LOAN AGREEMENT
THIS LOAN AGREEMENT, made as of March 4, 1997, is by
and between NOMURA ASSET CAPITAL CORPORATION, a Delaware
corporation, having an address at Two World Financial Center,
Building B, New York, New York 10281-1195, Attention:
Christopher Tierney, Telefax Number (212) 667-1666 (together,
with its successors and assigns, "Lender") and MARK NORTHWOOD
ASSOCIATES, LIMITED PARTNERSHIP, a Florida limited partnership,
c/o Mark Centers Limited Partnership, 600 Third Avenue, Kingston,
Pennsylvania 18704-1679, Attention: Joshua Kane, Telefax Number:
(717) 258-1028 (the "Borrower").
RECITALS
WHEREAS, Borrower desires to obtain a loan (the "Loan")
from Lender in the principal amount of $23,000,000 (the "Loan
Amount");
WHEREAS, Lender is willing to make the Loan on the
condition that Borrower joins in the execution and delivery of
this Agreement which shall establish the terms and conditions of
the Loan; and
WHEREAS, Lender and Borrower contemplate that all or
any portion of Lender's interest in the Loan and to the Loan
Documents may be assigned, in whole or in part, by Lender to
another Person, including, without limitation, to a trustee on
behalf of security holders in connection with a Securitization.
NOW, THEREFORE, in consideration of the making of the
Loan by Lender and the covenants, agreements, representations and
warranties set forth in this Agreement, the parties hereby
covenant, agree, represent and warrant as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1. Definitions. For all purposes of this
Agreement:
(a) the capitalized terms defined in this Article I
have the meanings assigned to them in this Article I, and include
the plural as well as the singular;
(b) all accounting terms have the meanings assigned to
them in accordance with GAAP;
(c) the words "herein", "hereof", and "hereunder" and
other words of similar import refer to this Agreement as a whole
and not to any particular Article, Section, or other subdivision;
and
(d) the following terms have the following meanings:
"Account Collateral" has the meaning provided in
Section 2.13(a).
"Accounts" means all of Borrower's "accounts" as such
term is defined in the UCC, and, to the extent not included in
such definition, any of Borrower's rights to payment for goods
sold or leased or for services rendered arising from the
ownership or operation of the Facility and not evidenced by an
Instrument, including, without limitation, all accounts and
accounts receivable arising from the ownership or operation of
the Facility, now existing or hereafter coming into existence,
and all proceeds thereof (whether cash or non-cash, moveable or
immovable, tangible or intangible), received from the sale,
exchange, transfer, collection or other disposition or
substitution thereof.
"Accrued Interest" has the meaning provided in Section
2.5(e).
"Adjusted Net Operating Income" means, for any period,
the Net Operating Income for such period reduced by (i) the
Capital Reserve Amount, pro rated for the applicable period, (ii)
annual base management fees, pro rated for the applicable period,
equal to (A) the greater of (y) actual base management fees paid
pursuant to the Management Agreement and (z) five percent (5%) of
Gross Revenues, reduced by (B) those costs and expenses
consisting of Operating Expenses which would ordinarily be paid
by the Manager from the management fee payable under the
Management Agreement, (iii) an amount necessary to reflect a
minimum annual vacancy factor of the greater of (a) actual
vacancy on a trailing twelve (12) month basis and (b) five
percent (5%), pro rated for the applicable period, (iv) a tenant
improvement and leasing commission allowance of $1.00 multiplied
by the number of square feet of gross rentable area (excluding
the square footage included within the Lease to Publix and ground
Lease to the U.S. Postal Service) (as approved by Lender in
Lender's discretion) per annum, pro rated for the applicable
period and (v) a credit loss allowance, prorated for the
applicable period, equal to the greater of (y) actual credit loss
and (z) five percent (5%) of Gross Revenues. Notwithstanding the
foregoing part of this definition of "Adjusted Net Operating
Income" to the contrary, if the period for which Adjusted Net
Operating Income is being calculated includes periods prior to
the Closing Date, Adjusted Net Operating Income shall be
calculated for such period based on the applicable pro rata
portion of Base Adjusted NOI.
"Advisor" means Nomura Securities International, Inc.
"Affiliate" of any specified Person means any other
Person controlling, controlled by or under common control with
such specified Person. For the purposes of this Agreement,
"control" when used with respect to any specified Person means
the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting
securities or other beneficial interests, by contract or
otherwise; and the terms "controls", "controlling" and
"controlled" have the meanings correlative to the foregoing.
"Agreement" means this Loan Agreement, as the same may
from time to time hereafter be modified, supplemented or amended.
"Annual Operating Budget" means an annual budget for
the operations of the Facility (broken down on a month-by-month
basis) prepared, and submitted by Borrower to Lender (i) on the
Optional Prepayment Date, for the period of time commencing on
the Optional Prepayment Date to and including the last day of the
calendar year in which the Optional Prepayment Date occurs and
(ii) on each December 1, for each succeeding calendar year, all
in form and substance reasonably satisfactory to Lender and as
reasonably approved by Lender, as the same shall be amended by
Borrower from time to time, with Lender's written consent.
Lender's approval shall be deemed given if Lender does not
respond to Borrower's proposed budget within thirty (30) days of
Lender's receipt thereof.
"Appraisals" means the appraisals, if any, with respect
to the Facility delivered to Lender in connection with the Loan
and any more recent appraisal of the Facility delivered to Lender
or Lender's servicer, as applicable, each made by an Appraiser at
the request of Borrower or Lender, as any of the same may be
updated by recertification from time to time (and pursuant to the
terms of this Agreement) by the Appraiser performing such
Appraisal.
"Appraiser" means any Independent appraiser selected by
Borrower (and reasonably satisfactory to Lender) who is (i) a
member of the Appraisal Institute with a national practice and
who has at least ten years experience with real estate of the
same type and in the geographic area of the Facility to be
appraised or (ii) otherwise acceptable to Lender.
"Appurtenant Rights" has the meaning set forth in the
Mortgage.
"Assignment of Agreements" means, with respect to the
Facility, a first priority Assignment of Management Agreement and
Agreements Affecting Real Estate, in form and substance
satisfactory to Lender in its sole discretion, dated as of the
Closing Date from Borrower, as assignor, to Lender, as assignee,
as the same may thereafter from time to time be supplemented,
amended, modified or extended by one or more written agreements
supplemental thereto.
"Assignment of Leases" means, with respect to the
Facility, a first priority Assignment of Leases and Rents, in
form and substance satisfactory to Lender in Lender's sole
discretion, dated as of the Closing Date from Borrower, as
assignor, to Lender, as assignee, assigning to Lender Borrower's
interest in and to the Leases and the Rents with respect to the
Facility as security for the Loan, as the same may thereafter
from time to time be supplemented, amended, modified or extended
by one or more written agreements supplemental thereto.
"Base Adjusted NOI" means the amount shown on Exhibit
B.
"Base Payment" has the meaning provided in Section
2.5(c).
"Basic Carrying Costs" means the following costs with
respect to the Facility (i) real property taxes, assessments and
Impositions (including without limitation any payments due under
any ground lease and any ground rents) applicable to the
Facility, and (ii) insurance premiums for policies of insurance
required or permitted to be maintained by Borrower pursuant to
this Agreement or the other Loan Documents.
"Basic Carrying Costs Monthly Installment" means, with
respect to the Facility, Lender's reasonable and good faith
estimate of one-twelfth (1/12th) of the annual amount of the
Basic Carrying Costs (provided, that Lender may calculate
reasonably and in good faith the monthly amount to assure that
funds are reserved in sufficient amounts to enable the payment of
all Impositions, including, without limitation, taxes and
insurance premiums thirty (30) days prior to their respective due
dates). Should the Basic Carrying Costs for the then current
Fiscal Year or payment period not be ascertainable by Lender at
the time a monthly deposit is required to be made, the Basic
Carrying Costs Monthly Installment shall be Lender's reasonable
and good faith estimate based on one-twelfth (1/12th) of the
aggregate Basic Carrying Costs for the prior Fiscal Year or
payment period, with reasonable adjustments as reasonably
determined by Lender. As soon as the Basic Carrying Costs are
fixed for the then current Fiscal Year or period, the next
ensuing Basic Carrying Costs Monthly Installment shall be
reasonably adjusted to reflect any deficiency or surplus in prior
Basic Carrying Costs Monthly Installments.
"Basic Carrying Costs Sub-Account" means the Sub-
Account of the Cash Collateral Account established and maintained
pursuant to Section 2.12 relating to the payment of Basic
Carrying Costs.
"Borrower" has the meaning provided in the first
paragraph of this Agreement.
"Business Day" means any day other than (i) a Saturday
or a Sunday, and (ii) a day on which federally insured depository
institutions in New York, New York, Chicago, Illinois or the
State in which the Collection Account Bank is located are
authorized or obligated by law, regulation, governmental decree
or executive order to be closed.
"Capital Improvement Costs" means costs incurred by
Borrower in connection with capital improvements to the Facility.
"Capital Reserve Amount" means with respect to the
Facility, an amount equal to (i) $0.35 multiplied by the number
of square feet of gross rentable area (as approved by Lender) for
the Office Space per annum and (ii) $0.20 multiplied by the
number of square feet of gross rentable area (as approved by
Lender) for the Retail Space.
"Capital Reserve Monthly Installment" means, with
respect to the Facility, an amount equal to one-twelfth (1/12th)
of the Capital Reserve Amount.
"Capital Reserve Sub-Account" means the Sub-Account of
the Cash Collateral Account established and maintained pursuant
to Section 2.12 relating to the payment of Capital Improvement
Costs.
"Cash Collateral Account" has the meaning provided in
Section 2.12(b).
"Cash Collateral Account Agreement" has the meaning
provided in Section 2.13(c).
"Cash Collateral Account Bank" means the bank chosen by
Lender to hold the Cash Collateral Account, or any successor bank
hereafter selected by Lender in accordance with the terms hereof.
"Closing Date" means the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended, and as it may be further amended from time to time, any
successor statutes thereto, and applicable U.S. Department of
Treasury regulations issued pursuant thereto in temporary or
final form.
"Collateral" means, collectively, the Land, Leasehold
Estate, Appurtenant Rights, Improvements, Equipment, Rents,
Leases, Accounts, Account Collateral, General Intangibles, goods,
Instruments, Inventory, Money, Permitted Investments and (to the
full extent assignable) Permits and all Proceeds and products of
the foregoing, all whether now owned or hereafter acquired and
all other property which is or hereafter may become subject to a
Lien in favor of Lender as security for the Loan.
"Collateral Security Instrument" means any right,
document or instrument, other than a Mortgage, given as security
for the Loan (including, without limitation, the Assignment of
Leases, the Assignment of Agreements and the Manager's
Subordination), as the same may hereafter from time to time be
supplemented, amended, extended or modified.
"Collection Account" has the meaning provided in
Section 2.12(a).
"Collection Account Agreement" has the meaning set
forth in Section 2.12(b).
"Collection Account Bank" means, with respect to the
Facility, the applicable collection bank for the Facility and any
successor bank hereafter selected by Borrower and reasonably
approved by Lender.
"Condemnation Proceeds" has the meaning provided in
Section 2.12(h).
"Contingent Obligation" means any obligation of
Borrower guaranteeing any indebtedness, leases, dividends or
other obligations ("primary obligations") of any other Person
(the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of
Borrower, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds
(x) for the purchase or payment of any such primary obligation or
(y) to maintain working capital or equity capital of the primary
obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (iv) otherwise to assure or
hold harmless the owner of such primary obligation against loss
in respect thereof. The amount of any Contingent Obligation
shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which
such Contingent Obligation is made (taking into account the non-
recourse or limited recourse nature of such Contingent
Obligation, if applicable) or, if not stated or determinable, the
maximum anticipated liability in respect thereof (assuming that
Borrower is required to perform thereunder) as determined by
Lender in good faith (taking into account the non-recourse or
limited recourse nature of such Contingent Obligation, if
applicable).
"Current Interest Accrual Period" has the meaning
provided in Section 2.12(g).
"Debt Service" means, for any period, the principal,
interest payments, Default Rate interest, Late Charges and Yield
Maintenance Premium that accrue or are due and payable in
accordance with the Loan Documents during such period.
"Debt Service Coverage Ratio" means, for any period,
the quotient obtained by dividing Adjusted Net Operating Income
for the specified period by the aggregate amount of the Base
Payments due for such period.
"Debt Service Payment Sub-Account" means the Sub-
Account of the Cash Collateral Account established and maintained
pursuant to Section 2.12 relating to the payment of Debt Service.
"Default" means the occurrence of any event which, but
for the giving of notice or the passage of time, or both, would
be an Event of Default.
"Default Collateral" has the meaning provided in
Section 8.14.
"Default Rate" means the per annum interest rate equal
to the lesser of (i) the Maximum Amount or (ii) the Interest Rate
plus five percent (5%).
"Defeasance Deposit" means the following in each of the
following circumstances:
(i) in the case of a total defeasance of the Loan and
Facility pursuant to Section 2.11, "Defeasance Deposit" means the
amount that will be sufficient to purchase U.S Obligations (A)
having maturity dates on or prior to, but as close as possible
to, successive scheduled Payment Dates (after the Defeasance
Release Date) upon which Payment Dates interest and principal
payments would be required under the Note as though the Maturity
Date of the Note was the Optional Prepayment Date and (B) in
amounts sufficient to pay all scheduled principal and interest
payments on the Note as if the Maturity Date of the Note was the
Optional Prepayment Date (but without any adjustment of the
monthly amortization schedule); and
(ii) in the case of a partial defeasance of the Loan
pursuant to Section 5.1(P), "Defeasance Deposit" means the amount
that will be sufficient to purchase U.S. Obligations (A) having
maturity dates on or prior to, but as close as possible to, the
successive scheduled Payment Dates (after the date of such
voluntary defeasance) upon which Payment Dates interest and
principal payments would be required under the Note as though the
Maturity Date of the Note was the Optional Prepayment Date and
(B) in amounts sufficient to pay all scheduled principal and
interest payments on the Note (1) as if the Maturity Date of the
Note was the Optional Prepayment Date (but without any adjustment
of the monthly amortization schedule) and (2) as if the
outstanding principal indebtedness due under the Note was an
amount equal to the amount required to be defeased pursuant to
Section 5.1(P) in connection with such partial defeasance.
"Defeasance Release Date" has the meaning provided in
Section 2.11(a).
"Eligible Account" means (i) an account maintained with
a federal or state chartered depository institution or trust
company whose (x) commercial paper, short-term debt obligations
or other short-term deposits are rated at least A-1 by each
Rating Agency if the deposits in such account are to be held in
such account for thirty (30) days or less or (y) long-term
unsecured debt obligations are rated at least AA- by each Rating
Agency if the deposits in such account are to be held in such
account for more than thirty (30) days; or (ii) a segregated
trust account maintained with the trust department of a federal
or state chartered depository institution or trust company acting
in its fiduciary capacity which institution or trust company is
subject to regulations regarding fiduciary funds on deposit
substantially similar to 12 C.F.R. section 9.10(b); or (iii) an account
otherwise acceptable to each Rating Agency, as confirmed in
writing that such account would not, in and of itself, result in
a downgrade, qualification or withdrawal of the then current
ratings assigned to any security issued in connection with a
Securitization.
"Engineer" means any reputable Independent engineer,
properly licensed in the relevant jurisdiction and approved by
Lender in Lender's reasonable discretion.
"Engineering Reports" means the structural engineering
reports with respect to the Facility prepared by an Engineer and
delivered to Lender in connection with the Loan and any
amendments or supplements thereto delivered to Lender.
"Entity" means (a) a limited partnership, if Borrower
is listed as a limited partnership in the first paragraph of this
Agreement or (b) a limited liability company, if Borrower is
listed as a limited liability company in the first paragraph of
this Agreement.
"Environmental Claim" means any written request for
information by a Governmental Authority, or any written notice,
notification, claim, administrative, regulatory or judicial
action, suit, judgment, demand or other written communication by
any Person or Governmental Authority requiring, alleging or
asserting liability with respect to Borrower, or the Facility,
whether for damages, contribution, indemnification, cost
recovery, compensation, injunctive relief, investigatory,
response, remedial or cleanup costs, damages to natural
resources, personal injuries, fines or penalties arising out of,
based on or resulting from (i) the presence, Use, Release or
threatened Release into the environment of any Hazardous
Substance originating at or from, or otherwise affecting the
Facility, (ii) any fact, circumstance, condition or occurrence
forming the basis of any violation, or alleged violation, of any
Environmental Law by Borrower or otherwise affecting the Facility
or (iii) any alleged injury or threat of injury to health, safety
or the environment by Borrower or otherwise affecting the
Facility.
"Environmental Guaranty" means the Environmental Indemnity
Agreement in form and substance satisfactory to Lender in
Lender's sole discretion dated as of the Closing Date from the
Parent to Lender, as the same may thereafter be from time to time
supplemented, amended, modified or extended by one or more
agreements supplemental thereto.
"Environmental Laws" means any and all applicable
federal, state, local and foreign laws, rules, regulations or
municipal ordinances, each as amended from time to time, any
judicial or administrative orders, decrees, settlement agreements
or judgments thereunder, and any Permits, approvals, licenses,
registrations, filings and authorizations, in each case as in
effect as of the relevant date, relating to the environment,
health or safety, or the Release or threatened Release of
Hazardous Substances into the indoor or outdoor environment
including, without limitation, ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata, or otherwise
relating to the presence or Use of Hazardous Substances.
"Environmental Reports" means, with respect to the
Facility, the environmental audit reports delivered to Lender in
connection with the Loan and any amendments or supplements
thereto delivered to Lender.
"Equipment" means all of Borrower's "equipment" as such
term is defined in the UCC, and, to the extent not included in
such definition, any of Borrower's rights in all fixtures,
appliances, machinery, furniture, furnishings, decorations, tools
and supplies, now owned or hereafter acquired by Borrower,
including but not limited to, all beds, linens, radios,
televisions, carpeting, telephones, cash registers, computers,
lamps, glassware, restaurant and kitchen equipment, and building
equipment, including but not limited to, all heating, lighting,
incinerating, waste removal and power equipment, engines, pipes,
tanks, motors, conduits, switchboards, security and alarm
systems, plumbing, lifting, cleaning, fire prevention, fire
extinguishing, refrigeration, washing machines, dryers, stoves,
refrigerators, ventilating, and communications apparatus, air
cooling and air conditioning apparatus, escalators, elevators,
ducts, and compressors, materials and supplies, and all other
machinery, apparatus, equipment, fixtures and fittings now owned
or hereafter acquired by Borrower, any portion thereof or any
appurtenances thereto, together with all additions, replacements,
parts, fittings, accessions, attachments, accessories,
modifications and alterations of any of the foregoing.
"Equity Interests" means (a) if Borrower is a limited
partnership, limited partnership interests in Borrower or (b) if
Borrower is a limited liability company, membership interests in
Borrower; provided, however, that Equity Interests shall not
include any direct or indirect legal or beneficial ownership
interest, or any other interest of any nature or kind whatsoever,
of the SPE Equity Owner in Borrower.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the regulations
promulgated thereunder. Section references to ERISA are to
ERISA, as in effect at the date of this Agreement and, as of the
relevant date, any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" means any corporation or trade or
business that is a member of any group of organizations (i)
described in Section 414(b) or (c) of the Code of which Borrower
is a member, and (ii) solely for purposes of potential liability
under Section 302(c)(11) of ERISA and Section 412(c)(11) of the
Code and the lien created under Section 302(f) of ERISA and
Section 412(n) of the Code, described in Section 414(m) or (o) of
the Code of which Borrower is a member.
"Event of Default" has the meaning set forth in Section
7.1.
"Excess Cash Flow" has the meaning set forth in Section
2.12.
"Extra Funds" has the meaning set forth in Section
2.12.
"Facility" means the Land subject to the Mortgage and
all related Appurtenant Rights, Improvements, Equipment and
Inventory.
"Fifteen Year Treasury Rate" means the yield,
calculated by linear interpolation (rounded to three decimal
places) of the yields of United States Treasury Constant
Maturities with terms (one longer and one shorter) most nearly
approximating that of noncallable United States Treasury
obligations having maturities as close as possible to fifteen
(15) years from the Optional Prepayment Date, as determined by
Lender on the basis of Federal Reserve Statistical Release H.15-
Selected Interest Rates under the heading U.S. Governmental
Security/Treasury Constant Maturities, or other recognized source
of financial market information selected by Lender for the week
prior to the Optional Prepayment Date.
"Fiscal Year" means the 12-month period ending on
December 31 of each year or such other fiscal year of Borrower as
Borrower may select from time to time with the prior written
consent of Lender not to be unreasonably withheld or delayed.
"GAAP" means generally accepted accounting principles
consistently applied in the United States of America as of the
date of the applicable financial report.
"General Intangibles" means all of Borrower's "general
intangibles" as such term is defined in the UCC, and, to the
extent not included in such definition, any intangible personal
property of Borrower (other than Accounts, Rents, Instruments,
Inventory, Money and Permits), including, without limitation,
things in action, settlements, judgments, contract rights, rights
to performance (including, without limitation, rights under
warranties), refunds of real estate taxes and assessments and
other rights to payment of Money, copyrights, trademarks, trade
names and patents now existing or hereafter in existence.
"Governmental Authority" means any national or federal
government, any state, regional, local or other political
subdivision thereof with jurisdiction and any Person with
jurisdiction exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
"Gross Revenue" means, with respect to the Facility,
the total dollar amount of all income and receipts whatsoever
received by Borrower in the ordinary course of its business with
respect to the Facility, including, without limitation, all Rents
(but excluding security deposits) and Money.
"Ground Lease" means that certain Lease Agreement dated
as of March 1, 1997 by and between Borrower and the Parent.
"Ground Lessor Estoppel" means an estoppel certificate
from the lessor under the Ground Lease in the form acceptable to
Lender in its sole discretion.
"Ground Rents" means all rentals, ground rents, square
footage rents, percentage rents, annual rents or any other
payments or rents owing under the Ground Lease.
"Ground Rents Sub-Account" means the Sub-Account of the
Cash Collateral Account established and maintained pursuant to
Section 2.12 relating to the payment of the Ground Rents.
"Hazardous Substance" means, collectively, (i) any
petroleum or petroleum products or waste oils, explosives,
radioactive materials, asbestos, urea formaldehyde foam
insulation, polychlorinated biphenyls ("PCBs"), lead in drinking
water, and lead-based paint, the presence, generation, use,
transportation, storage or disposal of or exposure to which (x)
is regulated or could lead to liability under any Environmental
Law or (y) is subject to notice or reporting requirements under
any Environmental Law, (ii) any chemicals or other materials or
substances which are now or hereafter become defined as or
included in the definition of "hazardous substances," "hazardous
wastes," "hazardous materials," "extremely hazardous wastes,"
"restricted hazardous wastes," "toxic substances," "toxic
pollutants," "contaminants," "pollutants" or words of similar
import under any Environmental Law and (iii) any other chemical
or any other material or substance, exposure to which is now or
hereafter prohibited, limited or regulated under any
Environmental Law.
"Impositions" means all ground rents and all taxes
(including, without limitation, all real estate, ad valorem,
sales (including those imposed on lease rentals), use, single
business, gross receipts, value added, intangible transaction
privilege, privilege, license or similar taxes), assessments
(including, without limitation, to the extent not discharged
prior to the Closing Date, all assessments for public
improvements or benefits, whether or not commenced or completed
within the term of the Mortgage), ground rents, water, sewer or
other rents and charges, excises, levies, fees (including,
without limitation, license, permit, inspection, authorization
and similar fees), and all other governmental charges, in each
case whether general or special, ordinary or extraordinary,
foreseen or unforeseen, of every character in respect of the
Facility, (including all interest and penalties thereon), which
at any time prior to, during or in respect of the term hereof may
be assessed or imposed on or in respect of or be a lien upon (i)
Borrower (including, without limitation, all income, franchise,
single business or other taxes imposed on Borrower for the
privilege of doing business in the jurisdiction in which the
Facility, or any other Collateral is located) or Lender, (ii) the
Facility, or any other Collateral or any part thereof, or
(iii) any occupancy, operation, use or possession of, or sales
from, or activity conducted on, or in connection with the
Facility or the leasing or use of the Facility or any part
thereof, or the acquisition or financing of the acquisition of
the Facility by Borrower. Nothing contained in this Agreement
shall be construed to require Borrower to pay any tax,
assessment, levy or charge imposed on Lender, in the nature of a
franchise, capital levy, estate, inheritance, succession, income
or net revenue tax.
"Improvements" means, with respect to the Facility, all
buildings, structures and improvements of every nature whatsoever
situated on the Leasehold Estate and/or Land on the Closing Date
or thereafter, including, but not limited to, to the extent of
Borrower's right, title or interest therein or thereto, all gas
and electric fixtures, radiators, heaters, washing machines,
dryers, refrigerators, ovens, engines and machinery, boilers,
ranges, elevators and motors, plumbing and heating fixtures,
antennas, carpeting and other floor coverings, water heaters,
awnings and storm sashes, and cleaning apparatus which are or
shall be Leasehold Estate and/or attached to the Land or said
buildings, structures or improvements.
"Indebtedness" means, at any given time, the Principal
Indebtedness, together with all accrued and unpaid interest
thereon and all other obligations and liabilities due or to
become due to Lender pursuant hereto, under the Note or in
accordance with any of the other Loan Documents, and all other
amounts, sums and expenses paid by or payable to Lender hereunder
or pursuant to the Note or any of the other Loan Documents.
"Indemnified Party" shall have the meaning set forth in
Section 8.29.
"Independent" means, when used with respect to any
Person, a Person who (i) does not have any direct financial
interest or any material indirect financial interest in Borrower
or in any Affiliate of Borrower, and (ii) is not connected with
Borrower or any Affiliate of Borrower as an officer, employee,
promoter, underwriter, trustee, partner, member, manager,
creditor, director or person performing similar functions.
"Independent Director" means a duly appointed member of
the board of directors of the relevant entity who shall not have
been, at the time of such appointment or at any time in the
preceding five (5) years, (a) a direct or indirect legal or
beneficial owner in such entity or any of its affiliates, (b) a
creditor, supplier, employee, officer, director, manager or
contractor of such entity or any of its affiliates, (c) a person
who controls such entity or any of its affiliates, or (d) a
member of the immediate family of a person defined in (a), (b) or
(c) above.
"Initial Basic Carrying Costs Amount" means the amount
shown on Exhibit B.
"Initial Capital Reserve Amount" means the amount shown
on Exhibit B.
"Initial Ground Rents Deposit" means One Thousand
Dollars ($1,000).
"Initial Interest Rate" means 9.02% per annum.
"Initial Securitization Expense Amount" means the
amount shown on Exhibit B.
"Initial State of Florida Lease Reserve Amount" means
the amount shown on Exhibit D.
"Instruments" means all of Borrower's "instruments" as
such term is defined in the UCC, and, to the extent not included
in such definition, any of Borrower's rights in instruments,
chattel paper, documents or other writings obtained by Borrower
from or in connection with the ownership or operation of the
Facility evidencing a right to the payment of Money, including,
without limitation, all notes, drafts, acceptances, documents of
title, and policies and certificates of insurance, including but
not limited to, liability, hazard, rental and credit insurance,
guarantees and securities, now or hereafter received by Borrower
or in which Borrower has or acquires an interest pertaining to
the foregoing.
"Insurance Proceeds" has the meaning provided in
Section 2.12(h).
"Insurance Requirements" means all material terms of
any insurance policy required pursuant to the Loan Documents and
all material regulations and then current standards applicable to
or affecting the Facility or any part thereof or any use or
condition thereof, which may, at any time, be recommended by the
Board of Fire Underwriters, if any, having jurisdiction over the
Facility, or such other body exercising similar functions.
"Interest Accrual Period" means each period of time
running from and including the eleventh (11th) day of a calendar
month to and including the tenth (10th) day of the following
calendar month during the term of the Loan. If the Closing Date
shall occur prior to the tenth (10th) day of a calendar month,
the first Interest Accrual Period shall commence on and include
the Closing Date and end on and include the tenth (10th) day of
the calendar month in which the Closing Date occurs. If the
Closing Date shall occur after the tenth (10th) day of a calendar
month, the first Interest Accrual Period shall commence on the
Closing Date and end on and include the tenth (10th) day of the
calendar month following the month in which the Closing Date
occurs. If the Closing Date shall occur on the tenth (10th) day
of a calendar month, the first Interest Accrual Period shall
consist of a one (1) day period consisting of the Closing Date.
"Interest Rate" means, as applicable, before the
Optional Prepayment Date, the Initial Interest Rate and, on and
after the Optional Prepayment Date, the Revised Interest Rate.
"Inventory" means all of Borrower's "inventory" as such
term is defined in the UCC, and, to the extent not included in
such definition, any of Borrower's rights in goods now owned or
hereafter acquired by Borrower intended for sale or lease, or to
be furnished under contracts of service by Borrower in connection
with the Facility, including without limitation, all inventories
held by Borrower for sale or use at or from the Facility, and all
other such goods, wares, merchandise, and materials and supplies
of every nature owned by Borrower and all such other goods
returned to or repossessed by Borrower.
"Investor" has the meaning provided in Section 8.27.
"Issuer" means any issuer of securities issued in
connection with a Securitization.
"Land" has the meaning provided in the Mortgage.
"Late Charge" means the lesser of (i) five percent (5%)
of any unpaid installment and (ii) the maximum late charge
permitted to be charged under the laws of the State of New York.
"Leasehold Estate" means the leasehold interest and
estate of the Borrower in any real property created pursuant to
the Ground Lease.
"Leases" means all leases and other agreements or
arrangements affecting the use or occupancy of all or any portion
of the Facility now in effect or hereafter entered into
(including, without limitation, all lettings, subleases,
licenses, concessions, tenancies and other occupancy agreements
covering or encumbering all or any portion of the Facility),
together with any guarantees, supplements, amendments,
modifications, extensions and renewals of the same, and all
additional remainders, reversions, and other rights and estates
appurtenant thereto.
"Legal Requirements" means all statutes, laws, rules,
orders, regulations, ordinances, judgments, decrees and
injunctions of Governmental Authorities affecting Borrower, the
Loan Documents, the Facility or any part thereof, or the
ownership, construction, use, alteration or operation thereof, or
any part thereof, enacted and in force as of the relevant date,
and all Permits and regulations relating thereto, and all
covenants, agreements, restrictions and encumbrances contained in
any instruments, either of record or known to Borrower, at any
time in force affecting the Facility or any part thereof,
including, without limitation, any which (i) may require repairs,
modifications, or alterations in or to the Facility or any part
thereof, or (ii) in any way limit the use and enjoyment thereof.
"Lender" has the meaning provided in the first
paragraph of this Agreement.
"Liabilities" has the meaning set forth in Section
2.14.
"Lien" means any mortgage, deed of trust, lien
(statutory or other), pledge, easement, restrictive covenant,
hypothecation, assignment, preference, priority, security
interest, or any other encumbrance or charge on or affecting the
Facility or any portion thereof or any Collateral or Borrower, or
any interest therein, including, without limitation, any
conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as
any of the foregoing, the filing of any financing statement or
similar instrument under the UCC or comparable law of any other
jurisdiction, domestic or foreign, and mechanic's, materialmen's
and other similar liens and encumbrances.
"Loan" has the meaning provided in the Recitals hereto.
"Loan Amount" has the meaning provided in the Recitals
hereto.
"Loan Documents" means, collectively, this Agreement,
the Note, the Mortgage, the Assignment of Leases, the Assignment
of Agreements, the Manager's Subordination, the Environmental
Guaranty, the Parent's Side Letter, the Cash Collateral Account
Agreement, and all other agreements, instruments, certificates
and documents delivered by or on behalf of Borrower or any
Affiliate to evidence or secure the Loan or otherwise in
satisfaction of the requirements of this Agreement, the Mortgage
or the other documents listed above.
"Losses" has the meaning provided in Section 5.1(I).
"Management Agreement" means, with respect to the Facility, the
Management Agreement entered into between Manager and Borrower
pertaining to the management of the Facility in the form attached
to the Manager's Subordination.
"Manager" means Mark Centers Limited Partnership, a
Delaware limited partnership, as Manager of the Facility, or any
successor or assignee, provided that each successor or assignee
shall be acceptable to Lender in Lender's discretion.
"Manager's Subordination" means, with respect to the
Facility, the Manager's Consent and Subordination of Management
Agreement in form and substance satisfactory to Lender in
Lender's sole discretion, dated as of the Closing Date, executed
by Manager, Borrower and Lender, as the same may thereafter from
time to time be supplemented, amended, modified or extended by
one or more written agreements supplemental thereto.
"Material Adverse Effect" means a material adverse
effect upon (i) the business or the financial position or results
of operation of Borrower, (ii) the ability of Borrower to
perform, or of Lender to enforce, any of the Loan Documents or
(iii) the value of (x) the Collateral taken as a whole or (y) the
Facility.
"Material Lease" has the meaning set forth in the
Mortgage.
"Maturity Date" means March 11, 2022 or such earlier
date resulting from acceleration of the Indebtedness by Lender.
"Maximum Amount" means the maximum rate of interest
designated by applicable laws relating to payment of interest and
usury.
"Money" means all moneys, cash, rights to deposit or
savings accounts, credit card receipts, rents or other items of
legal tender obtained from or for use in connection with the
ownership or operation of the Facility.
"Mortgage" means, with respect to the Facility, a first
priority Leasehold Mortgage, Assignment of Rents, Security
Agreement and Fixture Filing or such other comparable document
which is customarily used by prudent lenders in the jurisdiction
in which the Collateral is located, in form and substance
satisfactory to Lender in Lender's sole discretion, dated as of
the Closing Date, granted by Borrower to Lender with respect to
the Facility as security for the Loan, as the same may thereafter
from time to time be supplemented, amended, modified or extended
by one or more written agreements supplemental thereto.
"Mortgaged Property" means, at any time, the Facility
encumbered by the Mortgage.
"Multiemployer Plan" means a multiemployer plan defined
as such in Section 3(37) of ERISA to which contributions have
been made by Borrower or any ERISA Affiliate and which is covered
by Title IV of ERISA.
"Net Operating Income" means for any period the excess,
if any, of Operating Income for such period over Operating
Expenses for such period.
"New State of Florida Leases" means any and all Leases
for the State of Florida Space entered into after the Closing
Date.
"Note" means and refers to the promissory note, in form
and substance satisfactory to Lender in Lender's sole discretion,
dated the Closing Date, made by Borrower to Lender pursuant to
this Agreement as such note may be modified, amended,
supplemented, extended or consolidated in writing, and any
note(s) issued in exchange therefor or in replacement thereof.
"Officer's Certificate" means a certificate of the
Borrower which is signed by the general partner of the Borrower.
"Office Space" means that portion of the Facility which
is, at the relevant time, leased or designated by Borrower as
office space.
"Operating Expense Certificate" means a certificate of
the Borrower in the form attached hereto as Exhibit A.
"Operating Expense Monthly Installment" means, with
respect to a given Interest Accrual Period, the amount shown on
the Annual Operating Budget for such period.
"Operating Expense Sub-Account" means the Sub-Account
of the Cash Collateral Account established and maintained
pursuant to Section 2.12 relating to the payment of operating
expenses, as reasonably approved by Lender.
"Operating Expenses" means, for any period, for
Borrower, all expenditures by Borrower as and to the extent
required to be expensed under GAAP during such period in
connection with the ownership, operation, maintenance, repair or
leasing of the Facility, including, without limitation or
duplication:
(i) expenses in connection with cleaning, repair,
replacement, painting and maintenance;
(ii) wages, benefits, payroll taxes, uniforms, insurance
costs and all other related expenses for employees of Borrower or
any Affiliate engaged in repair, operation, maintenance of the
Facility or service to tenants;
(iii)any management fees and expenses;
(iv) the cost of all electricity, oil, gas, water, steam,
heat, ventilation, air conditioning and any other energy, utility
or similar item and overtime services;
(v) the cost of cleaning supplies;
(vi) Impositions;
(vii)business interruption, liability, casualty and fidelity
insurance premiums;
(viii)legal, accounting and other professional fees and
expenses incurred in connection with the ownership, leasing or
operation of the Facility, including, without limitation,
collection costs and expenses;
(ix) costs and expenses of security and security systems;
(x) trash removal and exterminating costs and expenses;
(xi) advertising and marketing costs;
(xii)costs of environmental audits and monitoring,
environmental, investigation, remediation or other response
actions or any other expenses incurred with respect to compliance
with Environmental Laws; and
(xiii) all other ongoing expenses which in accordance with
GAAP are required to be or are included in Borrower's annual
financial statements as operating expenses of the Facility.
Notwithstanding the foregoing, Operating Expenses shall not
include (x) any taxes imposed on Borrower's net income, (y)
depreciation or amortization of intangibles or (z) Debt Service
and other payments in connection with the Indebtedness.
Operating Expenses shall be calculated in accordance with GAAP.
"Operating Income" means, for any period, for Borrower,
all regular ongoing income of Borrower during such period from
the operation of the Facility, including, without limitation:
(i) all amounts payable as Rents (other than security
deposits) and all other amounts payable under Leases or other
third party agreements relating to the ownership and operation of
the Facility;
(ii) business interruption proceeds; and
(iii) all other amounts which in accordance with GAAP are
required to be or are included in Borrower's annual financial
statements as operating income of the Facility.
"Optional Prepayment Date" means March 11, 2007.
"Other Borrowings" means, without duplication (but not
including the Indebtedness or any Transaction Costs payable in
connection with the Transactions), (i) all indebtedness of
Borrower for borrowed money or for the deferred purchase price of
property or services, (ii) all indebtedness of Borrower evidenced
by a note, bond, debenture or similar instrument, (iii) the face
amount of all letters of credit issued for the account of
Borrower and, without duplication, all unreimbursed amounts drawn
thereunder, (iv) all indebtedness of Borrower secured by a Lien
on any property owned by Borrower whether or not such
indebtedness has been assumed, (v) all Contingent Obligations of
Borrower, and (vi) all payment obligations of Borrower under any
interest rate protection agreement (including, without
limitation, any interest rate swaps, caps, floors, collars or
similar agreements) and similar agreements.
"Parent" means Mark Centers Limited Partnership, a
Delaware limited partnership.
"Parent's Side Letter" means the Side Letter in form
and substance satisfactory to Lender dated as of the Closing Date
from the Parent to Lender as the case may thereafter from time to
time be supplemented, amended, modified or extended by one or
more written agreements supplemental thereto.
"Payment Date" means the eleventh (11th) day of each
calendar month during the term of the Loan, provided, however,
that for purposes of making payments hereunder, but not for
purposes of calculating interest accrual periods, if the eleventh
(11th) day of a given month shall not be a Business Day, then the
Payment Date for such month shall be the next succeeding Business
Day.
"PBGC" means the Pension Benefit Guaranty Corporation
established under ERISA, or any successor thereto.
"PCBs" has the meaning provided in the definition of
"Hazardous Substance."
"Permits" means, with respect to the Facility, all
licenses, registrations, permits, allocations, filings,
authorizations, approvals and certificates used in connection
with the ownership, operation, construction, renovation, use or
occupancy of the Facility, including, without limitation,
building permits, business licenses, state health department
licenses, food service licenses, liquor licenses, licenses to
conduct business, and all such other permits, licenses and
rights, obtained from any Governmental Authority or private
Person concerning ownership, operation, construction, renovation,
use or occupancy of the Facility.
"Permitted Encumbrances" means, with respect to the
Facility, collectively, (i) the Lien created by the Mortgage or
the other Loan Documents, of record, (ii) all Liens and other
matters disclosed in the Title Insurance Policy concerning the
Facility, or any part thereof which have been approved by Lender
in Lender's sole discretion, (iii) Liens, if any, for Impositions
imposed by any Governmental Authority not yet due or delinquent
or being contested in good faith and by appropriate proceedings
in accordance with the Mortgage, (iv) without limiting the
foregoing, any and all governmental, public utility and private
restrictions, covenants, reservations, easements, licenses or
other agreements of an immaterial nature which may be granted by
Borrower after the Closing Date and which do not materially and
adversely affect (A) the ability of Borrower to pay any of its
obligations to any Person as and when due, (B) the marketability
of title to the Facility, (C) the fair market value of the
Facility, or (D) the use or operation of the Facility as of the
Closing Date and thereafter.
"Permitted Investments" shall have the meaning ascribed
to such term in the Cash Collateral Account Agreement.
"Permitted Transfers" shall mean, provided that no
Event of Default has occurred, (i) Permitted Encumbrances; (ii)
all transfers of worn out or obsolete furnishings, fixtures or
equipment that are replaced with equivalent property; (iii) all
Leases which are not Material Leases; (iv) all Material Leases
which have been approved by Lender in accordance with Section
2.13 of the Mortgage; (v) transfers of Equity Interests which in
the aggregate during the term of the Loan (a) do not exceed 49%
of the total interests in Borrower and (b) do not result in any
partner's, member's or other Person's interest in Borrower
exceeding 49% of the total interests in Borrower; (vi) any other
transfer of Equity Interests provided that (a) prior to any
Securitization, Lender shall have consented to such transfer or
transfers, (b) after any Securitization, Lender shall have
consented to such transfer or transfers and the Rating Agencies
shall have confirmed in writing that such transfer or transfers
shall not result in a downgrade, withdrawal or qualification of
any securities issued in connection with such Securitization, (c)
acceptable opinions relating to such transfer or transfers shall
have been delivered by Borrower to Lender and the Rating Agencies
(including without limitation tax and bankruptcy opinions), and
(d) Borrower pays all reasonable expenses incurred by Lender in
connection with such transfer or transfers; (vii) a transfer of
the Facility to a single purchaser not more than one time during
the term of the Loan, provided that prior to such transfer (a)
intentionally omitted, (b) prior to a Securitization, Lender
shall have consented to such transfer, (c) after a
Securitization, (i) Lender shall have consented to such transfer
and (ii) the Rating Agencies shall have confirmed in writing that
such transfer shall not result in a downgrade, withdrawal or
qualification of any securities issued in connection with such
Securitization, (d) acceptable opinions relating to such transfer
shall have been delivered by Borrower to Lender and to the Rating
Agencies (including without limitation tax and bankruptcy
opinions), (e) the transferee assumes in writing all obligations
of the transferor under the Loan Documents and executes and
delivers such other documentation as may be required by Lender or
the Rating Agencies and (f) Borrower pays all reasonable expenses
incurred by Lender in connection with such transfer (not to
exceed 0.10% of the Loan Amount); and (viii) a Transfer in
connection with a Taking (provided, however, that the
disbursement and use of any Condemnation Proceeds received in
connection with such Taking shall be governed by the terms of
this Loan Agreement and the Mortgage).
"Person" means any individual, corporation, limited
liability company, partnership, joint venture, estate, trust,
unincorporated association, or any other entity, any federal,
state, county or municipal government or any bureau, department
or agency thereof and any fiduciary acting in such capacity on
behalf of any of the foregoing.
"Plan" means an employee benefit or other plan
established or maintained by Borrower or any ERISA Affiliate and
that is covered by Title IV of ERISA, other than a Multiemployer
Plan.
"Principal Indebtedness" means the principal amount of
the entire Loan outstanding as the same may be increased or
decreased, as a result of prepayment or otherwise, from time to
time.
"Proceeds" means all of Borrower's "proceeds" as such
term is defined in the UCC, and, to the extent not included in
such definition, any of Borrower's rights to proceeds whether
cash or non-cash, movable or immovable, tangible or intangible
(including Insurance Proceeds and Condemnation Proceeds), from
the Collateral, including, without limitation, those from the
sale, exchange, transfer, collection, loss, damage, disposition,
substitution or replacement of any of the Collateral and all
income, gain, credit, distributions and similar items from or
with respect to the Collateral.
"Rating Agencies" means Fitch Investors Service, Inc.,
Moody's Investors Service, Inc., Duff & Phelps Credit Rating Co.
and S&P or any successor thereto, and any other nationally
recognized statistical rating organization to the extent that any
of the foregoing have been or will be engaged by Lender or its
designees in connection with a Securitization (each, individually
a "Rating Agency").
"Recourse Distributions" has the meaning provided in
Section 8.14.
"Release" means any release, threatened release, spill,
emission, leaking, pumping, injection, deposit, disposal,
discharge, dispersal, leaching or migration into the indoor or
outdoor environment, including, without limitation, the movement
of Hazardous Substances through ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata.
"Remedial Work" has the meaning provided in Section
5.1(D)(i).
"REMIC" means a real estate mortgage investment conduit
as defined under Section 860 D(a) of the Code.
"Rents" means all receipts, rents (whether denoted as
advance rent, minimum rent, percentage rent, additional rent or
otherwise), issues, income, royalties, profits, revenues,
proceeds, bonuses, deposits (whether denoted as security deposits
or otherwise), lease termination fees or payments, rejection
damages, buy-out fees and any other fees made or to be made in
lieu of rent, any award made hereafter to Borrower in any court
proceeding involving any tenant, lessee, licensee or
concessionaire under any of the Leases in any bankruptcy,
insolvency or reorganization proceedings in any state or federal
court, and all other payments, rights and benefits of whatever
nature from time to time due under any of the Leases, including,
without limitation, (i) rights to payment earned under the Leases
for space in the Improvements for the operation of ongoing
businesses, and (ii) all other income, consideration, issues,
accounts, profits or benefits of any nature arising from the
ownership, possession, use or operation of the Facility.
"Required Base Debt Service Payment" means all of the
Required Debt Service Payment except for that portion of the
Required Debt Service Payment which consists of payments of
Excess Cash Flow which may be due and payable after an Event of
Default, at Lender's sole election, or the Optional Prepayment
Date.
"Required Debt Service Payment" means, on any Payment
Date, the Debt Service then due and payable by Borrower.
"Retail Space" means that portion of the Facility which
is, at the relevant time, leased or designated by Borrower as
retail space.
"Revised Interest Rate" means the greater of (x) the
sum of the Initial Interest Rate plus five hundred (500) basis
points, and (y) as of the Optional Prepayment Date, the sum of
the Fifteen Year Treasury Rate plus seven hundred (700) basis
points, such Revised Interest Rate not to exceed the Maximum
Amount.
"S&P" means Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies, Inc.
"Secretary's Certificate" means, with respect to
Borrower, the certificate in form and substance satisfactory to
Lender in Lender's sole discretion dated as of the Closing Date.
"Securitization" shall have the meaning provided in
Section 2.14.
"Securitization Closing Date" means the date on which a
Securitization is effected.
"Securitization Costs" shall have the meaning set forth
in Section 2.14.
"Securitization Expense Sub-Account" means the Sub-
Account of the Cash Collateral Account established and maintained
pursuant to Section 2.12.
"Security Agreement" has the meaning provided in
Section 2.11.
"Security Deposit Account" has the meaning set forth in
Section 2.12(a).
"Single-Purpose Entity" means a corporation, limited
partnership, or limited liability company which, at all times
since its formation and thereafter (i) was organized solely for
the purpose of (x) owning the Facility or (y) acting as the
managing member of the limited liability company which owns the
Facility or (z) acting as the general partner of a limited
partnership which owns the Facility, (ii) has not and will not
engage in any business unrelated to the (x) the ownership of the
Facility or (y) acting as a member of a limited liability company
which owns the Facility or (z) acting as a general partner of a
limited partnership which owns the Facility, (iii) has not and
will not have any assets other than (x) those related to the
Facility or (y) its member interest in the limited liability
company which owns the Facility or (z) its general partnership
interest in the limited partnership which owns the Facility, as
applicable, (iv) except as otherwise expressly permitted by this
Agreement, has not and will not engage in, seek or consent to any
dissolution, winding up, liquidation, consolidation, merger,
asset sale, transfer of partnership or membership interests, or
amendment of its limited partnership agreement, articles of
incorporation, articles of organization, certificate of formation
or operating agreement (as applicable), (v) if such entity is a
limited partnership, has as its only general partners, general
partners which are Single-Purpose Entities which are
corporations, (vi) if such entity is a corporation, at all
relevant times will have at least one Independent Director, (vii)
in connection with changing any provision of such entity's
organizational documents or the taking of the actions described
in clause (x), the board of directors of such entity may not take
any action requiring the unanimous affirmative vote of 100% of
the members of the board of directors unless all of the
directors, including an Independent Director shall have
participated in such vote, (viii) has not and will not fail to
correct any known misunderstanding regarding the separate
identity of such entity, (iv) if such entity is a limited
liability company, has at least one member that is a Single-
Purpose Entity which is a corporation, and such corporation is
the managing member of such limited liability company, (x)
without the unanimous consent of all of the partners, directors
or members, as applicable, has not and will not with respect to
itself or to any other entity in which it has a direct or
indirect legal or beneficial ownership interest (a) file a
bankruptcy, insolvency or reorganization petition or otherwise
institute insolvency proceedings or otherwise seek any relief
under any laws relating to the relief from debts or the
protection of debtors generally; (b) seek or consent to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator, custodian or any similar official for such entity
or all or any portion of such entity's properties; (c) make any
assignment for the benefit of such entity's creditors; or (d)
take any action that might cause such entity to become insolvent,
(xi) has maintained and will maintain its accounts, books and
records separate from any other person or entity, (xii) has
maintained and will maintain its books, records, resolutions and
agreements as official records, (xiii) has not and will not
commingle its funds or assets with those of any other entity,
(xiv) has held and will hold its assets in its own name, (xv) has
conducted and will conduct its business in its name, (xvi) has
maintained and will maintain its financial statements, accounting
records and other entity documents separate from any other person
or entity, (xvii) has paid and will pay its own liabilities out
of its own funds and assets, (xviii) has observed and will
observe all partnership, corporate or limited liability company
formalities as applicable, (xix) has maintained and will maintain
an arms-length relationship with its affiliates, (xx) (a) if such
entity owns the Facility, has no indebtedness other than the
Indebtedness and unsecured trade payables (exclusive of real
estate taxes and insurance premiums) in the ordinary course of
business relating to the ownership and operation of the Facility
which (1) do not exceed, at any time, a maximum amount of three
percent (3%) of the Loan Amount and (2) are paid within thirty
(30) days of the date incurred, or (b) if such entity acts as the
general partner of a limited partnership which owns the Facility,
has no indebtedness other than unsecured trade payables in the
ordinary course of business relating to acting as general partner
of the limited partnership which owns the Facility which (1) do
not exceed, at any time, $10,000 and (2) are paid within thirty
(30) days of the date incurred, or (c) if such entity acts as a
member of a limited liability company which owns the Facility,
has no indebtedness other than unsecured trade payables in the
ordinary course of business relating to acting as a member of the
limited liability company which owns the Facility which (1) do
not exceed, at any time, $10,000 and (2) are paid within thirty
(30) days of the date incurred,(xxi) has not and will not assume
or guarantee or become obligated for the debts of any other
entity or hold out its credit as being available to satisfy the
obligations of any other entity except for the Indebtedness,
(xxii) will not acquire obligations or securities of its
partners, members or shareholders, (xxiii) has allocated and will
allocate fairly and reasonably shared expenses, including,
without limitation, shared office space and uses separate
stationary, invoices and checks, (xxiv) except pursuant hereto,
has not and will not pledge its assets for the benefit of any
other person or entity, (xxv) has held and identified itself and
will hold itself out and identify itself as a separate and
distinct entity under its own name and not as a division or part
of any other person or entity,(xxvi) has not made and will not
make loans to any person or entity, (xxvii) has not and will not
identify its partners, members or shareholders, or any affiliates
of any of them as a division or part of it, (xxviii) if such
entity is a limited liability company, its articles of
organization, certificate of formation and/or operating
agreement, as applicable, shall provide that such entity will
dissolve only upon the bankruptcy of the managing member, (xxix)
has not entered and will not enter into or be a party to, any
transaction with its partners, members, shareholders or its
affiliates except in the ordinary course of its business and on
terms which are intrinsically fair and are no less favorable to
it than would be obtained in a comparable arms-length transaction
with an unrelated third party, (xxx) has paid and will pay the
salaries of its own employees from its own funds, (xxxi) has
maintained and will maintain adequate capital in light of its
contemplated business operations and (xxxii) if such entity is a
limited liability company or limited partnership, and such entity
has one or more managing members or general partners, as
applicable, then such entity's organizational documents shall
provide that such entity shall continue (and not dissolve) for so
long as a solvent managing member or general partner, as
applicable, exists.
"SPE Equity Owner" means Mark Northwood Realty, Inc. a
Florida corporation.
"SPE Equity Owner's Certificate" means the SPE Equity
Owner's Certificate in form and substance satisfactory to Lender
in Lender's sole discretion dated as of the Closing Date.
"Start-Up Day" means the "start-up day," within the
meaning of Section 860G(a)(9) of the Code, of any "real estate
mortgage investment conduit," within the meaning of Section 860D
of the Code, that holds the Note.
"State of Florida Funds" means, on any particular date,
the amount of funds on deposit in the State of Florida Lease Sub-
Account.
"State of Florida Lease Monthly Installment" means,
with respect to a given Interest Accrual Period, an amount
sufficient to cause funds in the amount of $2,750,000 to be on
deposit in the State of Florida Lease Sub-Account on the date of
the expiration of the New State of Florida Leases.
"State of Florida Lease Sub-Account" means the Sub-
Account of the Cash Collateral Account established and maintained
pursuant to Section 2.12 relating to the payment of extraordinary
lease-up expenses associated with the State of Florida Space, as
approved by Lender.
"State of Florida Space" means the space in the
Facility leased to the State of Florida and/or divisions,
agencies, bureaus or corporations thereof, as of the Closing
Date.
"Sub-Account" shall have the meaning provided in
Section 2.12(c).
"Survey" means, with respect to the Facility, a survey
of the Facility satisfactory to Lender, prepared by a registered
Independent surveyor reasonably satisfactory to Lender and Title
Insurer, together with a metes and bounds legal description of
the land corresponding with the survey and containing the
Surveyor's Certification.
"Surveyor's Certification" means a surveyor's
certification in form and substance satisfactory to Lender in
Lender's sole discretion.
"Taking" means a taking or voluntary conveyance during
the term hereof of all or part of the Facility, or any interest
therein or right accruing thereto or use thereof, as the result
of, or in settlement of, any condemnation or other eminent domain
proceeding by any Governmental Authority affecting the Facility
or any portion thereof whether or not the same shall have
actually been commenced.
"Tax Fair Market Value" means, with respect to the Facility,
the fair market value of the Facility, and (x) shall not include
the value of any personal property or other property that is not
an "interest in real property" within the meaning of Treasury
Regulation subsection 1.860G-2 and 1.856-3(c), or is not "qualifying real
property" within the meaning of Treasury Regulation section1.593-
11(b)(iv), and (y) shall be reduced by the "adjusted issue price"
(within the meaning of Code section 1272(a)(4)) (the "Tax Adjusted
Issue Price") of any indebtedness, other than the Loan, secured
by a Lien affecting the Facility, which Lien is prior to or on a
parity with the Lien created under the Mortgage.
"Title Instruction Letter" means an instruction letter
in form and substance satisfactory to Lender in Lender's sole
discretion.
"Title Insurance Policy" means, with respect to the
Facility, the loan policy of title insurance for the Facility
issued by Title Insurer with respect to the Facility in an amount
acceptable to Lender and insuring the first priority lien in
favor of Lender created by the Mortgage and acceptable to Lender
in Lender's discretion.
"Title Insurer" means Lawyers Title Insurance
Corporation and any reinsurer reasonably required by Lender
and/or any other nationally recognized title insurance company
acceptable to Lender in Lender's reasonable discretion, provided,
however, that the reinsurer of any Title Insurance Policy may
include, in amounts reasonably acceptable to Lender, Chicago
Title Insurance Company, First American Title Insurance Company
and Stewart Title Insurance Company.
"Transaction Costs" means all fees, costs, expenses and
disbursements paid or payable by Borrower relating to the
Transactions, including, without limitation, all appraisal fees,
legal fees, accounting fees and the costs and expenses described
in Section 8.24.
"Transactions" means the transactions contemplated by
the Loan Documents.
"Transfer" means any conveyance, transfer (including,
without limitation, any transfer of any direct or indirect legal
or beneficial interest in Borrower or the SPE Equity Owner),
sale, Lease (including, without limitation, any amendment,
extension, modification, waiver or renewal thereof), or Lien,
whether by law or otherwise, of, on or affecting any Collateral,
Borrower or the SPE Equity Owner, other than a Permitted
Transfer.
"UCC" means, with respect to any Collateral, the
Uniform Commercial Code in effect in the jurisdiction in which
the relevant Collateral is located.
"UCC Searches" has the meaning specified in Section
3.1.
"U.S. Obligations" means obligations or securities not
subject to prepayment, call or early redemption which are direct
obligations of, or obligations fully guaranteed as to timely
payment by, the United States of America or any agency or
instrumentality of the United States of America, the obligations
of which are backed by the full faith and credit of the United
States of America.
"Use" means, with respect to any Hazardous Substance,
the generation, manufacture, processing, distribution, handling,
use, treatment, recycling or storage of such Hazardous Substance
or transportation to or from the property of such Person of any
Hazardous Substance.
"Yield Maintenance Premium" means, in the event that
all or any portion of the Note is accelerated, the amount that,
when added to the amount otherwise due as a result of such
acceleration, would be sufficient to purchase U.S. Obligations
(A) having maturity dates on or prior to, but as close as
possible to, successive scheduled Payment Dates (after the date
of such acceleration of the Note) upon which Payment Dates
interest and principal payments would be required under the Note
as though the Maturity Date of the Note was the Optional
Prepayment Date and (B) in amounts sufficient to pay all
scheduled principal and interest payments on the Note as if the
Maturity Date of the Note was the Optional Prepayment Date (but
without any adjustment of the monthly amortization schedule);
provided, however, that under no circumstances shall the Yield
Maintenance Premium be less than zero.
ARTICLE II
GENERAL TERMS
Section 2.1. Amount of the Loan. Lender shall lend to
Borrower a total aggregate amount equal to the Loan Amount.
Section 2.2. Use of Proceeds. Proceeds of the Loan
shall be used for the following purposes: (a) to pay the
refinancing costs for the Facility owned by Borrower, (b) to fund
any upfront reserves or escrow amounts required hereunder, and
(c) to pay any Transaction Costs. Any excess will be available
to Borrower and may be used for any lawful purpose.
Section 2.3. Security for the Loan. The Note and
Borrower's obligations hereunder and under the other Loan
Documents shall be secured by the Mortgage, the Assignment of
Leases, the Assignment of Agreements the Manger's Subordination
and the security interest and Liens granted in this Agreement and
in the other Loan Documents.
Section 2.4. Borrower's Note. (a) Borrower's
obligation to pay the principal of and interest on the Loan
(including Late Charges, Default Rate interest, and the Yield
Maintenance Premium, if any), shall be evidenced by this
Agreement and by the Note, duly executed and delivered by
Borrower. The Note shall be payable as to principal, interest,
Late Charges, Default Rate interest and Yield Maintenance
Premium, if any, as specified in this Agreement, with a final
maturity on the Maturity Date. Borrower shall pay all
outstanding Indebtedness on the Maturity Date.
(b) Lender is hereby authorized, at its sole option,
to endorse on a schedule attached to the Note (or on a
continuation of such schedule attached to the Note and made a
part thereof) an appropriate notation evidencing the date and
amount of each payment of principal, interest, Late Charges,
Default Rate interest and Yield Maintenance Premium, if any, in
respect thereof, which books and records shall be made available
to Borrower, at Borrower's sole cost and expense on reasonable
advance notice, for examination at Lender's offices.
Section 2.5. Principal and Interest Payments.
(a) Accrual of Interest before the Optional
Prepayment Date. Before the Optional Prepayment Date, interest
shall accrue on the outstanding principal balance of the Note and
all other amounts due to Lender under the Loan Documents at the
Initial Interest Rate.
(b) Accrual of Interest on or after the Optional
Prepayment Date. On and after the Optional Prepayment Date,
interest shall accrue on the outstanding principal balance of the
Note and all other amounts due to Lender under the Loan Documents
at the Revised Interest Rate.
(c) Monthly Base Payments of Principal and
Interest at the Initial Interest Rate. On each Payment Date,
Borrower shall pay to Lender a monthly constant payment as
indicated on Exhibit B, which payment is based on the Initial
Interest Rate and an amortization schedule of three hundred (300)
months. Each payment required to be made by Borrower pursuant to
this Section 2.5(c) is hereinafter sometimes referred to as a
"Base Payment."
(d) Payments of Excess Cash Flow. On and after
the earlier to occur of (i) the Optional Prepayment Date or (ii)
at Lender's sole election, upon the occurrence of an Event of
Default hereunder, any date on or after the occurrence of such
Event of Default, in addition to the Base Payment, Borrower shall
pay to Lender all Excess Cash Flow to be applied as described in
Section 2.8.
(e) Payments of Excess of Revised Interest Rate
Over Initial Interest Rate. To the extent, for any period, that
accrued interest at the Revised Interest Rate exceeds interest
required to be paid hereunder for such period at the Initial
Interest Rate (such amount, the "Accrued Interest"), Borrower
shall only be required to pay such Accrued Interest after the
outstanding principal balance of the Note has been paid in full.
Unpaid Accrued Interest shall accrue and compound interest at the
Revised Interest Rate on a monthly basis.
(f) Payment Dates. All payments required to be
made pursuant to paragraphs (a) through (e) above shall be made
beginning on the first Payment Date immediately after the end of
the second Interest Accrual Period; provided, however, that
Borrower shall pay interest for the first Interest Accrual Period
on the Closing Date.
(g) Calculation of Interest. Interest shall
accrue on the outstanding principal balance of the Loan and all
other amounts due to Lender under the Loan Documents commencing
upon the Closing Date. Interest shall accrue on Accrued Interest
commencing on the first Payment Date following the Optional
Prepayment Date. Interest shall be computed on the actual number
of days elapsed, based on a 360 day year.
(h) Default Rate Interest. If an Event of
Default has occurred the entire unpaid amount outstanding
hereunder and under the Note will bear interest at the Default
Rate.
(i) Late Charge. If Borrower fails to make any
payment of any sums due under the Loan Documents after the same
is due, Borrower shall pay a Late Charge.
(j) Maturity Date. On the Maturity Date Borrower
shall pay to Lender all amounts owing under the Loan Documents,
including without limitation, interest, principal, Late Charges,
Default Rate interest, Accrued Interest and any Yield Maintenance
Premium. The Yield Maintenance Premium shall only be due and
payable on the date of acceleration of the Note.
Section 2.6. Voluntary Defeasance.
(a) Provided that no Event of Default has occurred
then, after the earlier to occur of (i) two years after the
Start-Up Day and (ii) three years after the Closing Date (but
only before the Optional Prepayment Date), Borrower may
voluntarily defease (A) all of the Loan or (B) a portion of the
Loan, but only pursuant to Section 5.1(P); provided, that, for
any defeasance, Borrower must comply with Section 2.11.
(b) In the event of any such voluntary defeasance
Borrower shall give Lender written notice of its intent to
defease, which notice shall be given at least ten (10) days, in
the case of a defeasance pursuant to Section 5.1(P), and at least
thirty (30) days, in all other cases, prior to the date upon
which defeasance is to be made and shall specify the Payment Date
and the amount of such defeasance. If any such notice of
defeasance is given, Borrower shall be required to defease the
Loan or a portion thereof pursuant to Section 5.1(P) on the
specified Payment Date (unless such notice is revoked by Borrower
prior to the date specified therein in which event Borrower shall
immediately reimburse Lender for any reasonable costs incurred by
Lender in connection with Borrower's giving of such notice and
revocation).
(c) Any voluntary defeasance of the Loan by Borrower
is required to be made on a Payment Date.
(d) Borrower shall not be permitted at any time to
defease all or any part of the Loan except as expressly provided
in this Section 2.6.
Section 2.7. Prepayment. (a)On and after the
earlier to occur of (i) the Optional Prepayment Date or (ii) at
Lender's sole election, upon the occurrence of an Event of
Default hereunder, any date on or after such Event of Default, in
addition to all other payments required hereunder, Borrower shall
pay and use all Excess Cash Flow to prepay the Loan on each
Payment Date in accordance with Section 2.12(g) and Section 2.8
and, after payment in full of the Principal Indebtedness (but not
Accrued Interest or interest thereon) to pay Accrued Interest and
interest thereon and all other amounts then owing.
(b) If Borrower is required by Lender under the
provisions of the Mortgage to prepay the Loan or any portion
thereof in the event of damage, destruction or a Taking of the
Facility, Borrower shall prepay the Loan to the full extent of
the Insurance Proceeds or the Condemnation Proceeds, and there
shall be no Yield Maintenance Premium or penalty assessed against
Borrower by reason thereof.
(c) On and after the Optional Prepayment Date
(provided no Event of Default has occurred), Borrower may
voluntarily prepay the Loan in whole or in part, and there shall
be no Yield Maintenance Premium or penalty assessed against
Borrower by reason thereof.
(d) All prepayments made pursuant to this Section 2.7
shall be applied in accordance with the provisions of Section
2.8.
(e) Any prepayment of the Loan by Borrower is required
to be made on a Payment Date.
(f) Borrower shall not be permitted at any time to
prepay all or any part of the Loan except as expressly provided
in this Section 2.7.
Section 2.8. Application of Payments. Prior to the
occurrence of an Event of Default, all proceeds of any repayment,
including prepayments, of the Loan shall be applied to pay:
first, any costs and expenses of Lender, including, without
limitation, the Lender's reasonable attorney's fees and
disbursements actually arising as a result of such repayment or
reasonably expended by Lender to protect the Collateral; second,
accrued and unpaid interest at the Initial Interest Rate; third,
to the Principal Indebtedness (but not to Accrued Interest or
interest thereon); fourth, to Accrued Interest and interest
accrued thereon; and fifth, any other amounts then due and owing
under the Loan Documents. After the occurrence of an Event of
Default, all proceeds of repayment, including any payment or
recovery on the Collateral shall, unless otherwise provided in
the Mortgage, be applied in such order and in such manner as
Lender shall elect in its sole discretion.
Section 2.9. Payment of Debt Service, Method and Place
of Payment. (a) Except as otherwise specifically provided herein,
all payments and prepayments under this Agreement and the Note
shall be made to Lender not later than 12:00 noon, New York City
time, on the date when due and shall be made in lawful money of
the United States of America in federal or other immediately
available funds to an account specified to Borrower by Lender in
writing, and any funds received by Lender after such time, for
all purposes hereof, shall be deemed to have been paid on the
next succeeding Business Day.
(b) All payments made by Borrower hereunder or by
Borrower under the other Loan Documents, shall be made
irrespective of, and without any deduction for, any set-offs or
counterclaims.
Section 2.10. Taxes. All payments made by Borrower
under this Agreement and under the other Loan Documents shall be
made free and clear of, and without deduction or withholding for
or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority (other than
taxes imposed on the income of Lender).
Section 2.11. Defeasance Requirements. (a) Subject to
Section 2.6, the Loan may be defeased (A) in whole, or (B) in
part, but only pursuant to Section 5.1(P); provided that
Borrower: (i) provides, in the case of a defeasance pursuant to
Section 5.1(P), not less than ten (10) days', and, in all other
cases, not less than thirty (30) days prior written notice to the
Lender specifying a Payment Date (the "Defeasance Release Date")
on which the payments provided in clauses (ii) and (iii) below
are to be made and the deposit provided in clause (iv) below is
to be made, (ii) pays all interest accrued and unpaid on the
Principal Indebtedness to and including the Defeasance Release
Date, (iii) pays all other sums then due and payable under the
Loan Documents, (iv) deposits with the Lender an amount equal to
the Defeasance Deposit, (v) intentionally omitted, (vi)
intentionally omitted, and (vii) delivers to the Lender (A) a
security agreement, in form and substance reasonably satisfactory
to Lender, creating a first priority perfected Lien on the
deposits required pursuant to this Section and the U.S.
Obligations purchased on behalf of Borrower in accordance with
this Section (the "Security Agreement"), (B) for execution by the
Lender, a release of the Mortgaged Property from the lien of the
Mortgage in a form appropriate for the jurisdiction in which the
Mortgaged Property is located, (C) an Officer's Certificate of
Borrower certifying that the requirements set forth in this
Section have been satisfied, (D) an opinion of counsel from
Borrower's counsel in form and substance reasonably satisfactory
to the Lender stating, among other things, (x) that, without
qualification, the U.S. Obligations have been duly and validly
assigned and delivered to Lender and Lender has a first priority
perfected security interest on the deposits required pursuant to
this Section and a first priority perfected lien on the U.S.
Obligations and the proceeds thereof purchased hereunder and (y)
that the defeasance will not adversely affect the status of any
REMIC formed in connection with a Securitization, and (E) such
other certificates, documents or instruments as the Lender may
reasonably request including, without limitation, (x) written
confirmation from the relevant Rating Agencies that such
defeasance will not cause any Rating Agency to withdraw, qualify
or downgrade the then-applicable rating on any security issued in
connection with any Securitization and (y) a certificate from an
Independent certified public accountant certifying that the
amounts of the U.S. Obligations comply with all of the
requirements of this Loan Agreement. The U.S. Obligations shall
mature on or be redeemable, or provide for payment thereon, on or
prior to the Business Day preceding the date on which payments
under the Note are due and payable and the proceeds thereof shall
be payable directly to the Cash Collateral Account. In
connection with the foregoing, Borrower appoints the Lender as
its agent for the purpose of applying the amounts delivered
pursuant to clause (iv) above to purchase U.S. Obligations.
Notwithstanding anything in this Agreement to the contrary, in
the event the Yield Maintenance Premium is due as a result of the
acceleration of the Indebtedness after the occurrence of an Event
of Default, Lender shall have the right to receive and collect
the Yield Maintenance Premium but shall have no obligation to
purchase U.S. Obligations or otherwise comply with this Section
2.11.
(b) Upon compliance with the requirements of this
Section 2.11 in the event of a total defeasance of the Loan, the
Mortgaged Property as to which the defeasance has been
consummated shall be released from the lien of the Mortgage. In
connection with a defeasance of the Loan, Borrower may be
required by Lender to assign its obligations under the Note, the
other Loan Documents and the Security Agreements together with
the pledged U.S. Obligations to such other entity or entities
established or designated by Lender (the "Successor Mortgagor").
Such Successor Mortgagor shall assume the obligations under the
Note, the other Loan Documents and the Security Agreements and,
upon such assignment Borrower shall be relieved of its
obligations thereunder.
(c) Nothing in this Section 2.11 shall release
Borrower from any liability or obligation relating to any
environmental matters arising under Sections 4.1(b)(U) or 5.1(D)-
(I), inclusive, hereof.
Section 2.12. Central Cash Management. (a) Collection
Account and Security Deposit Account. Borrower shall open and
maintain at the Collection Account Bank two trust accounts (the
"Collection Account" and the "Security Deposit Account"), and the
Collection Account Bank shall not commingle the amounts in either
such account with any other amounts held on behalf of Lender or
any other Person. The Collection Account shall be assigned an
identification number by the Collection Account Bank and shall be
opened and maintained in the name "Nomura Asset Capital
Corporation as Mortgagee of Mark Northwood Associates, Limited
Partnership." Neither Borrower nor Manager shall have any right
of withdrawal from the Collection Account. Borrower shall cause
all tenants of the Facility to pay all Rents, Money or other
items of Gross Revenue (other than security deposits) directly
into the Collection Account for the Facility. Without in any way
limiting Borrower's obligations pursuant to the preceding
sentence, Borrower shall deposit all Rents, Moneys or other items
of Gross Revenue (other than security deposits) received by
Borrower in violation of the preceding sentence within one
Business Day after receipt thereof directly into the Collection
Account for the Facility. The Security Deposit Account shall be
assigned an identification number by the Collection Account Bank
and shall be opened and maintained in the name "Nomura Asset
Capital Corporation as Mortgagee of Mark Northwood Associates,
Limited Partnership. " Borrower shall cause all tenants of the
Facility to deposit all security deposits with respect to the
Facility directly into the Security Deposit Account for the
Facility. Without in any way limiting Borrower's obligations
pursuant to the preceding sentence, Borrower shall deposit all
security deposits received by Borrower in violation of the
preceding sentence, within one Business Day after receipt
thereof, directly into the Security Deposit Account for the
Facility. Neither Borrower nor Manager shall have any right of
withdrawal from the Security Deposit Account except that, prior
to the Collection Account Bank's receipt of notice of the
occurrence of an Event of Default, Borrower may withdraw funds
from the Security Deposit Account to refund or apply security
deposits as required by the related Leases or by applicable Legal
Requirements, and, after delivery of such notice, Lender, on
written request from Borrower with appropriate supporting
materials, will direct the Collection Account Bank to release
funds from the Security Deposit Account to refund security
deposits as required by the Leases or by applicable Legal
Requirements. Borrower may designate a new financial institution
to serve as a Collection Account Bank hereunder as provided in
Section 2.13(1). Any breach of this Section 2.12(a) by Borrower
shall be an Event of Default.
(b) Cash Collateral Account. Pursuant to the
Collection Account Agreement between the Collection Account Bank,
Borrower and Lender (the "Collection Account Agreement") Borrower
will authorize and direct the Collection Account Bank to transfer
on a daily basis all funds deposited in the Collection Account
for Borrower's Facility to the cash collateral account. The cash
collateral account shall be an Eligible Account established by
Lender in Lender's name. Lender may elect to change the
financial institution at which the cash collateral account shall
be maintained. Lender shall give Borrower not fewer than thirty
(30) days prior notice of each change. The cash collateral
account shall be under the sole dominion and control of Lender.
Borrower shall have no right of withdrawal in respect to the cash
collateral account. The cash collateral account referred to in
this Section 2.12(b) is referred to herein as the "Cash
Collateral Account."
(c) Establishment of Sub-Accounts. The Cash
Collateral Account shall contain a Ground Rents Sub-Account, a
Debt Service Payment Sub-Account, a Basic Carrying Costs Sub-
Account, a Capital Reserve Sub-Account, a State of Florida Lease
Sub-Account, a Securitization Expense Sub-Account and an
Operating Expense Sub-Account, each of which accounts
(individually, a "Sub-Account" and collectively, the "Sub-
Accounts") shall be an Eligible Account to which certain funds
shall be allocated and from which disbursements shall be made
pursuant to the terms of this Loan Agreement.
(d) Permitted Investments. Upon the written request
of Borrower, which request may be made once per Interest Accrual
Period, Lender shall direct the Cash Collateral Account Bank to
invest and reinvest any balance in the Cash Collateral Account
from time to time in Permitted Investments as instructed by
Borrower; provided, however, that (i) if Borrower fails to so
instruct Lender, or if a Default or an Event of Default shall
have occurred, Lender may direct the Cash Collateral Account Bank
to invest and reinvest such balance in Permitted Investments as
Lender shall determine in Lender's sole discretion, (ii) the
maturities of the Permitted Investments on deposit in the Cash
Collateral Account shall, to the extent such dates are
ascertainable, be selected and coordinated to become due not
later than the day before any disbursements from the Sub-
Accounts must be made, (iii) all such Permitted Investments shall
be held in the name and be under the sole dominion and control of
Lender; (iv) no Permitted Investment shall be made unless Lender
shall retain a perfected first priority Lien in such Permitted
Investment securing the Indebtedness and all filings and other
actions necessary to ensure the validity, perfection, and
priority of such Lien have been taken; (v) Lender shall only be
required to follow the investment instructions which were most
recently received by Lender and Borrower shall be bound by such
last received investment instructions; and (vi) any written
request from Borrower containing investment instructions shall
contain an Officer's Certificate from Borrower (which may be
conclusively relied upon by Lender and its agents) that any such
investments constitute Permitted Investments. It is the
intention of the parties hereto that all amounts deposited in the
Cash Collateral Account (or as much thereof as Lender may arrange
to invest) shall at all times be invested in Permitted
Investments. All funds in the Cash Collateral Account that are
invested in a Permitted Investment are deemed to be held in such
Cash Collateral Account for all purposes of this Agreement and
the other Loan Documents. All gain in investments of funds in
the Cash Collateral Account shall be allocated in the same manner
as any other funds in the Cash Collateral Account. Lender shall
have no liability for any loss in investments of funds in the
Cash Collateral Account that are invested in Permitted
Investments (unless invested contrary to Borrower's request other
than after the occurrence of a Default or an Event of Default)
and no such loss shall affect Borrower's obligation to fund, or
liability for funding, the Cash Collateral Account and each Sub-
Account, as the case may be. Borrower and Lender agree that
Borrower shall include all such earnings and losses (other than
those for Lender's account in accordance with the immediately
preceding sentence) on the Cash Collateral Account as income of
Borrower for federal and applicable state tax purposes.
(e) Interest on Accounts. All interest paid or other
earnings on the Permitted Investments made hereunder shall be
deposited into the Cash Collateral Account and shall be subject
to allocation and distribution like any other monies deposited
therein.
(F) Payment of Ground Rents, Basic Carrying Costs,
Debt Service, Capital Improvement Costs, State of Florida Space
Lease-Up Expenses, Securitization Expenses and Operating
Expenses.
(i) Payment of Basic Carrying Costs. At least five (5)
Business Days prior to the due date of any Basic Carrying Cost,
and not more frequently than once each Interest Accrual Period,
Borrower shall notify Lender in writing and request that Lender
pay such Basic Carrying Cost on behalf of Borrower on or prior to
the due date thereof. Together with each such request, Borrower
shall furnish Lender with copies of bills and other documentation
as may be reasonably required by Lender to establish that such
Basic Carrying Cost is then due. Lender shall make such payments
out of the Basic Carrying Cost Sub-Account before the same shall
be delinquent to the extent that there are funds available in the
Basic Carrying Cost Sub-Account and Lender has received
appropriate documentation to establish the amount(s) due and the
due date(s) as and when provided above.
(ii) Payment of Debt Service. At or before 12:00 noon, New
York City time, on each Payment Date during the term of the Loan,
Lender shall transfer to Lender's own account from the Debt
Service Payment Sub-Account an amount equal to the Required Debt
Service Payment for the Payment Date. Borrower shall be deemed
to have timely made the Required Debt Service Payment pursuant to
Section 2.9 regardless of the time Lender makes such transfer as
long as sufficient funds are on deposit in the Debt Service
Payment Sub-Account at 12:00 noon, New York City time on the
applicable Payment Date.
(iii)Payment of Capital Improvement Costs. Not more
frequently than once each Interest Accrual Period and provided
that no Default or Event of Default has occurred, Borrower may
notify Lender in writing and request that Lender release to
Borrower or its designee funds out of the Capital Reserve Sub-
Account to the extent funds are available therein for payment of
Capital Improvement Costs. Together with each such request,
Borrower shall furnish Lender with copies of bills and other
documentation as may be reasonably required by Lender to
establish that such Capital Improvement Costs are reasonable,
that the work relating thereto has been completed and that such
amounts are then due or have been paid. Upon Lender's approval,
which approval, if granted by Lender, shall be delivered within
ten (10) Business Days of Lender's receipt of such request,
Lender shall release the funds to Borrower or its designee within
five (5) days of Lender's approval. Notwithstanding the
foregoing, the Initial Capital Reserve Amount shall be available
only to pay the deferred maintenance costs set forth on Exhibit C
attached hereto. Not more frequently than once each Interest
Accrual Period and provided that no Event of Default has
occurred, Borrower may notify Lender in writing and request that
Lender release to Borrower or its designee funds from the Initial
Capital Reserve Amount out of the Capital Reserve Sub-Account to
the extent the Initial Capital Reserve Amount is available
therein for payment of deferred maintenance costs set forth on
Exhibit C. Together with each such request, Borrower shall
furnish Lender with a certificate stating that an item of
deferred maintenance listed on Exhibit C has been completed along
with copies of bills and other documentation as may be reasonably
required by Lender to establish that such deferred maintenance
cost is reasonable, that the work relating thereto has been
completed and that such amounts are then due or have been paid.
Upon Lender's approval, which approval, if granted by Lender,
shall be delivered within five (5) Business Days of Lender's
receipt of such request, Lender shall release the funds to
Borrower or its designee within five (5) days of Lender's
approval. Upon satisfactory completion as determined by Lender
of all repairs identified on Exhibit C attached hereto, and
provided no Event of Default has occurred, Lender shall release
to Borrower the remainder, if any, of the Initial Capital Reserve
Amount on deposit in the Capital Reserve Sub-Account.
(iv) Payment of Securitization Expenses. To the extent
funds are available therein to pay the amounts for which Borrower
is responsible pursuant to Section 2.14, Lender may release funds
out of the Securitization Expense Sub-Account to (a) pay such
amounts or, (b) after Lender has paid all of the amounts for
which Borrower is responsible pursuant to Section 2.14, provided
no Event of Default has occurred, to refund to Borrower all
amounts remaining in the Securitization Expense Sub-Account.
(v) Payment of Extraordinary Lease-Up Expenses for the
State of Florida Space. Subject to the terms of the last
sentence of this paragraph, not more frequently than once each
Interest Accrual Period and provided that no Default or Event of
Default has occurred, and provided that there are any funds in
the State of Florida Lease Sub-Account, Borrower may notify
Lender in writing and request that Lender release to Borrower or
its designee funds out of the State of Florida Lease Sub-Account,
to the extent funds are available therein for payment of costs
associated with extraordinary lease-up expenses attributable to
the fact that any tenant as of the Closing Date with respect to
the State of Florida Space elects not to renew or extend any of
the Leases in effect on the Closing Date for the State of Florida
Space which expenses shall be acceptable to Lender in its
reasonable discretion. Together with each such request, Borrower
shall furnish Lender with copies of bills and other documentation
as may be reasonably required by Lender to establish that such
expenses are then due or have been paid. Upon Lender's approval,
which approval may be given or denied in Lender's reasonable
discretion and which approval, if granted by Lender, shall be
delivered within ten (10) Business Days of Lender's receipt of
such request, Lender shall release the funds to Borrower or its
designee within ten (10) days of Lender's approval.
Notwithstanding the foregoing (A) in the event the Borrower
enters into any Lease with respect to the State of Florida Space
and the termination date of any of such Lease is after the March
11, 2009, and provided no Default or Event of Default has
occurred, Borrower shall be entitled to receive on the
commencement date of such Lease from the State of Florida Lease
Sub-Account an amount equal to the product of the State of
Florida Funds multiplied by a fraction the numerator of which is
the gross square feet covered by such Lease and the denominator
of which is 341,221 and, subject to the proviso at the end of
clause (B), any remaining funds in such Sub-Account shall remain
in such Sub-Account as additional security for the Loan; and (B)
in the event that (i) the Borrower enters into any Lease for any
portion of the State of Florida Space (an "Early Terminating
Lease") and the termination date of any such Lease is before
March 11, 2009 or (ii) any of the Leases in effect on the Closing
Date for any portion of the State of Florida Space expire (an
"Expiring Lease") without the execution of a Lease for such
space, funds in an amount equal to the product of the State of
Florida Funds multiplied by a fraction the numerator of which is
the gross square feet covered by such Lease or Expiring Lease, as
applicable, and the denominator of which is 341,221 shall remain
in the State of Florida Lease Sub-Account as additional security
for the Loan, provided, however, that if Borrower enters into any
Lease or Leases covering all or any portion of the State of
Florida Space covered by such Expiring Lease or Early Terminating
Lease and the expiration date of any such Lease is after March
11, 2009, Borrower shall be entitled to receive funds from the
State of Florida Lease Sub-Account pursuant to clause (A) of this
Section 2.12(f)(v).
(vi) Payment of Ground Rents. In the event
Borrower fails to pay the Ground Rents, Lender in addition to its
rights under this Agreement, may apply the funds in the Ground
Rents Sub-Account to pay such Ground Rents.
(vii) Payment of Operating Expenses. On and after
the Optional Prepayment Date, not more frequently than once each
Interest Accrual Period and provided that no Default or Event of
Default has occurred Lender shall direct the Cash Collateral
Account Bank to, within five (5) Business Days of Lender's
receipt of an Operating Expense Certificate from Borrower, such
Operating Expense Certificate to be delivered by Borrower not
more frequently than once each Interest Accrual Period, transfer
funds to Borrower or its designee out of the Operating Expense
Sub-Account to the extent that there are funds available therein
in an amount not to exceed the amount stated in the Operating
Expense Certificate up to the Operating Expense Monthly
Installment. Together with each such Operating Expense
Certificate, Borrower shall furnish Lender with an Officer's
Certificate stating that all operating expenses from previous
periods have been paid in full and that such amounts are then due
or have been paid.
(viii) Extra Funds for Operating Expenses. On and
after the Optional Prepayment Date, not more frequently than once
each Interest Accrual Period and provided that no Default or
Event of Default has occurred if in a given Interest Accrual
Period, the Borrower requires amounts in excess of the Operating
Expense Monthly Installment ("Extra Funds"), Borrower, at the
time it delivers the Operating Expense Certificate, may deliver a
written request to Lender for a disbursement of Extra Funds
stating the amount of such Extra Funds and the purpose for which
such amount is intended with attachments of copies of bills and
other documentation as may be required by Lender to establish
that such Operating Expenses are reasonable and that such amounts
are then due or expected to become due in that month. Within ten
(10) days after Lender's approval, which approval, if granted by
Lender, shall be delivered within ten (10) Business Days of
Lender's receipt of such request, Lender shall release the funds
to Borrower or its designee.
(ix) Reconciliation. Borrower shall furnish Lender
monthly, on each Payment Date, a budget variance report
reconciling the Operating Expenses shown on the Annual Operating
Budget with requested disbursements for payment of Operating
Expenses pursuant to Section 2.12(f).
(g) Monthly Funding of Sub-Accounts. During each
Interest Accrual Period and except as provided below, during the
term of the Loan commencing with the Interest Accrual Period in
which the Closing Date occurs (each, the "Current Interest
Accrual Period"), Lender shall allocate all funds then on deposit
in the Cash Collateral Account among the Sub-Accounts as follows
and in the following priority:
(i) first, to the Basic Carrying Costs Sub-
Account, until an amount equal to the Basic Carrying Costs
Monthly Installment for the Current Interest Accrual Period has
been allocated to the Basic Carrying Costs Sub-Account;
(ii) second, to the Debt Service Payment Sub-
Account, until an amount equal to the Required Base Debt Service
Payment for the Payment Date immediately after the Current
Interest Accrual Period has been allocated to the Debt Service
Payment Sub-Account;
(iii) third, on and after the Optional Prepayment
Date, or at Lender's sole election, upon the occurrence of an
Event of Default, any date on or after the occurrence of such
Event of Default, to the Operating Expense Sub-Account, until an
amount equal to the Operating Expense Monthly Installment for the
Current Interest Accrual Period has been allocated to the
Operating Expense Sub-Account;
(iv) fourth, to the Capital Reserve Sub-Account,
until an amount equal to the Capital Reserve Monthly Installment
for the Current Interest Accrual Period has been allocated to the
Capital Reserve Sub- Account;
(v) fifth, in the event the Borrower enters into
the New State of Florida Leases and the termination date of the
New State of Florida Leases is prior to March 11, 2009 to the
State of Florida Lease Sub-Account until an amount equal to the
State of Florida Lease Monthly Installment for the Current
Interest Accrual Period has been allocated to the State of
Florida Lease Sub-Account;
(vi) sixth, to the Securitization Expense Sub-
Account, provided, however, that only the Initial Securitization
Expense Amount shall be allocated to the Securitization Sub-
Account; and
(vii)seventh, provided that (i) no Event of Default has
occurred and (ii) Lender has received all financial information
described in Section 5.1(Q) for the most recent periods for which
the same are due, Lender agrees that in each Current Interest
Accrual Period any amounts deposited into or remaining in the
Cash Collateral Account after (A) the minimum amounts set forth
in clauses (i) through (vi) above have been satisfied with
respect to the Current Interest Accrual Period and any periods
prior thereto and (B) the funding of additional reserves at
levels determined by Borrower to be prudent for working capital,
Capital Improvement Costs and other Borrower costs, which levels
shall be satisfactory to Lender, in Lender's sole discretion,
shall be disbursed by Lender on the first Payment Date after the
end of the then Current Interest Accrual Period, at Borrower's
expense, to such account that Borrower may request in writing.
Lender and its agents shall not be responsible for monitoring
Borrower's use of any funds disbursed from the Cash Collateral
Account or any of the Sub-Accounts. Notwithstanding anything in
this Agreement to the contrary, on and after the Optional
Prepayment Date, any amounts deposited into or remaining in the
Cash Collateral Account after (A) the minimum amounts set forth
in clauses (i) through (vi) above have been satisfied with
respect to the Current Interest Accrual Period and any periods
prior thereto and (B) the funding of additional reserves at
levels determined by Borrower to be prudent for working capital,
Capital Improvement Costs and other Borrower costs, which levels
shall be satisfactory to Lender, in Lender's sole discretion (the
"Excess Cash Flow"), shall be allocated to the Debt Service Sub-
Account and be applied by Lender on each Payment Date in
accordance with Section 2.8 and shall not be disbursed to
Borrower; and further provided, however, that if an Event of
Default has occurred any amounts deposited into or remaining in
the Cash Collateral Account shall be for the account of Lender
and may be withdrawn by Lender to be applied in any manner as
Lender may elect in Lender's sole discretion.
If an Event of Default has occurred or if on any
Payment Date the balance in any Sub-Account is insufficient to
make the required payment due from such Sub-Account, Lender may,
in its sole discretion, in addition to any other rights and
remedies available hereunder, withdraw funds from any other Sub-
Account to pay such deficiency. In the event that Lender elects
to apply funds of any such Sub-Account to pay any Required Base
Debt Service Payment, Borrower shall, upon demand, repay to
Lender the amount of such withdrawn funds to replenish such Sub-
Account, and if Borrower shall fail to repay such amounts within
three (3) Business Days after notice of such withdrawal, an Event
of Default shall exist hereunder.
(h) Condemnation Proceeds and Insurance Proceeds. In
the event of a Taking with respect to the Facility, Borrower
shall cause all the proceeds in respect of any Taking
("Condemnation Proceeds") to be paid to the Lender who shall,
except as otherwise provided in the second succeeding sentence or
in Section 2.12(c) of the Mortgage, apply such Condemnation
Proceeds to reduce the Indebtedness in accordance with Section
2.7 and Section 2.8. In the event of a casualty with respect to
the Facility, except as otherwise provided in the next sentence
or in Section 2.5 of the Mortgage, Borrower shall cause all
Proceeds of any insurance policy ("Insurance Proceeds") to be
paid to the Lender who shall apply such Insurance Proceeds to
reduce the Indebtedness in accordance with Section 2.7 and
Section 2.8. All Insurance Proceeds received by Borrower or
Lender in respect of business interruption coverage and all
Condemnation Proceeds received in respect of a temporary Taking
shall be maintained in the Cash Collateral Account, to be applied
by Lender in the same manner as Rents (other than security
deposits) received from Borrower with respect to the operation of
the Facility; provided, further, that in the event that the
Insurance Proceeds of any such business interruption insurance
policy or Condemnation Proceeds of such temporary Taking are paid
in a lump sum in advance, Lender shall hold such Insurance
Proceeds or Condemnation Proceeds in a segregated interest-
bearing escrow account at the Cash Collateral Account Bank, and
Lender shall estimate the number of months required for Borrower
to restore the damage caused by the casualty to the Facility or
that the Facility will be affected by such temporary Taking, as
the case may be, shall divide the aggregate business interruption
Insurance Proceeds or Condemnation Proceeds in connection with
such casualty or temporary Taking by such number of months, and
shall disburse from such escrow account into the Cash Collateral
Account each month during the performance of such restoration or
pendency of such temporary Taking such monthly installment of
said Insurance Proceeds or Condemnation Proceeds. Any Insurance
Proceeds or Condemnation Proceeds made available to Borrower for
restoration or repair in accordance with the Mortgage, to the
extent not used by Borrower in connection with, or to the extent
they exceed the cost of, such restoration, shall be paid to
Borrower.
(i) Payment of Basic Carrying Costs. Except to the
extent that Lender is obligated to pay Basic Carrying Costs from
the Basic Carrying Costs Sub-Account pursuant to the terms of
Section 2.12(f), Borrower shall pay all Basic Carrying Costs with
respect to itself and the Facility in accordance with the
provisions of the Mortgage, subject, however, to Borrower's
rights to contest payment of same in accordance with the
Mortgage. Borrower's obligation to pay (or cause Lender to pay)
Basic Carrying Costs pursuant to this Agreement shall include, to
the extent permitted by applicable law, Impositions resulting
from future changes in law which impose upon Lender an obligation
to pay any property taxes or other Impositions or which otherwise
adversely affect Lender's interests. (In the event such a change
in law prohibits Borrower from assuming liability for payment of
any such Imposition, the outstanding Indebtedness shall, at the
sole option of Lender, become due and payable on the date that is
120 days after such change in law; and failure to pay such
amounts on the date due shall be an Event of Default.) Should an
Event of Default have occurred, the proceeds on deposit in the
Basic Carrying Costs Sub-Account may be applied by Lender in any
manner as Lender in its sole discretion may determine.
(j) Payment of Ground Rents. Borrower shall cause the
Ground Rents to be paid as required under the Ground Lease.
Should an Event of Default have occurred, the proceeds on deposit
in the Ground Rents Sub-Account may be applied by Lender in any
manner as Lender in its sole discretion may determine.
Section 2.13. Security Agreement. (a) Pledge of
Accounts. To secure the full and punctual payment and
performance of all of the Indebtedness, Borrower hereby sells,
assigns, conveys, pledges and transfers to Lender and grants to
Lender a first and continuing security interest in and to, the
following property, whether now owned or existing or hereafter
acquired or arising and regardless of where located
(collectively, the "Account Collateral"):
(i) all of Borrower's right, title and interest in the Cash
Collateral Account (including all Sub-Accounts) and all Money
and Permitted Investments, if any, from time to time deposited or
held in the Cash Collateral Account;
(ii) all of Borrower's right, title and interest in the
Collection Account and Security Deposit Account and all Money, if
any, from time to time deposited or held in the Collection
Account and Security Deposit Account;
(iii)all interest, dividends, Money, Instruments and other
property from time to time received, receivable or otherwise
payable in respect of, or in exchange for, any of the foregoing;
and
(iv) to the extent not covered by clauses (i), (ii), or
(iii) above, all Proceeds and products of any or all of the
foregoing.
(b) Covenants. Borrower covenants that (i) all Rents
and Money received from Accounts shall be deposited by Borrower
directly into the Collection Account or the Security Deposit
Account, as applicable and (ii) so long as any portion of the
Indebtedness is outstanding, Borrower shall not open (nor permit
Manager or any Person to open) any other account for the
collection of Rents and Money received from Accounts, other than
such replacement Collection Accounts and Security Deposit
Accounts as may be established pursuant to Section 2.13(l).
(c) Instructions and Agreements. On or before the
Closing Date, Borrower will submit to the Collection Account Bank
for the Facility a Collection Account Agreement to be executed by
the Collection Account Bank. On or before the Closing Date,
Borrower and the Cash Collateral Account Bank will execute and
deliver a Cash Collateral Account Agreement in form and substance
satisfactory to Lender in Lender's sole discretion (the "Cash
Collateral Account Agreement"). Borrower agrees that prior to the
payment in full of the Indebtedness, the Cash Collateral Account
Agreement shall be irrevocable by Borrower without the prior
written consent of Lender.
(d) Financing Statements; Further Assurances. Borrower
will execute and deliver to Lender for filing a financing
statement or statements in connection with the Account Collateral
in the form required to properly perfect Lender's security
interest in the Account Collateral to the extent that it may be
perfected by such a filing. Borrower agrees that at any time and
from time to time, at the expense of Borrower, Borrower shall
promptly execute and deliver all further instruments, and take
all further action, that Lender may request, in order to perfect
and protect the pledge and security interest granted or purported
to be granted hereby, or to enable Lender to exercise and enforce
Lender's rights and remedies hereunder with respect to, the
Account Collateral.
(e) Transfers and Other Liens. Borrower agrees that it
will not sell or otherwise dispose of any of the Account
Collateral other than pursuant to the terms hereof and of the
other Loan Documents, or create or permit to exist any Lien upon
or with respect to all or any of the Account Collateral, except
for the Lien granted to Lender under this Agreement.
(f) Lender's Reasonable Care. Beyond the exercise of
reasonable care in the custody thereof, Lender shall not have any
duty as to any Account Collateral or any income thereon in its
possession or control or in the possession or control of any
agents for, or of Lender, or the preservation of rights against
any Person or otherwise with respect thereto. Lender shall be
deemed to have exercised reasonable care in the custody of the
Account Collateral in its possession if the Account Collateral is
accorded treatment substantially equal to that which Lender
accords its own property, it being understood that Lender shall
not be liable or responsible for (i) any loss or damage to any of
the Account Collateral, or for any diminution in value thereof
from a loss of, or delay in Lender's acknowledging receipt of,
any wire transfer from the Collection Account Bank or (ii) any
loss, damage or diminution in value by reason of the act or
omission of Lender, or Lender's agents, employees or bailees.
(g) Lender Appointed Attorney-In-Fact. Borrower hereby
irrevocably constitutes and appoints Lender as Borrower's true
and lawful attorney-in-fact, with full power of substitution, at
any time after the occurrence of an Event of Default to execute,
acknowledge and deliver any instruments and to exercise and
enforce every right, power, remedy, option and privilege of
Borrower with respect to the Account Collateral, and do in the
name, place and stead of Borrower, all such acts, things and
deeds for and on behalf of and in the name of Borrower with
respect to the Account Collateral, which Borrower could or might
do or which Lender may deem necessary or desirable to more fully
vest in Lender the rights and remedies provided for herein with
respect to the Account Collateral and to accomplish the purposes
of this Agreement. The foregoing powers of attorney are
irrevocable and coupled with an interest.
(h) Continuing Security Interest; Termination. This
Section 2.13 shall create a continuing pledge of and security
interest in the Account Collateral and shall remain in full force
and effect until payment in full of the Indebtedness. Upon
payment in full of the Indebtedness, Borrower shall be entitled
to the return, upon its request and at its expense, of such of
the Account Collateral as shall not have been sold or otherwise
applied pursuant to the terms hereof, and Lender shall execute
such instruments and documents as may be reasonably requested by
Borrower to evidence such termination and the release of the
pledge and Lien hereof, provided, however, that Borrower shall
pay on demand all of Lender's expenses in connection therewith.
Section 2.14. Securitization. Borrower hereby
acknowledges that Lender, its successors or assigns, may sell or
securitize the Loan or portions thereof in one or more
transactions through the issuance of securities, which may be
rated by the Rating Agencies (each, a "Securitization";
collectively, the "Securitizations"). Borrower agrees that it
shall reasonably cooperate with Lender and use its best efforts
to facilitate the consummation of each Securitization including,
but not limited to, by (a) amending or causing the amendment of
this Agreement and the other Loan Documents, and executing such
additional documents including amendments to Borrower's
organizational documents and preparing financial statements as
requested by the Rating Agencies to conform the terms of the Loan
to the terms of similar loans underlying completed or pending
securitized transactions having or seeking ratings the same as
those then being sought in connection with the relevant
Securitization; (b) promptly and reasonably providing such
information as may be requested in connection with the
preparation of a private placement memorandum or a registration
statement required to privately place or publicly distribute the
securities in a manner which does not conflict with federal or
state securities laws; (c) providing in connection with each of
(i) a preliminary and a private placement memorandum or (ii) a
preliminary and final prospectus, as applicable, an
indemnification certificate (x) certifying that Borrower has
carefully examined such memorandum or prospectus, as applicable,
including, without limitation, the sections entitled "Special
Considerations", "Description of the Mortgage Loan" and "The
Underlying Mortgaged Property", "The Manager", "Borrower" and
"Certain Legal Aspects of the Mortgage Loan", and such sections
(and any other sections reasonably requested) insofar as they
relate to Borrower, its Affiliates, the Loan or the Facility do
not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
made, in the light of the circumstances under which they were
made, not misleading, provided, however, that Borrower shall not
be required to indemnify Lender for any losses relating to untrue
statements or omissions which Borrower identified to Lender in
writing at the time of Borrower's examination of such memorandum
or prospectus as applicable, and (y) indemnifying Lender (and its
officers, directors, partners, employees, affiliates and agents
and each other person, if any, controlling Lender or any of its
affiliates within the meaning of either Section 15 of the
Securities Act of 1933, as amended, or Section 20 of the
Securities Exchange Act of 1934, as amended), the Issuer and the
Advisor for any losses, claims, damages, expenses or liabilities
(including, without limitation, all liabilities under all
applicable federal and state securities laws) (collectively, the
"Liabilities") to which any of them may become subject (i)
insofar as the Liabilities arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
relating to Borrower, its Affiliates, the Loan, Facility, the
Manager or any aspect of the subject financing or the parties
directly involved therein contained in such sections or arise out
of or are based upon the omission or alleged omission to state
therein a material fact required to be stated in such sections or
necessary in order to make the statements in such sections, in
light of the circumstances under which they were made, not
misleading or (ii) as a result of any untrue statement of
material fact in any of the financial statements of Borrower
incorporated into any placement memorandum, prospectus,
registration statement or other document connected with the
issuance of securities or the failure to include in such
financial statements or in any placement memorandum, prospectus,
registration statement or other document connected with the
issuance of securities any material fact relating to Borrower,
its Affiliates, the Facility, the Loan, the Manager and any
aspect of the subject financing necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading; provided that Borrower shall have
had an opportunity to review and comment upon the relevant
portions of such documents; and (z) agreeing to reimburse Lender,
the Issuer and the Advisor for any legal or other expenses
reasonably incurred by Lender, the Issuer and the Advisor in
connection with investigating or defending the Liabilities; (d)
causing to be rendered such customary opinion letters as shall be
reasonably requested by the Rating Agencies for other
securitizations having or seeking ratings comparable to that then
being sought for the relevant Securitization; (e) making such
representations, warranties and covenants, as may be reasonably
requested by the Rating Agencies and comparable to those required
in other securitized transactions having or seeking the same
rating as is then being sought for the Securitization; (f)
providing such information regarding the Collateral as may be
reasonably requested by the Rating Agencies or otherwise required
in connection with the formation of a REMIC; and (g) providing
any other information and materials required in the
Securitization process. Subject to Lender's application of
funds in the Securitization Expense Sub-Account, Borrower agrees
to pay on the Securitization Closing Date and, if earlier, within
thirty (30) days after the incurrence thereof, upon demand, all
reasonable out-of-pocket costs of Lender (and not previously
reimbursed by Borrower) in connection with the Securitization (or
any attempt to securitize the Loan), including, without
limitation, the cost of preparing a private placement memorandum
or prospectus, Rating Agency fees and expenses (including ongoing
surveillance fees), legal fees and disbursements (including,
without limitation, in connection with the rendering of legal
opinions), third party due diligence expenses, including
appraisals, engineering reports and environmental reports, the
fees and expenses of any trustee, servicer or special servicer,
including any ongoing servicing or special servicing fees, and
the cost of market studies and SEC filing fees (collectively,
"Securitization Costs"), provided, however, that Borrower's
liability for Securitization Costs shall not exceed the Initial
Securitization Expense Amount. Borrower acknowledges and agrees
that the Lender may, at any time on or after the Closing Date,
assign its duties, rights or obligations hereunder or under any
Loan Document in whole, or in part, to a servicer and/or a
trustee in Lender's discretion. Nothing herein shall in any way
limit Lender's right to sell all or a portion of the Loan in a
transaction which is not a Securitization.
Section 2.15. Supplemental Mortgage Affidavits. The
Liens to be created by the Mortgage are intended to encumber the
Facility described therein to the full extent of Borrower's
obligations under the Loan Documents. As of the Closing Date,
Borrower shall have paid all state, county and municipal
recording and all other taxes imposed upon the execution and
recordation of the Mortgage.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1. Conditions Precedent to the Making of the
Loan. (a) As a condition precedent to the making of the Loan,
Borrower shall have satisfied the following conditions (unless
waived by Lender in accordance with Section 8.4) with respect to
the Facility on or before the Closing Date:
(A) Loan Documents.
(i) Loan Agreement. Borrower shall have executed and
delivered this Agreement to Lender.
(ii) Note. Borrower shall have executed and delivered
to Lender the Note.
(iii) Mortgage. Borrower shall have executed and
delivered to Lender the Mortgage and such Mortgage shall have
been filed of record in the appropriate filing offices in the
jurisdiction in which the Facility is located or irrevocably
delivered to a title agent for such recordation.
(iv) Assignment of Leases. Borrower shall have
executed and delivered to Lender the Assignment of Leases and the
Assignment of Leases shall have been filed of record in the
appropriate filing offices in the jurisdiction in which the
Facility is located or irrevocably delivered to a title agent for
such recordation.
(v) Assignment of Agreements. Borrower shall have
executed and delivered to Lender the Assignment of Agreements and
the Assignment of Agreements shall, to the extent prudent
pursuant to local practice, have been filed of record in the
appropriate filing offices in the jurisdiction in which the
Facility is located or irrevocably delivered to a title agent for
such recordation.
(vi) Financing Statements. Borrower and its partners
or members (and their shareholders), as applicable, shall have
executed and delivered to Lender all financing statements
required by Lender and such financing statements shall have been
filed of record in the appropriate filing offices in each of the
appropriate jurisdictions or irrevocably delivered to a title
agent for such recordation.
(vii) Manager's Subordination. Manager and
Borrower shall have executed and delivered to Lender the
Manager's Subordination.
(viii) Cash Collateral Account Agreement. Borrower
and Cash Collateral Account Bank shall have executed and
delivered the Cash Collateral Account Agreement and shall have
delivered an executed copy of such agreement to Lender.
(ix) Environmental Guaranty. The Parent shall have
executed and delivered to Lender the Environmental Guaranty.
(x) Parent's Side Letter. The parent shall have
executed and delivered to Lender the Parent's Side Letter.
(xi) Collection Account Agreement. Borrower and the
Collection Account Bank shall have executed and delivered the
Collection Account Agreement and shall have delivered an executed
copy of such agreement to Lender.
(B) Opinions of Counsel. Lender shall have received from
counsel satisfactory to Lender, legal opinions in form and
substance satisfactory to Lender in Lender's sole discretion
(including without limitation, a bankruptcy opinion). All such
legal opinions will be addressed to Lender and the Rating
Agencies, dated as of the Closing Date, and in form and substance
satisfactory to Lender, the Rating Agencies and their counsel.
Borrower hereby instructs any of the foregoing counsel, to the
extent that such counsel represents Borrower, to deliver to
Lender such opinions addressed to Lender and the Rating Agencies.
(C) Secretary's Certificates and SPE Equity Owner's
Certificate. Lender shall have received a Secretary's
Certificate with respect to Borrower's managing equity owner and
Manager and the SPE Equity Owner's Certificate with respect to
Borrower.
(D) Insurance. Lender shall have received certificates of
insurance demonstrating insurance coverage in respect of the
Facility of types, in amounts, with insurers and otherwise in
compliance with the terms, provisions and conditions set forth in
the Mortgage. Such certificates shall indicate that Lender is an
additional insured as its interests may appear and shall contain
a loss payee endorsement in favor of Lender with respect to the
property policies required to be maintained under the Mortgage.
All insurance policies required to be maintained hereunder shall
be maintained from the Closing Date throughout the term of this
Agreement in the types and amounts required under the Mortgage.
(E) Lien Search Reports. Lender shall have received
satisfactory reports of UCC (collectively, the "UCC Searches"),
federal tax lien, bankruptcy, state tax lien, judgment and
pending litigation searches conducted by a search firm reasonably
acceptable to Lender. Such searches shall have been received in
relation to Borrower, Manager and the owner of the Facility
immediately prior to its transfer to the Borrower and each equity
owner in Borrower, Manager and the owner of the Facility
immediately prior to its transfer to the Borrower. Such searches
shall have been conducted in each of the locations designated by
Lender in Lender's reasonable discretion and shall have been
dated not more than fifteen (15) days prior to the Closing Date.
(F) Title Insurance Policy. Lender shall have received (i)
a Title Insurance Policy or a marked up commitment (in form and
substance reasonably satisfactory to Lender in Lender's
reasonable discretion) from Title Insurer to issue the Title
Insurance Policy and (ii) a fully executed copy of the Title
Instruction Letter from the Title Insurer.
(G) Environmental Matters. Lender shall have received an
Environmental Report with respect to the Facility, addressed to
Lender, which Environmental Report shall be (i) prepared by a
firm approved by Lender in Lender's sole discretion, (ii)
prepared based on a scope of work determined by Lender in
Lender's sole discretion and (iii) in form and content acceptable
to Lender in Lender's sole discretion, such Environmental Report
to be conducted by an Independent environmental Engineer.
(H) Consents, Licenses, Approvals. Lender shall have
received copies of all consents, licenses and approvals, if any,
required in connection with the execution, delivery and
performance by Borrower under, and the validity and
enforceability of, the Loan Documents, and such consents,
licenses and approvals shall be in full force and effect.
(I) Additional Matters. Lender shall have received such
other Permits, certificates (including certificates of occupancy
reflecting the use of the Facility as of the Closing Date),
opinions, documents and instruments (including without
limitation, written proof from the appropriate Governmental
Authority regarding the zoning of the Facility in form and
substance satisfactory to Lender in Lender's sole discretion)
relating to the Loan as may have been requested by Lender and all
other documents and all legal matters in connection with the Loan
shall be satisfactory in form and substance to Lender. Borrower
shall provide Lender with information reasonably satisfactory to
Lender regarding the Basic Carrying Costs on or before the
Closing Date.
(J) Representations and Warranties. The representations
and warranties herein and in the other Loan Documents shall be
true and correct in all material respects.
(K) Accounting Review. Lender shall have received an
accounting review satisfactory to Lender in Lender's sole
discretion showing no anticipated decrease in cash flow. Such
review shall be (i) prepared by a firm approved by Lender in
Lender's sole discretion, (ii) prepared based on a scope of work
determined by Lender in Lender's sole discretion and (iii) in
form and content acceptable to Lender in Lender's sole
discretion.
(L) No Injunction. No law or regulation shall have been
adopted, no order, judgment or decree of any Governmental
Authority shall have been issued, and no litigation shall be
pending or threatened, which in the good faith judgment of Lender
would enjoin, prohibit or restrain, or impose or result in an
adverse effect upon the making or repayment of the Loan or the
consummation of the Transactions.
(M) Survey. Lender shall have received a Survey with
respect to the Facility which Survey shall be (i) prepared by a
firm approved by Lender in Lender's sole discretion, (ii)
prepared based on a scope of work determined by Lender in
Lender's sole discretion and (iii) in form and content acceptable
to Lender in Lender's sole discretion.
(N) Engineering Report. Lender shall have received an
Engineering Report with respect to the Facility prepared by an
Engineer (addressed to Lender) and which reports shall be (i)
prepared by a firm approved by Lender in Lender's sole
discretion, (ii) prepared based on a scope of work determined by
Lender in Lender's sole discretion and (iii) in form and content
acceptable to Lender in Lender's sole discretion.
(O) Appraisal. Lender shall have received an Appraisal
satisfactory to Lender with respect to the Facility which shall
be (i) prepared by a firm approved by Lender in Lender's sole
discretion, (ii) prepared based on a scope of work determined by
Lender in Lender's sole discretion and (iii) in form and content
acceptable to Lender in Lender's sole discretion.
(P) Security Deposits. All security deposits with respect
to the Facility on the Closing Date shall have been transferred
to the Security Deposit Account, and Borrower shall be in
compliance with all applicable Legal Requirements relating to
such security deposits.
(Q) Service Contracts and Permits. Borrower shall have
delivered to Lender a copy of all material contracts and Permits
relating to the Facility.
(R) Site Inspection. Unless waived by Lender in accordance
with Section 8.4, Lender shall have performed, or caused to be
performed on its behalf, an on-site due diligence review of the
Facility to be acquired or refinanced with the Loan satisfactory
to Lender in Lender's sole discretion.
(S) Use. The Facility shall be operating only as a mixed
use office/retail property.
(T) Financial Information. Lender shall have received all
financial information (which financial information shall be
satisfactory to Lender in Lender's sole discretion) relating to
the Facility including, without limitation, audited financial
statements of Borrower and other financial reports requested by
Lender in Lender's sole discretion. Such financial information
shall be (i) prepared by a firm approved by Lender in Lender's
sole discretion, (ii) prepared based on a scope of work
determined by Lender in Lender's sole discretion and (iii) in
form and content acceptable to Lender in Lender's sole
discretion.
(U) Management Agreement. With respect to the Facility,
Lender shall have received the Management Agreement.
(V) Leases; Tenant Estoppels; Subordination, Nondisturbance
and Attornment Agreements. With respect to the Facility,
Borrower shall have delivered a true, complete and correct rent
roll and a copy of each of the Leases identified in such rent
roll, and each Lease shall be satisfactory to Lender in Lender's
sole discretion. Borrower shall, among other things and without
limitation, provide (i) evidence that each Lease is in full force
and effect and (ii) originally executed tenant estoppel
certificates and subordination, nondisturbance and attornment
agreements from tenants with leases which in the aggregate
account for at least 100% of the total square footage of the
Facility in form and substance satisfactory to Lender in Lender's
sole discretion.
(W) Subdivision. Evidence satisfactory to Lender
(including title endorsements) that the Land with respect to the
Facility constitutes a separate lot for conveyance and real
estate tax assessment purposes.
(X) Transaction Costs. Borrower shall have paid or caused
to be paid all Transaction Costs.
(Y) Ground Lease and Ground Lease Estoppel. Borrower shall
have delivered a true and correct copy of the Ground Lease,
together with all amendments and modifications thereto and
evidence satisfactory to Lender that the Ground Lease is in full
force and effect, including, but not limited to an originally
executed Ground Lessor Estoppel from the landlord under the
Ground Lease in form and substance satisfactory to Lender.
(b) Lender shall not make the Loan unless and until
each of the applicable conditions precedent set forth in Section
3.1 is satisfied and until Borrower provides any other
information reasonably required by Lender.
(c) In connection with the Loan, Borrower shall
execute and/or deliver to Lender all additions, amendments,
modifications and supplements to the items set forth in this
Article III, including without limitation, amendments,
modifications and supplements to the Note, Mortgage, Assignment
of Leases, Assignment of Agreements and Manager's Subordination
if reasonably requested by Lender to effectuate the provisions
hereof, and to provide Lender with the full benefit of the
security intended to be provided under the Loan Documents.
Without in any way limiting the foregoing, such additions,
modifications and supplements shall include those deemed
reasonably desirable by Lender's counsel in the jurisdiction in
which the Facility is located.
(d) The making of the Loan shall constitute, without
the necessity of specifically containing a written statement to
such effect, a confirmation, representation and warranty by
Borrower to Lender that all of the applicable conditions to be
satisfied in connection with the making of the Loan have been
satisfied (unless waived by Lender in accordance with Section
8.4,) and that all of the representations and warranties of
Borrower set forth in the Loan Documents are true and correct as
of the date of the making of the Loan.
Section 3.2. Form of Loan Documents and Related
Matters. The Loan Documents and all of the certificates,
agreements, legal opinions and other documents and papers
referred to in this Article III, unless otherwise specified,
shall be delivered to Lender, and shall be reasonably
satisfactory in form and substance to Lender.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of
Borrower. (a) Closing Date Representations and Warranties of
Borrower. Borrower represents and warrants that, as of the
Closing Date:
(A) Organization. Borrower (i) is a duly organized and
validly existing Entity in good standing under the laws of the
State of its formation, (ii) has the requisite Entity power and
authority to carry on its business as now being conducted, and
(iii) has the requisite Entity power to execute and deliver, and
perform its obligations under, the Loan Documents.
(B) Authorization. The execution and delivery by Borrower
of the Loan Documents, Borrower's performance of its obligations
thereunder and the creation of the security interests and Liens
provided for in the Loan Documents (i) have been duly authorized
by all requisite Entity action on the part of Borrower, (ii) will
not violate any provision of any applicable Legal Requirements,
any order of any court or other Governmental Authority, any
organizational document of Borrower or any indenture or agreement
or other instrument to which Borrower is a party or by which
Borrower is bound, (iii) will not be in conflict with, result in
a breach of, or constitute (with due notice or lapse of time or
both) a default under, or result in the creation or imposition of
any Lien of any nature whatsoever upon any of the property or
assets of Borrower pursuant to, any such indenture or agreement
or instrument and (iv) have been duly executed and delivered by
Borrower. Other than those obtained or filed on or prior to the
Closing Date Borrower is not required to obtain any consent,
approval or authorization from, or to file any declaration or
statement with, any Governmental Authority or other agency in
connection with or as a condition to the execution, delivery or
performance of the Loan Documents.
(C) Single-Purpose Entity.
(i) Borrower has been, and will continue to be, a duly
formed and existing Entity, and a Single-Purpose Entity.
(ii) The SPE Equity Owner at all times since its
formation has been, and will continue to be, a duly formed and
existing corporation in good standing and a Single-Purpose
Entity, and Borrower will take no action to cause such SPE Equity
Owner not to be a duly formed and existing corporation in good
standing and a Single-Purpose Entity.
(iii)Borrower at all times since its formation has
complied, and will continue to comply, with the provisions of all
of its organizational documents, and the laws of the state in
which Borrower was formed relating to the Entity.
(iv) All customary formalities regarding the Entity
existence of Borrower have been observed at all times since its
formation and will continue to be observed.
(v) Borrower has been at all times since its formation
and will continue to be adequately capitalized in light of the
nature of its business.
(b) Additional Closing Date Borrower Representations and
Warranties. Borrower represents and warrants that, as of the
Closing Date:
(A) Litigation. There are no actions, suits or proceedings
at law or in equity by or before any Governmental Authority or
other agency now pending and served or, to the knowledge of
Borrower, threatened against Borrower or the Facility.
(B) Agreements. Borrower is not a party to any agreement
or instrument or subject to any restriction which is likely to
have a Material Adverse Effect. Borrower is not in default in
any respect in the performance, observance or fulfillment of any
of the obligations, covenants or conditions contained in any
agreement or instrument to which it is a party or by which
Borrower or the Facility is bound.
(C) No Bankruptcy Filing. Borrower is not contemplating
either the filing of a petition by it under any state or federal
bankruptcy or insolvency laws or the liquidation of all or a
major portion of Borrower's assets or property, and Borrower has
no knowledge of any Person contemplating the filing of any such
petition against it.
(D) Full and Accurate Disclosure. No statement of fact
made by or on behalf of Borrower in the Loan Documents or in any
other document or certificate delivered to Lender by Borrower
contains any untrue statement of a material fact or omits to
state any material fact necessary to make statements contained
herein or therein not misleading. There is no fact presently
known to Borrower which has not been disclosed to Lender which
materially adversely affects, nor as far as Borrower can foresee,
might materially adversely affect the business, operations or
condition (financial or otherwise) of Borrower.
(E) Location of Chief Executive Offices. The location of
Borrower's principal place of business and the location of
Borrower's chief executive office is 600 Third Avenue, Kingston,
Pennsylvania 18704-1679.
(F) Compliance. Borrower, the Facility and Borrower's use
thereof and operations thereat comply in all material respects
with all applicable Legal Requirements, including without
limitation, building and zoning ordinances and codes. Borrower
is not in default or violation of any order, writ, injunction,
decree or demand of any Governmental Authority, the violation of
which is reasonably likely to have a Material Adverse Effect.
(G) Other Debt and Obligations. Borrower has no financial
obligation under any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which Borrower is a
party, or by which Borrower or its Facility is bound, other than
unsecured trade payables incurred in the ordinary course of
business relating to the ownership and operation of its Facility
which do not exceed, at any time, a maximum amount of one percent
(1%) of the Loan Amount and are paid within thirty (30) days of
the date incurred, and other than obligations under the Mortgage
and the other Loan Documents. Borrower has not borrowed or
received other debt financing that has not been heretofore repaid
in full and Borrower has no known material contingent
liabilities.
(H) ERISA. Each Plan and, to the knowledge of Borrower,
each Multiemployer Plan, is in compliance in all material
respects with, and has been administered in all material respects
in compliance with, its terms and the applicable provisions of
ERISA, the Code and any other federal or state law, and no event
or condition has occurred as to which Borrower would be under an
obligation to furnish a report to Lender under Section 5.1(T).
(I) Solvency. Borrower (i) has not entered into this Loan
Agreement or any Loan Document with the actual intent to hinder,
delay, or defraud any creditor, and (ii) has received reasonably
equivalent value in exchange for its obligations under the Loan
Documents. Giving effect to the transactions contemplated
hereby, the fair saleable value of Borrower's assets exceeds and
will, immediately following the execution and delivery of this
Agreement, exceed Borrower's total liabilities, including,
without limitation, subordinated, unliquidated, or disputed
liabilities or Contingent Obligations. The fair saleable value
of Borrower's assets is and will, immediately following the
execution and delivery of this Agreement, be greater than
Borrower's probable liabilities, including the maximum amount of
its Contingent Obligations or its debts as such debts become
absolute and matured. Borrower's assets do not and, immediately
following the execution and delivery of this Agreement, will not,
constitute unreasonably small capital to carry out its business
as conducted or as proposed to be conducted. Borrower does not
intend to, and does not believe that it will, incur debts and
liabilities (including, without limitation, Contingent
Obligations and other commitments) beyond its ability to pay such
debts as they mature (taking into account the timing and amounts
to be payable on or in respect of obligations of Borrower).
(J) Not Foreign Person. Borrower is not a "foreign person"
within the meaning of section 1445(f)(3) of the Code.
(K) Enforceability. The Loan Documents are the legal,
valid and binding obligation of Borrower, enforceable against
Borrower in accordance with their terms, subject to bankruptcy,
insolvency and other limitations on creditors' rights generally
and to equitable principles.
(L) Investment Company Act; Public Utility Holding Company
Act. Borrower is not (i) an "investment company" or a company
"controlled" by an "investment company," within the meaning of
the Investment Company Act of 1940, as amended, (ii) a "holding
company" or a "subsidiary company" of a "holding company" or an
"affiliate" of either a "holding company" or a "subsidiary
company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended, or (iii) subject to any other federal or
state law or regulation which purports to restrict or regulate
its ability to borrow money.
(M) No Defaults. No Default or Event of Default exists
under or with respect to any Loan Document.
(N) Labor Matters. Borrower is not a party to any
collective bargaining agreements.
(O) Title to the Mortgaged Property. Borrower owns good,
indefeasible, marketable and insurable leasehold title to the
Facility, free and clear of all Liens, other than the Permitted
Encumbrances applicable to the Facility. There are no
outstanding options to purchase or rights of first refusal
affecting the Facility. The Permitted Encumbrances do not and
will not materially and adversely affect (i) the ability of
Borrower to pay in full all sums due under the Note or any of its
other obligations in a timely manner or (ii) the use of
Borrower's Facility for the use currently being made thereof, the
operation of the Facility as currently being operated or the
value of the Facility.
(P) Use of Proceeds; Margin Regulations. Borrower will use
the proceeds of the Loan for the purposes described in Section
2.2. No part of the proceeds of the Loan will be used for the
purpose of purchasing or acquiring any "margin stock" within the
meaning of Regulation U of the Board of Governors of the Federal
Reserve System or for any other purpose which would be
inconsistent with such Regulation U or any other Regulations of
such Board of Governors, or for any purposes prohibited by
applicable Legal Requirements.
(Q) Financial Information. All historical financial data
concerning Borrower and its Facility that has been delivered by
Borrower to Lender is true, complete and correct in all material
respects. Since the delivery of such data, except as otherwise
disclosed in writing to Lender, there has been no material
adverse change in the financial position of Borrower or the
Facility, or in the results of operations of Borrower. Borrower
has not incurred any obligation or liability, contingent or
otherwise, not reflected in such financial data which might
materially adversely affect its business operations or the
Facility.
(R) Condemnation. No Taking has been commenced or, to
Borrower's knowledge, is contemplated with respect to all or any
portion of the Facility or for the relocation of roadways
providing access to the Facility.
(S) Intentionally Omitted.
(T) Utilities and Public Access. The Facility has adequate
rights of access to public ways and is served by adequate water,
sewer, sanitary sewer and storm drain facilities as are adequate
for full utilization of the Facility for its current purpose.
Except as otherwise disclosed by the Surveys, all public
utilities necessary to the continued use and enjoyment of the
Facility as presently used and enjoyed are located in the public
right-of-way abutting the premises, and all such utilities are
connected so as to serve the Facility either (i) without passing
over other property or, (ii) if such utilities pass over other
property, pursuant to valid easements. All roads necessary for
the full utilization of the Facility for its current purpose have
been completed and dedicated to public use and accepted by all
Governmental Authorities or are the subject of access easements
for the benefit of the Facility.
(U) Environmental Compliance. Borrower represents,
warrants and covenants, as to itself and its Facility:
(i) Borrower and the Facility are in compliance with
all applicable Environmental Laws, which compliance includes, but
is not limited to, the possession by Borrower of and compliance
with all environmental, health and safety Permits, licenses and
other governmental authorizations required in connection with the
ownership and operation of the Facility under all Environmental
Laws, except where the failure to comply with such laws is not
reasonably likely to result in a Material Adverse Effect.
(ii) There is no Environmental Claim pending or, to
Borrower's knowledge, threatened, and no penalties arising under
Environmental Laws have been assessed, against Borrower, the
Facility or against any Person whose liability for any
Environmental Claim Borrower has or may have retained or assumed
either contractually or by operation of law, and no investigation
or review is pending or, to the knowledge of Borrower, threatened
by any Governmental Authority, citizens group, employee or other
Person with respect to any alleged failure by Borrower, or the
Facility to have any environmental, health or safety permit,
license or other authorization required under, or to otherwise
comply with, any Environmental Law or with respect to any alleged
liability of Borrower for any Use or Release of any Hazardous
Substances or the presence, Use, or Release of any Hazardous
Substances at, on, in, under, or from any Facility.
(iii) To the knowledge of Borrower after due
inquiry, there have been and are no past or present Releases or
threats of Release of any Hazardous Substance that are likely to
form the basis of any Environmental Claim against Borrower, the
Facility or, to Borrower's knowledge, against any Person whose
liability for any Environmental Claim Borrower has or may have
retained or assumed either contractually or by operation of law.
(iv) To the knowledge of Borrower after due inquiry and
except as disclosed in the Environmental Reports, without
limiting the generality of the foregoing, there is not present
at, on, in or under the Facility, PCB-containing equipment,
asbestos or asbestos containing materials, underground or
aboveground storage tanks or surface impoundments for Hazardous
Substances, lead in drinking water (except in concentrations that
comply with all Environmental Laws), or lead-based paint (nor
have there been any underground storage tanks present at, on, in,
or under the Facility).
(v) No Liens are presently recorded with the
appropriate land records under or pursuant to any Environmental
Law with respect to Borrower's Facility and, to Borrower's
knowledge, no Governmental Authority has been taking or is in the
process of taking any action that could subject the Facility to
Liens under any Environmental Law.
(vi) There have been no environmental investigations,
studies, audits, reviews or other analyses conducted by or on
behalf of Borrower that are in the possession or control of
Borrower in relation to the Facility which have not been provided
to Lender.
(vii) No conditions exist which would require Borrower
under any Environmental Laws to place a notice on any deed to the
Facility with respect to the presence, Use or Release of
Hazardous Substances at, on, in, under or from the Facility and
the Facility has no such notice in its deed.
(V) No Joint Assessment; Separate Lots. Borrower has not
and shall not suffer, permit or initiate the joint assessment of
the Facility (i) with any other real property constituting a
separate tax lot, and (ii) with any portion of the Facility which
may be deemed to constitute personal property, or any other
procedure whereby the lien of any taxes which may be levied
against such personal property shall be assessed or levied or
charged to the Facility as a single lien. The Facility is
comprised of one or more parcels, each of which constitutes a
separate tax lot and none of which constitutes a portion of any
other tax lot.
(W) Assessments. Except as disclosed in the Title
Insurance Policy, there are no pending or, to the knowledge of
Borrower, proposed special or other assessments for public
improvements or otherwise affecting the Facility, nor, to the
knowledge of Borrower, are there any contemplated improvements to
the Facility that may result in such special or other
assessments.
(X) Mortgage and Other Liens. The Mortgage creates a valid
and enforceable first mortgage Lien on the Facility as security
for the repayment of the Indebtedness, subject only to the
Permitted Encumbrances applicable to the Facility. Each
Collateral Security Instrument establishes and creates a valid,
subsisting and enforceable Lien on and a security interest in, or
claim to, the rights and property described therein. All
property covered by such Collateral Security Instrument is
subject to a UCC financing statement filed and/or recorded, as
appropriate, (or irrevocably delivered to an agent for such
recordation or filing) in all places necessary to perfect a valid
first priority Lien with respect to the rights and property that
are the subject of such Collateral Security Instrument to the
extent governed by the UCC. All continuations and any
assignments of any such financing statements have been or will be
timely filed or refiled, as appropriate, in the appropriate
recording offices.
(Y) Enforceability. The Loan Documents executed by
Borrower in connection with the Loan, including, without
limitation, any Collateral Security Instrument, are the legal,
valid and binding obligations of Borrower, enforceable against
Borrower in accordance with their terms, subject to bankruptcy,
insolvency and other limitations on creditors' rights generally
and to equitable principles. Such Loan Documents are, as of the
Closing Date, not subject to any right of rescission, set-off,
counterclaim or defense by Borrower, including the defense of
usury, nor will the operation of any of the terms of the Note,
the Mortgage, or such other Loan Documents, or the exercise of
any right thereunder, render the Mortgage unenforceable against
Borrower, in whole or in part, or subject to any right of
rescission, set-off, counterclaim or defense by Borrower,
including the defense of usury, and Borrower has not asserted any
right of rescission, set-off, counterclaim or defense with
respect thereto.
(Z) No Liabilities. Borrower has no liabilities or
obligations including without limitation Contingent Obligations,
(and including, without limitation, liabilities or obligations in
tort, in contract, at law, in equity, pursuant to a statute or
regulation, or otherwise) other than those liabilities and
obligations expressly permitted by this Agreement.
(AA) No Prior Assignment. As of the Closing Date,
(i) Lender is the assignee of Borrower's interest under the
Leases, and (ii) there are no prior assignments of the Leases or
any portion of the Rent due and payable or to become due and
payable which are presently outstanding.
(AB) Certificate of Occupancy. Borrower has obtained (in
its own name) all Permits necessary to use and operate Borrower's
Facility for the use described in Section 3.1(S). The use being
made of the Facility is in conformity in all respects with the
certificate of occupancy and/or Permits for the Facility and any
other restrictions, covenants or conditions affecting the
Facility.
(AC) Flood Zone. Except as shown on the Survey, the
Facility is not located in a flood hazard area as defined by the
Federal Insurance Administration.
(AD) Physical Condition. Except as disclosed in the
Engineering Reports, the Facility is free of material structural
defects and all building systems contained therein are in good
working order in all material respects subject to ordinary wear
and tear.
(AE) Intellectual Property. All trademarks, trade names and
service marks that Borrower owns or has pending, or under which
it is licensed, are in good standing and uncontested. There is
no right under any trademark, trade name or service mark
necessary to the business of Borrower as presently conducted or
as Borrower contemplates conducting its business. Borrower has
not infringed, is not infringing, and has not received notice of
infringement with respect to asserted trademarks, trade names and
service marks of others. To Borrower's knowledge, there is no
infringement by others of trademarks, trade names and service
marks of Borrower.
(AF) Security Deposits. All security deposits with respect
to the Facility on the Closing Date have been transferred to the
Security Deposit Account on or prior to the Closing Date, and
Borrower is in compliance with all applicable Legal Requirements
relating to such security deposits.
(AG) Conduct of Business. Borrower does not conduct its
business "also known as", "doing business as" or under any other
name.
(AI) Title Insurance. The Facility is covered by either an
American Land Title Association (ALTA) mortgagee's title
insurance policy, or a commitment to issue such a title insurance
policy, insuring a valid first lien on the Facility, which is in
full force and effect and is freely assignable to and will inure
to the benefit of Lender and any successor or assignee of Lender,
including but not limited to the trustee in a Securitization,
subject only to the Permitted Encumbrances.
(AK) Tax Fair Market Value. The Loan Amount with respect to
the Facility does not exceed the Tax Fair Market Value of the
Facility. If a Note with respect to the Facility is
significantly modified prior to the closing date of a
Securitization so as to result in a taxable exchange under Code
Section 1001, Borrower will, if requested by Lender, represent
that the amount of such Note does not exceed the Tax Fair Market
Value of the Facility as of the date of such significant
modification.
(AL) Leases. (a) Borrower is the sole owner of the entire
lessor's interest in the Leases; (b) the Leases are valid and
enforceable; (c) the terms of all alterations, modifications and
amendments to the Leases are reflected in the certified rent roll
statement delivered to and approved by Lender; (d) none of the
Rents reserved in the Leases have been assigned or otherwise
pledged or hypothecated; (e) none of the Rents have been
collected for more than one (1) month in advance; (f) the
premises demised under the Leases have been completed and the
tenants under the Leases have accepted the same and have taken
possession of the same on a rent-paying basis; (g) there exist no
offsets or defenses to the payment of any portion of the Rents;
(h) no Lease contains an option to purchase, right of first
refusal to purchase, or any other similar provision; (i) no
Person has any possessory interest in, or right to occupy, the
Facility except under and pursuant to a Lease;(j) each Lease is
subordinate to the Loan Documents, either pursuant to its terms
or a recorded subordination agreement; and (k) no Lease has the
benefit of a non-disturbance agreement that would be considered
unacceptable to prudent institutional lenders.
Section 4.2. Survival of Representations and
Warranties. Borrower agrees that (i) all of the representations
and warranties of Borrower set forth in this Agreement and in the
other Loan Documents delivered on the Closing Date are made as of
the Closing Date (except as expressly otherwise provided) and
(ii) all representations and warranties made by Borrower shall
survive the delivery of the Note and continue for so long as any
amount remains owing to Lender under this Agreement, the Note or
any of the other Loan Documents; provided, however, that the
representations, warranties and covenants set forth in Section
4.1(b)(U) and Sections 5.1(D) through 5.1(I) inclusive shall
survive in perpetuity and shall not be subject to the exculpation
provisions of Section 8.14. All representations, warranties,
covenants and agreements made in this Agreement or in the other
Loan Documents shall be deemed to have been relied upon by Lender
notwithstanding any investigation heretofore or hereafter made by
Lender or on its behalf.
ARTICLE V
AFFIRMATIVE COVENANTS
Section 5.1. Borrower Covenants. Borrower covenants
and agrees that, from the date hereof and until payment in full
of the Indebtedness:
(A) Existence; Compliance with Legal Requirements;
Insurance. Borrower shall do or cause to be done all things
necessary to preserve, renew and keep in full force and effect
its Entity existence, rights, licenses, Permits and franchises
necessary for the conduct of its business and comply in all
respects with all applicable Legal Requirements and Insurance
Requirements applicable to it and the Facility. Borrower shall
notify Lender promptly of any written notice or order that
Borrower receives from any Governmental Authority relating to
Borrower's failure to comply with such applicable Legal
Requirements relating to Borrower's Facility and promptly take
any and all actions necessary to bring its operations at the
Facility into compliance with such applicable Legal Requirements
(and shall fully comply with the requirements of such Legal
Requirements that at any time are applicable to its operations at
the Facility) provided, that Borrower at its expense may, after
prior notice to the Lender, contest by appropriate legal,
administrative or other proceedings conducted in good faith and
with due diligence, the validity or application, in whole or in
part, of any such applicable Legal Requirements as long as (i)
neither the applicable Collateral nor any part thereof or any
interest therein, will be sold, forfeited or lost if Borrower
pays the amount or satisfies the condition being contested, and
Borrower would have the opportunity to do so, in the event of
Borrower's failure to prevail in the contest, (ii) Lender would
not, by virtue of such permitted contest, be exposed to any risk
of any civil liability for which Borrower has not furnished
additional security as provided in clause (iii) below, or to any
risk of criminal liability, and neither the applicable Collateral
nor any interest therein would be subject to the imposition of
any Lien as a result of the failure to comply with such Legal
Requirement or of such proceeding and (iii) Borrower shall have
furnished to the Lender additional security in respect of the
claim being contested or the loss or damage that may result from
Borrower's failure to prevail in such contest in such amount as
may be reasonably requested by Lender but in no event less than
one hundred and twenty five percent (125%) of the amount of such
claim. Borrower shall at all times maintain, preserve and
protect all franchises and trade names and preserve all the
remainder of its property necessary for the continued conduct of
its business and keep the Facility in good repair, working order
and condition, except for reasonable wear and use, and from time
to time make, or cause to be made, all necessary repairs,
renewals, replacements, betterments and improvements thereto, all
as more fully provided in the Mortgage. Borrower shall keep the
Facility insured at all times, by financially sound and reputable
insurers, to such extent and against such risks, and maintain
liability and such other insurance, as is more fully provided
herein and in the Mortgage.
(B) Impositions and Other Claims. Borrower shall pay and
discharge or cause to be paid and discharged all Ground Rents and
Impositions, as well as all lawful claims for labor, materials
and supplies or otherwise, which could become a Lien, all as more
fully provided in, and subject to any rights to contest contained
in, the Mortgage.
(C) Litigation. Borrower shall give prompt written notice
to Lender of any litigation or governmental proceedings pending
or threatened against Borrower which is reasonably likely to have
a Material Adverse Effect.
(D) Environmental Remediation.
(i) If any investigation, site monitoring, cleanup,
removal, abatement, restoration remedial work or other response
action of any kind or nature is required pursuant to an order or
directive of any Governmental Authority or under any applicable
Environmental Law (collectively, the "Remedial Work"), because of
or in connection with the (x) past, present or future presence,
suspected presence, Release or threatened Release of a Hazardous
Substance at, on, in, under or from the Facility or any portion
thereof or (y) violation of or compliance with applicable
Environmental Laws, Borrower shall promptly commence and
diligently prosecute to completion all such Remedial Work. In
all events, such Remedial Work shall be commenced within the time
period ordered or directed by such Governmental Authority or such
shorter period as may be required under any applicable
Environmental Law; provided, however, that Borrower shall not be
required to commence such Remedial Work within the above
specified time periods: (x) if prevented from doing so by any
Governmental Authority, (y) if commencing such Remedial Work
within such time periods would result in Borrower or such
Remedial Work violating any Environmental Law or (z) if Borrower,
at its expense and after prior notice to Lender, is contesting by
appropriate legal, administrative or other proceedings, conducted
in good faith and with due diligence, the need to perform
Remedial Work, as long as (1) Borrower is permitted by the
applicable Environmental Laws to delay performance of the
Remedial Work pending such proceedings, (2) neither Borrower's
Facility nor any part thereof or interest therein will be sold,
forfeited or lost if Borrower performs the Remedial Work being
contested, and Borrower would have the opportunity to do so, in
the event of Borrower's failure to prevail in the contest, (3)
Lender would not, by virtue of such permitted contest, be exposed
to any risk of any civil liability for which Borrower has not
furnished additional security as provided in clause (4) below, or
to any risk of criminal liability, and neither the Facility nor
any interest therein would be subject to the imposition of any
Lien for which Borrower has not furnished additional security as
provided in clause (4) below, as a result of the failure to
perform such Remedial Work and (4) Borrower shall have furnished
to Lender additional security in respect of the Remedial Work
being contested and the loss or damage that may result from
Borrower's failure to prevail in such contest in such amount as
may be reasonably requested by Lender but in no event less than
125% of the cost of such Remedial Work and any loss or damage
that may result from Borrower's failure to prevail in such
contest.
(ii) All Remedial Work under clause (i) above shall be
performed by contractors, and under the supervision of a
consulting environmental Engineer, each approved in advance by
Lender which approval will not be unreasonably withheld or
delayed. All costs and expenses incurred in connection with such
Remedial Work shall be paid by Borrower. If Borrower does not
timely commence and diligently prosecute to completion the
Remedial Work, Lender may (but shall not be obligated to), upon
sixty (60) days prior written notice to Borrower of its intention
to do so, cause such Remedial Work to be performed. Borrower
shall pay or reimburse Lender on demand for all Advances (as
defined in the Mortgage) and expenses (including reasonable
attorneys' fees and disbursements) relating to or incurred by
Lender in connection with monitoring, reviewing or performing any
Remedial Work in accordance herewith.
(iii)Unless otherwise required by law, Environmental
Laws or any Governmental Authority, Borrower shall not commence
any Remedial Work under clause (i) above, nor enter into any
settlement agreement, consent decree or other compromise relating
to any Hazardous Substances or Environmental Laws which is
reasonably likely to have a Material Adverse Effect.
Notwithstanding the foregoing, if the presence or threatened
presence or Release of Hazardous Substances at, on, in, under,
from or about Borrower's Facility poses an immediate threat to
the health, safety or welfare of any Person or the environment,
or is of such a nature that an immediate response is necessary,
Borrower may complete all necessary Remedial Work. In such
events, Borrower shall notify Lender as soon as practicable and,
in any event, within three Business Days, of any action taken.
(E) Environmental Matters; Inspection.
(i) Borrower shall not cause, allow or authorize a
Hazardous Substance to be present at, on, in, under or to emanate
from the Facility, or migrate from adjoining property controlled
by Borrower onto or into the Facility, except under conditions
permitted by applicable Environmental Laws and, in the event that
such Hazardous Substances are present at, on, in, under or
emanate from the Facility, or migrate onto or into the Facility,
Borrower shall cause the performance of Remedial Work, removal or
remediation of such Hazardous Substances, in accordance with this
Agreement and Environmental Laws. Borrower shall use best
efforts to prevent, and to seek the remediation of, any migration
of Hazardous Substances onto or into Borrower's Facility from any
adjoining property.
(ii) Upon prior written notice to Borrower, Lender
shall have the right at all reasonable times to enter upon and
inspect all or any portion of the Facility. If Lender has reason
to believe that Remedial Work may be required, Lender may select
or may require Borrower to select a consulting environmental
Engineer reasonably satisfactory to Lender to conduct and prepare
environmental reports assessing the environmental condition of
the Facility. Lender shall be given a reasonable opportunity to
review any reports, data and other documents or materials
reviewed or prepared by the environmental Engineer. The
inspection rights granted to Lender in this Section 5.1(E) shall
be in addition to, and not in limitation of, any other inspection
rights granted to Lender in the Loan Documents, and shall
expressly include the right (if Lender suspects that Remedial
Work may be required) to conduct or require Borrower to conduct
soil borings, establish ground water monitoring wells and conduct
other customary environmental tests, assessments and audits.
(iii)Borrower agrees to bear and shall pay or reimburse
Lender on demand for all sums advanced and expenses incurred
(including reasonable attorneys' fees and disbursements, but
excluding internal overhead, administrative and similar costs of
Lender) relating to, or incurred by Lender in connection with,
the inspections and reports described in this Section 5.1(E) in
the following situations:
(x) If Lender has grounds to believe, at the time any
such inspection is ordered, that there exists an occurrence or
condition that could lead to an Environmental Claim;
(y) If any such inspection reveals an occurrence or
condition that could lead to an Environmental Claim; or
(z) If an Event of Default with respect to the
Facility exists at the time any such inspection is ordered, and
such Event of Default relates to any representation, covenant or
other obligation pertaining to Hazardous Substances,
Environmental Laws or any other environmental matter.
(F) Environmental Notices. Borrower shall promptly provide
notice to Lender of:
(i) any Environmental Claim asserted or threatened (in
writing) by any Governmental Authority or other Person with
respect to any Hazardous Substance at, on, in, under or emanating
from Borrower's Facility, which could reasonably be expected to
impair the value of Lender's interests hereunder or have a
Material Adverse Effect;
(ii) any Environmental Claim or proceeding,
investigation or inquiry commenced or threatened in writing by
any Person or Governmental Authority, against Borrower, with
respect to the presence, suspected presence, Release or
threatened Release of Hazardous Substances from or onto, in or
under any property not owned by Borrower, including, without
limitation, proceedings under the Comprehensive Environmental
Response, Compensation, and Liability Act, as amended, 42 U.S.C.
Sub Section 9601, et seq., which could reasonably be expected to
impair the value of Lender's security interests hereunder or have
a Material Adverse Effect;
(iii)all Environmental Claims asserted or threatened
against Borrower, against any other party occupying any Facility
or any portion thereof which become known to Borrower, or against
the Facility, which could reasonably be expected to impair the
value of Lender's security interests hereunder or have a Material
Adverse Effect;
(iv) the discovery by Borrower of any occurrence or
condition on any Facility or on any real property adjoining or in
the vicinity of the Facility which could reasonably be expected
to lead to an Environmental Claim against Borrower or Lender
which such Environmental Claim is reasonably likely to have a
Material Adverse Effect; and
(v) the commencement or completion of any Remedial
Work.
(G) Copies of Notices. Borrower shall immediately transmit
to Lender copies of any citations, orders, notices or other
written communications received from any Person or any
Governmental Authority and any notices, reports or other written
communications submitted to any Governmental Authority with
respect to the matters described in Section 5.1(F).
(H) Environmental Claims. Lender may join and participate
in, as a party if Lender so determines, any legal or
administrative proceeding or action concerning the Facility or
any portion thereof under any Environmental Law, if, in Lender's
reasonable judgment, the interests of Lender will not be
adequately protected by Borrower. Borrower agrees to bear and
shall pay or reimburse Lender on demand for all reasonable sums
advanced and reasonable expenses incurred (including reasonable
attorneys' fees and disbursements), incurred by Lender in
connection with any such action or proceeding.
(I) Indemnification. Borrower agrees to indemnify,
reimburse, defend (with counsel satisfactory to Lender, at
Lender's election) and hold harmless Lender, for, from, and
against all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, costs and expenses,
including, without limitation, interest, penalties, consequential
damages, attorneys' fees, disbursements and expenses, and
consultants' fees, disbursements and expenses, including costs of
Remedial Work (collectively, "Losses") asserted against,
resulting to, imposed on, or incurred by Lender, directly or
indirectly, in connection with any of the following:
(i) events, circumstances, or conditions which are
alleged to, or do, form the basis for an Environmental Claim;
(ii) the presence, Use or Release of Hazardous
Substances at, on, in, under or from the Facility, which
presence, Use or Release requires or could require Remedial Work;
(iii) any Environmental Claim against Borrower,
Lender or any Person whose liability for such Environmental Claim
Borrower has or may have assumed or retained either contractually
or by operation of law; or
(iv) the breach of any representation, warranty or covenant
set forth in Section 4.1(b)(U) and Sections 5.1(D) through
5.1(I), inclusive.
The indemnity provided in this Loan Agreement shall not be
included in any exculpation of Borrower from personal liability
provided in this Loan Agreement or in any of the other Loan
Documents. Nothing in this Section 5.1(I) shall be deemed to
deprive Lender of any rights or remedies provided to it elsewhere
in this Agreement or the other Loan Documents or otherwise
available to it under law. Borrower waives and releases Lender
from any rights or defenses Borrower may have under common law or
Environmental Laws for liability arising from or resulting from
the presence, Use or Release of Hazardous Substances except to
the extent directly and solely caused by the fraud or willful
misconduct of Lender.
(J) Access to Facility. Borrower shall permit agents,
representatives and employees of Lender to inspect the Facility
or any part thereof at such reasonable times as may be requested
by Lender upon advance notice.
(K) Notice of Default. Borrower shall promptly advise
Lender of any material adverse change in Borrower's condition,
financial or otherwise, or of the occurrence of any Default or
Event of Default.
(L) Cooperate in Legal Proceedings. Except with respect to
any claim by Borrower against Lender, Borrower shall cooperate
with Lender with respect to any proceedings before any
Governmental Authority which may in any way affect the rights of
Lender hereunder or any rights obtained by Lender under any of
the Loan Documents and, in connection therewith, not prohibit
Lender, at its election, from participating in any such
proceedings.
(M) Perform Loan Documents. Borrower shall observe,
perform and satisfy all the terms, provisions, covenants and
conditions required to be observed, performed or satisfied by it,
and shall pay when due all costs, fees and expenses required to
be paid by it, under the Loan Documents executed and delivered by
Borrower.
(N) Insurance Benefits. Borrower shall cooperate with
Lender in obtaining for Lender the benefits of any Insurance
Proceeds lawfully or equitably payable to Lender in connection
with the Facility, and Lender shall be reimbursed for any
expenses incurred in connection therewith (including reasonable
attorneys' fees and disbursements and the payment by Borrower of
the expense of an Appraisal on behalf of Lender) in case of a
fire or other casualty affecting the Facility or any part thereof
out of such Insurance Proceeds, all as more specifically provided
in the Mortgage.
(O) Further Assurances. Borrower shall, at Borrower's sole
cost and expense:
(i) upon Lender's request therefor given from time to
time after the occurrence of any Default pay for (a) reports of
UCC, federal tax lien, state tax lien, judgment and pending
litigation searches with respect to Borrower and (b) searches of
title to the Facility, each such search to be conducted by search
firms reasonably designated by Lender in each of the locations
reasonably designated by Lender.
(ii) furnish to Lender all instruments, documents,
boundary surveys, footing or foundation surveys, certificates,
plans and specifications, Appraisals, title and other insurance
reports and agreements, and each and every other document,
certificate, agreement and instrument required to be furnished
pursuant to the terms of the Loan Documents;
(iii)execute and deliver to Lender such documents,
instruments, certificates, assignments and other writings, and do
such other acts necessary, to evidence, preserve and/or protect
the Collateral at any time securing or intended to secure the
Note, as Lender may require in Lender's discretion; and
(iv) do and execute all and such further lawful acts,
conveyances and assurances for the better and more effective
carrying out of the intents and purposes of this Agreement and
the other Loan Documents, as Lender shall require from time to
time in its discretion.
(P) Management of Mortgaged Property. The Facility will be
managed at all times by a Manager pursuant to a Management
Agreement unless terminated as herein provided. Pursuant to the
Manager's Subordination, Manager will agree that the Management
Agreement is subject and subordinate in all respects to the Lien
of the Mortgage. The Management Agreement shall be terminated
by Borrower, at Lender's request, upon thirty (30) days prior
written notice to Borrower and Manager (i) upon the occurrence of
an Event of Default, (ii) if Manager commits any act which would
permit termination by Borrower under the Management Agreement or
(iii) in the event that, as of the last day of a calendar
quarter, the Debt Service Coverage Ratio for the Facility,
computed on the basis of the prior twelve (12) calendar months,
is less than eighty-five percent (85%) of the Base Adjusted NOI.
Lender shall not have the right to terminate the Management
Agreement pursuant to clause (iii) above, if on the first Payment
Date after Lender made the determination that Lender had the
right to terminate Manager pursuant to clause (iii) above,
Borrower defeases the Loan in accordance with the terms of
Sections 2.6 and 2.11 in an amount sufficient to cause the Debt
Service Coverage Ratio (calculated as if such amount was actually
applied to reduce the Principal Indebtedness upon which Debt
Service was paid and calculated as if the Principal Indebtedness
was reamortized on a straight-line basis (as if the reduction had
occurred) over the remaining number of months until the Maturity
Date) for the Facility, computed on the basis of the prior twelve
(12) calendar months, to be at least equal to [1.35]. In the
event that a manager is terminated pursuant hereto, Borrower
shall immediately seek to appoint a replacement manager
acceptable to Lender in Lender's sole discretion, and Borrower's
failure to appoint such an acceptable manager within 30 days of
Lender's request of Borrower to terminate the Management
Agreement shall constitute an immediate Event of Default.
Borrower may from time to time appoint a successor manager to
manage the Facility which successor manager shall be approved in
writing by Lender in Lender's discretion. Notwithstanding the
foregoing, any successor manager selected hereunder by Lender or
Borrower to serve as Manager shall (i) be a reputable management
company having at least seven years' experience in the management
of commercial properties with similar uses as the Facility and in
the jurisdiction in which the Facility is located and (ii) shall
not be paid management fees in excess of fees which are market
fees for comparable managers of comparable properties in the same
geographic area.
(Q) Financial Reporting.
(i) Borrower shall keep and maintain or shall cause to
be kept and maintained on a Fiscal Year basis, in accordance with
GAAP, books, records and accounts reflecting in reasonable detail
all of the financial affairs of Borrower and all items of income
and expense in connection with the operation of the Facility and
in connection with any services, equipment or furnishings
provided in connection with the operation of the Facility.
Lender, at Lender's cost and expense, whether such income or
expense may be realized by Borrower or by any other Person
whatsoever, shall have the right from time to time and at all
times during normal business hours upon reasonable prior written
notice to Borrower to examine such books, records and accounts at
the office of Borrower or other Person maintaining such books,
records and accounts and to make such copies or extracts thereof
as Lender shall desire. After the occurrence of an Event of
Default, with respect to the Facility, Borrower shall pay any
costs and expenses incurred by Lender to examine any and all of
Borrower's books, records and accounts as Lender shall determine
in Lender's sole discretion to be necessary or appropriate in the
protection of Lender's interest.
(ii) Borrower shall furnish to Lender annually within
ninety (90) days following the end of each Fiscal Year, a true,
complete and correct copy of a consolidated report including Mark
Center Trust's financial statement audited by a Big Six
Accounting Firm or other firm acceptable to Lender in Lender's
sole discretion which shall (a) be in form and substance
acceptable to Lender in Lender's sole discretion, (b) be prepared
in accordance with GAAP, (c) include, without limitation, a
statement of operations (profit and loss), a statement of cash
flows, a calculation of Net Operating Income, a consolidated
balance sheet, an aged accounts receivable report and such other
information or reports as shall be reasonably requested by Lender
or any applicable Rating Agency, (d) be accompanied by an
Officer's Certificate from a senior executive of Borrower
certifying as of the date thereof (x) that such statement is
true, correct, complete and accurate and fairly reflects the
results of operations and financial condition of Borrower for the
relevant period, and (y) notice of whether there exists an Event
of Default or Default, and if such Event of Default or Default
exists, the nature thereof, the period of time it has existed and
the action then being taken to remedy same and (e) be accompanied
by an opinion from an Independent certified public accountant
acceptable to Lender in Lender's sole discretion.
(iii)Borrower shall furnish to Lender annually within
thirty (30) days following the end of each Fiscal Year, a true,
complete and correct copy of Borrower's unaudited financial
statement which shall (a) be in form and substance acceptable to
Lender in Lender's sole discretion, (b) be prepared in accordance
with GAAP, (c) include, without limitation, a statement of
operations (profit and loss), a statement of cash flows, a
calculation of Net Operating Income, a consolidated balance
sheet, an aged accounts receivable report and such other
information or reports as shall be reasonably requested by Lender
or any applicable Rating Agency and (d) be accompanied by an
Officer's Certificate from a senior executive of Borrower
certifying as of the date thereof (x) that such statement is
true, correct, complete and accurate and fairly reflects the
results of operations and financial condition of Borrower for the
relevant period, and (y) notice of whether there exists an Event
of Default or Default, and if such Event of Default or Default
exists, the nature thereof, the period of time it has existed and
the action then being taken to remedy same.
(iv) Borrower shall furnish to Lender within twenty
(20) days following the end of each calendar month, a true,
correct and complete monthly unaudited operating statement which
shall (a) be in form and substance acceptable to Lender in
Lender's sole discretion, (b) be prepared in accordance with
GAAP, (c) include, without limitation, a statement of operations
(profit and loss), a statement of cash flows, a calculation of
Net Operating Income, a consolidated balance sheet, an aged
accounts receivable report and such other information or reports
as shall be reasonably requested by Lender or any applicable
Rating Agency and (d) be accompanied by an Officer's Certificate
from a senior executive of Borrower certifying as of the date
thereof (x) that such statement is true, correct, complete and
accurate and fairly reflects the results of operations and
financial condition of Borrower for the relevant period, and (y)
notice of whether there exists an Event of Default or Default,
and if such Event of Default or Default exists, the nature
thereof, the period of time it has existed and the action then
being taken to remedy same.
(v) Borrower shall furnish to Lender, within twenty
(20) days following the end of each calendar month, a true,
complete and correct rent roll and occupancy report and such
other occupancy and rate statistics as Lender shall request in
Lender's discretion. Each such document shall (a) be in form and
substance acceptable to Lender in Lender's sole discretion, and
(b) be accompanied by an Officer's Certificate from a senior
executive of Borrower certifying as of the date thereof (x) that
such statement is true, correct, complete and accurate and (y)
notice of whether there exists an Event of Default or Default,
and if such Event of Default or Default exists, the nature
thereof, the period of time it has existed and the action then
being taken to remedy same.
(vi) Borrower shall furnish to Lender, within ten (10)
Business Days after request, such further information with
respect to the operation of the Facility and the financial
affairs of Borrower as may be requested by Lender, including
without limitation all business plans prepared for Borrower.
(vii)Borrower shall furnish to Lender, within ten (10)
Business Days after request, such further information regarding
any Plan or Multiemployer Plan and any reports or other
information required to be filed under ERISA as may be requested
by Lender.
(viii) Borrower shall, concurrently with Borrower's
delivery to Lender, provide a copy of the items required to be
delivered to Lender under this Section 5.1(Q) to the Rating
Agencies, the trustee, and any servicer and/or special servicer
that may be retained in conjunction with the Loan or any
Securitization. Borrower shall furnish to Lender written notice,
within two Business Days after receipt by Borrower, of any Rents,
Money or other items of Gross Revenue that Borrower is not
required by this Agreement to deposit in the Collection Account,
Cash Collateral Account or the Security Deposit Account, together
with such other documents and materials relating to such Rents,
Money or other items of Gross Revenue as Lender requests in
Lender's discretion.
(ix) Borrower shall provide Lender with updated
information (satisfactory to Lender in Lender's discretion)
concerning the Basic Carrying Costs for the next succeeding
Fiscal Year prior to the termination of each Fiscal Year.
(x) Borrower shall furnish to Lender such other
financial information with respect to Borrower or Manager as
Lender may request (including, without limitation, in the case
of a defeasance pursuant to Section 2.11, a review by a third
party acceptable to Lender, of the calculations required to be
made pursuant to Section 2.11).
(R) Conduct of Business. Borrower shall cause the
operation of the Facility to be conducted at all times in a
manner consistent with at least the level of operation of the
Facility as of the Closing Date, including, without limitation,
the following:
(i) to maintain or cause to be maintained the standard
of operations at Borrower's Facility at all times at a level
necessary to insure a level of quality for the Facility
consistent with similar facilities in the same competitive
market;
(ii) to operate or cause to be operated the Facility in
a prudent manner in compliance in all respects with applicable
Legal Requirements and Insurance Requirements relating thereto
and cause all licenses, Permits, and any other agreements
necessary for the continued use and operation of the Facility to
remain in effect; and
(iii)to maintain or cause to be maintained sufficient
Inventory and Equipment of types and quantities at the Facility
to enable Borrower or Manager to operate the Facility.
(S) Intentionally Omitted.
(T) ERISA. Borrower shall deliver to Lender as soon as
possible, and in any event within ten days after Borrower knows
or has reason to believe that any of the events or conditions
specified below with respect to any Plan or Multiemployer Plan
has occurred or exists, a statement signed by a senior financial
officer of Borrower setting forth details respecting such event
or condition and the action, if any, that Borrower or its ERISA
Affiliate proposes to take with respect thereto (and a copy of
any report or notice required to be filed with or given to PBGC
by Borrower or an ERISA Affiliate with respect to such event or
condition):
(i) any reportable event, as defined in
Section 4043(b) of ERISA and the regulations issued thereunder,
with respect to a Plan, as to which PBGC has not by regulation
waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event (provided
that a failure to meet the minimum funding standard of
Section 412 of the Code or Section 302 of ERISA, including,
without limitation, the failure to make on or before its due date
a required installment under Section 412(m) of the Code or
Section 302(e) of ERISA, shall be a reportable event regardless
of the issuance of any waivers in accordance with Section 412(d)
of the Code); and any request for a waiver under Section 412(d)
of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA of a
notice of intent to terminate any Plan or any action taken by
Borrower or an ERISA Affiliate to terminate any Plan;
(iii)the institution by PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, or the receipt by Borrower
or any ERISA Affiliate of a notice from a Multiemployer Plan that
such action has been taken by PBGC with respect to such
Multiemployer Plan;
(iv) the complete or partial withdrawal from a
Multiemployer Plan by Borrower or any ERISA Affiliate that
results in liability under Section 4201 or 4204 of ERISA
(including the obligation to satisfy secondary liability as a
result of a purchaser default) or the receipt by Borrower or any
ERISA Affiliate of notice from a Multiemployer Plan that it is in
reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA or that it intends to terminate or has terminated under
Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of
any Multiemployer Plan against Borrower or any ERISA Affiliate to
enforce Section 515 of ERISA, which proceeding is not dismissed
within 30 days;
(vi) the adoption of an amendment to any Plan that,
pursuant to Section 401(a)(29) of the Code or Section 307 of
ERISA, would result in the loss of tax-exempt status of the trust
of which such Plan is a part if Borrower or an ERISA Affiliate
fails to timely provide security to the Plan in accordance with
the provisions of said Sections; and
(vii)the imposition of a lien or a security interest in
connection with a Plan.
(U) Single Purpose Entity. Borrower shall at all times be
a Single Purpose Entity.
(V) Trade Indebtedness. Borrower will pay its trade
payables within thirty (30) days of the date incurred, unless
Borrower is in good faith contesting Borrower's obligation to pay
such trade payables in a manner satisfactory to Lender (which may
include Lender's requirement that Borrower post security with
respect to the contested trade payable).
(W) Capital Improvements and Environmental Remediation.
Borrower shall, within six months of the date hereof, perform the
repairs and environmental remediation to the Facility itemized on
Exhibit C hereto.
(X) Annual Operating Budgets. Borrower shall submit to
Lender Annual Operating Budgets at those times and in such form
and substance asset forth in the definition of "Annual Operating
Budget" in this Agreement.
ARTICLE VI
NEGATIVE COVENANTS
Section 6.1. Borrower Negative Covenants. Borrower
covenants and agrees that, until payment in full of the
Indebtedness, it will not do, directly or indirectly, any of the
following unless Lender consents thereto in writing:
(A) Liens on the Mortgaged Property. Incur, create,
assume, become or be liable in any manner with respect to, or
permit to exist, any Lien with respect to Borrower's Facility,
except: (i) Liens in favor of Lender, and (ii) the Permitted
Encumbrances.
(B) Transfer. Except as expressly permitted by or pursuant
to this Agreement or the Mortgage, or except as otherwise
approved by Lender in writing in Lender's sole discretion, allow
any Transfer to occur, terminate or modify the Management
Agreement, or enter into a Management Agreement with respect to
Borrower's Facility.
(C) Other Borrowings. Incur, except for unsecured trade
payables incurred in the ordinary course of business relating to
the ownership and operation of Borrower's Facility which do not
exceed, at any time, a maximum amount of three percent (3%) of
the Loan Amount and are paid within ninety (90) days of the date
incurred, create, assume, become or be liable in any manner with
respect to Other Borrowings.
(D) Intentionally Omitted.
(E) Change In Business. Cease to be a Single-Purpose
Entity or make any material change in the scope or nature of its
business objectives, purposes or operations, or undertake or
participate in activities other than the continuance of its
present business.
(F) Debt Cancellation. Cancel or otherwise forgive or
release any material claim or debt owed to Borrower by any
Person, except for adequate consideration or in the ordinary
course of Borrower's business.
(G) Affiliate Transactions. Enter into, or be a party to,
any transaction with an Affiliate of Borrower, except in the
ordinary course of business and on terms which are no less
favorable to Borrower or such Affiliate than would be obtained in
a comparable arm's length transaction with an unrelated third
party, and, if the amount to be paid to the Affiliate pursuant to
the transaction or series of related transactions is greater than
$50,000 (determined annually on an aggregate basis) fully
disclosed to Lender in advance.
(H) Creation of Easements. Create, or permit Borrower's
Facility or any part thereof to become subject to, any easement,
license or restrictive covenant, other than a Permitted
Encumbrance.
(I) Misapplication of Funds. Distribute any Rents or Money
received from Accounts in violation of the provisions of Section
2.12.
(J) Certain Restrictions. Enter into any agreement which
expressly restricts the ability of Borrower to enter into
amendments, modifications or waivers of any of the Loan Documents.
(K) Issuance of Equity Interests. Issue or allow to be
created any stocks or shares or partnership or membership
interests, as applicable, or other ownership interests other than
the stocks, shares, partnership or membership interests and other
ownership interests which are outstanding or exist on the Closing
Date or any security or other instrument which by its terms is
convertible into or exercisable or exchangeable for ownership
interests in Borrower. Borrower shall not allow to be issued or
created any stock in Borrower's general partner or managing
member, as applicable, other than the stock which is outstanding
or existing on the Closing Date or any security or other
instrument which by its terms is convertible into or exercisable
or exchangeable for any stock in Borrower's general partner or
managing member, as applicable..
(L) Assignment of Licenses and Permits. Assign or transfer
any of its interest in any Permits pertaining to Borrower's
Facility, or assign, transfer or remove or permit any other
Person to assign, transfer or remove any records pertaining to
the Facility without Lender's prior written consent which consent
may be granted or refused in Lender's sole discretion.
(M) Place of Business. Change its chief executive office
or its principal place of business or place where its books and
records are kept without giving Lender at least thirty (30) days'
prior written notice thereof and promptly providing Lender such
information as Lender may reasonably request in connection
therewith.
ARTICLE VII
DEFAULTS
Section 7.1. Event of Default. The occurrence of one
or more of the following events shall be an "Event of Default"
hereunder:
(i) if on any Payment Date the funds in the Debt
Service Payment Sub-Account are insufficient to pay the Required
Debt Service Payment due on such Payment Date;
(ii) if on any Payment Date Borrower fails to pay the
Required Debt Service Payment due on such Payment Date;
(iii)if Borrower fails to pay the outstanding
Indebtedness on the Maturity Date;
(iv) if on any Payment Date Borrower fails to pay the
Basic Carrying Costs Monthly Installment or the Capital Reserve
Monthly Installment due on such Payment Date;
(v) if on the date any payment of a Basic Carrying
Cost would become delinquent, the funds in the Basic Carrying
Costs Sub-Account required to be reserved pursuant to Section
2.12(g) together with any funds in the Cash Collateral Account
not allocated to another Sub-Account are insufficient to make
such payment;
(vi) the occurrence of the events identified elsewhere
in the Loan Documents as constituting an "Event of Default"
hereunder or thereunder;
(vii)a Transfer, unless the prior written consent of
Lender is obtained (which consent may be withheld with or without
cause in Lender's discretion);
(viii)if Borrower fails to pay any other amount payable
pursuant to this Agreement or any other Loan Document, including,
but not limited to, Ground Rents when due and payable in
accordance with the provisions hereof or thereof, as the case may
be;
(ix) if any representation or warranty made herein or
in any other Loan Document, or in any report, certificate,
financial statement or other Instrument, agreement or document
furnished by Borrower in connection with this Agreement, the Note
or any other Loan Document executed and delivered by Borrower,
shall be false in any material respect as of the date such
representation or warranty was made or remade;
(x) if Borrower, any of Borrower's partners or
members, as applicable, or the SPE Equity Owner makes an
assignment for the benefit of creditors;
(xi) if a receiver, liquidator or trustee shall be
appointed for Borrower, any of Borrower's partners or members, as
applicable, or the SPE Equity Owner or if Borrower, any of
Borrower's partners or members, as applicable, or the SPE Equity
Owner shall be adjudicated as bankrupt or insolvent, or if any
petition for bankruptcy, reorganization or arrangement pursuant
to federal bankruptcy law, or any similar federal or state law,
shall be filed by or against, consented to, or acquiesced in by
Borrower, any of Borrower's partners or members, as applicable,
or the SPE Equity Owner or if any proceeding for the dissolution
or liquidation of Borrower, any of Borrower's partners or
members, as applicable, or the SPE Equity Owner shall be
instituted; provided, however, that if such appointment,
adjudication, petition or proceeding was involuntary and not
consented to by Borrower, any of Borrower's partners or members,
as applicable, or the SPE Equity Owner as the case may be, upon
the same not being discharged, stayed or dismissed within 90
days; or if Borrower, any of Borrower's partners or members, as
applicable, or the SPE Equity Owner shall generally not be paying
its debts as they become due;
(xii)if Borrower attempts to delegate its obligations
or assign its rights under this Agreement, any of the other Loan
Documents or any interest herein or therein;
(xiii)if any provision of any organizational document
of Borrower is amended or modified in any respect which may
adversely affect Lender, or if Borrower or any of its partners or
members, as applicable, fails to perform or enforce the
provisions of such organizational documents or attempts to
dissolve Borrower; or if Borrower or any of its partners or
members, as applicable, breaches any of its covenants set forth
in Sections 5.1(U), or 6.1(E);
(xiv)if Borrower fails to (A) notify Lender of the
occurrence of a Default under any of the Loan Documents within
ten (10) days of the day on which Borrower first has knowledge of
such Default or (B) give any notice due to any Person under any
Loan Document (a) within two (2) days after such notice was due
or (b) in accordance with the applicable procedural requirements
set forth in the Loan Documents;
(xv) if Borrower shall be in default under any of the
other obligations, agreements, undertakings, terms, covenants,
provisions or conditions of this Agreement, the Note, the
Mortgage or the other Loan Documents, not otherwise referred to
in this Section 7.1, for ten (10) days after written notice to
Borrower from Lender or its successors or assigns, in the case of
any default which can be cured by the payment of a sum of money
or for thirty (30) days after written notice from Lender or its
successors or assigns, in the case of any other default (unless
otherwise provided herein or in such other Loan Document);
provided, however, that if such non-monetary default under this
subparagraph is susceptible of cure but cannot reasonably be
cured within such thirty (30) day period and provided further
that Borrower shall have commenced to cure such default within
such thirty (30) day period and thereafter diligently and
expeditiously proceeds to cure the same, such thirty (30) day
period shall be extended for such time as is reasonably necessary
for Borrower in the exercise of due diligence to cure such
default, but in no event shall such period exceed ninety (90)
days after the original notice from Lender;
(xvi)if an event or condition specified in Section
5.1(T) shall occur or exist with respect to any Plan or
Multiemployer Plan and, as a result of such event or condition,
together with all other such events or conditions, Borrower or
any ERISA Affiliate shall incur or in the opinion of Lender shall
be reasonably likely to incur a liability to a Plan, a
Multiemployer Plan or PBGC (or any combination of the foregoing)
which would constitute, in the determination of Lender, a
Material Adverse Effect; and
(xvii)if without Lender's prior written consent (A) any
Manager resigns or is removed, (B) the management or control of
such Manager is transferred or (C) any Management Agreement is
entered into for the Facility or (D) there is any change in or
termination of any Management Agreement for any Facility.
Section 7.2. Remedies. (a) Upon the occurrence of an
Event of Default, all or any one or more of the rights, powers
and other remedies available to Lender against Borrower under
this Agreement, the Note, the Mortgage or any of the other Loan
Documents, or at law or in equity may be exercised by Lender at
any time and from time to time (including, without limitation,
the right to accelerate and declare the outstanding principal
amount, unpaid interest, Default Rate interest, Late Charges,
Yield Maintenance Premium and any other amounts owing by Borrower
to be immediately due and payable), without notice or demand,
whether or not all or any portion of the Indebtedness shall be
declared due and payable, and whether or not Lender shall have
commenced any foreclosure proceeding or other action for the
enforcement of its rights and remedies under any of the Loan
Documents with respect to the Facility or all or any portion of
the Collateral. Any such actions taken by Lender shall be
cumulative and concurrent and may be pursued independently,
singly, successively, together or otherwise, at such time and in
such order as Lender may determine in its sole discretion, to the
fullest extent permitted by law, without impairing or otherwise
affecting the other rights and remedies of Lender permitted by
law, equity or contract or as set forth herein or in the other
Loan Documents. Notwithstanding anything contained to the
contrary herein, the outstanding principal amount, unpaid
interest, Default Rate interest, Late Charges, Yield Maintenance
Premium and any other amounts owing by Borrower shall be
accelerated and immediately due and payable, without any election
by Lender upon the occurrence of an Event of Default described in
Section 7.1(x) or Section 7.1 (xi).
Section 7.3. Remedies Cumulative. The rights, powers
and remedies of Lender under this Agreement shall be cumulative
and not exclusive of any other right, power or remedy which
Lender may have against Borrower pursuant to this Agreement or
the other Loan Documents executed by or with respect to Borrower,
or existing at law or in equity or otherwise. Lender's rights,
powers and remedies may be pursued singly, concurrently or
otherwise, at such time and in such order as Lender may determine
in Lender's sole discretion. No delay or omission to exercise
any remedy, right or power accruing upon an Event of Default
shall impair any such remedy, right or power or shall be
construed as a waiver thereof, but any such remedy, right or
power may be exercised from time to time and as often as may be
deemed expedient. A waiver of any Default or Event of Default
shall not be construed to be a waiver of any subsequent Default
or Event of Default or to impair any remedy, right or power
consequent thereon. Any and all of Lender's rights with respect
to the Collateral shall continue unimpaired, and Borrower shall
be and remain obligated in accordance with the terms hereof,
notwithstanding (i) the release or substitution of Collateral at
any time, or of any rights or interest therein or (ii) any delay,
extension of time, renewal, compromise or other indulgence
granted by Lender in the event of any Default or Event of Default
with respect to the Collateral or otherwise hereunder.
Notwithstanding any other provision of this Agreement, Lender
reserves the right to seek a deficiency judgment or preserve a
deficiency claim, in connection with the foreclosure of the
Mortgage on the Facility, to the extent necessary to foreclose on
other parts of the Mortgaged Property.
Section 7.4. Lender's Right to Perform. If Borrower
fails to perform any covenant or obligation contained herein and
such failure shall continue for a period of five Business Days
after Borrower's receipt of written notice thereof, without in
any way limiting Section 7.1 hereof, from Lender, Lender may, but
shall have no obligation to, itself perform, or cause performance
of, such covenant or obligation, and the expenses of Lender
incurred in connection therewith shall be payable by Borrower to
Lender upon demand. Notwithstanding the foregoing, Lender shall
have no obligation to send notice to Borrower of any such
failure.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Survival. Subject to Section 4.2, this
Agreement and all covenants, agreements, representations and
warranties made herein and in the certificates delivered pursuant
hereto shall survive the execution and delivery of this Agreement
and the execution and delivery by Borrower to Lender of the Note,
and shall continue in full force and effect so long as any
portion of the Indebtedness is outstanding and unpaid. Whenever
in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns
of such party. All covenants, promises and agreements in this
Agreement contained, by or on behalf of Borrower, shall inure to
the benefit of the respective successors and assigns of Lender.
Nothing in this Agreement or in any other Loan Document, express
or implied, shall give to any Person other than the parties and
the holder(s) of the Note, the Mortgage and the other Loan
Documents, and their legal representatives, successors and
assigns, any benefit or any legal or equitable right, remedy or
claim hereunder.
Section 8.2. Lender's Discretion. Whenever pursuant
to this Agreement, Lender exercises any right given to it to
approve or disapprove, or any arrangement or term is to be
satisfactory to Lender, the decision of Lender to approve or
disapprove or to decide whether arrangements or terms are
satisfactory or not satisfactory shall (except as is otherwise
specifically herein provided) be in the sole discretion of
Lender.
Section 8.3. Governing Law. (a) The proceeds of the
Note delivered pursuant hereto were disbursed from New York,
which State the parties agree has a substantial relationship to
the parties and to the underlying transaction embodied hereby,
and in all respects, including, without limitation, matters of
construction, validity and performance, this Agreement and the
obligations arising hereunder shall be governed by, and construed
in accordance with, the laws of the State of New York applicable
to contracts made and performed in such State and any applicable
law of the United States of America. To the fullest extent
permitted by law, Borrower hereby unconditionally and irrevocably
waives any claim to assert that the law of any other jurisdiction
governs this Agreement and the Note, and this Agreement and the
Note shall be governed by and construed in accordance with the
laws of the State of New York pursuant to section 5-1401 of the New
York General Obligations Law.
(b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST
BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE
INSTITUTED IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK,
PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW OR
IN ANY FEDERAL OR STATE COURT IN THE JURISDICTION IN WHICH THE
COLLATERAL IS LOCATED AND BORROWER WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION
OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT THE
PRENTICE HALL CORPORATION SYSTEM, INC., CURRENTLY LOCATED AT 500
CENTRAL AVENUE, ALBANY, NEW YORK 12206-2290 AS ITS AUTHORIZED
AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND
ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING IN ANY FEDERAL OR STATE COURT AND AGREES THAT SERVICE
OF PROCESS UPON SAID AGENT AT SAID ADDRESS (OR AT SUCH OTHER
OFFICE AS MAY BE DESIGNATED BY BORROWER FROM TIME TO TIME IN
ACCORDANCE WITH THE TERMS HEREOF) WITH A COPY TO BORROWER AT ITS
PRINCIPAL EXECUTIVE OFFICES, ATTENTION: GENERAL COUNSEL AND
WRITTEN NOTICE OF SAID SERVICE OF BORROWER MAILED OR DELIVERED TO
BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY
RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER, IN ANY SUCH
SUIT, ACTION OR PROCEEDING. BORROWER (I) SHALL GIVE PROMPT
NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT
HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A
SUBSTITUTE AUTHORIZED AGENT (WHICH OFFICE SHALL BE DESIGNATED AS
THE ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY
DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO
HAVE AN OFFICE OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
Section 8.4. Modification, Waiver in Writing. No
modification, amendment, extension, discharge, termination or
waiver of any provision of this Agreement, the Note or any other
Loan Document, or consent to any departure by Borrower therefrom,
shall in any event be effective unless the same shall be in a
writing signed by the party against whom enforcement is sought,
and then such waiver or consent shall be effective only in the
specific instance, and for the purpose, for which given. Except
as otherwise expressly provided herein, no notice to or demand on
Borrower shall entitle Borrower to any other or future notice or
demand in the same, similar or other circumstances.
Section 8.5. Delay Not a Waiver. Neither any failure
nor any delay on the part of Lender in insisting upon strict
performance of any term, condition, covenant or agreement, or
exercising any right, power, remedy or privilege hereunder, or
under the Note, or of any other Loan Document, or any other
instrument given as security therefor, shall operate as or
constitute a waiver thereof, nor shall a single or partial
exercise thereof preclude any other future exercise, or the
exercise of any other right, power, remedy or privilege. In
particular, and not by way of limitation, by accepting payment
after the due date of any amount payable under this Agreement,
the Note or any other Loan Document, Lender shall not be deemed
to have waived any right either to require prompt payment when
due of all other amounts due under this Agreement, the Note or
the other Loan Documents, or to declare a default for failure to
effect prompt payment of any such other amount.
Section 8.6. Notices. All notices, consents,
approvals and requests required or permitted hereunder or under
any other Loan Document shall be given in writing and shall be
effective for all purposes if hand delivered or sent by (a) hand
delivery, with proof of attempted delivery, (b) certified or
registered United States mail, postage prepaid, (c) expedited
prepaid delivery service, either commercial or United States
Postal Service, with proof of attempted delivery, or (d) by
telecopier (with answerback acknowledged) provided that such
telecopied notice must also be delivered by one of the means set
forth in (a), (b) or (c) above, addressed if to Lender at its
address set forth on the first page hereof, and if to Borrower at
its designated address set forth on the first page hereof, or at
such other address and Person as shall be designated from time to
time by any party hereto, as the case may be, in a written notice
to the other parties hereto in the manner provided for in this
Section 8.6. A copy of all notices, consents, approvals and
requests directed to Lender shall be delivered concurrently to
each of the following: Joseph B. Heil, Esquire, Dechert Price &
Rhoads, 1717 Arch Street, 4000 Bell Atlantic Tower, Philadelphia,
PA 19103, Telefax Number 215/994-2222; Christopher Tierney, Two
World Financial Center, Building B, New York, New York 10281-
1195, (212) 667-1666; Two World Financial Center, Building B, New
York, NY 10281-1198, Attention: Sheryl McAfee, Telefax Number
(212) 667-1206; and Two World Financial Center, Building B, New
York, NY 10281-1198, Attention: Legal Counsel, Telefax Number
(212) 667-1022. A notice shall be deemed to have been given: (a)
in the case of hand delivery, at the time of delivery; (b) in the
case of registered or certified mail, when delivered or the first
attempted delivery on a Business Day; (c) in the case of
expedited prepaid delivery upon the first attempted delivery on a
Business Day; or (d) in the case of telecopier, upon receipt of
answerback confirmation, provided that such telecopied notice was
also delivered as required in this Section 8.6. A party
receiving a notice which does not comply with the technical
requirements for notice under this Section 8.6 may elect to waive
any deficiencies and treat the notice as having been properly
given.
SECTION 8.7. TRIAL BY JURY. BORROWER AND LENDER, TO
THE FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO, HEREBY WAIVE
TRIAL BY JURY IN ANY ACTION OR PROCEEDING, INCLUDING, WITHOUT
LIMITATION, ANY TORT ACTION, BROUGHT BY ANY PARTY HERETO WITH
RESPECT TO THIS AGREEMENT, THE NOTE OR THE OTHER LOAN DOCUMENTS.
Section 8.8. Headings. The Article and Section
headings in this Agreement are included herein for convenience of
reference only and shall not constitute a part of this Agreement
for any other purpose.
Section 8.9. Assignment. Lender shall have the right
to assign in whole or in part this Agreement and/or any of the
other Loan Documents and the obligations hereunder or thereunder
to any Person and to participate all or any portion of the Loan
evidenced hereby, including without limitation, any servicer or
trustee in connection with a Securitization. Lender shall
provide Borrower with written notice of any such assignment;
provided, however, that such notice shall not be a condition of
Lender's right to assign this Agreement and/or any of the Loan
Documents and the failure to deliver such notice shall not
constitute a default under this Loan Agreement.
Section 8.10. Severability. Wherever possible, each
provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid
under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating
the remainder of such provision or the remaining provisions of
this Agreement.
Section 8.11. Preferences. Lender shall have no
obligation to marshal any assets in favor of Borrower or any
other party or against or in payment of any or all of the
obligations of Borrower pursuant to this Agreement, the Note or
any other Loan Document. Lender shall have the continuing and
exclusive right to apply or reverse and reapply any and all
payments by Borrower to any portion of the obligations of
Borrower hereunder. To the extent Borrower makes a payment or
payments to Lender for Borrower's benefit, which payment or
proceeds or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required
to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable
cause, then, to the extent of such payment or proceeds received,
the obligations hereunder or part thereof intended to be
satisfied shall be revived and continue in full force and effect,
as if such payment or proceeds had not been received by Lender.
Section 8.12. Waiver of Notice. Borrower shall not be
entitled to any notices of any nature whatsoever from Lender
except with respect to matters for which this Agreement or the
other Loan Documents specifically and expressly provide for the
giving of notice by Lender to Borrower and except with respect to
matters for which Borrower is not, pursuant to applicable Legal
Requirements, permitted to waive the giving of notice. Borrower
hereby expressly waives the right to receive any notice from
Lender with respect to any matter for which this Agreement or the
other Loan Documents does not specifically and expressly provide
for the giving of notice by Lender to Borrower.
Section 8.13. Remedies of Borrower. In the event that
a claim or adjudication is made that Lender or its agents, has
acted unreasonably or unreasonably delayed acting in any case
where by law or under this Agreement, the Note, the Mortgage or
the other Loan Documents, Lender or such agent, as the case may
be, has an obligation to act reasonably or promptly, Borrower
agrees that neither Lender nor its agents, shall be liable for
any monetary damages, and Borrower's sole remedies shall be
limited to commencing an action seeking injunctive relief or
declaratory judgment. The parties hereto agree that any action
or proceeding to determine whether Lender has acted reasonably
shall be determined by an action seeking declaratory judgment.
Section 8.14. Exculpation. Except as otherwise set
forth in this Section 8.14 and Section 4.2 to the contrary,
Lender shall not enforce the liability and obligation of Borrower
to perform and observe the obligations contained in this
Agreement, the Note, the Mortgage or any of the other Loan
Documents executed and delivered by Borrower except that Lender
may pursue any power of sale, bring a foreclosure action, action
for specific performance, action for money judgment, or other
appropriate action or proceeding (including, without limitation,
to obtain a deficiency judgment) against Borrower or any other
Person solely for the purpose of enabling Lender to realize upon
(a) the Collateral, (b) the Rents and Accounts arising from
Borrower's Facility to the extent (x) received by Borrower or
Manager (or any of their affiliates), after the occurrence of an
Event of Default or (y) distributed to Borrower or the Manager,
or their respective shareholders, or partners or members, as
applicable, or affiliates during or with respect to any period
for which Lender did not receive the full amounts it was entitled
to receive as prepayments of the Loan pursuant to Section 2.7
(all Rents and Accounts covered by clauses (x) and (y) being
hereinafter referred to as the "Recourse Distributions") and (c)
any other collateral given to Lender under the Loan Documents
((a), (b), and (c) collectively, the "Default Collateral");
provided, however, that any judgment in any such action or
proceeding shall be enforceable only to the extent of any such
Default Collateral. The provisions of this Section 8.14 shall
not, however, (a) impair the validity of the Indebtedness
evidenced by the Loan Documents or in any way affect or impair
the Liens of the Mortgage or any of the other Loan Documents or
the right of Lender to foreclose the Mortgage following an Event
of Default; (b) impair the right of Lender to name any Person as
a party defendant in any action or suit for judicial foreclosure
and sale under the Mortgage; (c) affect the validity or
enforceability of the Note, the Mortgage or the other Loan
Documents; (d) impair the right of Lender to obtain the
appointment of a receiver; (e) impair the right of Lender to
bring suit for any damages, losses, expenses, liabilities or
costs resulting from fraud, material misrepresentation,
intentional misrepresentation, physical waste of all or any
portion of the Facility, or wrongful removal or disposal of all
or any portion of the Facility by any Person in connection with
this Agreement, the Note, the Mortgage or the other Loan
Documents; (f) impair the right of Lender to obtain the Recourse
Distributions received by any Person; (g) impair the right of
Lender to bring suit with respect to any misappropriation of
security deposits or Rents collected more than one month in
advance; (h) impair the right of Lender to obtain Insurance
Proceeds or Condemnation Proceeds due to Lender pursuant to the
Mortgage; (i) impair the right of Lender to enforce the
provisions of Sections 4.1(b)(U) or 5.1(D)-(I) of this Agreement,
Section 2.8 of the Mortgage or the Environmental Guaranty even
after repayment in full by Borrower of the Indebtedness; (j)
prevent or in any way hinder Lender from exercising, or
constitute a defense, or counterclaim, or other basis for relief
in respect of the exercise of, any other remedy against any or
all of the Collateral securing the Note as provided in the Loan
Documents; (k) impair the right of Lender to bring suit with
respect to any misapplication of any funds; or (l) impair the
right of Lender to sue for, seek or demand a deficiency judgment
against any Person solely for the purpose of foreclosing the
Mortgaged Property or any part thereof, or realizing upon the
Default Collateral; provided, however, that any such deficiency
judgment referred to in this clause (l) shall be enforceable only
to the extent of any of the Default Collateral. The provisions
of this Section 8.14 shall be inapplicable to any Person if (i)
any petition for bankruptcy, reorganization or arrangement
pursuant to federal or state law against Borrower shall be filed
by or against Borrower or consented to or acquiesced to by
Borrower, (ii) if Borrower shall institute any proceeding for the
dissolution or liquidation of Borrower, (iii) if Borrower shall
make an assignment for the benefit of creditors or (iv) if
Borrower shall breach the representation and warranty in Section
4.1(b)(Z).
Section 8.15. Exhibits Incorporated. The information
set forth on the cover, heading and recitals hereof, and the
Exhibits attached hereto, are hereby incorporated herein as a
part of this Agreement with the same effect as if set forth in
the body hereof.
Section 8.16. Offsets, Counterclaims and Defenses.
Any assignee of Lender's interest in and to this Agreement, the
Note, the Mortgage and the other Loan Documents shall take the
same free and clear of all offsets, counterclaims or defenses
which are unrelated to the Loan, this Agreement, the Note, the
Mortgage and the other Loan Documents which Borrower may
otherwise have against any assignor, and no such unrelated
counterclaim or defense shall be interposed or asserted by
Borrower in any action or proceeding brought by any such assignee
upon this Agreement, the Note, the Mortgage and other Loan
Documents and any such right to interpose or assert any such
unrelated offset, counterclaim or defense in any such action or
proceeding is hereby expressly waived by Borrower.
Section 8.17. No Joint Venture or Partnership.
Borrower and Lender intend that the relationship created
hereunder be solely that of borrower and lender. Nothing herein
is intended to create a joint venture, partnership, tenancy-in-
common, or joint tenancy relationship between Borrower and Lender
nor to grant Lender any interest in the Mortgaged Property other
than that of mortgagee or lender.
Section 8.18. Waiver of Marshalling of Assets Defense.
To the fullest extent that Borrower may legally do so, Borrower
waives all rights to a marshalling of the assets of Borrower, and
others with interests in Borrower, and of the Mortgaged Property,
or to a sale in inverse order of alienation in the event of
foreclosure of the interests hereby created, and agrees not to
assert any right under any laws pertaining to the marshalling of
assets, the sale in inverse order of alienation, homestead
exemption, the administration of estates of decedents, or any
other matters whatsoever to defeat, reduce or affect the right of
Lender under the Loan Documents to a sale of the Facility for the
collection of the Indebtedness without any prior or different
resort for collection, or the right of Lender to the payment of
the Indebtedness in preference to every other claimant
whatsoever.
Section 8.19. Waiver of Counterclaim. Borrower hereby
waives the right to assert a counterclaim, other than compulsory
counterclaim, in any action or proceeding brought against
Borrower by Lender or Lender's agents.
Section 8.20. Conflict; Construction of Documents. In
the event of any conflict between the provisions of this
Agreement and the provisions of the Note, the Mortgage or any of
the other Loan Documents, the provisions of this Agreement shall
prevail. The parties hereto acknowledge that they were
represented by counsel in connection with the negotiation and
drafting of the Loan Documents and that the Loan Documents shall
not be subject to the principle of construing their meaning
against the party which drafted same.
Section 8.21. Brokers and Financial Advisors.
Borrower and Lender hereby represent that they have dealt with no
financial advisors, brokers, underwriters, placement agents,
agents or finders in connection with the transactions
contemplated by this Agreement except MCA of New York, Inc. and
Advisor. Borrower hereby agrees to indemnify and hold Lender
harmless from and against any and all claims, liabilities, costs
and expenses of any kind in any way relating to or arising from a
claim by any Person (other than Advisor), that such Person acted
on behalf of Borrower in connection with the transactions
contemplated herein. The provisions of this Section shall
survive the expiration and termination of this Agreement and the
repayment of the Indebtedness.
Section 8.22. Counterparts. This Agreement may be
executed in any number of counterparts, each of which when so
executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
Section 8.23. Estoppel Certificates. Borrower and
Lender each hereby agree at any time and from time to time upon
not less than fifteen (15) days prior written notice by Borrower
or Lender to execute, acknowledge and deliver to the party
specified in such notice, a statement, in writing, certifying
that this Agreement is unmodified and in full force and effect
(or if there have been modifications, that the same, as modified,
is in full force and effect and stating the modifications
hereto), and stating whether or not, to the knowledge of such
certifying party, any Default or Event of Default has occurred,
and, if so, specifying each such Default or Event of Default;
provided, however, that it shall be a condition precedent to
Lender's obligation to deliver the statement pursuant to this
Section, that Lender shall have received, together with
Borrower's request for such statement, an Officer's Certificate
stating that no Default or Event of Default exists as of the date
of such certificate (or specifying such Default or Event of
Default).
Section 8.24. Payment of Expenses. Borrower shall,
whether or not the Transactions are consummated, pay all
Transaction Costs, which shall include, without limitation,
reasonable out-of-pocket fees, costs, expenses, and disbursements
of Lender and its attorneys, local counsel, accountants and other
contractors in connection with (i) the negotiation, preparation,
execution and delivery of the Loan Documents and the documents
and instruments referred to therein, (ii) the creation,
perfection or protection of Lender's Liens in the Collateral
(including, without limitation, fees and expenses for title and
lien searches and filing and recording fees, intangibles taxes,
personal property taxes, mortgage recording taxes, due diligence
expenses, travel expenses, accounting firm fees, costs of the
Appraisals, Environmental Reports (and an environmental
consultant), Surveys and the Engineering Reports), (iii) the
negotiation, preparation, execution and delivery of any
amendment, waiver or consent relating to any of the Loan
Documents, and (iv) the preservation of rights under and
enforcement of the Loan Documents and the documents and
instruments referred to therein, including any restructuring or
rescheduling of the Indebtedness.
Section 8.25. Bankruptcy Waiver. Borrower hereby
agrees that, in consideration of the recitals and mutual
covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, in the event Borrower shall (i) file with any
bankruptcy court of competent jurisdiction or be the subject of
any petition under Title 11 of the U.S. Code, as amended, (ii) be
the subject of any order for relief issued under Title 11 of the
U.S. Code, as amended, (iii) file or be the subject of any
petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under
any present or law relating to bankruptcy, insolvency or other
relief of debtors, (iv) have sought or consented to or acquiesced
in the appointment of any trustee, receiver, conservator or
liquidator or (v) be the subject of any order, judgment or decree
entered by any court of competent jurisdiction approving a
petition filed against such party for any reorganization,
arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future federal or state
act or law relating to bankruptcy, insolvency or other relief for
debtors, the automatic stay provided by the Federal Bankruptcy
Code shall be modified and annulled as to Lender, so as to permit
Lender to exercise any and all of its remedies, upon request of
Lender made on notice to Borrower and any other party in interest
but without the need of further proof or hearing. Neither
Borrower nor any Affiliate of Borrower shall contest the
enforceability of this Section.
Section 8.26 Entire Agreement. This Agreement,
together with the Exhibits hereto and the other Loan Documents
constitutes the entire agreement among the parties hereto with
respect to the subject matter contained in this Agreement, the
Exhibits hereto and the other Loan Documents and supersedes all
prior agreements, understandings and negotiations between the
parties.
Section 8.27 Dissemination of Information. If Lender
determines at any time to sell, transfer or assign the Note, this
Loan Agreement and any other Loan Document and any or all
servicing rights with respect thereto, or to grant participations
therein or issue mortgage pass-through certificates or other
securities evidencing a beneficial interest in a rated or unrated
public offering or private placement, Lender may forward to each
purchaser, transferee, assignee, servicer, participant or
investor in such securities (collectively, the "Investor") or any
Rating Agency rating such securities and each prospective
Investor, all documents and information which Lender now has or
may hereafter acquire relating to the Loan, Borrower, any
guarantor, any indemnitor and the Facility, which shall have been
furnished by Borrower, any guarantor, any indemnitor, or any
party to any Loan Document, or otherwise furnished in connection
with the Loan, as Lender in its sole discretion determines
necessary or desirable.
Section 8.28. Limitation of Interest. It is the
intention of Borrower and Lender to conform strictly to
applicable usury laws. Accordingly, if the transactions
contemplated hereby would be usurious under applicable law, then,
in that event, notwithstanding anything to the contrary in any
Loan Document, it is agreed as follows: (i) the aggregate of all
consideration which constitutes interest under applicable law
that is taken, reserved, contracted for, charged or received
under any Loan Document or otherwise in connection with the Loan
shall under no circumstances exceed the maximum amount of
interest allowed by applicable law, and any excess shall be
credited to principal by Lender (or if the Loan shall have been
paid in full, refunded to Borrower); and (ii) in the event that
maturity of the Loan is accelerated by reason of an election by
Lender resulting from any default hereunder or otherwise, or in
the event of any required or permitted prepayment, then such
consideration that constitutes interest may never include more
than the maximum amount of interest allowed by applicable law,
and any interest in excess of the maximum amount of interest
allowed by applicable law, if any, provided for in the Loan
Documents or otherwise shall be cancelled automatically as of the
date of such acceleration or prepayment and, if theretofore
prepaid, shall be credited to principal (or if the principal
portion of the Loan and any other amounts not constituting
interest shall have been paid in full, refunded to Borrower.)
In determining whether or not the interest paid or
payable under any specific contingency exceeds the maximum amount
allowed by applicable law, Lender shall, to the maximum extent
permitted under applicable law (a) exclude voluntary prepayments
and the effects thereof, and (b) amortize, prorate, allocate and
spread, in equal parts, the total amount of interest throughout
the entire contemplated term of the Loan so that the interest
rate is uniform throughout the entire term of the Loan; provided,
that if the Loan is paid and performed in full prior to the end
of the full contemplated term hereof, and if the interest
received for the actual period of existence thereof exceeds the
maximum amount allowed by applicable law, Lender shall refund to
Borrower the amount of such excess, and in such event, Lender
shall not be subject to any penalties provided by any laws for
contracting for, charging or receiving interest in excess of the
maximum amount allowed by applicable law.
Section 8.29. Indemnification. Borrower shall
indemnify and hold Lender and each of its affiliates (including
its officers, directors, partners, employees and agents and each
other person, if any, controlling Lender or any of its affiliates
within the meaning of either Section 15 of the Securities Act of
1933, as amended, or Section 20 of the Securities Exchange Act of
1934, as amended) (each, including Lender, an "Indemnified
Party") harmless against any and all losses, claims, damages,
costs, expenses (including the fees and disbursements of outside
counsel retained by any such person) or liabilities in connection
with, arising out of or as a result of the transactions and
matters referred to or contemplated by this Agreement, except to
the extent that it is finally judicially determined that any such
loss, claim, damage, cost, expense or liability resulted solely
from the gross negligence or bad faith of such Indemnified Party.
In the event that any Indemnified Party becomes involved in any
action, proceeding or investigation in connection with any
transaction or matter referred to or contemplated in this
Agreement, Borrower shall periodically reimburse any Indemnified
Party upon demand therefor in an amount equal to its reasonable
legal and other expenses (including the costs of any
investigation and preparation) incurred in connection therewith
to the extent such legal or other expenses are the subject of
indemnification hereunder.
Section 8.30. Borrower Acknowledgments. Borrower
hereby acknowledges to and agrees with Lender that (i) the scope
of Lender's business is wide and includes, but is not limited to,
financing, real estate financing, investment in real estate and
other real estate transactions which may be viewed as adverse to
or competitive with the business of Borrower or its Affiliates
and (ii) Borrower has been represented by competent legal counsel
and has consulted with such counsel prior to executing this Loan
Agreement and any of the other Loan Documents.
Section 8.31. Publicity. Lender shall have the right
to issue press releases, advertisements and other promotional
materials describing Lender's participation in the origination of
the Loan or the Loan's inclusion in any Securitization
effectuated or to be effectuated by Lender.
IN WITNESS WHEREOF, the parties hereto have caused this
Loan Agreement to be duly executed by their duly authorized
representatives, all as of the day and year first above written.
LENDER:
NOMURA ASSET CAPITAL CORPORATION, a
Delaware corporation
By: /s/ Christopher Tierney
Christopher Tierney
Vice President
MARK NORTHWOOD ASSOCIATES,
LIMITED PARTNERSHIP, a
Florida limited partnership
By: Mark Northwood Realty, Inc. a
Florida corporation, its
general partner
By: /s/ Joshua Kane
Joshua Kane
Senior Vice President
EXHIBIT A
Operating Expense Certificate
Nomura Asset Capital Corporation
Two World Financial Center, Building B
New York, New York 10281-1195
Re: Loan Agreement (the "Loan Agreement") dated as of March
_____, 1997 between Mark Northwood Associates, Limited
Partnership ("Borrower") and Nomura Asset Capital Corporation
(together with its successors and assigns "Lender")
Ladies and Gentlemen:
This certificate is delivered in accordance with
Section 2.12(f) of the Loan Agreement. All capitalized terms not
defined herein shall have the meanings ascribed to them in the
Loan Agreement.
Borrower hereby certifies that the Operating Expenses
for the Interest Accrual Period from ______________, ____ to
______________, ____ are ______________________ Dollars
($_________) and that such Operating Expenses are equal to or
less than the Operating Expenses for such period set forth on the
Operating Budget.
MARK NORTHWOOD ASSOCIATES, LIMITED
PARTNERSHIP, a Florida limited
partnership
By: Mark Northwood Realty, Inc. a
Florida corporation, its general
partner
By: ___________________
Joshua Kane
Senior Vice President
EXHIBIT B
Additional Definitions
Base Adjusted NOI $3,125,000.00
Base Payment $193,330.26
Initial Basic Carrying Costs Amount $89,367.00
Initial Capital Reserve Amount $224,217.00
Initial Securitization Expense Amount $ 25,000
Initial State of Florida Lease Reserve Amount $2,750,000
EXHIBIT C
Capital Improvement and Repair and Environmental Remediation
Exhibit