Collateral is or includes Fixtures
TRUST MORTGAGE
FROM
AGREE FACILITY NO. I, L.L.C.
As grantor
TO
MANUFACTURERS AND TRADERS TRUST COMPANY
as trustee
Dated as of June 28, 1999
Prepared by and Mail to:
Rodney J. Dillman, Esq.
Day, Berry & Howard LLP
CityPlace I
Hartford, CT 06103-3499
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT.......................................................1
GRANTING CLAUSES............................................................1
Granting Clause First.......................................................2
Granting Clause Second......................................................2
Granting Clause Third.......................................................3
ARTICLE 1 - Definitions.....................................................3
"Assignment".......................................................4
"Base Rent"........................................................4
"Business Day".....................................................4
"Chesterfield Lease"...............................................4
"Collection Account" ..............................................4
"Condemnation Gap Policy"..........................................4
"Corporate Trust Office"...........................................4
"default"..........................................................4
"Determination Date"...............................................4
"Environmental Report".............................................4
"Environmental Laws" ..............................................4
"Environmental Policy".............................................5
"Event of Default".................................................5
"ERISA" ..........................................................5
"Grand Blanc Lease"................................................5
"Grant" ..........................................................5
"Hazardous Substance"..............................................5
"Improvements".....................................................5
"Indenture"........................................................5
"Installment Payment(s)"...........................................5
"Installment Payment Dates"........................................6
"Institutional Investor"...........................................6
"Land Parcel" and Land Parcels"....................................6
"Leases" ..........................................................6
"Lessee" ..........................................................6
"Lien of this Indenture"...........................................6
"Majority Registered Owners".......................................6
"Make-Whole Premium"...............................................6
"Note Agreement"...................................................7
"Note Purchaser"...................................................7
"Notes" ..........................................................7
"outstanding"......................................................7
"Outstanding Principal Amount".....................................7
"Overdue Rate".....................................................7
"Owner" ..........................................................7
"Parking Reserve Amount"...........................................8
"Performance Bond".................................................8
"Permitted Encumbrances"...........................................8
"Permitted Investments"............................................8
"Person" ..........................................................9
"Pontiac Lease"....................................................9
"Property".........................................................9
"Radius Agreement".................................................9
"Register".........................................................9
"Registered Owner".................................................9
"Reinvestment Yield"...............................................9
"Reserve Account".................................................10
"Structural Reserve Amount".......................................10
"Subordination Agreement".........................................10
"Trust Estate"....................................................10
"Trustee".........................................................10
"Waterford Lease".................................................10
ARTICLE 2 - The Notes......................................................10
2.1 The Notes................................................10
2.2 Execution of Notes.......................................11
2.3 Home Office Payment......................................12
2.4 Register.................................................12
2.5 Registered Owners........................................13
2.6 Certificate of Authentication............................13
2.7 Transfer and Exchange of Notes...........................13
2.8 New Notes................................................14
2.9 Trustee as Agent.........................................15
ARTICLE 3 - Particular Covenants...........................................15
3.1 Title to the Property....................................15
3.2 Further Assurances.......................................15
3.3 Recording................................................15
3.4 Payment of the Notes.....................................16
3.5 The Leases; the Assignment; Documents
of Record Affecting the Property.........................16
3.6 Existence; Compliance with Laws..........................17
3.7 After-acquired Property..................................17
3.8 Taxes....................................................18
3.9 Insurance................................................19
3.10 Advances by the Trustee..................................21
3.11 Negative Covenants.......................................22
3.12 Base Rent................................................22
3.13 Books and Records; Financial Statements;
Notice of Default........................................23
3.14 Maintenance and Repair...................................23
3.15 Trustee Fees.............................................23
3.16 Environmental Condition..................................24
3.17 Conduct as Separate Entity...............................27
ARTICLE 4 - Possession, Use and Release of the Property....................27
4.1 Lease Termination........................................27
4.2 Condemnation.............................................28
4.3 Transfer of Owner's Interest in the Property.............28
ARTICLE 5 - Application of Moneys..........................................29
5.1 Moneys Under the Leases..................................29
5.2 Reserves.................................................30
ARTICLE 6 - Prepayment of Notes............................................32
6.1 Generally................................................32
6.2 Notice of Prepayment; Deposit of Money...................32
6.3 Optional Prepayment......................................33
ARTICLE 7 - Events of Default and Remedies.................................33
7.1 Events of Default........................................33
7.2 Sale of Property; Application of Proceeds................39
7.3 Purchase by Trustee......................................40
7.4 Receivers................................................40
7.5 Remedies Cumulative......................................40
7.6 Cross- Default and Cross-Collateralization of Notes......41
7.7 Waiver of Rights.........................................41
7.8 Waiver of Remedies.......................................41
7.9 Suits by Trustee.........................................41
7.10 Direction of Remedies....................................42
7.11 Suits by Registered Owners...............................42
7.12 Expenses and Services After an Event of Default..........42
ARTICLE 8 - The Trustee....................................................42
8.1 Right and Obligations of Trustee.........................42
8.2 Annual Certificate and Statement of Accounts.............48
8.3 Resignation and Removal of Trustee.......................48
8.4 Successor Trustee........................................48
8.5 Liability of Trustee.....................................49
8.6 Segregation of Moneys....................................49
8.7 Illegal Acts.............................................49
8.8 Communications to be Sent to Registered
Owners and to Owner......................................49
ARTICLE 9 - Supplements....................................................51
9.1 Supplements Without Consent..............................51
9.2 Supplements with Consent.................................51
9.3 Delivery of Supplements..................................52
ARTICLE 10 - Miscellaneous.................................................52
10.1 Immunity from Liability..................................52
10.2 Unclaimed Funds..........................................54
10.3 Security Agreement and Financing Statement...............54
10.4 Modifications; Waiver; Notices...........................56
10.5 Illegal Provision........................................57
10.6 Maximum Interest Payable.................................57
10.7 Satisfaction.............................................57
10.8 Binding Effect...........................................58
10.9 Counterparts.............................................58
10.10 Table of Contents; Headings..............................58
10.11 Governing Law. .........................................58
10.12 Estoppels................................................58
10.13 Attorneys'Fees...........................................58
ARTICLE 10 - Michigan Law Provisions.......................................59
11.1 Inconsistencies..........................................59
11.2 Additional Remedies......................................59
11.3 Waste....................................................59
11.4 Sale.....................................................59
11.5 Michigan Law.............................................59
11.6 Waiver...................................................60
11.7 Future Advances..........................................61
11.8 Judicial Foreclosure.....................................61
11.9 Trust Mortgage...........................................61
THIS TRUST MORTGAGE, dated as of June 28th, 1999 (herein called this
"Indenture"), between AGREE FACILITY NO. I, L.L.C., a Delaware limited
liability company ("Owner"), having an address at 31850 Northwestern Highway,
Farmington Hills, Michigan 48334, and MANUFACTURERS AND TRADERS TRUST
COMPANY, a New York banking corporation, as trustee (herein, together with
its successors as such trustee, called the "Trustee"), having an address at
One M&T Plaza, 7th Floor, Buffalo, New York 14203-2399, for the benefit of
the Registered Owners of Notes.
PRELIMINARY STATEMENT
The defined terms used herein but not otherwise defined have the
meanings set forth in Article 1.
Owner has a fee simple estate in four parcels of land (each a "Land
Parcel and collectively, the "Land Parcels") and fee title to the
Improvements located thereon. The Land Parcels are more fully described in
Schedule A-1 through Schedule A-4 hereto.
Owner is issuing its 6.63% Senior Secured Notes due February 5, 2017
in the original aggregate principal amount of $12,390,135.34 to the Note
Purchaser for the purpose of providing permanent mortgage financing for the
Property and paying related transaction expenses.
Owner is duly authorized to issue the Notes and Owner and the
Trustee are duly authorized to execute and deliver this Indenture, and all
actions required by law and all actions of Owner and the Trustee required
therefor have been duly taken.
GRANTING CLAUSES
NOW, THEREFORE, THIS INDENTURE WITNESSETH: in consideration of the
premises, the acceptance by the Trustee of the trusts created hereby, the
purchase and acceptance of Notes by the Registered Owners thereof, and in
order to secure the payment of the principal and interest and any premium and
other sums payable on the Notes and in all instances under this Indenture and
to secure the performance of the covenants and agreements contained in the
Notes and in this Indenture, Owner has executed and delivered this Indenture.
To secure payment of the Notes, Owner has created a security
interest in, granted, conveyed, mortgaged, warranted, assigned, bargained,
sold, pledged, given, transferred and set over, with power of sale and by
these presents does hereby create a security interest in, grant, convey,
mortgage, warrant, assign, bargain, sell, pledge, give, transfer and set over
unto the Trustee and to its successors and assigns forever all of Owner's
right, title and interest in, to and under all of the property described in
the following Granting Clauses, subject only to Permitted Encumbrances.
Granting Clause First
The entire right, title and interest of Owner in and to (a) the Land
Parcels and the Improvements, (b) all and singular the tenements,
hereditaments, easements, rights of way, rights, privileges and appurtenances
in and to the Property, belonging or in any way appertaining thereto,
including, without limitation, any streets, ways, alleys, vaults, gores or
strips of land adjoining each Land Parcel, together with all agreements and
other rights and benefits now or hereafter belonging or pertaining to the
Property, (c) all claims or demands of Owner in law or in equity, in
possession or expectancy of, in and to the Property and (d) subject to the
provisions of Granting Clause Second, all rents, income, revenues, issues,
awards, proceeds and profits from and in respect of the property described in
this Granting Clause First, it being the intention of the parties hereto
that, so far as may be permitted by law, all property of the character
hereinabove described which is now owned or held or is hereafter acquired by
Owner and affixed, attached and annexed to the Property shall be and remain
or become and constitute a portion of the Trust Estate and the security
covered by and subject to the Lien of this Indenture.
Granting Clause Second
The Leases, including the right to all renewal terms and all
extensions and renewals of the terms of the Leases, together with all the
rights, and the entire title and interest of Owner as lessor under the Leases
including, without limitation, the present and continuing right to make claim
for, collect, receive and receipt for any and all of the rents, income,
revenues, issues, awards, proceeds and profits and other sums of money
payable to or receivable by the lessor under the Leases, whether payable as
rent or otherwise, including, without limitation, sums of money receivable
thereunder by virtue of a release of existing easements or other rights in
the nature of easements, the present and continuing right to bring actions
and proceedings under the Leases or for the enforcement thereof and the
present and continuing right to do anything which Owner or any lessor is or
may become entitled to do under the Leases, provided that the assignment made
by this Granting Clause Second shall be subject to the provisions of the
Assignment and this Indenture and shall not impair or diminish any obligation
of Owner as lessor under the Leases nor shall any such obligation be imposed
upon the Trustee or the Registered Owners of the Notes.
Granting Clause Third
Subject to any mandatory provisions of the Leases, any and all
moneys and other property which may from time to time become subject to the
Lien of this Indenture or which may come into the possession or be subject to
the control of the Trustee pursuant to this Indenture, the Assignment or any
other instrument included in the Trust Estate, including, without limitation,
any funds held pursuant to Article 5, insurance proceeds (other than Owner's
title insurance) and all awards which may at any time be made to Owner for
the taking by eminent domain of the whole or any part of Owner's interest in
the Property or any easement therein and other property, if any, delivered to
the Trustee by or on behalf of Owner, it being the intention of Owner and it
being hereby agreed that all property hereafter acquired by Owner and
required to be subjected to the Lien of this Indenture or intended so to be
shall forthwith upon the acquisition thereof by Owner be subject to the Lien
of this Indenture as if such property were now owned by Owner and were
specifically described in this Indenture and Granted hereby or pursuant
hereto.
TO HAVE AND TO HOLD all and singular the Trust Estate, whether now
owned or held or hereafter acquired, unto the Trustee and its successors and
assigns, upon the terms and conditions herein set forth for the equal and
ratable benefit and security of the Notes and for the enforcement of the
payment of the principal, premium and interest on the Notes in accordance
with their terms, and all other sums payable hereunder or under the Notes and
the performance and observance of the provisions of the Notes and this
Indenture, all as herein set forth.
PROVIDED, HOWEVER, that if Owner shall pay, perform and discharge
its obligations hereunder in full, then this Indenture and the estate hereby
granted shall cease, terminate and become void.
IT IS HEREBY COVENANTED, DECLARED AND AGREED that the Notes are to
be issued under and secured by this Indenture and that the Trust Estate is to
be held by the Trustee upon and subject to the provisions of this Indenture.
ARTICLE 1
Definitions
Unless the context otherwise specifies or requires, the following
terms have the meanings specified below:
"Assignment" means the Assignment of Leases and Rents, relating to
the Leases, dated as of the date hereof, from Owner, as assignor, to the
Trustee as assignee, and consented to therein by Lessee, as amended or
supplemented from time to time as permitted hereby or thereby.
"Base Rent" means the minimum fixed annual rent payable pursuant to
each Lease.
"Business Day" means a day of the year on which banks are not
required or authorized to close in the State of New York.
"Chesterfield Lease" means the Lease, relating to the Land Parcel
described in Schedule A-1 hereof and the Improvements thereon, dated July 30,
1997, between Owner, as lessor and Lessee, as amended or supplemented from
time to time as permitted hereby or thereby, together with any short form
thereof for purposes of recording.
"Collection Account" means the account established by the Trustee
pursuant to Section 5.1
"Condemnation Gap Policy" has the meaning specified in Section
3.9(a)(v) herein.
"Corporate Trust Office" means the office of the Trustee at which
its corporate trust business is administered, which at the date hereof is
located at One M&T Plaza, 7th Floor, Buffalo, New York 14203-2399.
"default" means any act or occurrence which, with notice, lapse of
time or both, would constitute an Event of Default.
"Determination Date" means the day occurring 3 Business Days prior
to a day on which all or a portion of the Notes are to be prepaid pursuant to
Article 6.
"Environmental Report" means the phase I environmental site
assessment by Clayton Environmental Consultants, relating to the presence and
condition of any hazardous substances on the Property delivered pursuant to
the Note Agreement.
"Environmental Laws" shall mean and include, without limitation, the
Resource Conservation and Recovery Act, as amended by the Hazardous and Solid
Waste Amendments of 1984, the Comprehensive Environmental Response,
Compensation and Liability Act, as amended by the Superfund Amendments and
Reauthorization Act of 1986, the Hazardous Materials Transportation Act, the
Toxic Substances Control Act, the Clean Air Act, the Federal Insecticide,
Fungicide and Rodenticide Act, the Clean Water Act, Michigan Compiled Laws
324.2130 et seq. and 324.20101 et seq. and all other applicable federal,
state and local environmental and common laws, ordinances, rules and
regulations, as any of the foregoing may have been or may be from time to
time be amended, supplemented or supplanted, and any other federal, state or
local laws, ordinances, rules and regulations, now or hereafter existing
relating to regulation or control of toxic or hazardous substances or
materials.
"Environmental Policy" has the meaning specified in Section
3.9(a)(vi) herein.
"Event of Default" means any act or occurrence of the character
specified in Section 7.1(a) through 7.1(k).
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, and the regulations adopted pursuant thereto.
"Grand Blanc Lease" means the Lease, relating to the Land Parcel
described in Schedule A-2 hereof and the Improvements thereon, dated February
12, 1998, between Owner, as lessor and Lessee, as amended or supplemented
from time to time as permitted hereby or thereby, together with any short
form thereof for purposes of recording.
"Grant" means mortgage, grant, convey, assign, create a security
interest in, bargain, sell, pledge, give, transfer, warrant and set over.
"Hazardous Substance" means each and all substances or materials
regulated pursuant to any Environmental Laws, including, but not limited to,
asbestos, asbestos-containing materials, urea formaldehyde foam insulation,
and any other substance, emission or material now or hereafter defined as or
deemed to be a regulated substance, hazard substance, toxic substance,
pesticide, hazardous waste or any similar or like classification or
categorization thereunder, including, without limitation, petroleum and
petroleum products and radioactive materials.
"Improvements" means all buildings, structures and other
improvements now or thereafter located on each Land Parcel, and all
facilities, fixtures, machinery, apparatus, installations, equipment and
other property affixed to each Land Parcel.
"Indenture" means this original Trust Mortgage delivered by Owner,
together with any amendments or supplements thereto executed from time to
time.
"Installment Payment(s)" has the meaning specified in the Notes.
"Installment Payment Dates" has the meaning specified in the Notes.
"Institutional Investor" means any of the following persons existing
under the laws of the United States or any state thereof or of the District
of Columbia or of Canada or any province thereof: (i) any bank, bank holding
company, savings institution or trust company, acting for its own account or
in a fiduciary capacity, (ii) any charitable foundation or other eleemosynary
institution, (iii) any insurance company or fraternal benefit society, (iv)
any pension, retirement or profit sharing fund or trust for which any bank,
trust company or national banking association or investment advisor
registered under the Investment Advisers Act of 1940, as amended, is acting
as trustee or agent, or if self managed, having funds of at least
$50,000,000, (v) any investment company, as defined in the Investment Company
Act of 1940, as amended, (vi) any college or university, (vii) any
government, any public employees' pension or retirement system, or any other
governmental agency supervising the investment of public funds, (viii) a
"real estate investment trust", as defined in Section 856 of the Internal
Revenue Code of 1986, as amended, (ix) any finance company, (x) or any
financial services corporation.
"Land Parcel" and Land Parcels" each has the meaning specified in
the Preliminary Statement hereof.
"Leases" means the Waterford Lease, the Pontiac Lease, the Grand
Blanc Lease and the Chesterfield Lease.
"Lessee" means Walgreen Co., an Illinois corporation, as lessee
under each of the Leases, together with its successors by merger,
consolidation or acquisition of its assets in whole or in part.
"Lien of this Indenture" and terms of like import mean the lien or
security interest or other interest or charge Granted to the Trustee hereby
(including the after-acquired property clauses hereof) or subsequently
Granted hereunder or pursuant hereto to the Trustee.
"Majority Registered Owners" means the Registered Owners of a
majority in Outstanding Principal Amount of the Notes.
"Make-Whole Premium" means, with respect to each Note, (A) in the
event that the Reinvestment Yield shall, on the applicable Determination
Date, be greater than or equal to the interest rate payable on or in respect
of the Note, a premium equal to 0, and (B) in the event that the Reinvestment
Yield shall, on the applicable Determination Date, be less than the interest
rate payable on or in respect of the Note, a premium equal to (x) the sum of
the amounts representing the present values of the amount of each remaining
scheduled Installment Payment which would have been payable with respect to
the Note immediately prior to such prepayment or acceleration determined by
discounting (monthly on the basis of a 360-day year composed of twelve 30-day
months) each such amount utilizing a discount factor equal to the
Reinvestment Yield plus 50 basis points, less (y) the principal amount to be
prepaid with respect to the Note, but in no event less than 0.
"Note Agreement" means the Note Purchase Agreement, dated as of the
date hereof, between Owner and the Note Purchaser.
"Note Purchaser" means Teachers Insurance and Annuity Association of
America.
"Notes" means as of any particular time, the 6.63% Secured Notes of
the Owner, due February 5, 2017, and all Notes issued from time to time in
exchange or substitution therefor pursuant to Section 2.7.
"outstanding", with reference to the Notes, means, as of any
particular time, all Notes authenticated and delivered by the Trustee
pursuant to this Indenture, except: (a) Notes theretofore canceled by the
Trustee or delivered to the Trustee for cancellation pursuant to this
Indenture; (b) Notes for the payment or prepayment of which moneys in the
necessary amount shall have been deposited in trust with the Trustee,
provided that if such Notes are to be prepaid, notice of such prepayment
shall have been given as provided herein; (c) Notes in lieu of or in
substitution for which other Notes shall have been authenticated and
delivered pursuant to Section 2.7; and (d) Notes registered in the name of
Owner or Lessee thereof; provided, however, this clause (d) shall not be
construed to preclude any of the foregoing persons from acquiring any Note
and receiving an appropriate portion of amounts received by the Trustee with
respect to Notes held by such persons pursuant to the terms hereof.
"Outstanding Principal Amount" means as of the time of determination
the aggregate outstanding principal balance of the Notes.
"Overdue Rate" means 8.63% per annum but in no event greater than
the maximum rate permitted by applicable law.
"Owner" means Agree Facility No. I, L.L.C., a Delaware limited
liability company, together with any Person succeeding thereto by merger,
consolidation or acquisition of its assets in whole or in part together with
its successors and assigns as owner of any portion of its interest in the
Property.
"Parking Reserve Amount" means a monthly payment of $290.00.
"Performance Bond" means the Performance Bond obtained by Owner from
a surety company satisfactory to the Majority Registered Owners (such
satisfaction confirmed to the Trustee by notice in the form of Exhibit 3
attached hereto and made a part hereof) in an amount sufficient to pay the
then current Outstanding Principal Amount of the Notes.
"Permitted Encumbrances" as to the Property means the following: (a)
rights reserved to or vested in any public authority by the terms of any
right, power, franchise, grant, license, permit or provision of the law
affecting the Property, to (i) terminate such right, power, franchise,
license or permit, provided that the exercise of such right would not
materially impair the use of the Property or materially and adversely affect
the value thereof, or (ii) purchase, condemn, appropriate or recapture, or
designate a purchaser of, the Property or any portion thereof; (b) any liens
thereon for taxes, assessments, fees and other governmental and similar
charges referred to in Section 3.8, and any liens of mechanics, materialmen
and laborers for work or services performed or material furnished in
connection with the Property, in each case which are not due and payable, or
which are not delinquent to the extent that penalties for nonpayment may be
assessed, or the amount or validity of which are being contested as permitted
by Section 3.8(b); (c) easements, rights-of-way, servitudes, restrictions and
other minor defects, encumbrances and irregularities in the title to the
Property which do not materially impair the use of the Property or materially
and adversely affect the value thereof; (d) rights reserved to or vested in
any public authority to control or regulate or use the Property, which rights
do not materially impair the use of the Property or materially and adversely
affect the value thereof; and (e) matters acceptable to the Majority
Registered Owners which are identified as exceptions to title in the mortgage
policies of title insurance delivered to the Trustee pursuant to the Note
Agreement.
"Permitted Investments" means any one or more of the following:
(i) direct obligations of, or obligations guaranteed as to
timely payment of principal and interest by, the United States of America
("USA") or any agency or instrumentality thereof provided that such
obligations are backed by the full faith and credit of the USA;
(ii) repurchase obligations with respect to any security
described in clause (i) above entered into with a depository institution or
trust company (acting as principal) whose long-term unsecured debt
obligations have received one of the two highest ratings available for such
securities by at least two of Standard & Poor's Ratings Service; Fitch
Investors Service, Inc.; Moody's Investors Service, Inc. and Duff & Phelps
Credit Rating Co. (the "Rating Agencies); and
(iii) units of taxable money market funds which funds are
regulated investment companies, seek to maintain a net asset value of $1.00
per share and invest solely in obligations backed by the full faith and
credit of the USA or in repurchase obligations described in clause (ii)
above, and have been designated in writing by at least two of the Rating
Agencies in one of the two highest credit rating categories as Permitted
Investments with respect to this definition;
provided in each case that no such investment shall be purchased at a premium
to its face value (disregarding interest accrued to the date of acquisition)
and that no such investment shall have a maturity later than the earlier of
(x) the Business Day before the proceeds of such investment are anticipated
to be needed pursuant to Section 5.2, or (y) one year from the date of
acquisition.
"Person" means an individual, partnership, corporation, limited
liability company, trust, estate, unincorporated association, syndicate,
joint venture or organization, or a government or any department or agency
thereof.
"Pontiac Lease" means the Lease, relating to the Land Parcel
described in Schedule A-3 hereof and the Improvements thereon, dated November
13, 1997, between Owner, as lessor and Lessee, as amended or supplemented
from time to time as permitted hereby or thereby, together with any short
form thereof for purposes of recording.
"Property" means the Land Parcels together with the Improvements
thereon.
"Radius Agreement" means the Radius Agreement, dated the date
hereof, among the Owner, the Trustee and the members of Owner.
"Register" has the meaning specified in Section 2.4.
"Registered Owner" means any Person whose name appears on the
Register as the registered owner of any Note.
"Reinvestment Yield" means, at any Determination Date, with respect
to the Notes, the yield to maturity of either (i) the yield reported as of
11:00 A.M. (New York City time) on the Determination Date on the display
designated USD on the Bloomberg Financial Markets Screen (or such other
display as may replace such displays on the Bloomberg service or specify the
applicable data on any other generally available service) for actively traded
U.S. Treasury securities having a constant maturity equal to the maturity of
the Notes, or (ii) if such yields shall not be reported as of such time or
the yields reported as of such time shall not be ascertainable, the Treasury
Constant Maturity Series yields reported for the latest day for which such
yields shall have been so reported as of the Business Day next preceding the
Determination Date in Federal Reserve Statistical Release H-15 (519) (or any
comparable successor publication) for U.S. Treasury securities having a
constant maturity equal to the maturity of the Notes as of the Determination
Date; provided, however, if no maturity exactly corresponding to the maturity
of the Notes shall appear therein, yields for the two most closely
corresponding reported maturities shall be calculated pursuant to the
foregoing sentence and the Reinvestment Yield shall be interpolated from such
yields on a straight-line basis (rounding in each of such relevant periods,
to the nearest month).
"Reserve Account" means the account maintained pursuant to Section
5.2.
"Structural Reserve Amount" means a monthly payment of $982.57.
"Subordination Agreement" means the Subordination, Non-Disturbance
and Attornment Agreement, recorded contemporaneously with this Indenture,
between the Trustee and the Lessee.
"Trust Estate" means all property subject or intended to be subject
at any time to the lien hereof.
"Trustee" means Manufacturers and Traders Trust Company, a New York
banking corporation, together with its successors, as corporate trustee
hereunder.
"Waterford Lease" means the Lease, relating to the Land Parcel
described in Schedule A-4 hereof and the Improvements thereon, dated June 4,
1997, between Owner, as lessor and Lessee, as amended or supplemented from
time to time as permitted hereby or thereby, together with any short form
thereof for purposes of recording.
ARTICLE 2
The Notes
1.1 The Notes. The Notes may have such marks and such legends or
endorsements thereon as Owner may determine with the approval of the Majority
Registered Owners and as are not inconsistent with the provisions of this
Indenture and do not affect their enforceability, or as may be required to
comply with any legal requirement. Except for Notes issued pursuant to
Section 2.7 hereof, Notes may be issued only on the date of delivery of this
Indenture and on the date of delivery of supplements to this Indenture. On
those dates, Owner shall execute and deliver the Notes to the Trustee for
authentication, upon the written order of Owner signed by Owner's managing
member, requesting authentication and delivery of the Notes against payment
therefor. Owner shall also deliver to the Trustee on those dates an
incumbency certificate verifying the signature of Owner's managing member on
the Notes and on such written order. The Trustee shall authenticate and
deliver the Notes in accordance with such written order.
The Notes shall:
(1) be limited in aggregate original principal amount to
$12,390,135.34;
(2) be dated the date of issuance thereof (except for Notes issued
pursuant to Section 2.7);
(3) mature, unless sooner paid in full pursuant to this Indenture,
on February 5, 2017;
(4) bear interest on the unpaid principal amount thereof from the
date of issuance thereof at the rate of 6.63% per annum
payable monthly (computed on the basis of a 360 day year
consisting of twelve 30-day months);
(5) be due and payable (A) in one initial payment of interest only
from the date of the advance of funds under the Notes to July
5, 1999, and (B) thereafter in monthly Installment Payments of
principal and interest in arrears on the fifth (5th) day of
each month commencing on August 5, 1999 and continuing to and
including February 5, 2017 (the "Installment Payments"), such
Installment Payments to be in respective amounts specified on
the amortization schedule attached to each Note, the aggregate
amount of which is sufficient to fully amortize the Notes by
maturity and pay all interest due thereon, provided that if
any such Installment Payment is due on a day that is not a
Business Day, such Installment Payment shall be due on the
preceding Business Day;
(6) be prepayable only as provided in Articles 5 and 6 hereof; and
(7) be substantially in the form set forth in Schedule B hereto.
1.2 Execution of Notes. The Notes shall be signed on behalf of Owner
by a duly authorized member or officer of Owner.
1.3 Home Office Payment. The principal of, premium, if any, and
interest on the Notes shall be payable at the Corporate Trust Office by the
Trustee by wire or other transfer of immediately available funds in lawful
money of the United States of America, against presentation of the Notes for
notation of the payment or prepayment made thereon. Surrender of the Notes by
a Registered Owner shall occur only after payment in full in cash of all
indebtedness evidenced thereby, including payment at the maturity date of the
Notes, and only after a request for surrender, in writing, has been submitted
by the Owner. Notwithstanding the foregoing, if the Registered Owner of a
Note is an Institutional Investor, then the Trustee shall, until such Note
has been transferred on the Register in accordance with Section 2.7 (relating
to Transfer and Exchange of Notes) pay all amounts, including amounts that
will discharge all indebtedness evidenced thereby, which become due and
payable on such Note in accordance with written instructions of such
Registered Owner without presentation of such Note. Lessee has agreed to pay
Base Rent and any percentage rent due under each Lease to the Trustee in
advance on the first day of each calendar month, pursuant to the
Subordination Agreement. All payments of Base Rent received in advance of the
payment date under the Notes shall be invested in Permitted Investments.
Provided that no default or Event of Default has occurred and is continuing,
any interest earned on payments of Base Rent received by the Trustee in
advance of the payment date under the Notes shall be paid to Owner. Trustee
agrees to transmit payments and prepayments on the date payments are due
pursuant to the Notes and agrees to use reasonable efforts to transmit such
payments and prepayments to the Registered Owners of the Notes by noon
Eastern time of the due date under the Notes, it being agreed that if such
funds are not paid on the due date under the Notes, they shall be invested by
the Trustee overnight and the earnings thereon transmitted proportionally to
the recipients of the funds. In the event that the Trustee does not transmit
any such payment or prepayment received by Trustee before noon Eastern time
to such Registered Owner in immediately available funds on the Business Day
immediately following the date on which such payment or prepayment is due
under the Notes, the Trustee, in its individual capacity, shall pay per diem
interest on such payment or prepayment to such Registered Owner, or such
payment to Owner, at the higher of the "Federal Funds Rate" and the actual
rate of return received on such funds. Any payment received by Trustee after
Noon Eastern time on any Business Day shall be deemed to be received by
Trustee at 9:00 A.M. on the immediately following Business Day for purposes
of this section and will be transmitted to the Registered Owners of the Notes
by noon Eastern time on such following Business Day. Owner shall pay or cause
to be paid per diem interest to the Trustee on any payment received by the
Trustee after Noon Eastern time at the Overdue Rate from the date such
payment was actually received to the date such payment is deemed received
pursuant to the immediately preceding sentence.
1.4 Register. Trustee shall cause to be kept at the Corporate Trust
Office a register (the "Register") within the meaning of Section 163(f) of
the Internal Revenue Code of 1986 as amended, and any regulations thereunder,
for the registration or transfer of the Notes issued in registered form. The
Register shall be maintained by the Trustee, and the names and addresses of
the Registered Owners of the Notes, the transfers of the Notes and the names
and addresses of the transferees of the Notes shall be entered in the
Register under such reasonable regulations as the Trustee may prescribe.
1.5 Registered Owners. Owner and the Trustee may deem and treat the
Registered Owner of any Note as the absolute owner thereof (whether or not
such Note shall be overdue) for all purposes, and neither Owner nor the
Trustee shall be affected by any notice to the contrary, subject to Section
2.7 (relating to Transfer and Exchange of Notes), and payment of the
principal of, premium, if any, and interest on such Note shall be made only
to or upon the order of such Registered Owner. All such payments so made,
including, without limitation, all payments made pursuant to the second
sentence of Section 2.3, shall be valid and effectual to satisfy and
discharge the liability of Owner upon such Note to the extent of the sum or
sums so paid.
1.6 Certificate of Authentication. No Note shall be valid until it
has been authenticated by the execution by the Trustee of the certificate of
authentication thereon. The authentication and delivery by the Trustee of any
Note shall be conclusive evidence that such Note has been duly issued
hereunder and is entitled to the benefits and security of this Indenture.
1.7 Transfer and Exchange of Notes.
(1) Notes may be transferred only on the Register. Any Note may be
transferred on the Register if such Note is surrendered for cancellation at
the Corporate Trust Office and is accompanied by a transferee certificate
substantially in the form of Exhibit 1 to this Indenture and an assignment
substantially in the form of Exhibit 2 to this Indenture. Subject to the
provisions of Section 2.8 (relating to New Notes), a new Note shall be
executed by Owner and registered in the name of the transferee in a principal
amount equal to the original principal amount of such transferred Note and
shall be authenticated and delivered by the Trustee to the transferee in
exchange for such transferred Note.
(2) Any Note or Notes may be exchanged for a new Note or Notes if
such Note or Notes to be so exchanged are surrendered for cancellation at the
Corporate Trust Office and are accompanied by the request of the Registered
Owner thereof specifying the denomination of the new Note or Notes to be
issued in exchange therefor. Subject to the provisions of Section 2.8
(relating to New Notes), a new Note or Notes payable to such Registered Owner
shall be executed by Owner in the denomination so requested, and in an
aggregate principal amount equal to the aggregate original principal amount
of such Note or Notes to be so exchanged and shall be authenticated and
delivered by the Trustee to such Registered Owner in exchange for such Note
or Notes to be so exchanged. The Trustee shall not be required to make a
transfer or an exchange of any Note or Notes (i) for a period of ten days
preceding any payment date with respect thereto, which tenth day shall be the
record date for purposes of such payment date and any other purposes under
this Indenture or (ii) if, after giving effect to any such transfer or
exchange, there shall be more than two Registered Owners of Notes, in which
case each such additional Registered Owner in excess of the first two holders
of Notes may be paid at their option, by check or by wire transfer but shall
agree to pay to the Trustee the wire transfer expenses incurred in connection
with any payments on the Notes made to such Registered Owner.
(3) If any Note shall become mutilated or be destroyed, lost or
stolen, upon request of the Registered Owner thereof, a new Note payable to
such Registered Owner shall be executed by Owner in the same original
principal amount as such Note so mutilated, destroyed, lost or stolen and
shall be authenticated and delivered by the Trustee to such Registered Owner
in exchange for such Note, if mutilated, or in substitution for such Note, if
destroyed, lost or stolen, provided that (i) in the case of a mutilated Note,
such Note shall be surrendered for cancellation at the Corporate Trust
Office, and (ii) in the case of a destroyed, lost or stolen Note, the
Registered Owner thereof shall furnish to Owner and the Trustee such security
as may be reasonably required by them to save them harmless and to evidence
to their satisfaction the destruction, loss or theft of such Note and the
ownership thereof, provided, that, for an Institutional Investor, the
unsecured agreement of such Institutional Investor to indemnify the Trustee
and Owner with respect to such destroyed, lost or stolen Note shall satisfy
the conditions of this clause (ii) provided that such agreement includes a
representation that such person is an Institutional Investor.
1.8 New Notes. Each new Note (in this Section called a New Note)
issued pursuant to Section 2.7 (relating to Transfer and Exchange of Notes)
in exchange for, in substitution for, or in lieu of a Note (in this Section
called an Old Note) shall be dated the date of such Old Note. The Trustee
shall mark on each New Note (i) the date to which principal and interest have
been paid on such Old Note and (ii) the aggregate of all payments and
prepayments of principal made on such Old Note which are allocable to such
New Note. Interest shall be deemed to have been paid on such New Note to the
date to which interest was paid on such Old Note, and all payments and
prepayments of principal marked on such New Note, as provided in clause (ii)
above, shall be deemed to have been made thereon. No service charge shall be
made for any issuance of New Notes, but Owner may require payment of a sum
sufficient to cover any tax or other governmental charge that may be actually
incurred or imposed in connection with the issuance of such New Notes. All
new Notes issued pursuant to Section 2.7 in exchange for or in substitution
for or in lieu of Old Notes shall be valid obligations of Owner evidencing
the same debt as such Old Notes and shall be entitled to the benefits and
security of this Indenture to the same extent as such Old Notes.
1.9 Trustee as Agent. The Trustee is hereby appointed the agent of
Owner for the payment (Trustee shall not be obligated to use its own funds to
make such payment and shall only use funds made available to it under this
Indenture to make such payment), registration, transfer and exchange of
Notes, subject, in each instance, to the Trustee's compliance with the terms
of Sections 2.3 through 2.8.
ARTICLE 3
Particular Covenants
A. Owner hereby represents, warrants, covenants and agrees as
follows:
1.10 Title to the Property. As of the date hereof, Owner has good
and marketable fee simple title in and to, the Land Parcels and has good and
marketable fee simple title in and to the Improvements, in each case free and
clear of all liens, encumbrances, charges and other exceptions to title,
subject only to Permitted Encumbrances. Owner has full power and lawful
authority to Grant its interest in the Trust Estate to the Trustee in the
manner and form herein done or intended; and will preserve its title to its
interest in the Trust Estate subject only to Permitted Encumbrances and
except as permitted by this Indenture; and will forever warrant and defend
the same to the Trustee against the claims of all Persons. This Indenture
constitutes a valid first lien on Owner's interest in the Trust Estate,
subject only to Permitted Encumbrances.
1.11 Further Assurances. Owner will, at its expense, do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged and
delivered all such further acts, instruments and assurances required by the
Trustee (the Trustee shall have no obligation to so require unless directed
by the Majority Registered Owners) or the Majority Registered Owners for the
better Granting to the Trustee of Owner's interest in the Trust Estate hereby
Granted or for carrying out the intention of, or facilitating the performance
of, this Indenture as it relates to Owner and Owner's interest in the Trust
Estate.
1.12 Recording. Owner will, upon the execution and delivery hereof,
and thereafter from time to time, cause this Indenture, each Lease or a
memorandum thereof (if such Lease or memorandum thereof has not already been
recorded), the Assignment, the Subordination Agreement, each supplement and
amendment to each of said instruments and financing statements with respect
thereto (collectively called the Recordable Documents), to be filed,
registered and recorded as may be required by law to publish notice of and
maintain the Lien of this Indenture upon the Trust Estate and to publish
notice of and protect the validity of the Leases and the Assignment. Owner
will, from time to time, perform or cause to be performed any other act as
required by law, and will execute or cause to be executed any and all further
instruments requested by the Trustee (at the direction of the Majority
Registered Owners) for such purposes. The Trustee shall be and is hereby
irrevocably appointed the agent and attorney-in-fact of Owner to execute,
deliver and file any financing, continuation and similar statements and
Trustee shall cause the same to be filed in a timely manner, from time to
time, as required by law. Subject to the limitation of liability in Article 8
of this Indenture, if an Event of Default shall have happened and be
continuing, the Trustee shall be and is hereby irrevocably appointed the
agent and attorney-in-fact of Owner to execute and deliver all such further
instruments; nothing in this sentence shall prevent any default in the
observance of this Section from becoming an Event of Default. To the extent
permitted by law, Owner will pay all recording taxes and similar fees
incident thereto and all out-of-pocket expenses, taxes and other similar
governmental charges directly incurred in connection with the preparation,
execution, delivery or acknowledgment of the Recordable Documents, any
instruments of further assurance and the Notes.
1.13 Payment of the Notes. Owner will punctually pay the principal,
interest, premium, if any, and all other sums to become due in respect of the
Notes in accordance with this Indenture and the Notes.
1.14 The Leases; the Assignment; Documents of Record Affecting the
Property. (a) At all times the Property shall be leased to Lessee under the
Leases in accordance with the terms of the Leases. Owner will punctually
perform or cause others to punctually perform all obligations, covenants and
agreements by it to be performed as lessor under the Leases in accordance
therewith, and will at all times do all things reasonably necessary to compel
performance by Lessee of all its obligations, covenants and agreements under
the Leases. Owner will give to the Trustee, and the Trustee will promptly
forward the same to the Registered Owners, notice of all defaults under each
Lease promptly within two (2) Business Days after obtaining actual knowledge
thereof. Owner will not amend or modify any Lease or give any waiver, consent
or notice thereunder, or take any action thereunder, without in each case
having obtained the prior written consent of the Majority Registered Owners.
Owner will maintain the validity and effectiveness of the assignment to the
Trustee of the Leases made by this Indenture and the Assignment, all as
specified in such documents and, except as expressly permitted by the Leases,
this Indenture or the Assignment, will take no action, and will not omit to
take any action, which action or omission would release Lessee from its
obligations or liabilities under the Leases or the Assignment, or would
result in the termination, amendment or modification or impair the validity
of any Lease or the Assignment. Notwithstanding the foregoing, Owner
specifically waives its right to terminate the Leases.
(b) Owner shall observe and perform, and cause to be observed and
performed, all duties required of the owner or operator of the Property under
any document of record affecting the Property.
1.15 Existence; Compliance with Laws.
(1) Owner will keep in full force and effect its existence,
franchises, rights and privileges as a limited liability company under the
laws of the State of Delaware, and will do or cause to be done all things
necessary to preserve and keep in full force and effect its right to own,
lease, mortgage and grant a security interest in property and to enforce
contracts in the state where the Property is located. Owner will comply with
or cause to be complied with (i) every law, or other legal requirement or
order of the United States, of any state or any other governmental authority
applicable to Owner, or applicable to Owner in its capacity as owner of its
interest in the Property insofar as it relates to the Property, and (ii) its
obligations under every contract, agreement or other instrument applicable to
Owner, or applicable to Owner in its capacity as owner of its interest in the
Property insofar as any such obligations relate to the Property or the
ownership, occupancy or use thereof.
(2) Upon twenty (20) days' advance notice, Owner may, at its
expense, contest or cause to be contested, by appropriate legal proceedings
conducted in good faith and with due diligence, its compliance with any law,
other legal requirement or order of the United States, any state or any other
governmental authority or any contract, agreement or other instrument, other
than this Indenture, the Notes or the Assignment; provided that (i) such
proceedings shall have the effect of preventing the collection of any
contested amount or other realization of value from the Trust Estate or any
part thereof or interest therein, the Base Rent or any other sums payable
under the Leases or any portion thereof to satisfy the same, (ii) the Trust
Estate, any part thereof or interest therein, the Base Rent or any other sums
payable under the Leases or any portion thereof could not be sold, forfeited
or lost by reason of such proceedings (assuming payment of any amounts due
and performance of any requirements are made upon final conclusion of such
proceedings and provided any pre-judgment remedy is stayed in a manner
satisfactory to the Majority Registered Owners), and (iii) such proceedings
shall not, in the discretion of the Trustee and the Majority Registered
Owners, subject the Trustee or the Registered Owners of the Notes to the risk
of any criminal or civil liability. Any contest with respect to any law,
rule, order, ordinance, regulation or other governmental requirement
affecting the Property conducted by Lessee shall constitute compliance
herewith by Owner.
1.16 After-acquired Property. All right, title and interest of Owner
in and to all improvements, alterations, substitutions, restorations and
replacements of, and all additions and appurtenances to the Property,
hereafter acquired by or released to Owner immediately upon such acquisition
or release and without any further Granting by Owner shall become part of the
Trust Estate and shall be subject to the Lien of this Indenture fully,
completely and with the same effect as though now owned by Owner and
specifically described in the Granting Clauses hereof; at any time Owner will
execute and deliver to the Trustee any document which the Majority Registered
Owners may require to subject the same to the Lien of this Indenture.
1.17 Taxes.
(1) Owner will do or cause to be done everything necessary to
preserve the Lien of this Indenture without expense to any Trustee or
Registered Owner of the Notes, including, without limitation, paying and
discharging or causing to be paid and discharged, whether or not payable
directly by Owner or subject to withholding at the source, (i) all taxes of
every kind and description, assessments, levies, fees, water and sewer rents
and charges and all other governmental charges, general, special, ordinary or
extraordinary, and all charges for utility or communications services, which
may at any time be assessed, levied or imposed upon Owner, the Trust Estate,
this Indenture, the indebtedness secured hereby or the revenues, rents,
issues, income, excess profits, sales or gross receipts of the Trust Estate,
or which may arise in respect of the occupancy, use, possession or operation
thereof, (ii) all income, excess profits, sales, gross receipts and any other
taxes, duties or imposts, whether similar or not in nature, assessed, levied
or imposed by any governmental authority on Owner, the Trust Estate or the
revenues, rents, issues, income, awards, proceeds and profits of the Trust
Estate, (iii) all transfer, recording, stamp and real property gain taxes
incurred upon the sale, transfer, foreclosure or other disposition of the
Trust Estate or any interest therein and (iv) all lawful claims and demands
of mechanics, laborers, materialmen and others which, if unpaid, might create
a lien on the Trust Estate, or on the revenues, rents, issues, income,
awards, proceeds and profits of the Trust Estate, unless, in each case, Owner
shall contest the amount or validity thereof in accordance with Section
3.8(b) hereof. Notwithstanding the foregoing or any other provision of this
Indenture, Owner shall not be required to pay any income, profits or revenue
tax upon the income of either Trustee or any Registered Owner of the Notes
(other than Owner) nor any franchise, excise, corporate, estate, inheritance,
succession, capital levy, transfer or similar tax or any other tax described
in clause (ii) of this Section 3.8(a) of the Trustee or any Registered Owner
of the Notes (other than Owner) nor any interest, additions to tax or
penalties in respect thereof, nor any withholding taxes relating thereto,
unless, and only to the extent, such is imposed, levied or assessed in
substitution for any tax that Owner is required to pay pursuant to this
Section 3.8(a).
(2) Upon twenty (20) days' advance notice, Owner, at its expense,
may contest or cause to be contested, by appropriate legal proceedings
conducted in good faith and with due diligence, the amount or validity or
application, in whole or in part, of any item specified in Section 3.8(a)
above or lien for such item; provided that (i) such proceeding shall have the
effect of preventing the collection of any contested amount or other
realization of value from the Trust Estate or any part thereof or interest
therein, the Base Rent or any other sums payable under the Leases or any
portion thereof to satisfy the same, (ii) the Trust Estate, any part thereof
or interest therein, the Base Rent or any other sums payable under the Leases
or any portion thereof, could not be sold, forfeited or lost by reason of
such proceedings (assuming payment of any amounts due and performance of any
requirements are made upon final conclusion of such proceedings and provided
any pre-judgment remedy is stayed in a manner satisfactory to the Majority
Registered Owners), (iii) such proceedings shall not affect the ownership,
use or occupancy of the Property or the Trustee's ability or right to
exercise their remedies hereunder, including without limitation, foreclosure
against the Trust Estate, (iv) such proceedings shall not, in the discretion
of the Trustee and the Majority Registered Owners of the Note, subject the
Trustee or the Registered Owners of the Notes to the risk of any criminal or
civil liability and (v) Owner shall establish, or cause to be established,
reserves adequate, in the opinion of the Majority Registered Owners, to pay
such item specified in Section 3.8(a) above, together with any interest or
penalties which may accrue during the prosecution of such contest.
1.18 Insurance.
(1) Owner shall maintain or cause to be maintained valid and
enforceable insurance of the following character with respect to the
Property:
(1) "all risk" insurance coverage against losses by fire and
lightning, hurricane, flood and earthquake, and other risks
for the full insurable replacement value on a per occurrence
basis of the Improvements and other property which constitute
part of the Property, with agreed amount endorsement or
endorsements providing equivalent protection, including loss
by windstorm, hail, explosion, riot (including riot attending
a strike), civil commotion, aircraft, vehicles, smoke damage,
and vandalism and malicious mischief in amounts not less than
the full insurable value of all buildings and other
improvements on the Property. The term "full insurable value"
as used herein means the actual replacement cost, including
the costs of debris removal, but excluding the cost of
constructing foundations, footings and excavations.
(2) Comprehensive general public liability insurance covering the
legal liability of Owner and Lessee against claims for bodily
injury, death or property damage, occurring on, in or about
the Property or occurring as a result of ownership of
facilities located on the Property, with "single limit"
coverage in the minimum amount of Three Million Dollars
($3,000,000) in respect of personal injury or death and One
Million Dollars ($1,000,000) with respect to property damage,
with riders attached naming the Owner and the Trustee as
additional insured. Coverage shall be carried on an occurrence
basis with respect to any one occurrence, accident , disaster
or incidence of negligence. Coverage shall include
"premises/operations", independent contractors" and "blanket
contractual" liabilities.
(3) Public liability and hazard insurance required to be
maintained by the owner or occupant of the Property under any
contract, agreement or recorded document affecting the
Property.
(4) Rent loss insurance sufficient to pay one year of Base Rent
under each Lease.
(5) Fully paid single premium policies of insurance issued by
Chubb Custom Insurance Company insuring against loss of rent
and/or cancellation of each Lease by reason of condemnation
(the "Condemnation Gap Policy"). Owner shall take all actions
necessary to keep the Condemnation Gap Policy in full force
and effect.
(6) Fully paid single premium insurance policies issued by
American International Specialty Lines Insurance Company
insuring against loss of rent and/or cancellation of each
Lease by reason of the failure of the Property to comply with
all Environmental Laws (the "Environmental Policy").
(7) Worker's compensation and employer's liability insurance in
all states in which the Property and any other operations of
Owner are located and any other state in which Owner or its
contractors or subcontractors may be subject to any statutory
or other liability arising in any manner whatsoever out of the
actual or alleged employment of others.
(8) Such other insurance, in such amounts and against such risks,
as is customarily maintained by operators of similar
properties.
Such insurance shall be written by companies of recognized financial standing
which have a claims paying ability rating of at least A by national
statistical rating organizations, and are legally qualified to issue such
insurance, and are acceptable to the Majority Registered Owners and shall
contain a standard mortgagee clause naming the Trustee as an additional
insured and loss payee. Notwithstanding anything to the contrary contained in
this Section 3.9, Lessee may self-insure the insurance required under
Sections 3.9 (a) and (b) so long as the net worth of Lessee exceeds two
hundred million dollars ($200,000,000).
(2) Every insurance policy maintained pursuant to this Section 3.9
shall be satisfactory in form and substance to the Majority Registered Owners
and shall: (i) name the Trustee as an additional insured as its interests may
appear; (ii) contain a standard first mortgagee endorsement naming the
Trustee as first mortgagee and loss payee; (iii) provide that the insurer
waives all rights of subrogation against Owner, any successor to the Owner's
interest in the Property, and the Trustee; (iv) provide that thirty (30) days
prior written notice of cancellation, modification, termination or lapse of
coverage shall be given to the Trustee and that such insurance, as to the
interest of the Trustee, shall not be invalidated by any act or neglect of
Lessee or of Owner or any other owner of the Property, nor by any change in
the title ownership of the Property, nor by occupation of the Property for
purposes more hazardous than that which is generally associated with retail
businesses; and (v) be primary and without right or provision of contribution
as to any other insurance carried by Owner or any other interested party; and
(vi) in the event any insuring company is not domiciled within the United
States of America, include a United States service of suit clause (providing
any actions against the insurer by the insureds are conducted within the
jurisdiction of the United States of America).
(3) Owner shall deliver to the Trustee upon the execution and
delivery of this Indenture certificates of insurance (signed by an authorized
insurance company representative), reasonably satisfactory to the Majority
Registered Owners, evidencing all the insurance which is then required to be
maintained hereunder and, within thirty (30) days prior to the expiration of
any such insurance, deliver certificates of insurance evidencing the renewal
of such insurance (signed by an authorized insurance company representative)
evidencing the renewal of such insurance. Owner shall deliver annually to the
Registered Owners of the Notes certification that Owner has maintained or has
caused the Lessee to maintain all policies of insurance required to be in
full force and effect under this Indenture.
(4) Neither Lessee nor Owner shall obtain or carry separate
insurance concurrent in form or contributing in the event of loss with that
required to be furnished hereunder unless the Trustee is included therein as
additional insured, with loss payable as in this Indenture provided. Owner
shall immediately notify the Trustee whenever any such separate insurance is
obtained and shall deliver to the Trustee the policy or policies or
certificates evidencing the same.
(5) Owner shall comply and, so long as any Lease is in effect, shall
use its best efforts to cause Lessee to comply with all of the terms and
conditions of each insurance policy maintained pursuant to the terms of this
Indenture.
1.19 Advances by the Trustee. If Owner shall fail to perform or
cause to be performed any of the covenants contained in Section 3.2, 3.3,
3.6, 3.8 or 3.9, the Registered Owners may deposit such funds necessary to
perform the same on Owner's behalf, provided, with respect to Sections 3.6
and 3.8, that such performance is not then being contested in compliance with
Sections 3.6(b) or 3.8(b), and all sums so paid shall be secured hereby. Once
the Trustee shall have received sufficient funds from the Registered Owners
and upon written notice to do so from the Majority Registered Owners, upon
not less than ten (10) days notice to Owner (except in case of emergency in
which event notice shall be made as soon as reasonably practicable
thereafter), the Trustee shall make payments as directed in writing by the
Majority Registered Owners to the Trustee. If the Trustee is not provided
sufficient funds to make such payment, the Trustee shall not be obligated to
perform notwithstanding any direction from the Majority Registered Owners.
Owner shall repay on demand all sums so paid on its behalf with interest at
the Overdue Rate, such interest to be computed from and including the date of
the making of such payment to but excluding the date of such repayment.
1.20 Negative Covenants. Owner will not (i) sell, lease, transfer,
convey, assign or otherwise dispose of its interest in the Trust Estate or
any part thereof except as expressly permitted in Section 4.3 of this
Indenture; (ii) claim any credit on, or make any deduction from interest or
premium, if any, on the principal of the Notes by reason of payment of any
taxes levied or assessed or to be levied or assessed on the Trust Estate or
any part thereof; (iii) create or (subject to Owner's rights to contest
pursuant to Sections 3.6(b) and 3.8(b)) suffer to be created, directly or
indirectly, any mortgage, lien, encumbrance, charge or other exception to
title or ownership upon it or against its interest in the Trust Estate or any
part thereof, other than (y) Permitted Encumbrances, and (z) as otherwise
expressly permitted by this Indenture; (iv) make or permit to remain
outstanding any loan to any person except as expressly permitted by this
Indenture; (v) own or acquire any stock or securities of any Person or
guarantee any obligation of any Person; (vi) engage directly or indirectly in
any business other than the acquisition and ownership of its interests in and
leasing of the Property; (vii) use moneys from any employee benefit plan (as
defined in ERISA) established by Owner to perform any of Owner's obligations
under this Indenture or transfer any of its interests in the Trust Estate to
any such employee benefit plan; or (viii) create, assume, suffer to exist or
guarantee any indebtedness for borrowed money other than the Notes, except as
expressly permitted by this Indenture.
1.21 Base Rent. The sum of the monthly payments of Base Rent under
the Leases is at least equal to 105% of the sum of the Installment Payment,
the Parking Reserve Amount, the Structural Reserve Amount and Trustee fees
due on the related Installment Payment Date pursuant to the Notes and this
Indenture. Such payments of Base Rent are sufficient to amortize the Notes in
the manner and on the terms set forth in the Notes.
1.22 Books and Records; Financial Statements; Notice of Default.
(1) Owner will (i) keep accurate records and books of account
reflecting all its financial transactions and (ii) permit the Trustee and any
Registered Owner of Notes, at their expense (except during the continuance of
an Event of Default, in which case, at Owner's expense), by their agents,
accountants and attorneys, to inspect the Property and to visit the offices
of Owner and examine its records and books of account and to discuss its
affairs, finances and accounts with Owner and its accountants at such
reasonable times during business hours as may be requested by the Trustee or
by any Registered Owner of the Notes on reasonable notice to Owner.
(2) Owner shall provide its balance sheet, income statement and
statement of cash flow to the Trustee (and the Trustee shall deliver same, at
Owner's expense, to the Registered Owners of the Notes), annually no later
than ninety (90) days after the end of the calendar year, or otherwise on
request of the Majority Registered Owners, but no more than four times per
year and Owner shall represent that such financial statements are true and
correct. Notwithstanding the foregoing, if an Event of Default has occurred
and is continuing, on the request of the Majority Registered Owners Owner
shall deliver such financial statements monthly to the Trustee (and the
Trustee shall deliver same, at Owner's expense, to the Registered Owners of
the Notes).
(3) Owner shall certify to Trustee on a quarterly basis (no later
than thirty (30) days after the end of each calendar quarter) that there have
been no events of default under either this Indenture or the Leases. In any
event, Owner will notify the Trustee of the occurrence of any default or
Event of Default under the Notes, the Leases or this Indenture promptly, and
in any event, within two (2) Business Days after becoming aware of such
occurrence, and the Trustee will promptly, and in any event, within two (2)
Business Days, by immediate facsimile transmission, forward a copy of any
such notice to the Registered Owners of the Notes.
1.23 Maintenance and Repair. Owner will observe and perform its
maintenance and reconstruction obligations under the Leases and will enforce
the provisions of the Leases requiring the Lessee to maintain and repair the
Property.
1.24 Trustee Fees. Owner will pay or cause to be paid, as the same
become due and payable, all fees, disbursements and other amounts payable to
Trustee, including reasonable attorneys' fees and court costs, acting in the
capacity of trustee under this Indenture and payable to Trustee for taking
any other actions pursuant to the Indenture, such payments to be made in
accordance with the Fee Schedule set forth on Exhibit 4 attached hereto and
made a part hereof.
1.25 Environmental Condition.
Owner represents and warrants to the Trustee and to the
Registered Owners of the Notes that, to the best of Owner's knowledge except
as described in the Environmental Report:
(i) the Property complies with all Environmental Laws;
(1) no notices, complaints or orders of violation or
non-compliance with Environmental Laws have been received by
Owner and to the best of Owner's knowledge, no federal, state
or local environmental investigation or proceeding is pending
or threatened with regard to the Property or any use thereof
or any alleged violation of Environmental Laws with regard to
the Property;
(2) the Property has not been used by Owner or, to the best of
Owner's knowledge, by any prior owner to generate,
manufacture, refine, produce, or process, or to store, handle,
dispose, treat, transfer or transport any Hazardous Substance
(except in connection with the maintenance and operation of
the Property in commercially reasonable quantities as a
consumer thereof, and except for storage of such household or
commercial products as are customarily sold in similar retail
establishments, and in either case in compliance with
Environmental Laws);
(3) no underground storage tanks or surface impoundments have been
installed in the Property in violation of applicable
Environmental Laws and there exists no Hazardous Substance
contamination to the Property which originated on or off the
Property;
(4) the Property is free of Hazardous Substances the removal of
which is required, or the maintenance of which is prohibited
or penalized by any Environmental Law; and
(5) the Property is not a facility as defined in part 201,
M.C.L.A. Section 324.20101 et seq.
Owner agrees that it (i) shall comply, and cause the Property
to comply, with all Environmental Laws applicable to the Property, (ii) shall
prohibit the use of the Property for the generation, manufacture, refinement,
production, or processing of any Hazardous Substance or for the storage,
handling, disposal, treatment, transfer or transportation of any Hazardous
Substance (other than in connection with the operation and maintenance of
such Property and in commercially reasonable quantities as a consumer thereof
and except as to such household or commercial products customarily sold in
similar retail establishments, subject to, in any event, compliance with
Environmental Laws), (iii) shall not install or permit the installation on
the Property of any underground storage tanks or surface impoundments and
shall not permit there to exist any contamination to the Property originating
on or off the Property (other than in connection with the use, operation and
maintenance of the Property and then only in compliance with applicable
Environmental Laws and all other applicable laws, rules, orders, ordinances,
regulations and requirements now or hereafter enacted or promulgated of every
government and municipality having jurisdiction over such Property and of any
agency thereof) or asbestos-containing materials and (iv) shall cause any
alterations of Property to be done in a way so as to not expose the persons
working on or visiting the Property to Hazardous Substances and in connection
with any such alterations shall remove any Hazardous Substances present upon
the Property which are not in compliance with Environmental Laws or which
present a danger to persons working on or visiting the Property.
Owner agrees to protect, defend, indemnify and hold harmless
Trustee, the Registered Owners of the Notes and their officers, employees,
agents, successors and assigns from and against any and all liability,
including all foreseeable and all unforeseeable damages including but not
limited to attorney's and consultant's fees, fines, penalties and civil or
criminal damages, directly or indirectly arising out of the use, generation,
storage, treatment, release, threatened release, discharge, spill, presence
or disposal of Hazardous Substances from, on, at, to or under the Property,
and including, without limitation, the cost of any required or necessary
repair, response action, remediation, investigation, cleanup or
detoxification and the preparation of any closure or other required plans,
whether such action is required or necessary prior to or following transfer
of title to the Property. This agreement to indemnify and hold harmless shall
be in addition to any other obligations or liabilities Owner may have to
Trustee and the Registered Owners of the Notes at common law under all
statutes and ordinances or otherwise, and shall survive the expiration or
termination of this Indenture without limit of time. Owner expressly agrees
that the representations, warranties and covenants made and the indemnities
stated in this Indenture are not personal to Trustee and the Registered
Owners of the Notes, and the benefits under this Indenture may be assigned to
subsequent parties in interest, which subsequent parties in interest may
proceed directly against Owner to recover pursuant to this Indenture.
As soon as reasonably possible after obtaining knowledge
thereof, Owner shall give to Trustee notice (a copy of which Trustee shall
promptly forward to the Registered Owners of the Notes) of the occurrence of
any of the following events: (i) the failure of the Property to comply with
any Environmental Law in any manner whatsoever; (ii) the receipt by Owner of
any notice, complaint or order of violation or non-compliance of any nature
whatsoever with regard to the Property or the use thereof with respect to
Environmental Laws; (iii) the receipt by Owner of any notice of a pending or
threatened investigation or proceeding that the operations on the Property
are not in compliance with any Environmental Law; or (iv) the migration or
release, or a threat of migration or release of any Hazardous Substance from
the Property to other property or to the Property from other property. Owner
shall have the right to contest, by appropriate proceedings, diligently
conducted, any notice, complaint, order or finding of violation or
non-compliance with any Environmental Laws affecting the Property or any use
thereof in accordance with Section 3.6(b). If Owner determines that the
Property is in violation of an Environmental Law, Owner will promptly give
the Trustee written notice thereof (a copy of which Trustee shall promptly
forward to the Registered Owners of the Notes).
At any time that an Event of Default shall have occurred and
be continuing, or a notice, complaint, or order or finding of violation or
non-compliance with Environmental Laws shall have been issued with respect to
the Property, of which the Trustee has received written notice, the Trustee,
after prior reasonable notice to Owner, may, and shall if directed to do so
by the Majority Registered Owners, cause to be performed an environmental
audit or risk assessment of the related Property and the then uses thereof.
Such an environmental audit or assessment shall be performed by an
environmental consultant selected by the Majority Registered Owners and shall
include a review of the uses of the Property and an assessment of the
possibility of violation or non-compliance of the same with Environmental
Laws. All reasonable costs and expenses actually incurred by Trustee in
connection with such environmental audit or assessment shall be secured
hereby and billed directly to and paid by Owner; provided, however, the
Trustee shall not be obligated to expend its own funds or incur any expense
or cost unless funds are advanced to the Trustee or security for repayment
thereof satisfactory to the Trustee is made available to it.
If at any time an event or condition shall have occurred and
be continuing which results in the Property being in violation of any
Environmental Law, or a notice, complaint, or order or finding of violation
or non-compliance with any Environmental Law shall have been received by
Owner with respect to the Property, Owner shall, or shall cause Lessee to,
diligently perform all remedial work to the Property at Owner's or Lessee's
own cost and expense to bring the Property into full compliance with
Environmental Laws and the requirements of this Section 3.16 by not later
than the earlier of (A) twelve months from the date of discovery of such
condition, (B) the end of the initial term of the related Lease and (C) the
imposition of any monetary fine or penalty against Owner or Lessee as a
result of such violation.
1.26 Conduct as Separate Entity. The Owner shall keep its books and
records, including, without limitation, financial statements, separate from
those of all other Persons, maintain bank accounts (if any) separate from
those of any other Person, conduct business exclusively in its own name, pay
its obligations (including salaries of its own employees) out of its own
funds and conduct all correspondence on its own letterhead and use its own
invoices and checks. The Owner will not commingle its funds or assets with
those of any other Person. The Owner will not enter into any agreement for
the sharing, pooling or division of equity, profits, losses, benefits or cash
flow. The Owner will observe all legal formalities of its independent
existence, maintain its books and records as its own official records and
conduct all of its activities as an entity independent of any other Person
and maintain an arm's-length relationship with its affiliates. The Owner has
not failed, and will not fail, to correct any misunderstanding regarding its
separate identity. The Owner will maintain adequate capital and personnel in
light of its contemplated business operations and will hold itself out as a
separate entity.
ARTICLE 4
Possession, Use and Release of the Property
1.27 Lease Termination.
(1) Promptly, and in any event, within two (2) Business Days after
receipt by Owner of any notice from Lessee pursuant to Paragraphs 14 or 29 of
any Lease that Lessee proposes to cancel such Lease, Owner will furnish to
the Trustee a copy of such notice and any certificate, opinion or other
communication delivered in connection therewith, and the Trustee shall
promptly forward a copy of the same to the Registered Owners of the Notes. In
the event of the termination of a Lease pursuant to Paragraph 14 of such
Lease, Owner shall pay to the Trustee, in accordance with paragraph (b)
below, an amount sufficient to prepay, on the scheduled termination date, the
Notes and any accrued interest on the Notes. In the event of the termination
of a Lease pursuant to Paragraph 29 of such Lease, Owner shall pay to the
Trustee, in accordance with paragraph (b) below, an amount sufficient to
prepay, on the scheduled termination date, a portion of the Notes equal to
the "Allocated Payment" with respect to such terminated Lease calculated as
set forth on Exhibit 5. Upon such prepayment the Trustee shall, at the
direction of the Majority Registered Owners, prepare a new amortization
schedule with respect to the Notes. If Owner shall not make such payment, the
Trustee may, and shall if directed to do so by the Majority Registered
Owners, declare a default pursuant to Section 7.1(a).
(2) If Lessee shall elect to cancel any Lease pursuant to Paragraphs
14 or 29 of such Lease and if Owner shall make the payment referred to in
paragraph (a) above, the Trustee, on the scheduled termination date, shall
execute and deliver to Owner an instrument reasonably satisfactory in form
and substance to Owner releasing the portion of the Property related to such
Lease from the Lien of this Indenture and from the Assignment promptly after
receipt of such payment, together with all other sums then due and payable
under the Indenture. Payments received by the Trustee pursuant to this
Section 4.1(b) shall be applied pursuant to Article 5 (relating to
Application of Moneys).
1.28 Condemnation. Owner, promptly upon obtaining actual knowledge
of any proceedings for the taking of the Property or any part thereof in
condemnation or other eminent domain proceeding, shall notify the Trustee of
the pendency thereof and the Trustee shall promptly forward a copy of such
notice to the Registered Owners of the Notes. The Trustee may, and shall if
directed to do so by the Majority Registered Owners, participate in such
proceedings at the expense of Owner, and Owner will deliver all instruments
reasonably requested by the Trustee to permit such participation. Any award
or compensation payable in such proceedings to Owner or assigned (directly or
indirectly) to Owner by Lessee is hereby assigned to and shall be paid to the
Trustee, subject to the rights thereto of Lessee pursuant to the related
Lease. The Trustee shall be under no obligation to question the amount of the
award or compensation and may accept the same on behalf of the Registered
Owners of the Notes. In any such proceeding the Trustee may be represented by
counsel satisfactory to it, or as may be directed by the Majority Registered
Owners, and Owner shall pay the reasonable attorneys' fees and expenses
therefor. Any award or compensation so received shall be applied pursuant to
Article 5.
1.29 Transfer of Owner's Interest in the Property. Owner shall not,
directly or indirectly, transfer the legal, equitable or beneficial title to
the Property or any interest therein without the prior written consent of the
Majority Registered Owners. A transfer of record or beneficial ownership of
any equity interest in Owner shall be deemed a transfer subject to this
section. Consent to a transfer may be granted or withheld in the sole
discretion of the Majority Registered Owners. Notwithstanding the foregoing,
in no event may Owner directly or indirectly transfer the legal, equitable or
beneficial title to the Property or any interest therein unless Owner has
paid to the Trustee all unpaid principal and interest, plus Make Whole
Premium and all other sums payable hereunder or with respect to the Notes.
ARTICLE 5
Application of Moneys
1.30 Moneys Under the Leases.
(1) Unless and until a default shall have occurred and be
continuing, moneys received by the Trustee as Base Rent or percentage rent
under the Leases pursuant to the Assignment and the Subordination Agreement
and any late charge on any overdue installment thereof shall be deposited in
a separate account established by the Trustee (the "Collection Account") and
applied as follows:
(1) to the payment of trustee fees pursuant to Section 3.15
hereof;
(2) to the Installment Payments required to be made on the Notes
(and interest on any overdue amount thereof) on or about the
date on which such Base Rent is due, and if insufficient to
pay such amount in full, pro rata to each Registered Owner in
proportion to the amount of the Installment Payment required
to be made on the Note held by such Registered Owner, and then
to any other sums then due and owing hereunder; and
(3) to the Reserve Account, the Structural Reserve Amount; and
(4) to the Reserve Account, the Parking Reserve Amount; and
(5) to the payment or performance of any obligation of Owner under
any of the Leases which remains unpaid or unperformed; and
(6) the excess, if any, of any Base Rent or other payment after
the application thereof pursuant to clauses (i) through (v)
hereof shall be paid to Owner; provided, however, that if an
Event of Default shall have occurred and be continuing, such
excess shall be retained by the Trustee as security for
Owner's obligations under this Indenture.
(2) Unless and until a default shall have occurred and be
continuing, any moneys held by the Trustee, including the moneys held on
deposit in the Collection Account and the Reserve Account shall be invested
in Permitted Investments (except for moneys being held by the Trustee
overnight). Any interest earned on amounts on deposit in the Collection
Account or in the Reserve Account shall be deposited into the Collection
Account or into the Reserve Account, as the case may be, and shall thereafter
become part of such account.
(3) If a default shall have occurred and be continuing, any amounts
held by Trustee pursuant to Section 5.1(a)(v) above shall, at the option of
the Majority Registered Owners, be applied to the prepayment of the Notes at
a price equal to the principal amount thereof to be prepaid, plus accrued and
unpaid interest thereon and a Make Whole Premium. If the default is cured
within any permitted cure period, if any, and all costs associated with such
cure are paid, any remaining balance of such funds shall be paid to Owner.
(4) Any other moneys, including expense reimbursements, received by
the Trustee under the Leases pursuant to the Assignment shall be applied by
it to the purposes for which such moneys were paid (including, where
applicable, to the reimbursement of Owner for monies paid for Lessee's
account pursuant to any Lease). Late charges or interest on delinquent
payments under any Lease shall be available for application to interest on
the Notes at the Overdue Rate.
1.31 Reserves.
(1) Each month, Owner shall deposit with the Trustee an amount equal
to the sum of the Structural Reserve Amount and the Parking Reserve Amount,
which shall be held by the Trustee in a separate account (the "Reserve
Account"). All sums on deposit from time to time in the Reserve Account,
including interest earned thereon, are for the benefit of Owner but shall be
held by the Trustee in a separate account as security for the performance by
Owner of its obligations under the Leases. Owner hereby grants to the Trustee
a security interest in such sums.
(2) Amounts on deposit in the Reserve Account are held for the
purpose of securing Owner's obligations to make certain capital repairs and
replacements under the Leases (including parking lot light structures,
parking areas, roof and building structures). If Owner shall fail to perform
or cause to be performed any of its obligations or covenants contained in any
Lease of which the Trustee has actual notice and following notice to the
Registered Owners, the Trustee, at the direction of the Majority Registered
Owners, may withdraw from the Reserve Account the funds necessary to perform
the same on Owner's behalf, and all sums so paid shall be secured hereby.
Within three days, Owner shall redeposit or cause to be redeposited into the
Reserve Account the amount of such sums expended by the Trustee on Owner's
behalf. In addition, the Trustee shall withdraw funds from the Reserve
Account, up to the amount of funds then on deposit in the Reserve Account,
and reimburse Owner for any amounts actually paid by Owner for capital
repairs and replacements required by the Leases to be made by Owner, provided
that no Event of Default shall have occurred and be continuing and provided
further that Owner shall have delivered to the Trustee (i) copies of bills
from contractors showing that such repairs and replacements have actually
been performed, (ii) evidence in a form satisfactory to the Majority
Registered Owners that such bills have been paid and (iii) a certificate,
signed by an authorized officer of Owner, certifying that (A) such repairs
and replacements are complete and have been properly performed, (B) Owner has
discharged in full its obligations under the applicable Lease with respect to
the completion of such repairs and replacements, and (C) no event of default
by Owner shall have occurred and be continuing under such Lease with respect
to the completion of such repairs and replacements. To the extent such funds
have not been called upon pursuant to the preceding sentence, the Trustee
shall pay to Owner the balance of such funds upon the payment in full of the
Notes
1.32 Proceeds of Insurance, Condemnation Awards, Minor Releases.
Moneys received by the Trustee as payment for loss under any policy of
insurance (other than the Condemnation Gap Policy, the Environmental Policy,
rent loss or mortgage title insurance) or as an award or compensation for the
taking, in condemnation or other eminent domain proceedings, of the Property
or any part thereof or interest therein or a conveyance to a condemning
authority on a negotiated basis in lieu of condemnation, shall be paid as
provided in the Leases. If such amounts exceed the amount required to be paid
for restoration of the Property, the excess shall, at the option of the
Majority Registered Owners, be retained by the Trustee and be applied in
their entirety on the next Installment Payment Date, but after payment of the
regular Installment Payment due on such date, to the prepayment in whole or
in part, as the case may be, of the unpaid principal amount of the Notes,
plus accrued and unpaid interest thereon to the date fixed for payment, at a
price equal to 100% of the principal amount thereof to be prepaid, without a
Make-Whole Premium and allocated among the Notes in accordance with Section
6.2(b) (relating to Prepayment of Notes) and the balance, if any, after such
prepayment and all other amounts to be paid hereunder shall be paid to Owner
in the case of condemnation awards or Lessee to the extent provided in the
Leases as determined by the Majority Registered Owners in the case of
insurance proceeds, in each case, provided no Event of Default has occurred
and is continuing, and forever released from the Trust Estate. If a default
or Event of Default has occurred and is continuing, all such proceeds shall,
at the option of the Majority Registered Owners, be applied to the Notes.
Proceeds of mortgage title insurance shall be held as part of the Trust
Estate.
(b) In the event of a casualty that occurs prior to the final three
(3) years of the term of any Lease, proceeds of any casualty insurance
received on account of such casualty shall be delivered to the Trustee and
deposited by the Trustee into a construction escrow account as directed by
the Majority Registered Owners and provided in Paragraph 14 of each Lease.
Within ten (10) days after the deposit of such casualty insurance proceeds
into the construction escrow account, the Trustee will use the funds in such
account to purchase the Performance Bond which will guarantee completion of
the restoration of the Property within two hundred seventy (270) days after
the casualty, failing which such Performance Bond will pay an amount to the
Trustee which is sufficient to pay the outstanding indebtedness under the
Notes and should any such payment under the Performance Bond be made to the
Trustee, the Majority Registered Owners may direct the Trustee to prepay the
Notes.
ARTICLE 6
Prepayment of Notes
1.33 Generally. No prepayment of Notes may be made except to the
extent and in the manner expressly required by this Indenture or as permitted
pursuant to Section 6.3 (relating to Optional Prepayment). Any prepayment of
Notes pursuant to Article 4 or 5 shall be made in accordance with the
provisions of Section 6.2.
1.34 Notice of Prepayment; Deposit of Money.
(1) In the case of any prepayment of the Notes pursuant to Section
6.3 or Article 4 or 5 hereof, notice thereof shall be sent by the Trustee to
the Registered Owner of each Note at its address appearing on the Register as
soon as practical but in any event at least thirty (30) days prior to the
date fixed for prepayment. Each such notice shall specify date fixed for
prepayment, the principal amount of each Note to be prepaid and the premium,
if any, to be paid and setting forth a pro forma calculation of the Make
Whole Premium. If Base Rent under any Lease will be reduced in connection
with the event giving rise to the prepayment, Owner shall additionally cause
to be delivered to the Trustee and each Registered Owner of a Note a
certificate of Lessee specifying the amount of minimum rent thereafter to
become due under such Lease. On or prior to the date fixed for any prepayment
of the Notes, the moneys required for such prepayment shall be deposited or
caused to be deposited with the Trustee by Owner. Interest on any Note
designated for prepayment shall cease upon the date fixed for prepayment
unless default shall be made in the prepayment thereof to the Trustee, by
11:00 a.m. on such date.
(2) In case of the partial prepayment of Notes pursuant to Article 4
(relating to Possession, Use and Release of the Property) or 5 (relating to
Application of Moneys) hereof, the aggregate outstanding principal amount of
the Notes to be prepaid shall be prorated by the Trustee among the Registered
Owners of Notes in the proportion which the Outstanding Principal Amount of
the Notes held by each such Registered Owner bears to the aggregate
Outstanding Principal Amount of the Notes. Upon any such partial prepayment,
each Installment Payment which shall thereafter be payable on any Note shall
be proportionately reduced, in accordance with actuarial practice as directed
by the Majority Registered Owners, such that upon the due payment of all
remaining Installment Payments there shall have been paid to the Registered
Owner of each such Note the entire unpaid principal amount thereof together
with accrued interest thereon.
(3) On or prior to each date of a partial prepayment of Notes, Owner
shall prepare or procure three copies of a new amortization schedule with
respect to each Note, satisfactory to the Registered Owners of Notes, setting
forth the amount of the interest portion and the principal portion of each
Installment Payment thereafter to be made on such Note and the amount of the
principal of such Note that will remain unpaid after each such Installment
Payment is made. Owner shall retain one of such copies and deliver the
remaining two copies of the Trustee. The Trustee shall retain one of such
copies and deliver the remaining copy to the Registered Owner of the related
Note.
(4) In the case of any prepayment of the Notes pursuant to Section
7.1 hereof, notice thereof shall be mailed by Owner to the Registered Owner
of each Note at its address appearing on the Register as soon as practical
but in any event at least three (3) Business Days prior to the date fixed for
prepayment. Each such notice shall specify the date fixed for prepayment, the
principal amount of each Note to be prepaid, and the accrued and unpaid
interest to be paid and any other amounts due and payable hereunder which
were to be paid. On or prior to the date fixed for any prepayment of the
Notes, the money required for such payment shall be deposited or caused to be
deposited with Trustee by Owner. Interest on any Note designated for
prepayment shall cease upon the date fixed for prepayment unless default
shall be made in the prepayment thereof to Trustee by 11:00 a.m. on such
date.
1.35 Optional Prepayment. Owner may not prepay any portion of the
Notes during the first five (5) years of the term of the Notes. Commencing in
the sixth (6th) year of the term of the Notes, Owner may, at its option,
prepay the Notes, in whole, at any time upon compliance with the provisions
of Section 6.2 at a price equal to the Outstanding Principal Amount of the
Notes plus accrued and unpaid interest thereon to the date fixed for
prepayment plus the Make-Whole Premium.
ARTICLE 7
Events of Default and Remedies
1.36 Events of Default. If one or more of the following Events of
Default shall happen, that is to say:
(1) if default shall be made in payment of the principal, interest,
or premium, if any, on any Note on the date the same becomes due and payable,
either as an Installment Payment, at maturity, as part of any prepayment or
otherwise, including without limitation, the failure to make any payment
pursuant to Section 4.1(a) hereof, as set forth in the Notes and this
Indenture provided any such default shall have continued for five (5) days
after the due date of such Installment Payment;
(2) if any Lease shall be terminated before the expiration of the
term thereof for any reason (other than a termination under Paragraph 29 of
any Lease) or if any Lease shall in any way be amended or modified or shall
be encumbered by or through Owner without the prior written consent of the
Registered Owners of the Notes required to consent thereto pursuant to
Section 3.5 (relating to the Leases; the Assignment) of this Indenture
(except as otherwise expressly provided for herein or therein);
(3) if Owner fails to maintain or to cause to be maintained any
policy of insurance required under this Indenture;
(4) if any representation or warranty of Owner or Lessee set forth
in the Note Agreement, the Leases, this Indenture, the Assignment, the
Subordination Agreement or the Radius Agreement (herein in this Section 7.1
called the Documents) or any notice, certificate, demand or request delivered
to the Trustee or the Registered Owner of any Note pursuant to any of the
Documents shall be false or misleading, as of the time when the same shall
have been made or as to continuing warranties as of any time when the same
shall be in effect, in a way material and adverse to the Trustee or the
Registered Owner of any Note;
(5) if default by Owner shall be made in the due observance or
performance of any covenant or agreement contained in Section 3.5 (relating
to the Documents of Record), Section 3.6(a) (relating to Existence), Section
3.11 (relating to Negative Covenants), Section 3.12 (relating to Base Rent)
or Section 4.3 (relating to Transfer of Owner's Interest in the Property)
hereof or contained in Section 7 of the Note Agreement (relating to
representation and warranties), or if Owner or Lessee shall fail to observe
the provisions of the Assignment;
(6) if default shall be made in the due observance or performance of
any other covenant, condition or agreement of Owner contained herein or in
the Notes which is not the result of an event of default (as defined in the
Leases) under any Lease and any such default shall have continued for thirty
(30) days; provided that if any such default cannot be cured by the payment
of money and cannot with due diligence be cured within such 30-day period and
if the cure of such default shall be promptly commenced and prosecuted with
diligence and Owner shall have notified the Trustee and the Registered Owners
of the Notes thereof, the period within which such default may be cured shall
be extended for such an additional period of time as may be reasonably
necessary to cure such default with diligence and continuity, provided
however, the total period in which such default may be cured is not to exceed
ninety (90) days;
(7) if an event of default by Owner or Lessee under any Lease shall
have occurred and be continuing;
(8) if a receiver, United States Trustee, trustee or liquidator (or
other similar official) of Owner, shall be appointed in any proceeding or by
a federal or state officer or agency and shall not be discharged within
ninety (90) days after such appointment, or if Owner shall consent to such
appointment, or if a custodian for purposes of any federal bankruptcy statute
of substantially all of the assets of Owner is appointed or otherwise takes
possession thereof and shall not be discharged within sixty (60) days, or if
by decree of such court Owner shall be adjudicated bankrupt or be declared
insolvent under any federal or state bankruptcy law or if an order for relief
shall be entered in any bankruptcy proceeding affecting Owner and such decree
or order is not vacated or stayed within ninety (90) days after entry;
(9) if Owner shall file a petition commencing a voluntary case with
respect to Owner under any federal bankruptcy or similar law or shall make a
general assignment for the benefit of its creditors or shall admit in writing
its inability to pay its debts generally as they become due or shall consent
to the appointment of a receiver of the Trust Estate or any part thereof, or
if a petition or an answer proposing the reorganization or liquidation of
Owner, as debtor, pursuant to the Federal Bankruptcy Code or any similar law,
federal or state, shall be filed by Owner, and approved by, any court;
(10) if any of the creditors of Owner shall commence an involuntary
case to reorganize or liquidate Owner pursuant to the Federal Bankruptcy Code
or any similar law, federal or state, and if such petition shall not be
discharged, denied or otherwise disposed of within ninety (90) days after the
date on which such petition was filed; and
(11) if final judgment for the payment of money shall be rendered
against Owner and Owner shall not discharge the same or cause it to be
discharged within sixty (60) days from the entry thereof, or shall not appeal
therefrom or from the order, decree or process upon which or pursuant to
which said judgment was granted, based or entered, and secured a stay of
execution pending such appeal.
Then in every such case, during the continuance of any Event of
Default:
I. The Trustee, upon the request of the Majority Registered Owners,
shall by notice to Owner (except in the case of a sale of the Property by
Owner in violation of any covenant or agreement contained in Section 4.3
relating to Transfer of Owner's Interest in the Property, in which case Owner
hereby expressly waives notice) declare the principal amount of the Notes (if
not then due and payable) and all other amounts then due and payable on the
Notes and under this Indenture to be due and payable immediately, together
with the Make-Whole Premium to the extent permitted by law, and upon any such
declaration the principal of the Notes and all such other amounts shall
become and be immediately due and payable, anything in the Notes or in this
Indenture contained to the contrary notwithstanding, provided, however, that
if such Event of Default shall have occurred under Section 7.1(h), (i) or
(j), or under Section 7.1(g) or is the result of the occurrence of an event
of default under Paragraph 17 of any Lease (relating to Default and Remedies)
then no written notice shall be required but acceleration shall occur
immediately upon such Event of Default.
II. Subject to Lessee's rights under the Leases, the Trustee, or by
its agents or attorneys, may enter into and upon the Property and may exclude
Owner and its respective agents and servants wholly therefrom; and, at the
expense of the Trust Estate, may use, operate, manage and control the same
and conduct the business thereof, may maintain and restore the Trust Estate,
may insure and reinsure the same and may make all necessary or proper
repairs, renewals and replacements and any useful alterations, additions,
betterments and improvements thereto and thereon, all as the Trustee may deem
advisable; and in every case, the Trustee shall have the right to manage and
operate the Trust Estate and to carry on the business thereof and exercise
all rights and powers of Owner with respect thereto either in the name of
Owner or otherwise as directed by the Majority Registered Owners. The Trustee
may, at Owner's expense, obtain a phase I environmental audit report, or the
equivalent, of the Property from a qualified engineer and a phase II or full
environmental audit report for the Property for which a potential violation
of any Environmental Law is disclosed by a phase I audit. If remediation of
any environmental condition of the Property is recommended or required, then
the Owner shall pay the costs of such remediation. The Trustee shall be
entitled to collect and receive all earnings, revenues, rents, issues,
awards, proceeds, profits and income of the Trust Estate and said earnings,
revenues, rents, issues, awards, proceeds, profits and income are hereby
assigned to the Trustee, its successors and assigns, for the benefit of the
Registered Owners of the Notes. After deducting the expenses of conducting
the business thereof and of all maintenance, repairs, renewals, replacements,
alterations, improvements, betterments and additions and taxes, assessments,
environmental audits, insurance and other proper charges upon the Trust
Estate, as well as reimbursement of out-of-pocket expenses reasonably
incurred by the Trustee or by any Registered Owner of the Notes in connection
herewith, reasonable compensation for the services of the Trustee and all
attorneys, servants and agents by the Trustee properly engaged and employed
(including compensation and expenses in connection with any appeal), the
money arising as aforesaid shall be applied as follows:
(1) in case an Event of Default described in clause (a) of this
Section shall not have happened, first to the payment of the Installment
Payments and any other payments of the principal of the Notes and interest
and Make-Whole Premium, if any, thereon, when and as the same shall become
payable, second to the payment of any other sums required to be paid by Owner
under this Indenture, and third, to the payment of the surplus, if any, to
whomsoever shall be entitled thereto; or
(2) in case an Event of Default described in clause (a) of this
Section shall have happened, in the order of priorities set forth in Section
7.2(d) after clause first thereof.
III. The Trustee may institute or cause to be instituted an action
for the foreclosure of this Indenture and the sale of the Property pursuant
to the judgment or decree of a court or courts in the county or counties in
which the Premises subject to the Leases are located. The purchaser at any
sale made under or by virtue of this Indenture or pursuant to any judgment or
decree of court shall take title to the Property or the part thereof so sold
free and discharged of the estate of Owner therein, the purchaser being
hereby discharged from all liability to see to the application of the
purchase money. Any person, including Trustee, may purchase at any such sale.
Trustee is hereby irrevocably appointed the attorney-in-fact of Owner in its
name and stead to make all appropriate transfers and deliveries of the
Property or any portions thereof so sold and, for this purpose, Trustee may
execute all appropriate instruments of transfer, and may substitute one or
more persons with like power, Owner hereby ratifying and confirming all that
its said attorneys or such substitute or substitutes shall lawfully do by
virtue hereof. Nevertheless, Owner shall ratify and confirm, or cause to be
ratified and confirmed, any such sale or sales by executing and delivering,
or by causing to be executed and delivered, to Trustee or to such purchaser
or purchasers all such instruments as may be advisable, in the judgment of
Trustee, for the purpose, and as may be designated, in such request. Any sale
or sales made under or by virtue of this Indenture, to the extent not
prohibited by law, shall operate to divest all the estate, right, title,
interest, property, claim and demand whatsoever, whether at law or in equity,
of Owner in, to and under the Property, or any portions thereof so sold, and
shall be a perpetual bar both at law and in equity against Owner, its
successors and assigns, and against any all persons claiming or who may claim
the same, or any part thereof, by, through or under Owner, or its successors
or assigns. The powers and agency herein granted are coupled with an interest
and are irrevocable. In the event of a foreclosure sale pursuant to this
Indenture or other transfer of title or assignment of the Property in
extinguishment, in whole or in part, of the Lien of this Indenture, all
right, title and interest of Owner in and to all policies of insurance
required under the provisions of Section 3.9 of this Indenture shall inure to
the benefit of and pass to the successor in interest of Owner or the
purchaser or grantee of the Property or any part thereof so transferred.
IV. The Trustee, with or without entry, personally or by their
co-trustee, agents or attorneys, may (after notice to Owner) sell the Trust
Estate and all estate, right, title, interest, claim and demand therein and
in bar of the right of redemption (statutory or otherwise) at one or more
private (if and to the extent permitted by applicable law) or public sales,
as an entirety or in parcels and at such times and places and upon such terms
as may be specified in the notice or notices of sale to be given to Owner or
as may be required by applicable law. Any number of sales may be conducted
from time to time. The power of sale shall not be exhausted by any one or
more such sale as to any part of the Trust Estate remaining unsold, but shall
continue unimpaired until all of the Trust Estate shall have been sold or the
Notes and all indebtedness of Owner secured hereby shall have been paid. In
addition, as to the Property, the Trustee will have the statutory power of
sale, if any, as may be provided by the law of the state in which such
Property is located. As to the Property this Indenture is made upon the
statutory conditions provided for by the laws of the state in which such
Property is located.
V. The Trustee may take all steps to protect and enforce its rights
and remedies provided hereby or by applicable law, whether by action, suit or
proceeding in equity or at law (for the complete or partial foreclosure
hereof or in aid of the execution of any power herein granted or for the
enforcement of any other appropriate legal or equitable remedy) or otherwise
as the Trustee shall deem most effectual to protect and enforce the same and
Owner hereby assents to a decree in any such proceeding.
VI. The Trustee will have all rights and remedies provided to a
secured party by the Uniform Commercial Code with respect to such portion of
the Trust Estate, if any, as is governed by the Uniform Commercial Code, and
this instrument shall constitute a security agreement under the Uniform
Commercial Code.
VII. The Trustee shall be and hereby is appointed the agent and
attorney-in-fact of Owner to exercise any and all rights that Owner is
permitted to exercise under any contract, agreement or other instrument which
is part of the Trust Estate including, but not limited to, the Leases.
VIII. The Trustee may apply all funds held in the Reserve Account to
any and all sums due hereunder.
1.37 Sale of Property; Application of Proceeds.
(1) In connection with any sale under this Article 7, the Trustee
may postpone the sale of the Trust Estate by public announcement at the time
and place of such sale, and from time to time thereafter may further postpone
such sale by public announcement made at the time of sale fixed by the
preceding postponement.
(2) Upon the completion of any sale made by the Trustee under or by
virtue of this Article, the Trustee shall execute and deliver to the
purchaser a good and sufficient deed and other instruments conveying,
assigning and transferring all its estate, right, title and interest in and
to the property and rights so sold. The Trustee is hereby irrevocably
appointed the true and lawful attorney of Owner and any subsequent owner of
the Trust Estate to make, in its own name and stead or in the name of Owner,
all necessary conveyances, assignments, transfers and deliveries of the
property and rights so sold, and for that purpose the Trustee may execute all
necessary deeds and instruments of assignment and transfer and may substitute
persons with like power, Owner or any subsequent owner of the Trust Estate
hereby ratifying and confirming all that their said attorney or substitutes
shall lawfully do by virtue hereof. Nevertheless, Owner or any subsequent
owner of the Trust Estate, if so requested in writing by either Trustee,
shall ratify and confirm any such sale by executing and delivering to the
Trustee or to such purchasers any instrument which, in the reasonable
judgment of the Trustee, is suitable or appropriate therefore. Any such sale
made under or by virtue of this Article whether made under the power of sale
herein granted or under or by virtue of judicial proceedings or of a judgment
or decree of foreclosure and sale, shall operate to divest all the estate,
right, title, interest, claim and demand whatsoever, whether at law or in
equity, of Owner in and to the property and rights so sold, and shall be a
perpetual bar at law and in equity against Owner and its successors and
assigns and any and all Persons who claim or may claim the same from, through
or under Owner or its successors or assigns.
(3) The receipt by the Trustee for the purchase money paid as a
result of any such sale shall be a sufficient discharge therefor to any
purchaser of the Trust Estate sold as aforesaid; and no such purchaser or his
representatives, grantees or assigns, after paying such purchase money and
receiving such receipt, shall be bound to see to the application of such
purchase money upon or for any purpose hereof, shall be answerable in any
manner whatsoever for any loss, misapplication or non-application of any of
such purchase money or shall be bound to inquire as to the authorization,
necessity, expediency or regularity of any such sale.
(4) In the event of any sale made under or by virtue of this Article
(whether made under the power of sale herein granted or under or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale), the
entire principal of and interest and Make-Whole Premium, if any, on the Notes
and all other sums required to be paid by Owner pursuant hereto, if not
previously due and payable, shall immediately become due and payable,
anything in the Notes or in this Indenture to the contrary notwithstanding.
The purchase money or proceeds of any sale made under or by virtue of this
Article, together with any other sums which then may be held by the Trustee
as part of the Trust Estate or the proceeds thereof, shall, unless otherwise
required by applicable law, be applied: first, to the payment of the costs
and expenses of such sale, including any amounts then owed to the Trustee
pursuant to this Indenture and of any judicial proceeding wherein the same
may be made, second, to the payment of the whole amount then owing on the
Notes for the payment of accrued and unpaid interest and Make-Whole Premium,
if any; third, to the payment of the whole amount then owing on the Notes for
the payment of the principal; fourth, to the payment of any other sums
secured by this Indenture; and fifth, to the payment of the surplus, if any,
to Owner or whosoever shall be lawfully entitled thereto. Such application of
proceeds pursuant to clauses second and third shall be pro-rated among the
outstanding Notes without preference or priority.
1.38 Purchase by Trustee. Upon any sale made under or by virtue of
this Article (whether made under any power of sale herein granted or under or
by virtue of any judicial proceedings or of a judgment or decree of
foreclosure and sale), the Trustee, on behalf of the Registered Owners of
Notes may bid for and acquire the Trust Estate or any part thereof and in
lieu of paying cash therefor may make settlement for the purchase price by
crediting upon the indebtedness of Owner secured by this Indenture the net
proceeds of sale after deduction of all costs, expenses, and other amounts to
be paid therefrom as herein provided. The Person making such sale shall
accept such settlement without requiring the production of the Notes, and
without such production there shall be deemed credited thereon the net
proceeds of sale ascertained and established as aforesaid. The Trustee upon
so acquiring the Trust Estate or any part thereof, shall be entitled to hold,
deal with and sell the same in any manner permitted by applicable laws.
1.39 Receivers. During the continuance of any Event of Default
hereunder, immediately upon the commencement of any legal proceeding by the
Trustee, for or in aid of the enforcement of the Notes or of this Indenture,
and without regard to the adequacy of the security of the Trust Estate, the
Trustee shall be entitled to the appointment of a receiver or receivers of
the Trust Estate and of all the earnings, revenues, rents, issues, profits
and income thereof, and Owner hereby consents to any such appointment.
1.40 Remedies Cumulative. No remedy herein shall be exclusive of any
other remedy or remedies, and each such remedy shall be cumulative and in
addition to every other remedy given hereunder, under the Assignment or under
any other applicable document or now or hereafter existing at law or in
equity; and every power and remedy of the Trustee hereunder, under the
Assignment or under any other applicable document may be exercised from time
to time and as often as may be deemed expedient by the Trustee. No delay or
omission of the Trustee to exercise any right or power accruing upon an Event
of Default shall impair any such right or power or shall be construed to be a
waiver of any such Event of Default or an acquiescence therein.
1.41 Cross-Default and Cross-Collateralization of Notes. Borrower
hereby acknowledges and agrees that the obligations under the Leases are
cross-defaulted such that a failure of payment under any Lease will cause a
default to occur under the Notes. Borrower hereby further acknowledges and
agrees that the mortgages, assignments and security interests granted herein
and in the other Operative Documents (as defined in the Note Agreement) with
respect to each Property and Lease as collateral for the Notes are
cross-collateralized with every other Property and Lease such that upon any
default by Owner under any Operative Document or upon a default by Lessee
under any Lease, the entire principal amount of the Notes and all other
amounts then due and payable on the Notes and under this Indenture may, at
the option of the Majority Registered Owners, be declared to be due and
payable immediately, together with the Make-Whole Premium.
1.42 Waiver of Rights. To the extent not prohibited by applicable
law, Owner agrees that it will not at any time or in any manner whatever
claim or take any benefit of any stay, extension or moratorium law which may
affect the terms of this Indenture, the Assignment or any other applicable
document; nor claim or take any benefit of any law providing for the
valuation or appraisal of the Trust Estate or any part thereof prior to any
sale thereof; nor, prior to or after any such sale, claim or exercise any
right to redeem the property so sold or to be sold or any part thereof or
equity of redemption in connection therewith; and Owner hereby expressly
waives all benefit or advantage of any such law and covenants not to hinder,
delay or impede the execution by either Trustee of any power or remedy
granted in this Indenture, in the Assignment, in any other applicable
document or available at law or in equity, but to suffer and permit the
execution of every power and remedy as though no such law existed. To the
extent not prohibited by applicable law, Owner waives all right to have the
Trust Estate marshaled upon any foreclosure hereof.
1.43 Waiver of Remedies. Subject to Article 9, the Trustee, upon the
written request of the Registered Owners of not less than 66_% in Outstanding
Principal Amount of the Notes, shall waive any default hereunder and its
consequences. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
1.44 Suits by Trustee. All rights of action under this Indenture,
under the Assignment or under any of the Notes may be enforced by the Trustee
without the possession of any of the Notes and without the production thereof
at any trial or other proceeding relative thereto. Any such suit or
proceeding instituted by the Trustee shall be brought in their names as
Trustee, and any recovery of judgment shall be for the ratable benefit of the
Registered Owners of the Notes then outstanding.
1.45 Direction of Remedies. The Majority Registered Owners shall
have the right by an instrument in writing delivered to the Trustee to direct
the time, method and place of conducting any proceeding with respect to this
Indenture, the Assignment or any other applicable document and the right of
exercising any power or trust conferred upon the Trustee hereunder, subject
to the provisions of Section 8.1; provided, however, that for five (5)
Business Days the Trustee shall have the right to decline to follow any such
direction if the Trustee shall determine that the proceeding so directed
would involve it in personal liability unless provided with an indemnity
against such liability pursuant to Section 8.1. If the Trustee determines
that it will not proceed without an indemnity, it shall so notify the
Registered Owners within two (2) Business Days of its decision. If no such
instrument has been received from the Registered Owners of the Notes, the
Trustee may take such action, if any, as the Trustee shall determine after
ten (10) days' notice to the Registered Owners of the outstanding Notes
specifying the proposed action by the Trustee.
1.46 Suits by Registered Owners. In case an Event of Default shall
have happened and be continuing, and the Majority Registered Owners shall
have requested the Trustee to take action with respect thereto, and the
Trustee shall have failed for fifteen (15) days to comply with such request,
then any Registered Owner of any Note shall have the right to institute
proceedings against Owner for the collection of the sums then due and unpaid,
subject in all instances to the same restrictions as would have been
applicable to the Trustee if the Trustee had taken or attempted to take the
requested action.
1.47 Expenses and Services After an Event of Default. When the
Trustee incurs expenses or render services after the occurrence of an Event
of Default described in Section 7.1(h), (i) or (j), the expenses and
compensation for services are intended to constitute expenses of
administration under any bankruptcy law.
ARTICLE 8
The Trustee
1.48 Right and Obligations of Trustee.
(1) The Trustee accepts the trust hereby created and agrees to
perform the duties herein required of it upon the terms and conditions
hereof. The Trustee shall perform only ministerial acts unless the Trustee
receives written instructions by the Majority Registered Owners. The Trustee
shall do all things consistent with and subject to such written instructions
in order to enforce the provisions of this Indenture or to take any action
with respect to an Event of Default, or to institute, appear in or defend any
suit or other proceeding with respect thereto, or to protect the interests of
the Registered Owners of the outstanding Notes. If no Event of Default shall
be continuing, the Trustee shall be responsible for the performance of only
such duties as are specifically set forth in this Indenture or any agreement
or other instrument referred to herein and no implied obligations shall be
read into this Indenture or such agreement or other instrument against the
Trustee, and the Trustee shall not be answerable or accountable except for
its own bad faith, wilful misconduct or negligence and, subject to Section
10.1, Owner agrees to indemnify, defend and save harmless the Trustee against
and from any liability and damages which Trustee may incur or sustain, in
good faith and without gross negligence in the exercise and performance of
any of Trustee's powers and duties hereunder; nor shall the Trustee be
accountable for the use of any proceeds from the sale of the Notes. Except as
otherwise expressly set forth in Section 8.1(1) of this Indenture, the
Trustee shall be under no obligation to take any action to protect, preserve
or enforce any rights or interests in the Trust Estate which, in the
Trustee's judgment, shall be likely to involve unusual expense or personal
liability, unless one or more of the Registered Owners shall furnish to the
Trustee reasonable indemnity against liability and expense (which in the case
of any Institutional Investor shall mean the written agreement of such
Institutional Investor to indemnify the Trustee against any such liability
and expense). If the Trustee determines that it will not proceed without an
indemnity within two (2) Business Days, it shall so notify the Registered
Owners of its decision. The Trustee in its individual or any capacity, may
become the payee, Registered Owner or pledgee of Notes, with the same rights
which it would have if it were not the Trustee hereunder, subject to its
fiduciary duties hereunder.
(2) The Trustee shall receive its established and customary default
administration compensation during the continuance of an Event of Default.
(3) For the compensation and reimbursement of expenses referred to
in Sections 3.15, 8.1(b) and 8.1(d) and the indemnity referred to in Section
8.1(a), the Trustee shall be secured hereunder prior to the Notes.
(4) The Trustee shall incur no liability in acting upon any
signature, notice, request, consent, certificate, opinion or other instrument
reasonably believed by the Trustee to be genuine. In administering the
trusts, the Trustee may act directly or through their agents or attorneys and
may, at the expense of Owner during the continuance of an Event of Default,
consult with counsel, accountants and other skilled persons to be selected
and employed by them, and the reasonable expenses thereof shall be paid by
Owner (but only if such expenses are incurred during the continuance of an
Event of Default) and the Trustee shall not be liable for anything done,
suffered or omitted in good faith by the Trustee in accordance with the
opinion of any such person who the Trustee has selected with reasonable care.
(5) The Trustee shall not be held responsible for the legality or
validity hereof or of the Notes. In executing this Indenture, the Trustee
makes no covenant or representation as to the rights of the Registered Owners
of the Notes, or the title of Owner to, or the condition of, the Trust Estate
or the sufficiency of the security for the Notes afforded thereby.
(6) Whenever in administering the trusts, the Trustee shall deem it
necessary or desirable that a matter be established prior to taking,
suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof is herein specifically prescribed) may be deemed
to be conclusively established by an instrument purporting to be signed by
Owner's manager or its officers, as applicable, and delivered to the Trustee,
and unless the Trustee has actual knowledge (as such term is defined in
subparagraph (n) of this Section 8.1) to the contrary, such instrument shall
be full warrant to the Trustee for any action taken, suffered or omitted by
them in reliance thereon.
(7) Subject to Section 8.1(l) and Section 8.1(p), the Trustee shall
have no duty to see to any recording or filing or registration of this
Indenture, any instrument of further assurance, any financing statement or
amendments or supplements to any of said documents, or to see to the payment
of any fees, charges or taxes in connection therewith, or to give any notice
thereof, or to effect or renew any insurance or see to the collection or
application of any insurance moneys or condemnation awards, or to ascertain
whether the property of Owner is adequately or properly insured, or to see to
the payment of any tax, assessment or other governmental charge which may be
levied or assessed on the Trust Estate or against Owner.
(8) The Trustee shall have no duty to calculate the Make-Whole
Premium or to verify any amortization schedules or any financial or other
statements or reports or certificates furnished pursuant to any provision
hereof, and they shall be under no other duty in respect of the same, except
to retain the same in their files, and permit the inspection thereof at
reasonable times by the Registered Owners of any Notes and to the extent
provided in Section 8.10 hereof. The Trustee shall seek the direction of the
Majority Registered Owners as to the calculation of the Make-Whole Premium.
(9) Except as set forth in Section 2.3, the Trustee shall not be
concerned with, accountable to or liable to any person for the use or
application of any deposited moneys which shall be released or withdrawn in
accordance with the provisions hereof.
(10) In accepting the Trust Estate, the Trustee acts solely as
trustee hereunder and not in its individual capacity, and all persons, other
than Owner and the Registered Owners of the Notes, having any claim against
the Trustee hereunder (other than for the Trustee's own bad faith, wilful
misconduct or negligence) shall look only to the Trustee's rights in and to
the Trust Estate for payment or satisfaction thereof.
(11) Except as otherwise expressly provided, the Trustee shall not
be required to inquire as to the performance or observance of any of the
covenants or agreements herein or in any other instruments to be performed or
observed by Owner. The Trustee shall not be deemed to have notice or
knowledge of any default or Event of Default (except default in the payment
of moneys to the Trustee which are required to be paid to the Trustee on or
before a specific date or within a specified time after receipt by the
Trustee of a notice or certificate which was in fact received and except
default in the delivery of any certificate, opinion or other document
expressly required to be delivered to the Trustee by any provision hereof),
unless the Trustee or any officer of the Trustee shall have actual knowledge
that a default or an Event of Default has occurred or unless the Trustee or
any officer of the Trustee shall receive from Owner, Lessee or the Registered
Owner of a Note written notice stating that a default or an Event of Default
has occurred and specifying the same, and in the absence of such notice, the
Trustee may assume that there is no such default or Event of Default, except
as aforesaid. Promptly after obtaining such actual knowledge or notice
(including, without limitation, with respect to any of the matters set forth
in the parenthetical clause above in this Section 8.1(k)), the Trustee shall
send notice to each Registered Owner of an outstanding Note and the Owner
specifying such default or Event of Default, specifying what actions, if any,
the Trustee is taking or has taken with respect thereto and/or requesting
instruction from such Registered Owners with respect thereto. In the case of
any default in the payment of moneys to the Trustee which are required to be
paid to the Trustee on or before a specified date, the Trustee shall, within
one Business Day after such default, provide notice thereof (i) to Owner,
(ii) to Lessee, and (iii) to each Registered Owner of an outstanding Note.
Such notice(s) to Owner and, if applicable, Lessee shall include demand for
interest on such late payment at the Overdue Rate. Promptly, and in the case
of default in the payment of money within one Business Day, after obtaining
actual knowledge or notice (including, without limitation, with respect to
any of the matters set forth in the first parenthetical clause above in this
Section 8.1(k)) of an Event of Default described in Section 7.1(g), or an
Event of Default which has resulted from an Event of Default described in
Section 7.1(g), the Trustee shall notify Owner of such Event of Default or
default.
(12) If Owner fails to timely file, or cause the timely filing of,
all appropriate Uniform Commercial Code continuation statements with respect
to the Trust Estate at least thirty (30) days prior to the last day on which
such statements may be filed in order to comply with Section 3.3 hereof, the
Trustee shall notify each Registered Owner of the Notes that such
continuation statements have not been filed and will execute and file such
continuation statements. The Trustee shall be required only to monitor
Owner's filing of continuation statements relating to original financing
statements for which the Trustee has been provided acknowledgment copies, or
with respect to which the Trustee has been notified of a change of address of
the debtor. The Trustee shall monitor the insurance required under Section
3.9 hereof including receipt of certificates of insurance required to be
furnished by paragraph (c) thereof and notices of cancellation, modification,
termination or lapse of coverage. In the event Trustee does not timely
receive any required certificate or receives any such notice, it shall
immediately notify each Registered Owner thereof.
(13) The Trustee represents and warrants that it is duly authorized
under applicable law, its articles of organization and its by-laws to
authenticate the Notes, and to execute and deliver this Indenture; all
corporate action, necessary or required therefor has been duly and
effectively taken or obtained. The Indenture is a legal, valid and binding
obligation of the Trustee enforceable in accordance with its terms, subject
to bankruptcy, insolvency and equitable remedies provided by law..
(14) The Trustee shall be deemed to have "actual knowledge" within
the terms of this Section 8.1 at such time as a responsible officer or
responsible employee of the Corporate Trust Department in his or her capacity
as such has such actual knowledge.
(o) Except as set forth in Section 2.3 of this Indenture none of the
provisions of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any personal financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if the Trustee shall reasonably believe that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(p) The Trustee shall prepare and execute continuation statements in
accordance with subsection (l) of this Section 8.1 as required by the local
law of each state in which a Property is located to continue the
effectiveness of the financing statements filed pursuant to this Indenture.
The Trustee shall be required only to prepare and execute continuation
statements relating to original financing statements for which the Trustee
has been provided acknowledgment copies, or with respect to which the Trustee
has been notified of a change of address of the debtor.
(q) The Trustee shall provide notice to the Registered Owners, Owner
and Lessee of any non-payment of Base Rent on the sixth day of any month in
which the Trustee has not received payment by Lessee of Base Rent under any
Lease on or before the fifth day of such month.
(r) The Trustee may rely, and shall be protected in acting or
refraining from acting, upon any resolutions, officer's certificate,
certificate of auditors, or any other certificate, statement, instrument,
opinion, report, notice, request, direction, consent or other paper or
document believed by the Trustee to be genuine and to have been signed or
presented by the property party or parties.
(s) The Trustee may consult with counsel of its choice (which may be
counsel for the Owner) and the written advice or opinion of such counsel
shall be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and in
accordance therewith.
(t) Prior to the occurrence of an Event of Default hereunder, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice request, direction, consent or other paper or
documents, unless requested in writing so to do by the Majority Registered
Owners.
(u) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys.
(v) Except as otherwise provided herein, the Trustee shall not be
required to ascertain or inquire as to the performance or observance of any
of the covenants or agreements contained herein or in any other instruments
delivered to the Trustee hereunder, to be performed or observed by the Owner
or any party to any such other instruments, or to take notice or be deemed to
have notice or knowledge of a default, except default in the payment of
moneys to the Trustee which the Owner is required to pay, or cause to be
paid, to the Trustee on or before a specified date or within a specified
time, unless the Trustee shall have received from the Owner or any of the
Registered Owners notice that a default has occurred and specifying the same,
in which event the Trustee shall promptly notify the Owner and each of the
Registered Owners thereof. Except as aforesaid, in the absence of notice from
the Owner or any of the Registered Owners or actual knowledge of such default
or Event of Default, the Trustee may assume that no default or Event of
Default exists under the Indenture.
(w) The recitals contained herein and in the other documents shall
be taken as the statements of the Owner, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of the documents and shall
not be accountable for the use or application by the Owner of the proceeds of
the Notes, or for the use or application of any moneys paid over by the
Trustee in accordance with any provision of this Indenture.
1.49 Annual Certificate and Statement of Accounts. Within thirty
(30) days after the end of each calendar year, the Trustee shall submit to
the Registered Owners of the Notes a certificate which summarizes the
activities in the accounts where such amounts received by the Trustee as
contemplated under Section 5 (related to Application of Moneys) have been
deposited for such calendar year, including a statement of any interest
earned on any amounts held therein.
1.50 Resignation and Removal of Trustee. The Trustee may resign and
be discharged of the trusts by giving written notice to each Registered Owner
of a Note at its address appearing on the Register, to Owner and Lessee, of
such resignation, specifying the date (which shall be not less than 90 days
after the date of mailing such notice) when such resignation shall take
effect. Such resignation shall take effect on the date so specified unless
previously a successor trustee shall not have been appointed as provided in
Section 8.3, in which event such resignation shall take effect immediately
upon the appointment of such successor. The Trustee may be removed with or
without cause at any time by a written instrument signed by the Majority
Registered Owners.
1.51 Successor Trustee.
(1) If, at any time, the Trustee shall have given notice of its
intention to resign, shall resign or be removed or if the Trustee shall be
taken under the control of any public officer or a receiver appointed by a
court, then (except as hereinafter provided) a successor may be appointed by
the Majority Registered Owners in either case by an instrument signed by such
Registered Owners; provided, that if the Majority Registered Owners shall not
have appointed such successor prior to the effective date of such
resignation, removal or taking under control, then the retiring trustee or
the Registered Owner of any outstanding Note may apply to a court of
competent jurisdiction to appoint a successor to act until a successor
trustee shall be appointed by the Majority Registered Owners. After any such
appointment by such court, the retiring Trustee or such Registered Owner of
the Notes, as the case may be, shall mail written notice thereof to the
Registered Owners of the Notes at their respective addresses appearing on the
Register; but any successor trustee so appointed by such court shall
immediately and without further act be superseded by a successor trustee
appointed by the Majority Registered Owners.
(2) Any successor to the Trustee shall execute and deliver to its
predecessor and Owner, an instrument accepting such appointment, and
thereupon such successor, without any further act shall become vested with
all the Property, rights, duties and Trustee of its predecessor hereunder
with like effect as if originally named as Trustee herein; however, on the
written request of Owner or the successor trustee, such predecessor shall
execute and deliver an instrument transferring to such successor, upon the
trusts expressed in this Indenture, such Property, rights and trusts, and
shall assign, transfer, deliver and pay over to such successor, the Property
and moneys subject to the lien hereof and held by such predecessor. Such
successor Trustee shall give notice of acceptance of such appointment to
Lessee and each Registered Owner of Notes. Should any deed or conveyance from
Owner be required by such successor for vesting in and confirming to such
successor such Property, rights and trusts, then on request all such deeds,
conveyances and instruments shall be executed, acknowledged and delivered by
Owner.
(3) Any successor to the Trustee, however appointed, shall always be
a bank or trust company, organized under the laws of the United States or any
of the States thereof, having a combined capital, surplus and undivided
profits (as shown by its most recent financial statement distributed to its
shareholders) aggregating at least $250,000,000, if there shall be such a
bank or trust company willing and legally qualified to accept and perform the
trusts and duties mentioned herein upon reasonable or customary terms.
(4) Any corporation into which the Trustee may be merged or with
which it may be consolidated, or any corporation resulting from any merger or
consolidation to which it shall be a party, shall be the successor to the
Trustee without the execution of any paper provided it meets the criteria set
forth in clause (c) above.
1.52 Liability of Trustee. No trustee hereunder shall be personally
liable by reason of any act or omission of any successor trustee hereunder.
1.53 Segregation of Moneys. All moneys received by any trustee
hereunder shall be immediately paid over to the Trustee pursuant to this
Indenture and shall be held in trust by the Trustee for the purposes for
which such moneys were paid, and shall be segregated from any other moneys
held by the Trustee, and such money shall be deposited by the Trustee into a
segregated trust account maintained in the name of the Trustee, and the
Trustee shall not be liable for any interest thereon, except as expressly
provided in Section 2.3.
1.54 Illegal Acts. No provision of this Indenture or any amendment
or supplement hereto shall be deemed to impose any duty or obligation on the
Trustee to perform any act in the execution of the trust or to exercise any
right, power, duty or obligation conferred or imposed on them, which under
any present or future law shall be unlawful, or which shall be beyond the
corporate powers, authorization or qualification of the Trustee (any such act
and any such exercise shall be performed and exercised by any separate
trustee or co-trustee appointed as provided in Section 8.9, provided, that
the same shall not be unlawful or beyond his or its powers, authorization and
qualifications).
1.55 Communications to be Sent to Registered Owners and to Owner.
Promptly upon the sending or receipt thereof or the execution of any
supplement pursuant to Article 9, the Trustee shall send a copy of each
supplement, notice, certificate, request, demand, financial statement,
amortization schedule and any other written communication sent by it or
received by it pursuant to or in connection with this Indenture and the Trust
Estate, or any portion thereof, to each Registered Owner of an outstanding
Note and to Owner. Without limiting the foregoing, promptly upon the taking
of any action by the Trustee pursuant to Section 3.10 or Article 7 of this
Indenture, the Trustee shall send written notice together with a description
thereof to each Registered Owner of an outstanding Note and to Owner.
1.56 Co-Trustee
(a) At any time or times, for the purpose of meeting the legal
requirements of any jurisdiction in which any of the Trust Estate may at the
time be located, the Trustee shall have power to appoint and, upon the
written request of the Trustee or of the Majority Registered Owners, Owner
shall for such purpose join with the Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to appoint
one or more persons approved by the Trustee either to act as co-trustee,
jointly with the Trustee, of all or any part of the Trust Estate, or to act
as separate trustee of any such property, in either case with such powers as
may be provided in the instrument of appointment, and to vest in such person
or persons in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this
Section.
(b) Should any written instrument from Owner be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right or power, any and
all such instruments shall, on request, be executed, acknowledged and
delivered by Owner.
(c) Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
(i) The Notes shall be authenticated and delivered, and all
rights, powers, duties and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Trustee hereunder,
shall be exercised solely by the Trustee.
(ii) The rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed by the Trustee or by the Trustee and such
co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall be incompetent
or unqualified to perform such act, in which event such rights,
power, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(iii) The Trustee at any time, by an instrument in writing
executed by it, may accept the resignation of or remove any
co-trustee or separate trustee appointed under this Section. Upon
the written request of the Trustee, Owner shall join with the
Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee or trustee so
resigned or removed may be appointed in the manner provided in this
Section.
(iv) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Trustee,
or any other such trustee hereunder.
ARTICLE 9
Supplements
1.57 Supplements Without Consent. Except as otherwise expressly
provided in this Indenture, without the consent of the Registered Owners of
the Notes, Owner and the Trustee may enter into supplements to this Indenture
and may enter into amendments of the Leases for any one or more of the
following purposes:
(1) to correct or amplify the description of any property subject to
the lien hereof or subject to any Lease; and
(2) to Grant to the Trustee any additional property.
Prior to entering into such supplemental indenture, the Trustee may
require delivery by Owner of an officer's certificate and an opinion of
counsel independent of Owner and Lessee confirming Trustee's authority to
enter into such supplemental indenture.
1.58 Supplements with Consent. With the written consent of the
Majority Registered Owners, Owner and the Trustee may enter into supplements
changing in any manner or eliminating any of the provisions of this
Indenture, as amended and supplemented, or amending the Leases; provided,
that without the consent of the Registered Owner of each Note no such
supplement shall (a) impair or affect the right of each Registered Owner to
receive payments or prepayments of the principal of and payments of the
interest and premium (if any) on its Note, as therein and herein provided,
including, without limitation, the date upon which such payment or
prepayments are due and payable pursuant to the terms and conditions of the
Notes and this Indenture, (b) except as otherwise expressly provided in this
Indenture, deprive the Registered Owner of any Note of a lien on the Trust
Estate or adversely affect its lien on the Trust Estate, or (c) change the
percentage of principal amount required by clause I of Section 7.1 (relating
to Events of Default), Section 7.8 (relating to Waiver of Remedies), Section
7.10 (relating to Direction of Remedies), or Section 7.11 (relating to Suits
by Registered Owners) or this Section 9.2. Upon the filing with the Trustee
of the appropriate consents of the Registered Owners of the Notes, the
Trustee shall join with Owner in the execution of such supplement or
amendment unless such supplement or amendment affects the Trustee' rights,
duties or immunities hereunder, in which case the Trustee may, but shall not
be obliged to, enter into such supplement or amendment. In connection with
any such supplement and at Owner's expense, the Trustee shall receive an
opinion of counsel satisfactory to the Trustee and the Majority Registered
Owners as to the validity and enforceability of such supplement.
1.59 Delivery of Supplements. Owner shall provide the Trustee and
each Registered Owner of the Notes, at its expense or the expense of Lessee,
with a proposed form of any supplement hereto or amendment of any Lease not
less than ten (10) days prior to the execution and delivery thereof. Promptly
after the execution of any supplement hereto or amendment of any Lease,
Trustee shall mail by written notice a conformed copy of such supplement or
amendment to each Registered Owner of a Note at the address of such
Registered Owner appearing on the Register. Any failure of Trustee to give
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of such supplement.
ARTICLE 10
Miscellaneous
1.60 Immunity from Liability. (a) No recourse shall be had for the
payment of any amounts due under the Notes, this Indenture, the Assignment or
any other documents executed by Owner in connection with the transactions
contemplated hereby, including without limitation, the principal, interest or
premium, if any, on the Notes, or for any claim based thereon or otherwise in
respect thereof or based on or in respect of this Indenture or the Assignment
against (i) Owner, or any members or managers of the Owner. It is understood
that the Notes and all obligations under or with respect to this Indenture
may not be enforced against any person or entity described above or any
assets of any of them; provided, that the foregoing provisions of this
paragraph shall not (x) prevent recourse to the Trust Estate or the sums due
or to become due under any instrument which is part of the Trust Estate
including, without limitation, the right to proceed against Lessee under any
Lease or (y) constitute a waiver, release or discharge of any indebtedness or
obligation evidenced by the Note, or secured by this Indenture, but the same
shall continue until paid or discharged, and provided, further, that the
foregoing provisions of this paragraph shall not limit the right of any
person to name Owner or any transferee of any interest in the Trust Estate as
a party defendant in any action or suit for a judicial foreclosure of or in
the exercise of any other remedy under the Notes, the Assignment or under
this Indenture, provided no deficiency judgment shall be sought and no
judgment against officers, directors, shareholders, partners, members,
trustees or beneficiaries of Owner in their individual capacity shall be
sought or enforced.
(b) Notwithstanding the foregoing immunity from liability provision
contained in paragraph (a) of this Section 10.1, it is expressly understood
and agreed that Owner and Owner's members shall be personally liable for the
due, punctual and full payment and performance of and covenants to duly,
punctually and fully pay and perform, any deficiency, loss or damage,
including reasonable attorneys' fees and court costs, suffered by the
Trustee, the Note Purchaser or any Registered Owner of the Notes resulting
from the following:
(i) the application of rents, security deposits, or other
income, issues, profits, and revenues derived from the
Property in a manner other than as provided for in this
Indenture; or
(ii) any loss, cost or damages arising out of or in connection
with fraud or material misrepresentations to the Trustee,
the Note Purchaser or any Registered Owner of the Notes by
Owner (or by any of its managers, officers, members, or
their agents, if applicable); or
(iii) any loss, cost or damages arising out of or in connection
with Owner's use or misapplication of (a) any proceeds paid
under any insurance policies by reason of damage, loss or
destruction to any portion of the Property, or (b) proceeds
or awards resulting from the condemnation or other taking
in lieu of condemnation of any portion of the Property, for
purposes other than those set forth in the Indenture; or
(iv) any loss, cost or damages arising out of or in connection
with any material waste of the Property or any portion
thereof and all reasonable costs incurred by the Trustee,
the Note Purchaser or any Registered Owner of the Notes in
order to protect the Property; or
(v) a transfer or encumbrance by Owner of interest in the
Property not permitted by the Indenture or which is
unapproved by the Trustee and the Majority Registered
Owners; or
(vi) any loss, costs or damages arising out of or in connection
with the covenants, obligations, and liabilities under the
environmental indemnity set forth in paragraph 3.16 hereof;
or
(vii) all out of pocket costs and fees, including, without
limitation, attorneys' fees, incurred by the Trustee or
Payee in the enforcement of subparagraphs 10.1(b)(i)
through 10.1(b)(vii); or
(viii) any loss, costs or damages arising out of or in connection
with the failure of Owner or Owner's members to perform
their obligations under the Radius Agreement.
10.2 Unclaimed Funds. At the expiration of six years following the
date when all of the Notes issued hereunder shall have become due and payable
(whether by lapse of time or by acceleration or by the exercise of the
privilege of prepayment), the trust established hereby on moneys deposited
for payment of the Notes shall automatically terminate and any moneys
deposited for such purposes then remaining on deposit with the Trustee shall
be paid to Owner upon written request of Owner for the payment thereof and
the person entitled to receive such moneys shall thereafter look only to
Owner; provided, that the Trustee before being required to make any such
repayment shall, at the expense of Owner, cause to be published at least once
but not more than three times in a daily newspaper of general circulation in
Detroit, Michigan, a notice to the effect that said moneys have not been
applied for the purpose for which they were deposited, that said trust has
terminated, and that after a date named therein, which shall not be less than
ten (10) days after the date of first publication of said notice, any
unclaimed balance of said moneys then remaining in the hands of the Trustee
will be paid to Owner.
10.3 Security Agreement and Financing Statement. From the date of
its recording, this Indenture shall be effective as a security agreement and
financing statement by and between Owner, as debtor, and the Trustee, as
secured party, filed as a security agreement and financing statement pursuant
to the Uniform Commercial Code in each state in which the Property is located
with respect to all goods constituting part of the Trust Estate which are or
are to become fixtures related to the real estate described herein. For this
purpose, the address of the debtor is the address of Owner set forth above,
and the address of the secured party is the address of the Trustee set forth
above. This Indenture covers goods which are or are to become fixtures.
Owner hereby grants the Trustee a security interest in such portions
of the Trust Estate which may be subject to a security interest under Article
9 of the Uniform Commercial Code, as enacted in the state in which such
portion of the Trust Estate is located, and in all additions thereto,
substitutions therefor and proceeds thereof, for the purpose of securing all
indebtedness now or hereafter secured by this Indenture. Owner agrees to
execute and deliver financing and continuation statements covering such
Property from time to time and in such form as the Majority Registered Owners
may require to perfect and continue the perfection of Trustee's lien or
security interest with respect to such portion of the Trust Estate. Upon the
occurrence of any Event of Default hereunder, subject to Section 10.1 hereof,
Trustee shall have the rights and remedies of a secured party under the
Uniform Commercial Code, as enacted in the jurisdiction in which the related
portion of the Trust Estate is located, as well as all other rights and
remedies available at law or in equity, and, at Trustee's option, Trustee may
also invoke the remedies provided elsewhere in this Indenture as to such
portion of the Trust Estate.
This Indenture constitutes a financing statement filed as a fixture
filing under the Uniform Commercial Code as enacted in each jurisdiction in
which the Property is located, filed in the real estate records of the county
in which the Property is located with respect to any and all fixtures
included within the term "Trust Estate" and with respect to any goods or
other personal property that may now be or hereafter become such a fixture.
PARTS OF THE COLLATERAL ARE, OR ARE TO BECOME, FIXTURES ON THE REAL ESTATE.
Owner and Trustee agree that the filing of any such financing
statement or statements in the records normally having to do with personal
property shall not in any way affect the agreement of Owner and Trustee that
everything used by Owner, its agents, employees, and contractors and owned by
Owner in connection with the production of income from the Property or
adapted for use therein or which is described or reflected in this Indenture,
and at all times and for all purposes and in all proceedings, legal or
equitable, shall be, regarded as part of the real estate conveyed hereby
regardless of whether (i) any such item is physically attached to the
improvements, (ii) serial numbers are used for the better identification of
certain items, or (iii) any such item is referred to or reflected in any such
financing statement or statements so filed at any time.
Similarly, the mention in any such financing statement or statements
of the rights in and to (i) the proceeds of any fire and/or hazard insurance
policy, or (ii) any award in eminent domain proceedings for a taking or for
loss of value, or (iii) Owner's interest as lessor in any present or future
lease or the rights of Owner to income growing out of the use and/or
occupancy of the Property, whether pursuant to lease or otherwise, shall not
in any way alter any of the rights of Trustee's security interest granted
hereby or by any other recorded document, it being understood and agreed that
such mention in such financing statement or statements is solely for the
protection of Trustee in the event any court shall at any time hold with
respect to the foregoing clauses (i), (ii), or (iii) of this sentence, that
notice of Trustee's priority of interest, to be effective against a
particular class of persons, must be filed in the Uniform Commercial Code
Records.
Owner warrants that (i) Owner's (that is, "Debtor's") name, identity
or corporate structure are as set forth on page one hereof; and (ii) the
location of the tangible personal property subject to the grant in the first
sentence of the second paragraph of this Section 10.3 is upon the Land
Parcels. Owner covenants and agrees that Owner will furnish Trustee with
notice of any change in the matters addressed by clauses (i) or (ii) of this
paragraph within thirty (30) days of the effective date of any such change
and Owner will promptly execute any financing statements or other instruments
reasonably deemed necessary by the Trustee to prevent any filed financing
statement from losing its perfected status.
The information contained in this Section is provided in order that
this Indenture shall comply with the requirements of the Uniform Commercial
Code, as enacted in each state in which the Property is located, for
instruments to be filed as financing statements. The "Debtor" is Owner and
the "Secured Party" is Trustee, the identity or corporate structure and
residence or principal place of business of "Debtor" is set forth in the
introductory paragraph of this Indenture, supra; the mailing address of the
"Secured Party" from which information concerning the security interest may
be obtained, and the mailing address of "Debtor", are as set forth in the
introductory paragraph of this Indenture; and a statement indicating the
types, or describing the terms, of collateral is set forth in the Granting
Clauses above. The maturity date of the Notes is set forth in Section 2.1
hereof and in the Notes.
10.4 Modifications; Waiver; Notices. This Indenture may not be
modified except by an instrument in writing executed by Owner and the
Trustee. No requirement hereof may be waived at any time except by a writing
signed by the party against whom such wavier is sought to be enforced nor
shall any waiver be deemed a waiver of any subsequent breach or default. All
notices, offers, acceptances, rejections, consents, requests and other
communications hereunder shall be in writing and shall be mailed by reputable
overnight delivery service or by facsimile followed by hard copy thereof
mailed by reputable overnight delivery service, or delivered by hand as
follows:
If to Owner: Agree Facility No. I, L.L.C.
31850 Northwestern Highway
Farmington Hills, Michigan 48334
Attention: Richard Agree
FAX: 248-737-9110
If to the Trustee: Manufacturers and Traders Trust Company
One M&T Plaza, 7th Floor
Buffalo, New York 14203-2399
Attention: Corporate Trust & Agency Services
FAX: 716-842-4474
If to Lessee: Walgreen Co.
200 Wilmot Road
Deerfield, Illinois 50015
Attention: Law Department
FAX: 847-914-2825
If to the
Registered
Owners
of the Notes: Their respective address on the Register.
or to such other person or address as any such party shall furnish to the
other parties in writing. Notwithstanding the foregoing, notices of defaults
described in Section 7.1(a) hereof may be by telephonic notice to Owner by
actual person to person contact with the person holding the position with
Owner designated above followed by facsimile notice. The Trustee shall
deliver to the Registered Owners of the Notes a copy of each notice received
by the Trustee pursuant to this Indenture or any of the operative documents.
10.5 Illegal Provision. If any provision herein or in the Notes
shall be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision hereof, and this Indenture shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
10.6 Maximum Interest Payable. Neither this Indenture nor the Notes
or any other document shall require the payment or permit the collection of
interest in excess of the maximum amount not prohibited by law. If herein or
in the Notes any excess of interest in such respect is provided for or shall
be adjudicated to be so provided for, neither Owner nor its successors or
assigns shall be obligated to pay such interest in excess of the maximum
amount not prohibited by law, and the right to demand the payment of any such
excess shall be and hereby is waived and any excess shall be promptly
refunded; and this provision shall control any other provision of this
Indenture or the Notes.
10.7 Satisfaction. If and when the Notes shall have become due and
payable (whether by lapse of time or by acceleration or by the exercise of
the privilege of prepayment), and Owner shall have paid or caused to be paid
the full amount of the aggregate principal, interest and premium, if any, on
the Notes and shall also pay or cause to be paid all other sums payable
hereunder by Owner under this Indenture, then and in that case this Indenture
shall become null and void and shall be released, all at the cost of Owner.
10.8 Binding Effect. The covenants, conditions and agreements herein
contained shall bind, and the benefits and advantages shall inure to, the
respective heirs, executors, administrators, successors and assigns of the
parties hereto. Whenever used, the singular shall include the plural, the
plural include the singular and the use of any gender shall include all
genders.
10.9 Counterparts. This Indenture may be executed in counterparts,
and each counterpart, for purposes of recording in a particular county, may
include as part of Schedule A legal descriptions of only the Property located
in such county. All counterparts shall constitute one instrument.
10.10 Table of Contents; Headings. The table of contents contained
herein and the headings of the various Articles, Sections and Schedules
herein have been inserted for reference only and shall not to any extent have
the effect of modifying or amending the express terms and provisions hereof.
10.11 Governing Law. This Indenture (except for the provisions of
Article 8) shall be governed by the laws of the State of Michigan. The
provisions of Article 8 hereof with regard to the rights, remedies and
obligations of the Trustee shall be determined in accordance with the laws of
the State of New York.
10.12 Estoppels. At any time and from time to time upon not less
than fifteen (15) days' prior request by any party hereto, the other parties
hereto shall furnish a certificate certifying that this Indenture is in full
force and effect (or that this Indenture is in full force and effect as
modified and setting forth the modifications); to the best knowledge of the
signer of such certificate, whether or not Owner is in default under any of
is obligations hereunder (and, if so, the nature of such alleged default);
and such other matters as may reasonably be requested.
10.13 Attorneys' Fees. As used in this Indenture, the terms
"attorneys' fees" and "reasonable attorneys' fees" shall mean fees based upon
time actually spent and based upon normal hourly rates charged by attorneys
in the city in which the attorney charging such fee is located handling
similar matters.
ARTICLE 11
Michigan Provisions
11.1 Inconsistencies. In the event of any inconsistencies between
the terms and conditions of Article 11 of this Indenture and the terms and
conditions of any other Article of this Indenture, the terms and conditions
of Article 11 shall control and be binding.
11.2 Additional Remedies. The Trustee shall also be entitled to all
the rights and remedies conferred by Act No. 210 of the Michigan Public Acts
of 1953 as amended by Act No. 151 of the Michigan Public Acts of 1966
(M.C.L.A. Section 554.231 et seq.), Act No.228 of the Michigan Public Acts of
1925 (M.C.L.A. Section 554.211 et. seq.) and Act No.210 of the Michigan
Public Acts of 1933 (M.C.L.A. Section 451.401 et seq.).
11.3 Waste. Owner's failure, refusal or neglect to pay any taxes
levied against the Property or any insurance premiums due upon policies of
insurance covering the Property, shall constitute waste under Act No. 236 of
the Michigan Public Acts of 1961 as amended (M.C.L.A. 600.2927, and the
Trustee, at the direction of the Majority Registered Owners shall have a
right to appointment of a receiver of the Property and of the earnings,
income, and profits thereof, with such powers as the court making such
appointment confers and Owner hereby irrevocably consents to such appointment
in such event, and agrees to pay the costs and expenses of the Trustee and/or
the Registered Owners of the Notes incurred in such proceeding, including
reasonable attorney fees. Payment by the Trustee for and on behalf of Owner
of any delinquent taxes, assessments, or insurance premiums payable by Owner
under the terms of this Indenture shall not cure the default herein
described, nor shall it in any manner impair the Trustee's right to the
appointment of a receiver as set forth herein.
11.4 Sale. In the event of a sale, by foreclosure or otherwise, of
less than all of the Property, this Indenture shall continue as a lien and
security interest on the remaining portion of the Property. Owner hereby
waives all rights to a hearing prior to sale in connection with any
foreclosure of this Indenture by advertisement and all notice requirements
except as set forth in the Michigan statute providing for foreclosure by
advertisement.
11.5 Michigan Law. In connection with the Trustee's right to
possession of the Property Owner acknowledges that it has been advised that
there is a significant body of law in Michigan which purportedly provides
that in the absence of a showing of waste of a character sufficient to
endanger the value of the Property (or of other special factors) a person in
the role of Owner is entitled to remain in possession of the Property and to
enjoy the earnings, revenues, rents, issues, profits and income of the
Property during the pendency of foreclosure proceedings and until the
expiration of the redemption period, notwithstanding that the mortgage
expressly provides to the contrary. Owner further acknowledges that it has
been advised that the Registered Owners consider that the value of the
security granted hereby is inextricably intertwined with the effectiveness of
the management, maintenance and general operation of the Property and that
the Registered Owners would not make the loan secured hereby unless they
could be assured that the Trustee, at the direction of the Majority
Registered Owners, would have the right to take possession of the Property
and manage or control management thereof and collect and receive for the
benefit of the Registered Owners of the Notes the earnings, revenues, rents,
issues, profits and income of the Property immediately upon an Event of
Default notwithstanding that foreclosure proceedings may not have been
instituted or are pending or that the redemption period, if any, may not have
expired. Owner hereby knowingly, intelligently and voluntarily waives all
rights to possession of the Property from and after the occurrence of an
Event of Default and upon demand for possession by the Trustee Owner agrees
not to assert any objection or defense to the Trustee's request or to
petition to a court for possession, and hereby consents to the appointment of
a receiver for the Property. The rights hereby conferred upon the Trustee
have been agreed upon prior to the occurrence of an Event of Default and the
exercise by the Trustee of these rights shall not be deemed to put the
Trustee in the status of a "mortgagee in possession." Owner acknowledges that
this provision is material to this transaction and that the Registered Owners
would not make the loan secured hereby but for this Subsection 11.5.
11.6 Waiver. This Indenture contains a power of sale and upon an
Event of Default may be foreclosed by advertisement. In a foreclosure by
advertisement, no hearing is involved and the only notice required is
publication of a foreclosure notice in a local newspaper and posting of a
copy of the notice upon the Property. If this Indenture is foreclosed by
advertisement under the provisions of Michigan Compiled Laws 600.3201 et
seq., OWNER HEREBY KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY WAIVES ALL
RIGHTS UNDER THE CONSTITUTION AND LAWS OF THE STATE OF MICHIGAN AND THE
CONSTITUTION AND LAWS OF THE UNITED STATES OF AMERICA TO ANY NOTICE OR
HEARING IN CONNECTION WITH SAID FORECLOSURE BY ADVERTISEMENT EXCEPT AS SET
FORTH IN THE SAID MICHIGAN STATUTE PROVIDING FOR FORECLOSURE BY
ADVERTISEMENT.
OWNER ALSO HEREBY WAIVES ANY RIGHT TO NOTICE, OTHER THAN THE NOTICE
PROVIDED BY MICHIGAN COMPILED LAWS 554.231 ET SEQ. AND 554.211 ET SEQ. AND
MICHIGAN COMPILED LAWS 565.81 ET SEQ., EACH AS AMENDED, AND WAIVES ANY RIGHT
TO ANY HEARING, JUDICIAL OR OTHERWISE, PRIOR TO THE TRUSTEE'S EXERCISE OF ITS
RIGHTS UNDER THIS INDENTURE.
11.7 Future Advances. This Indenture is a "Future Advance Mortgage"
under Public Act 348 of Michigan Public Acts of 1990. All future advances
under the Notes or under any other document executed in connection with this
Indenture shall have the same priority as if the future advance was made on
the date this Indenture was recorded. This Indenture shall secure all
indebtedness of Owner, its successors and assigns under the Notes or under
any other document executed in connection with this Indenture, whenever
incurred, such indebtedness to be due at the times provided in the Notes or
in any other applicable document executed in connection with this Indenture.
Notice is hereby given that the indebtedness secured hereby may increase as a
result of any defaults hereunder by Owner due to, for example, and without
limitation, unpaid interest or late charges, unpaid taxes or insurance
premiums which the Trustee elects to advance, defaults under leases that
Owner elects to cure, attorney fees or costs incurred in enforcing this
Indenture or any other document executed in connection herewith or other
expenses incurred by the Trustee in protecting the Property, the security of
this Indenture or the Trustee's rights and interests.
11.8 Judicial Foreclosure. In addition to all other applicable
Michigan statutes noted herein regarding the rights of the Trustee to
foreclose the lien of this Indenture, the Trustee shall have the benefit of
M.C.L.A. Section 600.3170 and M.C.L.A. 451.401 et seq.
11.9 Trust Mortgage. It is the intent of the Registered Owners, the
Owner and the Trustee that this Indenture be deemed and considered a trust
mortgage under the laws of the State of Michigan and that the Trustee shall
be entitled to exercise all rights and remedies of a trustee under a trust
mortgage in accordance with and pursuant to Michigan law, including without
limitation M.C.L.A. Sections 554.211 et seq., 600.3170 and 451.401 et seq. In
the event that this Indenture were to be deemed not to constitute a trust
mortgage for any reason whatsoever, then the parties hereto intend and expect
that this Indenture shall be deemed and considered for all purposes as a
mortgage under the laws of the State of Michigan and that the Trustee shall
be entitled to exercise all rights and remedies of a mortgagee under Michigan
law, including without limitation M.C.L.A. Section 554.231 et seq. The
parties hereto acknowledge that this provision is material to this
transaction and that the Registered Owners would not make the loan secured
hereby but for this Section 11.9.
HART01-258870-6
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IN WITNESS WHEREOF, the parties hereto have each caused this
Indenture to be duly executed and delivered under seal as of the date first
above written.
OWNER
AGREE FACILITY NO. I, L.L.C.
a Delaware limited liability company
By: Agree Limited Partnership
a Delaware limited partnership
Its: Member
Witness: /s/ Leon M. Schurgin By: Agree Realty Corporation
Print Name: Leon M. Schurgin a Maryland corporation
Its: General Partner
Witness: /s/ Patricia L. Chapman By: /s/ Richard Agree
Print Name: Patricia L. Chapman Richard Agree, Its President
TRUSTEE
Witness: /s/ Pat Pattanayak MANUFACTURERS AND TRADERS
Print Name Pat Pattanayak TRUST COMPANY
Witness: /s/ Jeffrey S. Stone By: /s/ Russell T. Whitley
Print Name Jeffrey S. Stone Name: Russell T. Whitley
Title: Assistant Vice President
State of Michigan )
) ss.
County of Oakland )
On this, the 23rd day of June, 1999, before me, a Notary Public,
personally appeared Richard Agree, who acknowledged himself to be the
President of Agree Realty Corporation, a Maryland corporation, the general
partner of Agree Limited Partnership, a Delaware limited partnership, a
member of Agree Facility No. I, L.L.C., a Delaware limited liability company
and that he, as such President, being authorized to do so, executed the
foregoing instrument for the purposes therein contained by signing his name
as President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Patricia L. Chapman
Notary Public
My commission expires: Sep. 18, 2002
State of New York )
) ss.
County of Erie )
On this, the 24th day of June, 1999, before me, a Notary Public,
personally appeared Russell T. Whitley, who acknowledged himself to be a
Asst Vice President of Manufacturers and Traders Trust Company, a New York
banking corporation, as Trustee, and that he, as such Asst Vice President,
being authorized to do so, executed the foregoing instrument for the
purposes therein contained by signing his name as Asst Vice President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Aaron G. McNanus
Notary Public
My commission expires: Nov 4, 2000
Schedule A-1
[Chesterfield Property Legal Description]
SCHEDULE A-1
LEGAL DESCRIPTION
Commitment No.: CM-314061
Land in the Township of Chesterfield, Macomb County, Michigan, described as
follows:
PARCEL 1: Land in the Southwest 1/4 of Section 17, Town 3 North, Range 14
East, Chesterfield Township, Macomb County, Michigan, described as
commencing at the South 1/4 corner of Section 1 7; thence along the Section
line North 86 degrees 43 minutes 25 seconds West 1249.71 feet to the point of
beginning; thence continuing along the Section line North 86 degrees 43
minutes 25 seconds West 252.38 feet to the centerline of Gratiot Avenue;
thence along said centerline North 31 degrees 12 minutes 00 seconds East
412.67 feet; thence South 58 degrees 48 minutes 00 seconds East 223.00 feet;
thence South 31 degrees 12 minutes 00 seconds West 294.48 feet to the point
of beginning.
PARCEL 2: Land in the Southwest 1/4 of Section 17, Town 3 North, Range 14
Fast, Chesterfield Township, Macomb County, Michigan, described as commencing
at the South 1/4 corner of said Section 17; thence along the section line
North 86 degrees 43 minutes 25 seconds West 1085.00 feet to the point of
beginning; thence continuing along the section line North 86 degrees 43
minutes 25 seconds West 164.17 feet; thence North 31 degrees 12 minutes 00
seconds East 294.48; thence South 58 degrees 48 minutes 00 seconds East
145.53; thence South 31 degrees 12 minutes 00 seconds West 217.35 to the
point of beginning.
Tax Item No. 09-17-376-015 Parcel I & 2, Covers More Land
Schedule A-2
[Grand Blanc Property Legal Description]
SCHEDULE A-2
That certain real property, with the appurtenances thereto, situated
in the Township of Grand Blanc, Genesee County, Michigan and described as
follows:
Unit 2 of GRAND BLANC I CONDOMINIUM, a Condominium according to the
Master Deed thereof recorded in Liber 3699, page 806, Genesee County Records,
and designated as Genesee County Condominium Subdivision Plan No. 199, and
any amendments thereto, together with an undivided interest in the common
elements of said condominium as set forth in said Master Deed and as
described in Act 59 of the Public Acts of Michigan of 1978, as amended,
together with all limited common elements allocated to Unit 2 as set forth in
said Master Deed.
HARTOI-269842-1
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June 22, 1998 8:16 PM
Schedule A-3
[Pontiac Property Legal Description]
SCHEDULE A-3
LEGAL DESCRIPTION
Commitment No.: CM-314063
Land in the City of Pontiac, Oakland County, Michigan, described as follows:
That part of the Northeast 1/4 of Section 21, Town 3 North, Range 10 East,
City of Pontiac, Oakland County, Michigan, and that part of Lots 155 and 156
of Assessors's Plat No. 13, according to the plat thereof, as recorded in
Liber IA of Assessor's Plats, page 13, Oakland County Records, more
particularly described as; beginning at the intersection of the Southerly
line of Lot 155, said line also being the Northerly line of Balboa Place
(formerly Bond Street), and the Northeasterly line of Martin Luther King
Boulevard (also known as East Boulevard); thence North 47 degrees 08 minutes
30 seconds West 63.63 feet along the Northeasterly line of Martin Luther King
Jr. Boulevard; thence continuing North 53 degrees 32 minutes 05 seconds West
422.95 feet along the Northeasterly line of Martin Luther King Jr. Boulevard
to its intersection with the Southeasterly line of Perry Street; thence North
42 degrees 29 minutes 19 seconds East 125.53 feet along the Southeasterly
line of Perry Street; thence South 46 degrees 00 minutes 38 seconds East
60.00 feet to the Northerly line of Lot 156; thence North 88 degrees 14
minutes 20 seconds East 276.62 feet along the Northerly line of Lots 156 and
155 to the Northeast corner of Lot 155; thence South 02 degrees 35 minutes 10
seconds Fast 353.29 feet along the Easterly line of Lot 155 to the Southeast
corner of Lot 155, said point being on the Northerly line of Balboa Place;
thence South 88 degrees 05 minutes 00 seconds West 33.61 feet along the
Northerly line of Balboa Place to the point of beginning.
Tax Item No. 14-21-404-003
Tax Item No. 14-21-404-001
Tax Item No. 14-21-276-001
Schedule A-4
[Waterford Property Legal Description]
SCHEDULE A-4
LEGAL DESCRIPTION
Commitment Number: CM-314062
Land in the Township of Waterford, Oakland County, Michigan, described as
follows:
That parts of Lot(s) 22,26,27,107 and the entire Lots 23,24,25,105,106'and
the vacated Oakview Road adjacent thereto of DIXIE TRAIL SUBDIVISION,
according to the plat thereof recorded in Liber 46 of Plats, page(s) 39 of
Oakland County Records, described as: Commencing at the Southeast corner of
Lot 26; thence North 88 degrees 31 minutes 00 seconds West 32.50 feet along
the South line of Lot 26, also the North line of Walton Boulevard to the
point of beginning; thence continuing along the North line of Walton
Boulevard, North 88 degrees 31 minutes 00 seconds West 126.00 feet; thence
North 42 degrees 22 minutes 00 seconds West 197.32 feet along the Northerly
line of Dixie Highway; thence North 47 degrees 38 minutes 00 seconds East
70.00 feet; - thence North 48 degrees 36 minutes 34 seconds East 46.59 feet;
thence North 39 degrees 38 minutes 33 seconds East 97.74 feet to the
Northwest corner of Lot 105; thence South 88 degrees 20 minutes 26 seconds
East 301.88 feet along the North line of Lot 105 to the Northeast corner of
Lot 105; thence South 01 degree 50 minutes IO seconds West 130.00 feet along
the East line of Lots 105, 106 and 107; thence North 88 degrees 20 minutes 27
seconds West 107.17 feet; thence South 39 degrees 38 minutes 33 seconds West
123.15 feet; thence South 01 degree 35 minutes 13 seconds West 71.91 feet to
the point of beginning.
Together with a 30 foot easement for ingress and egress described as: The
East 30 feet of Lot 29 and the East 30 feet of the South 20 feet of Lot 107
of DIXIE TRAIL SUBDIVISION, according to the plat thereof recorded in Liber
46 of plats, page 39, Oakland County Records.
Tax Item No. 13-03-376-048
Schedule B
[Form of the Notes]
SCHEDULE B
TO INDENTURE
FORM OF
6.63% SECURED NOTE, DUE FEBRUARY 5, 2017
Registered No. 1
Private Placement No.: 00850# AA 5
AGREE FACILITY NO. 1, L.L.C., a Delaware limited liability company
(collectively "Owner'), for value received, hereby promises to pay TEACHERS
INSURANCE AND ANNUITY ASSOCIATION OF AMERICA (the "Payee"), or registered
assigns on or before February 5, 2017, as herein provided, the principal sum
of TWELVE MILLION THREE HUNDRED NINETY THOUSAND ONE HUNDRED THIRTY-FIVE AND
34/100 DOLLARS ($12,390,135.34) and to pay interest on the unpaid principal
amount hereof from the date hereof to maturity at the rate of 6.63% per
annum (computed on the basis of a 360 day year consisting of twelve 30-day
months), payable (a) in one initial payment of interest only from the date
Payee advances funds hereunder to July 5, 1999 and (B) thereafter in monthly
Installment Payments of principal and interest in arrears on the fifth (5th)
day of each month commencing on August 5, 1999 and continuing to and
including February 5, 2017 (the "Installment Payments"), such Installment
Payments to be in respective amounts specified on the amortization
schedule attached hereto. Interest shall accrue on any overdue amount
hereunder at the rate of 8.83% per annum from the due date thereof until the
date of payment. Capitalized terms contained herein shall have the meanings
as set forth in the Trust Mortgage (the "Indenture"), dated as of June __,
1999, between Owner and Manufacturers and Traders Trust Company, as trustee
(the "Trustee").
Such principal, Make-Whole Premium (as defined in the Indenture), if
any, and interest shall be payable to Payee by wire transfer or Automated
Clearing House System to Chase Manhattan Bank, N.A., ABA# 021-000-021,
Account# 900-9000200 for further credit to TIAA account no. G07040,
referencing PPN 00850#. AA 5, Agree Facility No. 1, L.L.C., 6.63% Secured
Note due February 5, 2017, and specifying the amount of each of principal and
interest represented by each such payment or at such other-place or address
as the Payee shall indicate in writing to Owner, in lawful money of the
United States of America.
Each Installment Payment, when paid, shall be applied first to the
payment of interest accrued and on the unpaid principal amount of this
Note to and including the day prior to the date fixed for such payment, and
second to payment on account of the principal hereof. The Installment
Payments and any other payment or prepayment with respect to this Note shall
be made by Owner to the Payee without presentation of this Note for notation
hereof.
This Note is secured by (i) a first mortgage lien on the interest
of Owner in the rights and property (the "Mortgaged Property") created by the
Indenture, relating to four (4)
HART01-271829-1
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June 22, 1998 8:39 pm
-2-
parcels of land and the improvements thereon located in Michigan, and (ii)
the Assignment of Leases and Rents, dated as of June _, 1999 (herein, called
the "Assignment") from Owner, as assignor, to the Trustee, as assignee,
relating to the leases described therein between Owner, as lessor, and
Walgreen Co., an Illinois corporation, as lessee. The Indenture and the
Assignment are hereby incorporated by reference in and made a part of this
Note.
The principal of this Note is subject to prepayment from time to
time, in the manner and under the circumstances set forth in the Indenture at
a price equal to 100% of the principal amount hereof to be prepaid, plus
accrued and unpaid interest thereon to the date fixed for prepayment plus any
additional sums as set forth in the Indenture, together with the Make-Whole
Premium, if any, specified in the Indenture. Upon any such prepayment, each
Installment Payment which shall thereafter be due and payable on this Note
shall be proportionately decreased in accordance with actuarial practice so
that upon the due payment of 0 remaining Installment Payments there shall
have been paid to the Payee the entire unpaid principal balance of this Note,
together with accrued interest hereon.
Upon the occurrence and during the continuance of an Event of
Default specified in the Indenture, the principal hereof, the Make-Whole
Premium hereon, if any, and the interest accrued and unpaid hereon may be
declared to be forthwith due and payable as provided in the Indenture.
This Note is issuable only as a fully registered Note. Owner shall
deem and treat the person in whose name this Note is registered on the
Register as the absolute owner hereof (whether or not this Note shall be
overdue) for the purpose of receiving payments of principal, Make-Whole
Premium and interest and for all other purposes, and Payee shall not be
affected by any notice to the contrary. In accordance with the provisions of
the Indenture, this Note may be transferred and exchanged for Notes of other
denominations.
Should the indebtedness represented by this Note or any part thereof
be collected at law or in equity or in bankruptcy, receivership or
other-court proceeding or should this Note be placed in the hands of
attorneys for collection during the continuance of an Event of Default, Owner
agrees to pay, in addition to the principal, Make-Whole Premium, if any, and
interest due and payable hereon, all reasonable costs of collecting or
attempting to collect this Note, including reasonable attorneys' fees and
expenses (including those incurred in connection with any appeal).
Anything contained herein or in the Indenture to the contrary
notwithstanding, no recourse shall be had for the payment of the principal of
or interest or Make-Whole Premium, if any, on this Note or for any claim
based hereon or otherwise in respect hereof or based on or in respect of the
Indenture against any partner or member of the Issuer in his, her or its
individual capacity, except as provided in Article 10. I of the Indenture.
HART01-271829-1
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June 22, 1998 8:39 pm
-3-
This Note shall be governed by the law of the State of Michigan.
HART01-271829-1
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June 22, 1998 8:39 pm
-4-
IN WITNESS WHEREOF, Owner has caused this 6.63% Senior Secured
Note, Due February 5, 2017, to be duly executed.
Dated: June ___, 1999
AGREE FACILITY NO. 1, L.L.C.
a Delaware limited liability company
By: Agree Limited Partnership
a Delaware limited partnership
Its: Member
By: Agree Realty Corporation
a Maryland corporation
Its: General Partner
By: ____________________________
Richard Agree, Its President
Certificate of Authentication
This Note is one of the 6.63% Secured Notes due February 5, 2017, of
Agree Facility No. 1, L.L.C. described in the within-mentioned Indenture.
Manufacturers and Traders Trust Company, as trustee
By: ____________________________
Name:
HART01-271829-1
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June 22, 1998 8:39 pm
Agree Limited Partnership
Consolidated Amortization Schedule
$12,390,135.34 Debt
6.63% Debt Rate / 10.5 Year Average Life / 7.2 Year Duration
Cash Flow
- ---------------------------------------------------------------------------------------------------------------------------
Total Trustee Available Debt Free
Date Waterford Chesterfield Pontiac Grand Blanc Rent Reserves Fee Cash Service Cash
- ---------------------------------------------------------------------------------------------------------------------------
06/25/99
07/05/99 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 22,818.50 81,759.51
08/05/99 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
09/05/99 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
10/05/99 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
11/05/99 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
12/05/99 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
01/05/00 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
02/05/00 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
03/05/00 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
04/05/00 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
05/05/00 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
06/05/00 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
07/05/00 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
08/05/00 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
09/05/00 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
10/05/00 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
11/05/00 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
12/05/00 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
01/05/01 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
02/05/01 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
03/05/01 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
04/05/01 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
05/05/01 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
06/05/01 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
07/05/01 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
08/05/01 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
09/05/01 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
10/05/01 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
11/05/01 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
12/05/01 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
01/05/02 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
02/05/02 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
03/05/02 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
04/05/02 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
05/05/02 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
06/05/02 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
07/05/02 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
08/05/02 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
09/05/02 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
10/05/02 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
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01/05/03 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
02/05/03 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
03/05/03 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
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05/05/03 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
06/05/03 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
07/05/03 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
08/05/03 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
09/05/03 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
10/05/03 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
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01/05/04 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
02/05/04 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
03/05/04 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
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06/05/04 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
07/05/04 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
08/05/04 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
09/05/04 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
10/05/04 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
11/05/04 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
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01/05/05 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
02/05/05 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
03/05/05 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
04/05/05 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
05/05/05 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
06/05/05 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
07/05/05 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
08/05/05 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
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01/05/06 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
02/05/06 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
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11/05/06 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
12/05/06 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
01/05/07 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
02/05/07 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
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01/05/08 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
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01/05/09 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
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01/05/12 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
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01/05/13 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
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01/05/14 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
02/05/14 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
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09/05/14 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
10/05/14 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
11/05/14 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
12/05/14 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
01/05/15 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
02/05/15 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
03/05/15 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
04/05/15 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
05/05/15 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
06/05/15 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
07/05/15 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
08/05/15 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
09/05/15 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
10/05/15 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
11/05/15 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
12/05/15 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
01/05/16 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
02/05/16 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
03/05/16 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
04/05/16 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
05/05/16 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
06/05/16 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
07/05/16 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
08/05/16 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
09/05/16 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
10/05/16 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
11/05/16 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
12/05/16 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
01/05/17 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
02/05/17 25,492.50 27,942.25 25,625.00 26,709.16 105,768.91 982.56 208.34 104,578.01 99,598.10 4,979.91
Agree Limited Partnership
Consolidated Amortization Schedule
$12,390,135.34 Debt
6.63% Debt Rate / 10.5 Year Average Life / 7.2 Year Duration
Debt Amortization Schedule
- ---------------------------------------------------------------------------------
Principal Interest Principal Debt
Pmt Date Balance Payment Payment Service
- ---------------------------------------------------------------------------------
06/25/99 12,390,135.34
07/05/99 12,390,135.34 22,818.50 0.00 22,818.50
1 08/05/99 12,358,992.74 68,455.50 31,142.60 99,598.10
2 09/05/99 12,327,678.07 68,283.43 31,314.67 99,598.10
3 10/05/99 12,296,190.39 68,110.42 31,487.68 99,598.10
4 11/05/99 12,264,528.73 67,936.44 31,661.66 99,598.10
5 12/05/99 12,232,692.15 67,761.52 31,836.58 99,598.10
6 01/05/00 12,200,679.66 67,585.61 32,012.49 99,598.10
7 02/05/00 12,168,490.30 67,408.74 32,189.36 99,598.10
8 03/05/00 12,136,123.11 67,230.91 32,367.19 99,598.10
9 04/05/00 12,103,577.10 67,052.09 32,546.01 99,598.10
10 05/05/00 12,070,851.26 66,872.26 32,725.84 99,598.10
11 06/05/00 12,037,944.61 66,691.45 32,906.65 99,598.10
12 07/05/00 12,004,856.16 66,509.65 33,088.45 99,598.10
13 08/05/00 11,971,584.90 66,326.84 33,271.26 99,598.10
14 09/05/00 11,938,129.81 66,143.01 33,455.09 99,598.10
15 10/05/00 11,904,489.87 65,958.16 33,639.94 99,598.10
16 11/05/00 11,870,664.08 65,772.31 33,825.79 99,598.10
17 12/05/00 11,836,651.41 65,585.43 34,012.67 99,598.10
18 01/05/01 11,802,450.80 65,397.49 34,200.61 99,598.10
19 02/05/01 11,768,061.24 65,208.54 34,389.56 99,598.10
20 03/05/01 11,733,481.68 65,018.54 34,579.56 99,598.10
21 04/05/01 11,698,711.06 64,827.48 34,770.62 99,598.10
22 05/05/01 11,663,748.34 64,635.38 34,962.72 99,598.10
23 06/05/01 11,628,592.45 64,442.21 35,155.89 99,598.10
24 07/05/01 11,593,242.32 64,247.97 35,350.13 99,598.10
25 08/05/01 11,557,696.88 64,052.66 35,545.44 99,598.10
26 09/05/01 11,521,955.05 63,856.27 35,741.83 99,598.10
27 10/05/01 11,486,015.74 63,658.79 35,939.31 99,598.10
28 11/05/01 11,449,877.88 63,460.24 36,137.86 99,598.10
29 12/05/01 11,413,540.35 63,260.57 36,337.53 99,598.10
30 01/05/02 11,377,002.07 63,059.82 36,538.28 99,598.10
31 02/05/02 11,340,261.91 62,857.94 36,740.16 99,598.10
32 03/05/02 11,303,318.76 62,654.95 36,943.15 99,598.10
33 04/05/02 11,266,171.50 62,450.84 37,147.26 99,598.10
34 05/05/02 11,228,819.00 62,245.60 37,352.50 99,598.10
35 06/05/02 11,191,260.13 62,039.23 37,558.87 99,598.10
36 07/05/02 11,153,493.75 61,831.72 37,766.38 99,598.10
37 08/05/02 11,115,518.71 61,623.06 37,975.04 99,598.10
38 09/05/02 11,077,333.85 61,413.24 38,184.86 99,598.10
39 10/05/02 11,038,938.02 61,202.27 38,395.83 99,598.10
40 11/05/02 11,000,330.04 60,990.12 38,607.98 99,598.10
41 12/05/02 10,961,508.77 60,776.83 38,821.27 99,598.10
42 01/05/03 10,922,473.00 60,562.33 39,035.77 99,598.10
43 02/05/03 10,883,221.56 60,346.66 39,251.44 99,598.10
44 03/05/03 10,843,753.26 60,129.80 39,468.30 99,598.10
45 04/05/03 10,804,066.90 59,911.74 39,686.36 99,598.10
46 05/05/03 10,764,161.28 59,692.48 39,905.62 99,598.10
47 06/05/03 10,724,035.18 59,472.00 40,126.10 99,598.10
48 07/05/03 10,683,687.37 59,250.29 40,347.81 99,598.10
49 08/05/03 10,643,116.65 59,027.38 40,570.72 99,598.10
50 09/05/03 10,602,321.78 58,803.23 40,794.87 99,598.10
51 10/05/03 10,561,301.51 58,577.83 41,020.27 99,598.10
52 11/05/03 10,520,054.59 58,351.18 41,246.92 99,598.10
53 12/05/03 10,478,579.79 58,123.30 41,474.80 99,598.10
54 01/05/04 10,436,875.84 57,894.15 41,703.95 99,598.10
55 02/05/04 10,394,941.48 57,663.74 41,934.36 99,598.10
56 03/05/04 10,352,775.44 57,432.06 42,166.04 99,598.10
57 04/05/04 10,310,376.42 57,199.08 42,399.02 99,598.10
58 05/05/04 10,267,743.14 56,964.82 42,633.28 99,598.10
59 06/05/04 10,224,874.33 56,729.29 42,868.81 99,598.10
60 07/05/04 10,181,768.67 56,492.44 43,105.66 99,598.10
61 08/05/04 10,138,424.84 56,254.27 43,343.83 99,598.10
62 09/05/04 10,094,841.54 56,014.80 43,583.30 99,598.10
63 10/05/04 10,051,017.45 55,774.01 43,824.09 99,598.10
64 11/05/04 10,006,951.23 55,531.88 44,066.22 99,598.10
65 12/05/04 9,962,641.53 55,288.40 44,309.70 99,598.10
66 01/05/05 9,918,087.03 55,043.60 44,554.50 99,598.10
67 02/05/05 9,873,286.36 54,797.43 44,800.67 99,598.10
68 03/05/05 9,828,238.17 54,549.91 45,048.19 99,598.10
69 04/05/05 9,782,941.08 54,301.01 45,297.09 99,598.10
70 05/05/05 9,737,393.73 54,050.75 45,547.35 99,598.10
71 06/05/05 9,691,594.72 53,799.09 45,799.01 99,598.10
72 07/05/05 9,645,542.68 53,546.06 46,052.04 99,598.10
73 08/05/05 9,599,236.20 53,291.62 46,306.48 99,598.10
74 09/05/05 9,552,673.89 53,035.79 46,562.31 99,598.10
75 10/05/05 9,505,854.32 52,778.53 46,819.57 99,598.10
76 11/05/05 9,458,776.07 52,519.85 47,078.25 99,598.10
77 12/05/05 9,411,437.72 52,259.75 47,338.35 99,598.10
78 01/05/06 9,363,837.81 51,998.19 47,599.91 99,598.10
79 02/05/06 9,315,974.92 51,735.21 47,862.89 99,598.10
80 03/05/06 9,267,847.58 51,470.76 48,127.34 99,598.10
81 04/05/06 9,219,454.34 51,204.86 48,393.24 99,598.10
82 05/05/06 9,170,793.72 50,937.48 48,660.62 99,598.10
83 06/05/06 9,121,864.26 50,668.64 48,929.46 99,598.10
84 07/05/06 9,072,664.47 50,398.31 49,199.79 99,598.10
85 08/05/06 9,023,192.84 50,126.47 49,471.63 99,598.10
86 09/05/06 8,973,447.87 49,853.13 49,744.97 99,598.10
87 10/05/06 8,923,428.07 49,578.30 50,019.80 99,598.10
88 11/05/06 8,873,131.91 49,301.94 50,296.16 99,598.10
89 12/05/06 8,822,557.85 49,024.04 50,574.06 99,598.10
90 01/05/07 8,771,704.39 48,744.64 50,853.46 99,598.10
91 02/05/07 8,720,569.96 48,463.67 51,134.43 99,598.10
92 03/05/07 8,669,153.01 48,181.15 51,416.95 99,598.10
93 04/05/07 8,617,451.98 47,897.07 51,701.03 99,598.10
94 05/05/07 8,565,465.31 47,611.43 51,986.67 99,598.10
95 06/05/07 8,513,191.40 47,324.19 52,273.91 99,598.10
96 07/05/07 8,460,628.68 47,035.38 52,562.72 99,598.10
97 08/05/07 8,407,775.56 46,744.98 52,853.12 99,598.10
98 09/05/07 8,354,630.43 46,452.97 53,145.13 99,598.10
99 10/05/07 8,301,191.67 46,159.34 53,438.76 99,598.10
100 11/05/07 8,247,457.66 45,864.09 53,734.01 99,598.10
101 12/05/07 8,193,426.75 45,567.19 54,030.91 99,598.10
102 01/05/08 8,139,097.34 45,268.69 54,329.41 99,598.10
103 02/05/08 8,084,467.75 44,968.51 54,629.59 99,598.10
104 03/05/08 8,029,536.33 44,666.68 54,931.42 99,598.10
105 04/05/08 7,974,301.41 44,363.18 55,234.92 99,598.10
106 05/05/08 7,918,761.33 44,058.02 55,540.08 99,598.10
107 06/05/08 7,862,914.39 43,751.16 55,846.94 99,598.10
108 07/05/08 7,806,758.90 43,442.61 56,155.49 99,598.10
109 08/05/08 7,750,293.15 43,132.35 56,465.75 99,598.10
110 09/05/08 7,693,515.41 42,820.36 56,777.74 99,598.10
111 10/05/08 7,636,423.98 42,506.67 57,091.43 99,598.10
112 11/05/08 7,579,017.13 42,191.25 57,406.85 99,598.10
113 12/05/08 7,521,293.10 41,874.07 57,724.03 99,598.10
114 01/05/09 7,463,250.14 41,555.14 58,042.96 99,598.10
115 02/05/09 7,404,886.50 41,234.46 58,363.64 99,598.10
116 03/05/09 7,346,200.40 40,912.00 58,686.10 99,598.10
117 04/05/09 7,287,190.07 40,587.77 59,010.33 99,598.10
118 05/05/09 7,227,853.69 40,261.72 59,336.38 99,598.10
119 06/05/09 7,168,189.48 39,933.89 59,664.21 99,598.10
120 07/05/09 7,108,195.62 39,604.24 59,993.86 99,598.10
121 08/05/09 7,047,870.31 39,272.79 60,325.31 99,598.10
122 09/05/09 6,987,211.70 38,939.49 60,658.61 99,598.10
123 10/05/09 6,926,217.94 38,604.34 60,993.76 99,598.10
124 11/05/09 6,864,887.19 38,267.35 61,330.75 99,598.10
125 12/05/09 6,803,217.60 37,928.51 61,669.59 99,598.10
126 01/05/10 6,741,207.28 37,587.78 62,010.32 99,598.10
127 02/05/10 6,678,854.35 37,245.17 62,352.93 99,598.10
128 03/05/10 6,616,156.92 36,900.67 62,697.43 99,598.10
129 04/05/10 6,553,113.09 36,554.27 63,043.83 99,598.10
130 05/05/10 6,489,720.94 36,205.95 63,392.15 99,598.10
131 06/05/10 6,425,978.54 35,855.70 63,742.40 99,598.10
132 07/05/10 6,361,883.97 35,503.53 64,094.57 99,598.10
133 08/05/10 6,297,435.28 35,149.41 64,448.69 99,598.10
134 09/05/10 6,232,630.51 34,793.33 64,804.77 99,598.10
135 10/05/10 6,167,467.69 34,435.28 65,162.82 99,598.10
136 11/05/10 6,101,944.85 34,075.26 65,522.84 99,598.10
137 12/05/10 6,036,060.00 33,713.25 65,884.85 99,598.10
138 01/05/11 5,969,811.13 33,349.23 66,248.87 99,598.10
139 02/05/11 5,903,196.23 32,983.20 66,614.90 99,598.10
140 03/05/11 5,836,213.29 32,615.16 66,982.94 99,598.10
141 04/05/11 5,768,860.26 32,245.07 67,353.03 99,598.10
142 05/05/11 5,701,135.11 31,872.95 67,725.15 99,598.10
143 06/05/11 5,633,035.78 31,498.77 68,099.33 99,598.10
144 07/05/11 5,564,560.20 31,122.52 68,475.58 99,598.10
145 08/05/11 5,495,706.29 30,744.19 68,853.91 99,598.10
146 09/05/11 5,426,471.97 30,363.78 69,234.32 99,598.10
147 10/05/11 5,356,855.12 29,981.25 69,616.85 99,598.10
148 11/05/11 5,286,853.65 29,596.63 70,001.47 99,598.10
149 12/05/11 5,216,465.42 29,209.87 70,388.23 99,598.10
150 01/05/12 5,145,688.29 28,820.97 70,777.13 99,598.10
151 02/05/12 5,074,520.12 28,429.93 71,168.17 99,598.10
152 03/05/12 5,002,958.74 28,036.72 71,561.38 99,598.10
153 04/05/12 4,931,001.99 27,641.35 71,956.75 99,598.10
154 05/05/12 4,858,647.68 27,243.79 72,354.31 99,598.10
155 06/05/12 4,785,893.60 26,844.02 72,754.08 99,598.10
156 07/05/12 4,712,737.57 26,442.07 73,156.03 99,598.10
157 08/05/12 4,639,177.34 26,037.87 73,560.23 99,598.10
158 09/05/12 4,565,210.71 25,631.47 73,966.63 99,598.10
159 10/05/12 4,490,835.40 25,222.79 74,375.31 99,598.10
160 11/05/12 4,416,049.18 24,811.88 74,786.22 99,598.10
161 12/05/12 4,340,849.75 24,398.67 75,199.43 99,598.10
162 01/05/13 4,265,234.84 23,983.19 75,614.91 99,598.10
163 02/05/13 4,189,202.17 23,565.43 76,032.67 99,598.10
164 03/05/13 4,112,749.42 23,145.35 76,452.75 99,598.10
165 04/05/13 4,035,874.26 22,722.94 76,875.16 99,598.10
166 05/05/13 3,958,574.37 22,298.21 77,299.89 99,598.10
167 06/05/13 3,880,847.39 21,871.12 77,726.98 99,598.10
168 07/05/13 3,802,690.97 21,441.68 78,156.42 99,598.10
169 08/05/13 3,724,102.74 21,009.87 78,588.23 99,598.10
170 09/05/13 3,645,080.31 20,575.67 79,022.43 99,598.10
171 10/05/13 3,565,621.27 20,139.06 79,459.04 99,598.10
172 11/05/13 3,485,723.23 19,700.06 79,898.04 99,598.10
173 12/05/13 3,405,383.75 19,258.62 80,339.48 99,598.10
174 01/05/14 3,324,600.40 18,814.75 80,783.35 99,598.10
175 02/05/14 3,243,370.72 18,368.42 81,229.68 99,598.10
176 03/05/14 3,161,692.25 17,919.63 81,678.47 99,598.10
177 04/05/14 3,079,562.50 17,468.35 82,129.75 99,598.10
178 05/05/14 2,996,978.98 17,014.58 82,583.52 99,598.10
179 06/05/14 2,913,939.19 16,558.31 83,039.79 99,598.10
180 07/05/14 2,830,440.60 16,099.51 83,498.59 99,598.10
181 08/05/14 2,746,480.69 15,638.19 83,959.91 99,598.10
182 09/05/14 2,662,056.89 15,174.30 84,423.80 99,598.10
183 10/05/14 2,577,166.66 14,707.87 84,890.23 99,598.10
184 11/05/14 2,491,807.41 14,238.85 85,359.25 99,598.10
185 12/05/14 2,405,976.55 13,767.24 85,830.86 99,598.10
186 01/05/15 2,319,671.47 13,293.02 86,305.08 99,598.10
187 02/05/15 2,232,889.56 12,816.19 86,781.91 99,598.10
188 03/05/15 2,145,628.18 12,336.72 87,261.38 99,598.10
189 04/05/15 2,057,884.67 11,854.59 87,743.51 99,598.10
190 05/05/15 1,969,656.38 11,369.81 88,228.29 99,598.10
191 06/05/15 1,880,940.64 10,882.36 88,715.74 99,598.10
192 07/05/15 1,791,734.74 10,392.20 89,205.90 99,598.10
193 08/05/15 1,702,035.97 9,899.33 89,698.77 99,598.10
194 09/05/15 1,611,841.62 9,403.75 90,194.35 99,598.10
195 10/05/15 1,521,148.94 8,905.42 90,692.68 99,598.10
196 11/05/15 1,429,955.19 8,404.35 91,193.75 99,598.10
197 12/05/15 1,338,257.59 7,900.50 91,697.60 99,598.10
198 01/05/16 1,246,053.37 7,393.88 92,204.22 99,598.10
199 02/05/16 1,153,339.71 6,884.44 92,713.66 99,598.10
200 03/05/16 1,060,113.81 6,372.20 93,225.90 99,598.10
201 04/05/16 966,372.83 5,857.12 93,740.98 99,598.10
202 05/05/16 872,113.94 5,339.21 94,258.89 99,598.10
203 06/05/16 777,334.27 4,818.43 94,779.67 99,598.10
204 07/05/16 682,030.95 4,294.78 95,303.32 99,598.10
205 08/05/16 586,201.07 3,768.22 95,829.88 99,598.10
206 09/05/16 489,841.73 3,238.76 96,359.34 99,598.10
207 10/05/16 392,950.00 2,706.37 96,891.73 99,598.10
208 11/05/16 295,522.95 2,171.05 97,427.05 99,598.10
209 12/05/16 197,557.61 1,632.76 97,965.34 99,598.10
210 01/05/17 99,051.01 1,091.50 98,506.60 99,598.10
211 02/05/17 0.00 547.26 99,051.01 99,598.27
EXHIBIT 1
FORM OF TRANSFEREE CERTIFICATION
Manufacturers and Traders
Trust Company
One M&T Plaza, 7th Floor
Buffalo, New York 14203-2399
Re: Agree Facility No. I, L.L.C. 6.63% Secured Notes Due
February 5, 2017 under the Trust Mortgage, dated as of June
__, 1999 (the "Indenture") from Agree Facility No. I,
L.L.C. ("Owner") to Manufacturers and Traders Trust
Company, as Trustee for the benefit of the Registered
Owners of the Notes
Dear Sir/Madam:
_________________________________________________ as registered
holder ("Seller") intends to transfer the captioned Note to ("Purchaser"),
for registration in the name of _____________________.
1. In connection with such transfer and in accordance with Section
2.7 of the Indenture, the Seller hereby certifies the following facts:
Neither the Seller nor anyone acting on its behalf has offered, transferred,
pledged, sold or otherwise disposed of the Note, any interest in the Note or
any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Note, any interest in the Note
or any other similar security with, any person in any manner, or made any
general solicitation by means of general advertising or in any other manner,
or taken any other action which would constitute a distribution of the Note
under the Securities Act of 1933, as amended (the "1933 Act"), or which would
render the disposition of the Note a violation of Section 5 of the 1933 Act
or require registration pursuant thereto.
2. The Purchaser warrants and represents to, and covenants with, the
Seller, the Trustee and the Owner as follows:
(a) The Purchaser understands that the Notes have not been and will
not be registered under the 1933 Act in reliance upon the exemption provided
in Section 4(2) of the 1933 Act or any other applicable exemption, that the
Securities have not and will not be registered or qualified under the "Blue
Sky" laws of any jurisdiction, that the Securities may be resold (which
resale is not currently contemplated) or otherwise transferred only if so
registered or qualified or if an exemption from registration or qualification
is available.
(b) The Purchaser is acquiring the Note for investment for its own
account only and not for any other person.
(c) The Purchaser considers itself a substantial, sophisticated
institutional investor having such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
investment in the Note and is able to bear the economic risk of such
investment.
(d) The Purchaser has received such information regarding the Note
as the Purchaser has requested for the Note and has reviewed such material on
its own behalf.
(e) Neither the Purchaser nor any person acting on its behalf has
made or shall make offers or sales of any of the Notes by means of any form
of general solicitation or general advertising or in any other manner, or
taken any other action which would constitute a distribution under the 1933
Act or which would render the disposition of the Notes a violation of Section
5 of the 1933 Act or require registration pursuant thereto. The Purchaser
agrees that it will not offer or sell, Transfer (as defined below), assign,
or otherwise dispose of the Notes or any interest therein except (1) pursuant
to an exemption from, or in a transaction not subject to, the registration
requirements of the 1933 Act and any applicable state securities laws and (2)
in accordance with the provisions of the Indenture to which provision the
Purchaser hereby agrees it is subject. The Purchaser further agrees that
prior to any sale or other Transfer by the Purchaser of any of the Notes, the
Purchaser shall obtain from the Transferee (as defined below) and deliver to
the Trustee and Owner a duly executed Transferee Certificate substantially in
the form attached to the Indenture as Exhibit 1. "Transfer" shall mean any
transfer of any ownership interest, legal or beneficial, whether through a
sale, pledge, assignment, option or any other method, and "Transferor,"
"Transferee," "Transferring" and "Transferred" shall have correlative
meanings.
(f) At least one of the following statements is an accurate
representation as to each source of funds (a "Source") to be used by the
Purchaser to pay the purchase price of the Note:
(i) if the Purchaser is an insurance company, either (i)
the Source is a separate account that is maintained solely in
connection with the Purchaser's fixed contractual obligations under
which the amounts payable, or credited, to any employee benefit plan
and to any participant or beneficiary of such plan (including any
annuitant) are not affected in any manner by the investment
performance of the separate account, or
(ii) the Source is an "insurance company general account"
within the meaning of Department of Labor Prohibited Transaction
Exemption ("PTE") 95-60, and the amount of reserves and liabilities
for the contract(s) held by or on behalf of each employee benefit
plan which has an interest in the Purchaser's general account as a
contractholder, together with the amount of reserves and liabilities
for the general account contracts held by or on behalf of any other
such plan maintained by the same employer (or an affiliate thereof)
or by the same employee organization, does not exceed 10% of the
total reserves and liabilities of the Purchaser's general account
plus surplus as determined pursuant to the provisions of Section
I(a) of PTE 95-60; or
(ii) the Source is either (i) an insurance company pooled
separate account, within the meaning of PTE 90-1, or (ii) a bank
collective investment fund, within the meaning of the PTE 91-38 and,
except as the Purchaser has disclosed to the Seller, the Trustee and
the Owner in writing pursuant to this paragraph (f), no employee
benefit plan or group of plans maintained by the same employer or
employee organization beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective investment
fund; or
(iii) the Source constitutes assets of an "investment fund"
(within the meaning of Part V of PTE 84-14 (the "QPAM Exemption"))
managed by a "qualified professional asset manager" or "QPAM"
(within the meaning of Part V of the QPAM Exemption), no employee
benefit plan's assets that are included in such investment fund,
when combined with the assets of all other employee benefit plans
established or maintained by the same employer or by an affiliate
(within the meaning of Section V(c)(1) of the QPAM Exemption) of
such employer or by the same employee organization and managed by
such QPAM, exceed 20% of total client assets managed by such QPAM,
the conditions of Part I(c) and (g) of the QPAM Exemption are
satisfied, neither the QPAM nor a person controlling or controlled
by the QPAM (applying the definition of "control" in Section V(e) of
the QPAM Exemption) owns a 5% or more interest in the Company and
(i) the identity of such QPAM and (ii) the names of all employee
benefit plans whose assets are included in such investment fund have
been disclosed to the Company in writing pursuant to this paragraph
(f); or
(iv) the Source is a governmental plan; or
(v) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee
benefit plans, each of which has been identified to the Company in
writing pursuant to this paragraph (f); or
(vi) the Source does not include assets of any employee
benefit plan, other than a plan exempt from the coverage of ERISA.
As used in this Section 2, the terms "employee benefit plan", "governmental
plan" and "separate account" shall have the respective meanings assigned to
such terms in Section 3 of ERISA.
(g) The Purchaser is a "Qualified Institutional Buyer" under Rule
144A as an insurance company, defined in Section 2(13) of the Securities Act
of 1933, as amended.
(h) The Purchaser is an "Accredited Investor" within the meaning of
Regulation D, Rule 501(a)(1), as an insurance company as defined in Section
2(13) of the 1933 Act.
(i) The Purchaser is a U.S. person, as defined in Regulation S.
3. The ownership by the Purchaser of the Note, or by the account for
which the Purchaser exercises investment discretion, constitutes "beneficial
ownership," as such term is used in Section 3 of the Investment Company Act
of 1940, as amended (the "1940 Act"), by only one person. In making the
representation contained in this paragraph, the Purchaser has taken into
account the attribution rules prescribed in subparagraph (A) of Section
3(c)(1) of the 1940 Act.
4. The Purchaser understands that there is no market for the Notes
and that no assurance can be given as to the liquidity of the trading market
for the Notes or that a trading market for the Notes will develop.
Accordingly, the Purchaser must be prepared to hold the Notes for an
indefinite period of time.
5. This document may be executed in one or more counterparts and by
the different parties hereto on separate counterparts, each of which so
executed, shall be deemed to be an original; such counterparts, together,
shall constitute one and the same document.
IN WITNESS WHEREOF, each of the parties has caused this document to
be executed by their duly authorized officers as of the date set forth below.
__________________________________ _________________________________
Seller Purchaser
By:_______________________________ By: _____________________________
Name: Name:
Title: Title:
Taxpayer ID: Taxpayer ID:
Date: Date:
EXHIBIT 2
FORM OF NOTE ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
without representation or warranty, express or implied, and without recourse
unto
- ---------------------------------------------------------------------------
Please insert Social Security or
Taxpayer Identification Number of Transferee
----------------------------
/---------------------------/
- -----------------------------------------------------------------------------
(Please print or typewrite name and address, including zip code of
transferee)
- -----------------------------------------------------------------------------
the within 6.63% Secured Note, Due February 5, 2017 and all rights
thereunder, and hereby irrevocably constitutes and appoints
- -----------------------------------------------------------------------------
attorney to register the transfer of such Note on the books kept for
registration thereof, with full power of substitution in the premises.
Dated: ______________
Signature Guaranteed:
- ------------------------------- --------------------------------
NOTICE: Signature(s) must NOTICE: The signature above
be guaranteed by a member must correspond with the name
or participant of a of the Registered Owner
signature guarantee program. of this Note.
State of ________________ )
) ss.
County of ______________ )
The foregoing instrument was acknowledged before me this _____ day
of ______________, by __________________________ , of ___________________, a
________________, who is personally known to me or has produced his or her
driver's license as identification.
____________________________________________
Notary Public
Print Name _________________________________
My Commission Expires: _____________________
Commission No.: ____________________________
State of __________________ )
) ss.
County of _________________ )
On this, the ___ day of ___________, ____, before me, a Notary
Public, personally appeared ____________________, who acknowledged himself to
be _________________, of __________________, a ______________________and that
he, as such _____________, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing his name as trustee.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
___________________________________
Notary Public
My commission expires:_____________
EXHIBIT 3
FORM OF NOTICE TO TRUSTEE
Manufacturers and Traders
Trust Company
One M&T Plaza, 7th Floor
Buffalo, New York 14203-2399
Re: Agree Facility No. I, L.L.C. 6.63% Secured Notes Due February 5, 2017
Dear Sir/Madam:
Reference is hereby made to the Trust Mortgage, dated as of June __,
1999 (the "Indenture") from Agree Facility No. I, L.L.C.("Owner") to
Manufacturers and Traders Trust Company, as trustee ("Trustee"). Capitalized
terms used herein which are undefined shall have the meanings assigned to
such terms in the Indenture.
The undersigned Registered Owner hereby confirms to Trustee that it
has approved the attached Performance Bond obtained by Owner pursuant to the
Indenture.
[_________________________]
By:_______________________
Name:
Title:
EXHIBIT 4
TRUSTEE FEE SCHEDULE
1. $2500 initiation fee due at Closing (as defined in the Note Agreement)
2. $2500 annual fee payable in advance, the first such annual fee being
due at Closing.
EXHIBIT 5 TO TRUST MORTGAGE
OMITTED