which is greater than $50,000,
a title search for the Property indicating that the Property is free from all
Liens, claims and other encumbrances not previously approved by Lender and (5)
such other evidence as Lender shall
March 31, 2003
-53-
reasonably request that the Approved Capital Expenditures at the Property to be
funded by the requested disbursement have been completed and are paid for or
will be paid upon such disbursement to Borrower. Lender shall not be required to
disburse Capital Expenditure Funds more frequently than once each calendar
month, unless such requested disbursement is in an amount greater than the
Minimum Disbursement Amount (or a lesser amount if the total amount of Capital
Expenditure Funds is less than the Minimum Disbursement Amount, in which case
only one disbursement of the amount remaining in the account shall be made). If
Borrower is not required to make deposits into the Capital Expenditure Account
in accordance with Section 6.5.1, Lender, provided that no Event of Default
shall exist and remain uncured, shall direct Agent to disburse any remaining
Capital Expenditure Funds to Borrower out of the Capital Expenditure Account
within ten (10) days of Borrower's request therefor.
(b) Notwithstanding anything to the contrary set forth in
paragraph (a) above, if (i) the Capital Expenditure exceeds $25,000, (ii) the
contractor performing such capital improvement requires periodic payments
pursuant to terms of a written contract, and (iii) Lender has approved in
writing in advance such periodic payments, a request for reimbursement from the
Capital Expenditure Account may be made after completion of a portion of the
work under such contract, provided (A) such contract requires payment upon
completion of such portion of the work, (B) the materials for which the request
is made are on site at the Property and are properly secured or have been
installed in the Property, (C) all other disbursement conditions set forth in
this paragraph (a) above have been satisfied, (D) funds remaining in the Capital
Expenditure Account are, in Lender's judgment, sufficient to complete such
capital improvement and all other capital improvements when required, and (E) if
required by Lender, each contractor or subcontractor receiving payments under
such contract shall provide a waiver of lien with respect to amounts which have
been paid to that contractor or subcontractor.
(c) Nothing in this Section 6.5.2 shall (i) make Lender
responsible for making or completing any Capital Expenditures Work; (ii) require
Lender to expend funds in addition to the Capital Expenditure Funds to complete
any Capital Expenditures Work; (iii) obligate Lender to proceed with any Capital
Expenditures Work; or (iv) obligate Lender to demand from Borrower additional
sums to complete any Capital Expenditures Work.
(d) Borrower shall permit Lender and Lender's agents and
representatives (including Lender's engineer, architect, or inspector) or third
parties to enter onto the Property during normal business hours (subject to the
rights of Tenants under their Leases) to inspect the progress of any Capital
Expenditures Work and all materials being used in connection therewith and to
examine all plans and shop drawings relating to such Capital Expenditures Work.
Borrower shall cause all contractors and subcontractors to cooperate with Lender
or Lender's representatives or such other Persons described above in connection
with inspections described in this Section 6.5.2(d).
(e) If a disbursement will exceed $250,000, Lender may
require an inspection of the Property at Borrower's expense prior to making a
disbursement of Capital Expenditure Funds in order to verify completion of the
Capital Expenditures Work for which reimbursement is sought. Lender may require
that such inspection be conducted by an appropriate independent qualified
professional selected by Lender and may require a certificate of completion by
an independent qualified professional architect acceptable to Lender prior to
the disbursement of
March 31, 2003
-54-
Capital Expenditure Funds. Borrower shall pay the expense of the inspection as
required hereunder, whether such inspection is conducted by Lender or by an
independent qualified professional architect.
(f) In addition to any insurance required under the Loan
Documents, Borrower shall provide or cause to be provided workmen's compensation
insurance, builder's risk, and public liability insurance and other insurance to
the extent required under applicable law in connection with Capital Expenditures
Work. All such policies shall be in form and amount reasonably satisfactory to
Lender.
SECTION 6.6 ROLLOVER FUNDS.
6.6.1 DEPOSITS OF ROLLOVER FUNDS.
(a) Borrower shall deposit with Agent on each Monthly
Payment Date the sum of $33,231.83, for tenant improvements and leasing
commissions that may be incurred following the date hereof, which amounts shall
be transferred by Agent into an Account (the "Rollover Account"). Lender may
from time to time reassess its estimate of the required monthly amount necessary
for tenant improvements and leasing commissions and, upon notice to Borrower,
Borrower shall be required to deposit with Agent each month such reassessed
amount, which shall be transferred by Agent into the Rollover Account. Amounts
deposited pursuant to this Section 6.6.1 are referred to herein as the "Rollover
Funds". Notwithstanding the foregoing, Borrower shall not be required to make
any deposits into the Rollover Account pursuant to this Section 6.6.1(a) so long
as the Debt Service Coverage Ratio is greater than 1.25:1.00; provided that if,
on any Calculation Date, the Debt Service Coverage Ratio shall be 1.25:1.00 or
less, Borrower shall be required to make the monthly deposits into the Rollover
Account in accordance with this Section 6.6.1(a) on the next succeeding Monthly
Payment Date and on each Monthly Payment Date thereafter until the Debt Service
Coverage Ratio shall have been greater than 1.25:1 on two consecutive
Calculation Dates.
(b) In addition to the required monthly deposits set
forth in subsection (a) above, the following items shall be deposited into the
Rollover Account and held as the Rollover Funds and shall be disbursed and
released as set forth in Section 6.6.2 below, and Borrower shall advise Lender
at the time of receipt thereof of the nature of such receipt so that Lender
shall have sufficient time to instruct the Agent to deposit and hold such
amounts in the Rollover Account pursuant to the Cash Management Agreement:
(i) All sums paid with respect to (A) a
modification of any Lease or otherwise paid in connection with Borrower
taking any action under any Lease (e.g., granting a consent) or waiving
any provision thereof, (B) settlement of claims of Borrower against
third parties in connection with any Leases of the Property, (C) any
rejection, termination, surrender or cancellation of any Lease
(including in any bankruptcy case), lease buy-out and surrender
payments from Tenants (including any payments relating to unamortized
tenant improvements and leasing commissions) (collectively, "Lease
Termination Payments"), and (D) any sums received from Tenants to
obtain a consent to an assignment or sublet or otherwise, or any
holdover rents or use and occupancy fees from Tenants or former Tenants
(to the extent not being paid for use and occupancy or holdover rent);
and
March 31, 2003
-55-
(ii) Any other extraordinary event pursuant to
which Borrower receives payments or income (in whatever form) derived
from or generated by the use, ownership or operation of the Property
not otherwise covered by this Agreement or the Cash Management
Agreement.
6.6.2 RELEASE OF ROLLOVER FUNDS.
(a) Lender shall direct Agent to disburse the Rollover
Funds to Borrower out of the Rollover Account upon satisfaction by Borrower of
each of the following conditions: (i) such disbursement is for an Approved
Leasing Expense, (ii) Borrower shall submit a request for payment to Lender at
least ten (10) days prior to the date on which Borrower requests such payment be
made and specifies the Approved Leasing Expense to be paid (and Lender shall
process any such request within said ten (10) day period), (iii) on the date
such request is received by Lender and on the date such payment is to be made,
no Event of Default shall exist and remain uncured, (iv) if the requested
disbursement is for the payment or reimbursement of Approved Leasing Expenses
associated with a Major Lease, Lender shall have reviewed and approved such
Major Lease, (v) Lender shall have received (1) an Officer's Certificate (A)
stating that all tenant improvements at the Property to be funded by the
requested disbursement have been completed in good and workmanlike manner and in
accordance with all applicable federal, state and local laws, rules and
regulations, (B) identifying each Person that supplied materials or labor in
connection with the tenant improvements to be funded by the requested
disbursement or the broker entitled to the leasing commissions, (C) stating that
each such Person has been paid in full or will be paid in full upon such
disbursement and (D) stating that all outstanding trade payables (other than
those to be paid from the requested disbursement or those constituting Permitted
Indebtedness) have been paid in full, (2) a copy of any license, permit or other
approval by any Governmental Authority required in connection with the tenant
improvements, (3) lien waivers (with respect to any payment to in excess of
$25,000), Borrower's cancelled check or other evidence of payment satisfactory
to Lender, (4) at Lender's option in connection with a disbursement which is
greater than $50,000, a title search for the Property indicating that the
Property is free from all Liens, claims and other encumbrances not previously
approved by Lender, and (5) such other evidence as Lender shall reasonably
request that the Approved Leasing Expenses to be funded by the requested
disbursement have been completed and are paid for or will be paid upon such
disbursement to Borrower. Lender shall not be required to disburse Rollover
Funds more frequently than once each calendar month, unless such requested
disbursement is in an amount greater than the Minimum Disbursement Amount (or a
lesser amount if the total amount of Rollover Funds is less than the Minimum
Disbursement Amount, in which case only one disbursement of the amount remaining
in the account shall be made).
(b) Notwithstanding anything to the contrary set forth in
paragraph (a) above, if (i) the Approved Leasing Expense exceeds $25,000, (ii)
the contractor performing such capital improvement requires periodic payments
pursuant to terms of a written contract, and (iii) Lender has approved in
writing in advance such periodic payments, a request for reimbursement from the
Rollover Account may be made after completion of a portion of the work under
such contract, provided (A) such contract requires payment upon completion of
such portion of the work, (B) the materials for which the request is made are on
site at the Property and are properly secured or have been installed in the
Property, (C) all other disbursement conditions set forth in
March 31, 2003
-56-
this paragraph (a) above have been satisfied, (D) funds remaining in the
Rollover Account are, in Lender's judgment, sufficient to complete such tenant
improvement work and all other tenant improvements when required, and (E) if
required by Lender, each contractor or subcontractor receiving payments under
such contract shall provide a waiver of lien with respect to amounts which have
been paid to that contractor or subcontractor.
Notwithstanding anything to the contrary set forth in paragraph (a) above, at
any time that Borrower is not required to make deposits into the Rollover
Account in accordance with Section 6.6.1(a), Lender shall, provided that no
Event of Default shall exist and remain uncured (i) direct Agent to disburse any
remaining Rollover Funds deposited in accordance with Section 6.6.1(a) to
Borrower out of the Rollover Account within ten (10) days of Borrower's request
therefor and (ii) direct Agent to disburse to Borrower out of the Rollover
Account such portion, if any, of the Rollover Funds deposited in accordance with
Section 6.6.1(b) that Lender reasonably determines will not be required to pay
for anticipated Approved Leasing Expenses within ten (10) days of Borrower's
request therefor.
SECTION 6.7 PAYMENT GUARANTY; FIDELITY L/C; CASH COLLATERAL
ACCOUNT.
6.7.1 PAYMENT GUARANTY. To secure Borrower's obligation to
pay to Lender the scheduled interest payments under the Note during the Term,
Guarantor has executed and delivered the Payment Guaranty. Provided no Default
or Event of Default shall then exist (and except as otherwise expressly set
forth in the Payment Guaranty), Guarantor's liability with respect to clause (i)
of the definition of Guaranteed Obligations as set forth in the Payment Guaranty
shall, unless previously terminated in accordance with Section 6.15(a)(i) of the
Payment Guaranty, terminate and those obligations and liabilities of Guarantor
with respect to clause (i) of the definition of Guaranteed Obligations as set
forth in the Payment Guaranty shall be released if, and only if, on or prior to
December 31, 2003 Borrower delivers the Fidelity L/C pursuant to Section 6.7.2.
6.7.2 FIDELITY L/C.
(a) If the Payment Guaranty has not previously terminated
in accordance with Section 6.15(a) of the Payment Guaranty, then Borrower shall
deliver to Lender a Letter of Credit in the face amount of $2,350,000. Such
Letter of Credit (the "Fidelity L/C") shall constitute additional collateral for
the Debt.
(b) Lender shall have the right, but not the obligation,
to draw down all or any portion of the Fidelity L/C and deposit the proceeds
thereof into the Cash Collateral Account to be held in accordance with Section
6.8.3, upon the occurrence of any of the following:
(i) if Lender receives a Non-Renewal Notice, but
only if Borrower has not previously delivered or caused to be delivered
a replacement Fidelity L/C;
(ii) if Lender receives a notice from the issuer
of the Fidelity L/C that the Fidelity L/C will be terminated, but only
if Borrower has not previously delivered or caused to be delivered a
replacement Fidelity L/C;
March 31, 2003
-57-
(iii) thirty (30) days after Lender has notified
Borrower that the issuer of the Fidelity L/C is no longer an Eligible
Institution, but only if Borrower has not previously delivered or
caused to be delivered a replacement Fidelity L/C; or
(iv) an Event of Default.
(c) Notwithstanding anything to the contrary contained in
this Section 6.7 or elsewhere in this Agreement, Lender shall have no obligation
to draw on the Fidelity L/C upon the happening of an event described in Section
6.7.2(b), and Lender shall not be liable for any losses sustained by Borrower
due to the insolvency of the issuer of the Fidelity L/C, notwithstanding that
Lender elected not to draw on the Fidelity L/C.
(d) If for any reason the Fidelity L/C shall expire
without a replacement Fidelity L/C having been delivered to Lender, Borrower
shall within 5 days after demand, unless Lender shall have fully drawn on the
Fidelity L/C prior to its expiration, deliver to Lender a new Fidelity L/C.
(e) Provided that no Default or Event of Default shall
exist and be continuing, Lender, shall within 5 days after receipt of the
written request of Borrower, return the Fidelity L/C to Borrower upon the
occurrence of a Fidelity L/C Release Event.
6.7.3 CASH COLLATERAL ACCOUNT. Any funds received by
Lender by reason of drawing on the Fidelity L/C shall be deposited with Agent,
which amounts shall be transferred by Agent into an Account (the "Cash
Collateral Account") as cash collateral for the Debt. Amounts deposited pursuant
to this Section 6.7.3 are referred to herein as the "Cash Collateral Funds". All
Cash Collateral Funds deposited under this Section 6.7.3 shall be additional
security for the repayment of the Debt, may be withdrawn by Lender upon the
occurrence of an Event of Default and applied by Lender in such order and
priority as Lender may determine in its sole discretion
SECTION 6.8 SECURITY INTEREST IN RESERVE FUNDS.
6.8.1 GRANT OF SECURITY INTEREST. Borrower shall be the
owner of the Reserve Funds. Borrower hereby pledges, assigns and grants a
security interest to Lender, as security for payment of the Debt and the
performance of all other terms, conditions and covenants of the Loan Documents
on Borrower's part to be paid and performed, in all of Borrower's right, title
and interest in and to the Reserve Funds. The Reserve Funds shall be under the
sole dominion and control of Lender. The Reserve Funds shall not constitute a
trust fund and may be commingled with other monies held by Lender.
6.8.2 INCOME TAXES; INTEREST. Borrower shall report on its
federal, state and local income tax returns all interest or income accrued on
the Reserve Funds. Subject to the succeeding sentence, all earnings or interest
on each of the Reserve Funds shall be credited monthly to such Reserve Funds and
become part of the respective Reserve Fund and shall be disbursed as provided in
the paragraph(s) of this Agreement applicable to each such Reserve Fund.
Notwithstanding that a higher rate may actually be earned on the Tax and
Insurance Funds, Borrower shall not receive and the Tax and Insurance Funds
shall not be credited with
March 31, 2003
-58-
interest at a rate that is greater than the rate of interest paid from time to
time on money market accounts at the Deposit Bank.
6.8.3 PROHIBITION AGAINST FURTHER ENCUMBRANCE. Borrower
shall not, without the prior consent of Lender, further pledge, assign or grant
any security interest in the Reserve Funds or permit any lien or encumbrance to
attach thereto, or any levy to be made thereon, or any UCC-1 Financing
Statements, except those naming Lender as the secured party, to be filed with
respect thereto.
SECTION 6.9 PROPERTY CASH FLOW ALLOCATION.
6.9.1 ORDER OF PRIORITY OF FUNDS IN DEPOSIT ACCOUNT. On
each Monthly Payment Date during the Term, except during the continuance of an
Event of Default, all funds deposited into the Deposit Account during the
immediately preceding Interest Period shall be applied on such Monthly Payment
Date in the following order of priority: (i) First, to make the required
payments of Tax Funds into the Tax Account as required under Section 6.3; (ii)
Second, to make the required payments of Insurance Funds into the Insurance
Account as required under Section 6.4; (iii) Third, funds sufficient to pay the
Monthly Debt Service Payment Amount into the Debt Service Account; (iv) Fourth,
to make the required payments of Capital Expenditure Funds into the Capital
Expenditure Account as required under Section 6.5; (v) Fifth, to make the
required payments of Rollover Funds into the Rollover Account as required under
Section 6.6; (vi) Sixth, funds sufficient to pay any interest accruing at the
Default Rate and late payment charges, if any, (and all other amounts, other
than those described under other clauses of this Section 6.9.1, then due to
Lender under the Loan Documents) into the Debt Service Account; and (vii)
Lastly, provided no Event of Default has occurred and is continuing, payments to
Borrower of any excess amounts.
6.9.2 FAILURE TO MAKE PAYMENTS. The failure of Borrower to
make all of the payments required under clauses (i) through (vii) of Section
6.9.1 in full on each Monthly Payment Date shall constitute an Event of Default
under this Agreement; provided, however, if adequate funds are available in the
Deposit Account for such payments, the failure by the Deposit Bank to allocate
such funds into the appropriate Accounts shall not constitute an Event of
Default.
6.9.3 APPLICATION AFTER EVENT OF DEFAULT. Notwithstanding
anything to the contrary contained in Section 6.9.1, upon the occurrence of an
Event of Default, Lender, at its option, may withdraw the Reserve Funds and
apply the Reserve Funds to the items for which the Reserve Funds were
established or to payment of the Debt in such order, proportion and priority as
Lender may determine in its sole discretion. Lender's right to withdraw and
apply the Reserve Funds shall be in addition to all other rights and remedies
provided to Lender under the Loan Documents.
March 31, 2003
-59-
VII. PROPERTY MANAGEMENT
SECTION 7.1 THE MANAGEMENT AGREEMENT.
Borrower shall (i) cause Manager to manage the Property in
accordance with the Management Agreement, (ii) diligently perform and observe
all of the terms, covenants and conditions of the Management Agreement on the
part of Borrower to be performed and observed, (iii) promptly notify Lender of
any default under the Management Agreement of which it is aware and (iv)
promptly enforce the performance and observance of all of the covenants required
to be performed and observed by Manager under the Management Agreement. If
Borrower shall default in the performance or observance of any material term,
covenant or condition of the Management Agreement on the part of Borrower to be
performed or observed, then, without limiting Lender's other rights or remedies
under this Agreement or the other Loan Documents, and without waiving or
releasing Borrower from any of its obligations hereunder or under the Management
Agreement, Lender shall have the right, but shall be under no obligation, to pay
any sums and to perform any act as may be appropriate to cause all the material
terms, covenants and conditions of the Management Agreement on the part of
Borrower to be performed or observed.
SECTION 7.2 PROHIBITION AGAINST TERMINATION OR MODIFICATION.
Borrower shall not (i) surrender, terminate, cancel, modify in
any material respect, renew or extend the Management Agreement, (ii) enter into
any other agreement relating to the management or operation of the Property with
Manager or any other Person, (iii) consent to the assignment by the Manager of
its interest under the Management Agreement or (iv) waive or release any of its
rights and remedies under the Management Agreement, in each case without the
express consent of Lender, which consent shall not be unreasonably withheld. If
at any time Lender consents to the appointment of a new manager, such new
manager and Borrower shall, as a condition of Lender's consent, execute a
subordination of management agreement in the form then used by Lender.
SECTION 7.3 REPLACEMENT OF MANAGER.
Lender shall have the right to require Borrower to replace the
Manager with a Person chosen by Borrower and approved by Lender upon the
occurrence of any one or more of the following events: (i) from and after the
Stated Maturity Date, (ii) at any time following the occurrence of an Event of
Default, (iii) if at any time the Debt Service Coverage Ratio falls below 1.50
to 1.0 on any two consecutive Calculation Dates, (iv) if Manager shall be in
default under the Management Agreement beyond any applicable notice and cure
period, (v) if Manager shall become insolvent or a debtor in any bankruptcy or
insolvency proceeding, or (vi) if at any time the Manager has engaged in gross
negligence, fraud or willful misconduct. Notwithstanding the provisions of
clause (iii) above, Borrower shall nevertheless have the right to retain such
Manager if, prior to the replacement of such Manager, Borrower shall provide
additional collateral in the form of Letters of Credit for a portion of the
Loan, satisfactory to Lender, such that a Debt Service Coverage Ratio of 1.50 to
1.0 can be maintained on the Loan Amount net of such additional collateral.
Lender may require Borrower to increase the additional collateral to the extent
such Debt Service Coverage Ratio continues to decline in subsequent quarters.
Such additional collateral shall be released to Borrower when the Debt
March 31, 2003
-60-
Service Coverage Ratio equals or exceeds 1.50 to 1.0 for 6 consecutive months
and provided no Event of Default has occurred. Letters of Credit provided under
this section shall be additional security for the repayment of the Debt and may
be drawn upon by Lender upon the occurrence of an Event of Default and applied
by Lender in such order and priority as Lender may determine in its sole
discretion.
VIII. PERMITTED TRANSFERS
SECTION 8.1 PERMITTED TRANSFER OF THE PROPERTY.
Lender shall not unreasonably withhold its consent to the
one-time conveyance of the Property to a Permitted Transferee provided that (i)
Lender has received a Rating Agency Confirmation as to the conveyance of the
Property to the Permitted Transferee, (ii) Lender has received an agreement,
acceptable to it in its reasonable discretion, pursuant to which the Permitted
Transferee assumes all of Borrower's obligations under the Loan Documents, (iii)
Lender has approved the financial condition and creditworthiness of each
proposed substitute guarantor under the Recourse Guaranty in its reasonable
discretion, (iv) Lender receives a transfer fee equal to 0.5% of the original
Loan Amount, (v) Lender shall have received such documents, certificates and
legal opinions as it may reasonably request, (vi) no Default or Event of Default
shall have occurred and remain uncured; (vii) the Permitted Transferee and its
property manager shall have sufficient experience in the ownership and
management of properties similar to the Property, and Lender shall be provided
with reasonable evidence thereof (and Lender reserves the right to approve the
Permitted Transferee without approving the substitution of the property
manager); (viii) the Permitted Transferee shall have executed and delivered to
Lender an assumption agreement in form and substance acceptable to Lender,
evidencing such Permitted Transferee's agreement to abide and be bound by the
terms of the Note, this Agreement and the other Loan Documents, together with
such legal opinions (including with respect to enforceability, authorization and
substantive non-consolidation) and title insurance endorsements as may be
reasonably requested by Lender and the Rating Agencies; and Lender may, as a
condition to evaluating any requested consent to a transfer, require that
Borrower post a cash deposit with Lender in an amount equal to Lender's
anticipated costs and expenses in evaluating any such request for consent.
SECTION 8.2 PERMITTED TRANSFERS OF INTEREST IN BORROWER.
(a) Notwithstanding anything to the contrary contained in
Section 4.2.1, the following Transfers ("Permitted Transfers") shall be deemed
to be permitted hereunder without the consent of Lender:
(i) provided that no Default or Event of Default
shall have occurred and remain uncured, a Transfer of a direct or
indirect interest in Borrower provided that (A) such Transfer shall not
(x) cause the transferee (together with its Affiliates) to acquire
Control of Borrower or Sole Member or to increase its direct or
indirect interest in Borrower or in Sole Member to an amount which
equals or exceeds 49% or (y) result in Borrower or Sole Member no
longer being Controlled by Key Principal), (B) after giving effect to
such Transfer, Key Principal shall continue to own at least 39% of all
equity interests (direct or indirect) in Borrower, (C) Borrower shall
give Lender notice of such
March 31, 2003
-61-
Transfer together with copies of all instruments effecting such
Transfer not less than 10 days prior to the date of such Transfer, and
(D) the legal and financial structure of Borrower and its members and
the single purpose nature and bankruptcy remoteness of Borrower and its
members after such Transfer, shall satisfy Lender's then current
applicable underwriting criteria and requirements;
(ii) provided that no Default or Event of Default
shall have occurred and remain uncured, a Transfer of a direct or
indirect interest in Borrower or Sole Member which shall cause the
transferee (together with its Affiliates) to increase its direct or
indirect interest in Borrower or Sole Member to an amount which equals
or exceeds 49% or shall result in a change of Control of Borrower and
such Sole Member, provided that (A) if such Transfer occurs prior to a
Securitization, such Transfer is first approved by Lender in writing in
its sole and absolute discretion; and (B) if such Transfer occurs after
a Securitization, Borrower, at Borrower's sole cost and expense, shall
first deliver (or cause to be delivered) (x) a Rating Agency
Confirmation to Lender that such Transfer will not result in a
qualification, downgrade or withdrawal of the then applicable ratings
and (y) a substantive non-consolidation opinion to Lender and the
Rating Agencies with respect to Borrower and such transferee in form
and substance satisfactory to Lender and the Rating Agencies;
(iii) a Transfer of a direct or indirect interest
in Sole Member to Guarantor; provided that no Default or Event of
Default shall have occurred and remain uncured and, to the extent after
giving effect to such Transfer, Guarantor shall own a direct interest
in Sole Member which equals or exceeds 49%, Borrower shall deliver
substantive non-consolidation opinion to Lender and the Rating Agencies
with respect to Borrower and Guarantor in form and substance
satisfactory to Lender and the Rating Agencies;
(iv) a Transfer of the stock in Glimcher Realty
Trust, including, without limitation, a Transfer over a national
exchange or in connection with the purchase of all or substantially all
of the stock in Glimcher Realty Trust; and
(v) a Transfer of all of the partnership
interests in Guarantor to a Person that acquires all or substantially
all of the assets of Glimcher Realty Trust.
For purposes of this Section 8.2, (i) a change of "Control" of
Borrower (or Sole Member) shall be deemed to have occurred if (A) there is any
change in the identity of any individual or entity or any group of individuals
or entities who have the right, by virtue of any partnership agreement, articles
of incorporation, by-laws, articles of organization, operating agreement or any
other agreement, with or without taking any formative action, to cause Borrower
(or Sole Member) to take some action or to prevent, restrict or impede Borrower
(or Sole Member) from taking some action which, in either case, Borrower (or
Sole Member) could take or could refrain from taking were it not for the rights
of such individuals or (B) the individual or entity or group of individuals or
entities that "Control" Borrower (and any Sole Member) as described in clause
(A) ever cease to own at least (51%) of all equity interests (direct or
indirect) in Borrower and (ii) an "immediate family member" shall mean a
sibling,
March 31, 2003
-62-
spouse or child of any interest holder. Notwithstanding the foregoing, the
appointment or resignation of an Independent Director shall not be deemed to
constitute a change in "Control."
IX. SALE AND SECURITIZATION OF MORTGAGE
SECTION 9.1 SALE OF MORTGAGE AND SECURITIZATION.
(a) Lender shall have the right (i) to sell or otherwise
transfer the Loan or any portion thereof as a whole loan, (ii) to sell
participation interests in the Loan or (iii) to securitize the Loan or any
portion thereof in a single asset securitization or a pooled loan
securitization. (The transaction referred to in clauses (i), (ii) and (iii)
shall hereinafter be referred to collectively as "Secondary Market Transactions"
and the transactions referred to in clause (iii) shall hereinafter be referred
to as a "Securitization". Any certificates, notes or other securities issued in
connection with a Securitization are hereinafter referred to as "Securities").
(b) If requested by Lender, Borrower shall assist Lender,
at Lender's expense, in satisfying the market standards to which Lender
customarily adheres or which may be reasonably required in the marketplace or by
the Rating Agencies in connection with any Secondary Market Transactions,
including to:
(i) (A) provide updated financial and other
information with respect to the Property, the business operated at the
Property, Borrower and the Manager, (B) provide updated budgets
relating to the Property and (C) provide updated appraisals, market
studies, environmental reviews (Phase I's and, if appropriate, Phase
II's), property condition reports and other due diligence
investigations of the Property (the "Updated Information"), together,
if customary, with appropriate verification of the Updated Information
through letters of auditors or opinions of counsel acceptable to Lender
and the Rating Agencies;
(ii) provide opinions of counsel, which may be
relied upon by Lender, the Rating Agencies and their respective
counsel, agents and representatives, as to non-consolidation,
fraudulent conveyance, and true sale or any other opinion customary in
Secondary Market Transactions or required by the Rating Agencies with
respect to the Property and Borrower and Affiliates, which counsel and
opinions shall be satisfactory to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of
the Secondary Market Transaction, representations and warranties made
in the Loan Documents and such additional representations and
warranties as the Rating Agencies may require; and
(iv) execute amendments to the Loan Documents and
Borrower's organizational documents reasonably requested by Lender;
provided, however, that Borrower shall not be required to modify or
amend any Loan Document if such modification or amendment would (A)
change the interest rate, the stated maturity or the amortization of
principal as set forth herein or in the Note, (B) modify or amend any
other material economic term of the Loan or (C) otherwise be adverse to
Borrower.
March 31, 2003
-63-
(c) If requested by Lender, Borrower shall provide Lender
with the following financial statements (it being understood that Lender shall
request (i) full financial statements if it anticipates that the principal
amount of the Loan at the time of Securitization may, or if the principal amount
of the Loan at any time during which the Loan is included in a Securitization
does, equals or exceeds 20% of the aggregate principal amount of all mortgage
loans included in the Securitization and (ii) summaries of such financial
statements if the principal amount of the Loan at any such time equals or
exceeds 10% of such aggregate principal amount):
(i) As of the Closing Date, a balance sheet with
respect to the Property for the two most recent Fiscal Years, meeting
the requirements of Section 210.3-01 of Regulation S-X of the
Securities Act and statements of income and statements of cash flows
with respect to the Property for the three most recent Fiscal Years,
meeting the requirements of Section 210.3-02 of Regulation S-X, and, to
the extent that such balance sheet is more than 135 days old as of the
Closing Date, interim financial statements of the Property meeting the
requirements of Section 210.3-01 and 210.3-02 of Regulation S-X (all of
such financial statements, collectively, the "Standard Statements");
provided, however, that if the Property would be deemed to constitute a
business and not real estate under Regulation S-X that has been
acquired by Borrower from an unaffiliated third party, as to which the
other conditions set forth in Section 210.3-05 of Regulation S-X for
provision of financial statements in accordance with such Section have
been met, at Lender's election in lieu of or in addition to the
Standard Statements otherwise required by this Section 9.1(c)(i),
Borrower shall instead provide the financial statements required by
such Section 210.3-05 of Regulation S-X ("Acquired Property
Statements").
(ii) Not later than 30 days after the end of each
fiscal quarter following the Closing Date, a balance sheet of the
Property as of the end of such fiscal quarter, meeting the requirements
of Section 210.3-01 of Regulation S-X, and statements of income and
statements of cash flows of the Property for the period commencing on
the day following the last day of the most recent Fiscal Year and
ending on the date of such balance sheet and for the corresponding
period of the most recent Fiscal Year, meeting the requirements of
Section 210.3-02 of Regulation S-X (provided, that if for such
corresponding period of the most recent Fiscal Year Acquired Property
Statements were permitted to be provided hereunder pursuant to
paragraph (i) above, Borrower shall instead provide Acquired Property
Statements for such corresponding period). If requested by Lender,
Borrower shall also provide "summarized financial information," as
defined in Section 210.1-02(bb) of Regulation S-X, with respect to such
quarterly financial statements.
(iii) Not later than 60 days after the end of each
Fiscal Year following the Closing Date, a balance sheet of the Property
as of the end of such Fiscal Year, meeting the requirements of Section
210.3-01 of Regulation S-X, and statements of income and statements of
cash flows of the Property for such Fiscal Year, meeting the
requirements of Section 210.3-02 of Regulation S-X. If requested by
Lender, Borrower shall provide summarized financial information with
respect to such annual financial statements.
March 31, 2003
-64-
(iv) Upon ten (10) Business Days after notice
from Lender in connection with the Securitization of this Loan, such
additional financial statements, such that, as of the date (each a
"Disclosure Document Date") of each Disclosure Document, Borrower shall
have provided Lender with all financial statements as described in
paragraph (i) above; provided that the Fiscal Year and interim periods
for which such financial statements shall be provided shall be
determined as of such Disclosure Document Date.
(v) In the event Lender determines, in
connection with a Securitization, that the financial statements
required in order to comply with Regulation S-X or Legal Requirements
are other than as provided herein, then notwithstanding the provisions
of this Section, Lender may request, and Borrower shall promptly
provide, such combination of Acquired Property Statements and/or
Standard Statements as may be necessary for such compliance.
(vi) Any other or additional financial
statements, or financial, statistical or operating information, as
shall be required pursuant to Regulation S-X or other Legal
Requirements in connection with any Disclosure Document or any filing
under or pursuant to the Exchange Act in connection with or relating to
a Securitization (hereinafter an "Exchange Act Filing") or as shall
otherwise be reasonably requested by Lender to meet disclosure, rating
agency or marketing requirements.
All financial statements provided by Borrower pursuant to this Section 9.1(c)
shall be prepared on a federal income tax basis consistently applied, and shall
meet the requirements of Regulation S-X and other applicable Legal Requirements.
All financial statements relating to a Fiscal Year shall be audited by the
independent accountants in accordance with generally accepted auditing
standards, Regulation S-X and all other applicable Legal Requirements, shall be
accompanied by the manually executed report of the independent accountants
thereon, which report shall meet the requirements of Regulation S-X and all
other applicable Legal Requirements, and shall be further accompanied by a
manually executed written consent of the independent accountants, in form and
substance acceptable to Lender, to the inclusion of such financial statements in
any Disclosure Document and any Exchange Act Filing and to the use of the name
of such independent accountants and the reference to such independent
accountants as "experts" in any Disclosure Document and Exchange Act Filing, all
of which shall be provided at the same time as the related financial statements
are required to be provided. All other financial statements shall be certified
by the chief financial officer of Borrower, which certification shall state that
such financial statements meet the requirements set forth in the first sentence
of this paragraph.
SECTION 9.2 SECURITIZATION INDEMNIFICATION.
(a) Borrower understands that information provided to
Lender by Borrower and its agents, counsel and representatives may be included
in disclosure documents in connection with the Securitization, including an
offering circular, a prospectus, prospectus supplement, private placement
memorandum or other offering document (each, an "Disclosure Document") and may
also be included in filings with the Securities and Exchange Commission pursuant
to the Securities Act of 1933, as amended (the "Securities Act"), or the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and may be
made available to
March 31, 2003
-65-
investors or prospective investors in the Securities, the Rating Agencies, and
service providers relating to the Securitization.
(b) Borrower shall in connection with each of (i) a
preliminary and a final private placement memorandum or (ii) a preliminary and
final prospectus or prospectus supplement, as applicable, (A) certify in writing
that Borrower has examined such Disclosure Documents specified by Lender and
that each such Disclosure Document, as it relates to Borrower, Borrower
Affiliates, the Property, Manager and the Loan, does not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements made, in the light of the circumstances under which they
were made, not misleading, (B) indemnify (in a separate instrument of indemnity,
if so requested by Lender) Lender (and for purposes of this Section 9.2, Lender
hereunder shall include its officers and directors), the Affiliate of UBS
Warburg ("UBS") that has filed the registration statement relating to the
Securitization (the "Registration Statement"), each of its directors, each of
its officers who have signed the Registration Statement and each Person that
controls the Affiliate within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (collectively, the "UBS Group"), and UBS, and any
other placement agent or underwriter with respect to the Securitization, each of
their respective directors and each Person who controls UBS or any other
placement agent or underwriter within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act (collectively, the
"Underwriter Group") for any losses, claims, damages or liabilities
(collectively, the "Liabilities") to which Lender, the UBS Group or the
Underwriter Group may become subject insofar as the Liabilities arise out of or
are based upon any untrue statement of any material fact contained in such
sections or arise out of or are based upon the omission to state therein a
material fact required to be stated in such sections or necessary in order to
make the statements in such sections, in light of the circumstances under which
they were made, not misleading and (C) reimburse (pursuant to a separate
instrument, if so requested by Lender) Lender, the UBS Group and/or the
Underwriter Group for any legal or other expenses reasonably incurred by Lender,
the UBS Group and the Underwriter Group in connection with investigating or
defending the Liabilities; provided, however, that Borrower will be liable in
any such case under clauses (B) or (C) above only to the extent that any such
loss claim, damage or liability arises solely out of any such untrue statement
or omission made therein in reliance upon and in conformity with information
furnished to Lender by or on behalf of Borrower in connection with the
preparation of the Disclosure Document or in connection with the underwriting or
closing of the Loan, including financial statements of Borrower, operating
statements and rent rolls with respect to the Property. This indemnity will be
in addition to any liability which Borrower may otherwise have.
(c) Intentionally deleted.
(d) Promptly after receipt by an indemnified party under
this Section 9.2 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9.2, notify the indemnifying party in writing of the
commencement thereof, but the omission to so notify the indemnifying party will
not relieve the indemnifying party from any liability which the indemnifying
party may have to any indemnified party hereunder except to the extent that
failure to notify causes prejudice to the indemnifying party. In the event that
any action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement
March 31, 2003
-66-
thereof, the indemnifying party will be entitled, jointly with any other
indemnifying party, to participate therein and, to the extent that it (or they)
may elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel satisfactory to such indemnified party. After
notice from the indemnifying party to such indemnified party under this Section
9.2, such indemnified party shall pay for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there are any legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party at
the cost of the indemnifying party. The indemnifying party shall not be liable
for the expenses of more than one separate counsel unless an indemnified party
shall have reasonably concluded that there may be legal defenses available to it
that are different from or additional to those available to another indemnified
party.
(e) In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 9.2(b) or (c) is for any reason held to be unenforceable as to an
indemnified party in respect of any losses, claims, damages or liabilities (or
action in respect thereof) referred to therein which would otherwise be
indemnifiable under Section 9.2(b) or (c), the indemnifying party shall
contribute to the amount paid or payable by the indemnified party as a result of
such losses, claims, damages or liabilities (or action in respect thereof);
provided, however, that no Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. In determining the amount of contribution to which the
respective parties are entitled, the following factors shall be considered: (i)
UBS's and Borrower's relative knowledge and access to information concerning the
matter with respect to which the claim was asserted; (ii) the opportunity to
correct and prevent any statement or omission; and (iii) any other equitable
considerations appropriate in the circumstances. Lender and Borrower hereby
agree that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation.
(f) The liabilities and obligations of both Borrower and
Lender under this Section 9.2 shall survive the termination of this Agreement
and the satisfaction and discharge of the Debt.
SECTION 9.3 RATING SURVEILLANCE.
Borrower will retain the Rating Agencies to provide rating
surveillance services on any certificates issued in a Securitization. Such
rating surveillance will be at the expense of Lender.
SECTION 9.4 SEVERANCE DOCUMENTATION.
Lender shall have the right (at Lender's expense), at any time
(whether prior to of after any sale, participation or Securitization of all or
any portion of the Loan), to modify the Loan in order to create one or more
senior and subordinate notes (i.e., an A/B or A/B/C
March 31, 2003
-67-
structure) and/or one or more additional components of the Note or Notes, reduce
the number of components of the Note or Notes, revise the interest rate for each
component, reallocate the principal balances of the Notes and/or the components,
increase or decrease the Monthly Debt Service Payment Amount for each component
or eliminate the component structure and/or the multiple note structure of the
Loan (including the elimination of the related allocations of principal and
interest payments) provided that the outstanding principal balance of all
components immediately after the effective date of such modification equals the
outstanding principal balance of the Loan immediately prior to such modification
and the weighted average of the interest rates for all components immediately
after the effective date of such modification equals the interest rate of the
original Note immediately prior to such modification. At Lender's election, each
note comprising the Loan may be subject to one or more Securitizations. Lender
shall have the right to modify the Note and/or Notes and any components in
accordance with this Section 9.4 and, provided that such modification shall
comply with the terms of this Section 9.4, it shall become immediately
effective. If requested by Lender, Borrower shall execute within two (2)
Business Days after such request, an amendment to the Loan Documents to evidence
any such modification.
X. DEFAULTS
SECTION 10.1 EVENT OF DEFAULT.
(a) Each of the following events shall constitute an
event of default hereunder (an "Event of Default"):
(i) if any monthly installment of principal and/or
interest due under the Note or any payment of Reserve Funds due under this
Agreement or the payment of the Debt due on the Maturity Date is not paid when
due;
(ii) if any other portion of the Debt (other than as set
forth in the foregoing clause (i)) is not paid when due and such non-payment
continues for five (5) days following notice to Borrower that the same is due
and payable;
(iii) if any of the Taxes or Other Charges are not paid
when due (provided that it shall not be an Event of Default if there are
sufficient funds in the Tax Account to pay such amounts when due, no other Event
of Default is then continuing and Agent fails to make such payment in violation
of this Agreement);
(iv) if the Policies are not kept in full force and
effect;
(v) subject to the provisions of Sections 8.1 and 8.2, if
Borrower breaches or permits or suffers a breach of the provisions of Section
4.2.1;
(vi) if any representation or warranty made by Borrower or
Guarantor herein or in any other Loan Document, or in any report, certificate,
financial statement or other instrument, agreement or document furnished to
Lender shall have been false or misleading in any material respect as of the
date the representation or warranty was made;
March 31, 2003
-68-
(vii) if Borrower, Sole Member or Guarantor shall make an
assignment for the benefit of creditors;
(viii) if a receiver, liquidator or trustee shall be
appointed for Borrower, Sole Member or Guarantor or if Borrower, Sole Member or
Guarantor shall be adjudicated a bankrupt or insolvent, or if any petition for
bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or
any similar federal or state law, shall be filed by or against, consented to, or
acquiesced in by, Borrower, Sole Member or Guarantor, or if any proceeding for
the dissolution or liquidation of Borrower, Sole Member or Guarantor shall be
instituted; provided, however, if such appointment, adjudication, petition or
proceeding was involuntary and not consented to by Borrower, Sole Member or
Guarantor, upon the same not being discharged, stayed or dismissed within thirty
(30) days;
(ix) if Borrower attempts to assign its rights under this
Agreement or any of the other Loan Documents or any interest herein or therein
in contravention of the Loan Documents;
(x) if Borrower breaches any representation, warranty or
covenant contained in Schedule V;
(xi) subject to Borrower's right to contest as provided in
Section 3.6 of the Mortgage, if the Property becomes subject to any mechanic's,
materialman's or other Lien except a Lien for Taxes not then due and payable;
(xii) except as permitted herein, the material alteration,
improvement, demolition or removal of any of the Improvements without the prior
consent of Lender;
(xiii) if, without Lender's prior written consent, (i) the
Management Agreement is terminated, (ii) there occurs a change in Control of
Manager (except as permitted under this Agreement), (iii) there is a material
change in the Management Agreement, or (iv) if there shall be a material default
by Borrower under the Management Agreement;
(xiv) if Guarantor fails to maintain a Net Worth (as
defined in the Recourse Guaranty) of $25,000,000; provided, that such failure
shall not be an Event of Default hereunder if, within 60 days either (a)
Guarantor is replaced with a new guarantor which (1) is an Affiliate of
Borrower, (2) has a Net Worth (as defined in the Recourse Guaranty) not less
than $25,000,000, (3) is approved by Lender, such approval not to be
unreasonably withheld and (4) assumes all of the obligations and liabilities of
such Guarantor under the Loan Documents or (b) the Net Worth (as defined in the
Recourse Guaranty) of Guarantor is increased to an amount not less than
$25,000,000.
(xv) if Borrower shall continue to be in Default under any
of the other terms, covenants or conditions of this Agreement not specified in
subsections (i) to (xiv) above, and such Default shall continue for ten (10)
days after notice to Borrower from Lender, in the case of any such Default which
can be cured by the payment of a sum of money, or for thirty (30) days after
notice to Borrower from Lender in the case of any other such Default; provided,
however, that if such non-monetary Default is susceptible of cure but cannot
reasonably be cured within such 30-day period, and provided further that
Borrower shall have commenced to cure such
March 31, 2003
-69-
Default within such 30-day period shall and thereafter diligently and
expeditiously proceed to cure the same, such 30-day period shall be extended for
such time as is reasonably necessary for Borrower in the exercise of due
diligence to cure such Default, such additional period not to exceed sixty (60)
days; or
(xvi) if there shall be a default under any of the other
Loan Documents beyond any applicable cure periods contained in such Loan
Documents, whether as to Borrower, Guarantor or the Property, or if any other
such event shall occur or condition shall exist, if the effect of such event or
condition is to accelerate the maturity of any portion of the Debt or to permit
Lender to accelerate the maturity of all or any portion of the Debt.
(b) Upon the occurrence of an Event of Default (other
than an Event of Default described in clauses (vii), (viii) or (ix) above) and
at any time thereafter, Lender may, in addition to any other rights or remedies
available to it pursuant to this Agreement and the other Loan Documents or at
law or in equity, take such action, without notice or demand, that Lender deems
advisable to protect and enforce its rights against Borrower and in and to the
Property, including declaring the Debt to be immediately due and payable, and
Lender may enforce or avail itself of any or all rights or remedies provided in
the Loan Documents against Borrower and the Property, including all rights or
remedies available at law or in equity; and upon any Event of Default described
in clauses (vii), (viii) or (ix) above, the Debt of Borrower hereunder and under
the other Loan Documents shall immediately and automatically become due and
payable, without notice or demand, and Borrower hereby expressly waives any such
notice or demand, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
SECTION 10.2 REMEDIES.
(a) Upon the occurrence of an Event of Default, all or
any one or more of the rights, powers, privileges and other remedies available
to Lender against Borrower under this Agreement or any of the other Loan
Documents executed and delivered by, or applicable to, Borrower or at law or in
equity may be exercised by Lender at any time and from time to time, whether or
not all or any of the Debt shall be declared due and payable, and whether or not
Lender shall have commenced any foreclosure proceeding or other action for the
enforcement of its rights and remedies under any of the Loan Documents with
respect to the Property. Any such actions taken by Lender shall be cumulative
and concurrent and may be pursued independently, singly, successively, together
or otherwise, at such time and in such order as Lender may determine in its sole
discretion, to the fullest extent permitted by law, without impairing or
otherwise affecting the other rights and remedies of Lender permitted by law,
equity or contract or as set forth herein or in the other Loan Documents.
Without limiting the generality of the foregoing, if an Event of Default is
continuing (i) Lender is not subject to any "one action" or "election of
remedies" law or rule, and (ii) all liens and other rights, remedies or
privileges provided to Lender shall remain in full force and effect until Lender
has exhausted all of its remedies against the Property and the Mortgage has been
foreclosed, sold and/or otherwise realized upon in satisfaction of the
Obligations or the Debt has been paid in full.
(b) Lender shall have the right from time to time to
partially foreclose the Mortgage in any manner and for any amounts secured by
the Mortgage then due and payable as determined by Lender in its sole discretion
including the following circumstances: (i) in the
March 31, 2003
-70-
event Borrower defaults beyond any applicable grace period in the payment of one
or more scheduled payments of principal and interest, Lender may foreclose the
Mortgage to recover such delinquent payments, or (ii) in the event Lender elects
to accelerate less than the entire outstanding principal balance of the Loan,
Lender may foreclose the Mortgage to recover so much of the principal balance of
the Loan as Lender may accelerate and such other sums secured by the Mortgage as
Lender may elect. Notwithstanding one or more partial foreclosures, the
remaining Property shall remain subject to the Mortgage to secure payment of
sums secured by the Mortgage and not previously recovered.
(c) Lender shall have the right from time to time to
sever the Note and the other Loan Documents into one or more separate notes,
mortgages and other security documents (the "Severed Loan Documents") in such
denominations as Lender shall determine in its sole discretion for purposes of
evidencing and enforcing its rights and remedies provided hereunder. Borrower
shall execute and deliver to Lender from time to time, promptly after the
request of Lender, a severance agreement and such other documents as Lender
shall request in order to effect the severance described in the preceding
sentence, all in form and substance reasonably satisfactory to Lender. Borrower
hereby absolutely and irrevocably appoints Lender as its true and lawful
attorney, coupled with an interest, in its name and stead to make and execute
all documents necessary or desirable to effect the aforesaid severance, Borrower
ratifying all that its said attorney shall do by virtue thereof; provided,
however, Lender shall not make or execute any such documents under such power
until three (3) days after notice has been given to Borrower by Lender of
Lender's intent to exercise its rights under such power. Except as may be
required in connection with a Securitization pursuant to Section 9.1 hereof, (i)
Borrower shall not be obligated to pay any costs or expenses incurred in
connection with the preparation, execution, recording or filing of the Severed
Loan Documents, and (ii) the Severed Loan Documents shall not contain any
representations, warranties or covenants not contained in the Loan Documents and
any such representations and warranties contained in the Severed Loan Documents
will be given by Borrower only as of the Closing Date.
(d) Any amounts recovered from the Property or any other
collateral for the Loan after an Event of Default may be applied by Lender
toward the payment of any interest and/or principal of the Loan and/or any other
amounts due under the Loan Documents in such order, priority and proportions as
Lender in its sole discretion shall determine.
SECTION 10.3 LENDER'S RIGHT TO PERFORM.
If Borrower fails to perform any covenant or obligation
contained herein and such failure shall continue for a period of five Business
Days after Borrower's receipt of written notice thereof from Lender, without in
any way limiting Lender's right to exercise any of its rights, powers or
remedies as provided hereunder, or under any of the other Loan Documents, Lender
may, but shall have no obligation to, perform, or cause performance of, such
covenant or obligation, and all costs, expenses, liabilities, penalties and
fines of Lender incurred or paid in connection therewith shall be payable by
Borrower to Lender upon demand and if not paid shall be added to the Debt (and
to the extent permitted under applicable laws, secured by the Mortgage and other
Loan Documents) and shall bear interest thereafter at the Default Rate.
Notwithstanding the foregoing, Lender shall have no obligation to send notice to
Borrower of any such failure.
March 31, 2003
-71-
SECTION 10.4 REMEDIES CUMULATIVE.
The rights, powers and remedies of Lender under this Agreement
shall be cumulative and not exclusive of any other right, power or remedy which
Lender may have against Borrower pursuant to this Agreement or the other Loan
Documents, or existing at law or in equity or otherwise. Lender's rights, powers
and remedies may be pursued singly, concurrently or otherwise, at such time and
in such order as Lender may determine in Lender's sole discretion. No delay or
omission to exercise any remedy, right or power accruing upon an Event of
Default shall impair any such remedy, right or power or shall be construed as a
waiver thereof, but any such remedy, right or power may be exercised from time
to time and as often as may be deemed expedient. A waiver of one Default or
Event of Default with respect to Borrower shall not be construed to be a waiver
of any subsequent Default or Event of Default by Borrower or to impair any
remedy, right or power consequent thereon.
XI. MISCELLANEOUS
SECTION 11.1 SUCCESSORS AND ASSIGNS.
All covenants, promises and agreements in this Agreement, by
or on behalf of Borrower, shall inure to the benefit of the legal
representatives, successors and assigns of Lender.
SECTION 11.2 LENDER'S DISCRETION.
Whenever pursuant to this Agreement Lender exercises any right
given to it to approve or disapprove, or any arrangement or term is to be
satisfactory to Lender, the decision of Lender to approve or disapprove or to
decide whether arrangements or terms are satisfactory or not satisfactory shall
(except as is otherwise specifically herein provided) be in the sole discretion
of Lender and shall be final and conclusive. Prior to a Securitization, whenever
pursuant to this Agreement the Rating Agencies are given any right to approve or
disapprove, or any arrangement or term is to be satisfactory to the Rating
Agencies, the decision of Lender to approve or disapprove or to decide whether
arrangements or terms are satisfactory or not satisfactory, based upon Lender's
determination of Rating Agency criteria, shall be substituted therefore.
SECTION 11.3 GOVERNING LAW.
(A) THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW
YORK, AND MADE BY LENDER AND ACCEPTED BY BORROWER IN THE STATE OF NEW YORK, AND
THE PROCEEDS OF THE NOTE DELIVERED PURSUANT HERETO WERE DISBURSED FROM THE STATE
OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE
PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS,
INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
March 31, 2003
-72-
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT LAWS) AND ANY
APPLICABLE LAW OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE
PROVISIONS FOR THE CREATION, PERFECTION, AND ENFORCEMENT OF THE LIEN AND
SECURITY INTEREST CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN
DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAW OF THE STATE
IN WHICH THE PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE FULLEST
EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW YORK
SHALL GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS
AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. TO THE FULLEST
EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES
ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS
AGREEMENT AND THE NOTE, AND THIS AGREEMENT AND THE NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER
OR BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY AT LENDER'S OPTION
BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN XXX XXXX XX XXX XXXX, XXXXXX XX
XXX XXXX, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND
BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE
AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER
HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY SUCH COURT IN
ANY SUIT, ACTION OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:
CORPORATION SERVICE COMPANY_
0000 XXXXXX XX XXX XXXXXXXX
00XX XXXXX
XXX XXXX, XXX XXXX 00000
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY
AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN
EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER, IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT
NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II)
MAY
March 31, 2003
-73-
AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH
AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL
PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN
OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
SECTION 11.4 MODIFICATION, WAIVER IN WRITING.
No modification, amendment, extension, discharge, termination
or waiver of any provision of this Agreement or of any other Loan Document, nor
consent to any departure by Borrower therefrom, shall in any event be effective
unless the same shall be in a writing signed by the party against whom
enforcement is sought, and then such waiver or consent shall be effective only
in the specific instance, and for the purpose, for which given. Except as
otherwise expressly provided herein, no notice to, or demand on Borrower, shall
entitle Borrower to any other or future notice or demand in the same, similar or
other circumstances.
SECTION 11.5 DELAY NOT A WAIVER.
Neither any failure nor any delay on the part of Lender in
insisting upon strict performance of any term, condition, covenant or agreement,
or exercising any right, power, remedy or privilege hereunder, or under any
other Loan Document, shall operate as or constitute a waiver thereof, nor shall
a single or partial exercise thereof preclude any other future exercise, or the
exercise of any other right, power, remedy or privilege. In particular, and not
by way of limitation, by accepting payment after the due date of any amount
payable under this Agreement or any other Loan Document, Lender shall not be
deemed to have waived any right either to require prompt payment when due of all
other amounts due under this Agreement or the other Loan Documents, or to
declare a default for failure to effect prompt payment of any such other amount.
Lender shall have the right to waive or reduce any time periods that Lender is
entitled to under the Loan Documents in its sole and absolute discretion.
SECTION 11.6 NOTICES.
All notices, demands, requests, consents, approvals or other
communications (any of the foregoing, a "Notice") required, permitted, or
desired to be given hereunder shall be in writing sent by telefax (with answer
back acknowledged) or by registered or certified mail, postage prepaid, return
receipt requested, or delivered by hand or reputable overnight courier addressed
to the party to be so notified at its address hereinafter set forth, or to such
other address as such party may hereafter specify in accordance with the
provisions of this Section 11.6. Any Notice shall be deemed to have been
received: (a) three (3) days after the date such Notice is mailed, (b) on the
date of sending by telefax if sent during business hours on a Business Day
(otherwise on the next Business Day), (c) on the date of delivery by hand if
delivered during business hours on a Business Day (otherwise on the next
Business Day), and (d) on the next Business Day if sent by an overnight
commercial courier, in each case addressed to the parties as follows:
March 31, 2003
-74-
If to Lender: UBS Warburg Real Estate Investments Inc.
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile No. (000) 000-0000
with a copy to: Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq.
Facsimile No. (000) 000-0000
If to Borrower: c/o Glimcher Properties Limited Partnership
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile No. (000) 000-0000
with a copy to: Xxxxx Xxxxx Xxxx LLC
00 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxxx, Esq.
Facsimile No. (000) 000-0000
SECTION 11.7 NO TRIAL BY JURY.
BORROWER AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY
JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY
JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH
REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING
IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN
KNOWINGLY AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. EACH PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF
THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER.
SECTION 11.8 HEADINGS.
The Article and/or Section headings and the Table of Contents
in this Agreement are included herein for convenience of reference only and
shall not constitute a part of this Agreement for any other purpose.
March 31, 2003
-75-
SECTION 11.9 SEVERABILITY.
Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
SECTION 11.10 PREFERENCES.
Lender shall have the continuing and exclusive right to apply
or reverse and reapply any and all payments by Borrower to any portion of the
obligations of Borrower hereunder. To the extent Borrower makes a payment or
payments to Lender, which payment or proceeds or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds received, the obligations hereunder or
part thereof intended to be satisfied shall be revived and continue in full
force and effect, as if such payment or proceeds had not been received by
Lender.
SECTION 11.11 WAIVER OF NOTICE.
Borrower shall not be entitled to any notices of any nature
whatsoever from Lender except with respect to matters for which this Agreement
or the other Loan Documents specifically and expressly provide for the giving of
notice by Lender to Borrower and except with respect to matters for which
Borrower is not, pursuant to applicable Legal Requirements, permitted to waive
the giving of notice. Borrower hereby expressly waives the right to receive any
notice from Lender with respect to any matter for which this Agreement or the
other Loan Documents do not specifically and expressly provide for the giving of
notice by Lender to Borrower.
SECTION 11.12 REMEDIES OF BORROWER.
In the event that a claim or adjudication is made that Lender
or its agents have acted unreasonably or unreasonably delayed acting in any case
where, by law or under this Agreement or the other Loan Documents, Lender or
such agent, as the case may be, has an obligation to act reasonably or promptly,
neither Lender nor its agents shall be liable for any monetary damages, and
Borrower's sole remedy shall be limited to commencing an action seeking
injunctive relief or declaratory judgment. Any action or proceeding to determine
whether Lender has acted reasonably shall be determined by an action seeking
declaratory judgment.
SECTION 11.13 EXPENSES; INDEMNITY.
(a) Borrower shall pay or, if Borrower fails to pay,
reimburse Lender upon receipt of notice from Lender, for all reasonable
out-of-pocket costs and expenses (including reasonable attorneys' fees and
disbursements) incurred by Lender in connection with (i) Borrower's ongoing
performance of and compliance with Borrower's agreements and covenants
March 31, 2003
-76-
contained in this Agreement and the other Loan Documents on its part to be
performed or complied with after the Closing Date, including confirming
compliance with environmental and insurance requirements; (ii) Lender's ongoing
performance of and compliance only with Sections 2.4, 2.5, 5.3, 8.1 and 8.2 and
as otherwise expressly set forth in this Agreement and, after an Event of
Default, Lender's ongoing performance of and compliance with all other
agreements and covenants contained in this Agreement and the other Loan
Documents on its part to be performed or complied with after the Closing Date;
(iii) the negotiation, preparation, execution, delivery and administration of
any consents, amendments, waivers or other modifications to this Agreement and
the other Loan Documents and any other documents or matters requested by
Borrower; (iv) the filing and recording fees and expenses, title insurance and
reasonable fees and expenses of counsel for providing to Lender all required
legal opinions, and other similar expenses incurred, in creating and perfecting
the Liens in favor of Lender pursuant to this Agreement and the other Loan
Documents; (v) enforcing or preserving any rights, in response to third party
claims or the prosecuting or defending of any action or proceeding or other
litigation, in each case against, under or affecting Borrower, this Agreement,
the other Loan Documents, the Property, or any other security given for the
Loan; and (vi) enforcing any obligations of or collecting any payments due from
Borrower under this Agreement, the other Loan Documents or with respect to the
Property or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or of
any insolvency or bankruptcy proceedings; provided, however, that Borrower shall
not be liable for the payment of any such costs and expenses to the extent the
same arise by reason of the gross negligence, illegal acts, fraud or willful
misconduct of Lender. Any costs due and payable to Lender may be paid from any
amounts in the Deposit Account. Notwithstanding the foregoing, in no event shall
Borrower be required to reimburse Lender for any cost or expense incurred in
connection with a Secondary Market Transaction.
(b) Borrower shall indemnify, defend and hold harmless
Lender from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, expenses and disbursements
of any kind or nature whatsoever (including the reasonable fees and
disbursements of counsel for Lender in connection with any investigative,
administrative or judicial proceeding commenced or threatened, whether or not
Lender shall be designated a party thereto), that may be imposed on, incurred
by, or asserted against Lender in any manner relating to or arising out of (i)
any breach by Borrower of its obligations under, or any material
misrepresentation by Borrower contained in, this Agreement or the other Loan
Documents, (ii) the use or intended use of the proceeds of the Loan, (iii) any
information provided by or on behalf of Borrower, or contained in any
documentation approved by Borrower; (iv) ownership of the Mortgage, the Property
or any interest therein, or receipt of any Rents; (v) any accident, injury to or
death of persons or loss of or damage to property occurring in, on or about the
Property or on the adjoining sidewalks, curbs, adjacent property or adjacent
parking areas, streets or ways; (vi) any use, nonuse or condition in, on or
about the Property or on adjoining sidewalks, curbs, adjacent property or
adjacent parking areas, streets or ways; (vii) performance of any labor or
services or the furnishing of any materials or other property in respect of the
Property; (viii) any failure of the Property to comply with any Legal
Requirement; (ix) any claim by brokers, finders or similar persons claiming to
be entitled to a commission in connection with any Lease or other transaction
involving the Property or any part thereof, or any liability asserted against
Lender with respect thereto; and (x) the claims of any lessee of any portion of
the Property or any Person acting through or under any lessee or otherwise
arising
March 31, 2003
-77-
under or as a consequence of any Lease; (collectively, the "Indemnified
Liabilities"); provided, however, that Borrower shall not have any obligation to
Lender hereunder to the extent that such Indemnified Liabilities arise from the
gross negligence, illegal acts, fraud or willful misconduct of Lender. To the
extent that the undertaking to indemnify, defend and hold harmless set forth in
the preceding sentence may be unenforceable because it violates any law or
public policy, Borrower shall pay the maximum portion that it is permitted to
pay and satisfy under applicable law to the payment and satisfaction of all
Indemnified Liabilities incurred by Lender.
SECTION 11.14 SCHEDULES INCORPORATED.
The Schedules annexed hereto are hereby incorporated herein as
a part of this Agreement with the same effect as if set forth in the body
hereof.
SECTION 11.15 OFFSETS, COUNTERCLAIMS AND DEFENSES.
Any assignee of Lender's interest in and to this Agreement and
the other Loan Documents shall take the same free and clear of all offsets,
counterclaims or defenses which are unrelated to such documents which Borrower
may otherwise have against any assignor of such documents, and no such unrelated
counterclaim or defense shall be interposed or asserted by Borrower in any
action or proceeding brought by any such assignee upon such documents and any
such right to interpose or assert any such unrelated offset, counterclaim or
defense in any such action or proceeding is hereby expressly waived by Borrower.
SECTION 11.16 NO JOINT VENTURE OR PARTNERSHIP; NO THIRD PARTY
BENEFICIARIES.
(a) Borrower and Lender intend that the relationships
created hereunder and under the other Loan Documents be solely that of borrower
and lender. Nothing herein or therein is intended to create a joint venture,
partnership, tenancy-in-common, or joint tenancy relationship between Borrower
and Lender nor to grant Lender any interest in the Property other than that of
mortgagee, beneficiary or lender.
(b) This Agreement and the other Loan Documents are
solely for the benefit of Lender and nothing contained in this Agreement or the
other Loan Documents shall be deemed to confer upon anyone other than Lender any
right to insist upon or to enforce the performance or observance of any of the
obligations contained herein or therein. All conditions to the obligations of
Lender to make the Loan hereunder are imposed solely and exclusively for the
benefit of Lender and no other Person shall have standing to require
satisfaction of such conditions in accordance with their terms or be entitled to
assume that Lender will refuse to make the Loan in the absence of strict
compliance with any or all thereof and no other Person shall under any
circumstances be deemed to be a beneficiary of such conditions, any or all of
which may be freely waived in whole or in part by Lender if, in Lender's sole
discretion, Lender deems it advisable or desirable to do so.
SECTION 11.17 PUBLICITY.
All news releases, publicity or advertising by Borrower or its
Affiliates through any media intended to reach the general public which refers
to the Loan Documents or the
March 31, 2003
-78-
financing evidenced by the Loan Documents, to Lender, UBS or any of their
Affiliates shall be disclosed to Lender for informational purposes only prior to
publication.
SECTION 11.18 WAIVER OF MARSHALLING OF ASSETS.
To the fullest extent permitted by law, Borrower, for itself
and its successors and assigns, waives all rights to a marshalling of the assets
of Borrower, Borrower's partners and others with interests in Borrower, and of
the Property, and shall not assert any right under any laws pertaining to the
marshalling of assets, the sale in inverse order of alienation, homestead
exemption, the administration of estates of decedents, or any other matters
whatsoever to defeat, reduce or affect the right of Lender under the Loan
Documents to a sale of the Property for the collection of the Debt without any
prior or different resort for collection or of the right of Lender to the
payment of the Debt out of the net proceeds of the Property in preference to
every other claimant whatsoever.
SECTION 11.19 WAIVER OF OFFSETS/DEFENSES/COUNTERCLAIMS.
Borrower hereby waives the right to assert a counterclaim,
other than a compulsory counterclaim, in any action or proceeding brought
against it by Lender or its agents or otherwise to offset any obligations to
make the payments required by the Loan Documents. No failure by Lender to
perform any of its obligations hereunder shall be a valid defense to, or result
in any offset against, any payments which Borrower is obligated to make under
any of the Loan Documents.
SECTION 11.20 CONFLICT; CONSTRUCTION OF DOCUMENTS; RELIANCE.
In the event of any conflict between the provisions of this
Agreement and any of the other Loan Documents, the provisions of this Agreement
shall control. The parties hereto acknowledge that they were represented by
competent counsel in connection with the negotiation, drafting and execution of
the Loan Documents and that such Loan Documents shall not be subject to the
principle of construing their meaning against the party which drafted same.
Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely
on its own judgment and advisors in entering into the Loan without relying in
any manner on any statements, representations or recommendations of Lender or
any parent, subsidiary or Affiliate of Lender. Lender shall not be subject to
any limitation whatsoever in the exercise of any rights or remedies available to
it under any of the Loan Documents or any other agreements or instruments which
govern the Loan by virtue of the ownership by it or any parent, subsidiary or
Affiliate of Lender of any equity interest any of them may acquire in Borrower,
and Borrower hereby irrevocably waives the right to raise any defense or take
any action on the basis of the foregoing with respect to Lender's exercise of
any such rights or remedies. Borrower acknowledges that Lender engages in the
business of real estate financings and other real estate transactions and
investments which may be viewed as adverse to or competitive with the business
of Borrower or its Affiliates.
SECTION 11.21 BROKERS AND FINANCIAL ADVISORS.
Borrower hereby represents that it has dealt with no financial
advisors, brokers, underwriters, placement agents, agents or finders in
connection with the transactions
March 31, 2003
-79-
contemplated by this Agreement. Borrower shall indemnify, defend and hold Lender
harmless from and against any and all claims, liabilities, costs and expenses of
any kind (including Lender's attorneys' fees and expenses) in any way relating
to or arising from a claim by any Person that such Person acted on behalf of
Borrower or Lender in connection with the transactions contemplated herein. The
provisions of this Section 11.21 shall survive the expiration and termination of
this Agreement and the payment of the Debt.
SECTION 11.22 EXCULPATION.
Subject to the qualifications below, Lender shall not enforce
the liability and obligation of Borrower to perform and observe the Obligations
contained in the Note, this Agreement, the Mortgage or the other Loan Documents
by any action or proceeding wherein a money judgment shall be sought against
Borrower, except that Lender may bring a foreclosure action, an action for
specific performance or any other appropriate action or proceeding to enable
Lender to enforce and realize upon its interest under the Note, this Agreement,
the Mortgage and the other Loan Documents, or in the Property, the Gross
Revenues, or any other collateral given to Lender pursuant to the Loan
Documents; provided, however, that, except as specifically provided herein, any
judgment in any such action or proceeding shall be enforceable against Borrower
only to the extent of Borrower's interest in the Property, in the Gross Revenues
and in any other collateral given to Lender, and Lender, by accepting the Note,
this Agreement, the Mortgage and the other Loan Documents, shall not xxx for,
seek or demand any deficiency judgment against Borrower in any such action or
proceeding under or by reason of or under or in connection with the Note, this
Agreement, the Mortgage or the other Loan Documents. The provisions of this
Section shall not, however, (a) constitute a waiver, release or impairment of
any obligation evidenced or secured by any of the Loan Documents; (b) impair the
right of Lender to name Borrower as a party defendant in any action or suit for
foreclosure and sale under the Mortgage; (c) affect the validity or
enforceability of any of the Loan Documents or any guaranty made in connection
with the Loan or any of the rights and remedies of Lender thereunder; (d) impair
the right of Lender to obtain the appointment of a receiver; (e) impair the
enforcement of the Assignment of Leases; (f) constitute a prohibition against
Lender to seek a deficiency judgment against Borrower in order to fully realize
the security granted by the Mortgage or to commence any other appropriate action
or proceeding in order for Lender to exercise its remedies against the Property;
or (g) constitute a waiver of the right of Lender to enforce the liability and
obligation of Borrower, by money judgment or otherwise, to the extent of any
loss, damage, cost, expense, liability, claim or other obligation incurred by
Lender (including attorneys' fees and costs reasonably incurred) arising out of
or in connection with the following (all such liability and obligation of
Borrower for any or all of the following events described in clauses (i) through
(viii) below being referred to herein as "Borrower's Recourse Liabilities"):
(i) fraud or the intentional misrepresentation
or willful misconduct by or on behalf of Borrower or Guarantor or any
of their agents or representatives in connection with the Loan ;
(ii) the breach of any representation, warranty,
covenant or indemnification provision in the Environmental Indemnity or
in any other Loan
March 31, 2003
-80-
Document concerning environmental laws, hazardous substances and/or
asbestos and any indemnification of Lender with respect thereto in
either document;
(iii) wrongful removal or destruction of any
portion of the Property after an Event of Default which adversely
affects the value of the Property;
(iv) the misapplication or conversion by Borrower
of (A) any insurance proceeds paid by reason of any loss, damage or
destruction to the Property, (B) any Awards or other amounts received
in connection with the Condemnation of all or a portion of the
Property, or (C) any Gross Revenues (including Rents, security
deposits, advance deposits or any other deposits and Lease Termination
Payments);
(v) failure to pay charges for labor or
materials or other charges that can create Liens on any portion of the
Property, to the extent such Liens are not bonded over or discharged in
accordance with Section 3.6 of the Mortgage;
(vi) any security deposits, advance deposits or
any other deposits collected with respect to the Property which are not
delivered to Lender upon a foreclosure or a deed-in-lieu of foreclosure
except to the extent such deposits were applied in accordance with the
terms of the applicable Lease;
(vii) the failure to pay Taxes if the Property
generates sufficient Gross Revenue to pay such Taxes;
(viii) the failure to obtain and maintain the fully
paid for Policies in accordance with Section 5.1.1 hereof;
(ix) Borrower's indemnification of Lender set
forth in Section 9.2 hereof;
(x) the failure to pay the first full monthly
payment of principal and interest under the Note when due;
(xi) the failure to (1) permit on-site
inspections of the Property, provide financial information, (2) to
maintain its status as a single purpose entity or (3) to appoint a new
property manager upon the request of Lender after an Event of Default,
each as required by, and in accordance with the terms and provisions
of, this Agreement and the Mortgage;
(xii) the failure to obtain Lender's prior consent
to any subordinate financing or other voluntary Lien encumbering the
Property;
(xiii) the failure to obtain Lender's prior consent
to (1) any Transfer of the Property or any interest therein or (2) any
Transfer of any direct or indirect interest in Borrower (other than a
Permitted Transfer);
(xiv) an order for relief is entered with respect
to Borrower under the Bankruptcy Code through the actions of Borrower
or any of its affiliates at a time when
March 31, 2003
-81-
the Borrower is able to pay its debts as they become due unless
Borrower and Guarantor shall have received an opinion of independent
counsel that Sole Member has a fiduciary duty to seek such an order for
relief;
(xv) an Affiliate, officer, director, or
representative which controls, directly or indirectly, Borrower files,
or joins in the filing of, an involuntary petition against Borrower
under the Bankruptcy Code or any other Federal or state bankruptcy or
insolvency law, or solicits or causes to be solicited petitioning
creditors for any involuntary petition against Borrower from any
Person;
(xvi) the filing by Borrower of an answer
consenting to or otherwise acquiescing in or joining in any involuntary
petition filed against it, by any other Person under the Bankruptcy
Code or any other Federal or state bankruptcy or insolvency law, or
solicits or causes to be solicited petitioning creditors for any
involuntary petition from any Person;
(xvii) any Affiliate, officer, director, or
representative which controls Borrower consents to or acquiesces in or
joins in an application for the appointment of a custodian, receiver,
trustee, or examiner for Borrower or any portion of the Property;
(xviii) Borrower makes an assignment for the benefit
of creditors, or admits, in writing or in any legal proceeding, its
insolvency or inability to pay its debts as they become due, or
(xix) Borrower raises any defense, counterclaim
and/or allegation in any enforcement action by Lender found by a court
not to have been raised by Borrower in good faith or is found by a
court to be wholly without basis in fact or law.
SECTION 11.23 PRIOR AGREEMENTS.
This Agreement and the other Loan Documents contain the entire
agreement of the parties hereto and thereto in respect of the transactions
contemplated hereby and thereby, and all prior agreements among or between such
parties, whether oral or written, including the Application Letter dated
February 21, 2003 (as amended) between Borrower and Lender, are superseded by
the terms of this Agreement and the other Loan Documents.
SECTION 11.24 SERVICER.
At the option of Lender, the Loan may be serviced by a
servicer (the "Servicer") selected by Lender and Lender may delegate all or any
portion of its responsibilities under this Agreement and the other Loan
Documents to the Servicer pursuant to a servicing agreement (the "Servicing
Agreement") between Lender and Servicer. Borrower shall be responsible for any
reasonable set-up fees or any other initial costs relating to or arising under
the Servicing Agreement; provided, however, that Borrower shall not be
responsible for payment of the monthly servicing fee due to the Servicer under
the Servicing Agreement.
March 31, 2003
-82-
SECTION 11.25 JOINT AND SEVERAL LIABILITY.
If more than one Person has executed this Agreement as
"Borrower," the representations, covenants, warranties and obligations of all
such Persons hereunder shall be joint and several.
SECTION 11.26 CREATION OF SECURITY INTEREST.
Notwithstanding any other provision set forth in this
Agreement, the Note, the Mortgage or any of the other Loan Documents, Lender may
at any time create a security interest in all or any portion of its rights under
this Agreement, the Note, the Mortgage and any other Loan Document (including
the advances owing to it) in favor of any Federal Reserve Bank in accordance
with Regulation A of the Board of Governors of the Federal Reserve System.
SECTION 11.27 ASSIGNMENTS AND PARTICIPATIONS.
(a) The Lender may assign to one or more Persons all or a
portion of its rights and obligations under this Loan Agreement.
(b) Upon such execution and delivery, from and after the
effective date specified in such Assignment and Acceptance, the assignee
thereunder shall be a party hereto and have the rights and obligations of Lender
hereunder.
(c) Lender may sell participations to one or more Persons
in or to all or a portion of its rights and obligations under this Loan
Agreement; provided, however, that (i) Lender's obligations under this Loan
Agreement shall remain unchanged, (ii) Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, (ii) Lender
shall remain the holder of any Note for all purposes of this Loan Agreement and
(iv) Borrower shall continue to deal solely and directly with Lender in
connection with Lender's rights and obligations under and in respect of this
Loan Agreement and the other Loan Documents.
Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 11.27, disclose
to the assignee or participant or proposed assignee or participant, as the case
may be, any information relating to Borrower or any of its Affiliates or to any
aspect of the Loan that has been furnished to the Lender by or on behalf of the
Borrower or any of its Affiliates.
SECTION 11.28 COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
SECTION 11.29 SET-OFF.
IN ADDITION TO ANY RIGHTS AND REMEDIES OF LENDER PROVIDED BY
THIS LOAN AGREEMENT AND BY LAW, LENDER SHALL HAVE THE RIGHT, WITHOUT PRIOR
NOTICE TO BORROWER, ANY
March 31, 2003
-83-
SUCH NOTICE BEING EXPRESSLY WAIVED BY BORROWER TO THE EXTENT PERMITTED BY
APPLICABLE LAW, UPON ANY AMOUNT BECOMING DUE AND PAYABLE BY BORROWER HEREUNDER
(WHETHER AT THE STATED MATURITY, BY ACCELERATION OR OTHERWISE) TO SET-OFF AND
APPROPRIATE AND APPLY AGAINST SUCH AMOUNT ANY AND ALL DEPOSITS (GENERAL OR
SPECIAL, TIME OR DEMAND, PROVISIONAL OR FINAL), IN ANY CURRENCY, AND ANY OTHER
CREDITS, INDEBTEDNESS OR CLAIMS, IN ANY CURRENCY, IN EACH CASE WHETHER DIRECT OR
INDIRECT, ABSOLUTE OR CONTINGENT, MATURED OR UNMATURED, AT ANY TIME HELD OR
OWING BY LENDER OR ANY AFFILIATE THEREOF TO OR FOR THE CREDIT OR THE ACCOUNT OF
BORROWER. LENDER AGREES PROMPTLY TO NOTIFY BORROWER AFTER ANY SUCH SET-OFF AND
APPLICATION MADE BY LENDER; PROVIDED THAT THE FAILURE TO GIVE SUCH NOTICE SHALL
NOT AFFECT THE VALIDITY OF SUCH SET-OFF AND APPLICATION.
[NO FURTHER TEXT ON THIS PAGE]
March 31, 2003
-84-
IN WITNESS WHEREOF, the parties hereto have caused this Loan
Agreement to be duly executed by their duly authorized representatives, all as
of the day and year first above written.
LENDER:
UBS WARBURG REAL ESTATE INVESTMENTS INC.,
a Delaware corporation
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
BORROWER:
PFP COLUMBUS, LLC, a Delaware limited
liability company
By: Polaris Mall, LLC, a Delaware limited
liability company, its Manager
By: Glimcher Properties Limited
Partnership, a Delaware limited
partnership, its Manager
By: Glimcher Properties
Corporation, a Delaware
corporation, its Sole General
Partner
By: ____________________________
Xxxxxx X. Xxxxxxx,
Executive Vice President
March 31, 2003
SCHEDULE I
RENT ROLL
March 31, 2003
SCHEDULE II
INTENTIONALLY DELETED
March 31, 2003
SCHEDULE III
ORGANIZATIONAL CHART
March 31, 2003
SCHEDULE IV
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
March 31, 2003
SCHEDULE V
SPECIAL PURPOSE BANKRUPTCY REMOTE COVENANTS
(a) Borrower does not own and will not own any asset or
property other than (i) the Property (except in connection with a Defeasance
Event), and (ii) incidental personal property necessary for the ownership or
operation of the Property.
(b) Borrower has not engaged and will not engage in any
business other than the ownership, management and operation of the Property and
Borrower will conduct and operate its business as presently conducted and
operated.
(c) Borrower has not and will not enter into any contract
or agreement with any Affiliate of Borrower, any constituent party of Borrower
or any Affiliate of any constituent party, except upon terms and conditions that
are intrinsically fair and substantially similar to those that would be
available on an arms-length basis with third parties other than any such party.
(d) Borrower has not incurred and will not incur any
Indebtedness other than (i) the Debt and (ii) unsecured trade payables and
operational debt incurred in the ordinary course of business relating to the
ownership and operation of the Property (including equipment leases which proved
for lease payments which do not exceed $500,000 in the aggregate per annum)
which (A) is not evidenced by a note. (B) do not exceed (in the aggregate), at
any time, a maximum amount of $1,000,000 in the aggregate and (C) are paid
within 120 days of the date incurred (collectively, "Permitted Indebtedness").
No Indebtedness other than the Debt may be secured (subordinate or pari passu)
by the Property.
(e) Borrower has not made and will not make any loans or
advances to any third party (including any Affiliate or constituent party), and
has not and shall not acquire obligations or securities of its Affiliates.
(f) Borrower is and will remain solvent and Borrower will
pay its debts and liabilities (including, as applicable, shared personnel and
overhead expenses) from its assets as the same shall become due.
(g) Borrower has done or caused to be done and will do
all things necessary to observe organizational formalities and preserve its
existence, and Borrower will not (i) terminate or fail to comply with the
provisions of its organizational documents or (ii) unless (A) Lender has
consented and (B) following a Securitization of the Loan, the applicable Rating
Agencies have issued a Rating Agency Confirmation, amend, modify or otherwise
change its operating agreement, or other organizational documents.
(h) Borrower has maintained and will maintain all of its
books, records, financial statements and bank accounts separate from those of
its Affiliates and any other Person. Borrower's assets will not be listed as
assets on the financial statement of any other Person, provided, however, that
Borrower's assets may be included in a consolidated financial statement of its
Affiliates provided that (i) appropriate notation shall be made on such
consolidated financial statements to indicate the separateness of Borrower and
such Affiliates and to indicate that Borrower's assets and credit are not
available to satisfy the debts and other obligations of
March 31, 2003
such Affiliates or any other Person and (ii) such assets shall be listed on
Borrower's own separate balance sheet. Borrower has maintained and shall
maintain its books, records, resolutions and agreements as official records.
(i) Borrower will be, and at all times will hold itself
out to the public as, a legal entity separate and distinct from any other entity
(including any Affiliate of Borrower or any constituent party of Borrower),
shall correct any known misunderstanding regarding its status as a separate
entity, shall conduct business in its own name, shall not identify itself or any
of its Affiliates as a division or part of the other and shall maintain and
utilize separate stationery, invoices and checks bearing its own name.
(j) Borrower has maintained and will maintain adequate
capital for the normal obligations reasonably foreseeable in a business of its
size and character and in light of its contemplated business operations.
(k) Neither Borrower nor any constituent party will seek
or effect the liquidation, dissolution, winding up, consolidation, asset sale,
or merger, in whole or in part, of Borrower.
(l) Borrower has not and will not commingle the funds and
other assets of Borrower with those of any Affiliate or constituent party or any
other Person, and has held and will hold all of its assets in its own name.
(m) Borrower has and will maintain its assets in such a
manner that it will not be costly or difficult to segregate, ascertain or
identify its individual assets from those of any Affiliate or constituent party
or any other Person.
(n) Borrower has not and will not assume or guarantee or
become obligated for the debts of any other Person and does not and will not
hold itself out to be responsible for or have its credit available to satisfy
the debts or obligations of any other Person.
(o) The organizational documents of Borrower shall
provide that the business and affairs of Borrower shall be managed by or under
the direction of a manager designated by Sole Member (the "Manager"). At all
times while any portion of the Debt remains outstanding, there shall be at least
one duly appointed individual to serve as an independent manager of Borrower
(the "Independent Manager"), which shall be appointed by Sole Member and be
reasonably satisfactory to Lender. The Independent Manager shall not have been
at the time of such individual's appointment or at any time (except pursuant to
an express provision in Borrower's operating agreement providing for the
appointment of such Independent Manager to become a "special member" upon Sole
Member ceasing to be a member of Borrower) while serving as an Independent
Manager, and may not have been at any time during the preceding five years (i) a
stockholder, director (other than as an Independent Manager), officer, employee,
partner, attorney or counsel of Borrower or its Affiliates, (ii) a customer,
supplier or other Person who derives a significant portion of its purchases or
revenues from its activities with Borrower or its Affiliates, (iii) a Person or
other entity controlling or under common control with any Person described in
(i) or (ii) above, or (iv) a member of the immediate family of any Person
described in (i), (ii) or (iii) above. As used in this definition, the term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management, policies or
March 31, 2003
activities of such Person, whether through ownership of voting securities, by
contract or otherwise.
(p) The organizational documents of Borrower shall
provide that the Manager of Borrower shall not take any action which, under the
terms of any certificate of formation, limited liability company operating
agreement or any voting trust agreement, would be considered a Material Action
(as defined in the Borrower's Operating Agreement) unless at the time of such
action there shall be at least one Independent Manager (and such Independent
Manager has participated in such vote). Borrower will not, without the written
consent of the Independent Manager, (i) file or consent to the filing of any
petition, either voluntary or involuntary, to take advantage of any applicable
insolvency, bankruptcy, liquidation or reorganization statute, (ii) seek or
consent to the appointment of a receiver, liquidator or any similar official,
(iii) take any action that might cause such entity to become insolvent, or (iv)
make an assignment for the benefit of creditors.
(q) The organizational documents of Borrower shall
provide that, as long as any portion of the Debt remains outstanding, upon the
occurrence of any event that causes Sole Member to cease to be a member of
Borrower (other than (i) upon an assignment by Sole Member of all of its limited
liability company interest in Borrower and the admission of the transferee, if
permitted pursuant to the organizational documents of Borrower and the Loan
Documents, or (ii) the resignation of Sole Member and the admission of an
additional member of Borrower, if permitted pursuant to the organizational
documents of Borrower and the Loan Documents), the person acting as an
Independent Director of Borrower shall, without any action of any Person and
simultaneously with Sole Member ceasing to be a member of Borrower,
automatically be admitted as the sole member of Borrower (the "Special Member")
and shall preserve and continue the existence of Borrower without dissolution.
The organizational documents of Borrower shall further provide that for so long
as any portion of the Debt is outstanding, no Special Member may resign or
transfer its rights as Special Member unless (i) a successor Special Member has
been admitted to Borrower as a Special Member, and (ii) such successor Special
Member has also accepted its appointment as an Independent Director.
(r) The organizational documents of Borrower shall
provide that, as long as any portion of the Debt remains outstanding, except as
expressly permitted pursuant to the terms of this Agreement, (i) Sole Member may
not resign and (ii) no additional member shall be admitted to Borrower.
(s) The organizational documents of Borrower shall
provide that, as long as any portion of the Debt remains outstanding: (i) the
Borrower shall be dissolved, and its affairs shall be wound up only upon the
first to occur of the following: (A) the termination of the legal existence of
the last remaining member of Borrower or the occurrence of any other event which
terminates the continued membership of the last remaining member of Borrower in
Borrower unless the business of Borrower is continued in a manner permitted by
its operating agreement or the Delaware Limited Liability Company Act (the
"Act") or (B) the entry of a decree of judicial dissolution under Section 18-802
of the Act; (ii) upon the occurrence of any event that causes the last remaining
member of Borrower to cease to be a member of Borrower or that causes Sole
Member to cease to be a member of Borrower (other than (x) upon an assignment by
Sole Member of all of its limited liability company interest in Borrower and the
admission of the transferee, if permitted pursuant to the organizational
documents of Borrower and the Loan
March 31, 2003
Documents, or (y) the resignation of Sole Member and the admission of an
additional member of Borrower, if permitted pursuant to the organizational
documents of Borrower and the Loan Documents), to the fullest extent permitted
by law, the personal representative of such member shall be authorized to, and
shall, within 90 days after the occurrence of the event that terminated the
continued membership of such member in Borrower, agree in writing (A) to
continue the existence of Borrower and (B) to the admission of the personal
representative or its nominee or designee, as the case may be, as a substitute
member of Borrower, effective as of the occurrence of the event that terminated
the continued membership of such member in Borrower; (iii) the bankruptcy of
Sole Member or a Special Member shall not cause such member or Special Member,
respectively, to cease to be a member of Borrower and upon the occurrence of
such an event, the business of Borrower shall continue without dissolution; (iv)
in the event of dissolution of Borrower, Borrower shall conduct only such
activities as are necessary to wind up its affairs (including the sale of the
assets of Borrower in an orderly manner), and the assets of Borrower shall be
applied in the manner, and in the order of priority, set forth in Section 18-804
of the Act; and (v) to the fullest extent permitted by law, each of Sole Member
and the Special Members shall irrevocably waive any right or power that they
might have to cause Borrower or any of its assets to be partitioned, to cause
the appointment of a receiver for all or any portion of the assets of Borrower,
to compel any sale of all or any portion of the assets of Borrower pursuant to
any applicable law or to file a complaint or to institute any proceeding at law
or in equity to cause the dissolution, liquidation, winding up or termination of
Borrower.
(t) Borrower shall conduct its business so that the
assumptions made with respect to Borrower in the Insolvency Opinion shall be
true and correct in all respects. In connection with the foregoing, Borrower
hereby covenants and agrees that it will comply with or cause the compliance
with, (i) all of the facts and assumptions (whether regarding the Borrower or
any other Person) set forth in the Insolvency Opinion, (ii) all the
representations, warranties and covenants in this Schedule V, and (iii) all the
organizational documents of the Borrower.
(u) Borrower will not permit any Affiliate or constituent
party independent access to its bank accounts.
(v) Borrower has paid and shall pay the salaries of its
own employees (if any) from its own funds and maintain a sufficient number of
employees (if any) in light of its contemplated business operations.
(w) Borrower has compensated and shall compensate each of
its consultants and agents from its funds for services provided to it and pay
from its own assets all obligations of any kind incurred.
(x) Borrower has not, and without the unanimous consent
of all of its directors or members (including the Independent Manager), as
applicable, will not (i) file a bankruptcy, insolvency or reorganization
petition or otherwise institute insolvency proceedings or otherwise seek any
relief under any laws relating to the relief from debts or the protection of
debtors generally, (ii) seek or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator, custodian or any similar official
for such entity or for all or any portion of Borrower's properties, (iii) make
any assignment for the benefit of Borrower's creditors or (iv) take any action
that might cause Borrower to become insolvent.
March 31, 2003
(y) Borrower has maintained and will maintain an
arm's-length relationship with its Affiliates.
(z) Borrower has allocated and will allocate fairly and
reasonably shared expenses, including shared office space.
(aa) Except in connection with the Loan, Borrower has not
pledged and will not pledge its assets for the benefit of any other Person.
(bb) Borrower has and will have no obligation to indemnify
its officers, directors, members or Special Members, as the case may be, or has
such an obligation that is fully subordinated to the Debt and will not
constitute a claim against it if cash flow in excess of the amount required to
pay the Debt is insufficient to pay such obligation.
(cc) To the fullest extent permitted by law, including
Section 18-1101(c) of the Delaware Limited Liability Company Act, Borrower and
the Independent Manager will consider the interests of Borrower's creditors when
acting or otherwise voting on the matters referred to in Section 9(d)(iii) of
the Borrower's Operating Agreement.
March 31, 0000
XXXXXXXXXXXXXXX
XXXXX XX XXX XXXX )
:ss
COUNTY OF NEW YORK )
On the ___ day of __________________, in the year ___________, before
me, the undersigned, personally appeared ____________________________,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual(s) whose name(s) is (are) subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument
IN WITNESS WHEREOF, I hereunto set my hand and official seal
_______________________________
Notary Public
(NOTARIAL SEAL)
My Commission Expires:
March 31, 2003
SCHEDULE V
LIST OF TAX PARCELS
Principal Mall tract - Tax Parcel ID # 318-433-01-001-001
Out Parcel - 1.988 acres tract for TGI Fridays - Tax Parcel ID #
318-434-01-022-005
Out Parcel - 3.472 acres tract with buildings for, Pier I, Fidelity Investments,
Xando Cosi & Beauty First - Tax Parcel ID # 318-433-01-002-000
Out Parcel - 3.865 acres tract for Red Lobster & Olive Garden - Tax Parcel ID #
318-433-01-001-006
Out Parcel - 4358 acres tract for DSW - Tax Parcel ID # 318-433-01-001-005
March 31, 2003
EXHIBIT A
LEGAL DESCRIPTION
March 31, 2003
