LOAN AGREEMENT BY AND BETWEEN NOMURA ASSET CAPITAL CORPORATION, as Lender and M-SIX PENVEST II BUSINESS TRUST, as Owner
Exhibit
10.5
Pool
IX
BY AND
BETWEEN
NOMURA
ASSET CAPITAL CORPORATION,
as
Lender
and
M-SIX
PENVEST II BUSINESS TRUST,
as
Owner
EXHIBITS
Exhibit
A Form
of Note
Exhibit
B Form
of Indenture
Exhibit
C Form
of Master Lease
Exhibit
D Form
of Master Lease Assignment
Exhibit
E Form
of Tenant Consent
Exhibit
F Form
of Opinions
Exhibit
G Form
of Certificates
Exhibit
H Form
of Master Lease Guaranty
Exhibit
I Form
of Residual Value Insurance Policy
Exhibit
J Form
of Central Account Agreement
LOAN
AGREEMENT (this "Agreement"), dated as of April 30, 1998, by and between NOMURA
ASSET CAPITAL CORPORATION, a Delaware corporation, as lender (together with its
successors and assigns, "Lender"), and M-SIX PENVEST II BUSINESS TRUST, a
Delaware business trust, as borrower (together with each other Owner listed on
Schedule I to the Indenture referred to below and their respective permitted
successors and assigns, "Owner").
RECITALS
WHEREAS, Owner desires to obtain a loan
(the "Loan") from Lender in the amount of Fifty-One Million, Nine Hundred Thirty
Four Thousand, Four Hundred Eighty Nine and 63/100 Dollars ($51,934,489.63) (the
"Loan Amount");
WHEREAS, Lender is willing to make the
Loan to Owner in the Loan Amount upon the terms and subject to the conditions
set forth herein and in the other Loan Documents (hereinafter defined);
and
WHEREAS, the Loan will be secured by,
among other things that certain Indenture of Mortgage, Deed of Trust, Security
Agreement, Fixture Filing, Financing Statement and Assignment of Rents and
Leases, dated as of the date hereof, made by Owner, in favor of one or more
trustees for the benefit of Lender and Lender as security for the Loan, (as
modified, amended or supplemented from time to time, the "Indenture"), which
Indenture encumbers the Mortgaged Property (as collectively defined in the
Indenture).
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 hereby covenant, agree,
represent and warrant as follows:
1.
CERTAIN DEFINITIONS
Section
1.1 Definitions.
All capitalized terms used but not defined herein shall have the meaning set
forth with respect thereto in the Indenture.
2.
GENERAL TERMS
Section
2.1 Amount
of the Loan. Subject to the terms and conditions of this Agreement, Lender shall
lend to Owner the Loan Amount. The Loan to Owner shall be evidenced by the
Note.
Section
2.2 Use
of Proceeds, All proceeds of the Loan shall be used for commercial purposes only
in connection with the acquisition, ownership and leasing of the Mortgaged
Property and will not be used for personal, family or household
use.
Section
2.3 Security
for the Note, The Note and Owner's obligations hereunder and under the other
Loan Documents shall be secured by (a) the Indenture, (b) the Master Lease
Assignment and (c) certain other Loan Documents.
Section
2.4 Payment
of Loan. Owner shall repay the Loan and any other Indebtedness due under and in
accordance with the provisions of the Note, the Indenture and the other Loan
Documents
3.
CONDITIONS TO CLOSING OF LOAN
The obligation of Lender to make the
Loan on the Closing Date is subject to (A) the accuracy and correctness on the
Closing Date, with the same effect as if made on and as of such date, of the
representations and warranties of Owner and Remainderman, if any, contained in
the Indenture, (B) the accuracy and correctness on the Closing Date of the
representations and warranties of the other parties to the transactions
contemplated hereby contained in any certificate or other Operative Document (as
hereinafter defined) delivered pursuant hereto, (C) the performance by such
other parties of their respective agreements contained in any certificate or
other Operative Document delivered pursuant hereto and to be performed by them
on or prior to the Closing Date, (D) the performance by Owner of its agreements
contained herein and to be performed by it on or prior to the Closing Date, and
(E) the satisfaction of all of the following conditions on or prior to the
Closing Date:
(a) Operative
Documents. Each of the Operative Documents shall have been duly authorized,
executed and delivered by the parties thereto and shall be in full force and
effect, and no default shall exist thereunder, and Lender and its counsel shall
have received a fully executed original of this Agreement and a fully executed
copy of each of the other documents listed below (together with this Agreement,
collectively the "Operative Documents"):
(1) Note;
(2) Indenture;
(3) Master
Lease;
(4) Master
Lease Assignment;
(5) Tenant
Consent;
(6) Master
Lease Guaranty;
(7) Residual
Value Policy;
(8) Option
and Subordination Agreement, if any;
(9) Tripartite
Agreement, if any;
(10) Central
Account Agreement; and
(11) the
indemnification agreements required pursuant to Section 3(y).
(except
only Lender or its counsel, on Lender's behalf, shall have received the original
executed Note). The Operative Documents (or memoranda thereof) and any financing
statements under the Uniform Commercial Code shall have been recorded,
registered and filed, if necessary, in order for the Title Insurance Policy to
be issued in accordance with paragraph (e) below and for Lender to hold a first
Lien on and a fully perfected first security interest in each Mortgaged Property
subject only to Permitted Encumbrances.
(b) Payment
of Recording Charges. All taxes, fees and other charges in connection with the
execution, delivery, recording, filing and registration of the Operative
Documents shall have been paid or provision for such payment shall have been
made to Lender's satisfaction.
(c) Title.
On the Closing Date, title to each Mortgaged Property shall conform to the
representations set forth in the Indenture and in the certificates delivered
pursuant to Section 3(t) hereof.
(d) Representations
and Warranties. On the Closing Date, all of the representations and warranties
of Owner, Remainderman, if any, Tenant, Seller, Master Lease Guarantor and
Residual Value Insurer set forth in the Indenture, in any Operative Document or
in any certificate of Owner, Remainderman, if any, Tenant, or Residual Value
Insurer to be delivered in accordance with paragraph (t) below shall be true and
correct, and Owner. Remainderman, Tenant, Seller, Master Lease
Guarantor and Residual Value Insurer shall have supplied evidence acceptable to
Lender thereof.
(e) Title
Insurance Policy. Lender shall have received a Title Insurance Policy, or an
irrevocable commitment therefor with respect to each Mortgaged Property, issued
by a nationally recognized title insurance company acceptable to Lender and
authorized to do business in the State in which such Mortgaged Property is
located (or, at Lender's request, with an endorsement to each such policy
"tieing in" all other policies relating to Mortgaged Properties), and each such
policy shall insure that the Indenture constitutes a first lien on such
Mortgaged Property, subject only to Permitted Encumbrances (which, in the case
of Permitted Encumbrances described in clause (vi) of the definition thereof,
are acceptable to Lender). Each such Title Insurance Policy shall name Lender,
or a trustee, as insured, and shall include any and all endorsements thereto as
shall be required by Lender including, without limitation, mechanics' lien
endorsements, survey endorsements and comprehensive endorsements, shall be
satisfactory in form and substance to Lender and shall insure Lender against
loss in an amount not less than the Allocated Property Debt with respect to the
Mortgaged Property to which such policy relates or such greater amount as Lender
may reasonably request. The Title Insurance Policies, or the irrevocable
commitments therefor, as applicable, shall be assignable.
(f) Survey.
Lender shall have received a copy of an ALTA (or other comparable State
requirement) boundary or as-built survey, as applicable, of each Land Parcel and
related Improvements satisfactory in form and substance Lender certified to
Lender and to the title company and their successors and assigns, within 90 days
prior to the Closing Date by an Independent surveyor licensed in the State in
which the related Land Parcel is located. The survey should be prepared in
accordance with the 1997 Minimum Standard Detail Requirements for ACTA/ACSM Land
Title Surveys and those certain Nomura Asset Capital Corporation Standard Survey
Requirements and any other requirements of Lender. The survey should meet the
classification of an "Urban Survey" and the following additional items from the
list of "Optional Survey Responsibilities and Specifications" (Table A) should
be added to each survey: 1, 2, 3, 4, 6, 7(a), (bl) and (c), 8, 9, 10, 11 and 13.
Such survey shall reflect the same legal description contained in the Title
Insurance Policy relating to such Mortgaged Property referred to in Section 3
(e) above and shall include, among other things, a metes and bounds description
of the real property comprising part of such Mortgaged 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.
(g) Financial
Statements. Owner shall have delivered to Lender the most recent annual audited
financial statements and the most recent annual certified financial statements
of Master Lease Guarantor, which financial statements shall be reasonably
satisfactory to Lender. Such financial statements shall be prepared in
accordance with IASC and shall fairly reflect the financial condition of Master
Lease Guarantor as of the date made and for the periods covered
thereby.
(h) Organization,
Authority. Owner shall have furnished Lender with evidence satisfactory to
Lender that Owner, Remainderman, Tenant, Seller, Master Lease Guarantor and
Residual Value Insurer are validly formed and existing, and in good standing and
duly existing in their respective jurisdictions of organization and, except for
Master Lease Guarantor and Residual Value Insurer, in each State in which a
Mortgaged Property is located. Furthermore, Owner shall have submitted to Lender
certified organizational documents of Owner, Remainderman Tenant, Seller, Master
Lease Guarantor and Residual Value Insurer. Owner shall have delivered to
Lender, a certified resolution of all directors or other necessary Persons
authorizing Owner, Remainderman Tenant, Seller, Master Lease Guarantor and
Residual Value Insurer to execute, deliver and perform the Operative Documents
to which each is a party.
(i) Certificate
of Occupancy; Permits; Zoning. Owner shall have delivered to Lender copies of
all certificates of occupancy and other permits and licenses required for the
operation of the Mortgaged Property. Owner shall have delivered evidence
satisfactory to Lender that each Mortgaged Property complies with all zoning and
use restrictions and with all conditions and restrictions in any Appurtenant
Agreements. Such evidence may include, but shall not be limited to, at Lender's
option, (i) letters or other evidence with respect to each Mortgaged Property
from the appropriate municipal authorities (or other Persons) concerning
applicable zoning and building laws, (ii) an ALTA 3.1 zoning endorsement for the
applicable Title Insurance Policy, or (iii) a zoning opinion letter, in
substance reasonably satisfactory to Lender.
(j) UCC
Search. Lender shall have received such current Uniform Commercial Code search
certificates as Lender shall have requested. Unless otherwise approved by
Lender, all of said financing statements affecting the Mortgaged Property or any
of the personal property and intangibles in which Lender is to be granted a
security interest pursuant to the terms of the Loan Documents shall have been
terminated of record.
(k) Certain
Opinions. Lender shall have received the opinions of counsel to Owner,
Remainderman, if any, Tenant, Seller, Master Lease Guarantor and Residual Value
Insurer, each dated the Closing Date and addressed to Lender, with respect to
such matters as set forth in Exhibits F-1 through F-6 respectively, and as
approved in final form and substance by Lender and its counsel.
(1) Local
Counsel Opinion. Local counsel in each State in which the Mortgaged Property is
located and local counsel in New York State shall have issued to Lender its
opinion with respect to the laws of such state in form and substance
satisfactory to Lender and its counsel. Owner agrees that it will not assert any
defense with respect to an Event of Default or any other claim by Lender under
any of the Operative Documents based on the fact that Lender and Owner have
jointly relied upon the opinion of such counsel with respect to matters of laws
of any State in which the Mortgaged Property is located.
(m) Governmental
Approvals. On the Closing Date, all approvals, authorizations and consents,
including certificates of occupancy and environmental impact reports, if any be
required, of all Governmental Authorities having jurisdiction with respect to
each Mortgaged Property, Owner, Remainderman, if. any, Tenant, Seller, Master
Lease Guarantor, Residual Value Insurer or the transactions contemplated in the
Operative Documents shall have been obtained and be in full force and
effect.
(n) No
Material Adverse Change. There shall have been no material adverse changes in
the business or financial condition of Master Lease Guarantor since December 31,
1996.
(o) Insurance
Certificates. Lender and Owner shall have received copies of insurance policies
or valid certificates for the insurance (meeting Lender's customary
requirements) required by the Master Lease and by the Indenture satisfactory to
Lender in its reasonable discretion, and evidence of payment of all premiums
payable for the existing policy period.
(p) No
Proceedings, No action or proceeding shall have been instituted nor shall any
governmental action be threatened before any Governmental Authority, nor shall
any order, judgment or decree have been issued or proposed to be issued by any
court or Governmental Authority, to set aside, restrain, enjoin or prevent the
performance of this Agreement, any other Operative Document or any transaction
contemplated hereby or thereby,
(q) Environmental
Report. Lender shall have received a Phase I Environmental Report with respect
to each Mortgaged Property and a reliance letter with respect thereto
satisfactory in form and substance to Lender prepared by an environmental
engineering firm approved by Lender in accordance with the scope of ASTM
Standard E1527, Lender may require the preparation of an additional Phase II
environmental assessment report satisfactory in form and substance to Lender, if
the Phase I environmental assessment report reveals conditions which in Lender's
opinion warrant further testing.
(r) Appraisal.
Lender shall have received an Appraisal with respect to each Mortgaged Property
reasonably satisfactory to Lender.
(s) [Intentionally
Omitted.]
(t) Closing
Certificates. Lender and its counsel shall have received the Certificates of
Owner, Remainderman, Tenant, and Residual Value Insurer, each dated the Closing
Date and substantially in the forms of Exhibit G-1 through G-4 and as approved
in final form by Lender and its counsel. Owner shall have also received a FIRPTA
Affidavit from the seller of each Mortgaged Property.
(u) Perfection
of Security Interests. UCC-1 Financing Statements with respect to the Mortgaged
Property showing Owner, as debtor, and Lender, as secured party, shall be filed
and/or recorded in each office in each state where necessary to permit Owner to
make its representation that Lender has a first perfected security interest in
that portion of the Mortgaged Property which is subject to the UCC.
(v) Rating.
Lender shall have received confirmation acceptable to it that the long term
unsecured debt rating of Master Lease Guarantor is BBB or higher which rating is
not subject to any pending downgrade nor is such rating subject to any credit
watch.
(w) [Intentionally
Omitted.]
(x) Closing
Costs. Owner shall pay, or cause to be paid, all costs referenced in Section
4(a) which are invoiced at or prior to closing.
(y) Indemnities.
Lender shall have received an indemnity from Seller that Seller will pay and
hold Lender harmless from liability for the costs and expenses referred to in
Section
4. Lender
shall have received a satisfactory indemnification agreement from Owner and a
satisfactory ACCOR Group Indemnification Agreement, of even date herewith, from
Seller, Tenant and Master Lease Guarantor indemnifying Lender, its affiliates
and certain related Persons with respect to certain securities law
matters.
(z) Other
Items. All opinions, certificates and other instruments and all proceedings in
connection with the transactions contemplated by this Agreement and the other
Operative Documents shall be reasonably satisfactory in form and substance to
each of the parties hereto and their respective special counsel. Each of the
parties hereto shall have received all instruments and other evidence as it may
reasonably request, in form and substance satisfactory to it and its special
counsel, with respect to such transactions and the taking of all proceedings in
connection therewith. If any provision of any Operative Document requires the
certification, representation or warranty of the existence or nonexistence of
any particular fact or implies as a condition the existence or nonexistence of
such fact, then Lender or any other party which is the beneficiary thereof shall
be free to require the establishment to its reasonable satisfaction of the
existence or nonexistence of such fact.
4. PAYMENT
OF EXPENSES
Owner will:
(a) pay
or cause to be paid all fees, expenses and disbursements of Lender's counsel,
local counsel in each State in which the Mortgaged Property is located and
New,
York local counsel, in connection with this transaction, including, without
limitation, any expenses of such counsel in connection with any modification or
waiver under any Operative Document and the exercise of any rights and remedies
under this Agreement or any Operative Document and all other expenses in
connection therewith, including, without limitation, filing fees, document
reproduction expenses, environmental site assessment costs, title insurance
premiums, survey expenses, appraisal expenses, and all fees, taxes and expenses
for the recording, registration and filing of documents;
(b) reimburse
Lender or cause Lender to be reimbursed for its reasonable out-of-pocket
expenses (other than income or franchise taxes or similar tax) in connection
with such transactions and any items of the character referred to in Section
4(a) above which shall have been paid by Lender, including expenses incurred in
connection with any modification or waiver of any Operative Document and the
exercise of rights and remedies under this Agreement or any Operative
Document;
(c) pay
or cause to be paid, and save Lender harmless from and against any and all
liability and loss with respect to or resulting from (i) any claim for or on
account of any brokers' or finders' fees with respect to the transactions
contemplated herein, or (ii) the nonpayment or delayed payment of any such fees
and any and all stamp, mortgage and other similar taxes, fees and excises
(except Lender's income franchise or similar taxes and fees), if any, including
any interest and penalties, which are payable in connection with the
transactions contemplated by this Agreement; and
(d) pay
or cause to be paid all reasonable costs and expenses incurred by Lender
(including, without limitation, 'special and local counsel fees and expenses and
Rating Agencies fees, costs and expenses) in entering into or giving or
withholding any future amendments, supplements, modifications, waivers and
consents with respect to any Operative Document, whether or not such amendments,
supplements, modifications, waivers and consents are entered into, given or
withheld pursuant hereto or thereto, which have been requested by Owner,
Remainderman, if any, Tenant, Seller, Master Lease Guarantor or Residual Value
Insurer.
provided, however, that all legal fees,
costs and expenses which Owner has agreed to pay hereunder shall be limited to
reasonable legal fees, costs and expenses except no such limitations shall exist
when Lender is enforcing any right or exercising any remedy under the Operative
Documents.
5. DEFAULTS
So long as any Event of Default shall
have occurred and be continuing, Lender may, in addition to any other rights or
remedies available to it pursuant to this Agreement, the Note, the Indenture or
the other Loan Documents, or at law or in equity, take such action, without
notice;: or demand, as Lender deems advisable to protect and enforce its rights
against Owner and in and to all or any portion of the Mortgaged Property,
including, without limitation, declaring by written notice to Owner the entire
Indebtedness 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,
including, without limitation, all rights or remedies available at law or in
equity, subject to Section 4.3(z) of the Indenture.
6. MISCELLANEOUS
Section
6.1 Survival.
This Agreement (other than the conditions set forth in Section 3 hereof) and all
covenants, agreements, representations and warranties made herein and in the
certificates delivered pursuant hereto shall 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 any portion of the Indebtedness is outstanding
and unpaid. Whenever in this Agreement any of the parties hereto is referred to
(including any provision with respect to the delivery of notice), such reference
shall be deemed to include the legal representatives, successors and assigns of
such party. All covenants, promises and agreements in this Agreement contained,
by or on behalf of Owner, shall inure to the benefit of the respective legal
representatives, successors and assigns of Lender. Nothing in this Agreement or
in any other Loan Document, express or implied, shall give to any Person other
than the parties and the holder(s) of the Note and the Indenture, and their
legal representatives, successors and assigns, any benefit or any legal or
equitable right, remedy or claim hereunder.
Section
6.2 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 provided in this Agreement) be in the sole
discretion of Lender and shall be final and conclusive.
Section
6.3 Governing
Law. This Agreement and the obligations arising hereunder shall be governed by,
and construed in accordance with, the laws of the State of New York. To the
fullest extent permitted by law, Owner hereby unconditionally and irrevocably
waives any claim to assert that the law of any other jurisdiction governs this
Agreement.
Section
6.4 Modification,
Waiver in Writing. No modification, amendment, extension, discharge, termination
or waiver (a "Modification") of any provision of this Agreement (other than any
condition set forth in Section 3 hereof), or of the Note, or of any other Loan
Document, or of any other Operative Document, nor consent to any departure by
Owner or any other party therefrom, shall in any event be effective unless the
same shall be in a writing signed by Lender and 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 Owner, shall
entitle Owner to any other or future notice or demand in the same, similar or
other circumstances. Lender does not hereby agree to, nor does Lender. hereby
commit itself. to, enter into any Modification.
Section
6.5 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 (other than any
condition set forth in Section 3 hereof), or under the Note, or of 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
6.6 Notices.
All notices, consents and other communications provided for hereunder or under
any other Loan Document shall be given in writing and shall be effective for all
purposes if given in the manner provided in Section 5.1 of the Indenture to the
Person entitled to receive the same, which Section 5.1 of the Indenture is
hereby incorporated herein by reference.
Section
6.7 TRIAL
BY JURY. OWNER, TO THE FULLEST EXTENT THAT IT MAY LAWFULLY DO SO, WAIVES TRIAL
BY JURY IN ANY ACTION OR PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY TORT
ACTION, BROUGHT BY ANY PARTY HERETO WITH RESPECT TO THIS AGREEMENT, THE NOTE OR
THE OTHER LOAN DOCUMENTS.
Section
6.8 Headings.
The Article and/or Section headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose.
Section
6.9 Assignment.
Lender shall have the right to transfer, sell or assign this Agreement and any
of the other Loan Documents to any Person who purchases or otherwise acquires
Lender's interest in the Loan. All references to "Lender" hereunder shall be
deemed to include the successors and assigns of Lender.
Section
6.10 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
6.11 Preferences.
Lender shall have no obligation to marshal any assets in favor of Owner or any
other party or against or in payment of any or all of the obligations of Owner
pursuant to this Agreement, the Note or any other Loan Document. Lender shall
have the continuing and exclusive right to apply or reverse and reapply any and
all payments by Owner to any portion of the Indebtedness. To the extent Owner
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 Indebtedness 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
6.12 Waiver
of Notice. Owner 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 Owner and except with respect to matters for which Owner is not,
pursuant to applicable Legal Requirements, permitted to waive the giving of
notice. Owner 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 does not specifically and expressly provide for the giving of notice
by Lender to Owner.
Section
6.13 Remedies
of Owner. In the event that a claim or adjudication is made that Lender or any
of the Lender Parties has acted unreasonably or unreasonably delayed acting in
any case where by law or under this Agreement, the Note, the Indenture or the
other Operative Documents, Lender or such Lender Party, as the case may be, has
an obligation to act reasonably or promptly, Owner agrees that neither Lender
nor such Lender Party shall be liable for any monetary damages, and Owner's sole
remedy 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 or a Lender Party has acted reasonably shall be
determined by an action seeking only a declaratory judgment.
Section
6.14 Exculpation.
Notwithstanding anything herein or in any other Loan Document to the contrary,
the liability of Owner shall be limited as set forth in Section 4.3(z) of the
Indenture.
Section
6.15 Exhibits
Incorporated. The information set forth on the cover hereof, and the exhibits
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
6.16 Offsets,
Counterclaims and Defenses. Any assignee of the Lender's interest in and to this
Agreement, the Note, the Indenture and the other Loan Documents shall take the
same free and clear of all offsets, counterclaims or defenses which are
unrelated to, this
Agreement, the Note, the Indenture and the other Loan Documents which Owner may
otherwise have against any assignor of this Agreement, the Note, the Indenture
and the other Loan Documents, and no such unrelated counterclaim or defense
shall be interposed or asserted by Owner in any action or proceeding brought by
any such assignee upon this Agreement, the Note, the Indenture and other Loan
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 Owner.
Section
6.17 No
Joint Venture or Partnership. Owner and Lender intend that the relationship
created hereunder be solely that of borrower and lender. Nothing herein is
intended to create a joint venture, partnership, tenancy-in-common, or joint
tenancy relationship between Owner and Lender nor to grant Lender any interest
in the Mortgaged Property other than that of mortgagee or lender.
Section
6.18 Publicity.
All promotional news releases, publicity or advertising by Owner or its
Affiliates through any media intended to reach the general public shall not
refer to the Loan Documents or the financing evidenced by the Loan Documents, or
to Lender without the prior written approval of Lender, in each instance. Any of
the Lender Parties shall be authorized to provide information relating to the
Mortgaged Property, the Loan, Owner, Tenant, Seller, Master Lease Guarantor, the
Operative Documents and matters relating thereto to rating agencies,
underwriters, placement agents, any other Persons engaged in connection with a
proposed or actual securitization intending to include or including the Loan,
potential and actual securities investors, auditors, accountants, lawyers,
regulatory authorities and to any parties which may be entitled to such
information by operation of law.
Section
6.19 Conflict;
Construction of Documents. In the event of any conflict between the provisions
of this Agreement and the provisions of the Note, the Indenture or any of the
other Loan Documents, the provisions of whichever document is most favorable to
Lender shall prevail. The parties hereto acknowledge that they were represented
by counsel in connection with the negotiation and drafting of the Loan Documents
and that the Loan Documents shall not be subject to the principle of construing
their meaning against the party which drafted same.
Section
6.20 Brokers
and Financial Advisors. Owner and Lender hereby represent that they have dealt
with no financial advisors, brokers, underwriters, placement agents, agents or
finders in connection with the transactions contemplated by this Agreement.
Owner and Lender hereby agree to indemnify and hold the other harmless from and
against any and all claims, liabilities, costs and expenses of any kind in any
way relating to or arising from a claim by any Person that such Person acted on
behalf of the indemnifying party in connection with the transactions
contemplated herein. The provisions of this Section 6.20 shall survive the
expiration and termination of this Agreement and the repayment of the
Indebtedness.
Section
6.21 Joint
and Several Liability. If Owner consists of more than one Person or party, the
obligations and liabilities of each such Person or party hereunder shall be
joint and several.
Section
6.22 [Intentionally
Omitted.]
|
Section
6.23
|
Counterparts.
This Agreement may be executed simultaneously in two or more counterparts
each of which shall be deemed an original, and it shall not be necessary
in making proof of this Indenture to produce or account for more than one
such counterpart.
|
IN
WITNESS WHEREOF, the foregoing instrument has been executed by the undersigned
as of the date
above written.
|
|
|
NOMURA ASSET CAPITAL
CORPORATION,
a Delaware corporation
|
By:
|
/s/
Xxxxx X. Xxxxxx
|
Name: Xxxxx X. Xxxxxx
Title: Director
