Exhibit 10.324
Loan No. 10024998
LOAN AGREEMENT
Dated as of August 17, 2004
Between
INLAND WESTERN TALLAHASSEE GOVERNOR'S ONE, L.L.C.,
as Borrower
and
KEYBANK NATIONAL ASSOCIATION,
as Lender
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; PRINCIPLES OF CONSTRUCTION....................................1
Section 1.1 Definitions.........................................................1
Section 1.2 Principles of Construction.........................................19
ARTICLE II GENERAL TERMS............................................................19
Section 2.1 Loan Commitment; Disbursement to Borrower..........................19
Section 2.2 Interest; Loan Payments; Late Payment Charge.......................19
Section 2.3 Prepayments........................................................21
Section 2.4 Intentionally Omitted..............................................22
Section 2.5 Release of Property................................................22
Section 2.6 Manner of Making Payments..........................................22
Section 2.7 Amendment and Restatement..........................................23
ARTICLE III CONDITIONS PRECEDENT....................................................23
Section 3.1 Conditions Precedent to Closing....................................23
ARTICLE IV REPRESENTATIONS AND WARRANTIES...........................................27
Section 4.1 Borrower Representations...........................................27
Section 4.2 Survival of Representations........................................38
ARTICLE V BORROWER COVENANTS........................................................39
Section 5.1 Affirmative Covenants..............................................39
Section 5.2 Negative Covenants.................................................47
ARTICLE VI INSURANCE; CASUALTY; CONDEMNATION........................................52
Section 6.1 Insurance..........................................................52
Section 6.2 Casualty...........................................................56
Section 6.3 Condemnation.......................................................56
Section 6.4 Restoration........................................................56
ARTICLE VII RESERVE FUNDS...........................................................61
Section 7.1 Required Repair Funds..............................................61
Section 7.2 Tax and Insurance Escrow Fund......................................62
Section 7.3 Replacements and Replacement Reserve...............................63
Section 7.4 Intentionally Deleted..............................................68
Section 7.5 Intentionally Deleted..............................................68
Section 7.6 Intentionally Deleted..............................................68
Section 7.7 Reserve Funds, Generally...........................................68
ARTICLE VIII DEFAULTS...............................................................69
Section 8.1 Event of Default...................................................69
Section 8.2 Remedies...........................................................71
Section 8.3 Remedies Cumulative; Waivers.......................................72
ARTICLE IX SPECIAL PROVISIONS.......................................................72
Section 9.1 Sale of Notes and Securitization...................................72
Section 9.2 Securitization.....................................................73
Section 9.3 Rating Surveillance................................................73
Section 9.4 Exculpation........................................................73
Section 9.5 Termination of Manager.............................................75
Section 9.6 Servicer...........................................................76
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Section 9.7 Splitting the Loan.................................................76
ARTICLE X MISCELLANEOUS.............................................................76
Section 10.1 Survival...........................................................76
Section 10.2 Lender's Discretion................................................77
Section 10.3 Governing Law......................................................77
Section 10.4 Modification, Waiver in Writing....................................77
Section 10.5 Delay Not a Waiver.................................................77
Section 10.6 Notices............................................................77
Section 10.7 Trial by Jury......................................................78
Section 10.8 Headings...........................................................78
Section 10.9 Severability.......................................................79
Section 10.10 Preferences........................................................79
Section 10.11 Waiver of Notice...................................................79
Section 10.12 Remedies of Borrower...............................................79
Section 10.13 Expenses; Indemnity................................................79
Section 10.14 Schedules Incorporated.............................................80
Section 10.15 Offsets, Counterclaims and Defenses................................80
Section 10.16 No Joint Venture or Partnership; No Third Party Beneficiaries......81
Section 10.17 Publicity..........................................................81
Section 10.18 Waiver of Marshalling of Assets....................................81
Section 10.19 Waiver of Counterclaim.............................................82
Section 10.20 Conflict; Construction of Documents; Reliance......................82
Section 10.21 Brokers and Financial Advisors.....................................82
Section 10.22 Prior Agreements...................................................82
Section 10.23 Transfer of Loan...................................................82
SCHEDULES
Schedule I - Intentionally Omitted
Schedule II - Rent Roll
Schedule III - Required Repairs
Schedule IV - Intentionally Omitted
Schedule V - Intentionally Omitted
Schedule VI - Affiliate Agreements
Schedule VII - Intentionally Omitted
Schedule VIII - Intentionally Omitted
Schedule IX - Intentionally Omitted
Schedule X - Other Contract Funds Agreements
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LOAN AGREEMENT
THIS
LOAN AGREEMENT, dated as of this ____ day of August, 2004 (as
amended, restated, replaced, supplemented or otherwise modified from time to
time, this "AGREEMENT"), between KEYBANK NATIONAL ASSOCIATION, a national
banking association, having an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("LENDER"), and INLAND WESTERN TALLAHASSEE GOVERNOR'S ONE,
L.L.C., a Delaware limited liability company, having an address at ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("BORROWER").
W I T N E S S E T H:
WHEREAS, Borrower desires to obtain the Loan (as hereinafter defined)
from Lender; and
WHEREAS, Lender is willing to make the Loan to Borrower, subject to
and in accordance with the terms of this Agreement and the other Loan Documents
(as hereinafter defined).
NOW, THEREFORE, in consideration of the making of the Loan by Lender
and the covenants, agreements, representations and warranties set forth in this
Agreement, the parties hereto hereby covenant, agree, represent and warrant as
follows:
ARTICLE I
DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1 DEFINITIONS. For all purposes of this Agreement, except as
otherwise expressly required or unless the context clearly indicates a contrary
intent:
"ADDITIONAL INSOLVENCY OPINION" shall mean any subsequent Insolvency
Opinion.
"AFFILIATE" shall mean, as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by or is under common
control with such Person or is a director or officer of such Person or of an
Affiliate of such Person.
"ALTA" shall mean American Land Title Association, or any successor
thereto.
"ANNUAL BUDGET" shall mean the operating budget, including all planned
capital expenditures, for the Property prepared by Borrower for the applicable
Fiscal Year or other period.
"ASSIGNMENT OF LEASES" shall mean, with respect to the Property, that
certain first priority Assignment of Leases and Rents, dated as of the date
hereof, from Borrower, as assignor, to Lender, as assignee, assigning to Lender
all of Borrower's interest in and to the Leases and Rents of the Property as
security for the Loan, as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time.
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"ASSIGNMENT OF MANAGEMENT AGREEMENT" shall mean that certain
Assignment of Management Agreement and Subordination of Management Fees dated as
of the date hereof among Lender, Borrower and Manager, 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.
"BASIC CARRYING COSTS" shall mean, with respect to the Property, the
sum of the following costs associated with the Property for the relevant Fiscal
Year or payment period: (i) Taxes and (ii) Insurance Premiums.
"BORROWER" shall mean Inland Western Tallahassee Governor's, L.L.C.,
together with its permitted successors and assigns.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or any
other day on which national banks in New York, New York are not open for
business.
"CAPITAL EXPENDITURES" shall mean, for any period, the amount expended
for items capitalized under accounting principles reasonably acceptable to
Lender, consistently applied (including expenditures for building improvements
or major repairs, leasing commissions and tenant improvements).
"CASH EXPENSES" shall mean, for any period, the operating expenses for
the operation of the Property as set forth in an Approved Annual Budget to the
extent that such expenses are actually incurred by Borrower minus any payments
into the Tax and Insurance Escrow Fund.
"CASUALTY" shall have the meaning specified in Section 6.2 hereof.
"CASUALTY CONSULTANT" shall have the meaning set forth in Section
6.4(b)(iii) hereof.
"CASUALTY RETAINAGE" shall have the meaning set forth in Section
6.4(b)(iv) hereof.
"CLOSING DATE" shall mean the date of the funding of the Loan.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, as it
may be further amended from time to time, and any successor statutes thereto,
and applicable U.S. Department of Treasury regulations issued pursuant thereto
in temporary or final form.
"CONDEMNATION" shall mean a temporary or permanent taking by any
Governmental Authority as the result or in lieu or in anticipation of the
exercise of the right of condemnation or eminent domain, of all or any part of
the Property, or any interest therein or right accruing thereto, including any
right of access thereto or any change of grade affecting the Property or any
part thereof.
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"CONTINGENT AMOUNT" shall mean any contingent payment liabilities
required to be paid pursuant to the Purchase Contract as an adjustment to the
purchase price of the Property.
"DEBT" shall mean the outstanding principal amount set forth in, and
evidenced by, this Agreement and the Note together with all interest accrued and
unpaid thereon and all other sums (including the Prepayment Consideration) due
to Lender in respect of the Loan under the Note, this Agreement, the Mortgage or
any other Loan Document.
"DEBT SERVICE" shall mean, with respect to any particular period of
time, scheduled interest payments under the Note.
"DEBT SERVICE COVERAGE RATIO" shall mean a ratio for the applicable
period in which:
(a) the numerator is the Net Operating Income (excluding interest
on credit accounts) for such period as set forth in the statements required
hereunder, without deduction for (1) actual management fees incurred in
connection with the operation of the Property, (ii) amounts paid to the Reserve
Funds, less (A) management fees equal to the greater of (1) assumed management
fees of five percent (5%) of Gross Income from Operations or (2) the actual
management fees incurred; (B) assumed Replacement Reserve Fund contributions
equal to $0.15 per square foot of gross leaseable area at the Property; and (C)
assumed reserves for tenant improvements and leasing commissions equal to $0.84
per square foot of gross leaseable area of the Property; and
(b) the denominator is the aggregate amount of interest due and
payable on the Note for such applicable period.
"DEFAULT" shall mean the occurrence of any event hereunder or under
any other Loan Document which, but for the giving of notice or passage of time,
or both, would be an Event of Default.
"DEFAULT RATE" shall mean, with respect to the Loan, a rate per annum
equal to the lesser of (a) the maximum rate permitted by applicable law, or (b)
five percent (5%) above the Interest Rate.
"DISCLOSURE DOCUMENT" shall have the meaning set forth in Section 9.2
hereof.
"ELIGIBLE ACCOUNT" shall mean a separate and identifiable account from
all other funds held by the holding institution that is either (a) 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 (b)
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
authority. An Eligible Account will not be evidenced by a certificate of
deposit, passbook or other instrument.
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"ELIGIBLE INSTITUTION" shall mean a depository institution or trust
company insured by the Federal Deposit Insurance Corporation the short term
unsecured debt obligations or commercial paper of which are rated at least A-1
by Standard & Poor's Ratings Services, P-1 by ▇▇▇▇▇'▇ Investors Service, Inc.,
and F-1+ by Fitch, Inc. in the case of accounts in which funds are held for 30
days or less (or, in the case of accounts in which funds are held for more than
30 days, the long term unsecured debt obligations of which are rated at least
"AA" by Fitch and S&P and "Aa" by Moody's).
"ENVIRONMENTAL INDEMNITY" shall mean that certain Environmental
Indemnity Agreement executed by Borrower in connection with the Loan for the
benefit of Lender, as the same may be amended, restated, replaced, supplemented
or otherwise modified from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"EVENT OF DEFAULT" shall have the meaning set forth in Section 8.1(a)
hereof.
"EXCHANGE ACT" shall have the meaning set forth in Section 9.2 hereof.
"FISCAL YEAR" shall mean each twelve (12) month period commencing on
January 1 and ending on December 31 during each year of the term of the Loan.
"GOVERNMENTAL AUTHORITY" shall mean any court, board, agency,
commission, office or other authority of any nature whatsoever for any
governmental ▇▇▇▇ (▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ or
otherwise) whether now or hereafter in existence.
"GROSS INCOME FROM OPERATIONS" shall mean all sustainable income as
reported on the financial statements delivered by Borrower in accordance with
this Agreement, computed in accordance with accounting principles reasonably
acceptable to Lender, consistently applied, derived from the ownership and
operation of the Property from whatever source, including, but not limited to,
(i) Rents from Tenants that are in occupancy, open for business and paying
unabated Rent, (ii) utility charges, (iii) escalations, (iv) intentionally
omitted; (v) service fees or charges, (vi) license fees, (vii) parking fees, and
(viii) other required pass-throughs but excluding (i) sales, use and occupancy
or other taxes on receipts required to be accounted for by Borrower to any
Governmental Authority, (ii) refunds and uncollectible accounts, (iii) sales of
furniture, fixtures and equipment, (iv) Insurance Proceeds (other than business
interruption or other loss of income insurance), (v) Awards, (vi) unforfeited
security deposits, (vii) utility and other similar deposits and (viii) any
disbursements to Borrower from the Reserve Funds. Gross income shall not be
diminished as a result of the Mortgage or the creation of any intervening estate
or interest in the Property or any part thereof.
"GROUND LEASE" shall mean individually and collectively (a) that
certain Indenture of Ground Lease dated October 1, 2000, between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Partnership, LLP and The ▇▇▇▇▇ Interests General Partnership, L.L.P., as Lessor
and Borrower, as successor by merger to Kimco Governors Marketplace, Ltd., as
Lessee and as the same has previously been amended and may be further amended,
restated, renewed, substituted or replaced; and (b) that certain Indenture of
Ground Lease dated January 1, 2003, between The ▇▇▇▇▇ Interests General
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Partnership, L.L.P., as Lessor, and Borrower, as successor by merger to Kimco
Governors Marketplace, Ltd., as Lessee, and as the same has previously been
amended and may be further amended, restated, renewed, substituted or replaced.
"GROUND RENTS" shall mean all rents payable by Borrower under the
Ground Lease.
"IMPROVEMENTS" shall have the meaning set forth in the granting clause
of the Mortgage with respect to the Property.
"INDEBTEDNESS" of a Person, at a particular date, means the sum
(without duplication) at such date of (a) indebtedness or liability for borrowed
money; (b) obligations evidenced by bonds, debentures, notes, or other similar
instruments; (c) obligations for the deferred purchase price of property or
services (including trade obligations); (d) obligations under letters of credit;
(e) obligations under acceptance facilities; (f) all guaranties, endorsements
(other than for collection or deposit in the ordinary course of business) and
other contingent obligations to purchase, to provide funds for payment, to
supply funds, to invest in any Person or entity, or otherwise to assure a
creditor against loss; and (g) obligations secured by any Liens, whether or not
the obligations have been assumed.
"INDEMNITOR" shall mean Inland Western Retail Real Estate Trust, Inc.,
a Maryland corporation.
"INDEMNITY AGREEMENT" shall mean that certain Indemnity Agreement
dated as of the date hereof by and between Borrower and Inland Western Retail
Real Estate Trust, Inc., a Maryland corporation in favor of Lender.
"INDEPENDENT DIRECTOR" shall mean a director of a corporation or a
manager of a limited liability company who is not at the time of initial
appointment, or at any time while serving as a director or manager, as the case
may be, of such an entity, and has not been at any time during the preceding
five (5) years: (a) a stockholder, director (with the exception of serving as
the Independent Director), officer, employee, partner, attorney or counsel of
the Borrower or any Affiliate of either of them; (b) a customer, supplier or
other person who derives any of its purchases or revenues from its activities
with the Borrower or any Affiliate of either of them; (c) a Person controlling
or under common control with any such stockholder, director, officer, partner,
customer, supplier or other Person; or (d) a member of the immediate family of
any such stockholder, director, officer, employee, partner, customer, supplier
or other person. As used in this definition, the term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of management, policies or activities of a Person, whether through
ownership of voting securities, by contract or otherwise.
"INLAND WESTERN RETAIL REAL ESTATE TRUST, INC." shall mean Inland
Western Retail Real Estate Trust, Inc., a Maryland corporation.
"INSOLVENCY OPINION" shall have the meaning set forth in Section 3.1.6
hereof.
"INSURANCE PREMIUMS" shall have the meaning set forth in Section
6.1(b) hereof.
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"INSURANCE PROCEEDS" shall have the meaning set forth in Section
6.4(b) hereof.
"INTEREST RATE" shall mean 5.185 percent (5.185%) per annum.
"LEASE" shall mean any lease, sublease or subsublease, letting,
license, concession or other agreement (whether written or oral and whether now
or hereafter in effect) pursuant to which any Person is granted a possessory
interest in, or right to use or occupy all or any portion of any space in the
Property of Borrower, and every modification, amendment or other agreement
relating to such lease, sublease, subsublease, or other agreement entered into
in connection with such lease, sublease, subsublease, or other agreement and
every guarantee of the performance and observance of the covenants, conditions
and agreements to be performed and observed by the other party thereto.
"LEGAL REQUIREMENTS" shall mean, with respect to the Property, all
federal, state, county, municipal and other governmental statutes, laws, rules,
orders, regulations, ordinances, judgments, decrees and injunctions of
Governmental Authorities affecting 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, and all permits, licenses and
authorizations and regulations relating thereto, and all covenants, agreements,
restrictions and encumbrances contained in any instruments, either of record or
known to Borrower, at any time in force affecting the Property or any part
thereof, including, without limitation, any which may (a) require repairs,
modifications or alterations, in or to the Property or any part thereof, or (b)
in any way limit the use and enjoyment thereof.
"LENDER" shall mean KeyBank National Association, together with its
successors and assigns.
"LICENSES" shall have the meaning set forth in Section 4.1.22 hereof.
"LIEN" shall mean, with respect to the Property, any mortgage, deed of
trust, deed to secure debt, lien, pledge, hypothecation, assignment, security
interest, or any other encumbrance, charge or transfer of, on or affecting
Borrower, the Property, any portion thereof or any interest therein, including,
without limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, the filing of any financing statement, and mechanic's, materialmen's
and other similar liens and encumbrances.
"LOAN" shall mean the loan made by Lender to Borrower pursuant to this
Agreement.
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the Note,
the Mortgage, the Assignment of Leases and Rents, the Environmental Indemnity,
the Assignment of Management Agreement, the Indemnity Agreement and all other
documents executed and/or delivered in connection with the Loan.
"MAJOR TENANT" shall mean any tenant (i) leasing more than 10,000
square feet of the Property or (ii) whose Rents comprise 25% or more of the
effective gross income (as determined by Lender) of the Property.
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"MANAGEMENT AGREEMENT" shall mean, with respect to the Property, the
management agreement entered into by and between Borrower and the Manager,
pursuant to which the Manager is to provide management and other services with
respect to the Property.
"MANAGER" shall mean Inland Northwest Management Corp., a Delaware
corporation.
"MATURITY DATE" shall mean September 1, 2009, or such other date on
which the final payment of principal of the Note becomes due and payable as
therein or herein provided, whether at such stated maturity date, by declaration
of acceleration, or otherwise.
"MAXIMUM LEGAL RATE" shall mean the maximum nonusurious interest rate,
if any, that at any time or from time to time may be contracted for, taken,
reserved, charged or received on the indebtedness evidenced by the Note and as
provided for herein or the other Loan Documents, under the laws of such state or
states whose laws are held by any court of competent jurisdiction to govern the
interest rate provisions of the Loan.
"MONTHLY DEBT SERVICE PAYMENT AMOUNT" shall mean an amount equal to
$89,117.19.
"MORTGAGE" shall mean, with respect to the Property, that certain
first priority Amended and Restated Leasehold Mortgage, Assignment of Leases and
Rents, Security Agreement and Fixture Filing, 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" for any period shall mean the amount obtained by
subtracting Operating Expenses and Capital Expenditures for such period from
Gross Income from Operations for such period.
"NET CASH FLOW AFTER DEBT SERVICE" for any period shall mean the
amount obtained by subtracting Debt Service for such period from Net Cash Flow
for such period.
"NET CASH FLOW SCHEDULE" shall have the meaning set forth in
Section 5.1.11(b) hereof.
"NET OPERATING INCOME" shall mean the amount obtained by subtracting
from Gross Income from Operations (i) Operating Expenses, and (ii) a vacancy
allowance equal to the greater of (x) market vacancy (as reasonably determined
by Lender), less actual vacancy, and (y) underwritten vacancy of 8.6%, less
actual vacancy. Notwithstanding the foregoing, if actual vacancy exceeds market
vacancy and underwritten vacancy, then there shall be no adjustment for a
vacancy allowance.
"NET PROCEEDS" shall have the meaning set forth in Section 6.4(b)
hereof.
"NET PROCEEDS DEFICIENCY" shall have the meaning set forth in Section
6.4(b)(vi) hereof.
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"NET PROCEEDS DEFICIENCY" shall have the meaning set forth in Section
6.4(b)(vi) hereof.
"NOTE" shall mean that certain Amended and Restated Promissory Note of
even date herewith in the principal amount of TWENTY MILLION SIX HUNDRED
TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($20,625,000.00), made by Borrower in
favor of Lender, as the same may be amended, restated, replaced, supplemented or
otherwise modified from time to time.
"OFFICERS' CERTIFICATE" shall mean a certificate delivered to Lender
by Borrower which is signed by an authorized senior officer of the sole member
of Borrower.
"OPERATING EXPENSES" shall mean the total of all expenditures,
computed in accordance with accounting principles reasonably acceptable to
Lender, consistently applied, of whatever kind relating to the operation,
maintenance and management of the Property that are incurred on a regular
monthly or other periodic basis, including without limitation, utilities,
ordinary repairs and maintenance, insurance, license fees, property taxes and
assessments, advertising expenses, management fees, payroll and related taxes,
computer processing charges, operational equipment or other lease payments as
approved by Lender, and other similar costs, but excluding depreciation, Debt
Service, Capital Expenditures and contributions to the Reserve Funds.
"OTHER CHARGES" shall mean all ground rents, maintenance charges,
impositions other than Taxes, and any other charges, including, without
limitation, vault charges and license fees for the use of vaults, chutes and
similar areas adjoining the Property, now or hereafter levied or assessed or
imposed against the Property or any part thereof.
"OTHER CONTRACT FUNDS" shall mean any payment due to Borrower under
any of the agreements described on SCHEDULE X.
"PAYMENT DATE" shall mean the first (1st) day of each calendar month
during the term of the Loan or, if such day is not a Business Day, the
immediately succeeding Business Day.
"PERMITTED ENCUMBRANCES" shall mean, with respect to the Property,
collectively, (a) the Liens and security interests created by the Loan
Documents, (b) all Liens, encumbrances and other matters disclosed in the Title
Insurance Policies relating to the Property or any part thereof, (c) Liens, if
any, for Taxes imposed by any Governmental Authority not yet due or delinquent,
and (d) such other title and survey exceptions as Lender has approved or may
approve in writing in Lender's reasonable discretion, which Permitted
Encumbrances in the aggregate do not materially adversely affect the value or
use of the Property or Borrower's ability to repay the Loan.
"PERMITTED INVESTMENTS" shall mean any one or more of the following
obligations or securities acquired at a purchase price of not greater than par,
including those issued by Servicer, the trustee under any Securitization or any
of their respective Affiliates, payable on demand or having a maturity date not
later than the Business Day immediately prior
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to the first Payment Date following the date of acquiring such investment and
meeting one of the appropriate standards set forth below.
(i) obligations of, or obligations fully guaranteed as to payment
of principal and interest by, the United States or any agency or
instrumentality thereof provided such obligations are backed by the full
faith and credit of the United States of America including, without
limitation, obligations of: the U.S. Treasury (all direct or fully
guaranteed obligations), the Farmers Home Administration (certificates of
beneficial ownership), the General Services Administration (participation
certificates), the U.S. Maritime Administration (guaranteed Title XI
financing), the Small Business Administration (guaranteed participation
certificates and guaranteed pool certificates), the U.S. Department of
Housing and Urban Development (local authority bonds) and the Washington
Metropolitan Area Transit Authority (guaranteed transit bonds); PROVIDED,
HOWEVER, that the investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that cannot vary or
change, (B) if rated by S&P, must not have an "r" highlighter affixed to
their rating, (C) if such investments have a variable rate of interest,
such interest rate must be tied to a single interest rate index plus a
fixed spread (if any) and must move proportionately with that index, and
(D) such investments must not be subject to liquidation prior to their
maturity;
(ii) Federal Housing Administration debentures;
(iii) obligations of the following United States government
sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations),
the Farm Credit System (consolidated systemwide bonds and notes), the
Federal Home Loan Banks (consolidated debt obligations), the Federal
National Mortgage Association (debt obligations), the Student Loan
Marketing Association (debt obligations), the Financing Corp. (debt
obligations), and the Resolution Funding Corp. (debt obligations);
PROVIDED, HOWEVER, that the investments described in this clause must (A)
have a predetermined fixed dollar of principal due at maturity that cannot
vary or change, (B) if rated by S&P, must not have an "r" highlighter
affixed to their rating, (C) if such investments have a variable rate of
interest, such interest rate must be tied to a single interest rate index
plus a fixed spread (if any) and must move proportionately with that index,
and (D) such investments must not be subject to liquidation prior to their
maturity;
(iv) federal funds, unsecured certificates of deposit, time
deposits, bankers' acceptances and repurchase agreements with maturities of
not more than 365 days of any bank, the short term obligations of which at
all times are rated in the highest short term rating category by each
Rating Agency (or, if not rated by all Rating Agencies, rated by at least
one Rating Agency in the highest short term rating category and otherwise
acceptable to each other Rating Agency, as confirmed in writing that such
investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the initial, or, if higher, then current
ratings assigned to the Securities); PROVIDED, HOWEVER, that the
investments described in this clause must (A) have a predetermined fixed
dollar of principal due at maturity that cannot vary or change, (B) if
rated by S&P, must not have an "r" highlighter affixed to their rating, (C)
if such investments have a variable rate of interest, such interest rate
must be tied to a single interest rate index plus a fixed spread
9
(if any) and must move proportionately with that index, and (D) such
investments must not be subject to liquidation prior to their maturity;
(v) fully Federal Deposit Insurance Corporation-insured demand
and time deposits in, or certificates of deposit of, or bankers'
acceptances issued by, any bank or trust company, savings and loan
association or savings bank, the short term obligations of which at all
times are rated in the highest short term rating category by each Rating
Agency (or, if not rated by all Rating Agencies, rated by at least one
Rating Agency in the highest short term rating category and otherwise
acceptable to each other Rating Agency, as confirmed in writing that such
investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the initial, or, if higher, then current
ratings assigned to the Securities); PROVIDED, HOWEVER, that the
investments described in this clause must (A) have a predetermined fixed
dollar of principal due at maturity that cannot vary or change, (B) if
rated by S&P, must not have an "r" highlighter affixed to their rating, (C)
if such investments have a variable rate of interest, such interest rate
must be tied to a single interest rate index plus a fixed spread (if any)
and must move proportionately with that index, and (D) such investments
must not be subject to liquidation prior to their maturity;
(vi) debt obligations with maturities of not more than 365 days
and at all times rated by each Rating Agency (or, if not rated by all
Rating Agencies, rated by at least one Rating Agency and otherwise
acceptable to each other Rating Agency, as confirmed in writing that such
investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the initial, or, if higher, then current
ratings assigned to the Securities) in its highest long-term unsecured
rating category; PROVIDED, HOWEVER, that the investments described in this
clause must (A) have a predetermined fixed dollar of principal due at
maturity that cannot vary or change, (B) if rated by S&P, must not have an
"r" highlighter affixed to their rating, (C) if such investments have a
variable rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (D) such investments must not be
subject to liquidation prior to their maturity;
(vii) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand or
on a specified date not more than one year after the date of issuance
thereof) with maturities of not more than 365 days and that at all times is
rated by each Rating Agency (or, if not rated by all Rating Agencies, rated
by at least one Rating Agency and otherwise acceptable to each other Rating
Agency, as confirmed in writing that such investment would not, in and of
itself, result in a downgrade, qualification or withdrawal of the initial,
or, if higher, then current ratings assigned to the Securities) in its
highest short-term unsecured debt rating; PROVIDED, HOWEVER, that the
investments described in this clause must (A) have a predetermined fixed
dollar of principal due at maturity that cannot vary or change, (B) if
rated by S&P, must not have an "r" highlighter affixed to their rating, (C)
if such investments have a variable rate of interest, such interest rate
must be tied to a single interest rate index plus a fixed spread (if any)
and must move proportionately with that index, and (D) such investments
must not be subject to liquidation prior to their maturity;
10
(viii) units of taxable money market funds, which funds are
regulated investment companies, seek to maintain a constant net asset value
per share and invest solely in obligations backed by the full faith and
credit of the United States, which funds have the highest rating available
from each Rating Agency (or, if not rated by all Rating Agencies, rated by
at least one Rating Agency and otherwise acceptable to each other Rating
Agency, as confirmed in writing that such investment would not, in and of
itself, result in a downgrade, qualification or withdrawal of the initial,
or, if higher, then current ratings assigned to the Securities) for money
market funds or mutual funds; and
(ix) any other security, obligation or investment which has been
approved as a Permitted Investment in writing by (a) Lender and (b) each
Rating Agency, as evidenced by a written confirmation that the designation
of such security, obligation or investment as a Permitted Investment will
not, in and of itself, result in a downgrade, qualification or withdrawal
of the initial, or, if higher, then current ratings assigned to the
Securities by such Rating Agency;
PROVIDED, HOWEVER, that no obligation of security shall be a Permitted
Investment if (A) such obligation or security evidences a right to receive only
interest payments or (B) the right to receive principal and interest payments on
such obligation or security are derived from an underlying investment that
provides a yield to maturity in excess of 120% of the yield to maturity at par
of such underlying investment.
"PERSON" shall mean any individual, corporation, partnership, joint
venture, limited liability company, estate, trust, unincorporated association,
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.
"PERSONAL PROPERTY" shall have the meaning set forth in the granting
clause of the Mortgage with respect to the Property.
"PHYSICAL CONDITIONS REPORT" shall mean, with respect to the Property,
a report prepared by a company satisfactory to Lender regarding the physical
condition of the Property, satisfactory in form and substance to Lender in its
sole discretion, which report shall, among other things, (a) confirm that the
Property and its use complies, in all material respects, with all applicable
Legal Requirements (including, without limitation, zoning, subdivision and
building laws) and (b) include a copy of a final certificate of occupancy with
respect to all Improvements on the Property.
"POLICIES" shall have the meaning specified in Section 6.1(b) hereof.
"PREPAYMENT CONSIDERATION" shall have the meaning set forth in Section
2.3.1.
"PREPAYMENT RATE" shall mean the bond equivalent yield (in the
secondary market) on the United States Treasury Security that as of the
Prepayment Rate Determination Date has a remaining term to maturity closest to,
but not exceeding, the remaining term to the Maturity Date, as most recently
published in the "Treasury Bonds, Notes and Bills" section in The Wall Street
Journal as of the date of the related tender of the payment. If more than one
issue of United States Treasury Securities has the remaining term to the
Maturity Date referred to
11
above, the "Prepayment Rate" shall be the yield on the United States Treasury
Security most recently issued as of such date. If the publication of the
Prepayment Rate in The Wall Street Journal is discontinued, Lender shall
determine the Prepayment Rate on the basis of "Statistical Release H.15(519),
Selected Interest Rates," or any successor publication, published by the Board
of Governors of the Federal Reserve System, or on the basis of such other
publication or statistical guide as Lender may reasonably select.
"PREPAYMENT RATE DETERMINATION DATE" shall mean the date which is five
(5) Business Days prior to the prepayment date.
"PROPERTY" shall mean the parcel of real property, the Improvements
thereon and all personal property owned by Borrower or leased by Borrower
pursuant to the Ground Lease and encumbered by the Mortgage, together with all
rights pertaining to such property and Improvements, as more particularly
described in the Granting Clauses of the Mortgage and referred to therein as the
"Property."
"PROVIDED INFORMATION" shall have the meaning set forth in Section
9.1(a) hereof.
"PURCHASE CONTRACT" shall mean that certain Agreement of Sale dated
May 6, 2004, between Inland Real Estate Acquisitions, Inc., and Kimco Governors
Marketplace Ltd., as heretofore or hereafter assigned, amended and modified.
"QUALIFYING ENTITY" shall have the meaning set forth in Section
5.2.13(b) hereof.
"QUALIFYING MANAGER" shall mean either (a) a reputable and experienced
management organization reasonably satisfactory to Lender, which organization or
its principals possess at least ten (10) years experience in managing properties
similar in size, scope and value of the Property and which, on the date Lender
determines whether such management organization is a Qualifying Manager, manages
at least one million square feet of retail space, provided that Borrower shall
have obtained prior written confirmation from the Rating Agency that management
of the Property by such entity will not cause a downgrading, withdrawal or
qualification of the then current rating of the securities issued pursuant to
the Securitization, or (b) the fee owner of the Property, provided that such
owner possesses experience in managing and operating properties similar in size,
scope and value of the Property. Lender acknowledges that on the date hereof
Inland Northwest Management Corp. shall be deemed to be a Qualifying Manager.
Lender also acknowledges that a new property management company that is an
affiliate of or under common control with Inland Northwest Management Corp. also
shall be deemed a Qualifying Manager.
"RATING AGENCIES" shall mean each of Standard & Poor's Ratings
Services, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc., ▇▇▇▇▇'▇ Investors Service, Inc. and
Fitch, Inc., or any other nationally-recognized statistical rating agency which
has been approved by Lender.
"RATING SURVEILLANCE CHARGE" shall have the meaning set forth in
Section 9.3 hereof.
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"RELEVANT LEASING THRESHOLD" shall mean, any Lease for an amount of
leaseable square footage equal to or greater than 10,000 square feet.
"RELEVANT RESTORATION THRESHOLD" shall mean Three Hundred Fifty
Thousand and No/100 dollars ($350,000.00).
"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, with respect to the Property, all rents, rent
equivalents, moneys payable as damages or in lieu of rent or rent equivalents,
royalties (including, without limitation, all oil and gas or other mineral
royalties and bonuses), income, receivables, receipts, revenues, deposits
(including, without limitation, security, utility and other deposits), accounts,
cash, issues, profits, charges for services rendered, and other consideration of
whatever form or nature received by or paid to or for the account of or benefit
of Borrower or its agents or employees from any and all sources arising from or
attributable to the Property, and proceeds, if any, from business interruption
or other loss of income insurance, including the Other Contract Funds.
"REPLACEMENT RESERVE ACCOUNT" shall have the meaning set forth in
Section 7.3.1 hereof.
"REPLACEMENT RESERVE FUND" shall have the meaning set forth in Section
7.3.1 hereof.
"REPLACEMENT RESERVE MONTHLY DEPOSIT" shall have the meaning set forth
in Section 7.3.1 hereof.
"REPLACEMENTS" shall have the meaning set forth in Section 7.3.1(a)
hereof.
"REQUIRED REPAIR ACCOUNT" shall have the meaning set forth in Section
7.1.1 hereof.
"REQUIRED REPAIR FUND" shall have the meaning set forth in Section
7.1.1 hereof.
"REQUIRED REPAIRS" shall have the meaning set forth in Section 7.1.1
hereof.
"RESERVE FUNDS" shall mean the Tax and Insurance Escrow Fund, the
Replacement Reserve Fund, the Required Repair Fund (if any), or any other escrow
fund established by the Loan Documents.
"RESTORATION" shall have the meaning set forth in Section 6.2 hereof.
"SECURITIES" shall have the meaning set forth in Section 9.1 hereof.
"SECURITIES ACT" shall have the meaning set forth in Section 9.2
hereof.
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"SECURITIZATION" shall have the meaning set forth in Section 9.1
hereof.
"SERVICER" shall have the meaning set forth in Section 9.6 hereof.
"SERVICING AGREEMENT" shall have the meaning set forth in Section 9.6
hereof.
"SEVERED LOAN DOCUMENTS" shall have the meaning set forth in Section
8.2(c) hereof.
"SEVERING DOCUMENTATION" shall have the meaning set forth in Section
9.7 hereof.
"SOLE MEMBER" shall mean Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, the sole member of Borrower.
"SPECIAL PURPOSE ENTITY" means a corporation, limited partnership,
limited liability company, or Delaware statutory trust which at all times on and
after the date hereof:
(i) is organized solely for the purpose of (A) acquiring,
developing, owning, holding, selling, leasing, transferring, exchanging,
managing and operating the Property, entering into this Agreement with the
Lender, refinancing the Property in connection with a permitted repayment
of the Loan, and transacting lawful business that is incident, necessary
and appropriate to accomplish the foregoing; or (B) acting as a general
partner of the limited partnership that owns the Property, a member of the
limited liability company that owns the Property or the beneficiary or
trustee of a Delaware statutory trust that owns the Property;
(ii) is not engaged and will not engage in any business unrelated
to (A) the acquisition, development, ownership, management or operation of
the Property, (B) acting as general partner of the limited partnership that
owns the Property, (C) acting as a member of the limited liability company
that owns the Property, or (D) acting as the beneficiary or trustee of a
Delaware statutory trust that owns the Property, as applicable;
(iii) does not have and will not have any assets other than those
related to the Property or its partnership interest in the limited
partnership, the member interest in the limited liability company or the
beneficial interest in the Delaware statutory trust that owns the Property
or acts as the general partner, managing member or beneficiary or trustee
thereof, as applicable;
(iv) has not engaged, sought or consented to and will not engage
in, seek or consent to any dissolution, winding up, liquidation,
consolidation, merger, sale of all or substantially all of its assets,
transfer of partnership, membership or beneficial or trustee interests (if
such entity is a general partner in a limited partnership, a member in a
limited liability company or a beneficiary of a Delaware statutory trust)
or amendment of its limited partnership agreement, articles of
incorporation, articles of organization, certificate of formation,
operating agreement or trust formation and governance documents (as
applicable) with respect to the matters set forth in this definition;
14
(v) if such entity is a limited partnership, has as its only
general partners, Special Purpose Entities that are corporations, limited
partnerships or limited liability companies;
(vi) if such entity is a corporation, has at least one (1)
Independent Director, and has not caused or allowed and will not cause or
allow the board of directors of such entity to take any action related to a
bankruptcy or insolvency proceeding or a voluntary dissolution without the
unanimous affirmative vote of 100% of the members of its board of
directors, including the Independent Director;
(vii) if such entity is a limited liability company and such
limited liability company has more than one member, such limited liability
company has as its manager a Special Purpose Entity that is a corporation
and that owns at least 1.0% (one percent) of the equity of the limited
liability company;
(viii) if such entity is a limited liability company and such
limited liability company has only one member, such limited liability
company (a) has been formed under Delaware law and (b) has either a
corporation or other person or entity that shall become a member of the
limited liability company upon the dissolution or disassociation of the
member, and (c) has not less than one (1) Independent Director, and (d)
will not cause or allow its board of directors to take any action related
to a bankruptcy or insolvency proceeding or a voluntary dissolution without
the unanimous affirmative vote of 100% of the members of its board of
directors, including the Independent Director;
(ix) if such entity is (a) a limited liability company, has
articles of organization, a certificate of formation and/or an operating
agreement, as applicable, (b) a limited partnership, has a limited
partnership agreement, (c) a corporation, has a certificate of
incorporation or articles, or (d) a Delaware statutory trust, has
organizational documents that, in each case, provide that such entity will
not: (1) dissolve, merge, liquidate, consolidate; (2) except as permitted
herein, sell all or substantially all of its assets or the assets of the
Borrower (as applicable) except as permitted herein; (3) engage in any
other business activity, or amend its organizational documents with respect
to the matters set forth in this definition without the consent of the
Lender; or (4) without the affirmative vote of all other directors of the
corporation (that is such entity or the general partner or managing or
co-managing member or manager of such entity), file a bankruptcy or
insolvency petition or otherwise institute insolvency proceedings with
respect to itself or to any other entity in which it has a direct or
indirect legal or beneficial ownership interest;
(x) has not entered into or been a party to, and will not enter
into or be a party to, any transaction with its partners, members,
beneficiaries, shareholders or Affiliates except (A) in the ordinary course
of its business and on terms which are intrinsically fair, commercially
reasonable and are no less favorable to it than would be obtained in a
comparable arm's-length transaction with an unrelated third party and (B)
in connection with this Agreement;
15
(xi) is solvent and pays its debts and liabilities (including, as
applicable, shared personnel and overhead expenses) from its assets as the
same become due, and is maintaining adequate capital for the normal
obligations reasonably foreseeable in a business of its size and character
and in light of its contemplated business operations;
(xii) has not failed and will not fail to correct any known
misunderstanding regarding the separate identity of such entity;
(xiii) will file its own tax returns; provided, however, that
Borrower's assets and income may be included in a consolidated tax return
of its parent companies if inclusion on such consolidated tax return is in
compliance with applicable law;
(xiv) has maintained and will maintain its own resolutions and
agreements;
(xv) (a) has not commingled and will not commingle its funds or
assets with those of any other Person and (b) has not participated and will
not participate in any cash management system with any other Person, except
with respect to a custodial account maintained by the Manager on behalf of
Affiliates of Borrower and, with respect to funds in such custodial
account, has separately accounted, and will continue to separately account
for, each item of income and expense applicable to the Property and
Borrower;
(xvi) has held and will hold its assets in its own name;
(xvii) has conducted and will conduct its business in its name or in
a name franchised or licensed to it by an entity other than an Affiliate of
Borrower;
(xviii) has maintained and will maintain its balance sheets,
operating statements and other entity documents separate from any other
Person and has not permitted and will not permit its assets to be listed as
assets on the financial statement of any other entity except as required or
permitted by accounting principles reasonably acceptable to Lender,
consistently applied; PROVIDED, HOWEVER, that (i) any such consolidated
financial statement shall contain a note indicating that it maintains
separate balance sheets and operating statements for the Borrower and the
Property, or (ii) if such Person is controlled by Inland Western Retail
Real Estate Trust, Inc., then such Person may be included in the
consolidated financial statement of Inland Western Retail Real Estate
Trust, Inc. provided such consolidated financial statement contains a note
indicating that it maintains separate financial records for each Person
controlled by Inland Western Retail Real Estate Trust, Inc.;
(xix) has a sufficient number of employees in light of its
contemplated business operations, which may be none;
(xx) has observed and will observe all partnership, corporate,
limited liability company or Delaware business trust formalities, as
applicable;
(xxi) has and will have no Indebtedness (including loans (whether
or not such loans are evidenced by a written agreement) between Borrower
and any Affiliates of Borrower and relating to the management of funds in
the custodial account maintained by
16
the Manager) other than (i) the Loan, (ii) liabilities incurred in the
ordinary course of business relating to the ownership and operation of the
Property and the routine administration of Borrower, which liabilities are
not more than sixty (60) days past the date incurred (unless disputed in
accordance with applicable law), are not evidenced by a note and are paid
when due, and which amounts are normal and reasonable under the
circumstances, and (iii) such other liabilities that are permitted pursuant
to this Agreement;
(xxii) has not and will not assume or guarantee or become obligated
for the debts of any other Person or hold out its credit as being available
to satisfy the obligations of any other Person except as permitted pursuant
to this Agreement;
(xxiii) has not and will not acquire obligations or securities of its
partners, members or shareholders or any other Affiliate;
(xxiv) has allocated and will allocate fairly and reasonably any
overhead expenses that are shared with any Affiliate, including, but not
limited to, paying for shared office space and services performed by any
employee of an affiliate;
(xxv) has not maintained or used, and will not maintain or use,
invoices and checks bearing the name of any other Person, PROVIDED,
HOWEVER, that Manager, on behalf of such Person, may maintain and use
invoices and checks bearing Manager's name;
(xxvi) has not pledged and will not pledge its assets for the
benefit of any other Person except as permitted or required pursuant to
this Agreement;
(xxvii) has held itself out and identified itself and will hold
itself out and identify itself as a separate and distinct entity under its
own name or in a name franchised or licensed to it by an entity other than
an Affiliate of Borrower and not as a division or part of any other Person,
except for services rendered by Manager under the Management Agreement, so
long as Manager holds itself out as an agent of the Borrower;
(xxviii) has maintained and will maintain its assets in such a manner
that it will not be costly or difficult to segregate, ascertain or identify
its individual assets from those of any other Person;
(xxix) has not made and will not make loans to any Person or hold
evidence of indebtedness issued by any other person or entity (other than
cash and investment-grade securities issued by an entity that is not an
Affiliate of or subject to common ownership with such entity);
(xxx) has not identified and will not identify its partners,
members or shareholders, or any Affiliate of any of them, as a division or
part of it, and has not identified itself and shall not identify itself as
a division of any other Person;
(xxxi) has not entered into or been a party to, and will not enter
into or be a party to, any transaction with its partners, members,
shareholders or Affiliates except (A) in the ordinary course of its
business and on terms which are intrinsically fair,
17
commercially reasonable and are no less favorable to it than would be
obtained in a comparable arm's-length transaction with an unrelated third
party and (B) in connection with this Agreement;
(xxxii) does not and will not have any of its obligations guaranteed
by any Affiliate except as otherwise required in the Loan Documents; and
(xxxiii) has complied and will comply with all of the terms and
provisions contained in its organizational documents. The statement of
facts contained in its organizational documents are true and correct and
will remain true and correct.
"STATE" shall mean, with respect to the Property, the State or
Commonwealth in which the Property or any part thereof is located.
"SURVEY" shall mean a survey of the Property in question prepared by a
surveyor licensed in the State and satisfactory to Lender and the company or
companies issuing the Title Insurance Policies, and containing a certification
of such surveyor satisfactory to Lender.
"TAX AND INSURANCE ESCROW FUND" shall have the meaning set forth in
Section 7.2 hereof regardless of whether the funds held therein are held by
Lender for the payment of Taxes or Insurance Premiums or both.
"TAXES" shall mean all real estate and personal property taxes,
assessments, water rates or sewer rents, now or hereafter levied or assessed or
imposed against the Property or any part thereof.
"TENANT" shall mean any person or entity with a possessory right to
all or any part of the Property pursuant to a Lease or other written agreement.
"TERRORISM INSURANCE GUARANTOR" shall have the meaning set forth in
Section 6.1 hereof.
"TITLE INSURANCE POLICIES" shall mean, with respect to the Property,
one or more ALTA mortgagee title insurance policies in the form (acceptable to
Lender) (or, if the Property is in a State which does not permit the issuance of
such ALTA policy, such form as shall be permitted in such State and acceptable
to Lender) issued with respect to the Property and insuring the lien of the
Mortgage encumbering the Property.
"TRANSFEREE" shall have the meaning set forth in Section 5.2.13
hereof.
"UCC" or "UNIFORM COMMERCIAL CODE" shall mean the Uniform Commercial
Code as in effect in the applicable State in which the Property is located.
"U.S. OBLIGATIONS" shall mean direct non-callable obligations of the
United States of America as defined in Section 2(a)(16) of the Investment
Company Act as amended (15 USC 80a-1) stated in REMIC Section 1.86 OG-2(a)(8).
18
Section 1.2 PRINCIPLES OF CONSTRUCTION. All references to sections
and schedules are to sections and schedules in or to this Agreement unless
otherwise specified. All uses of the word "including" shall mean "including,
without limitation" unless the context shall indicate otherwise. Unless
otherwise specified, the words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. Unless otherwise
specified, all meanings attributed to defined terms herein shall be equally
applicable to both the singular and plural forms of the terms so defined.
ARTICLE II
GENERAL TERMS
Section 2.1 LOAN COMMITMENT; DISBURSEMENT TO BORROWER.
2.1.1 THE LOAN. Subject to and upon the terms and conditions set
forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept
the Loan on the Closing Date.
2.1.2 DISBURSEMENT TO BORROWER. Borrower may request and 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, MORTGAGE AND LOAN DOCUMENTS. The Loan shall be
evidenced by the Note and secured by the Mortgage, the Assignment of Leases and
the other Loan Documents.
2.1.4 USE OF PROCEEDS. Borrower shall use the proceeds of the Loan
to (a) repay and discharge any existing loans relating to the Property, (b) pay
all past-due Basic Carrying Costs, if any, in respect of the Property, (c) make
deposits into the Reserve Funds on the Closing Date in the amounts provided
herein, (d) pay costs and expenses incurred in connection with the Closing of
the Loan, as approved by Lender, (e) fund any working capital requirements of
the Property, and (f) distribute the balance, if any, to Borrower.
Section 2.2 INTEREST; LOAN PAYMENTS; LATE PAYMENT CHARGE.
2.2.1 INTEREST GENERALLY. Interest on the outstanding principal
balance of the Loan shall accrue from the Closing Date to but excluding the
Maturity Date at the Interest Rate.
2.2.2 INTEREST CALCULATION. Interest on the outstanding principal
balance of the Loan shall be calculated on the basis of a three hundred sixty
(360) day year comprised of twelve (12) months of thirty (30) days each, except
that interest due and payable for a period of less than a full month shall be
calculated by multiplying the actual number of days elapsed in the period for
which the calculation is being made by a daily rate based on a three hundred
sixty (360) day year.
2.2.3 PAYMENTS GENERALLY. Borrower shall pay to Lender (a) on the
Closing Date, an amount equal to interest only on the outstanding principal
balance of the Loan from the
19
Closing Date up to but not including the first Payment Date following the
Closing Date, and (b) on October 1, 2004 and each Payment Date thereafter up to
but not including the Maturity Date, the Monthly Debt Service Payment Amount
which is an amount equal to the interest on the outstanding principal amount of
the Loan for the prior calendar month, calculated as set forth herein, which
payments shall be applied to accrued and unpaid interest at the Interest Rate.
2.2.4 INTENTIONALLY DELETED.
2.2.5 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 other the Loan Documents.
2.2.6 PAYMENTS AFTER DEFAULT. Upon the occurrence and during the
continuance of an Event of Default, interest on the outstanding principal
balance of the Loan and, to the extent permitted by law, overdue interest and
other amounts due in respect of the Loan, shall accrue at the Default Rate,
calculated from the date such payment was due without regard to any grace or
cure periods contained herein. Interest at the Default Rate shall be computed
from the occurrence of the Event of Default until the earlier of (i) the cure of
such Event of Default in a manner reasonably satisfactory to Lender or (ii) the
actual receipt and collection of the Debt (or that portion thereof that is then
due). To the extent permitted by applicable law, interest at the Default Rate
shall be added to the Debt, shall itself accrue interest at the same rate as the
Loan and shall be secured by the Mortgage. This paragraph shall not be construed
as an agreement or privilege to extend the date of the payment of the Debt, nor
as a waiver of any other right or remedy accruing to Lender by reason of the
occurrence of any Event of Default and Lender retains its rights under the Note
and this Agreement to accelerate and to continue to demand payment of the Debt
upon the happening and continuance of any Event of Default.
2.2.7 LATE PAYMENT CHARGE. If any principal, interest or any other
sums due under the Loan Documents is not paid by Borrower on or prior to the
date which is five (5) days after the date it is due, Borrower shall pay to
Lender upon demand an amount equal to the lesser of five percent (5%) of such
unpaid sum or the maximum amount permitted by applicable law in order to defray
the expense incurred by Lender in handling and processing such delinquent
payment and to compensate Lender for the loss of the use of such delinquent
payment. Any such amount shall be secured by the Mortgage and the other Loan
Documents to the extent permitted by applicable law. The foregoing late payment
charge shall not apply to the payment of all outstanding principal, interest and
other sums due on the Maturity Date.
2.2.8 USURY SAVINGS. This Agreement and the Note are subject to the
express condition that at no time shall Borrower be obligated or 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
20
the sums due under the Loan, shall, to the extent permitted by applicable law,
be amortized, prorated, allocated, and spread throughout the full stated term
of the Loan until payment in full so that the rate or amount of interest on
account of the Loan does not exceed the Maximum Legal Rate of interest from time
to time in effect and applicable to the Loan for so long as the Loan is
outstanding.
Section 2.3 PREPAYMENTS.
2.3.1 VOLUNTARY PREPAYMENTS.
(a) Except as otherwise provided herein, Borrower shall not have
the right to prepay the Loan in whole or in part. Borrower may, provided it has
given Lender prior written notice in accordance with the terms of this
Agreement, prepay the unpaid principal balance of the Loan in whole, but not in
part, by paying, together with the amount to be prepaid, (i) interest accrued
and unpaid on the portion of the principal balance of the Loan being prepaid to
and including the date of prepayment, (ii) unless prepayment is tendered on a
Payment Date, an amount equal to the interest that would have accrued on the
amount being prepaid after the date of prepayment through and including the next
Payment Date had the prepayment not been made (which amount shall constitute
additional consideration for the prepayment), (iii) all other sums then due
under this Agreement, the Note, the Mortgage and the other Loan Documents, and
(iv) a prepayment consideration (the "PREPAYMENT CONSIDERATION") equal to the
greater of (A) one percent (1%) of the principal balance of the Loan being
prepaid or (B) the excess, if any, of (1) the sum of the present values of all
then-scheduled payments of principal and interest under this Agreement
including, but not limited to, principal and interest on the Maturity Date (with
each such payment discounted to its present value at the date of prepayment at
the rate which, when, compounded monthly, is equivalent to the Prepayment Rate),
over (2) the principal amount of the Loan being prepaid. Lender shall notify
Borrower of the amount and the basis of determination of the required prepayment
consideration.
(b) On the Payment Date that is three months prior to the
Maturity Date, and on each day thereafter through the Maturity Date, Borrower
may, at its option, prepay the Debt without payment of any Prepayment
Consideration; PROVIDED, HOWEVER, if such prepayment is not paid on a regularly
scheduled Payment Date, the Debt shall include interest that would have accrued
on such prepayment through and including the day immediately preceding the next
regularly scheduled Payment Date. Borrower's right to prepay any portion of the
principal balance of the Loan shall be subject to (i) Borrower's submission of a
notice to Lender setting forth the amount to be prepaid and the projected date
of prepayment, which date shall be no less than thirty (30) days from the date
of such notice, and (ii) Borrower's actual payment to Lender of the amount to be
prepaid as set forth in such notice on the projected date set forth in such
notice or any day following such projected date occurring in the same calendar
month as such projected date.
2.3.2 MANDATORY PREPAYMENTS. On the next occurring Payment Date
following the date on which Borrower actually receives any Net Proceeds, if
Lender is not obligated to make such Net Proceeds available to Borrower pursuant
to this Agreement for the restoration of the Property, Borrower shall, at
Lender's option, prepay the outstanding principal balance of the Note in an
amount equal to one hundred percent (100%) of such Net Proceeds. No Prepayment
21
Consideration shall be due in connection with any prepayment made pursuant to
this Section 2.3.2. Any partial prepayment under this Section shall be applied
to the last payments of principal due under the Loan.
2.3.3 PREPAYMENTS AFTER DEFAULT. Following an Event of Default, if
Borrower or anyone on Borrower's behalf makes a tender of payment of all or any
portion of the Debt at any time prior to a foreclosure sale (including a sale
under the power of sale under the Mortgage), or during any redemption period
after foreclosure, (i) the tender of payment shall constitute an evasion of
Borrower's obligation to pay any Prepayment Consideration due under this
Agreement and such payment shall, therefore, to the maximum extent permitted by
law, include a premium equal to the Prepayment Consideration that would have
been payable on the date of such tender had the Loan not been so accelerated, or
(ii) if at the time of such tender a prepayment of the principal amount of the
Loan would have been prohibited under this Agreement had the principal amount of
the Loan not been so accelerated, the tender of payment shall constitute an
evasion of such prepayment prohibition and shall, therefore, to the maximum
extent permitted by law, include an amount equal to the greater of (i) 1% of the
then principal amount of the Loan (or the relevant portion thereof being
prepaid) and (ii) an amount equal to the excess of (A) the sum of the present
values of a series of payments payable at the times and in the amounts equal to
the payments of principal and interest (including, but not limited to the
principal and interest payable on the Maturity Date) which would have been
scheduled to be payable after the date of such tender under this Agreement had
the Loan (or the relevant portion thereof) not been accelerated, with each such
payment discounted to its present value at the date of such tender at the rate
which when compounded monthly is equivalent to the Prepayment Rate, over (B) the
then principal amount of the Loan.
Section 2.4 INTENTIONALLY OMITTED.
Section 2.5 RELEASE OF PROPERTY. Except as set forth in this
Section 2.5, 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
any Lien of the Mortgage on the Property. If Borrower has elected to prepay the
entire amount of the Loan pursuant to Section 2.3.1 and the requirements of this
Section 2.5 have been satisfied, the Property shall be released from the Lien of
the Mortgage.
2.5.1 RELEASE ON PAYMENT IN FULL. Lender shall, upon the written
request and at the expense of Borrower, upon payment in full of all principal
and interest on the Loan and all other amounts due and payable under the Loan
Documents in accordance with the terms and provisions of the Note and this
Loan
Agreement, release the Lien of the Mortgage on the Property not theretofore
released.
Section 2.6 MANNER OF MAKING PAYMENTS.
2.6.1 MAKING OF PAYMENTS. Each payment by Borrower hereunder or
under the Note shall be made in funds settled through the New York Clearing
House Interbank Payments System or other funds immediately available to Lender
by 1:00 p.m., New York City time, on the date such payment is due, to Lender by
deposit to such account as Lender may designate by written notice to Borrower.
"Whenever any payment hereunder or under the Note shall be stated
22
to be due on a day which is not a Business Day, such payment shall be made on
the next succeeding Business Day.
2.6.2 NO DEDUCTIONS, ETC. All payments made by Borrower hereunder
or under the Note or the other Loan Documents shall be made irrespective of, and
without any deduction for, any setoff, defense or counterclaims.
Section 2.7 AMENDMENT AND RESTATEMENT. Borrower hereby requests
that Lender accept from Wachovia Bank, National Association an assignment of (i)
that certain promissory note dated October 28, 2003 from Borrower, as successor
by merger to Kimco Governors Marketplace, Ltd., payable to Wachovia Bank,
National Association, in the principal sum of $21,500,000.00 (as modified,
endorsed and assigned, "EXISTING NOTE"), and (ii) that certain Leasehold
Mortgage, Assignment of Rents and Security Agreement dated October 28, 2003,
from Borrower, as successor by merger to Kimco Governors Marketplace, Ltd., to
Wachovia Bank, National Association, which was recorded in Official Records Book
2980, Page 1768 of the Official Records of ▇▇▇▇ County, Florida (as modified and
assigned, the "EXISTING MORTGAGE"), and Lender and Borrower hereby agree that
the Existing Note shall be amended and restated by the Note and the Existing
Mortgage shall be amended and restated by the Mortgage.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 CONDITIONS PRECEDENT TO CLOSING. The obligation of
Lender to make the Loan hereunder is subject to the fulfillment by Borrower or
waiver by Lender of the following conditions precedent no later than the Closing
Date:
3.1.1 REPRESENTATIONS AND WARRANTIES; COMPLIANCE WITH CONDITIONS.
The representations and warranties of Borrower contained in this Agreement and
the other Loan Documents shall be true and correct in all material respects on
and as of the Closing Date with the same effect as if made on and as of such
date, and no Default or an Event of Default shall have occurred and be
continuing; and Borrower shall be in compliance in all material respects with
all terms and conditions set forth in this Agreement and in each other Loan
Document on its part to be observed or performed.
3.1.2
LOAN AGREEMENT AND NOTE. Lender shall have received a copy of
this Agreement and the Note, in each case, duly executed and delivered on behalf
of Borrower.
3.1.3 DELIVERY OF LOAN DOCUMENTS: TITLE INSURANCE; REPORTS; LEASES,
ETC.
(a) MORTGAGE, ASSIGNMENT OF LEASES AND OTHER LOAN DOCUMENTS.
Lender shall have received from Borrower fully executed and acknowledged
counterparts of the Mortgage and the Assignment of Leases and evidence that
counterparts of the Mortgage and Assignment of Leases have been delivered to the
title company for recording, in the reasonable judgment of Lender, so as to
effectively create upon such recording valid and enforceable Liens upon the
Property, of the requisite priority, in favor of Lender (or such trustee as may
be required
23
under local law), subject only to the Permitted Encumbrances and such other
Liens as are permitted pursuant to the Loan Documents. Lender shall have also
received from Borrower fully executed counterparts of the Assignment of
Management Agreement and the other Loan Documents.
(b) TITLE INSURANCE. Lender shall have received a Title Insurance
Policy issued by a title company acceptable to Lender and dated as of the
Closing Date. Such Title Insurance Policy shall (i) provide coverage in an
amount equal to the principal amount of the Loan together with, if applicable, a
"tie-in" or similar endorsement, (ii) insure Lender that the Mortgage creates a
valid lien on the Property encumbered thereby of the requisite priority, free
and clear of all exceptions from coverage other than Permitted Encumbrances and
standard exceptions and exclusions from coverage (as modified by the terms of
any endorsements), (iii) contain such endorsements and affirmative coverages as
Lender may reasonably request, and (iv) name Lender, its successors and assigns,
as the insured. The Title Insurance Policy shall be assignable without cost to
Lender. Lender also shall have received evidence that all premiums in respect of
such Title Insurance Policy have been paid.
(c) SURVEY. Lender shall have received a title survey for the
Property, certified to the title company and Lender and their successors and
assigns, in form and content satisfactory to Lender and prepared by a
professional and properly licensed land surveyor satisfactory to Lender in
accordance with the most recent Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys. The following additional items from the list of
"Optional Survey Responsibilities and Specifications" (Table A) should be added
to each survey: 2, 3, 4, 6, 8, 9, 10, 11 and 13. The survey shall reflect the
same legal description contained in the Title Insurance Policy relating to the
Property referred to in clause (ii) above and shall include, among other things,
a legal description of the real property comprising part of such Property
reasonably satisfactory to Lender. The surveyor's seal shall be affixed to each
survey and the surveyor shall provide a certification for each survey in form
and substance acceptable to Lender.
(d) INSURANCE. Lender shall have received valid certificates of
insurance for the policies of insurance required hereunder, satisfactory to
Lender in its sole discretion, and evidence of the payment of all premiums
payable for the existing policy period.
(e) ENVIRONMENTAL REPORTS. Lender shall have received an
environmental report in respect of the Property, in each case reasonably
satisfactory to Lender.
(f) ZONING. With respect to the Property, Lender shall have
received, at Lender's option, (i) letters, if available, or other evidence with
respect to the Property from the appropriate municipal authorities (or other
Persons) concerning applicable zoning and building laws, (ii) an ALTA 3.1 zoning
endorsement for the Title Insurance Policy or (iii) other evidence of zoning
compliance, in each case in substance reasonably satisfactory to Lender.
(g) ENCUMBRANCES. Borrower shall have taken or caused to be taken
such actions in such a manner so that Lender has a valid and perfected first
Lien on the Property as of the Closing Date with respect to the Mortgage on the
Property, subject only to applicable
24
Permitted Encumbrances and such other Liens as are permitted pursuant to the
Loan Documents, and Lender shall have received satisfactory evidence thereof.
3.1.4 RELATED DOCUMENTS. Each additional document not specifically
referenced herein, but relating to the transactions contemplated herein, shall
have been duly authorized, executed and delivered by all parties thereto and
Lender shall have received and approved certified copies thereof.
3.1.5 DELIVERY OF ORGANIZATIONAL DOCUMENTS. On or before the
Closing Date, Borrower shall deliver or cause to be delivered to Lender copies
certified by Borrower of all organizational documentation related to Borrower
and/or the formation, structure, existence, good standing and/or qualification
to do business, as Lender may request in its sole discretion, including, without
limitation, good standing certificates, qualifications to do business in the
appropriate jurisdictions, resolutions authorizing the entering into of the Loan
and incumbency certificates as may be requested by Lender.
3.1.6 OPINIONS OF BORROWER'S COUNSEL. Lender shall have received
opinions of Borrower's counsel with respect to (a) non-consolidation issues
("INSOLVENCY OPINION") and (b) due execution, authority, enforceability of the
Loan Documents and such other matters as Lender may reasonably require, all such
opinions in form, scope and substance reasonably satisfactory to Lender and
Lender's counsel in their reasonable discretion.
3.1.7 BUDGET. Borrower shall have delivered, and Lender shall have
approved, the Annual Budget for the current Fiscal Year.
3.1.8 BASIC CARRYING COSTS. Borrower shall have paid all Basic
Carrying Costs relating to the Property which are in arrears, including without
limitation, (a) accrued but unpaid insurance premiums relating to the Property,
(b) currently due and payable Taxes (including any in arrears) relating to the
Property, and (c) currently due Other Charges relating to the Property, which
amounts shall be funded with proceeds of the Loan.
3.1.9 COMPLETION OF PROCEEDINGS. All organizational proceedings
taken or to be taken in connection with the transactions contemplated by this
Agreement and other Loan Documents and all documents incidental thereto shall be
reasonably satisfactory in form and substance to Lender, and Lender shall have
received all such counterpart originals or certified copies of such documents as
Lender may reasonably request.
3.1.10 PAYMENTS. All payments, deposits or escrows required to be
made or established by Borrower under this Agreement, the Note and the other
Loan Documents on or before the Closing Date shall have been paid.
3.1.11 TENANT ESTOPPELS. (a) Lender shall have received an executed
tenant estoppel letter, which shall be in form and substance satisfactory to
Lender, from each Major Tenant, and (b) Borrower shall exercise reasonable
commercial efforts to deliver estoppel letters from Tenants occupying not less
than seventy percent (70%), disregarding the area leased by Major Tenants of the
remaining gross leasable area of the Property; provided, however, that, in the
event that Borrower is unable to deliver some or all of the estoppels described
in clause (b) of this Section 3.1.11, Lender agrees that the requirement to
deliver such letters to Lender shall be
25
waived by Lender as a condition precedent to the closing of the Loan so long as
Borrower delivers on or before the Closing Date, a certificate executed by
Borrower with respect to all applicable leases which shall be in substantially
the same form and contain the same terms as set forth in Lender's standard form
of estoppel certificate.
3.1.12 TRANSACTION COSTS. Borrower shall have paid or reimbursed
Lender for all title insurance premiums, recording and filing fees, costs of
environmental reports, Physical Conditions Reports, appraisals and other
reports, the fees and costs of Lender's counsel and all other third party
out-of-pocket expenses incurred in connection with the origination of the Loan.
3.1.13 MATERIAL ADVERSE CHANGE. There shall have been no material
adverse change in the financial condition or business condition of Borrower, any
Major Tenant or the Property since the date of the most recent financial
statements delivered to Lender. The income and expenses of the Property, the
occupancy leases thereof, and all other features of the transaction shall be as
represented to Lender without material adverse change. Neither Borrower nor any
of its constituent Persons nor any Major Tenant shall be the subject of any
bankruptcy, reorganization, or insolvency proceeding.
3.1.14 LEASES AND RENT ROLL. Lender shall have received copies of
all tenant leases, certified copies of any tenant leases as requested by Lender
and certified copies of all ground leases affecting the Property. Lender shall
have received a current certified rent roll of the Property, reasonably
satisfactory in form and substance to Lender.
3.1.15 SUBORDINATION AND ATTORNMENT. Lender shall have received
appropriate instruments acceptable to Lender in its commercially reasonable
discretion subordinating the Leases of each of the Major Tenants and other
Leases of record prior to the Mortgage and including an agreement by such
Tenants to attorn to Lender in the event of a foreclosure or delivery of a deed
in lieu thereof.
3.1.16 TAX LOT. Lender shall have received evidence that the
Property constitutes one (1) or more separate tax lots, which evidence shall be
reasonably satisfactory in form and substance to Lender.
3.1.17 PHYSICAL CONDITIONS REPORTS. Lender shall have received
Physical Conditions Reports with respect to the Property, which reports shall be
reasonably satisfactory in form and substance to Lender.
3.1.18 MANAGEMENT AGREEMENT. Lender shall have received a certified
copy of the Management Agreement with respect to the Property which shall be
satisfactory in form and substance to Lender.
3.1.19 APPRAISAL. Lender shall have received an appraisal of the
Property, which shall be satisfactory in form and substance to Lender.
3.1.20 FINANCIAL STATEMENTS. Lender shall have received (a) a
balance sheet with respect to the Property for the two most recent Fiscal Years
and statements of income and statements of cash flows with respect to the
Property for the three most recent Fiscal Years, each in form and substance
reasonably satisfactory to Lender or (b) such other financial statements
26
relating to the ownership and operation of the Property, in form and substance
reasonably satisfactory to Lender.
3.1.21 FURTHER DOCUMENTS. Lender or its counsel shall have received
such other and further approvals, opinions, documents and information as Lender
or its counsel may have reasonably requested including the Loan Documents in
form and substance reasonably satisfactory to Lender and its counsel.
3.1.22 ENVIRONMENTAL INSURANCE. If required by Lender, Borrower
shall have obtained a secured creditor environmental insurance policy with
respect to the Property, which shall be in form and substance satisfactory to
Lender. Any such policy shall have a term not less than the term of the Loan.
Borrower shall have provided to Lender evidence that the premiums for such
policy has been paid in full.
3.1.23 GROUND LESSOR ESTOPPELS. Borrower shall have delivered, or
cause to be delivered, to Lender ground lessor estoppels and agreements from the
ground lessors in form and substance acceptable to Lender.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 BORROWER REPRESENTATIONS. Borrower represents and
warrants as of the date hereof and as of the Closing Date that:
4.1.1 ORGANIZATION. Borrower has been duly organized and is validly
existing and in good standing with requisite power and authority to own the
Property and to transact the businesses in which it is now engaged. Borrower is
duly qualified to do business and is in good standing in each jurisdiction where
it is required to be so qualified in connection with the Property, businesses
and operations. Borrower possesses all rights, licenses, permits and
authorizations, governmental or otherwise, necessary to entitle it to own the
Property and to transact the businesses in which it is now engaged, and the sole
business of Borrower is the ownership, management and operation of the Property.
4.1.2 PROCEEDINGS. Borrower has taken all necessary action to
authorize the execution, delivery and performance of this Agreement and the
other Loan Documents. This Agreement and such other Loan Documents have been
duly executed and delivered by or on behalf of Borrower and constitute legal,
valid and binding obligations of Borrower enforceable against Borrower in
accordance with their respective terms, subject only to applicable bankruptcy,
insolvency and similar laws affecting rights of creditors generally, and
subject, as to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
4.1.3 NO CONFLICTS. The execution, delivery and performance of this
Agreement and the other Loan Documents by Borrower will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance (other than pursuant to the Loan Documents) upon any of the
27
property or assets of Borrower pursuant to the terms of any indenture, mortgage,
deed of trust,
loan agreement, partnership agreement or other agreement or
instrument to which Borrower is a party or by which any of Borrower's property
or assets is subject, nor will such action result in any violation of the
provisions of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over Borrower or any of
Borrower's properties or assets, and any consent, approval, authorization,
order, registration or qualification of or with any court or any such regulatory
authority or other governmental agency or body required for the execution,
delivery and performance by Borrower of this Agreement or any other Loan
Documents has been obtained and is in full force and effect.
4.1.4 LITIGATION. To Borrower's knowledge, there are no actions,
suits or proceedings at law or in equity by or before any Governmental Authority
or other agency now pending or threatened against or affecting Borrower or the
Property, which actions, suits or proceedings, if determined against Borrower or
the Property, might materially adversely affect the condition (financial or
otherwise) or business of Borrower or the condition or ownership of the
Property.
4.1.5 AGREEMENTS. Except such instruments and agreements set forth
as Permitted Encumbrances in the Title Insurance Policy, Borrower is not a party
to any agreement or instrument or subject to any restriction which might
materially and adversely affect Borrower or the Property, or Borrower's
business, properties or assets, operations or condition, financial or otherwise.
To Borrower's knowledge, 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 agreement or instrument to which it is a party or
by which Borrower or the Property are bound. Borrower has no material financial
obligation under any indenture, mortgage, deed of trust,
loan agreement or other
agreement or instrument to which Borrower is a party or by which Borrower or the
Property is otherwise bound, other than (a) obligations incurred in the ordinary
course of the operation of the Property and (b) obligations under the Loan
Documents.
4.1.6 TITLE. Borrower has good, marketable and insurable leasehold
estate in and to the real property comprising part of the Property and good
title to the balance of the Property, free and clear of all Liens whatsoever
except the Permitted Encumbrances, such other Liens as are permitted pursuant to
the Loan Documents and the Liens created by the Loan Documents. 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 (a) a valid, perfected lien on the Property, subject only
to Permitted Encumbrances and the Liens created by the Loan Documents and (b)
perfected security interests in and to, and perfected collateral assignment of,
all personalty (including the Leases), all in accordance with the terms thereof,
in each case subject only to any applicable Permitted Encumbrances, such other
Liens as are permitted pursuant to the Loan Documents and the Liens created by
the Loan Documents. There are no claims for payment for work, labor or materials
affecting the Property which are due and unpaid under the contracts pursuant to
which such work or labor was performed or materials provided which are or may
become a lien prior to, or of equal priority with, the Liens created by the Loan
Documents.
28
4.1.7 SOLVENCY; NO BANKRUPTCY FILING. Borrower (a) has not entered
into the transaction or executed the Note, this Agreement or any other Loan
Documents with the actual intent to hinder, delay or defraud any creditor and
(b) received reasonably equivalent value in exchange for its obligations under
such Loan Documents. Giving effect to the Loan, the fair saleable value of
Borrower's assets exceeds and will, immediately following the making of the
Loan, exceed Borrower's total liabilities, including, without limitation,
subordinated, unliquidated, disputed and contingent liabilities. The fair
saleable value of Borrower's assets is and will, immediately following the
making of the Loan, be greater than Borrower's probable liabilities, including
the maximum amount of its contingent liabilities on its debts as such debts
become absolute and matured. Borrower's assets do not and, immediately following
the making of the Loan will not, 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 debt and liabilities
(including contingent liabilities and other commitments) beyond its ability to
pay such debt 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). Except as expressly disclosed to Lender
in writing, no petition in bankruptcy has been filed against Borrower, or to the
best of Borrower's knowledge, any constituent Person in the last seven (7)
years, and neither Borrower, nor to the best of Borrower's knowledge, any
constituent Person in the last seven (7) years has ever made an assignment for
the benefit of creditors or taken advantage of any insolvency act for the
benefit of debtors. Neither Borrower nor any of its constituent Persons are
contemplating either the filing of a petition by it under any state or federal
bankruptcy or insolvency laws or the liquidation of all or a major portion of
Borrower's assets or property, and Borrower has no knowledge of any Person
contemplating the filing of any such petition against it or such constituent
Persons.
4.1.8 FULL AND ACCURATE DISCLOSURE. To Borrower's knowledge, 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.
4.1.9 NO PLAN ASSETS. Borrower is not an "employee benefit plan,"
as defined in Section 3(3) of ERISA, subject to Title I of ERISA, and none of
the assets of Borrower constitutes or will constitute "plan assets" of one or
more such plans within the meaning of 29 C.F.R. Section 2510.3-101. In addition,
(a) Borrower is not a "governmental plan" within the meaning of Section 3(32) of
ERISA and (b) transactions by or with Borrower are not subject to state statutes
regulating investment of, and fiduciary obligations with respect to,
governmental plans similar to the provisions of Section 406 of ERISA or Section
4975 of the Code currently in effect, which prohibit or otherwise restrict the
transactions contemplated by this
Loan Agreement.
4.1.10 COMPLIANCE. To Borrower's knowledge, Borrower and the
Property and the use thereof comply in all material respects with all applicable
Legal Requirements, including, without limitation, building and zoning
ordinances and codes. Borrower is not in default or violation of any order,
writ, injunction, decree or demand of any Governmental Authority. There
29
has not been committed by Borrower or, to Borrower's knowledge, any other Person
in occupancy of or involved with the operation or use of the Property any act or
omission affording the federal government or any other Governmental Authority
the right of forfeiture as against the Property or any part thereof or any
monies paid in performance of Borrower's obligations under any of the Loan
Documents.
4.1.11 FINANCIAL INFORMATION. All financial data, including, without
limitation, the statements of cash flow and income and operating expense, that
have been delivered to Lender in respect of the Property (i) are to the best of
Borrower's knowledge, 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) to the extent prepared or audited by an independent
certified public accounting firm, have been prepared in accordance with
accounting principles reasonably acceptable to Lender, consistently applied
throughout the periods covered, except as disclosed therein; PROVIDED, HOWEVER,
that if any financial data is delivered to Lender by any Person other than
Borrower, Indemnitor or any of their Affiliates, or if such financial data has
been prepared by or at the direction of any Person other than Borrower,
Indemnitor or any of their Affiliates, then the foregoing representations with
respect to such financial data shall be to the best of Borrower's knowledge,
after due inquiry. 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 as retail shopping centers, except as referred to or reflected
in said financial statements. Since the date of such financial statements, there
has been no materially adverse change in the financial condition, operations or
business of Borrower from that set forth in said financial statements.
4.1.12 CONDEMNATION. No Condemnation or other proceeding has been
commenced or, to Borrower's knowledge, is contemplated with respect to all or
any portion of the Property or for the relocation of roadways providing access
to the Property.
4.1.13 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.
4.1.14 UTILITIES AND PUBLIC ACCESS. 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 respective intended
uses. All public utilities necessary or convenient to the full use and enjoyment
of the Property are located either in the public right-of-way abutting the
Property (which are connected so as to serve the Property without passing over
other property) or in recorded easements serving the Property and such easements
are set forth in and insured by the Title Insurance Policies. All roads
necessary for the use of the Property for their current respective purposes have
been completed and dedicated to public use and accepted by all Governmental
Authorities.
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4.1.15 NOT A FOREIGN PERSON. Borrower is not a "foreign person"
within the meaning of Section 1445(f)(3) of the Code.
4.1.16 SEPARATE LOTS. The Property is comprised of one (1) or more
parcels which constitute a separate tax lot or lots and does not constitute a
portion of any other tax lot not a part of the Property.
4.1.17 ASSESSMENTS. There are no pending, or to Borrower's
knowledge, 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.
4.1.18 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.
4.1.19 NO PRIOR ASSIGNMENT. There is no prior assignment of the
Leases or any portion of the Rents by Borrower or any of its predecessors in
interest, given as collateral security which is presently outstanding.
4.1.20 INSURANCE. Borrower has obtained and has delivered to Lender
certified copies of all insurance policies reflecting the insurance coverages,
amounts and other requirements set forth in this Agreement. To the best of
Borrower's knowledge, no claims have been made under any such policy, and no
Person, including Borrower, has done, by act or omission, anything which would
impair the coverage of any such policy.
4.1.21 USE OF PROPERTY. The Property is used exclusively for retail
purposes and other appurtenant and related uses.
4.1.22 CERTIFICATE OF OCCUPANCY; LICENSES. All certifications,
permits, licenses and approvals, including without limitation, certificates of
completion and occupancy permits required to be obtained by Borrower for the
legal use, occupancy and operation of the Property as a retail shopping center
have been obtained and are in full force and effect, and to the best of
Borrower's knowledge, after due inquiry, all certifications, permits, licenses
and approvals, including without limitation, certificates of completion and
occupancy permits required to be obtained by any Person other than Borrower for
the legal use, occupancy and operation of the Property as a retail shopping
center, have been obtained and are in full force and effect (all of the
foregoing certifications, permits, licenses and approvals are collectively
referred to as the "LICENSES"). Borrower shall and shall cause all other Persons
to, keep and maintain all Licenses necessary for the operation of the Property
as a retail shopping center. To Borrower's knowledge, the use being made of the
Property is in conformity with all certificates of occupancy issued for the
Property.
4.1.23 FLOOD ZONE. To the best of Borrower's knowledge, after due
inquiry, none of the Improvements on the Property are located in an area as
identified by the Federal Emergency Management Agency as an area having special
flood hazards.
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4.1.24 PHYSICAL CONDITION. Except as disclosed in the Physical
Conditions Reports delivered to Lender in connecting with this Loan, to
Borrower's knowledge, the Property, including, without limitation, all
buildings, improvements, parking facilities, sidewalks, storm drainage systems,
roofs, plumbing systems, HVAC systems, fire protection systems, electrical
systems, equipment, elevators, exterior sidings and doors, landscaping,
irrigation systems and all structural components, are in good condition, order
and repair in all material respects; 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.
4.1.25 BOUNDARIES. To the best of Borrower's knowledge, after due
inquiry, all of the improvements which were included in determining the
appraised value of the Property lie wholly within the boundaries and building
restriction lines of the Property, and no improvements on adjoining properties
encroach upon the Property, and no easements or other encumbrances upon 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 title
insurance.
4.1.26 LEASES. The Property is not subject to any Leases other than
the Leases described on the Rent Roll attached as SCHEDULE II hereto and made a
part hereof. To the best of Borrower's knowledge, no Person has any possessory
interest in the Property or right to occupy the same except under and pursuant
to the provisions of the Leases. The current Leases are in full force and effect
and to Borrower's knowledge, there are no defaults thereunder by either party
and there are no conditions that, with the passage of time or the giving of
notice, or both, would constitute defaults thereunder. To the best of Borrower's
knowledge, no Rent (including security deposits) has been paid more than one (1)
month in advance of its due date. To the best of Borrower's knowledge, all work
to be performed by Borrower under each Lease has been performed as required and
has been accepted by the applicable tenant, and 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. To the best of Borrower's knowledge, there has been no prior sale,
transfer or assignment, hypothecation or pledge of any Lease or of the Rents
received therein which is outstanding. To Borrower's knowledge, no tenant listed
on SCHEDULE II has assigned its Lease or sublet all or any portion of the
premises demised thereby, no such tenant holds its leased premises under
assignment or sublease, nor does anyone except such tenant and its employees
occupy such leased premises. No tenant under any Lease has a right or option
pursuant to such Lease or otherwise to purchase all or any part of the leased
premises or the building of which the leased premises are a part. Except as set
forth in SCHEDULE II, no tenant under any Lease has any right or option for
additional space in the Improvements except as set forth in SCHEDULE II. To
Borrower's actual knowledge based on the Environmental Report delivered to
Lender in connection herewith, no hazardous wastes or toxic substances, as
defined by applicable federal, state or local statutes, rules and regulations,
have been disposed, stored or treated by any tenant under any Lease on or about
the leased premises nor does Borrower have any knowledge of any tenant's
intention to use its leased premises for any activity which, directly or
indirectly, involves the use, generation, treatment, storage, disposal or
transportation of any petroleum product or any toxic or hazardous
32
chemical, material, substance or waste, except in either event, in compliance
with applicable federal, state or local statues, rules and regulations.
4.1.27 SURVEY. The Survey for the Property delivered to Lender in
connection with this Agreement has been prepared in accordance with the
provisions of Section 3.1.3(c) hereof, and does not fail to reflect any material
matter affecting the Property or the title thereto.
4.1.28 LOAN TO VALUE. The maximum principal amount of the Loan does
not exceed one hundred twenty-five percent (125%) of the fair market value of
the Property as set forth on the appraisals of the Property delivered to Lender.
4.1.29 FILING AND RECORDING TAXES. All transfer taxes, deed stamps,
intangible taxes or other amounts in the nature of transfer taxes required to be
paid by any Person under applicable Legal Requirements currently in effect in
connection with the transfer of the Property to Borrower have been paid or are
simultaneously being paid. All mortgage, mortgage recording, stamp, intangible
or other similar tax required to be paid by any Person under applicable Legal
Requirements currently in effect in connection with the execution, delivery,
recordation, filing, registration, perfection or enforcement of any of the Loan
Documents, including, without limitation, the Mortgage, have been paid, and,
under current Legal Requirements, the Mortgage is enforceable in accordance with
its terms by Lender (or any subsequent holder thereof).
4.1.30 SPECIAL PURPOSE ENTITY/SEPARATENESS.
(a) Until the Debt has been paid in full, Borrower hereby
represents, warrants and covenants that the Borrower is, shall be and shall
continue to be a Special Purpose Entity. If Borrower consists of more than one
Person, each such Person shall be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in
Section 4.1.30(a) shall survive for so long as any amount remains payable to
Lender under this Agreement or any other Loan Document.
(c) Any and all of the assumptions made in any Insolvency
Opinion, including, but not limited to, any exhibits attached thereto, will have
been and shall be true and correct in all respects, and Borrower will have
complied and will comply with all of the assumptions made with respect to it in
any Insolvency Opinion. Each entity other than Borrower with respect to which an
assumption is made in any Insolvency Opinion will have complied and will comply
with all of the assumptions made with respect to it in any such Insolvency
Opinion.
4.1.31 MANAGEMENT AGREEMENT. The Management Agreement is in full
force and effect and, to Borrower's knowledge, there is no default thereunder by
any party thereto and no event has occurred that, with the passage of time
and/or the giving of notice would constitute a default thereunder.
4.1.32 ILLEGAL ACTIVITY. To Borrower's knowledge, no portion of the
Property has been or will be purchased with proceeds of any illegal activity.
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4.1.33 NO CHANGE IN FACTS OR CIRCUMSTANCES; DISCLOSURE. All
information submitted by Borrower to Lender and in all financial statements,
rent rolls, reports, certificates and other documents submitted in connection
with the Loan or in satisfaction of the terms thereof and all statements of
fact made by Borrower in this Agreement or in any other Loan Document, are
accurate, complete and correct in all material respects, provided, however, that
if such information was provided to Borrower by non-affiliated third parties,
Borrower represents that such information is, to the best of its knowledge after
due inquiry, accurate, complete and correct in all material respects. There has
been no material adverse change in any condition, fact, circumstance or event
that would make any such information inaccurate, incomplete or otherwise
misleading in any material respect or that otherwise materially and adversely
affects or might materially and adversely affect the Property or the business
operations or the financial condition of Borrower. Borrower has disclosed to
Lender all material facts and has not failed to disclose any material fact that
could cause any representation or warranty made herein to be materially
misleading.
4.1.34 GROUND LEASE. (a) Borrower will comply in all material
respect with the terms and conditions of the Ground Lease. Borrower will not do
or permit anything to be done, the doing of which, or refrain from doing
anything, the omission of which, will impair or tend to impair the security of
the Property under the Ground Lease or will be grounds for declaring a
forfeiture of the Ground Lease.
(b) Borrower shall enforce the Ground Lease and will not
terminate, modify, cancel, change, supplement, alter or amend the Ground Lease,
or waive, excuse, condone or in any way release or discharge the lessors under
each Ground Lease (individually and collectively, the "GROUND LESSOR") of or
from any of the material covenants and conditions to be performed or observed by
the lessors under each Ground Lease. Borrower hereby expressly covenants with
Lender not to cancel, surrender, amend, modify or alter in any way the terms of
the Ground Lease. Borrower hereby assigns to Lender, as further security for the
payment of the Debt and for the performance and observance of the terms,
covenants and conditions of the Mortgage, all of the rights, privileges and
prerogatives of Borrower as tenant under the Ground Lease to surrender the
leasehold estate created by the Ground Lease or to terminate, cancel, modify,
change, supplement, alter or amend the Ground Lease, and any such surrender of
the leasehold estate created by the Ground Lease or termination, cancellation,
modification, change, supplement, alteration or amendment of the Ground Lease
without the prior consent of Lender shall be void and of no force and effect.
(c) Borrower will give Lender prompt (and in all events within
three (3) days) notice of any default under the Ground Lease of which it has
knowledge or of the receipt by Borrower of any notice of default from Ground
Lessor. Borrower will promptly (and in all events within three (3) days) furnish
to Lender copies of all information furnished to Ground Lessor by the terms of
the Ground Lease or the provisions of this Section. Borrower will deliver to
Lender an exact copy of any notice, communication, plan, specification or other
instrument or document received or given by Borrower in any way relating to or
affecting the Ground Lease which may concern or affect the estate of Ground
Lessor or Borrower thereunder in or under the Ground Lease or in the real estate
thereby demised.
34
(d) Lender shall have the right, but not the obligation, to
perform any obligations of Borrower under the terms of the Ground Lease during
the continuance of a default thereunder. All costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) so incurred, shall
be treated as an advance secured by the Mortgage, shall bear interest thereon at
the Default Rate from the date of payment by Lender until paid in full and shall
be paid by Borrower to Lender during the continuance of a default within five
(5) days after the demand. No performance by Lender of any obligations of
Borrower shall constitute a waver of any default arising by reason of Borrower's
failure to perform the same. If Lender shall make any payment or perform any act
or take action in accordance with this provision, Lender will notify Borrower of
the making of any such payment, the performance of any such act, or the taking
of any such action. In any such event, Lender and any person designated by
Lender shall have, and are hereby granted, the right to enter upon the Property
at any time and from time to time for the purpose of taking any such action.
(e) To the extent permitted by law, the price payable by Borrower
or any other person or entity in the exercise of any right or redemption
following foreclosure of the Property shall include all rents paid and other
sums advanced by Lender, together with interest thereon at the Default Rate as
ground lessee under the Ground Lease, on behalf of Borrower on account of the
Property.
(f) Unless Lender shall otherwise consent, the fee title and the
leasehold estate in the Property shall not merge but shall always be kept
separate and distinct, notwithstanding the union of said estates either in
Ground Lessor or in Borrower, or in a third party, by purchase or otherwise.
(g) Upon acquisition by Borrower of the fee title or any other
estate, title or interests in the Property, the Mortgage shall, automatically
and without the necessity of execution of any other documents, attach to and
cover and be a lien upon such other estate so acquired, and such other estate
shall be considered as mortgaged, assigned and conveyed to Lender an the lien
hereof spread to cover such estate with the same force and effect as though
specifically herein mortgaged, assigned and conveyed. The provisions of this
subsection (g) shall not apply if Lender acquires fee title to the Property
unless Lender shall so elect.
(h) Intentionally Omitted.
(i) Borrower shall exercise each individual option, if any, to
extend or renew the term of the Ground Lease promptly (and in all events within
five (5) days) after demand by Lender made at any time within one (1) year prior
to the last day upon which any such option may be exercised, and Borrower hereby
expressly authorizes and appoints Lender its attorney-in-fact to exercise any
such option in the name of and upon behalf of Borrower to exercise such option
if Borrower fails to exercise as herein required, which power of attorney shall
be irrevocable and shall be deemed to be coupled with an interest.
(j) Each Lease hereafter made and each renewal of any existing
Lease affecting the Property shall provide that, (i) in the event of the
termination of the Ground Lease, the Lease shall not terminate or be terminable
by the lessee; (ii) in the event of any action for the foreclosure of the
Mortgage, the Lease shall not terminate or be terminable by the lessee by
35
reason of the termination of the Ground Lease unless the lessee is specifically
named and joined in any such action and unless a judgment is obtained therein
against the lessee; and (iii) in the event that the Ground Lease is terminated
as aforesaid, the lessee under the Lease shall attorn to the lessor under the
Ground Lease or to the purchaser at the sale of the Property on such
foreclosure, as the case may be.
(k) Borrower hereby assigns, transfers and sets over to Lender
all of Borrower's claims and rights to the payment of damages arising from any
rejection by the Ground Lessor of the Ground Lease under the Bankruptcy Code.
Borrower shall notify Lender promptly (and in any event within five (5) days) of
any claim, suit action or proceeding relating to the rejection of the Ground
Lease. Lender is hereby irrevocably appointed as Borrower's attorney-in-fact,
coupled with an interest, with exclusive power to file and prosecute, to the
exclusion of Borrower, any proofs of claim, complaints, motions, applications,
notices and other documents, in any case in respect of the Ground Lessor under
the Bankruptcy Code during the continuance of any default. Borrower may make any
compromise or settlement in connection with such proceedings (subject to
Lender's approval); provided, however, that Lender shall be authorized and
entitled to compromise or settle any such proceeding if such compromise or
settlement is made after the occurrence of an Event of Default. Borrower shall
promptly execute and deliver to Lender any and all instruments reasonably
required in connection with any such proceeding after request therefor by
Lender. Except as set forth above, Borrower shall not adjust, compromise, settle
or enter into any agreement with respect to such proceedings without the prior
written consent of Lender.
(l) Borrower shall not, without Lender's prior written consent,
elect to treat the Ground Lease as terminated under Section 356(h)(1) of the
Bankruptcy Code. Any such election made without Lender's prior written consent
shall be void.
(m) If pursuant to Section 365(h)(2) of the Bankruptcy Code,
Borrower seeks to offset against the rent reserved in the Ground Lease the
amount of any damages caused by the non-performance by the Ground Lessor of any
of the Ground Lessor's obligations under the Ground Lease after the rejection by
the Ground Lessor of the Ground Lease under the Bankruptcy Code, Borrower shall,
prior to effecting such offset, notify Lender of its intention to do so, setting
forth the amounts proposed to be so offset and the basis therefor. If Lender has
failed to object as aforesaid within ten (10) days after notice from Borrower in
accordance with the first sentence of this subsection (m), Borrower may proceed
to effect such offset in the amounts set forth in Borrower's notice. Neither
Lender's failure to object as aforesaid nor any objection or other communication
between Lender and Borrower relating to such offset shall constitute an approval
of any such offset by Lender. Borrower shall indemnify and save Lender harmless
from and against any and all claims, demands, actions, suits, proceedings,
damages, losses, costs and expenses of every nature whatsoever (including,
without limitation, reasonable attorneys' fees and disbursements) arising from
or relating to any such offset by Borrower against the rent reserved in the
Ground Lease.
(n) If any action, proceeding, motion or notice shall be
commenced or filed in respect of Borrower or, following an Event of Default, the
Property in connection with any case under the Bankruptcy Code, Lender shall
have the option, to the exclusion of Borrower, exercisable upon notice from
Lender to Borrower, to conduct and control any such litigation with
36
counsel of Lender's choice. Lender may proceed in its own name or in the name of
Borrower in connection with any such litigation, and Borrower agrees to execute
any and all powers, authorizations, consents and other documents required by
Lender in connection therewith. Borrower shall pay to Lender al costs and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements) paid or incurred by Lender in connection with the prosecution or
conduct of any such proceedings within five (5) days after notice form Lender
setting forth such costs and expenses in reasonable detail. Any such costs or
expenses not paid by Borrower as aforesaid shall be secured by the lien of the
Mortgage, shall be added to the principal amount of the Debt and shall bear
interest at the Default Rate. Borrower shall not commence any action, suit,
proceeding or case, or file any application or make any motion, in respect to
the Ground Lease in any such case under the Bankruptcy Code without the prior
written consent of Lender.
(o) Borrower shall immediately, after obtaining knowledge
thereof, notify Lender of any filing by or against the Ground Lessor of a
petition under the Bankruptcy Code. Borrower shall thereafter forthwith give
written notice of such filing to Lender, setting forth any information available
to Borrower as to the date of such filing, the court in which such petition was
filed, and the relief sought therein. Borrower shall promptly deliver to Lender
following receipt any and all notices, summonses, pleadings, applications and
other documents received by Borrower in connection with any such petition and
any proceedings relating thereto.
(p) If there shall be filed by or against Borrower a petition
under the Bankruptcy Code, and Borrower, as the tenant under the Ground Lease,
shall determine to reject the Ground Lease pursuant to Section 365(a) of the
Bankruptcy Code, then Borrower shall give Lender not less than ten (10) days'
prior written notice of the date on which Borrower shall apply to the bankruptcy
court for authority to reject the Ground Lease. Lender shall have the right, but
not the obligation, to serve upon Borrower within such 10-day period a notice
stating that (i) Lender demands that Borrower assume and assign the Ground Lease
to Lender pursuant to Section 365 of the Bankruptcy Code and (ii) Lender
covenants to cure or provide adequate assurance of prompt cure of all defaults
and provide adequate assurance of further performance under the Ground Lease. If
Lender serves upon Borrower the notice described in the preceding sentence,
Borrower shall not seek to reject the Ground Lease and shall comply with the
demand provided for in clause (i) of the preceding sentence within thirty (30)
days after the notice shall have been given, subject to the performance by
Lender of the covenant provided for in clause (ii) of the preceding sentence.
(q) Effective upon the entry of an order for relief in respect of
Borrower under the Bankruptcy Code, Borrower hereby assigns and transfers to
Lender a non-exclusive right to apply to the Bankruptcy Court under Section
365(d)(4) of the Bankruptcy Code for an order extending the period during which
the Ground Lease may be rejected or assumed.
(r) Borrower represents and warrants that (i) the Ground Lease
may be assigned form time to time without the consent of Ground Lessor (or if
such consent is required, it has properly been obtained); (ii) Borrower has the
right under the Ground Lease to mortgage the Ground Lease and the leasehold
estate thereby created without the prior consent of Ground Lessor of such if
consent is required, it has properly been obtained; (iii) if any default by
Borrower shall occur under the Ground Lease, Lender is entitled under the Ground
Lease to receive notice of such default from Ground Lessor and an opportunity to
cure any such default
37
which is susceptible of cure by Lender; (iv) if the Ground Lease is terminated
by reason of a default by Borrower, Lender or its designee is entitled under the
Ground Lease to enter into a new lease (the "NEW LEASE") with Ground Lessor for
the remainder of the term of the Ground Lease upon the same base rent and
additional rent and other terms, covenants, conditions and agreements as are
contained in the Ground Lease; (v) the Ground Lease or a supplemental agreement
requires the Ground Lessor to give copies of all notices of default which are
given under the Ground Lease to Borrower contemporaneously to Lender; (vi) the
Ground Lease represents the entire agreement between the parties thereto and is
in full force and effect and has not been modified or supplemented; (vii) the
Ground Lease cannot be canceled solely by Ground Lessor and requires Borrower's
consent for all material modifications; (viii) all rents (including additional
rents and other charges) reserved for in the Ground Lease and payable prior to
the date thereof have been paid; (ix) no party to the Ground Lease is in default
of any obligation such party has thereunder and no event has occurred which,
with the giving of notice or the lapse of time, or both, would constitute such a
default; and (x) no notice or other written or oral communication has been
provided to any party under the Ground Lease which alleges that, as of the date
hereof, either a default exists or with the passage of time will exist under the
provisions of such Ground Lease.
4.1.35 PRINCIPAL PLACE OF BUSINESS AND ORGANIZATION. Borrower shall
not change its principal place of business set forth in the introductory
paragraph of this Agreement without first giving Lender thirty (30) days prior
written notice. Borrower shall not change the place of its organization as set
forth in the introductory paragraph of this Agreement without the consent of
Lender, which consent shall not be unreasonably withheld, conditioned or
delayed. Upon Lender's request, Borrower shall execute and deliver additional
financing statements, security agreements and other instruments which may be
necessary to effectively evidence or perfect Lender's security interest in the
Property as a result of such change of principal place of business or place of
organization.
4.1.36 INVESTMENT COMPANY ACT. Borrower is not (a) an "investment
company" or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended; (b) a "holding
company" or a "subsidiary company" of a "holding company" or an "affiliate" of
either a "holding company" or a "subsidiary company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended; or (c) subject to any
other federal or state law or regulation which purports to restrict or regulate
its ability to borrow money.
4.1.37 FICTITIOUS NAME STATUTE. Borrower, if applicable, has duly
complied with all requirements of the Florida Fictitious Name Statute.
4.2 SURVIVAL OF REPRESENTATIONS. Borrower agrees that all of the
representations and warranties of Borrower set forth in Section 4.1 and
elsewhere in this Agreement and in the other Loan Documents shall survive for so
long as any amount remains owing to Lender under this Agreement or any of the
other Loan Documents by Borrower. All representations, warranties, covenants and
agreements made in this Agreement or in the other Loan Documents by Borrower
shall be deemed to have been relied upon by Lender notwithstanding any
investigation heretofore or hereafter made by Lender or on its behalf
38
ARTICLE V
BORROWER COVENANTS
Section 5.1 AFFIRMATIVE COVENANTS. From the date hereof and until
payment and performance in full of all obligations of Borrower under the Loan
Documents or the earlier release of the Lien of the Mortgage encumbering the
Property (and all related obligations) in accordance with the terms of this
Agreement and the other Loan Documents, Borrower hereby covenants and agrees
with Lender that:
5.1.1 EXISTENCE; COMPLIANCE WITH LEGAL REQUIREMENTS; INSURANCE.
Borrower shall do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its existence, rights, licenses, permits and
franchises and comply with all Legal Requirements applicable to it and the
Property. There shall never be committed by Borrower or any other Person in
occupancy of or involved with the operation or use of the Property any act or
omission affording the federal government or any state or local government the
right of forfeiture as against the Property or any part thereof or any monies
paid in performance of Borrower's obligations under any of the Loan Documents.
Borrower hereby covenants and agrees not to commit, permit or suffer to exist
any act or omission affording such right of forfeiture. Borrower shall at all
times maintain, preserve and protect all its franchises and trade names and
preserve all the remainder, of its property used or useful in the conduct of its
business and shall keep the Property in good working order and repair, and from
time to time make, or cause to be made, all reasonably necessary repairs,
renewals, replacements, betterments and improvements thereto, all as more fully
provided in the Mortgage. Borrower shall keep the Property insured at all times
by financially sound and reputable insurers, to such extent and against such
risks, and maintain liability and such other insurance, as is more fully
provided in this Agreement. Borrower shall operate, or cause the tenant to
operate, any Property that is the subject of an O&M Agreement (if any) in
accordance with the terms and provisions thereof in all material respects. After
prior written notice to Lender, Borrower, at its own expense, may contest by
appropriate legal proceeding promptly initiated and conducted in good faith and
with due diligence, the validity of any Legal Requirement, the applicability of
any Legal Requirement to Borrower or the Property or any alleged violation of
any Legal Requirement, provided that (i) no Event of Default has occurred and
remains uncured; (ii) intentionally omitted; (iii) such proceeding shall be
permitted under and be conducted in accordance with the provisions of any
instrument to which Borrower is subject and shall not constitute a default
thereunder and such proceeding shall be conducted in accordance with the
provisions of any instrument to which Borrower is subject and shall not
constitute a default thereunder and such proceeding shall be conducted in
accordance with all applicable statutes, laws and ordinances; (iv) the Property
or any part thereof or interest therein will not be in danger of being sold,
forfeited, terminated, concealed or lost; (v) Borrower shall promptly upon final
determination thereof comply with any such Legal Requirement determined to be
valid or applicable or cure any violation of any Legal Requirement; (vi) such
proceeding shall suspend the enforcement of the contested Legal Requirement
against Borrower or the Property; and (vii) Borrower shall furnish such security
as may be required in the proceeding, or as may be requested by Lender, to
insure compliance with such Legal Requirement, together, with all interest and
penalties payable in connection therewith. Lender may apply any such security,
as necessary to cause compliance with such Legal Requirement at any time when,
in the reasonable judgment of Lender, the validity, applicability or violation
of such Legal Requirement
39
is finally established or the Property (or any part thereof or interest therein)
shall be in danger of being sold, forfeited, terminated, cancelled or lost.
5.1.2 TAXES AND OTHER CHARGES. Borrower shall pay or caused to be
paid all Taxes and Other Charges now or hereafter levied or assessed or imposed
against the Property or any part thereof as the same become due and payable;
provided, however, Borrower's obligation to directly pay to the appropriate
taxing authority Taxes shall be suspended for so long as Borrower complies with
the terms and provisions of Section 7.2 hereof. Borrower will deliver to Lender
receipts for payment or other evidence satisfactory to Lender that the Taxes and
Other Charges have been so paid or are not then delinquent no later than ten
(10) days prior to the date on which the Taxes and/or Other Charges would
otherwise be delinquent if not paid (PROVIDED, HOWEVER, that Borrower is not
required to furnish such receipts for payment of Taxes in the event that such
Taxes have been paid by Lender pursuant to Section 7.2 hereof). If Borrower pays
or causes to be paid all Taxes and Other Charges and provides a copy of the
receipt evidencing the payment thereof to Lender, then Lender shall reimburse
Borrower, provided that there are then sufficient proceeds in the Tax and
Insurance Escrow Fund and provided that the Taxes are being paid pursuant to
Section 7.2. Upon written request of Borrower, if Lender has paid such Taxes
pursuant to Section 7.2 hereof, Lender shall provide Borrower with evidence that
such Taxes have been paid. Borrower shall not suffer and shall promptly cause to
be paid and discharged any Lien or charge whatsoever which may be or become a
Lien or charge against the Property, and shall promptly pay for all utility
services provided to the Property. After prior written notice to Lender,
Borrower, at its own expense, may contest by appropriate legal proceeding,
promptly initiated and conducted in good faith and with due diligence, the
amount or validity or application in whole or in part of any Taxes or Other
Charges, provided that (i) Borrower is permitted to do so under the provisions
of any mortgage or deed of trust superior in lien to the Mortgage; (ii) such
proceeding shall be permitted under and be conducted in accordance with the
provisions of any other instrument to which Borrower is subject and shall not
constitute a default thereunder and such proceeding shall be conducted in
accordance with all applicable statutes, laws and ordinances; (iii) the Property
nor any part thereof or interest therein will be in danger of being sold,
forfeited, terminated, cancelled 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 such
contested Taxes or Other Charges from the Property; and (vi) Borrower shall
furnish such security as may be required in the proceeding, or as may be
reasonably requested by Lender, 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 deposit or part thereof 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.
5.1.3 LITIGATION. Borrower shall give prompt written notice to
Lender of any litigation or governmental proceedings pending or threatened
against Borrower which might materially adversely affect Borrower's condition
(financial or otherwise) or business or the Property.
5.1.4 ACCESS TO PROPERTY. Borrower shall permit agents,
representatives and employees of Lender to inspect the Property or any part
thereof at reasonable hours upon reasonable advance notice, subject to the
rights of Tenants under their respective Leases.
40
5.1.5 NOTICE OF DEFAULT. Borrower shall promptly advise Lender of
any material adverse change in Borrower's condition, financial or otherwise, or
of the occurrence of any Default or Event of Default of which Borrower has
knowledge.
5.1.6 COOPERATE IN LEGAL PROCEEDINGS. Borrower shall cooperate
fully with Lender with respect to any proceedings before any court, board or
other Governmental Authority which may in any way affect the rights of Lender
hereunder or any rights obtained by Lender under any of the other Loan Documents
and, in connection therewith, permit Lender, at its election, to participate in
any such proceedings.
5.1.7 PERFORM LOAN DOCUMENTS. Borrower shall observe, perform and
satisfy all the terms, provisions, covenants and conditions of, and shall pay
when due all costs, fees and expenses to the extent required under the Loan
Documents executed and delivered by, or applicable to, Borrower.
5.1.8 INSURANCE BENEFITS. Borrower shall cooperate with Lender in
obtaining for Lender the benefits of any Insurance Proceeds lawfully or
equitably payable in connection with the Property, and Lender shall be
reimbursed for any expenses incurred in connection therewith (including
reasonable attorneys' fees and disbursements, and the payment by Borrower of the
expense of an appraisal on behalf of Lender in case of a fire or other casualty
affecting the Property or any part thereof) out of such Insurance Proceeds.
5.1.9 FURTHER ASSURANCES. Borrower shall, at Borrower's sole cost
and expense:
(a) furnish to Lender all instruments, documents, boundary
surveys, footing or foundation surveys, certificates, plans and specifications,
appraisals, title and other insurance reports and agreements, and each and every
other document, certificate, agreement and instrument required to be furnished
by Borrower pursuant to the terms of the Loan Documents or reasonably requested
by Lender in connection therewith;
(b) 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 obligations of Borrower under the Loan
Documents, as Lender may reasonably require; and
(c) 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.
5.1.10 INTENTIONALLY OMITTED.
5.1.11 FINANCIAL REPORTING.
(a) Borrower will keep and maintain or will cause to be kept and
maintained on a Fiscal Year basis, in accordance with the requirements for a
Special Purpose Entity set forth above, proper and accurate books, records and
accounts reflecting all of the financial affairs of Borrower and all items of
income and expense in connection with the operation on an individual
41
basis of the Property. Lender shall have the right from time to time at all
times during normal business hours upon reasonable notice to examine such books,
records and accounts at the office of Borrower or other Person maintaining such
books, records and accounts and to make such copies or extracts thereof as
Lender shall desire. After the occurrence and during the continuance of an Event
of Default, Borrower shall pay any costs and expenses incurred by Lender to
examine Borrower's accounting records with respect to the Property, as Lender
shall reasonably determine to be necessary or appropriate in the protection of
Lender's interest.
(b) Borrower will furnish to Lender annually, within one hundred
twenty (120) days following the end of each Fiscal Year of Borrower, either (i)
a complete copy of Borrower's annual financial statements audited by a "Big
Four" accounting firm or other independent certified public accountant
reasonably acceptable to Lender in accordance with the requirements for a
Special Purpose Entity set forth above, or (ii) a consolidated and annotated
financial statement of Borrower and Sole Member, audited by a "Big Four"
accounting firm or other independent certified public accountant reasonably
acceptable to Lender in accordance with the requirements for a Special Purpose
Entity set forth above, together with unaudited financial statements relating to
the Borrower and the Property. Such financial statements for the Property for
such Fiscal Year and shall contain statements of profit and loss for Borrower
and the Property and a balance sheet for Borrower. Such statements shall set
forth the financial condition and the results of operations for the Property for
such Fiscal Year, and shall include, but not be limited to, amounts representing
annual Net Cash Flow, Net Operating Income, Gross Income from Operations and
Operating Expenses. Borrower's annual financial statements shall be accompanied
by (i) a comparison of the budgeted income and expenses and the actual income
and expenses for the prior Fiscal Year, (ii) a certificate executed by the chief
financial officer of Borrower or Sole Member, as applicable, stating that each
such annual financial statement presents fairly the financial condition and the
results of operations of Borrower and the Property being reported upon and has
been prepared in accordance with accounting principles reasonably acceptable to
Lender, consistently applied, (iii) with respect to any consolidated financial
statement of Borrower and Sole Member, an unqualified opinion of a "Big Four"
accounting firm or other independent certified public accountant reasonably
acceptable to Lender, (iv) a certified rent roll containing current rent, lease
expiration dates and the square footage occupied by each tenant; (v) a schedule
audited by such independent certified public accountant reconciling Net
Operating Income to Net Cash Flow (the "NET CASH FLOW SCHEDULE"), which shall
itemize all adjustments made to Net Operating Income to arrive at Net Cash Flow
deemed material by such independent certified public accountant. Together with
Borrower's annual financial statements, Borrower shall furnish to Lender an
Officer's Certificate certifying as of the date thereof whether there exists an
event or circumstance which constitutes a Default or Event of Default under the
Loan Documents executed and delivered by, or applicable to, Borrower, 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, or cause to be furnished, to Lender on
or before forty-five (45) days after the end of each calendar quarter the
following items, accompanied by a certificate of the chief financial officer of
Borrower or the member of Borrower, as applicable, stating 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 (subject to normal
year-end adjustments) as applicable: (i) a rent roll for the subject period
accompanied by an Officer's
42
Certificate with respect thereto; (ii) quarterly and year-to-date operating
statements (including Capital Expenditures) prepared for each calendar quarter,
noting Net Operating Income, Gross Income from Operations, and Operating
Expenses (not including any contributions to the Replacement Reserve Fund, and
other information necessary and sufficient to fairly represent the financial
position and results of operation of the Property during such calendar month,
and containing a comparison of budgeted income and expenses and the actual
income and expenses together with a detailed explanation of any variances of
five percent (5%) or more between budgeted and actual amounts for such periods,
all in form satisfactory to Lender; (iii) a calculation reflecting the annual
Debt Service Coverage Ratio for the immediately preceding twelve (12) month
period as of the last day of such period accompanied by an Officer's Certificate
with respect thereto; and (iv) a Net Cash Flow Schedule (such Net Cash Flow for
the Borrower may be unaudited if it is certified by an officer of the Borrower).
In addition, such certificate shall also be accompanied by a certificate of the
chief financial officer of Borrower or the member of Borrower stating that the
representations and warranties of Borrower set forth in Section 4.1.30(a) are
true and correct as of the date of such certificate. Provided, further, that
during the twelve (12) month period commencing on the date hereof, Borrower will
furnish a current rent roll and monthly and year-to-date operating statements
within twenty (20) days of Lender's written request.
(d) For the partial year period commencing on the date hereof,
and for each Fiscal Year thereafter, Borrower shall submit to Lender an Annual
Budget not later than thirty (30) days after the commencement of such period or
Fiscal Year in form reasonably satisfactory to Lender.
(e) Borrower shall furnish to Lender, within ten (10) Business
Days after request (or as soon thereafter as may be reasonably possible), such
further detailed information with respect to the operation of the Property and
the financial affairs of Borrower as may be reasonably requested by Lender.
(f) Borrower shall furnish to Lender, within ten (10) Business
Days after Lender's request (or as soon thereafter as may be reasonably
possible), financial and sales information from each Major Tenant and such other
tenants designated by Lender (to the extent such financial and sales information
is required to be provided under applicable leases and same is received by
Borrower after request therefor).
(g) Borrower will cause Indemnitor to furnish to Lender annually,
within one hundred twenty (120) days following the end of each Fiscal Year of
Indemnitor, financial statements audited by an independent certified public
accountant, which shall include an annual balance sheet and profit and loss
statement of Indemnitor, in the form reasonably required by Lender.
(h) Any reports, statements or other information required to be
delivered under this Agreement shall be delivered (i) in paper form, (ii) on a
diskette, and (iii) if requested by Lender and within the capabilities of
Borrower's data systems without change or modification thereto, in electronic
form and prepared using a Microsoft Word for Windows or WordPerfect for Windows
files (which files may be prepared using a spreadsheet program and saved as word
processing files).
43
5.1.12 BUSINESS AND OPERATIONS. Borrower will continue to engage in
the businesses presently conducted by it as and to the extent the same are
necessary for the ownership, maintenance, management and operation of the
Property. Borrower will qualify to do business and will remain in good standing
under the laws of each jurisdiction as and to the extent the same are required
for the ownership, maintenance, management and operation of the Property.
5.1.13 TITLE TO THE PROPERTY. Borrower will warrant and defend (a)
the title to the Property and every part thereof, subject only to Liens
permitted hereunder (including Permitted Encumbrances) and (b) the validity and
priority of the Liens of the Mortgage and the Assignment of Leases on the
Property, subject only to Liens permitted hereunder (including Permitted
Encumbrances), in each case against the claims of all Persons whomsoever.
Borrower shall reimburse Lender for any losses, costs, damages or expenses
(including reasonable attorneys' fees and court costs) incurred by Lender if an
interest in the Property, other than as permitted hereunder, is claimed by
another Person.
5.1.14 COSTS OF ENFORCEMENT. In the event (a) that the Mortgage
encumbering the Property is foreclosed in whole or in part or that the Mortgage
is put into the hands of an attorney for collection, suit, action or
foreclosure, (b) of the foreclosure of any mortgage prior to or subsequent to
the Mortgage encumbering the Property in which proceeding Lender is made a
party, or (c) of the bankruptcy, insolvency, rehabilitation or other similar
proceeding in respect of Borrower or any of its constituent Persons or an
assignment by Borrower or any of its constituent Persons for the benefit of its
creditors, Borrower, its successors or assigns, shall be chargeable with and
agrees to pay all costs of collection and defense, including reasonable
attorneys' fees and costs, incurred by Lender or Borrower in connection
therewith and in connection with any appellate proceeding or post-judgment
action involved therein, together with all required service or use taxes.
5.1.15 ESTOPPEL STATEMENT.
(a) After request by Lender, Borrower shall within ten (10) days
furnish Lender with a statement, duly acknowledged and certified, setting forth
(i) the amount of the original principal amount of the Note, (ii) the unpaid
principal amount of the Note, (iii) the Interest Rate of the Note, (iv) the date
installments of interest and/or principal were last paid, (v) any offsets or
defenses to the payment of the Debt, if any, and (vi) that the Note, this
Agreement, the Mortgage and the other Loan Documents are valid, legal and
binding obligations and have not been modified or if modified, giving
particulars of such modification.
(b) Borrower shall use commercially reasonable efforts to deliver
to Lender upon request, tenant estoppel certificates from each commercial tenant
leasing space at the Property in form and substance reasonably satisfactory to
Lender provided that Borrower shall not be required to deliver such certificates
more frequently than one (1) time in any calendar year.
(c) Within thirty (30) days of request by Borrower, Lender shall
deliver to Borrower a statement setting forth the items described at (a)(i),
(ii), (iii) and (iv) of this Section 5.1.15.
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5.1.16 LOAN PROCEEDS. Borrower shall use the proceeds of the Loan
received by it on the Closing Date only for the purposes set forth in Section
2.1.4.
5.1.17 PERFORMANCE BY BORROWER. Borrower shall in a timely manner
observe, perform and fulfill each and every covenant, term and provision of each
Loan Document executed and delivered by, or applicable to, Borrower, and shall
not enter into or otherwise suffer or permit any amendment, waiver, supplement,
termination or other modification of any Loan Document executed and delivered
by, or applicable to, Borrower without the prior written consent of Lender.
5.1.18 CONFIRMATION OF REPRESENTATIONS. Borrower shall deliver, in
connection with any Securitization, (a) one or more Officer's Certificates
certifying as to the accuracy of all representations made by Borrower in the
Loan Documents as of the date of the closing of such Securitization, and (b)
certificates of the relevant Governmental Authorities in all relevant
jurisdictions indicating the good standing and qualification of Borrower and its
member as of the date of the Securitization.
5.1.19 NO JOINT ASSESSMENT. Borrower shall not suffer, permit or
initiate the joint assessment of the Property (a) with any other real property
constituting a tax lot separate from the Property, and (b) which constitutes
real property 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 such real property portion of the Property.
5.1.20 LEASING MATTERS. Any Leases with respect to the Property
written after the date hereof, for more than the Relevant Leasing Threshold
square footage, shall be subject to the prior written approval of Lender, which
approval may be given or withheld in the sole discretion of Lender. Lender shall
approve or disapprove any such Lease within ten (10) Business Days of Lender's
receipt of a final execution draft of such Lease (including all exhibits,
schedules, supplements, addenda or other agreements relating thereto) and a
written notice from Borrower requesting Lender's approval to such Lease, and
such Lease shall be deemed approved, if Lender does not disapprove such Lease
within said ten (10) Business Day period PROVIDED such written notice
conspicuously states, in large bold type, that "PURSUANT TO SECTION 5.1.20 OF
THE
LOAN AGREEMENT, THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT
RESPOND TO THE CONTRARY WITHIN TEN (10) BUSINESS DAYS OF LENDER'S RECEIPT OF
SUCH LEASE AND WRITTEN NOTICE." Borrower shall furnish Lender with executed
copies of all Leases. All renewals of Leases and all proposed Leases shall
provide for rental rates comparable to existing local market rates (unless such
rental rates are otherwise set forth in the Leases executed prior to the date
hereof). All proposed Leases shall be on commercially reasonable terms and shall
not contain any terms which would materially affect Lender's rights under the
Loan Documents. All Leases executed after the date hereof shall provide that
they are subordinate to the Mortgage encumbering the Property and that the
tenant thereunder agrees to attorn to Lender or any purchaser at a sale by
foreclosure or power of sale. 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 tenant thereunder to be observed or
performed in a commercially reasonable manner and in a manner not to impair
45
the value of the Property involved except that no termination by Borrower or
acceptance of surrender by a tenant of any Lease shall be permitted unless by
reason of a tenant default and then only in a commercially reasonable manner to
preserve and protect the Property PROVIDED, HOWEVER, that no such termination or
surrender of any Lease covering more than the Relevant Leasing Threshold will be
permitted without the written consent of Lender which consent may be withheld in
the sole discretion of Lender; (iii) shall not collect any of the rents more
than one (1) month in advance (other than security deposits); (iv) shall not
execute any other assignment of lessor's interest in the Leases or the Rents
(except as contemplated by the Loan Documents); (v) shall not alter, modify or
change the terms of the Leases in a manner inconsistent with the provisions of
the Loan Documents without the prior written consent of Lender, which consent
may be withheld in the sole discretion of Lender; and (vi) shall execute and
deliver at the request of Lender all such further assurances, confirmations and
assignment in connection with the Leases as Lender shall from time to time
reasonably require. Notwithstanding the foregoing, Borrower may, without the
prior written consent of Lender, terminate any Lease which demises less than the
Relevant Leasing Threshold under any of the following circumstances: (i) the
tenant under said Lease is in default beyond any applicable grace and cure
period, and Borrower has the right to terminate such Lease; (ii) such
termination is permitted by the terms of the Lease in question and Borrower has
secured an obligation from a third party to lease the space under the Lease to
be terminated at a rental equal to or higher than the rental due under the Lease
to be terminated; and (iii) if the tenant under the Lease to be terminated has
executed a right under said Lease to terminate its lease upon payment of a
termination fee to Borrower, and has in fact terminated its lease and paid said
fee, Borrower may accept said termination.
5.1.21 ALTERATIONS. Subject to the rights of tenants to make
alterations pursuant to the terms of their respective Leases, Borrower shall
obtain Lender's prior written consent to any alterations to any Improvements,
which consent shall not be unreasonably withheld or delayed except with respect
to alterations that may have a material adverse effect on Borrower's financial
condition, the value of the Property or the Net Operating Income.
Notwithstanding the foregoing, Lender's consent shall not be required in
connection with any alterations that will not have a material adverse effect on
Borrower's financial condition the value of the Property or the Net Operating
Income, provided that such alterations are made in connection with (a) tenant
improvement work performed pursuant to the terms of any Lease executed on or
before the date hereof, (b) tenant improvement work performed pursuant to the
terms and provisions of a Lease and not adversely affecting any structural
component of any Improvements, any utility or HVAC system contained in any
Improvements or the exterior of any building constituting a part of any
Improvements, (c) alterations performed in connection with the restoration of
the Property after the occurrence of a casualty in accordance with the terms and
provisions of this Agreement or (d) any structural alteration which costs less
than $50,000,00 in the aggregate for all components thereof which constitute
such alteration or any non-structural alteration which costs less than
$100,000.00 in the aggregate for all components thereof which constitute such
alteration. If the total unpaid amounts due and payable with respect to
alterations to the Improvements at the Property (other than such amounts to be
paid or reimbursed by tenants under the Leases) shall at any time equal or
exceed $350,000.00 (the "THRESHOLD AMOUNT"), 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: (A)
cash, (B) U.S. Obligations, (C) other securities having a rating acceptable to
Lender and that the applicable Rating Agencies have confirmed in writing will
not, in and of itself, result in a downgrade,
46
withdrawal or qualification of the initial, or, if higher, then current ratings
assigned in connection with any Securitization, or (D) a completion bond or
letter of credit issued by a financial institution having a rating by Standard &
Poor's Ratings Group of not less than A-1+ if the term of such bond or letter of
credit is no longer than three (3) months or, if such term is in excess of three
(3) months, issued by a financial institution having a rating that is acceptable
to Lender and that the applicable Rating Agencies have confirmed in writing will
not, in and of itself, result in a downgrade, withdrawal or qualification of the
initial, or, if higher, then current ratings assigned in connection with any
Securitization. Such security shall be in an amount equal to the excess of the
total unpaid amounts with respect to alterations to the Improvements on the
Property (other than such amounts to be paid or reimbursed by tenants under the
Leases) over the Threshold Amount and, if cash, may be applied from time to
time, at the option of Borrower, to pay for such alterations. At the option of
Lender, following the occurrence and during the continuance of an Event of
Default, Lender may terminate any of the alterations and use the deposit to
restore the Property to the extent necessary to prevent any material adverse
effect on the value of the Property.
5.1.22 PRINCIPAL PLACE OF BUSINESS. Borrower shall not change its
principal place of business set forth on the first page of this Agreement
without first giving Lender thirty (30) days prior written notice.
5.1.23 GROUND LEASE. Borrower shall timely pay all Ground Rents and
other sums due under the Ground Lease and shall timely perform all of its
obligations under the Ground Lease.
Section 5.2 NEGATIVE COVENANTS. From the date hereof until payment
and performance in full of all obligations of Borrower under the Loan Documents
or the earlier release of the Lien of the Mortgage encumbering the Property in
accordance with the terms of this Agreement and the other Loan Documents,
Borrower covenants and agrees with Lender that it will not do, directly or
indirectly, any of the following:
5.2.1 OPERATION OF PROPERTY. Borrower shall not, without the prior
consent of Lender, terminate the Management Agreement or otherwise replace the
Manager or enter into any other management agreement with respect to the
Property unless the Manager is in default thereunder beyond any applicable grace
or cure period, in which event no consent by Lender shall be required. Lender
agrees that its consent will not be unreasonably withheld, delayed or
conditioned provided that the Person chosen by Borrower as the replacement
Manager is a Qualifying Manager and provided further that Borrower shall deliver
an acceptable non-consolidation opinion covering such replacement Manager if
any such opinion was delivered at the closing of the Loan and such Person was
not covered by that opinion.
5.2.2 LIENS. Borrower shall not, without the prior written consent
of Lender, create, incur, assume or suffer to exist any Lien on any portion of
the Property or permit any such action to be taken, except:
(i) Permitted Encumbrances;
(ii) Liens created by or permitted pursuant to the Loan Documents;
and
47
(iii) Liens for Taxes or Other Charges not yet due.
5.23 DISSOLUTION. Borrower shall not (a) engage in any
dissolution, liquidation or consolidation or merger with or into any other
business entity, (b) engage in any business activity not related to the
ownership and operation of the Property, (c) transfer, lease or sell, in one
transaction or any combination of transactions, the assets or all or
substantially all of the properties or assets of Borrower except to the extent
permitted by the Loan Documents, (d) modify, amend, waive or terminate its
organizational documents or its qualification and good standing in any
jurisdiction or (e) cause the Sole Member to (i) dissolve, wind up or liquidate
or take any action, or omit to take an action, as a result of which the Sole
Member would be dissolved, wound up or liquidated in whole or in part, or (ii)
amend, modify, waive or terminate the certificate of limited partnership or
partnership agreement of the Sole Member, in each case, without obtaining the
prior written consent of Lender or Lender's designee.
5.2.4 CHANGE IN BUSINESS. Borrower shall not enter into any line of
business other than the ownership and operation of the Property, or make any
material change in the scope or nature of its business objectives, purposes or
operations, or undertake or participate in activities other than the continuance
of its present business.
5.2.5 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.
5.2.6 AFFILIATE TRANSACTIONS. Borrower shall not enter into, or be
a party to, any transaction with an Affiliate of Borrower or any of the partners
of Borrower except in the ordinary course of business and on terms which are
fully disclosed to Lender in advance and are no less favorable to Borrower or
such Affiliate than would be obtained in a comparable arm's-length transaction
with an unrelated third party. Lender hereby acknowledges disclosure of the
agreements described on SCHEDULE VI between Borrower and an Affiliate of
Borrower.
5.2.7 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.
5.2.8 ASSETS. Borrower shall not purchase or own any properties
other than the Property.
5.2.9 DEBT. Borrower shall not create, incur or assume any
Indebtedness other than the Debt except to the extent expressly permitted
hereby.
5.2.10 NO JOINT ASSESSMENT. Borrower shall not suffer, permit or
initiate the joint assessment of the Property with (a) any other real property
constituting a tax lot separate from the Property, or (b) 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.
48
5.2.11 INTENTIONALLY DELETED.
5.2.12 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 ERISA.
(b) Borrower further covenants and agrees to deliver to Lender
such certifications or other evidence from time to time throughout the term of
the Loan, 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 2510.3-10l(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).
5.2.13 TRANSFERS. Unless such action is permitted by the provisions
of this Section 5.2.13, Borrower will not (i) sell, assign, convey, transfer or
otherwise dispose of its interests in the Property or any part thereof, (ii)
permit any owner, directly or indirectly, of an ownership interest in the
Property, to transfer such interest, whether by transfer of stock or other
interest in Borrower or any entity, or otherwise, (iii) incur Indebtedness, (iv)
mortgage, hypothecate or otherwise encumber or grant a security interest in the
Property or any part thereof, (v) sell, assign, convey, transfer, mortgage,
encumber, grant a security interest in, or otherwise dispose of any direct or
indirect ownership interest in Borrower, or permit any owner of an interest in
Borrower to do the same, or (vi) file a declaration of condominium with respect
to the Property (any of the foregoing transactions, a "TRANSFER"). For purposes
hereof, a "Transfer" shall not include any issuance, sale or transfer of
interests in Inland Western Retail Real Estate Trust, Inc.
(a) On and after the date that is the later of (i) twelve (12)
months following the Closing Date, or (ii) the date of any payment of the
Contingent Amount pursuant to the Purchase Contract, but in no event later than
the date that is twenty four (24) months following the Closing Date, Lender
shall not withhold its consent to a Transfer of the Property, provided that the
following conditions are satisfied:
(1) the transferree of the Property shall be a Special Purpose
Entity (the "TRANSFEREE") which at the time of such transfer
will be in compliance
49
with the covenants contained in Section 5.1.1 and the
representations contained in 4.1.30 hereof and which shall
have assumed in writing (subject to the terms of Section 9.4
hereof) and agreed to comply with all the terms, covenants
and conditions set forth in this
Loan Agreement and the other
Loan Documents, expressly including the covenants contained
in Section 5.1.1 and the representations contained in 4.1.30
hereof;
(2) if requested by Lender, Borrower shall deliver confirmation
in writing from the Rating Agencies that such proposed
Transfer will not cause a downgrading, withdrawal or
qualification of the then current rating of any securities
issued pursuant to such Securitization;
(3) if Manager does not act as manager of the transferred
Property then the manager of the Property must be a
Qualifying Manager;
(4) no Event of Default shall have occurred and be continuing;
(5) if required or requested by any of the Rating Agencies,
Borrower shall deliver an Additional Insolvency Opinion, and
if required by a Rating Agency, a fraudulent conveyance
opinion with respect to Transferee, which opinion shall be
acceptable to Lender in its reasonable discretion;
(6) Borrower shall have paid (A) an assumption fee equal to one
percent (1.0%) of the then outstanding principal balance of
the Loan, and (B) the reasonable and customary third-party
expenses (including reasonable attorneys' fees and
disbursements) actually incurred by Lender in connection with
such Transfer; PROVIDED, HOWEVER, no assumption fee shall be
required for a Transfer of the Property to a Transferee
acceptable to Lender in connection with a joint venture
between Inland Western Retail Real Estate Trust, Inc. and an
institution acceptable to Lender provided Inland Western
Retail Real Estate Trust, Inc., or an Affiliate wholly-owned
(directly or indirectly) by Inland Western Retail Real Estate
Trust, Inc., owns at least twenty percent (20%) of the
ownership interests in such Transferee and for which Inland
Western Retail Real Estate Trust, Inc., or an Affiliate
wholly-owned (directly or indirectly) by Inland Western
Retail Real Estate Trust, Inc., is the managing entity and
otherwise maintains operational and managerial control of
such Transferee, provided that Borrower shall pay all of
Lender's reasonable and customary third-party expenses
(including reasonable attorneys' fees and disbursements)
actually incurred by Lender in connection with such Transfer
and a processing fee of $5,000.
Lender shall notify Borrower of its approval or disapproval of a proposed
Transfer pursuant to this Section 5.2.13(a) within thirty (30) days after
receiving from Borrower a written request therefor.
50
(b) On and after the date that is twelve (12) months following
the Closing Date, Lender shall not withhold its consent to, and shall not charge
an assumption fee in connection with, (1) a Transfer of up to, in the aggregate,
forty-nine percent (49%) of the ownership interests in Borrower; or (2) a
Transfer of greater than forty-nine percent (49%) of the ownership interest in
Borrower, PROVIDED that (A) such transfer is to a Qualified Entity (as defined
below), and (B) Borrower shall pay all of Lender's reasonable and customary
third-party expenses (including reasonable attorneys' fees and disbursements)
actually incurred by Lender in connection with such Transfer and a processing
fee of $5,000. For purposes of this Agreement, a "QUALIFIED ENTITY" shall mean
an entity (x) with a net worth of $200,000,000 or more, (y) with sufficient
experience (determined by Lender in its reasonable discretion) in the ownership
and management of properties similar to the Property, and (z) which owns or
manages retail properties containing at least 500,000 square feet of gross
leasable area.
(c) Notwithstanding anything in this Section 5.2.13 to the
contrary, Borrower shall be permitted to Transfer the entire Property to a
newly-formed Special Purpose Entity which shall be wholly-owned subsidiary of
Inland Western Retail Real Estate Trust, Inc. or affiliate thereof ("PERMITTED
AFFILIATE TRANSFEREE") which shall be approved by Lender by the Closing Date
("PERMITTED AFFILIATE TRANSFER"), provided (1) no Event of Default shall have
occurred and be continuing, (2) the creditworthiness of Inland Western Retail
Real Estate Trust, Inc., as applicable, has not deteriorated, in the sole
discretion of Lender, from the Closing Date to the date of the proposed
Transfer, and (3) Borrower shall have paid all reasonable and customary third
party expenses (including reasonable attorneys' fees and disbursements) actually
incurred by Lender in connection with such Transfer (but not any assumption or
processing fee).
(d) Borrower, without the consent of Lender, may grant easements,
restrictions, covenants, reservations and rights of way in the ordinary course
of business for access, parking, water and sewer lines, telephone and telegraph
lines, electric lines and other utilities or for other similar purposes,
provided that no transfer, conveyance or encumbrance shall materially impair the
utility and operation of the Property or materially adversely affect the value
of the Property or the Net Operating Income of the Property. If Borrower shall
receive any consideration in connection with any of said described transfers or
conveyances, Borrower shall have the right to use any such proceeds in
connection with any alterations performed in connection therewith, or required
thereby. In connection with any transfer, conveyance or encumbrance permitted
above, the Lender shall execute and deliver any instrument reasonably necessary
or appropriate to evidence its consent to said action or to subordinate the Lien
of the Mortgage to such easements, restrictions, covenants, reservations and
rights of way or other similar grants upon receipt by the Lender of: (A) a copy
of the instrument of transfer; and (B) an Officer's Certificate stating with
respect to any transfer described above, that such transfer does not materially
impair the utility and operation of the Property or materially reduce the value
of the Property or the Net Operating Income of the Property.
51
ARTICLE VI
INSURANCE; CASUALTY; CONDEMNATION
Section 6.1 INSURANCE.
(a) Borrower shall obtain and maintain, or cause to be
maintained, insurance for Borrower and the Property providing at least the
following coverages:
(i) comprehensive all risk insurance on the Improvements and the
Personal Property, including contingent liability from Operation of
Building Laws, Demolition Costs and Increased Cost of Construction
Endorsements, in each case (A) in an amount equal to one hundred percent
(100%) of the "Full Replacement Cost," which for purposes of this Agreement
shall mean actual replacement value (exclusive of costs of excavations,
foundations, underground utilities and footings) with a waiver of
depreciation, but the amount shall in no event be less than the outstanding
principal balance of the Loan; (B) containing an agreed amount endorsement
with respect to the Improvements and Personal Property waiving all
co-insurance provisions; (C) providing for no deductible in excess of Ten
Thousand and No/100 Dollars ($10,000) for all such insurance coverage; and
(D) containing an "Ordinance or Law Coverage" or "Enforcement" endorsement
if any of the Improvements or the use of the Property shall at any time
constitute legal non-conforming structures or uses. In addition, Borrower
shall obtain: (y) if any portion of the Improvements is currently or at any
time in the future located in a federally designated "special flood hazard
area," flood hazard insurance in an amount equal to the lesser of (1) the
outstanding principal balance of the Note or (2) the maximum amount of such
insurance available under the National Flood Insurance Act of 1968, the
Flood Disaster Protection Act of 1973 or the National Flood Insurance
Reform Act of 1994, as each may be amended or such greater amount as Lender
shall 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 against claims for
personal injury, bodily injury, death or property damage occurring upon, in
or about the Property, such insurance (A) to be on the so-called
"occurrence" form with a combined limit, including umbrella coverage, of
not less than Two Million and No/100 Dollars ($2,000,000.00) in the
aggregate and One Million and No/100 Dollars ($1,000,000.00) per
occurrence; (B) to continue at not less than the aforesaid limit until
required to be changed by Lender in writing by reason of changed economic
conditions making such protection inadequate; and (C) to cover at least the
following hazards: (1) premises and operations; (2) products and completed
operations on an "if any" basis; (3) independent contractors; (4) blanket
contractual liability for all legal contracts; and (5) contractual
liability covering the indemnities contained in Article 9 of the Mortgage
to the extent the same is available;
(iii) business income insurance (A) with loss payable to Lender;
(B) covering all risks required to be covered by the insurance provided for
in subsection (i) above; (C)
52
covering rental losses or business interruption, as may be applicable, for
a period of at least twelve (12) months after the date of the casualty and
containing any 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 six (6) 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 annual amount equal to 100% of the rents or estimated gross
revenues from the operation of the Property (as reduced to reflect expenses
not incurred during Restoration). The amount of such business income
insurance shall be determined prior to the date hereof and at least once
each year thereafter based on Borrower's reasonable estimate of the gross
income from the Property for the succeeding twelve (12) 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 obligations secured by the Loan
Documents on the respective dates of payment provided for in the Note and
the other Loan Documents except to the extent such amounts are actually
paid out of the proceeds of such business income insurance;
(iv) at all times during which structural construction, repairs or
alterations are being made with respect to the Improvements, and only if
the Property coverage form does not otherwise apply, (A) owner's contingent
or protective liability insurance covering claims not covered by or under
the terms or provisions of the above mentioned commercial general liability
insurance policy; and (B) the insurance provided for in subsection (i)
above written in a so-called builder's risk completed value form (1) on a
non-reporting basis, (2) against all risks insured against pursuant to
subsection (i) above, (3) including permission to occupy the Property, and
(4) with an agreed amount endorsement waiving co-insurance provisions;
(v) workers' compensation, subject to the statutory limits of the
State;
(vi) comprehensive boiler and machinery insurance, if applicable,
in amounts as shall be reasonably required by Lender on terms consistent
with the commercial property insurance policy required under subsection (i)
above;
(vii) umbrella liability insurance in an amount not less than Five
Million and No/100 Dollars ($5,000,000.00) per occurrence on terms
consistent with the commercial general liability insurance policy required
under subsection (ii) above;
(viii) if any of the policies of insurance covering the risks
required to be covered under subsections (i) through (vii) above contains
an exclusion from coverage for acts of terrorism, Borrower shall obtain and
maintain a separate policy providing such coverages in the event of any act
of terrorism, provided such coverage is commercially available for
properties similar to the Property and located in or around the region in
which the Property is located. Notwithstanding the foregoing, Borrower
shall not be required to
53
obtain such a policy, provided (I) Borrower confirms to Lender, in writing,
that it shall protect and hold Lender harmless from any losses associated
with such risks by, among other things, either (A) depositing with Lender
sums sufficient to pay for all uninsured costs related to a Restoration of
the Property following any act of terrorism (which sum shall be treated as
a Net Proceeds Deficiency) and any remaining balance following a
Restoration shall be remitted by Lender to Borrower in accordance with
Section 6.4(b)(vii) hereof), or (B) at the option of Borrower prepaying the
Loan in accordance with the terms hereof, including, without limitation,
the payment of any Prepayment Consideration due in connection therewith;
(II) Inland Western Retail Real Estate Trust, Inc. ("TERRORISM INSURANCE
GUARANTOR") executes a guaranty, in form and substance satisfactory to
Lender, guaranteeing in the event of any act of terrorism, payment to
Lender of any sums that Borrower is obligated to pay to Lender under clause
(I) above (which shall be applied in accordance with Section 6.4 hereof),
and (III) Terrorism Insurance Guarantor maintains a net worth of at least
$300,000,000 (as determined by such entity's most recent audited financial
statements), such entity maintains a direct or indirect ownership interest
in Borrower, and the aggregate loan-to-value ratio (as determined by
Lender) ("LTV") for all properties on which such entity has a direct or
indirect ownership interest shall not exceed 55%, however, Terrorism
Insurance Guarantor may exceed the 55% LTV for a period not to exceed six
(6) months out of any twelve (12) month period either 1) during the time
period when Terrorism Insurance Guarantor is offering securities to the
public, or 2) when in the business judgement of Terrorism Insurance
Guarantor, exceeding an LTV of 55% is necessary given existing
circumstances of the credit environment, but in no event shall the LTV
exceed 65% if Terrorism Insurance Guarantor maintains a net worth greater
than or equal to $300,000,000, but less than $400,000,000, or 70% if
Terrorism Insurance Guarantor maintains a net worth of at least
$400,000,000.
(ix) upon sixty (60) days' written 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 6.1(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 insurance companies, amounts, deductibles, loss payees and insureds. The
Policies shall be issued by financially sound and responsible insurance
companies authorized to do business in the State and having a rating of "A:X" or
better in the current Best's Insurance Reports and a claims paying ability
rating of "AA" or better by at least two (2) of the Rating Agencies including,
(i) Standard & Poor's Ratings Group, and (ii) ▇▇▇▇▇'▇ Investors Services, Inc.
if ▇▇▇▇▇'▇ Investors Service, Inc. is rating the Securities. The Policies
described in Section 6.1 (other than those strictly limited to liability
protection) shall designate Lender as loss payee. Not less than thirty (30) 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 due thereunder (the "INSURANCE
PREMIUMS"), shall be delivered by Borrower to Lender.
54
(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 6.1(a).
(d) All Policies of insurance provided for or contemplated by
Section 6.1(a), except for the Policy referenced in Section 6.l(a)(v), shall
name Borrower, or the Tenant, as the insured and Lender 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.
(e) All Policies of insurance provided for in Section 6.l(a)
shall contain clauses or endorsements to the effect that;
(i) no act or negligence of Borrower, or anyone acting for
Borrower, or of any Tenant or other occupant, or failure to comply with the
provisions of any Policy, which might otherwise result in a forfeiture of
the insurance or any part thereof, shall in any way affect the validity or
enforceability of the insurance insofar as Lender is concerned;
(ii) the Policy shall not be materially changed (other than to
increase the coverage provided thereby) or canceled without at least thirty
(30) days' written notice to Lender and any other party named therein as an
additional insured;
(iii) the issuers thereof shall give written notice to Lender if
the Policy has not been renewed fifteen (15) days prior to its expiration;
and
(iv) 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, after ten (10) Business Days written notice to Borrower, to take
such action as Lender deems necessary to protect its interest in the Property,
including, without limitation, the obtaining of such insurance coverage as
Lender in its sole discretion deems appropriate. 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. If Borrower
fails in so insuring the Property or in so assigning and delivering the
Policies, Lender may, at its option, obtain such insurance using such carriers
and agencies as Lender shall elect from year to year and pay the premiums
therefor, and Borrower will reimburse Lender for any premium so paid, with
interest thereon as stated in the Note from the time of payment, on demand, and
the amount so owing to Lender shall be secured by the Mortgage. The insurance
obtained by Lender may, but need not, protect Borrower's interest and the
coverage that Lender purchases may not pay any claim that Borrower makes or any
claim, that is made against Borrower in connection with the Property.
55
Section 6.2 CASUALTY. If the Property shall be damaged or destroyed,
in whole or in part, by fire or other casualty (a "CASUALTY"). Borrower (a)
shall give to Lender prompt notice of such damage reasonably estimated by
Borrower to cost more than One Hundred Thousand Dollars ($100,000.00) to repair,
and (b) shall promptly commence and diligently prosecute the completion of the
repair and restoration of the Property as nearly as possible to the condition
the Property was in immediately prior to such fire or other casualty, with such
alterations as may be reasonably approved by Lender (a "RESTORATION") and
otherwise in accordance with Section 6.4. 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 make proof of loss if not made promptly by Borrower.
Section 6.3 CONDEMNATION. Borrower shall promptly give Lender notice
of the actual or threatened commencement of any proceeding for the Condemnation
of the Property and shall deliver to Lender copies of any and all papers served
in connection with such proceedings. Lender may participate in any such
proceedings, and Borrower shall from time to time deliver to Lender all
instruments requested by it 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 taking by any public or
quasi-public authority through Condemnation or otherwise (including but not
limited to any transfer made in lieu of or in anticipation of the exercise of
such taking), Borrower shall continue to pay the Debt at the time and in the
manner provided for its payment in the Note and in this Agreement and the Debt
shall not be reduced until any Award shall have been actually received and
applied by Lender, after the deduction of expenses of collection, to the
reduction or discharge of the Debt. Lender shall not be limited to the interest
paid on the Award by the condemning authority but shall be entitled to receive
out of the Award interest at the rate or rates provided herein or in the Note.
If the Property or any portion thereof is taken by a condemning authority,
Borrower shall promptly commence and diligently prosecute the Restoration of the
Property and otherwise comply with the provisions of Section 6.4. 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.
Section 6.4 RESTORATION. The following provisions shall apply in
connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Relevant Restoration
Threshold and the costs of completing the Restoration shall be less than the
Relevant Restoration Threshold, the Net Proceeds will be disbursed by Lender to
Borrower upon receipt, provided that all of the conditions set forth in clauses
(A), (E), (F), (G), (H), (J) and (L) of Section 6.4(b)(i) below are met and
Borrower delivers to Lender a written undertaking to expeditiously commence and
to satisfactorily complete with due diligence the Restoration in accordance with
the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than the Relevant
Restoration Threshold or the costs of completing the Restoration is equal to or
greater than the Relevant Restoration Threshold, then in either case, Lender
shall make the Net Proceeds available for the
56
Restoration in accordance with the provisions of this Section 6.4(b). The term
"NET PROCEEDS" for purposes of this Section 6.4 shall mean: (x) the net amount
of all insurance proceeds received by Lender pursuant to Section 6.1 (a)(i),
(iv), (vi) and (viii) as a result of such damage or destruction, after deduction
of its reasonable costs and expenses (including, but not limited to, reasonable
counsel fees), if any, in collecting same ("INSURANCE PROCEEDS"), or (y) the net
amount of the Award, after deduction of its reasonable costs and expenses
(including, but not limited to, reasonable counsel fees), if any, in collecting
same ("CONDEMNATION PROCEEDS"), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for
Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be
continuing;
(B) (1) in the event the Net Proceeds are Insurance
Proceeds, and (x) less than twenty-five percent (25%) of the total
floor area of the Improvements on the Property has been damaged,
destroyed or rendered unusable as a result of such fire or other
casualty, or (y) Borrower is required under a Lease exceeding the
Relevant Leasing Threshold to use the Net Proceeds for the restoration
of the Property, or (2) in the event the Net Proceeds are Condemnation
Proceeds, and (x) 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
located on such land, or (y) Borrower is required under a Lease
exceeding the Relevant Leasing Threshold to use the Net Proceeds for
the restoration of the Property;
(C) Leases demising in the aggregate a percentage amount
equal to or greater than the Rentable Space Percentage of the total
rentable space in the Property which has been demised under executed
and delivered Leases in effect as of the date of the occurrence of
such fire or other casualty or taking, whichever the case may be,
shall remain in full force and effect during and after the completion
of the Restoration, notwithstanding the occurrence of any such fire or
other casualty or taking, whichever the case may be, and will make all
necessary repairs and restorations thereto at their sole cost and
expense. The term "RENTABLE SPACE PERCENTAGE" shall mean (x) in the
event the Net Proceeds are Insurance Proceeds, a percentage amount
equal to fifty percent (50%) and (y) in the event the Net Proceeds are
Condemnation Proceeds, a percentage amount equal to fifty percent
(50%);
(D) Borrower shall commence the Restoration as soon as
reasonably practicable (but in no event later than ninety (90) days
after such damage or destruction or taking, whichever the case may be,
occurs) and shall diligently pursue the same to satisfactory
completion;
(E) Lender shall be satisfied that any operating deficits,
including all scheduled payments of principal and interest under the
Note, which will be incurred with respect to the Property as a result
of the occurrence of any such fire
57
or other casualty or taking, whichever the case may be, will be
covered out of (1) the Net Proceeds, (2) the insurance coverage
referred to in Section 6.1(a)(iii), if applicable, or (3) by other
funds of Borrower;
(F) Lender shall be satisfied that the Restoration will be
completed on or before the earliest to occur of (1) the Maturity Date,
(2) the earliest date required for such completion under the terms of
any Leases, (3) such time as may be required under applicable zoning
law, ordinance, rule or regulation in order to repair and restore the
Property to the condition it was in immediately prior to such fire or
other casualty or to as nearly as possible the condition it was in
immediately prior to such taking, as applicable or (4) the expiration
of the insurance coverage referred to in Section 6.1(a)(iii);
(G) the Property and the use thereof after the Restoration
will be in compliance with and permitted under all applicable zoning
laws, ordinances, rules and regulations provided, however, that
compliance with such zoning laws, ordinances, rules and regulations
(including, without limitation, parking requirements) will not require
restoration of the Improvements or the Property to a size, condition,
or configuration materially different than that which existed
immediately prior to such Casualty or taking;
(H) the Restoration shall be done and completed by
Borrower in an expeditious and diligent fashion and in compliance with
all applicable governmental laws, rules and regulations (including,
without limitation, all applicable environmental laws);
(I) such fire or other casualty or taking, as applicable,
does not result in the loss of access to the Property or the related
Improvements;
(J) the Debt Service Coverage Ratio, after giving effect
to the Restoration, shall be equal to or greater than 2.1:1;
(K) Borrower shall deliver or cause to be delivered to
Lender a signed detailed budget approved in writing by Borrower's
architect or engineer stating the entire cost of completing the
Restoration, which budget should be consistent with restoration
budgets of similar retail properties then owned and operated by
nationally recognized owners and operators of retail properties
located in the areas in which the Property is located; and
(L) the Net Proceeds together with any cash or cash
equivalent deposited by Borrower with Lender are sufficient in
Lender's discretion to cover the cost of the Restoration.
(ii) The Net Proceeds shall be held by Lender in an interest
bearing account and, until disbursed in accordance with the provisions of
this Section 6.4(b), shall constitute additional security for the Debt and
other obligations under the Loan Documents. 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
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evidence satisfactory to Lender that (A) all materials installed and work
and labor performed to be paid for out of the requested disbursement in
connection with the Restoration have been performed, and (B) 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 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.
(iii) All plans and specifications required in connection with the
Restoration shall be subject to prior review and acceptance in all respects
by Lender and by an independent consulting engineer selected by Lender (the
"CASUALTY CONSULTANT"), such review and acceptance not to be unreasonably
withheld or delayed. Lender shall have the use of the plans and
specifications and all permits, licenses and approvals required or obtained
in connection with the Restoration. The identity of the contractors,
subcontractors and materialmen engaged in the Restoration, as well as the
contracts under which they have been engaged, shall be subject to prior
review and acceptance by Lender and the Casualty Consultant, such review
and acceptance not to be unreasonably withheld or delayed. All costs and
expenses incurred by Lender in connection with making the Net Proceeds
available for the Restoration including, without limitation, reasonable
counsel fees and disbursements and the Casualty Consultant's fees, shall be
paid by Borrower.
(iv) 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, MINUS the Casualty Retainage. The
term "CASUALTY RETAINAGE" shall mean an amount equal to ten percent (10%)
of the costs 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
6.4(b), 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 6.4(b) and that all approvals necessary
for the re-occupancy and use of the Property have been obtained from all
appropriate governmental and quasi-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
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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.
(v) Lender shall not be obligated to make disbursements of the
Net Proceeds more frequently than once every calendar month.
(vi) If at any time the Net Proceeds or the undisbursed balance
thereof shall not, in the reasonable 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 before any
further disbursement of the Net Proceeds shall be made. The Net Proceeds
Deficiency deposited with Lender shall be held by Lender and shall be
disbursed for costs actually incurred in connection with the Restoration on
the same conditions applicable to the disbursement of the Net Proceeds, and
until so disbursed pursuant to this Section 6.4(b) shall constitute
additional security for the Debt and other obligations under the Loan
Documents.
(vii) 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 6.4(b), 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 the Note, this Agreement or any of
the other Loan Documents.
(c) 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 6.4(b)(vii) 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 (provided no
Event of Default exists, such Borrower shall not be required to pay any
Prepayment Consideration in connection with such payment), 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, in its discretion.
(d) In the event of foreclosure of the Mortgage with respect to
the Property, or other transfer of title to the Property in extinguishment in
whole or in part of the Debt 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.
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(e) Notwithstanding any provision herein to the contrary, in the
event of any conflict between the provisions of this Agreement and the
provisions of the Ground Lease with respect to Restoration, the provisions of
the Ground Lease shall govern.
(f) Lender shall with reasonable promptness following any
Casualty or Condemnation notify Borrower whether or not Net Proceeds are
required to be made available to Borrower for restoration pursuant to this
Section 6.4.
ARTICLE VII
RESERVE FUNDS
Section 7.1 REQUIRED REPAIR FUNDS.
7.1.1 DEPOSITS. Borrower shall perform the repairs at the Property,
if any, as more particularly set forth on SCHEDULE III hereto within six (6)
months from the date of funding (such repairs hereinafter referred to as
"REQUIRED REPAIRS"). Borrower shall complete the Required Repairs on or before
the required deadline for each repair as set forth on SCHEDULE III. It shall be
an Event of Default under this Agreement if (i) Borrower does not complete the
Required Repairs at the Property by the required deadline for each repair as set
forth on SCHEDULE III, and (ii) Borrower does not satisfy each condition
contained in Section 7.1.2 hereof. Upon the occurrence of such an Event of
Default, Lender, at its option, may withdraw all Required Repair Funds from the
Required Repair Account and Lender may apply such funds either to completion of
the Required Repairs at the Property or toward 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 Required Repair Funds shall be in addition
to all other rights and remedies provided to Lender under this Agreement and the
other Loan Documents. On the Closing Date, Borrower shall deposit with Lender
the amount for the Property set forth on such SCHEDULE III hereto, if any, to
perform the Required Repairs for the Property. Amounts so deposited with Lender,
if any, shall be held by Lender in an interest bearing account. Amounts so
deposited, if any, shall hereinafter be referred to as Borrower's "REQUIRED
REPAIR FUND" and the account, if any, in which such amounts are held shall
hereinafter be referred to as Borrower's "REQUIRED REPAIR ACCOUNT."
7.1.2 RELEASE OF REQUIRED REPAIR FUNDS. Lender shall disburse to
Borrower the Required Repair Funds from the Required Repair Account from time to
time upon satisfaction by Borrower of each of the following conditions: (i)
Borrower shall submit a written request for payment to Lender at least fifteen
(15) days prior to the date on which Borrower requests such payment be made and
specifies the Required Repairs to be paid, (ii) on the date such request is
received by Lender and on the date such payment is to be made, no Default or
Event of Default shall exist and remain uncured, (iii) Lender shall have
received a certificate from Borrower (A) stating that all Required Repairs at
the Property to be funded by the requested disbursement have been completed in
good and workmanlike manner and in accordance with all applicable federal, state
and local laws, rules and regulations, such certificate to be accompanied by a
copy of any license, permit or other approval by any Governmental Authority
required to commence and/or complete the Required Repairs, (B) identifying each
Person that supplied materials or labor in connection with the Required Repairs
performed at the Property to be funded by the requested
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disbursement under a contract in excess of $50,000, and (C) stating that each
Person who has supplied materials or labor in connection with the Required
Repairs to be funded by the requested disbursement has been paid in full or will
be paid in full upon such disbursement, such certificate to be accompanied by
lien waivers or other evidence of payment satisfactory to Lender, (iv) at
Lender's option, a title search for the Property indicating that the Property is
free from all liens, claims and other encumbrances not previously approved by
Lender, and (v) Lender shall have received such other evidence as Lender shall
reasonably request that the Required Repairs 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 make
disbursements from the Required Repair Account with respect to the Property more
than once each calendar month and such disbursement shall be made only upon
satisfaction of each condition contained in this Section 7.1.2.
Section 7.2 TAX AND INSURANCE ESCROW FUND. Borrower shall pay to
Lender on each Payment Date (a) one-twelfth of the Taxes that Lender estimates
will be payable during the next ensuing twelve (12) months in order to
accumulate with Lender sufficient funds to pay all such Taxes at least thirty
(30) days prior to their respective due dates and (b) 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 with Lender sufficient funds to pay all such Insurance Premiums at
least thirty (30) days prior to the expiration of the Policies, (said amounts in
(a) and (b) above are hereinafter called the "TAX AND INSURANCE ESCROW FUND").
The Tax and Insurance Escrow Fund and the payments of interest or principal or
both, payable pursuant to the Note, shall be added together and shall be paid as
an aggregate sum by Borrower to Lender. Lender will apply the Tax and Insurance
Escrow Fund to payments of Taxes and Insurance Premiums required to be made by
Borrower pursuant to this Agreement and under the Mortgage. In making any
payment relating to the Tax and Insurance Escrow Fund, Lender may do so
according to any ▇▇▇▇, statement or estimate procured from the appropriate
public office (with respect to Taxes) or insurer or agent (with respect to
Insurance Premiums) or from Borrower without inquiry into the accuracy of such
▇▇▇▇, statement or estimate or into the validity of any tax, assessment, sale,
forfeiture, tax lien or title or claim thereof, provided, however, Lender shall
use reasonable efforts to pay such real property taxes sufficiently early to
obtain the benefit of any available discounts of which it has knowledge. If the
amount of the Tax and Insurance Escrow Fund shall exceed the amounts due for
Taxes and 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 Tax and Insurance Escrow Fund. The Tax and Insurance Escrow Fund shall be
held by Lender in an interest-bearing account and shall at Lender's option be
held in Eligible Account at an Eligible Institution. Any interest earned on said
account shall be held in said account and credited toward future deposits to the
Tax and Insurance Escrow Fund. Any amount remaining in the Tax and Insurance
Escrow Fund after the Debt has been paid in full shall be returned to Borrower.
In allocating such excess. Lender may deal with the Person shown on the records
of Lender to be the owner of the Property. If at any time Lender reasonably
determines that the Tax and Insurance Escrow Fund is not or will not be
sufficient to pay Taxes or Insurance Premiums by the dates set forth above,
Lender shall notify Borrower of such determination and Borrower shall increase
its monthly payments to Lender by the amount that Lender estimates is sufficient
to make up the deficiency at least thirty (30) days prior to delinquency of the
Taxes or Insurance Premiums. Notwithstanding anything to the contrary
hereinbefore contained, in the event that Borrower provides (1) evidence
satisfactory to
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Lender that the Property is insured under a "blanket" policy which is acceptable
to Lender and which otherwise satisfies the requirements of this Agreement and
(2) evidence satisfactory to Lender that the Taxes for the Property have been
paid in accordance with the requirements set forth in this Agreement, Lender
will waive the requirement set forth herein for Borrower to make deposits into
the Tax and Insurance Escrow Fund for the payment of Insurance Premiums due on
such "blanket" policy of insurance and for payment of such Taxes, provided,
however, Lender expressly reserves the right to require Borrower to make
deposits to the Tax and Insurance Escrow Fund for the payment of Insurance
Premiums if at any time the Property is not insured under a "blanket" insurance
policy which satisfies the requirements of this Agreement or Taxes are not paid
in accordance with the requirements of this Agreement.
Section 7.3 REPLACEMENTS AND REPLACEMENT RESERVE.
7.3.1 REPLACEMENT RESERVE FUND. Borrower shall pay to Lender on the
date hereof and on each Payment Date one twelfth of the amount (the "REPLACEMENT
RESERVE MONTHLY DEPOSIT") reasonably estimated by Lender in its sole discretion
to be due for replacements and repairs required to be made to the Property
during the calendar year (collectively, the "REPLACEMENTS"), which Replacement
Reserve Monthly Deposit shall be in an amount equal to no less than $0.15 per
year per square foot of gross leasable area. Amounts so deposited shall
hereinafter be referred to as Borrower's "REPLACEMENT RESERVE FUND" and the
account in which such amounts are held shall hereinafter be referred to as
Borrower's "REPLACEMENT RESERVE ACCOUNT." Lender may reassess its estimate of
the amount necessary for the Replacement Reserve Fund from time to time, and may
increase the monthly amounts required to be deposited into the Replacement
Reserve Fund upon thirty (30) days notice to Borrower if Lender determines in
its reasonable discretion that an increase is necessary to maintain the proper
maintenance and operation of the Property. Any amount held in the Replacement
Reserve Account and allocated for the Property shall be retained by Lender in an
interest bearing account, or, at the option of Lender, in an Eligible Account at
an Eligible Institution; PROVIDED, HOWEVER, that, any interest accrued on the
amounts on deposit in the Replacement Reserve Fund shall be disbursed to
Borrower no more than once per calendar year upon the written request of
Borrower. Notwithstanding anything to the contrary in this Section 7.3, Borrower
shall not be required to make Replacement Reserve Monthly Deposits, provided
that: (i) no Event of Default shall have occurred; and (ii) Borrower makes all
necessary Replacements and otherwise maintains the Property to Lender's
satisfaction. Upon notice from Lender following: (a) an Event of Default; or (b)
the failure of Borrower to make necessary Replacements or otherwise maintain the
Property to Lender's satisfaction, Borrower shall begin to deposit the
Replacement Reserve Monthly Deposit into the Replacement Reserve Fund beginning
on the Payment Date (as defined herein) immediately following the date of such
notice.
7.3.2 DISBURSEMENTS FROM REPLACEMENT RESERVE ACCOUNT.
(a) Lender shall make disbursements from the Replacement Reserve
Account to pay Borrower only for the costs of the Replacements. Lender shall not
be obligated to make disbursements from the Replacement Reserve Account to
reimburse Borrower for the costs of routine maintenance to the Property or for
costs which are to be reimbursed from the Required Repair Fund (if any).
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(b) Lender shall, upon written request from Borrower and
satisfaction of the requirements set forth in this Section 7.3.2, disburse to
Borrower amounts from the Replacement Reserve Account necessary to pay for the
actual approved costs of Replacements or to reimburse Borrower therefor, upon
completion of such Replacements (or, upon partial completion in the case of
Replacements made pursuant to Section 7.3.2(f)) as determined by Lender. In no
event shall Lender be obligated to disburse funds from the Replacement Reserve
Account if a Default or an Event of Default exists.
(c) Each request for disbursement from the Replacement Reserve
Account shall be in a form specified or approved by Lender and shall specify (i)
the specific Replacements for which the disbursement is requested, (ii) the
quantity and price of each item purchased, if the Replacement includes the
purchase or replacement of specific items, (iii) the price of all materials
(grouped by type or category) used in any Replacement other than the purchase or
replacement of specific items, and (iv) the cost of all contracted labor or
other services applicable to each Replacement for which such request for
disbursement is made. With each request Borrower shall certify that all
Replacements have been made in accordance with all applicable Legal Requirements
of any Governmental Authority having jurisdiction over the Property to which the
Replacements are being provided and, unless Lender has agreed to issue joint
checks as described below, each request shall include evidence of payment of all
such amounts. Each request for disbursement shall include copies of invoices for
all items or materials purchased and all contracted labor or services provided.
Except as provided in Section 7.3.2(e), each request for disbursement from the
Replacement Reserve Account shall be made only after completion of the
Replacement for which disbursement is requested. Borrower shall provide Lender
evidence of completion satisfactory to Lender in its reasonable judgment.
(d) Borrower shall pay all invoices in connection with the
Replacements with respect to which a disbursement is requested prior to
submitting such request for disbursement from the Replacement Reserve Account
or, at the request of Borrower, Lender will issue joint checks, payable to
Borrower and the contractor, supplier, materialman, mechanic, subcontractor or
other party to whom payment is due in connection with a Replacement. In the case
of payments made by joint check, Lender may require a waiver of lien from each
Person receiving payment prior to Lender's disbursement from the Replacement
Reserve Account. In addition, as a condition to any disbursement, Lender may
require Borrower to obtain lien waivers from each contractor, supplier,
materialman, mechanic or subcontractor who receives payment in an amount equal
to or greater than $100,000 for completion of its work or delivery of its
materials. Any lien waiver delivered hereunder shall conform to the requirements
of applicable law and shall cover all work performed and materials supplied
(including equipment and fixtures) for the Property by that contractor,
supplier, subcontractor, mechanic or materialman through the date covered by the
current reimbursement request (or, in the event that payment to such contractor,
supplier, subcontractor, mechanic or materialmen is to be made by a joint check,
the release of lien shall be effective through the date covered by the previous
release of funds request).
(e) If (i) the cost of a Replacement exceeds $100,000, (ii) the
contractor performing such Replacement 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 Replacement Reserve
Account may be made after completion of a portion of the work under such
contract, provided (A) such contract requires payment upon
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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 conditions in this Agreement for
disbursement have been satisfied, (D) funds remaining in the Replacement Reserve
Account are, in Lender's judgment, sufficient to complete such Replacement and
other Replacements 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.
(f) Borrower shall not make a request for disbursement from the
Replacement Reserve Account more frequently than once in any calendar month and
(except in connection with the final disbursement) the total cost of all
Replacements in any request shall not be less than $5,000.00.
7.3.3 PERFORMANCE OF REPLACEMENTS.
(a) Borrower shall make Replacements when required in order to
keep the Property in condition and repair consistent with other first class,
full service retail properties in the same market segment in the metropolitan
area in which the Property is located, and to keep the Property or any portion
thereof from deteriorating. Borrower shall complete all Replacements in a good
and workmanlike manner as soon as practicable following the commencement of
making each such Replacement.
(b) Lender reserves the right, at its option, to approve all
contracts or work orders with materialmen, mechanics, suppliers, subcontractors,
contractors or other parties providing labor or materials under contracts for an
amount in excess of $100,000 in connection with the Replacements. Upon Lender's
request, Borrower shall assign any contract or subcontract to Lender.
(c) In the event Lender determines in its reasonable discretion
that any Replacement is not being performed in a workmanlike or timely manner or
that any Replacement has not been completed in a workmanlike or timely manner,
and such failure continues to exist for more than thirty (30) days after notice
from Lender to Borrower, Lender shall have the option to withhold disbursement
for such unsatisfactory Replacement and to proceed under existing contracts or
to contract with third parties to complete such Replacement and to apply the
Replacement Reserve Fund toward the labor and materials necessary to complete
such Replacement, without providing any prior notice to Borrower and to exercise
any and all other remedies available to Lender upon an Event of Default
hereunder.
(d) In order to facilitate Lender's completion or making of the
Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the
right to enter onto the Property and perform any and all work and labor
necessary to complete or make the Replacements and/or employ watchmen to protect
the Property from damage. All sums so expended by Lender, to the extent not from
the Replacement Reserve Fund, shall be deemed to have been advanced under the
Loan to Borrower and secured by the Mortgage. For this purpose Borrower
constitutes and appoints Lender its true and lawful attorney-in-fact with full
power of substitution to complete or undertake the Replacements in the name of
Borrower. Such power of attorney shall be deemed to be a power coupled with an
interest and cannot be revoked but shall only be effective
65
following an Event of Default. Borrower empowers said attorney-in-fact as
follows: (i) to use any funds in the Replacement Reserve Account for the purpose
of making or completing the Replacements; (ii) to make such additions, changes
and corrections to the Replacements as shall be necessary or desirable to
complete the Replacements; (iii) to employ such contractors, subcontractors,
agents, architects and inspectors as shall be required for such purposes; (iv)
to pay, settle or compromise all existing bills and claims which are or may
become Liens against the Property, or as may be necessary or desirable for the
completion of the Replacements, or for clearance of title; (v) to execute all
applications and certificates in the name of Borrower which may be required by
any of the contract documents; (vi) to prosecute and defend all actions or
proceedings in connection with the Property or the rehabilitation and repair of
the Property; and (vii) to do any and every act which Borrower might do in its
own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall; (i) make Lender
responsible for making or completing the Replacements; (ii) require Lender to
expend funds in addition to the Replacement Reserve Fund to make or complete any
Replacement; (iii) obligate Lender to proceed with the Replacements; or (iv)
obligate Lender to demand from Borrower additional sums to make or complete any
Replacement.
(f) Borrower shall permit Lender and Lender's agents and
representatives (including, without limitation, Lender's engineer, architect, or
inspector) or third parties making Replacements pursuant to this Section 7.3.3
to enter onto the Property during normal business hours (subject to the rights
of tenants under their Leases) to inspect the progress of any Replacements and
all materials being used in connection therewith, to examine all plans and shop
drawings relating to such Replacements which are or may be kept at the Property,
and to complete any Replacements made pursuant to this Section 7.3.3. 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 7.3.3(f) or the completion of
Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Property at
Borrower's expense prior to making a monthly disbursement in excess of $10,000
from the Replacement Reserve Account in order to verify completion of the
Replacements for which reimbursement is sought. Lender may require that such
inspection be conducted by an appropriate independent qualified professional
selected by Lender and/or may require a copy of a certificate of completion by
an independent qualified professional acceptable to Lender prior to the
disbursement of any amounts from the Replacement Reserve Account. Borrower shall
pay the expense of the inspection as required hereunder, whether such inspection
is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or
any other item comprising a part of any Replacement shall be constructed,
installed or completed, as applicable, free and clear of all mechanic's,
materialman's or other liens (except for those Liens existing on the date of
this Agreement which have been approved in writing by Lender).
(i) Before each disbursement from the Replacement Reserve
Account, Lender may require Borrower to provide Lender with a search of title to
the Property effective to the
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date of the disbursement, which search shows that no mechanic's or materialmen's
liens or other liens of any nature have been placed against the Property since
the date of recordation of the Mortgage and that title to the Property is free
and clear of all Liens (other than the lien of the Mortgage and any other Liens
previously approved in writing by Lender, if any).
(j) All Replacements shall comply with all applicable Legal
Requirements of all Governmental Authorities having jurisdiction over the
Property and applicable insurance requirements including, without limitation,
applicable building codes, special use permits, environmental regulations, and
requirements of insurance underwriters.
(k) 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 a particular
Replacement. All such policies shall be in form and amount reasonably
satisfactory to Lender. All such policies which can be endorsed with standard
mortgagee clauses making loss payable to Lender or its assigns shall be so
endorsed. Certified copies of such policies shall be delivered to Lender.
7.3.4 FAILURE TO MAKE REPLACEMENTS.
(a) It shall be an Event of Default under this Agreement if
Borrower fails to comply with any provision of this Section 7.3 and such failure
is not cured within thirty (30) days after notice from Lender; PROVIDED,
HOWEVER, if such failure is not capable of being cured within said thirty (30)
day period, then provided that Borrower commences action to complete such cure
and thereafter diligently proceeds to complete such cure, such thirty (30) day
period shall be extended for such time as is reasonably necessary for Borrower,
in the exercise of due diligence, to cure such failure, but such additional
period of time shall not exceed sixty (60) days. Upon the occurrence of such an
Event of Default, Lender may use the Replacement Reserve Fund (or any portion
thereof) for any purpose, including but not limited to completion of the
Replacements as provided in Section 7.3.3, or for any other repair or
replacement to the Property or toward 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 Replacement Reserve Funds shall be in addition
to all other rights and remedies provided to Lender under this Agreement and the
other Loan Documents.
(b) Nothing in this Agreement shall obligate Lender to apply all
or any portion of the Replacement Reserve Fund on account of an Event of Default
to payment of the Debt or in any specific order or priority.
7.3.5 BALANCE IN THE REPLACEMENT RESERVE ACCOUNT. The insufficiency
of any balance in the Replacement Reserve Account shall not relieve Borrower
from its obligation to fulfill all preservation and maintenance covenants in the
Loan Documents.
7.3.6 INDEMNIFICATION. Borrower shall indemnify Lender and hold
Lender harmless from and against any and all actions, suits, claims, demands,
liabilities, losses, damages, obligations and costs and expenses (including
litigation costs and reasonable attorneys fees and expenses) arising from or in
any way connected with the performance of the
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Replacements unless the same are solely due to gross negligence or willful
misconduct of Lender. Borrower shall assign to Lender all rights and claims
Borrower may have against all persons or entities supplying labor or materials
in connection with the Replacements; PROVIDED, HOWEVER, that Lender may not
pursue any such right or claim unless an Event of Default has occurred and
remains uncured.
Section 7.4 GROUND RENT RESERVE. If Borrower fails timely to pay
the Ground Rents, Lender may, in its sole and absolute discretion, require
Borrower to escrow with Lender such sums as are sufficient, as determined by
Lender in its sole discretion, for Lender to pay the Ground Rents.
Section 7.5 INTENTIONALLY DELETED.
Section 7.6 INTENTIONALLY DELETED.
Section 7.7 RESERVE FUNDS. GENERALLY.
7.7.1 Borrower grants to Lender a first-priority perfected security
interest in each of the Reserve Funds and any and all monies now or hereafter
deposited in each Reserve Fund as additional security for payment of the Debt.
Until expended or applied in accordance herewith, the Reserve Funds shall
constitute additional security for the Debt.
7.7.2 Upon the occurrence of an Event of Default, Lender may, in
addition to any and all other rights and remedies available to Lender, apply any
sums then present in any or all of the Reserve Funds to the payment of the Debt
in any order in its sole discretion.
7.7.3 The Reserve Funds shall not constitute trust funds and may be
commingled with other monies held by Lender.
7.7.4 The Reserve Funds shall be held in interest bearing accounts.
All earnings or interest on the Reserve Funds shall be added to and become a
part of such Tax and Insurance Escrow Fund and shall be disbursed in the same
manner as other monies deposited in such Reserve Funds.
7.7.5 Borrower shall not, without obtaining the prior written
consent of Lender, further pledge, assign or grant any security interest in any
Reserve Fund or the monies deposited therein 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.
7.7.6 Lender shall not be liable for any loss sustained on the
investment of any funds constituting the Reserve Funds unless occasioned by the
gross negligence or willful misconduct of Lender.
7.7.7 Upon payment in full of the Debt and performance of all other
obligations under this Agreement and the other Loan Documents, Lender shall
disburse to Borrower all remaining Reserve Funds.
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ARTICLE VIII
DEFAULTS
Section 8.1 EVENT OF DEFAULT.
(a) Each of the following events shall constitute an event of
default hereunder (an "EVENT OF DEFAULT"):
(i) if any portion of the Debt is not paid within five (5) days
of the applicable due date;
(ii) if any of the Taxes or Other Charges are not paid prior to
the date when the same become delinquent, except to the extent that there
are sufficient funds in the Tax and Insurance Escrow Fund to pay such Taxes
or Other Charges and Lender fails to or refuses to release the same from
the Tax and Insurance Escrow Fund;
(iii) if the Policies are not kept in full force and effect, or if
certified copies of the Policies are not delivered to Lender within ten
(10) days of request;
(iv) if Borrower transfers or encumbers any portion of the
Property without Lender's prior written consent (to extent such consent is
required) or otherwise violates the provisions of Section 5.2.13 of this
Loan Agreement;
(v) if any material representation or warranty made by Borrower
herein or in any other Loan Document, or in any report, certificate,
financial statement or other instrument, agreement or document furnished to
Lender shall have been false or misleading in any material respect as of
the date the representation or warranty was made;
(vi) if Borrower or indemnitor or any guarantor under any guaranty
or indemnity issued in connection with the Loan shall make an assignment
for the benefit of creditors;
(vii) if a receiver, liquidator or trustee shall be appointed for
Borrower or any guarantor or indemnitor under any guarantee or indemnity
issued in connection with the Loan or if Borrower or such guarantor or
indemnitor 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 or such guarantor or
indemnitor, or if any proceeding for the dissolution or liquidation of
Borrower or such guarantor or indemnitor shall be instituted; PROVIDED,
HOWEVER, if such appointment, adjudication, petition or proceeding was
involuntary and not consented to by Borrower or such guarantor or
indemnitor, upon the same not being discharged, stayed or dismissed within
one hundred eighty (180) days;
69
(viii) 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;
(ix) if Borrower breaches any of its respective negative covenants
contained in Section 5.2 or any covenant contained in Section 4.1.30
hereof;
(x) with respect to any term, covenant or provision set forth
herein which specifically contains a notice requirement or grace period, if
Borrower shall be in default under such term, covenant or condition after
the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in any Insolvency Opinion
or Additional Insolvency Opinion are or shall become untrue in any material
respect;
(xii) 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 (xi) above, for ten (10) days after notice to Borrower
from Lender, in the case of any Default which can be cured by the payment
of a sum of money, or for thirty (30) days after notice from Lender in the
case of any other Default; PROVIDED, HOWEVER, that if such non-monetary
Default is susceptible of cure but cannot reasonably be cured within such
30-day period and provided further that Borrower shall have commenced to
cure such Default within such 30-day period and thereafter diligently and
expeditiously proceeds to cure the same, such 30-day period shall be
extended for such time as is reasonably necessary for Borrower in the
exercise of due diligence to cure such Default, such additional period not
to exceed one hundred eighty (180) days;
(xiii) if there shall be default under any of the other Loan
Documents beyond any applicable cure periods contained in such documents,
whether as to Borrower or the Property, or if any other such event shall
occur or condition shall exist, if the effect of such event or condition is
to accelerate the maturity of any portion of the Debt or to permit Lender
to accelerate the maturity of all or any portion of the Debt;
(xiv) if Borrower shall be in default under the Ground Lease beyond
any applicable cure periods contained therein; or
(xv) if any Contingent Amount required to be paid pursuant to the
Purchase Contract is not timely paid in accordance with the Purchase
Contract.
(b) Upon the occurrence of an Event of Default (other than an
Event of Default described in clauses (vi), (vii) or (viii) above) and at any
time thereafter Lender may, in addition to any other rights or remedies
available to it pursuant to this Agreement and the other Loan Documents or at
law or in equity, take such action, without notice or demand, that Lender deems
advisable to protect and enforce its rights against Borrower and in the
Property, including, without limitation, declaring the Debt to be immediately
due and payable, and Lender may enforce or avail itself of any or all rights or
remedies provided in the Loan Documents against Borrower and the Property,
including, without limitation, all rights or remedies available at law or in
equity; and upon any Event of Default described in clauses (vi), (vii) or (viii)
above, the
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Debt and all other obligations of Borrower hereunder and under the other Loan
Documents shall immediately and automatically become due and payable, without
notice or demand, and Borrower hereby expressly waives any such notice or
demand, anything contained herein or in any other Loan Document to the contrary
notwithstanding.
Section 8.2 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, Borrower agrees that if an
Event of Default is continuing (i) Lender is not subject to any "one action" or
"election of remedies" law or rule, and (ii) all liens and other rights,
remedies or privileges provided to Lender shall remain in full force and effect
until Lender has exhausted all of its remedies against the Property and the
Mortgage has been foreclosed, sold and/or otherwise realized upon in
satisfaction of the Debt or the Debt has been paid in full. Without limited the
generality of the foregoing, it is expressly agreed that upon any Event of
Default described in clause (xv) above, in addition to all other remedies
available to Lender, Lender shall have the right to enforce Indemnitor's
guaranty of the payment of the Contingent Amount, as set forth in the Indemnity
Agreement, without first resorting to or exhausting any security or collateral
or without first having recourse to any Loan Document or any of the Property
through foreclosure proceedings or otherwise.
(b) Lender shall have the right from time to time to partially
foreclose the Mortgage in any manner and for any amounts secured by the Mortgage
then due and payable as determined by Lender in its sole discretion including,
without limitation, the following circumstances: (i) in the event Borrower
defaults beyond any applicable grace period in the payment of one or more
scheduled payments of principal and interest, Lender may foreclose the Mortgage
to recover such delinquent payments, or (ii) in the event Lender elects to
accelerate less than the entire outstanding principal balance of the Loan,
Lender may foreclose the Mortgage to recover so much of the principal balance of
the Loan as Lender may accelerate and such other sums secured by the Mortgage as
Lender may elect. Notwithstanding one or more partial foreclosures, the Property
shall remain subject to the Mortgage to secure payment of sums secured by the
Mortgage and not previously recovered.
(c) Lender shall have the right from time to time to sever the
Note and the other Loan Documents into one or more separate notes, mortgages and
other security documents (the "SEVERED LOAN DOCUMENTS") in such denominations as
Lender shall determine in its sole discretion for purposes of evidencing and
enforcing its rights and remedies provided hereunder.
71
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 following the occurrence of an
Event of Default 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. 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 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) As used in this Section 8.2, a "foreclosure" shall include
any sale by power of sale.
Section 8.3 REMEDIES CUMULATIVE; WAIVERS. 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.
ARTICLE IX
SPECIAL PROVISIONS
Section 9.1 SALE OF NOTES AND SECURITIZATION. At the request of the
holder of the Note and, to the extent not already required to be provided by
Borrower under this Agreement, Borrower shall cooperate with Lender to allow
Lender to satisfy the market standards to which the holder of the Note
customarily adheres or which may be reasonably required in the marketplace or by
the Rating Agencies in connection with the sale of the Note or participations
therein or the first successful securitization (such sale and/or securitization,
the "SECURITIZATION") of rated single or multi-class securities (the
"SECURITIES") secured by or evidencing ownership interests in the Note and the
Mortgage. In this regard Borrower shall:
(a) (i) provide such financial and other information with respect
to the Property, Borrower and the Manager, (ii) provide budgets relating to the
Property and (iii) to
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perform or permit or cause to be performed or permitted such site inspection,
appraisals, market studies, environmental reviews and reports (Phase I's and, if
appropriate, Phase II's), engineering reports and other due diligence
investigations of the Property, as may be reasonably requested by the holder of
the Note or the Rating Agencies or as may be necessary or appropriate in
connection with the Securitization (the "PROVIDED INFORMATION"), together, if
customary, with appropriate verification and/or consents of the Provided
Information through letters of auditors or opinions of counsel of independent
attorneys acceptable to Lender and the Rating Agencies;
(b) cause counsel to render opinions, which may be relied upon by
the holder of the Note, the Rating Agencies and their respective counsel, agents
and representatives, as to non-consolidation, fraudulent conveyance, and true
sale and/or lease or any other opinion customary in Securitization transactions,
which counsel and opinions shall be reasonably satisfactory to the holder of the
Note and the Rating Agencies;
(c) make such representations and warranties as of the closing
date of the Securitization with respect to the Property, Borrower, and the Loan
Documents as are consistent with the representations and warranties made in the
Loan Documents; and
(d) execute such amendments to the Loan Documents and
organizational documents as may be reasonably requested by the holder of the
Note or the Rating Agencies or otherwise to effect the Securitization; PROVIDED,
HOWEVER, that Borrower shall not be required to modify or amend any Loan
Document if such modification or amendment would (i) change the interest rate,
the stated maturity or the amortization of principal set forth in the Note, or
(ii) modify or amend any other material economic term of the Loan.
All material out-of-pocket third party costs and expenses incurred by
Borrower in connection with complying with requests made under this Section 9.1
shall be paid by Lender.
Section 9.2 SECURITIZATION. Borrower understands that certain of
the Provided Information may be included in disclosure documents in connection
with the Securitization, including, without limitation, a prospectus, prospectus
supplement or private placement memorandum (each, a "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"), or
provided or made available to investors or prospective investors in the
Securities, the Rating Agencies, and service providers relating to the
Securitization. In the event that the Disclosure Document is required to be
revised prior to the sale of all Securities, Borrower will cooperate with the
holder of the Note in updating the Disclosure Document by providing all current
information necessary to keep the Disclosure Document accurate and complete in
all material respects.
Section 9.3 RATING SURVEILLANCE. Lender, at its option, may 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 (the "RATING SURVEILLANCE CHARGE").
Section 9.4 EXCULPATION. Subject to the qualifications below,
Lender shall not enforce the liability and obligation of Borrower to perform and
observe the obligations contained
73
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 Rents following
an Event of Default, or any other collateral given to Lender pursuant to the
Loan Documents; provided, however, that, except as specifically provided herein,
any judgment in any such action or proceeding shall be enforceable against
Borrower only to the extent of Borrower's interest in the Property, in the Rents
following an Event of Default and in any other collateral given to Lender, and
Lender, by accepting the Note, this Agreement, the Mortgage and the other Loan
Documents, agrees that it shall not ▇▇▇ 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 any of the Mortgage; (c) affect the validity or enforceability of 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 any of the Assignment of Leases
following an Event of Default; (f) constitute a prohibition against Lender
commencing 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:
(i) fraud or intentional misrepresentation by Borrower or any
guarantor in connection with the Loan;
(ii) the gross negligence or willful misconduct of Borrower;
(iii) material physical waste of the Property;
(iv) the breach of any representation, warranty, covenant or
indemnification provision in the Environmental Indemnity or in the Mortgage
concerning environmental laws, hazardous substances and asbestos and any
indemnification of Lender with respect thereto in either document;
(v) the removal or disposal of any portion of the Property after
an Event of Default;
(vi) the misapplication or conversion by Borrower of (A) any
insurance proceeds paid by reason of any loss, damage or destruction to the
Property which are not applied by Borrower in accordance with this
Agreement, (B) any awards or other amounts received in connection with the
condemnation of all or a portion of the Property which are not applied by
Borrower in accordance with this Agreement, or (C) any Rents following an
Event of Default;
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(vii) failure to pay charges for labor or materials or other
charges that can create liens on any portion of the Property;
(viii) any security deposits, advance deposits or any other deposits
collected with respect to the Property which are not delivered to Lender
upon a foreclosure of the Property or action in lieu thereof, except to the
extent any such security deposits were applied in accordance with the terms
and conditions of any of the Leases prior to the occurrence of the Event of
Default that gave rise to such foreclosure or action in lieu thereof; or
(ix) the breach of Borrower's indemnification obligation pursuant
to Section 10.13(b) hereof with respect to payment of the Contingent
Amount.
Notwithstanding anything to the contrary in this Agreement, the Note
or any of the Loan Documents, (A) the Debt shall be fully recourse to the
Borrower and (B) Lender shall not be deemed to have waived any right which
Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions
of the U.S. Bankruptcy Code to file a claim for the full amount of the Debt
secured by the Mortgage or to require that all collateral shall continue to
secure all of the Debt owing to Lender in accordance with the Loan Documents in
the event that the (I) first full monthly payment under the Note is not paid
within five (5) days of notice that such payment is late (provided, however,
that such grace period relates only to the recourse trigger described in this
paragraph), or (II) failure of Borrower to permit on-site inspections of the
Property subject to the rights of the Major Tenants under their respective
Leases and any applicable cure period set forth in the Loan Documents, to
provide financial information as required under the Loan Documents subject to
any applicable cure period (except for financial information required to be
delivered by the Major Tenants pursuant to their respective Leases that has not
been delivered to Borrower, provided Borrower has requested such financial
information from the Major Tenants, or to comply with Section 4.1.30 hereof, or
(III) failure of Borrower to obtain Lender's prior written consent to any
subordinate financing or other voluntary lien encumbering the Property, or (IV)
failure of Borrower to obtain Lender's prior written consent to any assignment,
transfer or conveyance of the Property, or any portion thereof, or any interest
therein as required by this Agreement, or to any material amendment or
modification of the Ground Lease, or (IV) Borrower has failed to materially
comply with the provisions relating to its organization as a Special Purpose
Entity since its formation or by virtue of its merger with Kimco Governors
Marketplace Ltd. Notwithstanding the provision set forth in clause (III) of this
paragraph, a voluntary lien OTHER THAN a lien securing an extension of credit
filed against the Property shall not constitute a recourse trigger for purposes
of this paragraph provided such lien (A) is fully bonded to the satisfaction of
Lender and discharged of record within ninety (90) days of filing, or (B) within
such ninety (90) day period, Lender receives affirmative title insurance from
the title insurance company insuring the lien of the Mortgage that such lien is
subject and subordinate to the lien of the Mortgage and no enforcement action is
commenced by the applicable lien holder.
Section 9.5 TERMINATION OF MANAGER. If (a) the amounts evidenced by
the Note have been accelerated pursuant to Section 8.1(b) hereof, (b) the
Manager shall become insolvent, (c) the Manager is in default under the terms of
the Management Agreement beyond any applicable grace or cure period, or (d)
Manager is not managing the Property in accordance with the management practices
of nationally recognized management companies managing similar
75
properties in locations comparable to those of the Property, then, in the case
of (a), (b), (c) or (d), Borrower shall, at the request of Lender, terminate the
Management Agreement and replace the Manager with a manager reasonably approved
by Lender on terms and conditions reasonably satisfactory to Lender, it being
understood and agreed that the management fee for such replacement manager shall
not exceed then prevailing market rates. In addition and without limiting the
rights of Lender hereunder or under any of the other Loan Documents, in the
event that (i) the Management Agreement is terminated, (ii) the Manager no
longer manages the Property, or (iii) a receiver, liquidator or trustee shall be
appointed for Manager or if Manager 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, Manager, or if any
proceeding for the dissolution or liquidation of Manager shall be instituted,
then Borrower (at Borrower's sole cost and expense) shall immediately, in its
name, establish new deposit accounts separate from any other Person with a
depository satisfactory to Lender into which all Rents and other income from the
Property shall be deposited and shall grant Lender a first priority security
interest in such account pursuant to documentation satisfactory in form and
substance to Lender.
Section 9.6 SERVICER. At the option of Lender, the Loan may be
serviced by a servicer/trustee (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. Lender shall be responsible
for any set-up fees or any other costs relating to or arising under the
Servicing Agreement.
Section 9.7 SPLITTING THE LOAN. At the election of Lender in its
sole discretion, the Loan shall be split and severed into two or more loans
which shall not be cross-collateralized or cross-defaulted with each other.
Borrower hereby agrees to deliver to Lender to effectuate such severing of the
Loan as reasonably requested by Lender, (a) additional executed documents, or
amendments and modifications to the Loan Documents, (b) new opinions or updates
to the opinions delivered to Lender in connection with the closing of the Loan,
(c) endorsements and/or updates to the title insurance policies delivered to
Lender in connection with the closing of the Loan, and (d) any other
certificates, instruments and documentation reasonably determined by Lender as
necessary or appropriate to such severance (the items described in subsections
(a) through (d) collectively hereinafter shall be referred to as "SEVERING
DOCUMENTATION"), which Severing Documentation shall be acceptable to Lender in
form and substance in its reasonable discretion. Lender hereby agrees to be
responsible for all reasonable third-party expenses incurred in connection with
the preparation and delivery of the Severing Documentation and the effectuation
of the uncrossing of the Loan from the additional Loans. Borrower hereby
acknowledges and agrees that upon such severing of the Loan, Lender may effect,
in its sole discretion, one or more Securitizations of which the severed loans
may be a part.
ARTICLE X
MISCELLANEOUS
Section 10.1 SURVIVAL. This Agreement and all covenants, agreements,
representations and warranties made herein and in the certificates delivered
pursuant hereto shall
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survive the making by Lender of the Loan and the execution and delivery to
Lender of the Note, and shall continue in full force and effect so long as all
or any of the Debt is outstanding and unpaid unless a longer period is expressly
set forth herein or in the other Loan Documents. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the legal representatives, successors and assigns of such party. 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 10.2 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.
Section 10.3 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF THE STATE IN WHICH THE PROPERTY IS
LOCATED AND SHALL IN ALL RESPECTS BE GOVERNED, CONSTRUED, APPLIED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED AND
APPLICABLE FEDERAL LAWS.
Section 10.4 MODIFICATION, WAIVER IN WRITING. No modification,
amendment, extension, discharge, termination or waiver of any provision of this
Agreement, or of the Note, 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 10.5 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 the Note or under any other Loan Document, or any
other instrument given as security therefor, 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, the Note 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, the Note or the other Loan Documents, or to declare a default for
failure to effect prompt payment of any such other amount.
Section 10.6 NOTICES. All notices, consents, approvals and requests
required or permitted hereunder or under any other Loan Document shall be given
in writing and shall be effective for all purposes if band delivered or sent by
(a) certified or registered United States mail, postage prepaid, return receipt
requested or (b) expedited prepaid delivery service, either commercial or United
States Postal Service, with proof of attempted delivery, and by telecopier (with
answer back acknowledged), addressed as follows (or at such other address and
Person as
77
shall be designated from time to time by any party hereto, as the case may be,
in a written notice to the other parties hereto in the manner provided for in
this Section):
If to Lender:
KeyBank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Loan Servicing
If to Borrower:
Inland Western Tallahassee Governor's, L.L.C.
c/o Inland Real Estate Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to:
Inland Western Retail Real Estate Trust, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
A notice shall be deemed to have been given: in the case of hand
delivery, at the time of delivery; in the case of registered or certified mail,
when delivered or the first attempted delivery on a Business Day; or in the case
of expedited prepaid delivery and telecopy, upon the first attempted delivery on
a Business Day.
Section 10.7 TRIAL BY JURY. BORROWER AND LENDER HEREBY AGREE 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. LENDER IS HEREBY AUTHORIZED TO FILE A
COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER
BY BORROWER AND LENDER.
Section 10.8 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.
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Section 10.9 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 10.10 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 10.11 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 10.12 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, Borrower agrees that neither Lender
nor its agents shall be liable for any monetary damages, and Borrower's sole
remedies shall be limited to commencing an action seeking injunctive relief or
declaratory judgment. The parties hereto agree that any action or proceeding to
determine whether Lender has acted reasonably shall be determined by an action
seeking declaratory judgment.
Section 10.13 EXPENSES; INDEMNITY.
(a) Borrower covenants and agrees to pay or, if Borrower fails to
pay, to reimburse, Lender upon receipt of written notice from Lender for all
reasonable costs and expenses (including reasonable attorneys' fees and
disbursements) incurred by Lender in connection with (i) the preparation,
negotiation, execution and delivery of this Agreement and the other Loan
Documents and the consummation of the transactions contemplated hereby and
thereby and all the costs of furnishing all opinions by counsel for Borrower
(including without limitation any opinions requested by Lender as to any legal
matters arising under this Agreement or the other Loan Documents with respect to
the Property); (ii) Borrower's ongoing performance of and compliance with
Borrower's respective agreements and covenants contained in this Agreement and
the other Loan Documents on its part to be performed or complied with after the
Closing Date, including, without limitation, confirming compliance with
environmental and
79
insurance requirements; (iii) Lender's ongoing performance and compliance with
all agreements and conditions contained in this Agreement and the other Loan
Documents on its part to be performed or complied with after the Closing Date;
(iv) except as otherwise provided in this Agreement, 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 reasonably requested by Lender; (v) securing
Borrower's compliance with any requests made pursuant to the provisions of this
Agreement; (vi) 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; (vii) 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 (viii) 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.
(b) Borrower shall indemnify, defend and hold harmless Lender
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs, expenses and disbursements
of any kind or nature whatsoever (including, without limitation, the reasonable
fees and disbursements of counsel for 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, or (iii)
any obligation to pay the Contingent Amount (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 10.14 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 10.15 OFFSETS, COUNTERCLAIMS AND DEFENSES. Any assignee of
Lender's interest in and to this Agreement, the Note 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
80
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 10.16 NO JOINT VENTURE OR PARTNERSHIP; NO THIRD PARTY
BENEFICIARIES.
(a) Borrower and Lender intend that the relationships created
hereunder and under the other Loan Documents be solely that of borrower and
lender. Nothing herein or therein is intended to create a joint venture,
partnership, tenancy-in-common, or joint tenancy relationship between Borrower
and Lender nor to grant Lender any interest in the Property other than that of
mortgagee, beneficiary or lender.
(b) This Agreement and the other Loan Documents are solely for
the benefit of Lender and Borrower and nothing contained in this Agreement or
the other Loan Documents shall be deemed to confer upon anyone other than Lender
and Borrower any right to insist upon or to enforce the performance or
observance of any of the obligations contained herein or therein. All conditions
to the obligations of Lender to make the Loan hereunder are imposed solely and
exclusively for the benefit of Lender and no other Person shall have standing to
require satisfaction of such conditions in accordance with their terms or be
entitled to assume that Lender will refuse to make the Loan in the absence of
strict compliance with any or all thereof and no other Person shall under any
circumstances be deemed to be a beneficiary of such conditions, any or all of
which may be freely waived in whole or in part by Lender if, in Lender's sole
discretion, Lender deems it advisable or desirable to do so.
Section 10.17 PUBLICITY. All news releases, publicity or advertising
by Borrower or their Affiliates through any media intended to reach the general
public which refers to the Loan Documents or the financing evidenced by the Loan
Documents, to Lender, or any of its Affiliates shall be subject to the prior
written approval of Lender. All news releases, publicity or advertising by
Lender through any media intended to reach the general public which refers
solely to the Borrower or to the Loan made by the Lender to the Borrower shall
be subject to the prior written approval of Borrower, provided however, the
foregoing shall not apply to Provided Information included in disclosure
documents in connection with a Securitization.
Section 10.18 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, or to a sale in inverse
order of alienation in the event of foreclosure of the Mortgage or sale of the
Property by power of sale, and agrees not to 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.
81
Section 10.19 WAIVER OF COUNTERCLAIM. 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.
Section 10.20 CONFLICT; CONSTRUCTION OF DOCUMENTS; RELIANCE. In the
event of any conflict between the provisions of this Loan Agreement and any of
the other Loan Documents, the provisions of this Loan 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 10.21 BROKERS AND FINANCIAL ADVISORS. Borrower hereby
represents that it has dealt with no financial advisors, brokers, underwriters,
placement agents, agents or finders in connection with the transactions
contemplated by this Agreement other than Inland Mortgage Corp. Borrower hereby
agrees to indemnify, defend and hold Lender harmless from and against any and
all claims, liabilities, costs and expenses of any kind (including Lender's
reasonable 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 10.21 shall survive the expiration and termination of this Agreement and
the payment of the Debt.
Section 10.22 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 or understandings among or between such parties, whether oral or
written, including, without limitation, the Commitment Letter dated August 3,
2004 between Borrower and Lender are superseded by the terms of this Agreement
and the other Loan Documents and unless specifically set forth in a writing
contemporaneous herewith the terms, conditions and provisions of such prior
agreement do not survive execution of this Agreement.
Section 10.23 TRANSFER OF LOAN. In the event that Lender transfers
the Loan, Borrower shall continue to make payments at the place set forth in the
Note until such time that Borrower is notified in writing by Lender that
payments are to be made at another place.
[THE BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized representatives, all as of the day and
year first above written.
BORROWER:
INLAND WESTERN TALLAHASSEE
GOVERNOR'S ONE, L.L.C., a Delaware limited
liability company
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, its sole
member
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Asst. Secretary
KEYBANK NATIONAL ASSOCIATION, a
national banking association
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ )
)ss
COUNTY OF ▇▇▇▇ )
On this 13th day of August, 2004, before me, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, a Notary
Public in and for said state, personally appeared ________________________, who
being by me duly sworn did say that he/she is the ASST. SEC. of Inland Western
Retail Real Estate Trust, Inc., a Maryland corporation, the sole member of
Inland Western Tallahassee Governor's One, L.L.C., a Delaware limited liability
company, and that the within instrument was signed and sealed in behalf of said
corporation in behalf of said limited liability company by authority of its
board of directors, and acknowledged said instrument to be the free act and deed
of said corporation in behalf of said limited liability company for the purposes
therein stated.
OFFICIAL SEAL
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES 6-13-2007
[Notarial Seal] /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------
My commission expires: 6-13-07
------------------
84
SCHEDULE I
Intentionally Omitted
SCH. X-1
SCHEDULE II
RENT ROLL
(next page)
SCH. X-2
KIMCO GOVERNORS MARKETPLACE LTD.
RENT ROLL AS OF MAY 3, 2004
RENT
LEASE LEASE COMMENCEMENT RENT ANNUAL
TENANT SF START DATE END DATE DATE PER SF RENT
---------------------------- --------- ---------- ---------- ------------ ------ ---------------
Bed Bath & Beyond 35,000 7/28/2000 1/31/2017 6/9/2001 10.50 $ 367,500
Sports Authority 34,775 8/2/2003 8/31/2008 1/29/2004 11.91 414,170
▇▇▇▇▇▇▇▇'▇ 30,000 5/24/2001 5/31/2011 5/24/2001 7.75 232,500
Michaels 23,965 5/26/2001 2/28/2011 7/25/2001 10.50 251,633
Old Navy 20,000 9/25/2001 9/30/2006 9/25/2001 11.50 230,000
Pelco 13,750 5/26/2003 5/31/2013 5/26/2003 15.42 212,025
Famous Footwear 10,070 6/4/2001 7/31/2006 7/19/2001 15.50 156,085
David's Bridal 9,000 3/11/2003 5/31/2013 5/19/2003 14.80 133,200
Bombay Company 8,500 6/30/2003 8/31/2013 9/8/2003 24.50 208,250
Lifeway Christian 6,324 7/15/2001 9/30/2011 9/29/2001 21.00 132,804
Sprint PCS 4,206 12/13/2002 12/31/2007 12/23/2002 18.00 75,708
Atlanta Bread Company 4.000 10/5/2001 11/30/2011 11/9/2001 24.10 96,390
Boston Market 3,800 12/1/2002 11/30/2012 12/1/2002 15.79 60,000
Student Body 3,721 7/13/2001 8/31/2006 8/4/2001 21.85 81,321
▇▇▇▇▇'▇ Maytag 3,466 3/28/2002 5/31/2007 5/27/2002 20.02 69,389
Nextel 1,443 7/2/2003 8/31/2008 9/23/2003 26.00 37,518
Life Uniform 1,217 4/1/2002 6/30/2007 6/3/2002 22.00 26,774
Cingular Wireless 1,200 3/28/2002 6/30/2007 6/26/2002 26.52 31,824
Cargo Kids 5,465 7/15/2004 8/31/2014 8/29/2004(4) 22.80 124,602
ALLTEL 2,000 3/1/2004 4/30/2009 4/30/2004(4) 24.00 48,000
Odoba 2,000 2/1/2004 7/31/2014 7/10/2004(4) 21.00 42,000
Ujamaa 1,600 5/15/2004 10/31/2009 10/12/2004(4) 22.88 36,608
-------- ---------------
225,502 $ 3,068,301
======== ===============
MONTHLY
MONTHLY MONTHLY INSURANCE SECURITY
MONTHLY CAM TAX ESCROW MGMT.FEE DEPOSIT
TENANT RENT ESCROW ESCROW (3) (2) (1)
--------------------- --------------- --------------- --------------- --------------- -------- ---------------
Bed Bath & Beyond $ 30,625.00 $ 5,833.33 $ - $ - 0.00% $ -
Sports Authority 34,514.19 3,767.25 - - 0.00% -
▇▇▇▇▇▇▇▇'▇ 19,375.00 2,500.00 - - 0.00% -
Michaels 20,969.38 1,997.08 - 399.00 0.00% -
Old Navy 19,166.67 1,666.67 2,666.67 333.00 0.00% -
Pelco 17,668.75 1,489.58 - - 0.00% -
Famous Footwear 13,007.08 839.17 1,510.50 210.00 0.00% -
David's Bridal 11,100.00 1,200.00 1,200.00 - 0.00% -
Bombay Company 17,354.17 1,133.33 1,133.33 - 0.00% -
Lifeway Christian 11,067.00 527.00 843.17 148.00 0.00% -
Sprint PCS 6,309.00 560.83 560.83 - 0.00% -
Atlanta Bread Company 8,032.50 403.33 533.33 100.00 2.00% -
Boston Market 4,999.98 - - - 0.00% -
Student Body 6,776.75 310.08 496.17 87.00 3.00% 14,201.81
▇▇▇▇▇'▇ Maytag 5,782.44 375.50 462.17 - 4.00% 6,267.68
Nextel 3,126.50 192.42 192.42 - 4.00% -
Life Uniform 2,231.17 162.25 162.25 - 0.00% -
Cingular Wireless 2,652.00 155.00 155.00 - 4.00% -
Cargo Kids 10,383.50 - - - 0.00% -
ALLTEL 4,000.00 - - - 0.00% -
Odoba 3,500.00 - - - 0.00% -
Ujamaa 3,050.67 - - - 4.00% 7,562.26
--------------- --------------- --------------- --------------- ---------------
$ 255,691.73 $ 23,112.83 $ 9,915.83 $ 1,277.00 $ 28,031.75
=============== =============== =============== =============== ===============
(1) REPRESENTS SECURITY DEPOSITS PER THE LEASE.
(2) ANNUAL/MONTHLY RENT INCLUDES MANAGEMENT FEES NOTED.
(3) REPRESENTS LEASES WITH SEPARATE INSURANCE ESCROW PAYMENTS OTHERWISE
INCLUDED IN CAM.
(4) ESTIMATED RENT COMMENCEMENT DATE.
SCHEDULE III
REQUIRED REPAIRS
[NONE]
SCH. X-3
SCHEDULE IV
Intentionally omitted
SCH. X-4
SCHEDULE V
Intentionally omitted
SCH. X-5
SCHEDULE VI
AFFILIATE AGREEMENTS
MANAGEMENT AGREEMENT
SCH. X-6
Loan No. 10024998
LOAN AGREEMENT
Dated as of August 17, 2004
Between
INLAND WESTERN TALLAHASSEE GOVERNOR'S ONE, L.L.C.,
as Borrower
and
KEYBANK NATIONAL ASSOCIATION,
as Lender
