LOAN AGREEMENT Dated as of August 31, 2007 Between COUSINS PROPERTIES INCORPORATED, a Georgia corporation as Borrower and JPMORGAN CHASE BANK, N.A., a banking association chartered under the laws of the United States of America as Lender FIXED RATE...
Exhibit 10.1
Dated as of August 31, 2007
Between
COUSINS PROPERTIES INCORPORATED, a Georgia corporation
as Borrower
and
JPMORGAN CHASE BANK, N.A., a banking association
chartered under the laws of the United States of America
as Lender
chartered under the laws of the United States of America
as Lender
FIXED RATE SINGLE PROPERTY LOAN
I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION |
1 | |||
Section 1.1 Definitions |
1 | |||
Section 1.2 Principles of Construction |
19 | |||
II. GENERAL TERMS |
19 | |||
Section 2.1 Loan Commitment; Disbursement to Borrower |
19 | |||
2.1.1 Agreement to Lend and Borrow |
19 | |||
2.1.2 Single Disbursement to Borrower |
19 | |||
2.1.3 The Note, Security Instrument and Loan Documents |
19 | |||
2.1.4 Use of Proceeds |
19 | |||
Section 2.2 Interest Rate |
20 | |||
2.2.1 Interest Rate |
20 | |||
2.2.2 Interest Calculation |
20 | |||
2.2.3 Default Rate |
20 | |||
2.2.4 Usury Savings |
20 | |||
Section 2.3 Loan Payment |
20 | |||
2.3.1 Debt Service Payments |
20 | |||
2.3.2 Payments Generally |
20 | |||
2.3.3 Payment on Maturity Date |
21 | |||
2.3.4 Late Payment Charge |
21 | |||
2.3.5 Method and Place of Payment |
21 | |||
Section 2.4 Prepayments |
21 | |||
2.4.1 Voluntary Prepayments |
21 | |||
2.4.2 Mandatory Prepayments |
21 | |||
2.4.3 Prepayments After Default |
22 | |||
Section 2.5 Yield Maintenance |
22 | |||
2.5.1 [Intentionally Omitted] |
23 | |||
Section 2.6 Release on Payment in Full |
23 | |||
Section 2.7 Cash Management |
23 | |||
III. CONDITIONS PRECEDENT |
23 | |||
Section 3.1 Conditions Precedent to Closing |
23 | |||
3.1.1 Representations and Warranties; Compliance with Conditions |
23 | |||
3.1.2 Loan Agreement and Note |
23 | |||
3.1.3 Delivery of Loan Documents; Title Insurance; Reports; Leases |
23 |
3.1.4 Related Documents |
25 | |||
3.1.5 Delivery of Organizational Documents |
25 | |||
3.1.6 Opinions of Borrower’s Counsel |
25 | |||
3.1.7 Budgets |
25 | |||
3.1.8 Basic Carrying Costs |
25 | |||
3.1.9 Completion of Proceedings |
25 | |||
3.1.10 Payments |
25 | |||
3.1.11 Tenant Estoppels |
25 | |||
3.1.12 Transaction Costs |
25 | |||
3.1.13 Material Adverse Change |
26 | |||
3.1.14 Leases and Rent Roll |
26 | |||
3.1.15 Subordination and Attornment |
26 | |||
3.1.16 Tax Lot |
26 | |||
3.1.17 Physical Condition Reports |
26 | |||
3.1.18 Management Agreement |
26 | |||
3.1.19 Appraisal |
26 | |||
3.1.20 Financial Statements |
26 | |||
3.1.21 Further Documents |
26 | |||
IV. REPRESENTATIONS AND WARRANTIES |
26 | |||
Section 4.1 Borrower Representations |
26 | |||
4.1.1 Organization |
26 | |||
4.1.2 Proceedings |
27 | |||
4.1.3 No Conflicts |
27 | |||
4.1.4 Litigation |
27 | |||
4.1.5 Agreements |
27 | |||
4.1.6 Title |
28 | |||
4.1.7 Solvency |
28 | |||
4.1.8 Full and Accurate Disclosure |
28 | |||
4.1.9 No Plan Assets |
29 | |||
4.1.10 Compliance |
29 | |||
4.1.11 Financial Information |
29 | |||
4.1.12 Condemnation |
29 | |||
4.1.13 Federal Reserve Regulations |
29 |
4.1.14 Utilities and Public Access |
30 | |||
4.1.15 Not a Foreign Person |
30 | |||
4.1.16 Separate Lots |
30 | |||
4.1.17 Assessments |
30 | |||
4.1.18 Enforceability |
30 | |||
4.1.19 No Prior Assignment |
30 | |||
4.1.20 Insurance |
30 | |||
4.1.21 Use of Property |
30 | |||
4.1.22 Certificate of Occupancy; Licenses |
31 | |||
4.1.23 Flood Zone |
31 | |||
4.1.24 Physical Condition |
31 | |||
4.1.25 Boundaries |
31 | |||
4.1.26 Leases |
31 | |||
4.1.27 Survey |
32 | |||
4.1.28 Principal Place of Business; State of Organization |
32 | |||
4.1.29 Filing and Recording Taxes |
32 | |||
4.1.30 Special Purpose Entity/Separateness |
32 | |||
4.1.31 Management Agreement |
33 | |||
4.1.32 Illegal Activity |
33 | |||
4.1.33 No Change in Facts or Circumstances; Disclosure |
33 | |||
4.1.34 Investment Company Act |
33 | |||
4.1.35 Embargoed Person |
33 | |||
4.1.36 Taxpayer Identification Number |
34 | |||
4.1.37 OFAC |
34 | |||
4.1.38 Cash Management Accounts |
34 | |||
Section 4.2 Survival of Representations |
34 | |||
V. BORROWER COVENANTS |
34 | |||
Section 5.1 Affirmative Covenants |
34 | |||
5.1.1 Existence; Compliance with Legal Requirements |
35 | |||
5.1.2 Taxes and Other Charges |
35 | |||
5.1.3 Litigation |
36 | |||
5.1.4 Access to Property |
36 | |||
5.1.5 Notice of Default |
36 |
5.1.6 Cooperate in Legal Proceedings |
36 | |||
5.1.7 Perform Loan Documents |
37 | |||
5.1.8 Award and Insurance Benefits |
37 | |||
5.1.9 Further Assurances |
37 | |||
5.1.10 Supplemental Security Instrument Affidavits |
37 | |||
5.1.11 Financial Reporting |
37 | |||
5.1.12 Business and Operations |
41 | |||
5.1.13 Title to the Property |
41 | |||
5.1.14 Costs of Enforcement |
41 | |||
5.1.15 Estoppel Statement |
41 | |||
5.1.16 Loan Proceeds |
42 | |||
5.1.17 Performance by Borrower |
42 | |||
5.1.18 Confirmation of Representations |
42 | |||
5.1.19 No Joint Assessment |
42 | |||
5.1.20 Leasing Matters |
42 | |||
5.1.21 Alterations |
43 | |||
5.1.22 Management of Property |
44 | |||
Section 5.2 Negative Covenants |
44 | |||
5.2.1 Operation of Property |
44 | |||
5.2.2 Liens |
45 | |||
5.2.3 Dissolution |
45 | |||
5.2.4 Change in Business |
45 | |||
5.2.5 Debt Cancellation |
45 | |||
5.2.6 Zoning |
45 | |||
5.2.7 Intentionally Omitted |
46 | |||
5.2.8 Principal Place of Business and Organization |
46 | |||
5.2.9 ERISA |
46 | |||
5.2.10 Transfers |
46 | |||
5.2.11 Ground Lease Provisions |
49 | |||
VI. INSURANCE; CASUALTY; CONDEMNATION |
51 | |||
Section 6.1 Insurance |
51 | |||
Section 6.2 Casualty |
55 | |||
Section 6.3 Condemnation |
55 |
Section 6.4 Restoration |
56 | |||
VII. RESERVE FUNDS |
60 | |||
Section 7.1 Required Repair Funds |
60 | |||
7.1.1 Deposits of Required Repair Funds |
60 | |||
7.1.2 Release of Required Repair Funds |
60 | |||
Section 7.2 Tax and Insurance Escrow Fund; Waiver |
61 | |||
7.2.1 Tax and Insurance Escrow |
61 | |||
7.2.2 Waiver of Deposit for Insurance Premiums |
62 | |||
Section 7.3 Replacements and Replacement Reserve |
62 | |||
7.3.1 Deposits to Replacement Reserve Fund |
62 | |||
7.3.2 Disbursements of Replacement Reserve Funds |
63 | |||
7.3.3 Insufficiency of Replacement Reserve Funds |
63 | |||
Section 7.4 Rollover Reserve |
63 | |||
7.4.1 Deposits to Rollover Reserve Fund |
63 | |||
7.4.2 Withdrawal of Rollover Reserve Funds |
63 | |||
Section 7.5 Reserve Funds, Generally |
64 | |||
Section 7.6 2009 Rollover Fund |
65 | |||
7.6.1 Deposits to 2009 Rollover Reserve Fund |
65 | |||
7.6.2 Withdrawal of 2009 Rollover Reserve Funds |
65 | |||
7.6.3 Releases of 2009 Rollover Reserve Funds |
65 | |||
VIII. DEFAULTS |
66 | |||
Section 8.1 Event of Default |
66 | |||
Section 8.2 Remedies |
68 | |||
Section 8.3 Remedies Cumulative; Waivers |
69 | |||
IX. SPECIAL PROVISIONS |
69 | |||
Section 9.1 Sale of Notes and Securitization |
69 | |||
Section 9.2 Securitization Indemnification |
71 | |||
Section 9.3 Intentionally Omitted |
73 | |||
Section 9.4 Exculpation |
73 | |||
Section 9.5 Matters Concerning Manager |
75 | |||
Section 9.6 Servicer |
75 | |||
X. MISCELLANEOUS |
75 | |||
Section 10.1 Survival |
75 |
Section 10.2 Lender’s Discretion |
75 | |||
Section 10.3 Governing Law |
75 | |||
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 |
79 | |||
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 |
81 | |||
Section 10.15 Offsets, Counterclaims and Defenses |
81 | |||
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 Mezzanine Loan |
82 | |||
Section 10.24 Loan Assumption |
84 |
SCHEDULES
Schedule I — Rent Roll
Schedule II — Required Repairs – Deadlines for Completion
Schedule III — Organizational Structure
Schedule II — Required Repairs – Deadlines for Completion
Schedule III — Organizational Structure
THIS LOAN AGREEMENT, dated as of August 31, 2007 (as amended, restated, replaced, supplemented
or otherwise modified from time to time, this “Agreement”), between JPMORGAN CHASE BANK, N.A., a
banking association chartered under the laws of the United States of America, having its principal
place of business at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Lender”) and COUSINS PROPERTIES
INCORPORATED, a Georgia corporation, having its principal place of business at 000 Xxxxxxxxx
Xxxxxx, XX, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 (“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:
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:
“2009 Leases” shall mean the following Leases:
(i) | Lease with Sapient for 32,628 square feet; | ||
(ii) | Lease with Sapient for 25,061 square feet; | ||
(iii) | Lease with AT&T for 137,381 square feet; | ||
(iv) | Lease with AT&T for 1,512 square feet; | ||
(v) | Lease with Events Atlanta for 506 square feet; and | ||
(vi) | Lease with Greater Schools Atlanta for 3,064 square feet. |
“2009 Rollover Reserve Funds” shall have the meaning set forth in Section 7.6.1
hereof.
“Acceptable Accounting Firm” means (a) any “Big Four” accounting firm or (b) any other
independent certified public accountant acceptable to Lender.
1
“Additional Insolvency Opinion” shall have the meaning set forth in Section 4.1.30(c)
hereof.
“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.
“Affiliated Manager” shall mean any Manager in which Borrower or Principal has, directly or
indirectly, any legal, beneficial or economic interest.
“ALTA” shall mean American Land Title Association, or any successor thereto.
“Annex” shall have the meaning set forth in the definition of “Prohibited Person” below.
“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.
“Applicable Interest Rate” shall mean a rate of 6.4515% per annum.
“Approved Annual Budget” shall have the meaning set forth in Section 5.1.11(d) hereof.
“Approved Bank” shall mean a bank or other financial institution which has a minimum long-term
unsecured debt rating of at least “AA” by S&P and Fitch and “Aa2” by Moody’s.
“Assignment of Leases” shall mean that certain first priority Assignment of Leases and Rents,
dated as of the date hereof, from Borrower, as assignor, to Lender, as assignee, assigning to
Lender all of Borrower’s interest in and to the Leases and Rents as security for the Loan, as the
same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Assignment of Management Agreement” shall mean that certain Assignment of Management
Agreement and Subordination of Management Fees, dated as of the date hereof, among 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 with respect to all or any part of the Property.
“Bankruptcy Action” shall mean with respect to any Person (a) such Person filing a voluntary
petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (b)
the filing of an involuntary petition against such Person under the Bankruptcy Code or any other
Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited petitioning
creditors for any involuntary petition against such Person; (c) such Person filing an answer
consenting to or otherwise acquiescing in or joining in any
2
involuntary petition filed against it, by any other Person under the Bankruptcy Code or any
other Federal or state bankruptcy or insolvency law, or soliciting or causing to be solicited
petitioning creditors for any involuntary petition from any Person; (d) such Person consenting to
or acquiescing in or joining in an application for the appointment of a custodian, receiver,
trustee, or examiner for such Person or any portion of the Property; or (e) such Person making an
assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its
insolvency or inability to pay its debts as they become due.
“Basic Carrying Costs” shall mean, for any period, the sum of the following costs associated
with the Property for such period: (a) Taxes and (b) Insurance Premiums.
“Borrower” shall have the meaning set forth in the introductory paragraph hereto, together
with its successors and permitted 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 GAAP (including expenditures for building improvements or major repairs, leasing commissions
and tenant improvements).
“Cash Management Agreement” shall mean that certain Cash Management Agreement, dated as of the
date hereof, by and among Borrower, Manager and Lender, as the same may be amended, restated,
replaced, supplemented or otherwise modified from time to time.
“Casualty” shall have the meaning set forth 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.
“Clearing Account” shall have the meaning set forth in the Cash Management Agreement.
“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.
“Collateral” shall mean the Property, the Accounts, the Reserve Funds, the Personal Property,
the Rents, the Account Collateral, and all other real or personal property of Borrower or any
guarantor that is at any time pledged, mortgaged or otherwise given as security to Lender for the
payment of the Debt under the Security Instrument, this Agreement or any other Loan Document.
3
“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.
“Condemnation Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.
“Control” means the ownership, directly or indirectly, in the aggregate of more than fifty
percent (50%) of the beneficial ownership interests of an entity or the possession, directly or
indirectly, of the power to direct or cause the direction of the management or policies of an
entity, whether through the ability to exercise voting power, by contract or otherwise. “Controlled
by,” “controlling” and “under common control with” shall have the respective correlative meaning
thereto.
“Covered Disclosure Information” shall have the meaning set forth in Section 9.2 (b)
hereof.
“CPI Index” shall have the meaning set forth in Section 6.1(a)(x) hereof.
“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 Yield Maintenance Premium) due to Lender in respect of the Loan under the Note, this
Agreement, the Security Instrument and the other Loan Documents.
“Debt Service” shall mean, with respect to any particular period of time, scheduled principal
and/or interest payments due under this Agreement and the Note.
“Debt Service Coverage Ratio” shall mean a ratio as calculated by Lender 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 financial statements required hereunder; and | ||
(b) | the denominator is the aggregate amount of principal and interest due and payable on the Note (assuming a thirty (30) year amortization schedule, unless otherwise provided herein) and any other notes secured by the Property or by direct or indirect pledges of equity in the Borrower for such 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 a rate per annum equal to the lesser of (a) the Maximum Legal Rate,
or (b) the greater of (i) five percent (5%) above the Applicable Interest
4
Rate or (ii) five percent (5%) above the Prime Rate in effect at the time of the occurrence of
the related Event of Default.
“Disclosure Document” shall mean a prospectus, prospectus supplement, private placement
memorandum, offering memorandum, offering circular, term sheet, road show presentation materials or
other offering documents or marketing materials, in each case in preliminary or final form, used to
offer Securities in connection with a Securitization.
“Discount Rate” shall have the meaning set forth in Section 2.5 hereof.
“Embargoed Person” shall have the meaning set forth in Section 4.1.35 hereof.
“Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement, dated as
of the date hereof, executed by Borrower in connection with the Loan for the benefit of Lender, 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(a) hereof.
“Exchange Act Filing” shall have the meaning set forth in Section 5.1.11(f) hereof.
“Expense Deposit” shall have the meaning set forth in Section 10.23(a)(x) hereof.
“Extraordinary Expense” shall have the meaning set forth in Section 5.1.11(e) 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.
“Fitch” shall mean Fitch, Inc.
“GAAP” shall mean generally accepted accounting principles in the United States of America as
of the date of the applicable financial report.
“Governmental Authority” shall mean any court, board, agency, commission, office or other
authority of any nature whatsoever for any governmental xxxx (xxxxxxx, xxxxx, xxxxxx, xxxxxxxx,
xxxxxxxxx, xxxx or otherwise) whether now or hereafter in existence.
“Gross Income from Operations” shall mean, for any period, all income, computed in accordance
with GAAP, derived from the ownership and operation of the Property from whatever source during
such period, including, but not limited to, Rents, utility charges,
5
escalations, forfeited security deposits, interest on credit accounts, service fees or
charges, license fees, parking fees, rent concessions or credits, and other pass-through or
reimbursements paid by tenants under the Leases of any nature but excluding Rents from
month-to-month tenants or tenants that are included in any Bankruptcy Action, sales, use and
occupancy or other taxes on receipts required to be accounted for by Borrower to any Governmental
Authority, refunds and uncollectible accounts, sales of furniture, fixtures and equipment,
Insurance Proceeds and Condemnation Proceeds (other than business interruption or other loss of
income insurance), and any disbursements to the Borrower from the Reserve Funds.
“Ground Lease” shall have the meaning set forth in the Security Instrument.
“Improvements” shall have the meaning set forth in the granting clause of the Security
Instrument.
“Indemnified Liabilities” shall have the meaning set forth in Section 10.13(b) hereof.
“Indemnified Persons” shall have the meaning set forth in Section 9.2(b) hereof.
“Indemnifying Person” shall mean each of Borrower and Principal.
“Independent Director” or “Independent Manager” shall mean a natural person who is not at the
time of initial appointment, or at any time while serving as a director or manager, as applicable,
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 or Independent Manager), officer,
employee, partner, member, attorney or counsel of the Principal, 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 Principal, the Borrower or any Affiliate of either of them;
(c) a Person controlling or under common control with any such stockholder, director, officer,
partner, member, customer, supplier or other Person; or (d) a member of the immediate family of any
such stockholder, director, officer, employee, partner, member, customer, supplier or other person.
“Initial 2009 Rollover Reserve Funds” shall have the meaning set forth in Section
7.6.1 hereof.
“Insolvency Opinion” shall mean that certain non-consolidation opinion letter dated the date
hereof delivered by Xxxxxxxx Xxxxxxx LLP in connection with the Loan.
“Insurance Premiums” shall have the meaning set forth in Section 6.1(b) hereof.
“Insurance Proceeds” shall have the meaning set forth in Section 6.4(b) hereof.
“Intercompany Transfer” shall mean a transfer of direct or indirect ownership interests in a
Restricted Party among the holders thereof or to an Affiliate of the Traded Entity.
“JPM” shall mean JPMorgan Chase Bank, N.A., a banking association chartered under the laws of
the United States of America.
6
“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, and (a) 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 (b) every guarantee of the performance and observance
of the covenants, conditions and agreements to be performed and observed by the other party
thereto.
“Legal Requirements” shall mean all federal, state, county, municipal and other governmental
statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of
Governmental Authorities affecting the Property or any part thereof, or the construction, use,
alteration, occupancy 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 Borrower, 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 have the meaning set forth in the introductory paragraph hereto, together with
its successors and assigns.
“Letter of Credit” shall mean an irrevocable, unconditional, transferable, clean sight draft
letter of credit with respect to which Borrower has no reimbursement obligations, as the same may
be replaced, split, substituted, modified, amended, supplemented, assigned or otherwise restated
from time to time, (either an evergreen letter of credit or a letter of credit which does not
expire until at least thirty (30) days after the Maturity Date or such earlier date as such Letter
of Credit is no longer required pursuant to the terms of this Agreement) in favor of Lender and
entitling Lender to draw thereon based solely on a statement purportedly executed by an officer of
Lender stating that it has the right to draw thereon, and issued by a domestic Approved Bank or the
U.S. agency or branch of a foreign Approved Bank, or if there are no domestic Approved Banks or
U.S. agencies or branches of a foreign Approved Bank then issuing letters of credit, then such
letter of credit may be issued by a domestic bank, the long term unsecured debt rating of which is
the highest such rating then given by the Rating Agency or Rating Agencies, as applicable, to a
domestic commercial bank.
“Liabilities” shall have the meaning set forth in Section 9.2(b) hereof.
“Licenses” shall have the meaning set forth in Section 4.1.22 hereof.
“Lien” shall mean any mortgage, deed of trust, 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.
7
“Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement.
“Loan Documents” shall mean, collectively, this Agreement, the Note, the Security Instrument,
the Assignment of Leases, the Environmental Indemnity, the Assignment of Management Agreement, the
Cash Management Agreement and all other documents executed and/or delivered in connection with the
Loan.
“Loan-to-Value Ratio” shall mean the ratio, as of a particular date, in which the numerator is
equal to the outstanding principal balance of the Debt and any other indebtedness secured by a
pledge of direct or indirect interests in the Borrower and the denominator is equal to the
appraised value of the Property as determined pursuant to an appraisal obtained by Lender at
Borrower’s expense and issued by an appraiser selected by Lender with Borrower’s reasonable
approval.
“Lockout Date” shall have the meaning set forth in Section 2.5 hereof.
“Major Lease” means any Lease covering 12,500 or more rentable square feet of the Property
including any expansion options. Lender may, in Lender’s sole discretion, aggregate any and all
Leases to Affiliates to determine whether such Leases should be treated as a Major Lease.
“Management Agreement” shall mean 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 or, if the context requires, the Replacement Management Agreement.
“Manager” shall mean Cousins Properties Incorporated, or, if the context requires, a Qualified
Manager who is managing the Property in accordance with the terms and provisions of this Agreement.
“Maturity Date” shall mean September 1, 2017, 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.
“Mezzanine Borrower” shall have the meaning set forth in Section 10.23(a) hereof.
“Mezzanine Lender” shall have the meaning set forth in Subsection 10.23(a)(ii) hereof.
“Mezzanine Loan” shall have the meaning set forth in Section 10.23(a) hereof.
8
“Mezzanine Loan Criteria” shall have the meaning set forth in Section 10.23(a).
“Mezzanine Loan Documents” shall have the meaning set forth in Subsection 10.23(a)(i)
hereof.
“Monthly Debt Service Payment Amount” shall mean a payment of interest only on the outstanding
principal balance of the Note from the date hereof up to and including August 31, 2007, and a
payment of interest only on the first day of October, 2007 and on the first day of each calendar
month thereafter up to and including the first day of September, 2011, and thereafter, a constant
monthly payment of $855,279.24 on the first day of October, 2011 and on the first day of each
calendar month thereafter, up to and including the first day of August, 2017.
“Moody’s” shall mean Xxxxx’x Investors Service, Inc.
“Net Cash Flow” shall mean, for any period, the amount obtained by subtracting Operating
Expenses and Capital Expenditures for such period from Gross Income from Operations 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, for any period, the amount obtained by subtracting
Operating Expenses for such period from Gross Income from Operations for such period.
“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.
“Note” shall mean that certain Promissory Note of even date herewith in the principal amount
of One Hundred Thirty-Six Million and No/100 Dollars ($136,000,000.00) made by Borrower in favor of
Lender, as the same may be amended, restated, replaced, extended, renewed, supplemented, severed,
split or otherwise modified from time to time.
“OFAC” shall have the meaning set forth in Section 4.1.37 hereof.
“Officer’s Certificate” shall mean a certificate delivered to Lender from Borrower which is
signed on behalf of Borrower by an authorized senior officer of the general partner or managing
member of Borrower, as applicable.
“Open Date” shall have the meaning set forth in Section 2.4.1 hereof.
“Operating Expenses” shall mean, for any period, the total of all expenditures, computed in
accordance with GAAP, of whatever kind during such period 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,
9
payroll and related taxes, computer processing charges, tenant improvements and leasing
commissions, 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 and any other reserves required under the Loan Documents.
“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.
“Patriot Act” shall mean the USA PATRIOT Act of 2001, 107 Public Law 56 (October 26, 2001) and
in other statutes and all orders, rules and regulations of the United States government and its
various executive departments, agencies and offices related to the subject matter of the Patriot
Act, including Executive Order 13224 effective September 24, 2001.
“Payment Date” shall mean the first (1st) day of each calendar month during the
term of the Loan commencing on the first day of the second month after the month in which the
Closing Date occurs (unless the Closing Date is the first (1st) day of the month, in which case the
first Payment Date shall be the first day of the first month after the month in which the Closing
Date occurs) or, if such day is not a Business Day, the immediately following Business Day.
“Permitted Encumbrances” shall mean, collectively (a) the Liens and security interests created
by the Loan Documents, (b) the Leases, (c) all Liens, encumbrances and other matters disclosed in
the Title Insurance Policy, (d) Liens, if any, for Taxes imposed by any Governmental Authority not
yet due or delinquent, and (e) such other title and survey exceptions as Lender has approved or may
approve in writing in Lender’s sole discretion.
“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 clauses of the Security
Instrument.
“Physical Conditions Report” shall mean 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.
“PML” shall have the meaning set forth in Section 6.1 hereof.
“Policies” shall have the meaning specified in Section 6.1(b) hereof.
“Prepayment Date” shall have the meaning specified in Section 2.5 hereof.
“Prescribed Laws” shall mean, collectively, (a) the Patriot Act, (b) Executive Order No. 13224
on Terrorist Financing, effective September 24, 2001, and relating to Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
10
Support Terrorism, (c) the International Emergency Economic Power Act, 50 U.S.C. §1701 et.
seq. and (d) all other Legal Requirements relating to money laundering or terrorism.
“Prime Rate” shall mean the prime rate reported in the Money Rates section of The Wall Street
Journal. In the event that The Wall Street Journal should cease or temporarily interrupt
publication, the term “Prime Rate” shall mean the daily average prime rate published in another
business newspaper, or business section of a newspaper, of national standing and general
circulation chosen by Lender. In the event that a prime rate is no longer generally published or
is limited, regulated or administered by a governmental or quasi-governmental body, then Lender
shall select a comparable interest rate index which is readily available and verifiable to Borrower
but is beyond Lender’s control.
“Principal” shall mean the Special Purpose Entity corporation or Single Member LLC which is
the (a) managing member of the Borrower in the event that the Borrower is a limited liability
company (other than a Single Member LLC), or (b) a general partner of the Borrower in the event
that the Borrower is a limited partnership.
“Prohibited Person” shall mean any Person:
(a) a “blocked” person listed in the Annex, or otherwise subject to the provisions of, the
Executive Order Nos. 12947, 13099 and 13224 on Terrorist Financing, effective September 24, 2001,
and all modifications thereto or thereof, and relating to Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (the “Annex”);
(b) that is owned or controlled by, or acting for or on behalf of, any Person that is listed
to the Annex, or is otherwise subject to the provisions of, the Annex;
(c) with whom Lender is prohibited from dealing or otherwise engaging in any transaction by
any terrorism or money laundering law, including the Annex;
(d) who commits, threatens or conspires to commit or supports “terrorism” as defined in the
Annex;
(e) that is named as a “specially designated national and blocked person” on the most current
list published by the U.S. Treasury Department Office of Foreign Assets Control at its official
website, xxxx://xxx.xxxxx.xxx.xxxx/x00xxx.xxx or at any replacement website or other replacement
official publication of such list or any other list of terrorists or terrorist organizations
maintained pursuant to any of the rules and regulations of the OFAC issued pursuant to the Patriot
Act or on any other list of terrorists or terrorist organizations maintained pursuant to the
Patriot Act; or
(f) who is an Affiliate of or Affiliated with a Person listed above.
“Property” shall mean the parcel of real property, the Improvements thereon and all personal
property owned by Borrower and encumbered by the Security Instrument, together with all rights
pertaining to such property and Improvements, as more particularly described in the granting
clauses of the Security Instrument and referred to therein as the “Property”.
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“Provided Information” shall mean any and all financial and other information provided at any
time by, or on behalf of, any Indemnifying Person with respect to the Property, Borrower, Principal
and/or Manager (but specifically excluding any independent, unrelated third-party reports).
“Qualified Manager” shall mean either (a) Manager, (b) Cousins Real Estate Corporation or
Cousins Properties Services LP, so long as such entity is Controlled by the Traded Entity or (c) in
the reasonable judgment of Lender, a reputable and experienced management organization (which may
be an Affiliate of Borrower) possessing experience in managing properties similar in size, scope,
use and value as the Property, provided, that Borrower shall have obtained prior written
confirmation from the applicable Rating Agencies that management of the Property by such Person
will not cause a downgrade, withdrawal or qualification of the then current ratings of the
Securities or any class thereof.
“Rating Agencies” shall mean each of S&P, Xxxxx’x and Fitch, or any other nationally
recognized statistical rating agency which has been approved by Lender.
“Regulation AB” shall mean Regulation AB under the Securities Act and the Exchange Act, as
such Regulation may be amended from time to time.
“Related Loan” shall mean a loan made to an Affiliate of Borrower or secured by a Related
Property, that is included in a Securitization with the Loan.
“Related Parties” shall have the meaning set forth in the definition of Special Purpose
Entity.
“Related Party” shall have the meaning set forth in the definition of Special Purpose Entity.
“Related Property” shall mean a parcel of real property, together with improvements thereon
and personal property related thereto, that is “related”, within the meaning of the definition of
Significant Obligor, to the Property.
“REMIC” shall mean a “real estate mortgage investment conduit” within the meaning of Section
860D of the Code.
“REMIC Trust” shall mean a REMIC that holds the Note.
“Rents” shall mean all rents (including, without limitation, percentage 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 Borrower’s agents or employees on its behalf) 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.
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“Replacement Management Agreement” shall mean, collectively, (a) either (i) a management
agreement with a Qualified Manager substantially in the same form and substance as the Management
Agreement, or (ii) a management agreement with a Qualified Manager, which management agreement
shall be reasonably acceptable to Lender in form and substance, provided, with respect to
this subclause (ii), Lender, at its option, may require that Borrower obtain confirmation from the
applicable Rating Agencies that such management agreement will not cause a downgrade, withdrawal or
qualification of the then current rating of the Securities or any class thereof; and (b) an
assignment of management agreement and subordination of management fees substantially in the form
then used by Lender (or of such other form and substance reasonably acceptable to Lender), executed
and delivered to Lender by Borrower and such Qualified Manager at Borrower’s expense.
“Replacement Reserve Fund” shall have the meaning set forth in Section 7.3.1 hereof.
“Replacements” shall have the meaning set forth in Section 7.3.1 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, collectively, the Tax and Insurance Escrow Fund, the Replacement
Reserve Fund, the Rollover Reserve Fund, the Required Repair Fund, the 2009 Rollover Reserve Fund
and any other reserve or escrow fund established pursuant to the Loan Documents.
“Restoration” shall mean the repair and restoration of the Property after a Casualty or
Condemnation as nearly as possible to the condition the Property was in immediately prior to such
Casualty or Condemnation, with such alterations as may be reasonably approved by Lender.
“Restricted Party” shall mean, collectively (a) Borrower, any Principal, and any Affiliated
Manager and (b) any shareholder, partner, member, non-member manager, direct or indirect legal or
beneficial owner of Borrower, any Principal, any Affiliated Manager or any non-member manager.
Notwithstanding the foregoing, “Restricted Party” shall not include the shareholders of Cousins
Properties Incorporated.
“Rollover Reserve Fund” shall have the meaning set forth in Section 7.4.1 hereof.
“S&P” shall mean Standard & Poor’s Ratings Group, a division of the XxXxxx-Xxxx Companies.
“Sale or Pledge” shall mean a voluntary or involuntary sale, conveyance, assignment, transfer,
encumbrance or pledge of a legal or beneficial interest, whether direct or indirect.
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“Securities” shall have the meaning set forth in Section 9.1 hereof.
“Securities Act” shall have the meaning set forth in Section 9.2(a) hereof.
“Securitization” shall have the meaning set forth in Section 9.1 hereof.
“Security Instrument” shall mean that certain first priority Deed to Secure Debt and Security
Agreement, dated the date hereof, executed and delivered by Borrower as security for the Loan and
encumbering the Property, as the same may be amended, restated, replaced, supplemented or otherwise
modified from time to time.
“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(b) hereof.
“Significant Obligor” shall have the meaning set forth in Item 1101(k) of Regulation AB under
the Securities Act.
“Single Member LLC” shall have the meaning set forth in clause (h) of the definition of
“Special Purpose Entity.”
“Special Purpose Entity” shall mean a corporation, limited partnership or limited liability
company which at all times since the date of its formation and at all times from and after the date
hereof:
(a) has a business purpose that consists solely of (i) in the case of the Borrower, acquiring,
developing, owning, holding, selling, leasing, transferring, exchanging, managing and operating the
Property, entering into or assuming indebtedness secured by the Property and in connection
therewith, entering into the Security Instrument and the other Loan Documents, refinancing the
Property in connection with any permitted repayment of the Loan, and transacting lawful business
that is incident, necessary and appropriate to accomplish the foregoing; or (ii) in the case of the
Principal, acting as a general partner of the limited partnership that owns the Property or member
of the limited liability company that owns the Property, and engaging in such other lawful
activities as are incidental to the foregoing, including the management of the Property;
(b) has not and shall not incur any debt, secured or unsecured, direct or contingent
(including guaranteeing any obligation), other than (i) obligations secured by the Security
Instrument, and (ii) unsecured trade and operational debt (not including real estate taxes, tenant
allowances and security deposit refunds) incurred with trade creditors in the ordinary course of
its business of owning and operating the Property in such amounts as are normal and reasonable
under the circumstances, provided that such debt is not evidenced by a note and is due no more than
sixty (60) days past the date incurred and provided in any event the outstanding principal balance
of such debt shall not exceed at any one time three percent (3%) of the outstanding obligations
secured by the Security Instrument;
14
(c) has not and shall not seek the dissolution or winding up, in whole or in part, of itself
or the Borrower;
(d) has not and shall not merge into or consolidate with any Person or dissolve, terminate or
liquidate, in whole or in part, transfer or otherwise dispose of all or substantially all of its
assets or change its legal structure;
(e) has not and shall not file a voluntary petition or otherwise initiate proceedings to have
itself or the Borrower adjudicated bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against itself or the Borrower or file a petition seeking or
consenting to reorganization or relief of itself or the Borrower as debtor under any applicable
federal or state law relating to bankruptcy, insolvency, or other relief for debtors with respect
to itself or the Borrower; or seek or consent to the appointment of any trustee, receiver,
conservator, assignee, sequestrator, custodian, liquidator (or other similar official) of itself or
the Borrower or of all or any substantial part of the properties and assets of itself or the
Borrower, or make any general assignment for the benefit of creditors of itself or the Borrower, or
admit in writing the inability of itself or the Borrower to pay its debts generally as they become
due or declare or effect a moratorium on its or the Borrower’s debt or take any action in
furtherance of any such action;
(f) does not have any property not owned by such Special Purpose Entity as an entity and,
insofar as permitted by applicable law, no member shall have any ownership interest in any property
of such Special Purpose Entity in its individual name or right, and each member’s interest in such
Special Purpose Entity shall be personal property for all purposes;
(g) has not and shall not acquire or own any material asset other than (i) in the case of the
Borrower, the Property and such incidental personal property as may be necessary for the operation
of the Property or (ii) in the case of the Principal, its ownership interest in the Borrower;
(h) has not and shall not fail to preserve its existence as an entity duly organized and
validly existing under the laws of the jurisdiction of its organization or formation;
(i) has not and shall not amend, modify, terminate or fail to comply with the provisions of
its organizational documents relating to special purpose entity requirements without the prior
written consent of the Lender, or fail to observe in all material respects all other terms and
provisions contained in its organizational documents;
(j) has not and shall not own any subsidiary or make any investment in or acquire the
obligations or securities of any other Person without the consent of the Lender;
(k) has not and shall not commingle its assets with the assets of any of its principal(s),
affiliates, or of any other Person or transfer any assets to any such Person other than
distributions on account of equity interests in such Special Purpose Entity permitted by the
Security Instrument, this Agreement or any other Loan Document;
(l) has not and shall not pay its debts and liabilities except solely from its own assets;
15
(m) except if such Special Purpose Entity is a “qualified REIT subsidiary” within the meaning
of Section 856(i)(2) of the Code, has not and shall not fail to maintain its records, books of
account and bank accounts separate and apart from those of the members, principals and affiliates
of such Special Purpose Entity, the affiliates of any member of such Special Purpose Entity and any
other Person, or fail to prepare and maintain its own financial statements in accordance with GAAP
and susceptible to audit, or if such financial statements are consolidated fail to cause such
consolidated financial statements to disclose that the Property is actually owned by a special
purpose entity whose assets are available first and foremost to satisfy creditors of the special
purpose entity;
(n) has not and shall not enter into any contract or agreement with any partner, member,
principal or affiliate of such Special Purpose Entity or any guarantor of all or a portion of the
obligations secured by the Security Instrument or any member, principal or affiliate thereof,
except upon terms and conditions that are intrinsically fair and substantially similar to those
that would be available on an arms-length basis with third parties other than any member, principal
or affiliate of such Special Purpose Entity, as the case may be, any guarantor, or any partner,
member, principal or affiliate thereof;
(o) has not and shall not fail to correct any known misunderstanding regarding the separate
identity of such Special Purpose Entity;
(p) has not and shall not hold itself out to be responsible or pledge its assets or
creditworthiness for the debts of another Person or allow any Person to hold itself out to be
responsible or pledge its assets or creditworthiness for the debts of such Special Purpose Entity
(except for any guarantor or indemnitor of the obligations under this Agreement or any other Loan
Document);
(q) has not and shall not make any loans or advances to any third party, including any
partner, member, principal or affiliate of such Special Purpose Entity, or any partner, member,
principal or affiliate thereof;
(r) has not and shall not fail to file its own tax returns, except to the extent that it is
permitted to file consolidated tax returns by law, or to use separate contracts, purchase orders,
stationery, invoices and checks;
(s) has not and shall not fail either to hold itself out to the public as a legal entity
separate and distinct from any other Person or to conduct its business solely in its own name
(except for services rendered under a business management services agreement that complies with the
requirements of the Security Instrument and this Agreement) in order not (i) to mislead others as
to the identity with which such other party is transacting business, or (ii) to suggest that such
Special Purpose Entity is responsible for the debts of any third party (including any partner,
member, principal or affiliate of such Special Purpose Entity or any partner, member, principal or
affiliate thereof);
(t) has not and shall not fail to allocate fairly and reasonably among such Special Purpose
Entity and any third party (including, without limitation, any guarantor or indemnitor of the
obligations under any loan document related to the Security Instrument and
16
this Agreement) any overhead for employees, shared office space or other overhead and
administrative expenses;
(u) has not and shall not allow any other Person to pay the salaries of such Special Purpose
Entity’s own employees or fail to maintain a sufficient number of employees for its contemplated
business operations if any employees are determined to be necessary;
(v) has not and shall not fail to maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and in light of its contemplated
business operations to the extent there is sufficient cash flow from the Property to do so;
(w) except for tax purposes, has not and shall not hold itself out as a department or division
of (i) any principal, member or affiliate of such Special Purpose Entity, (ii) any affiliate of a
principal, member or affiliate of such Special Purpose Entity, or (iii) any other person or entity
or allow any Person to identify such Special Purpose Entity as a department or division of that
Person; or
(x) has not and shall not conceal assets from any creditor, or enter into any transaction with
the intent to hinder, delay or defraud creditors of such Special Purpose Entity or the creditors of
any other Person.
(y) has not and shall not allow the bankruptcy, death, dissolution, liquidation, termination
or adjudication of incompetency of a member or partner to cause the termination or dissolution of
such Special Purpose Entity and the business of such Special Purpose Entity shall continue. Upon
any such occurrence, the trustee, receiver, executor, administrator, committee, guardian or
conservator of such member or partner shall have all the rights of such member or partner for the
purpose of settling or managing its estate or property, subject to satisfying conditions precedent
to the admission of such assignee as a substitute member. The transfer by such trustee, receiver,
executor, administrator, committee, guardian or conservator of such Special Purpose Entity interest
shall be subject to all of the restrictions hereunder to which such transfer would have been
subject if such transfer had been made by such bankrupt, deceased, dissolved, liquidated,
terminated or incompetent member.
(z) 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;
(aa) if such entity is a corporation, has at least two (2) Independent Directors, and has not
caused or allowed and will not cause or allow the board of directors of such entity to take any
action requiring the unanimous affirmative vote of one hundred percent (100%) of the members of its
board of directors unless the Independent Directors shall have participated in such vote;
(bb) if such entity is a limited liability company other than a Single Member LLC, has at
least one member that is a Special Purpose Entity that is a corporation that has at least two
Independent Directors and that owns at least one-half of one percent (.5%) of the equity of the
limited liability company;
17
(cc) if such entity is a limited liability company that does not have at least one member that
is a Special Purpose Entity (a “Single Member LLC”), such entity (i) is organized in the State of
Delaware, (ii) has at least two Independent Managers and has not caused or allowed and will not
cause or allow the board of managers of such entity to take any action requiring the unanimous
affirmative vote of one hundred percent (100%) of the managers unless the Independent Managers
shall have participated in such vote and (iii) at least one springing member that will become the
non-managing member of such entity immediately upon the withdrawal or dissolution of the last
remaining member;
(dd) if such entity is (i) a limited liability company, has articles of organization, a
certificate of formation and/or an operating agreement, as applicable, that require the consent of
all its members including its Managing Member (ii) a limited partnership, has a limited partnership
agreement that requires the consent of its general partner, or (iii) a corporation, has a
certificate of incorporation or articles that require the consent of all its directors, including
its Independent Directors, in each case, to: (A) dissolve, merge, liquidate, consolidate; (B) sell
all or substantially all of its assets or the assets of the Borrower (as applicable); (C) 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 (D) 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; and
(ee) has observed and will observe in all material respects, all partnership, corporate or
limited liability company formalities, as applicable.
“State” shall mean the State or Commonwealth in which the Property or any part thereof is
located.
“Survey” shall mean a survey of the Property prepared pursuant to the requirements contained
in Section 4.1.27 hereof.
“Tax and Insurance Escrow Fund” shall have the meaning set forth in Section 7.2
hereof.
“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 part thereof.
“Threshold Amount” shall have the meaning set forth in Section 5.1.21 hereof.
“Title Insurance Policy” shall mean an ALTA mortgagee title insurance policy in a form
acceptable to Lender (or, if the Property is located 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 Security Instrument.
“Traded Entity” shall have the meaning set forth in Section 5.2.10(d) hereof.
“Transfer” shall have the meaning set forth in Section 5.2.10(b) hereof.
18
“Treasury Rate” shall have the meaning set forth in Section 2.5 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 non-redeemable securities evidencing an obligation to timely pay
principal and/or interest in a full and timely manner that are direct obligations of the United
States of America for the payment of which its full faith and credit is pledged.
“Yield Maintenance Premium” shall have the meaning set forth in Section 2.5 hereof.
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.
II. GENERAL TERMS
Section 2.1 Loan Commitment; Disbursement to Borrower.
2.1.1 Agreement to Lend and Borrow. 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 Single 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, Security Instrument and Loan Documents. The Loan shall be evidenced
by the Note and secured by the Security Instrument, 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) acquire the
Property and/or repay and discharge any existing loans relating to the Property, (b) pay all
past-due Basic Carrying Costs, if any, with respect to 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, for
Borrower’s use and distribution.
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Section 2.2 Interest Rate.
2.2.1 Interest Rate. Interest on the outstanding principal balance of the Loan shall
accrue from the Closing Date to but excluding the Maturity Date at the Applicable Interest Rate,
unless the Default Rate shall then be in effect.
2.2.2 Interest Calculation. Interest on the outstanding principal balance of the Loan
shall be calculated by multiplying (a) the actual number of days elapsed in the period for which
the calculation is being made by (b) a daily rate based on a three hundred sixty (360) day year by
(c) the outstanding principal balance.
2.2.3 Default Rate. In the event that, and for so long as, any Event of Default shall
have occurred and be continuing, the outstanding principal balance of the Loan and, to the extent
permitted by law, all accrued and unpaid interest in respect of the Loan and any other amounts due
pursuant to the Loan Documents, shall accrue interest at the Default Rate, calculated from the date
such payment was due without regard to any grace or cure periods contained herein.
2.2.4 Usury Savings. This Agreement, the Note and the other Loan Documents 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
Applicable Interest Rate or the Default Rate, as the case may be, shall be deemed to be immediately
reduced to the Maximum Legal Rate and all previous payments in excess of the Maximum Legal Rate
shall be deemed to have been payments in reduction of principal and not on account of the interest
due hereunder. All sums paid or agreed to be paid to Lender for the use, forbearance, or detention
of the sums due under the Loan, shall, to the extent permitted by applicable law, be 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 Loan Payment.
2.3.1 Debt Service Payments. 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 Closing
Date through and including the last day of the month in which the Closing Date occurs (unless the
Closing Date is the first (1st) day of the month, in which case no such interest only
payment shall be due), and (b) on each Payment Date thereafter up to and excluding the Maturity
Date, Borrower shall make a payment to Lender in an amount equal to the Monthly Debt Service
Payment Amount, which payments shall be applied first to accrued and unpaid interest and the
balance, if any, to principal.
2.3.2 Payments Generally. The first interest accrual period hereunder shall commence
on and include the Closing Date and end on the last day of the month in which the
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Closing Date occurs. Each interest accrual period thereafter shall commence on the first
(1st) day of each calendar month during the term of the Loan and shall end on and include the last
day of such calendar month. For purposes of making payments hereunder, but not for purposes of
calculating interest accrual periods, if the day on which such payment is due is not a Business
Day, then amounts due on such date shall be due on the immediately following Business Day and with
respect to payments of principal due on the Maturity Date, interest shall be payable at the
Applicable Interest Rate or the Default Rate, as the case may be, through and including the day
immediately preceding such Maturity Date. All amounts due pursuant to this Agreement and the other
Loan Documents shall be payable without setoff, counterclaim, defense or any other deduction
whatsoever.
2.3.3 Payment on Maturity Date. Borrower shall pay to Lender on the Maturity Date the
outstanding principal balance of the Loan, all accrued and unpaid interest and all other amounts
due hereunder and under the Note, the Security Instrument and the other Loan Documents.
2.3.4 Late Payment Charge. If any principal, interest or any other sums due under the
Loan Documents is not received by Lender within five (5) days after the date on which it is due,
Borrower shall pay to Lender upon demand an amount equal to the lesser of five percent (5%) of such
unpaid sum or the maximum amount permitted by applicable law in order to defray the expense
incurred by Lender in handling and processing such delinquent payment and to compensate Lender for
the loss of the use of such delinquent payment. Any such amount shall be secured by the Security
Instrument and the other Loan Documents to the extent permitted by applicable law.
2.3.5 Method and Place of Payment. Except as otherwise specifically provided herein,
all payments and prepayments under this Agreement and the Note shall be made to Lender not later
than 1:00 P.M., New York City time, on the date when due and shall be made in lawful money of the
United States of America in immediately available funds at Lender’s office or as otherwise directed
by Lender, and any funds received by Lender after such time shall, for all purposes hereof, be
deemed to have been paid on the next succeeding Business Day.
Section 2.4 Prepayments.
2.4.1 Voluntary Prepayments. Except as otherwise provided herein, Borrower shall not
have the right to prepay the Loan in whole or in part prior to the Maturity Date. On the Payment
Date three (3) months prior to the Maturity Date (the “Open Date”), or on any Business Day
thereafter, Borrower may, at its option and upon thirty (30) days prior notice to Lender, prepay
the Debt in whole, but not in part, without payment of the Yield Maintenance Premium, provided that
if any such prepayment is not made on a Payment Date such prepayment shall include all interest
which would have accrued on the Loan through the Payment Date next following the date of such
prepayment.
2.4.2 Mandatory Prepayments. On the next occurring Payment Date following the date on
which Lender actually receives any Net Proceeds, if Lender is not obligated to make such Net
Proceeds available to Borrower for the Restoration of the Property, Borrower shall prepay, or
authorize Lender to apply Net Proceeds as a prepayment of, the
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outstanding principal balance of the Note in an amount equal to one hundred percent (100%) of
such Net Proceeds. Other than following an Event of Default, no Yield Maintenance Premium shall be
due in connection with any prepayment made pursuant to this Section 2.4.2. Any partial
prepayment under this Section 2.4.2 shall be applied to the last payments of principal due
under the Loan.
2.4.3 Prepayments After Default. If following an Event of Default, prepayment of all
or any part of the Debt is tendered by Borrower or otherwise recovered by Lender (including through
application of any Reserve Funds), such tender or recovery shall be (a) made on the next occurring
Payment Date together with the Monthly Debt Service Payment Amount and (b) deemed a voluntary
prepayment by Borrower in violation of the prohibition against prepayment set forth in Section
2.4.1 and Borrower shall pay, in addition to the Debt, (x) if such payment is prior to or on
the Lockout Date, an amount equal to the greater of (i) two percent (2%) of the outstanding
principal balance of the Loan to be prepaid or satisfied, and (ii) the Yield Maintenance Premium
that would be required if Borrower had chosen to prepay the Loan pursuant to Section 2.5
below, or (y) if such payment is after the Lockout Date, the Yield Maintenance Premium that would
be required if Borrower had chosen to prepay the Loan pursuant to Section 2.5 below.
Section 2.5 Yield Maintenance
The principal balance of the Note may not be prepaid in whole or in part (except with respect
to the application of casualty or condemnation proceeds or as set forth in Section 5.3 of the
Security Instrument) prior to September 30, 2011 (the “Lockout Date”). On the scheduled Payment
Date in October, 2011 or at any time thereafter, provided no Event of Default exists, the principal
balance of the Note may be prepaid, in whole (or in part, provided that if the Loan is prepaid in
part, such prepayment shall be in an amount not less than $5,000,000.00, shall occur no more than
two (2) times during the term of the Loan and shall comply in all respects with REMIC laws) (except
with respect to the application of casualty or condemnation proceeds or as set forth in Section
5.3 of the Security Instrument), on any scheduled payment date under this Note upon not less
than thirty (30) days prior written notice to Lender (which notice may be revoked by Borrower, not
more than twice during the term hereof, not later than fifteen (15) days prior to the date
specified for prepayment in such notice so long as Borrower reimburses Lender for any actual costs
and expenses incurred prior to such revocation as a result of such notice [but excluding any
breakage costs]) specifying the scheduled payment date on which prepayment is to be made (the
"Prepayment Date”) and upon payment of (i) interest accrued and unpaid on the principal balance of
the Note to and including the Prepayment Date, (ii) all other sums then due under the Note and the
other Loan Documents, and (iii) a prepayment consideration in an amount equal to the greater of (A)
one percent (1%) of the principal amount of the Note to be prepaid, or (B) (x) the present value as
of the Prepayment Date of the remaining scheduled payments of principal and interest on the
principal amount of the Note to be prepaid from the Prepayment Date through the Open Date
(including any balloon payment) determined by discounting such payments at the Discount Rate (as
hereinafter defined), less (y) the amount of principal being prepaid (the “Yield Maintenance
Premium”). The term “Discount Rate” means the rate which, when compounded monthly, is equivalent
to the Treasury Rate (as hereinafter defined), when compounded semi-annually. The term “Treasury
Rate” means the yield calculated by the linear interpolation of the yields, as reported in Federal
Reserve Statistical Release H.15-Selected
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Interest Rates under the heading “U.S. Government Securities/Treasury Constant Maturities” for
the week ending prior to the Prepayment Date, of U.S. Treasury constant maturities with maturity
dates (one longer and one shorter) most nearly approximating the Open Date. (In the event Release
H.15 is no longer published, Lender shall select a comparable publication to determine the Treasury
Rate.) Lender shall notify Borrower of the amount and the basis of determination of the required
prepayment consideration. If any such notice of prepayment is given, the principal balance of the
Note or the applicable portion thereof and the other sums required under this paragraph shall be
due and payable on the Prepayment Date unless Borrower’s notice is revoked as set forth herein.
Lender shall not be obligated to accept any prepayment of the principal balance of the Note unless
it is accompanied by the prepayment consideration due in connection therewith.
2.5.1 [Intentionally Omitted].
Section 2.6 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 due 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 Agreement (other than reimbursement, indemnity or similar obligations that
survive the repayment of the Loan for which no claim has been made), release the Lien of the
Security Instrument.
Section 2.7 Cash Management. Rents shall be deposited and applied pursuant to the
Cash Management Agreement.
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 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.
(a) Security Instrument, Assignment of Leases. Lender shall have received from
Borrower fully executed and acknowledged counterparts of the Security Instrument and the Assignment
of Leases and evidence that counterparts of the Security Instrument 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
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Property, of the requisite priority, in favor of Lender (or such other trustee as may be
required or desired 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 other Loan Documents.
(b) Title Insurance. Lender shall have received Title Insurance Policy issued by a
title company acceptable to Lender and dated as of the Closing Date, with reinsurance and direct
access agreements acceptable to Lender. Such Title Insurance Policy shall (i) provide coverage in
amounts satisfactory to Lender, (ii) insure Lender that the Security Instrument 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 as the insured. The
Title Insurance Policy shall be assignable to subsequent holders of the Loan. Lender also shall
have received evidence that all premiums in respect of the Title Insurance Policy have been paid.
(c) Survey. Lender shall have received a current 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 Accuracy Standards for ALTA/ACSM Land Title Surveys as adopted by ALTA and
the National Society of Professional Surveyors in 2005. Each such Survey shall reflect the same
legal description contained in the Title Insurance Policy and shall include, among other things, a
metes and bounds description of the real property comprising part of the 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 required hereunder, satisfactory to Lender in its sole discretion, and evidence of the
payment of all Insurance Premiums payable for the existing policy period.
(e) Environmental Reports. Lender shall have received a Phase I environmental report
(and, if recommended by the Phase I environmental report, a Phase II environmental report) in
respect of the Property, in each case satisfactory in form and substance to Lender.
(f) Zoning. Lender shall have received an ALTA 3.1 zoning endorsement for the Title
Insurance Policy.
(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 priority Lien as of the Closing Date
with respect to the Security Instrument on the Property, subject only to applicable Permitted
Encumbrances and such other Liens as are permitted pursuant to the Loan Documents, and Lender shall
have received satisfactory evidence thereof.
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3.1.4 Related Documents. Each additional document not specifically referenced herein,
but relating to the transactions contemplated herein, shall be in form and substance reasonably
satisfactory to Lender, and 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. 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 from
Borrower’s counsel with respect to non-consolidation and the due execution, authority,
enforceability of the Loan Documents and such other matters as Lender may require, all such
opinions in form, scope and substance reasonably satisfactory to Lender and Lender’s counsel in
their sole discretion.
3.1.7 Budgets. 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, (b) currently due Taxes (including any in arrears) and (c) currently due Other
Charges, which amounts shall be funded with proceeds of the Loan.
3.1.9 Completion of Proceedings. All organizational and other 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 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. Lender shall have received an executed tenant estoppel
letter, which shall be in form and substance reasonably satisfactory to Lender, from (i) tenants
[including those described in (a) and (b) below] paying base rent in an aggregate amount equal to
or exceeding eighty-five percent (85%) of the Gross Income from Operations from the Property, and
(ii) (a) each tenant identified by Lender as an “anchor tenant” of the Property, and (b) each
tenant paying base rent in an amount equal to or exceeding five percent (5%) of the Gross Income
from Operations from the Property occupied by such tenant.
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
25
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 or the Property since the date of the
most recent financial statements delivered to Lender. The income and expenses of the Property, the
occupancy 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 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 Leases and
certified copies of any Leases as requested by Lender. 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. [Intentionally Omitted.]
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 Condition Reports. Lender shall have received Physical Condition
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 copy of the Management
Agreement 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 statements of income with
respect to the Property for the three most recent Fiscal Years, each in form and substance
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.
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 in the jurisdiction in which it is organized with requisite power and authority to
own its properties 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
26
required to be so qualified in connection with its properties, businesses and operations.
Borrower possesses all rights, licenses, permits and authorizations, governmental or otherwise,
necessary to entitle it to own its properties 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. The ownership interests of Borrower are as set forth on the organizational chart
attached hereto as Schedule III.
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 property or
assets of Borrower pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement,
partnership agreement, management 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 Governmental
Authority 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 such
Governmental Authority 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. 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, Principal, or the Property, which actions, suits or proceedings, if determined against
Borrower, Principal, or the Property, might materially adversely affect the condition (financial or
otherwise) or business of Borrower, Principal, or the condition or ownership of the Property.
4.1.5 Agreements. Except for the Permitted Encumbrances, 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. 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 is
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 as permitted pursuant to clause (t) of the
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definition of “Special Purpose Entity” set forth in Section 1.1 hereof and (b)
obligations under the Loan Documents.
4.1.6 Title. Borrower has good, marketable and insurable fee simple title to the real
property comprising part of the Property (except for the portion of the real property that is
subject to the Ground Lease, in which Borrower has good, marketable and insurable leasehold title)
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 Permitted Encumbrances in the aggregate do not materially
and adversely affect the value, operation or use of the Property (as currently used) or Borrower’s
ability to repay the Loan. The Security Instrument, 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 first priority 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 assignments 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 or may become a Lien prior to, or of equal priority
with, the Liens created by the Loan Documents.
4.1.7 Solvency. Borrower has (a) 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. 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). No petition in bankruptcy has been filed against
Borrower or any constituent Person, and neither Borrower nor any constituent Person 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 properties, 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. 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
28
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 any state statute
regulating investments of, or 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. Borrower and the Property (including the use thereof) comply in
all material respects with all applicable Legal Requirements, including, without limitation,
building and zoning ordinances and codes and Prescribed Laws. Borrower is not in default or
violation of any order, writ, injunction, decree or demand of any Governmental Authority. There
has not been 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 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
connection with the Loan (i) are true, complete and correct in all material respects, (ii)
accurately represent the financial condition of the Borrower and the Property, as applicable, 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 GAAP throughout the periods covered,
except as disclosed therein. Except for Permitted Encumbrances, 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
an office building, except as referred to or reflected in said financial statements. Since the
date of such financial statements, there has been no material adverse change in the financial
condition, operation or business of Borrower from that set forth in said financial statements.
4.1.12 Condemnation. No Condemnation or other similar proceeding has been commenced
or, to Borrower’s best knowledge, is threatened or 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
29
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 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 Policy. All roads necessary for the use of the Property for its current purpose
have been completed and dedicated to public use and have been accepted by all Governmental
Authorities.
4.1.15 Not a Foreign Person. Borrower is not a “foreign person” within the meaning of
§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. Except for assessments for the Downtown Improvement District,
there are no pending or known 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 (subject to principles of equity and bankruptcy, insolvency
and other laws generally affecting creditors’ rights and the enforcement of debtors’ obligations),
and Borrower and Principal have not asserted any right of rescission, set-off, counterclaim or
defense with respect thereto.
4.1.19 No Prior Assignment. There are no prior assignments of the Leases or any
portion of the Rents due and payable or to become due and payable which are presently outstanding.
4.1.20 Insurance. Borrower has obtained and has delivered to Lender certified copies
of all Policies reflecting the insurance coverages, amounts and other requirements set forth in
this Agreement. No claims have been made under any such Policies, and no Person, including
Borrower, has done, by act or omission, anything which would impair the coverage of any such
Policies.
4.1.21 Use of Property. The Property is used exclusively as an office building and
other appurtenant and related uses.
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4.1.22 Certificate of Occupancy; Licenses. All certifications, permits, licenses and
approvals, including without limitation, certificates of completion and occupancy permits required
for the legal use, occupancy and operation of the Property as an office building (collectively, the
“Licenses”), have been obtained and are in full force and effect. Borrower shall keep and maintain
all Licenses necessary for the operation of the Property as an office building. The use being made
of the Property is in conformity with the certificate of occupancy issued for the Property.
4.1.23 Flood Zone. 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 or,
if so located, the flood insurance required pursuant to Section 6.1(a)(i) is in full force
and effect with respect to the Property.
4.1.24 Physical Condition. Except as may be set forth in the Physical Conditions
Report, 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. 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 the
Title Insurance Policy.
4.1.26 Leases. The Property is not subject to any Leases other than the Leases
described in Schedule I attached hereto and made a part hereof. Borrower is the owner and
lessor of landlord’s interest in the Leases. 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 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. No Rent has been paid more than one (1) month in advance of its due date.
All work to be performed by Borrower under each Lease has been performed as required and has been
accepted by the applicable tenant, any payments, free rent, partial rent, rebate of rent or other
payments, credits, allowances, concessions or abatements required to be given by Borrower to any
tenant have already been received by such tenant and all leasing commissions and tenant improvement
obligations under the Leases have been fully satisfied. There has been no prior sale, transfer or
assignment, hypothecation or pledge of any Lease or of the Rents received therein which is still in
effect. Except as may be disclosed on Schedule I hereto, no tenant listed on Schedule I
has assigned its Lease or sublet all or any portion of the
31
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. Except
as disclosed on Schedule I, no tenant allowances are owed to any tenant and no security
deposit is subject to return to any tenant. 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. No tenant under any Lease has any right or
option for additional space in the Improvements. The representations contained in this Section
4.1.26 shall not apply to any sublease, sub-sublease or similar agreement.
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 Principal Place of Business; State of Organization. Borrower’s principal place
of business as of the date hereof is the address set forth in the introductory paragraph of this
Agreement. The Borrower is organized under the laws of the State of Georgia.
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. 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 Security Instrument, have been paid, and, under
current Legal Requirements, the Security Instrument is enforceable in accordance with its terms by
Lender (or any subsequent holder thereof), subject to principles of equity and bankruptcy,
insolvency and other laws generally applicable to creditors’ rights and the enforcement of debtors’
obligations.
4.1.30 Special Purpose Entity/Separateness.
(a) Until the Debt has been paid in full, Borrower hereby represents, warrants and covenants
that (i) Borrower is, shall be and shall continue to be a Special Purpose Entity, and (ii) any
Principal is, shall be and shall continue to 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) All of the assumptions made in the Insolvency Opinion, including, but not limited to, any
exhibits attached thereto, are true and correct in all material respects and any assumptions made
in any subsequent non-consolidation opinion required to be delivered in connection with the Loan
Documents (an “Additional Insolvency Opinion”), including, but not limited to, any exhibits
attached thereto, will have been and shall be true and correct in all material respects. Borrower
has complied and will comply with, and Principal has complied and Borrower will cause Principal to
comply with, all of the assumptions made with respect to Borrower and Principal in the Insolvency
Opinion. Borrower will have complied and will
32
comply with all of the assumptions made with respect to Borrower and Principal in any
Additional Insolvency Opinion. Each entity other than Borrower and Principal with respect to which
an assumption shall be made in any Additional Insolvency Opinion will have complied and will comply
with all of the assumptions made with respect to it in any Additional Insolvency Opinion.
4.1.31 Management Agreement. The Management Agreement is in full force and effect and
there is no default thereunder by any party thereto and no event has occurred that, with the
passage of time and/or the giving of notice would constitute a default thereunder.
4.1.32 Illegal Activity. No portion of the Property has been or will be purchased by
Borrower with proceeds of any illegal activity.
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. 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 use, operation or value of 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 Provided
Information or representation or warranty made herein to be materially misleading.
4.1.34 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.
4.1.35 Embargoed Person. At all times throughout the term of the Loan, including
after giving effect to any Transfers permitted pursuant to the Loan Documents, (a) none of the
funds or other assets of Borrower and Principal constitute property of, or are beneficially owned,
directly or indirectly, by any person, entity or government subject to trade restrictions under
U.S. law, including, but not limited to, the International Emergency Economic Powers Act, 50 U.S.C.
§§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et
seq., and any Executive Orders or regulations promulgated thereunder with the result that
the investment in Borrower or Principal, as applicable (whether directly or indirectly), is
prohibited by law or the Loan made by the Lender is in violation of law (“Embargoed Person”); (b)
no Embargoed Person has any interest of any nature whatsoever in Borrower, or Principal, as
applicable, with the result that the investment in Borrower or Principal, as applicable (whether
directly or indirectly), is prohibited by law or the Loan is in violation of law; and (c) none of
the funds of Borrower, or Principal, as applicable, have been derived from any unlawful activity
33
with the result that the investment in Borrower or Principal, as applicable (whether directly
or indirectly), is prohibited by law or the Loan is in violation of law.
4.1.36 Taxpayer Identification Number. Borrower does not have a separate taxpayer
identification number as it is a pass-through entity for tax purposes. The United States taxpayer
identification number of Cousins Properties Incorporated, the ultimate owner of Borrower, is
00-0000000.
4.1.37 OFAC. Borrower, Principal and each and every Person Affiliated with Borrower
and/or Principal are (i) in full compliance with all applicable orders, rules, regulations and
recommendations of The Office of Foreign Assets Control of the U.S. Department of the Treasury;
(ii) not a Prohibited Person; (iii) in full compliance with the requirements of the Patriot Act and
all other requirements contained in the rules and regulations of the Office of Foreign Assets
Control, Department of the Treasury (“OFAC”); (iv) operated under policies, procedures and
practices, if any, that are in compliance with the Patriot Act and available to Lender for Lender’s
review and inspection during normal business hours and upon reasonable prior notice; (v) not in
receipt of any notice from the Secretary of State or the Attorney General of the United States or
any other department, agency or office of the United States claiming a violation or possible
violation of the Patriot Act; (vi) not a person who has been determined by competent authority to
be subject to any of the prohibitions contained in the Patriot Act; and (vii) not owned or
controlled by or now acting and or will in the future act for or on behalf of any person who has
been determined to be subject to the prohibitions contained in the Patriot Act. Borrower covenants
and agrees that in the event Borrower receives any notice that Borrower or Principal become listed
on the Annex or any other list promulgated under the Patriot Act or is indicted, arraigned, or
custodially detained on charges involving money laundering or predicate crimes to money laundering,
Borrower shall immediately notify Lender. It shall be an Event of Default hereunder if Borrower or
Principal becomes listed on any list promulgated under the Patriot Act or is indicted, arraigned or
custodially detained on charges involving money laundering or predicate crimes to money laundering.
4.1.38 Cash Management Accounts. At all times while the Loan is outstanding, Borrower
shall establish and maintain accounts required pursuant to the Cash Management Agreement into which
Rents and other revenue from the Property are deposited.
Section 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.
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 Security Instrument (and all related obligations) in accordance with the
34
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. 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
Borrower and the Property, including, without limitation, Prescribed Laws. There shall never be
committed by Borrower and Borrower shall not permit any other Person in occupancy of or involved
with the operation or use of the Property to commit any act or omission affording the federal
government or any state or local government the right of forfeiture 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 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 Security
Instrument. 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. After prior 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) Borrower is permitted
to do so under the provisions of any mortgage, deed to secure debt or deed of trust superior in
lien to the Security Instrument; (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 all
applicable statutes, laws and ordinances; (iv) neither the Property nor any part thereof or
interest therein will be in danger of being sold, forfeited, terminated, cancelled 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 and
the Property; and (vii) Borrower shall furnish such security as may be required in the proceeding,
or as may reasonably 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 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 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 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
35
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. Borrower shall furnish to Lender receipts for the
payment of the Taxes and the Other Charges prior to the date the same shall become delinquent
provided, however, 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.
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 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 (a) no Event of Default has occurred and remains uncured; (b)
Borrower is permitted to do so under the provisions of any deed to secure debt, mortgage or deed of
trust superior in lien to the Security Instrument; (c) 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; (d) neither the Property nor any part thereof or
interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost; (e)
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; (f) such proceeding shall suspend the collection of such contested Taxes or Other
Charges from the Property; and (g) 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
judgment of Lender, the entitlement of such claimant is established or the Property (or part
thereof or interest therein) shall be in danger of being sold, forfeited, terminated, cancelled or
lost or there shall be any danger of the Lien of the Security Instrument being primed by any
related Lien.
5.1.3 Litigation. Borrower shall give prompt written notice to Lender of any
litigation or governmental proceedings pending or threatened against Borrower and Principal which
might materially adversely affect Borrower’s or Principal’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 in each instance to the rights of the tenants under the Leases.
5.1.5 Notice of Default. Borrower shall promptly advise Lender of any material
adverse change in Borrower’s or Principal’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
36
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 Award and Insurance Benefits. Borrower shall cooperate with Lender in obtaining
for Lender the benefits of any Awards or 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 Casualty or Condemnation
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 which are 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 Supplemental Security Instrument Affidavits. Borrower represents that it has
paid all state, county and municipal recording and all other taxes imposed upon the execution and
recordation of the Security Instrument. If at any time Lender determines, based on applicable law,
that Lender is not being afforded the maximum amount of security available from the Property as a
direct or indirect result of applicable taxes not having been paid with respect to the Property,
Borrower shall, on demand, pay any such taxes.
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 GAAP (or such other accounting basis
acceptable to Lender), 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
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
37
and accounts at the office of Borrower or any other Person maintaining such books, records and
accounts and to make such copies or extracts thereof as Lender shall desire. After the occurrence
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 determine to be
necessary or appropriate in the protection of Lender’s interest.
(b) Borrower will furnish to Lender annually, within ninety (90) days following the end of
each Fiscal Year of Borrower, (i) a complete copy of Borrower’s annual financial statements
prepared in accordance with GAAP (or such other accounting basis acceptable to Lender) and
accompanied by an Officer’s Certificate stating that such items are true, correct, accurate and
completely and fairly present the financial condition and results of the operations of Borrower and
the Property for such Fiscal Year and containing statements of profit and loss for Borrower and the
Property and a balance sheet for Borrower and (ii) a complete copy of Traded Entity’s consolidated
annual financial statements including information relating to the Property audited by an Acceptable
Accounting Firm in accordance with GAAP (or such other accounting basis acceptable to Lender) for
such Fiscal Year. The statements in clause (i) above shall be audited by an Acceptable Accounting
Firm after an Event of Default. Such statements in clause (i) above 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) only after an Event of Default, an unqualified opinion of
an Acceptable Accounting Firm, (iii) a list of tenants, if any, occupying more than twenty (20%)
percent of the total floor area of the Improvements, (iv) a breakdown showing the year in which
each Lease then in effect expires and the percentage of total floor area of the Improvements and
the percentage of base rent with respect to which Leases shall expire in each such year, each such
percentage to be expressed on both a per year and cumulative basis, (v) a schedule 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, and (vi) an Officer’s
Certificate certifying that each annual financial statement presents fairly the financial condition
and the results of operations of Borrower and the Property being reported upon and that such
financial statements have been prepared in accordance with GAAP and 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 an Officer’s
Certificate 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 month; and (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 the Rollover Reserve Fund),
and, upon Lender’s request, other information necessary and sufficient
38
to fairly represent the financial position and results of operation of the Property during
such calendar quarter, and containing a comparison of budgeted income and expenses and the actual
income and expenses. In addition, such Officer’s Certificate shall also state that the
representations and warranties of Borrower set forth in Section 4.1.30 are true and correct
as of the date of such certificate and that there are no trade payables that have been outstanding
for more than sixty (60) days. Provided, however, prior to Securitization, Borrower will provide
the above-referenced items on or before thirty (30) days after the end of each calendar month.
(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 sixty (60) days prior
to the commencement of such period or Fiscal Year in form reasonably satisfactory to Lender. The
Annual Budget shall be subject to Lender’s reasonable approval (each such Annual Budget, an
“Approved Annual Budget”). In the event that Lender reasonably objects to a proposed Annual Budget
submitted by Borrower which requires the approval of Lender hereunder, Lender shall advise Borrower
of such objections within fifteen (15) days after receipt thereof (and deliver to Borrower a
reasonably detailed description of such objections) and Borrower shall promptly revise such Annual
Budget and resubmit the same to Lender. If Lender fails to provide objections within such 15-day
time period, the Annual Budget submitted by Borrower shall be deemed to have been approved by
Lender. Lender shall advise Borrower of any objections to such revised Annual Budget within ten
(10) days after receipt thereof (and deliver to Borrower a reasonably detailed description of such
objections) and Borrower shall promptly revise the same in accordance with the process described in
this subsection until Lender approves the Annual Budget, which approval shall not be unreasonably
withheld, delayed or conditioned. If Lender fails to provide objections within such 10-day time
period, the revised Annual Budget submitted by Borrower shall be deemed to have been approved by
Lender. Until such time that Lender approves or is deemed to have approved a proposed Annual
Budget which requires the approval of Lender hereunder, the most recently Approved Annual Budget
shall apply; provided, that such Approved Annual Budget shall be adjusted to reflect actual
increases in Taxes, Insurance Premiums and utilities expenses.
(e) In the event that Borrower must incur an extraordinary Operating Expense or Capital
Expenditure not set forth in the Approved Annual Budget (each, an “Extraordinary Expense”), then
Borrower shall promptly deliver to Lender a reasonably detailed explanation of such proposed
Extraordinary Expense for Lender’s approval, which approval shall not be unreasonably withheld,
delayed or conditioned; provided, however, that no approval shall be required for any Extraordinary
Expense required to be made in order for Borrower to avoid a default under the Leases.
(f) If, at the time one or more Disclosure Documents are being prepared for a Securitization,
Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower collectively,
or the Property alone or the Property and Related Properties collectively, will be a Significant
Obligor, Borrower shall furnish to Lender upon request (i) the selected financial data or, if
applicable, Net Operating Income, required under Item 1112(b)(1) of Regulation AB, if Lender
expects that the principal amount of the Loan together with any Related Loans as of the cut-off
date for such Securitization may, or if the principal amount of the Loan together with any Related
Loans as of the cut-off date for such Securitization and at any time during which the Loan and any
Related Loans are included in a Securitization does, equal
39
or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal
amount of all mortgage loans included or expected to be included, as applicable, in the
Securitization or (ii) the financial statements required under Item 1112(b)(2) of Regulation AB, if
Lender expects that the principal amount of the Loan together with any Related Loans as of the
cut-off date for such Securitization may, or if the principal amount of the Loan together with any
Related Loans as of the cut-off date for such Securitization and at any time during which the Loan
and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%)
of the aggregate principal amount of all mortgage loans included or expected to be included, as
applicable, in the Securitization. Such financial data or financial statements shall be furnished
to Lender (A) within ten (10) Business Days after notice from Lender in connection with the
preparation of Disclosure Documents for the Securitization, (B) not later than thirty (30) days
after the end of each fiscal quarter of Borrower and (C) not later than seventy-five (75) days
after the end of each Fiscal Year of Borrower; provided, however, that Borrower
shall not be obligated to furnish financial data or financial statements pursuant to clauses (B) or
(C) of this sentence with respect to any period for which a filing pursuant to the Exchange Act in
connection with or relating to the Securitization (an “Exchange Act Filing”) is not required. If
requested by Lender and available to Borrower (and not available to Lender), Borrower shall furnish
to Lender financial data and/or financial statements for any tenant of the Property if, in
connection with a Securitization, Lender reasonably expects there to be, with respect to such
tenant or group of Affiliated tenants, a concentration within all of the mortgage loans included or
expected to be included, as applicable, in the Securitization such that such tenant or group of
affiliated tenants would constitute a Significant Obligor.
(g) All financial data and financial statements provided by Borrower hereunder pursuant to
Section 5.1.11(f) hereof shall be prepared in accordance with GAAP and shall meet the
requirements of Regulation AB and other applicable legal requirements. All financial statements
referred to in Sections 5.1.11(f)(ii) above shall be audited by independent accountants of
Borrower reasonably acceptable to Lender in accordance with Regulation AB and all other applicable
legal requirements, shall be accompanied by the manually executed report of the independent
accountants thereon, which report shall meet the requirements of Regulation AB and all other
applicable legal requirements, and shall be further accompanied by a manually executed written
consent of the independent accountants, in form and substance reasonably acceptable to Lender, to
the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing
and to the use of the name of such independent accountants and the reference to such independent
accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be
provided at the same time as the related financial statements are required to be provided. All
financial data and financial statements (audited or unaudited) provided by Borrower under
Section 5.1.11(f) shall be accompanied by an Officer’s Certificate, which shall state that
such financial statements meet the requirements set forth in the first sentence of this Section
5.1.11(g).
(h) If requested by Lender, Borrower shall provide Lender, promptly upon request, with any
other or additional financial statements, or financial, statistical or operating information, as
required pursuant to Regulation AB or any amendment, modification or replacement thereto or other
legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as
shall otherwise be reasonably requested by Lender.
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(i) In the event Lender reasonably determines, in connection with a Securitization, that the
financial data and financial statements required in order to comply with Regulation AB or any
amendment, modification or replacement thereto or other legal requirements are other than as
provided herein, then notwithstanding the provisions of Section 5.1.11(g) hereof, Lender
may request, and Borrower shall promptly provide, such other financial data and financial
statements as Lender reasonably determines to be necessary or appropriate for such compliance.
(j) 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).
Borrower agrees that Lender may disclose information regarding the Property and Borrower that is
provided to Lender pursuant to this Section 5.1.11(j) in connection with the Securitization
to such parties requesting such information in connection with such Securitization.
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 Lien of the Security
Instrument and the Assignment of Leases, 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 Security
Instrument is foreclosed in whole or in part or that the Security Instrument 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 Security Instrument 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, actually 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
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forth (i) the original principal amount of the Loan, (ii) the unpaid principal amount of the
Loan, (iii) the Applicable Interest Rate of the Loan, (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 Security Instrument 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) Subject to Borrower’s ability to procure same under the Leases without initiating suit,
Borrower shall 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 (but
in no event containing more information than required to be given by the tenant under its Lease),
provided that Borrower shall not be required to deliver such certificates more frequently than one
(1) time in any calendar year.
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 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 Borrower without the prior 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 in all relevant jurisdictions, and (b ) certificates of
the relevant Governmental Authorities in all relevant jurisdictions indicating the good standing
and qualification of Borrower and Principal 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. All Major Leases entered into by Borrower and all
modifications, extensions, renewals, surrenders and terminations of Major Leases executed by
Borrower after the date hereof shall be approved by Lender, which approval shall not be
unreasonably withheld, conditioned or delayed. Lender’s failure to respond to a request from
Borrower for such approval within ten (10) Business Days of the later of (i) receipt of such
request and (ii) receipt of all information reasonably requested by Lender with respect to the
tenant or prospective tenant, shall be deemed Lender’s approval, provided that Borrower delivers to
Lender a writing marked in bold lettering with the following: “LENDER’S RESPONSE IS REQUIRED
WITHIN 10 BUSINESS DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF THE ASSIGNMENT OF LEASES
AND RENTS
42
BETWEEN THE UNDERSIGNED AND LENDER” and the envelope containing the writing must be marked
“PRIORITY” in bold letters. Upon request, Borrower shall furnish Lender with executed copies of
all Leases. All renewals of Leases that are not subject to currently existing renewal options at
fixed rates of rent and all proposed Leases shall provide for rental rates comparable to existing
local market rates. 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 Security
Instrument and that the lessee 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 and may amend or terminate
the terms, covenants and conditions contained in the Leases upon the part of the lessee thereunder
to be observed or performed in a commercially reasonable manner and in a manner not to impair the
value of the Property except that no termination by Borrower or acceptance of surrender by a tenant
of any Leases 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 Major Lease will be permitted without
the consent 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; and (vi) shall execute and deliver at the request of Lender all such further assurances,
confirmations and assignments in connection with the Leases as Lender shall from time to time
reasonably require. Notwithstanding anything to the contrary contained herein, Borrower shall not
enter into a lease of all or substantially all of the Property without Lender’s prior consent. The
covenants contained in this Section 5.1.20 shall not apply to any sublease, sub-sublease or
similar agreement. Lender agrees to provide a subordination, non-disturbance and attornment
agreement in Lender’s then-current form to a tenant not in default under the terms of its Lease,
upon the written request of Borrower.
5.1.21 Alterations. Borrower shall obtain Lender’s prior consent to any alterations
to any Improvements, which consent shall not be unreasonably withheld, conditioned or delayed.
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 any such alterations (a) are made
in connection with tenant improvement work performed pursuant to the terms of any Lease executed on
or before the date hereof, (b) do not adversely affect 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 and the aggregate cost thereof does not exceed Two
Million and 00/100 Dollars ($2,000,000.00) or (c) are 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. 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 exceed One Million and 00/100 Dollars
($1,000,000.00) (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
43
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
to any Securities or any class thereof in connection with any Securitization, or (D) a
completion and performance bond or an irrevocable letter of credit (payable on sight draft only)
issued by a financial institution having a rating by S&P 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 to any Securities or any class thereof 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 or currently held for such alterations or tenant improvements in the
Reserve Funds) over the Threshold Amount and Lender may apply such security from time to time at
the option of Lender to pay for such alterations. If such security is cash, such cash shall be
invested as set forth in Section 7.5(c) hereof and shall be available to Borrower as
provided in Section 7.4.2 hereof.
5.1.22 Management of Property. (a) Borrower shall cause the Property to be operated,
in all material respects, in accordance with the Management Agreement (or Replacement Management
Agreement) if applicable. In the event that the Management Agreement expires or is terminated
(without limiting any obligation of Borrower to obtain Lender’s consent to any termination or
modification of the Management Agreement in accordance with the terms and provisions of this
Agreement), Borrower shall promptly (i) enter into a Replacement Management Agreement with Manager
or another Qualified Manager, as applicable, and (ii) deliver to Lender an Additional Insolvency
Opinion (in form and substance acceptable to Lender) with respect to any Manager or Qualified
Manager that is an Affiliate of Borrower.
(b) Borrower shall: (i) promptly perform and/or observe, in all material respects, all of the
covenants and agreements required to be performed and observed by it under the Management Agreement
and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii)
promptly notify Lender of any material default under the Management Agreement of which it is aware;
and (iii) enforce the performance and observance of all of the covenants and agreements required
to be performed and/or observed by Manager under the Management Agreement, in a commercially
reasonable manner.
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 Security Instrument 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. (a) Borrower shall not, without Lender’s prior consent
(which consent shall not be unreasonably withheld, conditioned or delayed): (i) surrender,
terminate or cancel the Management Agreement; provided, that Borrower may, without Lender’s
consent, replace the Manager so long as the replacement manager is a
44
Qualified Manager pursuant to a Replacement Management Agreement; (ii) reduce or consent to
the reduction of the term of the Management Agreement; (iii) increase or consent to the increase of
the amount of any charges under the Management Agreement; or (iv) otherwise modify, change,
supplement, alter or amend, or waive or release any of its rights and remedies under, the
Management Agreement in any material respect.
(b) Following the occurrence and during the continuance of an Event of Default, Borrower shall
not exercise any rights, make any decisions, grant any approvals or otherwise take any action under
the Management Agreement without the prior consent of Lender, which consent may be withheld in
Lender’s sole discretion.
5.2.2 Liens. Borrower shall not 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 | ||
(iii) | Liens for Taxes or Other Charges not yet due. |
5.2.3 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 Principal to (i) dissolve, wind up or liquidate or take any action, or omit to take
an action, as a result of which the Principal would be dissolved, wound up or liquidated in whole
or in part, or (ii) amend, modify, waive or terminate the certificate of incorporation or bylaws of
the Principal, in each case, without obtaining the prior consent of Lender.
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 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.
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5.2.7 Intentionally Omitted.
5.2.8 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 notice. Borrower shall not change the place of its
organization as set forth in Section 4.1.28 without the consent of Lender, which consent
shall not be unreasonably withheld. 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.
5.2.9 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 (i) Borrower is not 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(32) of ERISA; (ii) Borrower is not subject to any state statute regulating investments of, or
fiduciary obligations with respect to, governmental plans; and (iii) one or more of the following
circumstances is true:
(A) Equity interests in Borrower are publicly offered securities,
within the meaning of 29 C.F.R. §2510.3-101(b)(2);
(B) Less than twenty-five percent (25%) of each outstanding class of
equity interests in Borrower is held by “benefit plan investors” within the
meaning of 29 C.F.R. §2510.3-101(f)(2); or
(C) Borrower qualifies as an “operating company” or a “real estate operating company”
within the meaning of 29 C.F.R. §2510.3-101(c) or (e).
5.2.10 Transfers. (a) Borrower acknowledges that Lender has examined and relied on
the experience of Borrower and its general partners, members, principals and (if Borrower is a
trust) beneficial owners in owning and operating properties such as the Property in agreeing to
make the Loan, and will continue to rely on Borrower’s ownership of the Property as a means of
maintaining the value of the Property as security for repayment of the Debt and the performance of
the obligations contained in the Loan Documents. Borrower acknowledges that Lender has a valid
interest in maintaining the value of the Property so as to ensure that, should Borrower default in
the repayment of the Debt or the performance of the obligations contained in the Loan Documents,
Lender can recover the Debt by a sale of the Property.
(b) Without the prior consent of Lender and except to the extent otherwise set forth in this
Section 5.2.10, Borrower shall not, and shall not permit any Restricted Party to, (i) sell,
convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect
46
to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily,
by operation of law or otherwise, and whether or not for consideration or of record) the Property
or any part thereof or any legal or beneficial interest therein or (ii) permit a Sale or Pledge of
an interest in any Restricted Party (collectively, a “Transfer”), other than pursuant to Leases of
space in the Improvements to tenants in accordance with the provisions of Section 5.1.20.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement
wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in
installments; (ii) an agreement by Borrower leasing all or a substantial part of the Property for
other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer
of, or the grant of a security interest in, Borrower’s right, title and interest in and to any
Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or
Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a
Restricted Party is a limited or general partnership or joint venture, any merger or consolidation
or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the
partnership interest of any general partner or any profits or proceeds relating to such partnership
interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds
relating to such limited partnership interest or the creation or issuance of new limited
partnership interests; (v) if a Restricted Party is a limited liability company, any merger or
consolidation or the change, removal, resignation or addition of a managing member or non-member
manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of
a managing member (or if no managing member, any member) or any profits or proceeds relating to
such membership interest, or the Sale or Pledge of non-managing membership interests or the
creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a
trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial
interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or
(vii) the removal or the resignation of the managing agent (including, without limitation, an
Affiliated Manager) other than in accordance with Section 5.1.22 hereof.
(d) Notwithstanding the provisions of this Section 5.2.10, none of the following
transfers shall be deemed to be a Transfer: (i) the sale or transfer, in one or a series of
transactions, of not more than forty-nine percent (49%) of the stock in a Restricted Party;
provided, however, no such sales or transfers shall result in the change of voting control in the
Restricted Party, and as a condition to each such sale or transfer, Lender shall receive not less
than thirty (30) days prior notice of such proposed sale or transfer, (ii) the sale or transfer, in
one or a series of transactions, of not more than forty-nine percent (49%) of the limited
partnership interests or non-managing membership interests (as the case may be) in a Restricted
Party; provided, however, no such sales or transfers shall result in the change of voting control
in the Restricted Party, and as a condition to each such sale or transfer, Lender shall receive not
less than thirty (30) days prior notice of such proposed sale or transfer, (iii) the sale, transfer
or issuance of stock in Cousins Properties Incorporated (the “Traded Entity”) provided such stock
is listed on the New York Stock Exchange or such other nationally recognized stock exchange, and
(iv) the transfer contemplated by Section 10.24 hereof. In addition, at all times, the
Traded Entity must continue to control Borrower and Affiliated Manager and own, directly or
indirectly, at least a 51% interest in Borrower and Affiliated Manager.
47
(e) Except for the assumption contemplated by Section 10.24 of this Agreement, which
is being consummated on or about the date hereof, no further assumption of the Loan shall occur on
or before the first anniversary of the first Payment Date. Thereafter, Lender reserves the right
to consent to any subsequent assumption, and Lender may condition the consent required hereunder
upon (a) intentionally omitted; (b) an assumption of this Agreement, the Note, the Security
Instrument and the other Loan Documents as so modified by the proposed transferee, subject to the
provisions of Section 9.4 hereof; (c) payment of all of the fees and expenses incurred in
connection with such Transfer including, without limitation, the cost of any third party reports,
legal fees and expenses, Rating Agency fees and expenses or required legal opinions; (d) the
payment of a non-refundable $5,000 application fee and an assumption fee equal to one quarter of
one percent (0.25%) of the outstanding principal balance of the Loan for each Transfer following
the first Transfer after the assumption contemplated by Section 10.24 of this Agreement;
(e) the delivery of a nonconsolidation opinion reflecting the proposed transfer satisfactory in
form and substance to Lender; (f) the proposed transferee’s continued compliance with the
representations and covenants set forth in Section 4.1.30 and Section 5.2.9 hereof;
(g) the delivery of evidence satisfactory to Lender that the single purpose nature and bankruptcy
remoteness of Borrower, its shareholders, partners or members, as the case may be, following such
transfers are in accordance with the then current standards of Lender and the Rating Agencies; (h)
intentionally omitted; (i) if required by Lender, confirmation in writing from the Rating Agencies
to the effect that such transfer will not result in a re-qualification, reduction or withdrawal of
the then current rating assigned to the Securities or any class thereof in any applicable
Securitization; or (j) such other conditions as Lender shall determine in its reasonable discretion
to be in the interest of Lender, including, without limitation, the creditworthiness, reputation
and qualifications of the transferee with respect to the Loan and the Property. Lender shall not
be required to demonstrate any actual impairment of its security or any increased risk of default
hereunder in order to declare the Debt immediately due and payable upon a Transfer without Lender’s
consent. This provision shall apply to every Transfer (other than transfers that are deemed not a
Transfer pursuant to Subsection 5.2.10(d) above), regardless of whether voluntary or not,
or whether or not Lender has consented to any previous Transfer. Notwithstanding the foregoing, in
connection with an Intercompany Transfer, Lender shall not require (i) payment of the assumption
fee contemplated by subsection (d) hereof and (ii) the creditworthiness, reputation and
qualifications of a transferee in connection with an Intercompany Transfer shall be deemed to be
acceptable to Lender so long as the Traded Entity Controls such transferee and owns, directly or
indirectly, at least 51% of the ownership interests of such transferee.
(f) If as a result of any direct or indirect Transfers of interests in Borrower or any
Principal (regardless of whether Lender’s consent is required in connection therewith) more than
forty-nine percent (49%) in the aggregate of direct or indirect interests in Borrower or Principal
is owned by any Person that owned less than a forty-nine percent (49%) direct or indirect interest
in Borrower or Principal as of the Closing Date, Lender shall, as a condition to such Transfer
receive a nonconsolidation opinion acceptable to it and the Rating Agencies.
(g) Anything contained in Section 5.2.10 to the contrary notwithstanding, the Traded
Entity shall be permitted, without the consent of Lender, to Transfer its direct and indirect
ownership interests in Borrower (but Traded Entity shall not cause or permit Borrower to Transfer
the Property) in connection with a merger, consolidation or sale of all or substantially
48
all of the assets of Traded Entity (a “Sale Event”), subject to the following conditions: (i)
such Sale Event shall occur as a single transaction and if such Sale Event shall be a sale of
substantially all of the Traded Entity’s assets, such merger, consolidation or sale shall be to a
single Person, (ii) the Property shall be managed by a Qualified Manager, (iii) Borrower shall
deliver an Additional Insolvency Opinion in connection with such Sale Event, (iv) Borrower shall
pay all of Lender’s fees and expenses incurred in connection with such Sale Event, (v) the payment
of a non-refundable $5,000 application fee and an assumption fee equal to one quarter of one
percent (0.25%) of the outstanding principal balance of the Loan for each Transfer following the
first Transfer after the assumption contemplated by Section 10.24 of this Agreement, (vi)
the proposed transferee’s continued compliance with the representations and covenants set forth in
Section 5.2.9 hereof, (vii) if permitted by law, Lender shall receive not less than thirty
(30) days prior notice of such Sale Event and (viii) Borrower shall deliver to Lender confirmation
in writing from the Rating Agencies to the effect that such Sale Event will not result in a
re-qualification, reduction or withdrawal of the then current rating assigned to the Securities or
any class thereof in any applicable Securitization.
5.2.11 Ground Lease Provisions
(a) Borrower will: (i) pay the rent reserved by the Ground Lease as the same becomes due and
payable; (ii) promptly perform and observe all of the covenants, agreements, obligations and
conditions required to be performed and observed by the Borrower under the Ground Lease, and do all
things necessary to preserve and keep unimpaired its rights thereunder; (iii) promptly notify
Lender in writing of the commencement of a proceeding under the federal bankruptcy laws by or
against Borrower or the ground lessor under the Ground Lease; (iv) if any of the indebtedness
secured by the Security Instrument remains unpaid at the time when notice may be given by the
Borrower under the Ground Lease of the exercise of any right to renew or extend the term of the
Ground Lease, promptly give notice to the ground lessor of the exercise of such right of extension
or renewal; (v) in case any proceeds of insurance upon the Property or any part thereof are
deposited with any person other than Lender, promptly notify Lender in writing of the name and
address of the person with whom such proceeds have been deposited and the amount so deposited; (vi)
promptly notify the Lender in writing of the receipt by the Borrower of any notice (other than
notices customarily sent on a regular periodic basis) from the ground lessor under the Ground Lease
and of any notice noting or claiming any default by the Borrower in the performance or observance
of any of the terms, covenants, or conditions on the part of the Borrower to be performed or
observed under the Ground Lease; (vii) promptly notify the Lender in writing of the receipt by the
Borrower of any notice from the ground lessor of any termination of the Ground Lease pursuant to
the provisions of the Ground Lease; (viii) promptly cause a copy of each such notice received by
the Borrower from the ground lessor under the Ground Lease to be delivered to the Lender, and (ix)
promptly notify Lender in writing of any request made by either party to the Ground Lease to the
other party thereto for arbitration or appraisal proceedings pursuant to the Ground Lease, and of
the institution of any arbitration or appraisal proceedings and promptly deliver to Lender a copy
of the determination of the arbitrators or appraisers in each such proceeding.
(b) Borrower will not surrender the Ground Lease or Borrower’s leasehold estate and interest
therein, nor terminate or cancel the Ground Lease; and will not, without the prior written consent
of Lender modify, change, supplement, alter or amend the Ground Lease,
49
either orally or in writing, and as further security for the repayment of the indebtedness
hereby secured by the Security Instrument and for the performance of the covenants, agreements,
obligations and conditions herein and in the Ground Lease contained, Borrower hereby assigns to
Lender all of its rights, privileges and prerogatives as ground lessee under the Ground Lease to
terminate, cancel, modify, change, supplement, alter or amend the Ground Lease and any such
termination, cancellation, modification, change, supplement, alteration or amendment of the Ground
Lease, without the prior written consent thereto by Lender, shall be void and of no force and
effect. Without limiting the generality of the foregoing, Borrower will not reject the Ground
Lease pursuant to 11 U.S.C. Section 365(a) or any successor law, or allow the Ground Lease to be
deemed rejected by inaction and lapse of time, and will not elect to treat the Ground Lease as
terminated by the ground lessor’s rejection of the Ground Lease pursuant to 11 U.S.C. Section
365(h)(1) or any successor law, and as further security for the repayment of the indebtedness
secured hereby and for the performance of the covenants, agreements, obligations and conditions
herein and in the Ground Lease contained, Borrower hereby assigns to Lender all of its rights,
privileges and prerogatives of Borrower and Borrower’s bankruptcy trustee to deal with the Ground
Lease, which right may arise as a result of the commencement of a proceeding under the federal
bankruptcy laws by or against Borrower or ground lessor under the Ground Lease, including, without
limitation, the right to assume or reject, or to compel the assumption or rejection of the Ground
Lease pursuant to 11 U.S.C. Section 365(a) or any successor law, the right to seek and obtain
extensions of time to assume or reject the Ground Lease, the right to elect whether to treat the
Ground Lease as terminated by the ground lessor’s rejection of the Ground Lease or to remain in
possession of the Property and offset damages pursuant to 11 U.S.C. Section 365(b)(1) or any
successor law; and any exercise of such rights, privileges or prerogatives by Borrower or
Borrower’s bankruptcy trustee without the prior written consent thereto by Lender shall be void and
of no force and effect. No release or forbearance of any of Borrower’s obligations as ground
lessee under the Ground Lease, whether pursuant to the Ground Lease or otherwise, shall release
Borrower from any of its obligations under the Security Instrument, including, but not limited to,
Borrower’s obligations with respect to the payment of rent as provided for in the Ground Lease and
the observance and performance of all of the covenants, agreements, obligations and conditions
contained in the Ground Lease to be observed and performed by the ground lessee thereunder.
Borrower hereby expressly grants to Lender, and agrees that Lender shall have, the absolute and
immediate right (notwithstanding any cure periods applicable to acceleration of the Note or
exercise of remedies provided for herein) to enter in and upon the Property or any part thereof, to
such extent and as often as Lender, in its sole discretion, deems necessary or desirable in order
to prevent or to cure any such default by Borrower under the Ground Lease. Lender may immediately
pay and expend such sums of money (notwithstanding any cure periods applicable to acceleration of
the Note or exercise of remedies provided for herein) as Lender, in its sole discretion, deems
necessary to prevent or cure any such default by Borrower, and Borrower hereby agrees to pay to
Lender, immediately and without demand, all such sums so paid and expended by Lender, together with
interest thereon from the date of each such payment at the Default Rate as specified in the Note.
All sums so paid and expended by Lender, and the interest thereon, shall be added to and be secured
by the lien of the Security Instrument. Unless Lender shall otherwise expressly consent in
writing, the fee title to the real property demised by the Ground Lease and the leasehold estate
thereunder shall not merge, but shall always remain separate and distinct, notwithstanding the
union of such estates either in the Borrower or in a third party by purchase or otherwise.
50
(c) The Borrower will, within ten (10) days after written demand from the Lender, but not more
than once in any twelve-month period, use its reasonable efforts to obtain from the ground lessor
under the Ground Lease and deliver to the Lender a certificate stating that such ground lease is in
full force and effect, is unmodified, that no notice of termination thereon has been served on the
Borrower, stating the date to which the net rent has been paid and stating whether or not there are
any defaults thereunder and specifying the nature of such defaults, if any.
(d) The Borrower will furnish to the Lender, upon demand, proof of payment of all items which
are required to be paid by the Borrower pursuant to the Ground Lease.
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, without any exclusion for the peril of windstorm, 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 Fifty Thousand and No/100 Dollars ($50,000) for all such
insurance coverage; and (D) containing an “Ordinance or Law Coverage” or
“Enforcement” endorsement, including contingent liability from Operation of Building
Laws, Demolition Costs and Increased Cost of Construction Endorsements to compensate
for the loss to the undamaged portion of the Property as well as the demolition and
increased cost of construction costs in amounts as requested by Lender if the
Property is or becomes “non conforming”, 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: (x) if any portion of the Improvements is
currently or at any time in the future located in a “special flood hazard area,” as
designated by the Federal Emergency Management Agency or such other applicable
federal agency, flood hazard insurance in an amount equal to the maximum amount
available under the national flood insurance program and in addition to the maximum
available under the national flood program, any excess limits as determined by
Lender in its sole and absolute discretion; (y) if the Property is in an area
identified by any governmental, engineering or any hazard underwriting agencies as
being subject to the peril of earthquake or located in an area with a high degree of
seismic activity, with a probable maximum loss (“PML”) exceeding fifteen percent
(15%), earthquake insurance equal to fifteen percent (15%) of the Full Replacement
Cost with a waiver of depreciation of the Property
51
and (z) coastal windstorm insurance in amounts and in form and substance
satisfactory to Lender in the event the Property is located in any coastal region,
provided that the insurance pursuant to clauses (x), (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 of
not less than Two Million and No/100 Dollars ($2,000,000) in the aggregate and One
Million and No/100 Dollars ($1,000,000) per occurrence (and, if on a blanket policy,
containing an “Aggregate Per Location” endorsement); (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 8 of the Security Instrument
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) containing an extended period of indemnity endorsement which provides
that after the physical loss to the Improvements and Personal Property has been
repaired, the continued loss of income will be insured until such income either
returns to the same level it was at prior to the loss, or the expiration of
twenty-four (24) months from the date that the Property is repaired or replaced and
operations are resumed, whichever first occurs, and notwithstanding that the policy
may expire prior to the end of such period; and (D) in an amount equal to one
hundred percent (100%) of the projected gross income from the Property for a period
of twenty-four (24) months from the date of such Casualty (assuming such Casualty
had not occurred) and notwithstanding that the policy may expire at the end of such
period. 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
twenty-four (24) month period. Notwithstanding anything to the contrary in
Section 2.7 hereof, all proceeds payable pursuant to this subsection shall
be held by Lender and shall be applied first to the obligations secured by the Loan
Documents from time to time due and payable hereunder and under the Note, then to
Operating Expenses approved by Lender in its reasonable discretion, with all
remaining proceeds payable to Borrower, provided that no Default has occurred and is
continuing; 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;
52
(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) if the Property includes commercial property, worker’s compensation
insurance with respect to any employees of Borrower, as required by any Governmental
Authority or Legal Requirement;
(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 Seventy-Five
Million and No/100 Dollars ($75,000,000.00) per occurrence on terms consistent with
the commercial general liability insurance policy required under subsection (ii)
above;
(viii) motor vehicle liability coverage for all owned and non-owned vehicles,
including rented and leased vehicles containing minimum limits per occurrence;
(ix) if the Property is or becomes a legal “non-conforming” use, ordinance or
law coverage and insurance coverage to compensate for the cost of demolition or
rebuilding of the undamaged portion of the Property along with any reduced value and
the increased cost of construction in amounts as requested by Lender;
(x) the commercial property and business income insurance required under
Sections 6.1(a)(i) and (iii) above shall cover perils of terrorism
(“Terrorism Coverage”) and acts of terrorism and Borrower shall maintain commercial
property and business income insurance for loss resulting from perils and acts of
terrorism on terms (including amounts) consistent with those required under
Sections 6.1(a)(i) and (iii) above at all times during the term of
the Loan; provided, however, Borrower shall not be required to pay more than
$350,000.00 (the “Terrorism Premium Cap”) in annual premiums to obtain Terrorism
Coverage. If the Terrorism Premium Cap is not sufficient to purchase the amount of
Terrorism Coverage required by Sections 6.1(a)(i) and (iii) above, then Borrower
shall purchase the amount of Terrorism Coverage that is available for the Terrorism
Premium Cap. The Terrorism Premium Cap shall be adjusted annually for increases in
the CPI Index. “CPI Index” means the Consumer Price
53
Index published by the Bureau of Labor and Statistics of the United States
Department of Labor, U.S. City Average, All Items and Major Group Figures for All
Urban Consumers (1982-84=100)l in the event said index is discontinued or
irreconcilably changes, then the index to be used shall be that index then published
by the United States Bureau of Labor Statistics (or similar federal agency) which
most clearly reflects the increase or decrease in consumer prices for the periods in
question; and
(xi) upon sixty (60) days’ notice, such other reasonable insurance and in such
reasonable amounts as Lender from time to time may reasonably request against such
other insurable hazards which at the time are commonly insured against for property
similar to the Property located in or around the region in which the Property is
located.
(b) All insurance provided for in Section 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 claims paying ability rating of “A” or better
(and the equivalent thereof) by at least two (2) of the Rating Agencies rating the Securities (one
of which shall be S&P if it is rating the Securities and one of which will be Xxxxx’x if it is
rating the Securities), or if only one Rating Agency is rating the Securities, then only by such
Rating Agency. The Policies described in Section 6.1(a) (other than those strictly limited
to liability protection) shall designate Lender as loss payee. Not less than ten (10) days prior
to the expiration dates of the Policies theretofore furnished to Lender, certificates of insurance
evidencing the Policies accompanied by evidence satisfactory to Lender of payment of the premiums
due thereunder (the “Insurance Premiums”), shall be delivered by Borrower to Lender.
(c) Any blanket insurance Policy shall specifically allocate to the Property the amount of
coverage from time to time required hereunder and shall otherwise provide the same protection as
would a separate Policy insuring only the Property in compliance with the provisions of Section
6.1(a).
(d) All Policies provided for or contemplated by Section 6.1(a), except for the Policy
referenced in Section 6.1(a)(v), shall name Borrower 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 provided for in Section 6.1 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
54
thereof, shall in any way affect the validity or enforceability of the
insurance insofar as Lender is concerned;
(ii) the Policies shall not be materially changed (other than to increase the
coverage provided thereby) or canceled without at least thirty (30) days’ notice to
Lender and any other party named therein as an additional insured;
(iii) the issuers thereof shall give notice to Lender if the Policies have 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 Policies are in full
force and effect, Lender shall have the right, with notice to Borrower within five (5) business
days after such action, 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 Security Instrument and shall bear interest at
the Default Rate.
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 shall give prompt notice of such damage to
Lender and, if proceeds of insurance collected upon such Casualty are made available to Borrower,
shall promptly commence and diligently prosecute the completion of the Restoration of the Property
as nearly as possible to the condition the Property was in immediately prior to such Casualty, with
such alterations as may be reasonably approved by Lender and otherwise in accordance with
Section 6.4. Borrower shall pay all costs of any applicable deductibles. Lender may, but
shall not be obligated to make proof of loss if not made promptly by Borrower. In addition, Lender
may participate in any settlement discussions with any insurance companies with respect to any
Casualty in which the Net Proceeds or the costs of completing the Restoration are equal to or
greater than Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) and Borrower shall deliver
to Lender all instruments required by Lender to permit such participation. Except during the
pendency of an Event of Default, Lender shall not settle any such negotiations without the
Borrower’s consent, which consent shall not be unreasonably withheld, conditioned or delayed. In
case any proceeds of insurance upon the Property or any part thereof are deposited with any person
other than Lender, Borrower shall promptly notify Lender in writing of the name and address of the
person with whom such proceeds have been deposited and the amount so deposited.
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
55
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. If the Property or
any portion thereof is taken by a condemning authority and sufficient condemnation proceeds are
made available to Borrower, 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. Except during the pendency of an Event of Default, Lender shall not agree on the amount of
any such Condemnation award without the consent of Borrower, which consent shall not be
unreasonably withheld, conditioned or delayed.
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 One Million and No/100 Dollars ($1,000,000.00) and
the costs of completing the Restoration shall be less than One Million and No/100 Dollars
($1,000,000.00), the Net Proceeds will be disbursed by Lender to Borrower upon receipt, provided
that all of the conditions set forth in Section 6.4(b)(i) 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 One Million and No/100 Dollars
($1,000,000.00) or the costs of completing the Restoration is equal to or greater than One Million
and No/100 Dollars ($1,000,000.00), the Net Proceeds will be held by Lender and Lender shall make
the Net Proceeds available for the Restoration in accordance with the provisions of this
Section 6.4. The term “Net Proceeds” for purposes of this Section 6.4 shall mean:
(i) the net amount of all insurance proceeds received by Lender pursuant to Section 6.1
(a)(i), (iv), (vi), (ix) and (x) as a result of such damage or
destruction, after deduction of its reasonable costs and expenses (including, but not limited to,
reasonable counsel fees), if any, in collecting same (“Insurance Proceeds”), or (ii) the net amount
of the Award, after deduction of its reasonable costs and expenses (including, but not limited to,
reasonable counsel fees), if any, in collecting same (“Condemnation Proceeds”), whichever the case
may be.
(i) The Net Proceeds shall be made available to Borrower for Restoration upon
the approval of Lender in its sole reasonable discretion that 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, less
than thirty percent (30%) of the total floor area of the Improvements
56
on the Property has been damaged, destroyed or rendered unusable as a
result of such Casualty or (2) in the event the Net Proceeds are
Condemnation Proceeds, less than fifteen percent (15%) 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;
(C) Leases demising in the aggregate a percentage amount equal to or
greater than sixty-five percent (65%) 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 Casualty or Condemnation,
whichever the case may be, shall remain in full force and effect during and
after the completion of the Restoration, notwithstanding the occurrence of
any such Casualty or Condemnation, whichever the case may be, and will make
all necessary repairs and restorations thereto at their sole cost and
expense;
(D) Borrower shall commence the Restoration as soon as reasonably
practicable (but in no event later than ninety (90) days after such Casualty
or Condemnation, whichever the case may be, occurs) and shall diligently
pursue the same to satisfactory completion;
(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 Casualty or Condemnation, whichever the case may be, will be
covered out of (1) the Net Proceeds, (2) the insurance coverage referred to
in Section 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) six (6) months prior to 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 Legal
Requirements 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 Legal Requirements;
(H) the Restoration shall be done and completed by Borrower in an
expeditious and diligent fashion and in compliance with all applicable Legal
Requirements;
(I) such Casualty or Condemnation, as applicable, does not result in
the loss of access to the Property or the related Improvements;
57
(J) the Debt Service Coverage Ratio, after giving effect to the
Restoration, shall be equal to or greater than 1.15 to 1.0;
(K) the Loan-to-Value Ratio, after giving effect to the Restoration,
shall be equal to or less than seventy-five percent (75%);
(L) 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
shall be acceptable to Lender; and
(M) 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 evidence satisfactory to Lender that (A) all materials installed and work
and labor performed (except to the extent that they are to be paid for out of the
requested disbursement) in connection with the Restoration have been paid for in
full, 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 and reasonably acceptable to
Borrower (the “Casualty Consultant”). 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. 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
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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 reasonably satisfactory
to Lender that the costs of the Restoration have been paid in full or will be paid
in full out of the Casualty Retainage; provided, however, that
Lender will release the portion of the Casualty Retainage being held with respect to
any contractor, subcontractor or materialman engaged in the Restoration as of the
date upon which the Casualty Consultant certifies to Lender that the contractor,
subcontractor or materialman has satisfactorily completed all work and has supplied
all materials in accordance with the provisions of the contractor’s, subcontractor’s
or materialman’s contract, the contractor, subcontractor or materialman delivers the
lien waivers and evidence of payment in full of all sums due to the contractor,
subcontractor or materialman as may be reasonably requested by Lender or by the
title company issuing the Title Insurance Policy, and Lender receives an endorsement
to the Title Insurance Policy insuring the continued priority of the lien of the
Security Instrument 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.
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(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 reasonably 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.
(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 in accordance with Section 2.4.2 hereof toward the payment of the
Debt whether or not then due and payable in such order, priority and proportions as Lender in its
sole discretion shall deem proper, or, at the discretion of Lender, the same may be paid, either in
whole or in part, to Borrower for such purposes as Lender shall approve, in its discretion.
(d) In the event of foreclosure of the Security Instrument 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.
VII. RESERVE FUNDS
Section 7.1 Required Repair Funds.
7.1.1 Deposits of Required Repair Funds. Borrower shall perform the repairs at the
Property, as more particularly set forth on Schedule II hereto (such repairs hereinafter
collectively 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 II. It shall be
an Event of Default under this Agreement if (a) Borrower does not complete the Required Repairs by
the required deadline for each repair as set forth on Schedule II, or (b) 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 apply the Required Repair Funds to completion of the
Required Repairs or toward payment of the Debt in such order, proportion and priority as Lender may
determine in its sole discretion. Lender’s right to 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 set forth on
such Schedule II hereto to perform the Required Repairs multiplied by one hundred ten
percent (110%). Amounts so deposited with Lender shall be held by Lender in accordance with
Section 7.5 hereof. Amounts so deposited shall hereinafter be referred to as the “Required
Repair Fund.”
7.1.2 Release of Required Repair Funds. Lender shall disburse to Borrower the
Required Repair Funds from time to time as Borrower incurs costs in making Required Repairs, but
not more frequently than once in any thirty (30) day period, upon
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satisfaction by Borrower of each of the following conditions: (a) Borrower shall submit a
written request for payment to Lender at least thirty (30) days prior to the date on which Borrower
requests such payment be made and specifies the Required Repairs to be paid, (b) 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, (c) Lender shall have received an Officer’s Certificate (i)
stating that all Required Repairs 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 Officer’s 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, (ii) identifying each Person that supplied materials or labor in connection with
the Required Repairs to be funded by the requested disbursement, and (iii) stating that each such
Person has been paid in full or will be paid in full upon such disbursement, such Officer’s
Certificate to be accompanied by lien waivers or other evidence of payment satisfactory to Lender,
(d) at Lender’s option, a title search indicating that the Property is free from all liens, claims
and other encumbrances not previously approved by Lender, and (e) Lender shall have received such
other evidence as Lender shall reasonably request that the Required Repairs to be funded by the
requested disbursement have been completed and are paid for or will be paid upon such disbursement
to Borrower. Lender shall not be required to make disbursements from the Required Repair Fund
unless such requested disbursement is in an amount greater than $5,000 (or a lesser amount if the
total amount in the Required Repair Fund is less than $5,000, in which case only one disbursement
of the amount remaining in the account shall be made) and such disbursement shall be made only upon
satisfaction of each condition contained in this Section 7.1.2. So long as Borrower is not
in Default, once all Required Repairs have been completed to Lender’s satisfaction, upon written
request from Borrower, Lender shall disburse any remaining Required Repair Funds to Borrower.
Section 7.2 Tax and Insurance Escrow Fund; Waiver.
7.2.1 Tax and Insurance Escrow. 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 hereinafter called the “Tax and Insurance Escrow Fund”). The Tax and Insurance Escrow
Fund and the Monthly Debt Service Payment Amount, 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 Section
5.1.2 hereof and under the Security Instrument. In making any payment relating to the Tax and
Insurance Escrow Fund, Lender may do so according to any xxxx, statement or estimate procured from
the appropriate public office (with respect to Taxes) or insurer or agent (with respect to
Insurance Premiums), without inquiry into the accuracy of such xxxx, statement or estimate or into
the validity of any tax, assessment, sale, forfeiture, tax lien or title or claim thereof. If the
amount of the Tax and Insurance Escrow Fund shall exceed the amounts due for Taxes and Insurance
Premiums pursuant to Section 5.1.2
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hereof, 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. Any amount
remaining in the Tax and Insurance Escrow Fund after the Debt has been paid in full or defeased
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 and Insurance
Premiums by the dates set forth in (a) and (b) 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 the due date
of the Taxes and/or thirty (30) days prior to expiration of the Policies, as the case may be.
7.2.2 Waiver of Deposit for Insurance Premiums. Notwithstanding anything contained in
this Agreement to the contrary, Borrower’s obligation under Section 7.2.1 above with
respect to the deposit of Insurance Premiums into the Tax and Insurance Escrow Fund is hereby
suspended, provided that:
(a) No Event of Default shall have occurred or exist; and
(b) Lender shall have received evidence satisfactory to Lender that Borrower has paid, when
due, all Insurance Premiums as and when required by Section 6.1(a) hereof; and
(c) Borrower shall deliver to Lender copies of all statements of Insurance Premiums as soon as
the same are received by Borrower; and
(d) The Policies at all times comply with the applicable requirements of this Agreement.
(e) The Policies at all times are blanket policies.
If at any time any of the above conditions shall be unfulfilled, then, immediately upon notice
from Lender, Borrower shall thereafter comply with all of the provisions of Section 7.2.1
of this Agreement (including, without limitation, Borrower’s obligation to make the specified
deposits into the Tax and Insurance Escrow Fund).
Section 7.3 Replacements and Replacement Reserve.
7.3.1 Deposits to Replacement Reserve Fund. Borrower shall pay to Lender on each
Payment Date one-twelfth (1/12) of $99,696.96, which is the amount 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”). Amounts so deposited shall hereinafter be
referred to as the “Replacement Reserve Fund”. 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.
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7.3.2 Disbursements of Replacement Reserve Funds. Lender shall make disbursements
from the Replacement Reserve Fund as requested by Borrower, and approved by Lender in its sole
reasonable discretion, no more frequently than once in any thirty (30) day period of no less than
$5,000.00 upon delivery by Borrower of Lender’s standard form of draw request accompanied by copies
of invoices for the amounts requested and, if required by Lender for requests in excess of
$25,000.00 for a single item, lien waivers and releases from all parties furnishing materials
and/or services in connection with the requested payment. Lender may require an inspection of the
Property at Borrower’s expense prior to making a monthly disbursement in order to verify completion
of replacements and repairs of items in excess of $25,000.00 for which reimbursement is sought.
7.3.3 Insufficiency of Replacement Reserve Funds. The insufficiency of Replacement
Reserve Funds shall not relieve Borrower from its obligation to fulfill all preservation and
maintenance covenants in the Loan Documents.
Section 7.4 Rollover Reserve.
7.4.1 Deposits to Rollover Reserve Fund. Concurrently with its execution hereof,
Borrower shall pay to Lender the sum of $500,000.00 which amount shall be deposited with and held
by Lender for tenant improvement and leasing commission obligations incurred following the date
hereof. In addition, Borrower shall pay to Lender for deposit with Lender all funds received by
Borrower in connection with any cancellation, termination or surrender of any Lease, including, but
not limited to, any surrender or cancellation fees, buy-out fees, or reimbursements for tenant
improvements and leasing commissions. All such amounts so deposited shall hereinafter be referred
to as the “Rollover Reserve Fund”. If the amount of cash in the Rollover Reserve Fund drops below
$500,000.00 (the “Rollover Fund Cap”), then Borrower shall commence and continue, on each Payment
Date, making monthly deposits to the Rollover Reserve Fund in the amount of $25,000.00 until the
balance of the Rollover Reserve Fund equals or exceeds the Rollover Fund Cap.
7.4.2 Withdrawal of Rollover Reserve Funds. Lender shall make disbursements from the
Rollover Reserve Fund for tenant improvement and leasing commission obligations incurred by
Borrower. All such expenses shall be approved by Lender in its reasonable sole discretion,
provided, however, that no approval shall be required for expenses incurred in connection with any
Leases that are approved (or deemed to have been approved) by Lender or in connection with Leases
for which Lender’s approval is not required. Lender shall make disbursements as requested by
Borrower on a monthly basis in increments of no less than $5,000.00 upon delivery by Borrower of
Lender’s standard form of draw request accompanied by copies of invoices for the amounts requested
and, if required by Lender for requests in excess of $25,000.00 for a single item, lien waivers and
releases from all parties furnishing materials and/or services in connection with the requested
payment. Lender may require an inspection of the Property at Borrower’s expense prior to making a
monthly disbursement in order to verify completion of improvements in excess of $25,000.00 for
which reimbursement is sought.
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Section 7.5 Reserve Funds, Generally.
(a) 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. 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. The Reserve Funds shall not constitute trust funds and may be
commingled with other monies held by Lender. Upon the payment in full of the Loan and the
satisfaction of all obligations under the Loan Documents, all amounts in all Reserve Funds shall be
refunded to Borrower.
(b) Borrower shall not, without obtaining the prior 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.
(c) The Required Repair Funds, the Replacement Reserve Fund, the Rollover Reserve Fund and the
2009 Rollover Reserve Fund shall bear interest at the thirty (30) day money market rate offered by
the bank used by Lender for escrow deposits, and shall be held and released by Lender, and used by
Borrower, in accordance with the terms and conditions of this Agreement. Lender shall be entitled
to a servicing fee in the amount of .50% per annum multiplied by the average daily balance on
deposit, and Lender is hereby authorized to deduct such servicing fee from the Reserve Funds on
deposit on a monthly basis. All interest or other income in connection with the deposit or
placement of such funds, less the servicing fee, shall be reported under Borrower’s tax
identification number, and shall only be disbursed as set forth in this Agreement.
(d) 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 Reserve Funds or the performance of the obligations for which the Reserve Funds
were established (collectively, “Losses”), excluding Losses resulting from Lender’s gross
negligence or willful misconduct. Borrower shall assign to Lender all rights and claims Borrower
may have against all Persons supplying labor, materials or other services which are to be paid from
or secured by the Reserve Funds; provided, however, that Lender may not pursue any
such right or claim unless an Event of Default has occurred and remains uncured.
(e) In lieu of depositing the required amount(s) into the Required Repair Funds, the
Replacement Reserve Fund, the Rollover Reserve Fund and the 2009 Rollover Reserve Fund, Borrower
may cause to be delivered to Lender a Letter of Credit in the stated amount of the total required
to be deposited into the applicable Reserve Funds.
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Section 7.6 2009 Rollover Fund.
7.6.1 Deposits to 2009 Rollover Reserve Fund. Concurrently with its execution hereof,
Borrower shall pay to Lender the sum of $500,000.00 which amount shall be deposited with and held
by Lender for tenant improvement and leasing commission obligations incurred by Borrower in
connection with the 2009 Leases (the “Initial 2009 Rollover Reserve Funds”). In addition, on the
first day of each calendar month after the occurrence of a Trigger Event (as defined in the Cash
Management Agreement), Borrower shall deposit with Lender the Cash Flow Escrow Funds (as defined in
the Cash Management Agreement). The Initial 2009 Rollover Funds and Cash Flow Escrow Funds so
deposited shall be collectively referred to as the “2009 Rollover Reserve Funds”. If not disbursed
pursuant to Section 7.6.2 below prior to the satisfaction of the conditions set forth in
Section 3.3(e) of the Cash Management Agreement, Lender shall return the Cash Flow Escrow
Funds to Borrower upon satisfaction of the conditions set forth in Section 3.3(e) of the
Cash Management Agreement. The amount of the Cash Flow Escrow Funds on deposit with Lender in the
2009 Rollover Reserve Fund are not required to exceed $1,500,000.00 (the “Cash Flow Escrow Cap”),
provided, however, the Initial 2009 Rollover Reserve Funds shall not apply for
purposes of the Cash Flow Escrow Cap. When the amount of the Cash Flow Escrow Funds on deposit
with Lender in the 2009 Rollover Reserve Fund equals or exceeds the Cash Flow Escrow Cap, Borrower
may cease making monthly deposits to the Cash Flow Escrow Funds.
7.6.2 Withdrawal of 2009 Rollover Reserve Funds. Lender shall make disbursements from
the 2009 Rollover Reserve Funds for the 2009 Leases. All such expenses shall be approved by Lender
in its reasonable sole discretion, provided, however, that no approval shall be required for
expenses incurred in connection with any Leases that are approved (or deemed to have been approved)
by Lender or in connection with Leases for which Lender’s approval is not required. Lender shall
make disbursements as requested by Borrower on a monthly basis in increments of no less than
$5,000.00 upon delivery by Borrower of Lender’s standard form of draw request accompanied by copies
of invoices for the amounts requested and, if required by Lender for requests in excess of
$25,000.00 for a single item, lien waivers and releases from all parties furnishing materials
and/or services in connection with the requested payment. Lender may require an inspection of the
Property at Borrower’s expense prior to making a monthly disbursement in order to verify completion
of improvements in excess of $25,000.00 for which reimbursement is sought.
7.6.3 Releases of 2009 Rollover Reserve Funds. Any funds remaining in the 2009
Rollover Reserve Fund after all of the 2009 Leases have been extended or replaced by Leases that
comply with Section 5.1.20 hereof shall be refunded to Borrower so long as no Default has
occurred, upon the written request of Borrower.
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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 other than the payment due on the Maturity Date
is not paid within five (5) days after the date on which it is due or if payment due
on the Maturity Date is not made when due;
(ii) if any of the Taxes or Other Charges are not paid within five (5) days
after notice from Lender that the same are due and payable;
(iii) if the Policies are not kept in full force and effect, or if certified
copies of the Policies are not delivered to Lender upon request;
(iv) if Borrower Transfers or otherwise encumbers any portion of the Property
without Lender’s prior consent in violation of the provisions of this Agreement or
Article 6 of the Security Instrument;
(v) if any 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 Principal shall make an assignment for the benefit of
creditors;
(vii) if a receiver, liquidator or trustee shall be appointed for Borrower or
Principal, or if Borrower or Principal 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 Principal, or if any proceeding for
the dissolution or liquidation of Borrower or Principal shall be instituted;
provided, however, if such appointment, adjudication, petition or
proceeding was involuntary and not consented to by Borrower or Principal, upon the
same not being discharged, stayed or dismissed within ninety (90) days;
(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 , or
breaches any covenant contained in Section 5.1.11 hereof which is not cured
within fifteen (15) days after receiving written notice from Lender of such breach;
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(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 the Insolvency Opinion delivered to
Lender in connection with the Loan, or in the Additional Insolvency Opinion
delivered subsequent to the closing of the Loan, is or shall become untrue in any
material respect;
(xii) if (A) a material default has occurred and continues beyond any
applicable cure period under the Management Agreement, (or any Replacement
Management Agreement) and (B) if such default permits the Manager thereunder to
terminate or cancel the Management Agreement (or any Replacement Management
Agreement);
(xiii) if Borrower fails to comply with the covenants as to Prescribed Laws set
forth in Section 5.1.1 hereof;
(xiv) 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 (xiii)
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 thirty (30) day period and provided further that
Borrower shall have commenced to cure such default within such thirty (30) day
period and thereafter diligently and expeditiously proceeds to cure the same, 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 default, such additional
period not to exceed ninety (90) days;
(xv) if Borrower shall fail to observe or perform any term, covenant, condition
or agreement in the Ground Lease beyond any cure period contained therein, or if the
Ground Lease shall be cancelled or terminated for any reason; or
(xvi) 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.
(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, 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, Lender may take such action, without notice or demand, that
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Lender deems advisable to protect and enforce its rights against Borrower and in and to 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 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, singularly,
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 Security Instrument has been fully foreclosed, sold and/or
otherwise realized upon in satisfaction of the Debt or the Debt has been paid in full.
(b) Lender shall have the right from time to time to partially foreclose the Security
Instrument in any manner and for any amounts secured by the Security Instrument 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
Security Instrument 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
Security Instrument to recover so much of the principal balance of the Loan as Lender may
accelerate and such other sums secured by the Security Instrument as Lender may elect.
Notwithstanding one or more partial foreclosures, the Property shall remain subject to the Security
Instrument to secure payment of sums secured by the Security Instrument and not previously
recovered.
(c) Lender shall have the right from time to time to sever the Note and the other Loan
Documents into one or more separate notes, mortgages and other security documents (the “Severed
Loan Documents”) in such denominations as Lender shall determine in its sole discretion for
purposes of evidencing and enforcing its rights and remedies provided hereunder. Borrower shall
execute and deliver to Lender from time to time, promptly after the request of
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Lender, a severance agreement and such other documents as Lender shall request in order to
effect the severance described in the preceding sentence, all in form and substance reasonably
satisfactory to Lender. Borrower hereby absolutely and irrevocably appoints Lender as its true and
lawful attorney, coupled with an interest, in its name and stead to make and execute all documents
necessary or desirable to effect the aforesaid severance, Borrower ratifying all that its said
attorney shall do by virtue thereof; provided, however, Lender shall not make or
execute any such documents under such power until three (3) days after notice has been given to
Borrower by Lender of Lender’s intent to exercise its rights under such power. Except as may be
required in connection with a Securitization pursuant to Section 9.1 hereof, (i) Borrower
shall not be obligated to pay any costs or expenses incurred in connection with the preparation,
execution, recording or filing of the Severed Loan Documents, and (ii) the Severed Loan Documents
shall not contain any representations, warranties or covenants not contained in the Loan Documents
and any such representations and warranties contained in the Severed Loan Documents will be given
by Borrower only as of the Closing Date.
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
singularly, 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.
IX. SPECIAL PROVISIONS
Section 9.1 Sale of Notes and Securitization. Borrower acknowledges and agrees that
the Lender may sell all or any portion of the Loan and the Loan Documents, or issue one or more
participations therein, or consummate one or more private or public securitizations of rated
single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests
in all or any portion of the Loan and the Loan Documents or a pool of assets that include the Loan
and the Loan Documents (such sales, participations and/or securitizations, collectively, a
“Securitization”). At the request of Lender, and to the extent not already required to be provided
by Borrower under this Agreement, Borrower shall use reasonable efforts to provide information not
in the possession of Lender or which may be reasonably required by Lender in order to satisfy the
market standards to which Lender customarily adheres or which may be reasonably required by
prospective investors and/or the Rating Agencies in connection with any such Securitization
including, without limitation, to:
(a) provide additional and/or updated Provided Information, together with appropriate
verification and/or consents related to the Provided Information through letters of auditors or
opinions of counsel of independent attorneys reasonably acceptable to Lender and the Rating
Agencies;
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(b) assist in preparing descriptive materials for presentations to any or all of the Rating
Agencies, and work with, and if requested, supervise, third-party service providers engaged by
Borrower, the Principal and their respective affiliates to obtain, collect, and deliver information
requested or required by Lender or the Rating Agencies;
(c) deliver (i) updated opinions of counsel as to non-consolidation, due execution and
enforceability with respect to the Property, Borrower, the Principal and their respective
Affiliates and the Loan Documents, including, without limitation, a so-called “10b-5” opinion and
(ii) revised organizational documents for Borrower, which counsel opinions and organizational
documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(d) if required by any Rating Agency, use commercially reasonable efforts to deliver such
additional tenant estoppel letters, subordination agreements or other agreements from parties to
agreements that affect the Property, which estoppel letters, subordination agreements or other
agreements shall be reasonably satisfactory to Lender and the Rating Agencies;
(e) make such representations and warranties as of the closing date of the Securitization with
respect to the Property, Borrower, the Principal and the Loan Documents as may be reasonably
requested by Lender or the Rating Agencies and consistent with the facts covered by such
representations and warranties as they exist on the date thereof, including the representations and
warranties made in the Loan Documents;
(f) execute such amendments to the Loan Documents as may be reasonably requested by Lender or
the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to
replace the original note or modify the original note to reflect multiple components of the Loan
(and such new notes or modified note shall have the same weighted average coupon of the original
note [including amortization], but such new notes or modified note may be at an interest rate and
amortization which differ from the original note, provided that the aggregate of monthly payments
due under such notes shall equal the Monthly Debt Service Amount and shall be due on the dates due
under the original note) and reasonably modify the Cash Management Agreement with respect to the
newly created components, such that the pricing and marketability of the Securities and the size of
each class of Securities and the rating assigned to each such class by the Rating Agencies shall
provide the most favorable rating levels and achieve the optimum rating levels for the Loan;
(g) if requested by Lender, review any information regarding the Property, Borrower,
Principal, the Manager and the Loan which is contained in a preliminary or final private placement
memorandum, prospectus, prospectus supplement (including any amendment or supplement to either
thereof), or other disclosure document to be used by Lender or any affiliate thereof; and
(h) supply to Lender such documentation, financial statements and reports in form and
substance required in order to comply with any applicable securities laws.
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All third party costs of counsel, professionals and consultants retained by Borrower at
Borrower’s sole option in connection with Borrower’s complying with requests made under this
Section 9.1 shall be paid by Borrower.
Section 9.2 Securitization Indemnification. (a) Borrower understands that certain of
the Provided Information may be included in Disclosure Documents in connection with the
Securitization 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.
(b) The Indemnifying Persons agree to provide, in connection with the Securitization, an
indemnification agreement (i) certifying that (A) the Indemnifying Persons have carefully examined
the Disclosure Documents, including, without limitation, the sections entitled “Risk Factors,”
“Special Considerations,” “Description of the Security Instruments,” “Description of the Mortgage
Loans and Mortgaged Property,” “The Manager,” “The Borrower” and “Certain Legal Aspects of the
Mortgage Loan,” and (B) such sections and such other information in the Disclosure Documents (to
the extent such information relates to or includes any Provided Information or any information
regarding the Property, Borrower, Manager and/or the Loan) (collectively with the Provided
Information, the “Covered Disclosure Information”) do not contain any untrue statement of a
material fact (if such is the case) or, if such is the case, omit to state a material fact
necessary in order to make the statements made, in the light of the circumstances under which they
were made, not misleading, (ii) jointly and severally indemnifying Lender, JPM (whether or not it
is the Lender), any Affiliate of JPM that has filed any registration statement relating to the
Securitization or has acted as the sponsor or depositor in connection with the Securitization, any
Affiliate of JPM that acts as an underwriter, placement agent or initial purchaser of Securities
issued in the Securitization, any other co-underwriters, co-placement agents or co-initial
purchasers of Securities issued in the Securitization, and each of their respective officers,
directors, partners, employees, representatives, agents and Affiliates and each Person or entity
who controls any such Person within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages,
liabilities, costs or expenses (including, without limitation, legal fees and expenses for
enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified
Person may become subject insofar as the Liabilities arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the Covered Disclosure
Information or arise out of or are based upon the omission or alleged omission to state in the
Covered Disclosure Information a material fact required to be stated therein or necessary in order
to make the statements in the Covered Disclosure Information, in light of the circumstances under
which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for
any legal or other expenses incurred by such Indemnified Person, as they are incurred, in
connection with investigating or defending the Liabilities. This indemnity agreement will be in
addition to any liability which Borrower may otherwise have.
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Moreover, the indemnification provided for in clauses (ii) and (iii) above shall be effective
whether or not an indemnification agreement described in clause (i) above is provided.
(c) In connection with Exchange Act Filings, the Indemnifying Persons jointly and severally
agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person
may become subject insofar as the Liabilities arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact in the Provided Information or other Covered
Disclosure Information that Indemnifying Persons were provided the opportunity to review and did
not object to, or the omission or alleged omission to state in the Provided Information a material
fact required to be stated therein or necessary in order to make the statements in the Covered
Disclosure Information, in light of the circumstances under which they were made, not misleading
and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such
Indemnified Persons, as they are incurred, in connection with defending or investigating the
Liabilities.
(d) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement
of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against
any Indemnifying Person, notify such Indemnifying Person in writing of the claim or the
commencement of that action; provided, however, that the failure to notify such
Indemnifying Person shall not relieve it from any liability which it may have under the
indemnification provisions of this Section 9.2 except to the extent that it has been
materially prejudiced by such failure and, provided further that the failure to notify such
Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified
Person otherwise than under the provisions of this Section 9.2. If any such claim or
action shall be brought against an Indemnified Person, and it shall notify any Indemnifying Person
thereof, such Indemnifying Person shall be entitled to participate therein and, to the extent that
it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified
Person. After notice from any Indemnifying Person to the Indemnified Person of its election to
assume the defense of such claim or action, such Indemnifying Person shall not be liable to the
Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person
in connection with the defense thereof except as provided in the following sentence;
provided, however, if the defendants in any such action include both an
Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an
Indemnified Person shall have reasonably concluded that there are any legal defenses available to
it and/or other Indemnified Persons that are different or in addition to those available to the
Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in the defense of such action on
behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to
maintain reasonably detailed billing records for fees and disbursements for which such Indemnified
Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records
to substantiate that such counsel’s fees and disbursements are solely related to the defense of a
claim for which the Indemnifying Person is required hereunder to indemnify such Indemnified Person.
No Indemnifying Person shall be liable for the expenses of more than one (1) such separate counsel
unless such Indemnified Person shall have reasonably concluded that there may be legal defenses
available to it that are different from or additional to those available to another Indemnified
Person.
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(e) Without the prior consent of JPM (which consent shall not be unreasonably withheld), no
Indemnifying Person shall settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which indemnification may be
sought hereunder (whether or not any Indemnified Person is an actual or potential party to such
claim, action, suit or proceeding) unless the Indemnifying Person shall have given JPM reasonable
prior notice thereof and shall have obtained an unconditional release of each Indemnified Person
hereunder from all liability arising out of such claim, action, suit or proceedings. As long as an
Indemnifying Person has complied with its obligations to defend and indemnify hereunder, such
Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without
the consent of such Indemnifying Person (which consent shall not be unreasonably withheld).
(f) [INTENTIONALLY OMITTED.]
(g) The Indemnifying Persons agree that the indemnification, contribution and reimbursement
obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person
is a formal party to any lawsuits, claims or other proceedings. The Indemnifying Persons further
agree that the Indemnified Persons are intended third party beneficiaries under this Section
9.2.
(h) The liabilities and obligations of the Indemnified Persons and the Indemnifying Persons
under this Section 9.2 shall survive the termination of this Agreement and the satisfaction
and discharge of the Debt.
(i) Notwithstanding anything to the contrary contained herein, Borrower shall have no
obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to
the Securities issued in any Securitization.
Section 9.3 Intentionally Omitted.
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
in the Note, this Agreement, the Security Instrument 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 Security Instrument and the other Loan Documents, or in the Property, the Rents,
and/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 and in any other collateral given to Lender, and Lender, by accepting the
Note, this Agreement, the Security Instrument and the other Loan Documents, agrees that it shall
not xxx for, seek or demand any deficiency judgment against Borrower in any such action or
proceeding. The provisions of this Section shall not, however, (a) constitute a waiver, release or
impairment of any obligation evidenced or secured by any of the Loan Documents; (b) impair the
right of Lender to name Borrower as a party defendant in any action or suit for foreclosure and
sale under the Security Instrument; (c) affect the validity or enforceability of or any guaranty
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made in connection with the Loan or any of the rights and remedies of Lender thereunder; (d)
impair the right of Lender to obtain the appointment of a receiver; (e) impair the enforcement of
the Assignment of Leases; (f) constitute a prohibition against Lender to seek a deficiency judgment
against Borrower solely in order to fully realize the security granted by the Security Instrument
(and not to pursue or realize upon the personal liability of Borrower or to commence any other
appropriate action or proceeding in order for Lender to exercise its remedies against the Property;
or (g) constitute a waiver of the right of Lender to enforce the liability and obligation of
Borrower, by money judgment or otherwise, to the extent of any loss, damage, cost, expense,
liability, claim or other obligation incurred by Lender (including attorneys’ fees and costs
reasonably incurred) arising out of or in connection with the following:
(i) the misappropriation of Rents or application of Rents other than as allowed
pursuant to this Agreement;
(ii) the misappropriation of Insurance Proceeds or any Award or the application
of Insurance Proceeds or any Award other than as allowed by this Agreement;
(iii) Borrower’s failure to return or to reimburse Lender for all Personal
Property taken from the Property by or on behalf of Borrower and not replaced with
Personal Property of the same utility and of the same or greater value;
(iv) any act of active, intentional and material actual waste or arson of the
Property by Borrower, any principal, affiliate, general partner or member thereof;
(v) any fees or commissions paid by Borrower to any principal, affiliate,
general partner or member of Borrower in violation of the terms of this Agreement or
the other Loan Documents;
(vi) any breach of the Environmental Indemnity; or
(vii) any default of Borrower under the Ground Lease.
Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan
Documents, (A) 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 Security Instrument or to require that all
collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan
Documents, and (B) the Debt shall be fully recourse to Borrower and the limitations on the
liability of Borrower set forth above in this Section 9.4 shall be NULL and VOID in the
event: (1) of any fraud, willful misconduct or intentional material misrepresentation by Borrower,
its general partners, if any, its members, if any, its principals, its Affiliates, or its employees
in connection with the Loan, (2) of any breach or default under Section 5.2.10 or
Section 4.1.30 (a) of this Agreement or (3) the Property or any part thereof becomes an
asset in a voluntary bankruptcy or voluntary insolvency proceeding.
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Section 9.5 Matters Concerning Manager. If an Event of Default occurs and is
continuing, (c) the Manager shall become bankrupt or insolvent or (d) a material default occurs
under the Management Agreement beyond any applicable grace and cure periods, Borrower shall, at the
request of Lender, terminate the Management Agreement and replace the Manager with a manager
approved by Lender on terms and conditions satisfactory to Lender, it being understood and agreed
that the management fee for such replacement manager shall not exceed then prevailing market rates.
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.
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 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 permitted 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. Whenever this Agreement expressly provides that Lender may not withhold its consent or
its approval of an arrangement or term, such provisions shall also be deemed to prohibit Lender
from delaying or conditioning such consent or approval.
Section 10.3 Governing Law.
(A) THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, THE LOAN WAS MADE BY LENDER AND
ACCEPTED BY BORROWER IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THE LOAN DELIVERED PURSUANT
HERETO WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL
RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS,
INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS AND THE OBLIGATIONS ARISING
HEREUNDER AND THEREUNDER SHALL (EXCEPT AS PROVIDED BELOW) BE GOVERNED BY,
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AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD
DEFER TO THE SUBSTANTIVE LAWS OF ANY OTHER JURISDICTION) ) AND ANY APPLICABLE LAW OF THE UNITED
STATES OF AMERICA, EXCEPT (I) AS OTHERWISE EXPRESSLY PROVIDED IN ANY LOAN DOCUMENT, AND (II) THE
PROVISIONS FOR THE CREATION, PERFECTION, PRIORITY AND ENFORCEMENT OF THE LIENS AND SECURITY
INTERESTS CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND
CONSTRUED ACCORDING TO THE LAW OF THE STATE IN WHICH THE APPLICABLE DEBTOR IS ORGANIZED OR THE
APPLICABLE REAL PROPERTY OR FIXTURES ARE LOCATED, AS APPLICABLE, IT BEING UNDERSTOOD THAT, TO THE
FULLEST EXTENT PERMITTED BY THE LAW OF THE STATE OF SUCH ORGANIZATION OR PROPERTY LOCATION, THE LAW
OF THE STATE OF NEW YORK SHALL GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN
DOCUMENTS AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER, THIS GOVERNING LAW ELECTION
HAS BEEN MADE BY THE BORROWER AND LENDER IN RELIANCE (AT LEAST IN PART) ON SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, AS AMENDED (AS AND TO THE EXTENT APPLICABLE), AND
OTHER APPLICABLE LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND
IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS
AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS, AND THIS AGREEMENT, THE NOTE AND THE OTHER LOAN
DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS MAY AT LENDER’S OPTION BE INSTITUTED IN ANY FEDERAL
OR STATE COURT IN THX XXXX XX XXX XXXX, XXXXXX XX XXX XXXX, AND BORROWER WAIVES ANY OBJECTIONS
WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT,
ACTION OR PROCEEDING. THE PRECEDING CONSENTS TO JURISDICTION AND VENUE HAVE BEEN MADE BY THE
BORROWER AND LENDER IN RELIANCE (AT LEAST IN PART) ON SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK, AS AMENDED (AS AND TO THE EXTENT APPLICABLE), AND OTHER APPLICABLE LAW.
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR
PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:
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Xxxxxxx X. Xxxx
Xxxxxxxx Xxxxxxx LLP
The Chrysler Building
400 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxxx Xxxxxxx LLP
The Chrysler Building
400 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS
WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW
YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND NOTICE OF
SAID SERVICE MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY
RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE
STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS
AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE
AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE
SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS
DISSOLVED WITHOUT LEAVING A SUCCESSOR.
Section 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 contained or approved 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
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effective for all purposes if hand 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, addressed as
follows (or at such other address and Person as shall be designated from time to time by any party
hereto, as the case may be, in a notice to the other parties hereto in the manner provided for in
this Section 10.6):
If to Lender:
|
JPMorgan Chase Bank, N.A. | |
c/o Centerline Servicing, Inc. | ||
5200 Xxxxx X’Xxxxxx Xxxx. | ||
Xxxxx 000 | ||
Xxxxxx, Xxxxx 00000 | ||
Attention: Xxxxxx Xxxx | ||
Senior Vice President, Asset Management | ||
With a copy to:
|
Xxxxxx & Xxxxxxxx, PLLC | |
400 Xxxx Xxxxxx Xxxxxx | ||
Xxxxx 0000 | ||
Xxxxxxxxxx, Xxxxxxxx 00000 | ||
Attention: Xxxxx X. Xxxxx, Esq. | ||
If to Borrower:
|
Cousins Properties, Incorporated | |
190 Xxxxxxxxx Xxxxxx, XX, Xxxxx 0000 | ||
Xxxxxxx, Xxxxxxx 00000 | ||
Attention: Corporate Secretary | ||
with a copy to:
|
Xxxxxxxx Xxxxxxx LLP | |
600 Xxxxxxxxx Xxxxxx, XX, Xxxxx 0000 | ||
Xxxxxxx, Xxxxxxx 00000 | ||
Attention: Xxxxx X. Xxxxxxx, 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. Items received after the close of normal business
hours or on any non Business Day shall be deemed to have been delivered on the next succeeding
Business Day. Refusal to accept delivery of any item shall be deemed to be receipt of such item by
the refusing party.
Section 10.7 Trial by Jury.
BORROWER AND LENDER EACH HEREBY AGREES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, 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
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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.
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.
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. 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 hereby expressly waives, and 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.
Section 10.12 Remedies of Borrower. [Intentionally Omitted.]
Section 10.13 Expenses; Indemnity.
(a) Borrower covenants and agrees to pay or, if Borrower fails to pay, to reimburse, Lender
upon receipt of notice from Lender for all reasonable costs and expenses (including reasonable
attorneys’ fees and disbursements) actually 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
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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 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 where so specified in this Agreement or the other Loan Documents; (iv)
the negotiation, preparation, execution, delivery and administration of any consents, amendments,
waivers or other modifications to this Agreement and the other Loan Documents and any other
documents or matters requested by Lender; (v) securing Borrower’s compliance with any reasonable
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, either in response to third party claims or in prosecuting or defending 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.
Any cost and expenses due and payable to Lender may be paid from any amounts in the Clearing
Account, after Borrower’s failure to pay Lender within ten (10) days following written demand
delivered to Borrower together with satisfactory evidence of Lender’s expenditures.
(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, or
(ii) the use or intended use of the proceeds of the Loan (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.
(c) Borrower covenants and agrees, if Borrower has made a request that requires the review of
a Rating Agency, to pay for or, if Borrower fails to pay, to reimburse Lender for, any fees and
expenses incurred by any Rating Agency in connection with any Rating Agency review of the Loan, the
Loan Documents or any transaction contemplated thereby or any
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consent, approval, waiver or confirmation obtained from such Rating Agency pursuant to the
terms and conditions of this Agreement or any other Loan Document a and the Lender shall be
entitled to require payment of such fees and expenses as a condition precedent to the obtaining of
any such consent, approval, waiver or confirmation.
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. [Intentionally Omitted.]
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, JPM, or any of their
Affiliates shall be subject to the prior approval of Lender and (other than in connection with the
securitization of the Loan) of Borrower if reference is made to the Property, Borrower, Principal
or any of their respective Affiliates, in each case except for such filings with Governmental
Authorities as may be required by applicable Legal Requirements.
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
and agrees not to assert any right under any laws pertaining to the marshalling of assets,
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
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of the right of Lender to the payment of the Debt out of the net proceeds of the Property in
preference to every other claimant whatsoever.
Section 10.19 Waiver of Counterclaim. [Intentionally Omitted.]
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 Eastdil Secured and
representatives of Lender. 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 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 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 among or between such parties, whether oral or
written, including, without limitation, the Summary of Indicative Terms and Conditions dated July
31, 2007 (as amended) between Borrower and Lender are superseded by the terms of this Agreement and
the other Loan Documents.
Section 10.23 Mezzanine Loan.
(a) Notwithstanding anything herein to the contrary, subject to satisfaction of the Mezzanine
Loan Criteria (hereinafter defined), the Borrower shall have the one (1) time right to pledge all
or a portion of the membership interests in Borrower (the “Mezzanine Borrower”) to secure a
mezzanine loan (the “Mezzanine Loan”). “Mezzanine Loan Criteria” shall mean:
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(i) Lender shall have reasonably approved (A) the terms of the Mezzanine Loan
(including, without limitation, the maturity date of the Mezzanine Loan, which shall
be coterminous with the Maturity Date) and (B) the documents and instruments in
connection with the Mezzanine Loan (the “Mezzanine Loan Documents”);
(ii) The lender providing the Mezzanine Loan (the “Mezzanine Lender”) must be
approved by Lender, such approval not to be unreasonably conditioned, delayed or
denied;
(iii) The Mezzanine Lender and Lender shall have entered into an intercreditor
agreement, in form and substance satisfactory to Lender in its reasonable
discretion;
(iv) The aggregate Debt Service Coverage Ratio (including the Loan and the
Mezzanine Loan) shall be no less than 1.15:1;
(v) The aggregate Loan To Value Ratio (including the Loan and Mezzanine Loan),
as established by Appraisal conducted after Borrower requests Lender’s approval of
the Mezzanine Loan (at Borrower’s expense), is no greater than eighty-five percent
(85%);
(vi) No Event of Default, nor any event which with notice or the passage of
time or both would constitute an Event of Default, shall have occurred and be then
continuing under any of the Loan Documents;
(vii) Lender shall have received (aa) evidence satisfactory to Lender that the
Mezzanine Loan shall have no adverse effect on the bankruptcy remote status of
Borrower under the requirements of any Rating Agency for the Securities and (bb) a
legal opinion regarding substantive consolidation issues;
(viii) Delivery to Lender of all items reasonably required by Lender in
connection with Lender’s evaluation of approval of the Mezzanine Loan, all of which
must be reasonably acceptable in form and substance to Lender, including, without
limitation, current rent rolls, operating statements and financial statements;
(ix) Lender shall have determined that there has been no material adverse
change in the condition, financial, physical or otherwise, of the Property or
Borrower since the date hereof;
(x) Payment by Borrower of all reasonable costs and expenses, including legal
fees incurred by Lender in connection with the Mezzanine Loan. Borrower shall pay a
deposit of $15,000 (the “Expense Deposit”) toward such costs and expenses at the
time Borrower requests Lender’s approval of the Mezzanine Loan. If Lender
determines that the conditions set forth herein have not been satisfied, the deposit
less Lender’s actual costs and expenses shall be
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returned to Borrower. If the actual costs and expenses are greater than the
Expense Deposit, Borrower shall pay the difference to Lender; and
(xi) Each Rating Agency shall have delivered written confirmation that any
rating issued by such Rating Agency in connection with the securitization of any
Securities will not, as a result of the proposed Mezzanine Loan, be downgraded from
the then current ratings thereof, qualified or withdrawn.
Section 10.24 Loan Assumption. The parties hereto agree and acknowledge that (i) the
Loan will initially be made by Lender to Cousins Properties Incorporated (for purposes of this
Section 10.24 only, “Old Borrower”) and (ii) on the Closing Date, immediately after funding
of the Loan, the Loan will be assumed by 250 Xxxxxxxx Xxxxxx XLC, a Georgia limited liability
company (the “New Borrower”) pursuant to a Loan Assignment Assumption and Release Agreement of even
date herewith (the “Assumption Agreement”) by and among Old Borrower, New Borrower and Lender.
Therefore, notwithstanding anything to the contrary set forth herein, (i) the indemnities set forth
in the Loan Documents and the representations and warranties set forth in Article IV
hereof and in any other Loan Document shall be made by and apply only to New Borrower, (ii) any
non-compliance by Old Borrower with respect to any representation, warranty or covenant set forth
herein or in any other Loan Document shall not be a default or Event of Default hereunder and (iii)
any default or Event of Default under this Agreement or under any other Loan Document that exists
solely as a result of Old Borrower acting as Borrower under the Loan is and shall be waived and
deemed fully cured immediately upon the execution and delivery to Lender of the Assumption
Agreement.
[NO FURTHER TEXT ON THIS PAGE]
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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.
COUSINS PROPERTIES INCORPORATED, a Georgia corporation |
||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Executive Vice President | |||
JPMORGAN CHASE BANK, N.A., a banking association chartered under the laws of the United States of America |
||||
By: | /s/ Xxxx Xxxxx Xxxxxxxxxx | |||
Name: | Xxxx Xxxxx Xxxxxxxxxx | |||
Title: | Vice President | |||
Loan Agreement
85
SCHEDULE I
(Rent Roll)
SCH. I-1
SCHEDULE II
(Required Repairs Deadlines For Completion)
Required Repair | Deadline for Completion | Amount Reserved | ||
Repair cracks in
parking Garage as
noted in the
Physical Conditions
Report.
|
Ninety (90) days after the Closing Date | $6,250.00 |
SCH. II-1
SCHEDULE III
(Organizational Structure)
SCH. III-1