TERM LOAN AGREEMENT
DATED AS OF DECEMBER 15, 1997
among
WEL/WH 1275 K STREET L.L.C., as Borrower
and
BANKBOSTON, N.A.,
GOLDMAN SACHS MORTGAGE COMPANY,
and
OTHER BANKS WHICH MAY BECOME
PARTIES TO THIS AGREEMENT, as Banks
and
BANKBOSTON, N.A.,
AS ADMINISTRATIVE AGENT AND CO-ARRANGER
AND CO-SYNDICATION AGENT
and
GOLDMAN SACHS MORTGAGE COMPANY,
AS CO-ARRANGER AND CO-SYNDICATION AGENT
TERM LOAN AGREEMENT
___________________
THIS TERM LOAN AGREEMENT is made as of the 15th day of December, 1997,
by and among WEL/WH 1275 K STREET, L.L.C., a Delaware limited liability
company, having its principal place of business at 610 Fifth Avenue, 7th
Floor, New York, New York ("Borrower"), BANKBOSTON, N.A., a national
banking association, GOLDMAN SACHS MORTGAGE COMPANY, a New York limited
partnership, and the other lending institutions which may become parties
hereto pursuant to Section 18 (collectively, the "Banks"), and BANKBOSTON,
N.A., as Agent for the Banks and Co-Arranger and Co-Syndication Agent (the
"Agent"), and GOLDMAN SACHS MORTGAGE COMPANY, as Co-Arranger and Co-
Syndication Agent.
Section 1. DEFINITIONS AND RULES OF INTERPRETATION.
Section 1.1. Definitions. The following terms shall have the
meanings set forth in this Section l or elsewhere in the provisions of
this Agreement referred to below:
Agent. BankBoston, N.A., a national banking association, its
successors and assigns, acting as agent for the Banks.
Agent's Head Office. The Agent's head office located at 100 Federal
Street, Boston, Massachusetts 02110, or at such other location as the Agent
may designate from time to time by notice to the Borrower and the Banks.
Agent's Special Counsel. Long Aldridge & Norman LLP or such other
counsel as may be approved by the Agent.
Agreement. This Term Loan Agreement, including the Schedules and
Exhibits hereto.
Agreement Regarding Fees. The Agreement Regarding Fees dated of even
date herewith among Borrower, BKB and Goldman.
Appraisal. An MAI appraisal of the value of a parcel of Mortgaged
Property, determined on a fair market value basis, performed by an
independent appraiser selected by the Agent who is not an employee of the
Borrower, the Revolver Borrower, the Agent or a Bank, the form and
substance of such appraisal and the identity of the appraiser to be in
accordance with regulatory laws and policies (both regulatory and internal)
applicable to the Banks, including, without limitation, FIRREA, and
otherwise acceptable to the Majority Banks.
Appraised Value. The fair market value of a parcel of Mortgaged
Property, determined by the most recent Appraisal of such parcel or update
obtained pursuant to Section 5.2 or Section 10.7, subject, however, to
such changes or adjustments to the value determined thereby as may be
required by the appraisal departments of the Majority Banks in their good
faith business judgment.
Assignment of Leases and Rents. Each of the collateral assignments of
leases and rents from the Borrower to the Agent pursuant to which there
shall be assigned to the Agent for the benefit of the Banks a security
interest in the interest of such party, as lessor with respect to all
Leases of all or any part of a Mortgaged Property, each such collateral
assignment to be in form and substance satisfactory to the Agent.
Balance Sheet Date. September 30, 1997.
Banks. BKB, Goldman and any other Person who becomes an assignee of
any rights of a Bank pursuant to Section 18 (but not including any
Participant, as defined in Section 18).
Base Rate. The higher of (a) the annual rate of interest announced
from time to time by BKB at its head office in Boston, Massachusetts as its
"base rate", and (b) one-half of one percent (0.5%) above the Federal Funds
Effective Rate (rounded upwards, if necessary, to the next one-eighth of
one percent). Any change in the rate of interest payable hereunder
resulting from a change in the Base Rate shall become effective as of the
opening of business on the day on which such change in the Base Rate
becomes effective.
Base Rate Loans. Those Loans bearing interest calculated by reference
to the Base Rate.
BKB. BankBoston, N.A., a national banking association.
Borrower. As defined in the preamble hereto.
Building. All of the buildings, structures and improvements now or
hereafter located on any Mortgaged Property.
Building Service Equipment. All apparatus, fixtures and articles of
personal property owned by the Borrower, now or hereafter attached to or
used or procured for use in connection with the operation or maintenance of
any building, structure or other improvement located on or included in the
Mortgaged Property, including, but without limiting the generality of the
foregoing, all engines, furnaces, boilers, stokers, pumps, heaters, tanks,
dynamos, motors, generators, switchboards, electrical equipment, heating,
plumbing, lifting and ventilating apparatus, air-cooling and
air-conditioning apparatus, gas and electric fixtures, elevators,
escalators, fittings, and machinery and all other equipment of every kind
and description, used or procured for use in the operation of a Building
(except apparatus, fixtures or articles of personal property belonging to
lessees or other occupants of such building or to persons other than the
Borrower, unless the same be abandoned by any such lessee or other occupant
or person and shall become the Borrower's property by reason of such
abandonment), together with any and all replacements thereof and additions
thereto.
Business Day. Any day on which banking institutions in the city in
which the Agent's Head Office is located are open for the transaction of
banking business and, in the case of Eurodollar Rate Loans, which also is a
Eurodollar Business Day.
Capital Improvement Project. With respect to any Mortgaged Property,
capital improvements consisting of rehabilitation, refurbishment,
replacement and improvements to the existing Buildings on such Mortgaged
Property which may be properly capitalized under generally accepted
accounting principles.
Capital Improvement Reserve. For any period an amount equal to
seventy-five cents ($0.75) per annum multiplied by the weighted average of
rentable square footage of the Mortgaged Property during such period.
CERCLA. See Section 6.20.
Closing Date. The first date on which all of the conditions set forth
in Section 10 and Section 11 have been satisfied.
Co-Agent. Goldman
Code. The Internal Revenue Code of 1986, as amended.
Collateral. All of the property, rights and interests of the Borrower
which are or are intended to be subject to the security interests, liens
and mortgages created by the Security Documents, including, without
limitation, the Mortgaged Property.
Commitment. With respect to each Bank, the amount set forth on
Schedule 1.1 hereto as the amount of such Bank's Commitment to make or
maintain Loans to the Borrower, as the same may be reduced from time to
time in accordance with the terms of this Agreement.
Commitment Percentage. With respect to each Bank, the percentage set
forth on Schedule 1.1 hereto as such Bank's percentage of the aggregate
Commitments of all of the Banks.
Compliance Certificate. See Section 7.4(e).
Construction Inspector. A firm of professional engineers or architects
selected by the Agent and reasonably acceptable to the Borrower.
Conversion Request. A notice given by the Borrower to the Agent of
its election to convert or continue a Loan in accordance with Section 4.1.
Debt Offering. The issuance and sale by the Borrower or the Guarantor
of any debt securities of the Borrower or the Guarantor.
Default. See Section 12.1.
Designated Collateral Value. Seventy-five percent (75%) of the
Appraised Value of a Mortgaged Property as determined in connection with
the acceptance of such Mortgaged Property as Collateral. The aggregate of
the amounts determined for each Mortgaged Property shall be the Designated
Collateral Value for all of such Mortgaged Properties.
Distribution. The declaration or payment of any dividend or
distribution on or in respect of any shares of the Borrower, other than
dividends or distributions payable solely in equity securities of the
Borrower, the purchase, redemption, exchange or other retirement of any
shares of the Borrower; directly or indirectly; the return of capital by
the Borrower to its shareholders as such; or any other distribution on or
in respect of any shares of the Borrower.
Dollars or $. Dollars in lawful currency of the United States of
America.
Domestic Lending Office. Initially, the office of each Bank
designated as such in Schedule 1 hereto; thereafter, such other office of
such Bank, if any, located within the United States that will be making or
maintaining Base Rate Loans.
Drawdown Date. The date on which any Loan is made or is to be made,
and the date on which any Loan is converted or combined in accordance with
Section 4.1.
Eligible Real Estate. Real estate:
(a) which is owned in fee by the Borrower;
(b) which is located within the northeastern United States,
excluding those States which prescribe a "single-action" or similar
rule limiting the rights of creditors secured by real property, except
to the extent such exclusion is waived in writing by the Majority
Banks with respect to a specific parcel of real estate;
(c) which is utilized principally for commercial office
purposes;
(d) which is approved by the Majority Banks after the date
hereof in their sole judgment;
(e) as to which all of the representations set forth in Section
6 of this Agreement concerning Mortgaged Property are true and
correct; and
(f) as to which the Agent has received all Eligible Real Estate
Qualification Documents, so long as all of such documents remain in
full force and effect.
Eligible Real Estate Qualification Documents. With respect to any
parcel of Eligible Real Estate proposed to be included in the Mortgaged
Properties each of the following:
(a) Security Documents. Such Security Documents relating to
such Eligible Real Estate as the Agent shall require, in form and
substance satisfactory to the Agent and duly executed and delivered by
the respective parties thereto.
(b) Enforceability Opinion. The favorable legal opinion of
counsel to the Borrower reasonably acceptable to the Agent qualified
to practice in the State in which such Eligible Real Estate is
located, addressed to the Banks and in form and substance satisfactory
to the Agent as to the enforceability of such Security Documents and
such other matters as the Agent shall reasonably request.
(c) Perfection of Liens. Evidence reasonably satisfactory to
the Agent that the Security Documents are effective to create in favor
of the Agent a legal, valid and enforceable first (except for
Permitted Liens entitled to priority under applicable law) lien and
security interest in such Eligible Real Estate and that all filings,
recordings, deliveries of instruments and other actions necessary or
desirable to protect and preserve such liens or security interests
have been duly effected.
(d) Survey and Taxes. The Survey of such Eligible Real Estate,
together with the Surveyor Certification and evidence of payment of
all real estate taxes, assessments and municipal charges on such
Eligible Real Estate which on the date of determination are required
to have been paid under Section 7.8.
(e) Title Insurance; Title Exception Documents. The Title
Policy covering such Eligible Real Estate, including all endorsements
thereto, and together with proof of payment of all fees and premiums
for such policy, and true and accurate copies of all documents listed
as exceptions under such policy.
(f) UCC Certification. A certification from the Title Insurance
Company or counsel satisfactory to the Agent that a search of the
public records designated by the Agent disclosed no conditional sales
contracts, security agreements, chattel mortgages, leases of
personalty, financing statements or title retention agreements which
affect any property, rights or interests of the Borrower that are or
are intended to be subject to the security interest, assignments, and
mortgage liens created by the Security Documents relating to such
Eligible Real Estate except to the extent that the same are discharged
and removed prior to or simultaneously with the inclusion of the
Eligible Real Estate in the Collateral.
(g) Management Agreement. A true copy of the Management
Agreement relating to such Eligible Real Estate.
(h) Leases. True and correct copies of all Leases for such
Eligible Real Estate and any lease summaries prepared by Borrower with
respect thereto, together with the forms of Lease to be used by the
Borrower in connection with future leasing of such Mortgaged Property,
such forms of Lease to be in form and substance satisfactory to the
Agent.
(i) Subordination Agreements. A Subordination, Attornment and
Non-Disturbance Agreement from each tenant of such Eligible Real
Estate as required by the Agent, dated not more than sixty (60) days
prior to the inclusion of such Eligible Real Estate in the Collateral
and satisfactory in form and substance to the Agent.
(j) Estoppel Certificates. Estoppel certificates from each
tenant of such parcel of Eligible Real Estate as required by Agent,
such certificates to be dated not more than sixty (60) days prior to
the inclusion of such Eligible Real Estate in the Collateral and to be
satisfactory in form and substance to the Agent.
(k) Certificates of Insurance. Each of (i) a current
certificate of insurance as to the insurance maintained on such
Eligible Real Estate (including flood insurance if necessary) from the
insurer or an independent insurance broker dated as of the date of
determination, identifying insurers, types of insurance, insurance
limits, and policy terms; (ii) certified copies of all policies
evidencing such insurance (or certificates therefor signed by the
insurer or an agent authorized to bind the insurer); and (iii) such
further information and certificates from the Borrower, its insurers
and insurance brokers as the Agent may reasonably request, all of
which shall be in compliance with the requirements of this Agreement.
(l) Hazardous Substance Assessments. A hazardous waste site
assessment report concerning Hazardous Substances and asbestos on such
Eligible Real Estate dated or updated not more than three months prior
to the inclusion of such Eligible Real Estate in the Collateral unless
otherwise approved by the Agent, from an Environmental Engineer, such
report to contain no qualifications except those that are acceptable
to the Majority Banks in their sole discretion and to otherwise be in
form and substance satisfactory to the Majority Banks.
(m) Certificate of Occupancy. A copy of the certificate(s) of
occupancy issued to the Borrower for such parcel of Eligible Real
Estate permitting the use and occupancy of the Building thereon (or
evidence that any previously issued certificate(s) of occupancy is not
required to be reissued to the Borrower), or a legal opinion
reasonably satisfactory to the Agent that no certificates of occupancy
are necessary to the use and occupancy thereof.
(n) Appraisal. An Appraisal of such Eligible Real Estate, in
form and substance satisfactory to the Majority Banks and dated not
more than three months prior to the inclusion of such Eligible Real
Estate in the Collateral.
(o) Zoning and Land Use Opinion of Counsel. A favorable opinion
concerning the Eligible Real Estate addressed to the Agent and dated
the date of the inclusion of such Eligible Real Estate in the
Collateral, in form and substance satisfactory to the Agent, from
counsel approved by the Agent admitted to practice in the State in
which such parcel is located, as to zoning and land use compliance, or
such other evidence regarding zoning and land use compliance as the
Agent may approve in its reasonable discretion.
(p) Construction Inspector Report. A report or written
confirmation from the Construction Inspector satisfactory in form and
content to the Majority Banks, dated or updated not more than three
months prior to the inclusion of such Eligible Real Estate in the
Collateral, addressing such matters as the Majority Banks may
reasonably require, including without limitation that the Construction
Inspector has reviewed the plans and specifications or other available
materials for all Buildings on the Eligible Real Estate, that the
condition of the Buildings is good, that all Buildings were
constructed and completed in a good and workmanlike manner, that the
Buildings satisfy all applicable building, zoning, handicapped access
and Environmental Laws applicable thereto, and whether or not the
Eligible Real Estate and the Buildings thereon are a conforming use
under applicable zoning laws.
(q) Permit and Legal Compliance Assurances. Evidence
satisfactory to the Agent that all activities being conducted on such
Eligible Real Estate which require federal, state or local licenses or
permits have been duly licensed and that such licenses or permits are
in full force and effect, and that the Eligible Real Estate, the
Buildings and the use and occupancy thereof are in compliance in all
material respects with all applicable federal, state or local laws,
ordinances or regulations.
(r) Operating Statements. Operating statements for such
Eligible Real Estate in the form of such statements delivered to the
Banks under Section 6.4(c) covering each of the four fiscal quarters
ending immediately prior to the addition of such Mortgaged Property to
the Collateral.
(s) Doing Business Opinion. An opinion, dated the date of the
inclusion of such Eligible Real Estate in the Collateral, of legal
counsel to the Borrower reasonably acceptable to the Agent qualified
to practice in the State in which such Eligible Real Estate is located
to the effect that neither the Agent nor any Bank shall be required to
qualify to do business in such State or any political subdivision
thereof or to become liable to pay any taxes in such State or any
political subdivision thereof solely on account of the receipt of the
lien on such Eligible Real Estate securing the Obligation, such
opinion to be satisfactory to the Agent.
(t) Additional Documents. Such other documents, certificates,
reports or assurances as the Agent or the Majority Banks may
reasonably require in their discretion.
Employee Benefit Plan. Any employee benefit plan within the meaning
of Section 3(3) of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate, other than a Multiemployer Plan.
Environmental Engineer. A firm of independent professional engineers
or other scientists generally recognized as expert in the detection,
analysis and remediation of Hazardous Substances and related environmental
matters and reasonably acceptable to the Agent.
Environmental Laws. See Section 6.20(a).
ERISA. The Employee Retirement Income Security Act of 1974, as
amended and in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer with
the Borrower under Section 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a
Guaranteed Pension Plan within the meaning of Section 4043 of ERISA and
the regulations promulgated thereunder as to which the requirement of
notice has not been waived.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar
Rate Loan, the maximum rate (expressed as a decimal) at which any lender
subject thereto would be required to maintain reserves under Regulation D
of the Board of Governors of the Federal Reserve System (or any successor
or similar regulations relating to such reserve requirements) against
"Eurocurrency Liabilities" (as that term is used in Regulation D or any
successor or similar regulation), if such liabilities were outstanding.
The Eurocurrency Reserve Rate shall be adjusted automatically on and as of
the effective date of any change in the Eurocurrency Reserve Rate.
Eurodollar Business Day. Any day on which commercial banks are open
for international business (including dealings in Dollar deposits) in
London or such other Eurodollar interbank market as may be selected by the
Agent and the Banks in their sole discretion acting in good faith.
Eurodollar Lending Office. Initially, the office of each Bank
designated as such in Schedule 1 hereto; thereafter, such other office of
such Bank, if any, that shall be making or maintaining Eurodollar Rate
Loans.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar
Rate Loan, the rate per annum equal to the quotient (rounded upwards to the
nearest 1/16 of one percent) of (a) the rate at which the Reference Bank's
Eurodollar Lending Office is offered Dollar deposits two Eurodollar
Business Days prior to the beginning of such Interest Period in whatever
interbank Eurodollar market may be selected by the Reference Bank in its
sole discretion, acting in good faith, for delivery on the first day of
such Interest Period for the number of days comprised therein and in an
amount comparable to the amount of the Eurodollar Rate Loan to which such
Interest Period applies, divided by (b) a number equal to 1.00 minus the
Eurocurrency Reserve Rate.
Eurodollar Rate Loans. Loans bearing interest calculated by reference
to a Eurodollar Rate.
Event of Default. See Section 12.1.
Federal Funds Effective Rate. For any day, the rate per annum equal
to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by the Agent.
generally accepted accounting principles. Principles that are (a)
consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to
time and (b) consistently applied with past financial statements of the
Borrower adopting the same principles; provided that a certified public
accountant would, insofar as the use of such accounting principles is
pertinent, be in a position to deliver an unqualified opinion (other than a
qualification regarding changes in generally accepted accounting
principles) as to financial statements in which such principles have been
properly applied.
Goldman. Goldman Sachs Mortgage Company.
Goldman Group. Collectively, the partners of WHWEL as of any date
that are affiliates of The Goldman Sachs Group L.P.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the
Borrower or any ERISA Affiliate the benefits of which are guaranteed on
termination in full or in part by the PBGC pursuant to Title IV of ERISA,
other than a Multiemployer Plan.
Guarantor. Revolver Borrower, in its capacity as guarantor under the
Guaranty.
Guaranty. The Indemnity and Guaranty Agreement by the Revolver
Borrower in favor of Agent and the Banks, in form and substance
satisfactory to Agent in its sole discretion.
Hazardous Substances. See Section 6.20(b).
Indebtedness. All obligations, contingent and otherwise, that in
accordance with generally accepted accounting principles should be
classified upon the obligor's balance sheet as liabilities, or to which
reference should be made by footnotes thereto, including in any event and
whether or not so classified: (a) all debt and similar monetary
obligations, whether direct or indirect (including, without limitation, all
obligations evidenced by bonds, debentures, notes or similar debt
instruments and subordinated indebtedness); (b) all liabilities secured by
any mortgage, pledge, security interest, lien, charge or other encumbrance
existing on property owned or acquired subject thereto, whether or not the
liability secured thereby shall have been assumed; and (c) all guarantees,
interest rate and currency swap obligations, endorsements and other
contingent obligations whether direct or indirect in respect of
indebtedness of others, including contingent obligations that in accordance
with generally accepted accounting principles are required to be footnoted
on the Borrower's balance sheet and any obligation to supply funds to or in
any manner to invest directly or indirectly in a Person, to purchase
indebtedness, or to assure the owner of indebtedness against loss through
an agreement to purchase goods, supplies or services for the purpose of
enabling the debtor to make payment of the indebtedness held by such owner
or otherwise, and the obligation to reimburse the issuer in respect of any
letter of credit; and (d) any obligation as a lessee or an obligor under a
capitalized lease.
Indemnity Agreement. Collectively, the Indemnity Agreements Regarding
Hazardous Materials made by the Borrower and the Revolver Borrower in favor
of the Agent and the Banks, pursuant to which such parties agree to
indemnify the Agent and the Banks with respect to Hazardous Substances and
Environmental Laws, such Indemnity Agreement to be in form and substance
satisfactory to the Agent.
Interest Payment Date. (a) As to each Loan, the first day of each
January, April, July and October during the term of such Loan (with the
first Interest Payment Date pursuant to this clause (a) being April 1,
1998), and (b) also as to each Eurodollar Rate Loan, the last day of the
Interest Period relating thereto.
Interest Period. With respect to each Eurodollar Rate Loan:
(a)(i) initially, for each Loan the Drawdown Date of which is
the Closing Date, a period of two months; and
(b)(i) for the period commencing with the date two months
after the Closing Date and ending on the second anniversary of the
Closing Date, the period commencing on the Drawdown Date of such Loan
and ending one, three, six or twelve months or, with respect only to a
Eurodollar Rate Loan the Drawdown Date of which is a date during the
period commencing on the date two months after the Closing Date and
ending three months after the Closing Date, also twenty-four months,
and (ii) thereafter, each period commencing on the day following the
last day of the next preceding Interest Period applicable to such Loan
and ending on the last day of one of the periods set forth above, as
selected by the Borrower in a Conversion Request; and
(c)(i) from and after the last day of the first Interest
Period to end on or after the second anniversary of the Closing Date,
the period commencing on the Drawdown Date of such Loan and ending one
month thereafter; and (ii) thereafter, each period commencing on the
day following the last day of the next preceding Interest Period
applicable to such Loan and ending on the last day of the then next
one month period; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(A) if any Interest Period with respect to a Eurodollar
Rate Loan would otherwise end on a day that is not a Eurodollar
Business Day, that Interest Period shall end and the next
Interest Period shall commence on the next preceding or
succeeding Eurodollar Business Day as determined conclusively by
the Reference Bank in accordance with the then current bank
practice in the applicable Eurodollar interbank market;
(B) if the Borrower shall fail to give notice as provided
in Section 4.1, the Borrower shall be deemed to have requested a
conversion of the affected Eurodollar Rate Loan to a Base Rate
Loan on the last day of the then current Interest Period with
respect thereto;
(C) no Interest Period relating to any Eurodollar Rate Loan
shall extend beyond the Maturity Date; and
(D) no Interest Period commencing prior to the second
anniversary date of the Closing Date shall extend beyond such
second anniversary date of the Closing Date except for any
twenty-four month period allowed to be selected by the Borrower
in accordance with clause (d) of this definition and so selected.
Leases. Leases, licenses and agreements whether written or oral,
relating to the use or occupation of space in or on the Building or on the
Eligible Real Estate.
Liens. See Section 8.2.
Loan Documents. This Agreement, the Notes, the Security Documents,
the Guaranty, and all other documents, instruments or agreements executed
or delivered by or on behalf of the Borrower or the Guarantor evidencing or
securing the Loans.
Loan Request. See Section 2.6.
Loans. The aggregate Loans to be made by the Banks hereunder.
Majority Banks. As of any date, the Bank or Banks whose aggregate
Commitment Percentage is equal to or greater than sixty-six and two-thirds
percent (66.67%).
Management Agreements. Agreements, whether written or oral, providing
for the management of the Mortgaged Property or any of them.
Maturity Date. December 15, 2001, or such earlier date on which the
Loans shall become due and payable pursuant to the terms hereof.
Mortgaged Property. Collectively, the Eligible Real Estate which is
conveyed to and accepted by the Agent as security for the Obligations
pursuant to the Security Deeds.
Multiemployer Plan. Any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate.
Net Income (or Deficit). With respect to any Person (or any asset of
any Person) for any fiscal period, the net income (or deficit) of such
Person (or attributable to such asset), after deduction of all expenses,
taxes and other proper charges, determined in accordance with generally
accepted accounting principles.
Net Operating Income. With respect to the Borrower for any period, an
amount equal to the sum of (a) the Net Income of Borrower (attributable to
the Mortgaged Property for such period) plus (b) depreciation, amortization
and interest deducted in calculating such Net Income plus (c) any
extraordinary or non-recurring losses deducted in calculating Net Income
plus/minus (d) Rent Adjustments with respect to Leases for the Mortgaged
Properties minus (e) any income included in calculating such Net Income
from the Mortgaged Properties from tenants which are 60 or more days
delinquent in the payment of any rent minus (f) any extraordinary or non-
recurring gains included in calculating Net Income. Net Operating Income
shall be determined in a manner consistent with the manner in which it has
previously been calculated and provided to the Banks.
Notes. See Section 2.4.
Notice. See Section 19.
Obligations. All indebtedness, obligations and liabilities of the
Borrower to any of the Banks and the Agent, individually or collectively,
under this Agreement or any of the other Loan Documents or in respect of
any of the Loans or the Notes, or other instruments at any time evidencing
any of the foregoing, whether existing on the date of this Agreement or
arising or incurred hereafter, direct or indirect, joint or several,
absolute or contingent, matured or unmatured, liquidated or unliquidated,
secured or unsecured, arising by contract, operation of law or otherwise.
Operating Agreement. That certain Amended and Restated Limited
Liability Company Operating Agreement of WEL/WH 1275 K Street L.L.C., dated
as of December 10, 1997, being the operating agreement of the Borrower.
Outstanding. With respect to the Loans, the aggregate unpaid
principal thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by Section
4002 of ERISA and any successor entity or entities having similar
responsibilities.
Permitted Indirect Transfer. (a) Sales, transfers or other
dispositions (but not pledges, mortgages, hypothecations or encumbrances)
of interests in WHWEL if, after giving effect thereto, the Goldman Group,
directly or indirectly, owns and controls at least seventy percent (70%) of
the ownership interests in WHWEL;
(b) notwithstanding anything herein to the contrary, any conversion
at any time and from time to time by WHWEL of all or any of its interest in
the Revolver Borrower into an interest in Wellsford Commercial or Wellsford
Real Properties, Inc., a Maryland corporation; or
(c) any transfer or pledge by WHWEL or Wellsford Commercial in the
Revolver Borrower to one another as may be permitted in the operating
agreement of the Revolver Borrower.
Permitted Liens. Liens, security interests and other encumbrances
permitted by Section 8.2.
Person. Any individual, corporation, partnership, limited liability
company, trust, unincorporated association, business, or other legal
entity, and any government or any governmental agency or political
subdivision thereof.
Plan Assets. Assets of any employee benefit plan subject to Part 4,
Subtitle A, Title I of ERISA.
REIT Status. With respect to Wellsford Commercial, its status as a
real estate investment trust as defined in Section 856(a) of the Code.
Record. The record, including computer records, maintained by the
Agent with respect to any Loan referred to in the Notes.
Reference Bank. BKB.
Register. See Section 18.2.
Release. See Section 6.20(c)(iii).
Rent Adjustment. For any Person, straight line adjustments to rent
payable under Leases, as determined in accordance with generally accepted
accounting principles.
Rent Roll. A report prepared by the Borrower showing for each tenant
its occupancy status, lease expiration date, market rent, lease rent and
other information in such form as may have been approved by the Agent, such
approval not to be unreasonably withheld.
Reportable Event. Any of the events set forth in Section 4043(b) of
ERISA or the regulations thereunder.
Revolver Borrower. Wellsford/Whitehall Properties, L.L.C., a Delaware
limited liability company.
Revolving Credit Agreement. That certain Revolving Credit Agreement
by and among the Revolver Borrower, BankBoston, Goldman, the other lending
institutions that are or become parties thereto and BankBoston, N.A. in its
capacity as agent for itself and the other lending institutions that are or
become parties thereto, dated of even date as this Agreement, as the same
may be amended, modified or restated.
SEC. The federal Securities and Exchange Commission.
Security Deeds. The Mortgages, Deeds to Secure Debt and Deeds of
Trust from the Borrower to the Agent for the benefit of the Banks (or to
trustees named therein acting on behalf of the Agent for the benefit of the
Banks) pursuant to which the Borrower has conveyed a Mortgaged Property as
security for the Obligations.
Security Documents. Collectively, the Security Deeds, the Assignments
of Rents and Leases, the Indemnity Agreement, the Guaranty, any further
collateral assignments to the Agent for the benefit of the Banks,
including, without limitation, U.C.C.-1 financing statements executed and
delivered in connection therewith.
Special Member. 1275 K Street Holding, L.L.C., a Delaware limited
liability company.
Special Member Operating Agreement. That certain Limited Liability
Company Operating Agreement of 1275 K Street Holding, L.L.C., dated as of
December 10, 1997, being the operating agreement of the Special Member.
State. A state of the United States of America.
Subordination, Attornment and Non-Disturbance Agreement. An agreement
among the Agent, the Borrower and a tenant under a Lease pursuant to which
such tenant agrees to subordinate its rights under the Lease to the lien of
the Security Deed and agrees to recognize the Agent or its successor in
interest as landlord under the Lease in the event of a foreclosure under
the Security Deed, such agreement to be in form and substance satisfactory
to the Agent.
Subsidiary. Any corporation, association, partnership, limited
liability company, trust, or other business or other legal entity of which
the designated parent shall at any time own directly or indirectly through
a Subsidiary or Subsidiaries at least a majority (by number of votes or
controlling interests) of the outstanding Voting Interests.
Survey. An instrument survey of Mortgaged Property prepared by a
registered land surveyor which shall show the location of all buildings,
structures, easements and utility lines on such property, shall be
sufficient to remove the standard survey exception from the Title Policy,
shall show that all buildings and structures are within the lot lines of
the Mortgaged Property and shall not show any encroachments by others (or
to the extent any encroachments are shown, such encroachments shall be
acceptable to the Agent in its sole discretion), shall show rights of way,
adjoining sites, establish building lines and street lines, the distance
to, and names of the nearest intersecting streets and such other details as
the Agent may reasonably require; shall show the zoning district or
districts in which the Mortgaged Property is located and shall show whether
or not the Mortgaged Property is located in a flood hazard district as
established by the Federal Emergency Management Agency or any successor
agency or is located in any flood plain, flood hazard or wetland protection
district established under federal, state or local law and shall otherwise
be in form and substance reasonably satisfactory to the Agent.
Surveyor Certification. With respect to each parcel of Mortgaged
Property, a certificate executed by the surveyor who prepared the Survey
with respect thereto, dated as of a recent date and containing such
information relating to such parcel as the Majority Banks or the Title
Insurance Company may reasonably require, such certificate to be reasonably
satisfactory to the Agent in form and substance.
Title Insurance Company. Commonwealth Land Title Insurance Company or
another title insurance company or companies reasonably approved by the
Agent.
Title Policy. With respect to each parcel of Mortgaged Property, an
ALTA standard form title insurance policy (or, if such form is not
available, an equivalent form of or legally promulgated form of mortgagee
title insurance policy reasonably acceptable to the Agent) issued by a
Title Insurance Company (with such reinsurance or co-insurance as the Agent
may require, any such reinsurance to be with direct access endorsements to
the extent available under applicable law) in such amount as the Agent may
require insuring the priority of the Security Deeds and that the Borrower
holds marketable fee simple title to such parcel, subject only to the
encumbrances permitted by the Security Deed and which shall not contain
standard exceptions for mechanics liens, persons in occupancy (other than
tenants as tenants only under Leases) or matters which would be shown by a
survey, shall not insure over any matter except to the extent that any such
affirmative insurance is acceptable to the Agent in its sole discretion,
and shall contain such endorsements and affirmative insurance as the Agent
reasonably may require and is available in the State in which the Mortgaged
Property is located, including but not limited to (i) a comprehensive
endorsement, (ii) a "pending disbursements" clause, (iii) a usury
endorsement, (iv) a doing business endorsement, (v) in States where
available, an ALTA form 3.1 zoning endorsement, (vi) a "tie-in"
endorsement, and (vii) a "first loss" endorsement.
Total Commitment. The sum of the Commitments of the Banks, as in
effect from time to time.
Type. As to any Loan, its nature as a Base Rate Loan or a Eurodollar
Rate Loan.
Voting Interests. Stock or similar ownership interests, of any class
or classes (however designated), the holders of which are at the time
entitled, as such holders, (a) to vote for the election of a majority of
the directors (or persons performing similar functions) of the corporation,
association, partnership, trust or other business entity involved, or (b)
to control, manage, or conduct the business of the corporation,
partnership, association, trust or other business entity involved.
Wellsford Commercial. Wellsford Commercial Property Trust, a Maryland
real estate investment trust.
WHWEL. WHWEL Real Estate Limited Partnership, a Delaware limited
partnership.
Section 1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted successors
and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by generally accepted accounting principles
applied on a consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) The words "approval" and "approved", as the context so
determines, means an approval in writing given to the party seeking
approval after full and fair disclosure to the party giving approval of all
material facts necessary in order to determine whether approval should be
granted.
(h) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the State of New York, have the meanings
assigned to them therein.
(i) Reference to a particular "Section ", refers to that
section of this Agreement unless otherwise indicated.
(j) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Agreement as a whole and not to any particular
section or subdivision of this Agreement.
Section 2. THE TERM LOAN.
Section 2.1. Commitment to Lend. Subject to the terms and
conditions set forth in this Agreement, each of the Banks severally agrees
to lend to the Borrower, and the Borrower may borrow (but shall not be able
to repay and reborrow) from time to time between the Closing Date and the
date two hundred and seventy (270) days following the Closing Date upon
notice by the Borrower to the Agent given in accordance with Section 2.6
and Section 5.4, such sums as are requested by the Borrower for the
purposes set forth in Section 7.11 up to the lesser of (a) a maximum
aggregate principal amount outstanding (after giving effect to all amounts
requested) at any one time equal to such Bank's Commitment and (b) such
Bank's Commitment Percentage of the aggregate Designated Collateral Value;
provided, that, in all events no Default or Event of Default shall have
occurred and be continuing; and provided, further, that the outstanding
principal amount of the Loans (after giving effect to all amounts
requested) shall not at any time exceed the Total Commitment. The Loans
shall be made pro rata in accordance with each Bank's Commitment
Percentage. The Loan Request shall constitute a representation and
warranty by the Borrower that all of the conditions set forth in Section
10 and Section 11, in the case of the initial Loan, and Section 11, in
the case of all other Loans, have been satisfied on the date of such
funding.
Section 2.2. Intentionally Omitted.
Section 2.3. Intentionally Omitted.
Section 2.4. Notes. The Loans shall be evidenced by a single
promissory note of the Borrower to each Bank in substantially the form of
Exhibit A hereto (collectively, the "Notes"), dated as of the Closing Date
and completed with appropriate insertions. One Note shall be payable to
the order of each Bank in the principal amount equal to such Bank's
Commitment or, if less, the outstanding amount of all Loans made by such
Bank, plus interest accrued thereon, as set forth below. The Borrower
irrevocably authorizes the Agent to make or cause to be made, at or about
the time of the Drawdown Date of any Loan or at the time of receipt of any
payment of principal thereof, an appropriate notation on the Agent's Record
reflecting the making of such Loan or (as the case may be) the receipt of
such payment. The outstanding amount of the Loans set forth on the Agent's
Record shall be prima facie evidence of the principal amount thereof owing
and unpaid to each Bank, but the failure to record, or any error in so
recording, any such amount on the Agent's Record shall not limit or
otherwise affect the obligations of the Borrower hereunder or under any
Note to make payments of principal of or interest on any Note when due.
Section 2.5. Interest on Loans.
(a) Each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the date on which
such Base Rate Loan is converted to a Eurodollar Rate Loan at a rate per
annum equal to the Base Rate.
(b) Each Eurodollar Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of the
Interest Period with respect thereto at a rate per annum equal to the sum
of the Eurodollar Rate determined for such Interest Period plus one and
six-tenths percent (1.6%).
(c) The Borrower promises to pay interest on each Loan in
arrears on each Interest Payment Date with respect thereto.
(d) Base Rate Loans and Eurodollar Rate Loans may be converted
to Loans of the other Type as provided in Section 4.1.
Section 2.6. Requests for Loans. (a) With respect to each Loan,
including the initial Loan funded at the Closing Date, the Borrower shall
give to the Agent written notice in the form of Exhibit B hereto (or
telephonic notice confirmed in writing in the form of Exhibit B hereto) of
each Loan requested hereunder (a "Loan Request") no less than five (5)
Business Days prior to the proposed Drawdown Date. Each such notice shall
specify with respect to the requested Loan the proposed principal amount,
Drawdown Date, Interest Period (if applicable) and Type. Each such notice
shall also contain (i) a statement as to the purpose for which such advance
shall be used (which purpose shall be in accordance with the terms of
Section 7.11), (ii) in the case of any advance relating to any Capital
Improvement Project for a Mortgaged Property, a certification from the
Borrower that all materialmen, laborers, subcontractors and any other
parties who might or could claim statutory or common law liens and are
furnishing or have furnished material or labor to the Mortgaged Property,
as applicable, have been paid (or will be paid from the proceeds of the
requested advance) all amounts due for such labor and materials, and if
requested by the Agent, delivery to the Agent of affidavits, lien waivers
or other evidence reasonably satisfactory to the Agent evidencing the same,
and (iii) a certification by the chief financial or chief accounting
officer of the Borrower that the Borrower and the Guarantor are and will be
in compliance with all covenants under the Loan Documents after giving
effect to the making of such Loan. With respect to any Loan proposed to be
funded after the initial Loan funded at the Closing Date, the Borrower
shall have complied with all requirements set forth in Section 5.4 and the
Banks shall have granted their consent to and accepted the additional
Collateral for such Loan in accordance with the terms and conditions of
Section 5.4.
(b) Promptly upon receipt of any such notice, the Agent shall
notify each of the Banks thereof. Except as provided in this Section 2.6,
each such Loan Request shall be irrevocable and binding on the Borrower and
shall obligate the Borrower to accept the Loan requested from the Banks on
the proposed Drawdown Date, provided that, in addition to the Borrower's
other remedies against any Bank which fails to advance its proportionate
share of a requested Loan, such Loan Request may be revoked by the Borrower
by notice received by the Agent no later than the Drawdown Date if any Bank
fails to advance its proportionate share of the requested Loan in
accordance with the terms of this Agreement, provided further that the
Borrower shall be liable in accordance with the terms of this Agreement
(including, without limitation, amounts due pursuant to Section 4.8) to
any Bank which is prepared to advance its proportionate share of the
requested Loan for any costs, expenses or damages incurred by such Bank as
a result of the Borrower's election to revoke such Loan Request. Nothing
herein shall prevent the Borrower or the funding Banks from seeking
recourse against any Bank that fails to advance its proportionate share of
a requested Loan (but not any other Bank) as required by this Agreement for
the actual and consequential damages incurred by the Borrower (including,
without limitation, amounts required to be paid under this Agreement by the
Borrower to any Bank) and such funding Banks proximately caused by such
Bank that has failed to advance its proportionate share, provided that in
no event shall such Bank be liable for punitive or exemplary damages. The
Borrower may without cost or penalty revoke a Loan Request by delivering
notice thereof to each of the Banks no later than three (3) Business Days
prior to the Drawdown Date. Each Loan Request shall be (a) for a Base Rate
Loan in a minimum aggregate amount of $1,000,000 or an integral multiple of
$100,000 in excess thereof, or (b) for a Eurodollar Rate Loan in a minimum
aggregate amount of $2,000,000 or an integral multiple of $100,000 in
excess thereof; provided, however, that there shall be no more than five
(5) Eurodollar Rate Loans outstanding at any one time. In the event that
the proceeds from such Loan are to be used for a purpose other than a
Capital Improvement Project, then the Borrower shall provide to the Agent
as soon as practicable thereafter such evidence as the Agent shall
reasonably require to evidence that such funds have been used for such
purpose (which evidence may include, without limitation, a closing
statement).
Section 2.7. Funds for Loans.
(a) Not later than 11:00 a.m. (Boston time) on the proposed
Drawdown Date of any Loans, each of the Banks will make available to the
Agent, at the Agent's Head Office, in immediately available funds, the
amount of such Bank's Commitment Percentage of the amount of the requested
Loans which may be disbursed pursuant to Section 2.1. Upon receipt from
each Bank of such amount, and upon receipt of the documents required by
Section 10 and Section 11 and the satisfaction of the other conditions
set forth therein, to the extent applicable, the Agent will make available
to the Borrower the aggregate amount of such Loans made available to the
Agent by the Banks by crediting such amount to the account of the Borrower
maintained at the Agent's Head Office. The failure or refusal of any Bank
to make available to the Agent at the aforesaid time and place on any
Drawdown Date the amount of its Commitment Percentage of the requested
Loans shall not relieve any other Bank from its several obligation
hereunder to make available to the Agent the amount of such other Bank's
Commitment Percentage of any requested Loans, including any additional
Loans that may be requested subject to the terms and conditions hereof to
provide funds to replace those not advanced by the Bank so failing or
refusing, provided that the Borrower may by notice received by the Agent no
later than the Drawdown Date refuse to accept any Loan which is not fully
funded in accordance with the Borrower's Loan Request subject to the terms
of Section 2.6. In the event of any such failure or refusal, the Banks
not so failing or refusing shall be entitled to a priority secured position
as against the Bank or Banks so failing or refusing for such Loans as
provided in Section 12.4.
(b) Unless Agent shall have been notified by any Bank prior to
the applicable Drawdown Date that such Bank will not make available to
Agent such Bank's pro rata share of a proposed Loan, Agent may in its
discretion assume that such Bank has made such Loan available to Agent in
accordance with the provisions of this Agreement and Agent may, if it
chooses, in reliance upon such assumption make such Loan available to
Borrower, and such Bank shall be liable to the Agent for the amount of such
advance.
Section 3. REPAYMENT OF THE LOANS.
Section 3.1. Stated Maturity. The Borrower promises to pay on the
Maturity Date, and there shall become absolutely due and payable on the
Maturity Date, all of the Loans outstanding on such date, together with any
and all accrued and unpaid interest thereon.
Section 3.2. Intentionally Omitted.
Section 3.3. Optional Prepayments. The Borrower shall not have the
right at any time prior to the first (1st) anniversary of the Closing Date
to prepay the Loans, as a whole or in part. At any time after the first
(1st) anniversary of the Closing Date, the Borrower shall have the right,
at the Borrower's election, to prepay the outstanding amount of the Loans,
as a whole or in part, at any time without penalty or premium; provided,
that the full or partial prepayment of the outstanding amount of any
Eurodollar Rate Loans pursuant to this Section 3.3 may be made only on the
last day of the Interest Period relating thereto except as otherwise
required pursuant to Section 4.7 unless payment is first made of any
amounts payable pursuant to Section 4.8. The Borrower shall give the
Agent, no later than 10:00 a.m., Boston time, at least three (3) Business
Days prior written notice of any prepayment pursuant to this Section 3.3
of any Base Rate Loans and at least four Eurodollar Business Days notice of
any proposed repayment pursuant to this Section 3.3 of Eurodollar Rate
Loans, in each case specifying the proposed date of payment of Loans and
the principal amount to be paid.
Section 3.4. Partial Prepayments. Each partial prepayment of the
Loans under Section 3.3 shall be in an integral multiple of $100,000,
shall be accompanied by the payment of accrued interest on the principal
prepaid to the date of payment and, after payment of such interest, shall
be applied, in the absence of instruction by the Borrower, first to the
principal of Base Rate Loans and then to the principal of Eurodollar Rate
Loans.
Section 3.5. Effect of Prepayments. No amounts of the Loans prepaid
under Section 3.3 prior to the Maturity Date may be reborrowed.
Section 4. CERTAIN GENERAL PROVISIONS.
Section 4.1. Conversion Options.
(a) The Borrower may elect from time to time to convert any
outstanding Loan to a Loan of another Type and such Loan shall thereafter
bear interest as a Base Rate Loan or a Eurodollar Rate Loan, as applicable;
provided that (i) with respect to any such conversion of a Eurodollar Rate
Loan to a Base Rate Loan, the Borrower shall give the Agent at least three
Business Days' prior written notice of such election, and such conversion
shall only be made on the last day of the Interest Period with respect to
such Eurodollar Rate Loan; (ii) with respect to any such conversion of a
Base Rate Loan to a Eurodollar Rate Loan, the Borrower shall give the Agent
at least four Eurodollar Business Days' prior written notice of such
election and the Interest Period requested for such Loan, the principal
amount of the Loan so converted shall be in a minimum aggregate amount of
$2,000,000 or an integral multiple of $100,000 in excess thereof and, after
giving effect to the making of such Loan, there shall be no more than five
(5) Eurodollar Rate Loans outstanding at any one time; and (iii) no Loan
may be converted into a Eurodollar Rate Loan when any Default or Event of
Default has occurred and is continuing. All or any part of the outstanding
Loans of any Type may be converted as provided herein, provided that no
partial conversion shall result in a Base Rate Loan in an aggregate
principal amount of less than $1,000,000 or a Eurodollar Rate Loan in an
aggregate principal amount of less than $2,000,000 and that the aggregate
principal amount of each Loan shall be in an integral multiple of $100,000.
On the date on which such conversion is being made, each Bank shall take
such action as is necessary to transfer its Commitment Percentage of such
Loans to its Domestic Lending Office or its Eurodollar Lending Office, as
the case may be. Each Conversion Request relating to the conversion of a
Base Rate Loan to a Eurodollar Rate Loan shall be irrevocable by the
Borrower.
(b) Any Loan may be continued as such Type upon the expiration
of an Interest Period with respect thereto by compliance by the Borrower
with the terms of Section 4.1; provided that no Eurodollar Rate Loan may
be continued as such when any Default of the type described in subsections
(a), (b), (c) or (d) of Section 12.1 or Event of Default has occurred and
is continuing, but shall be automatically converted to a Base Rate Loan on
the last day of the Interest Period relating thereto ending during the
continuance of any Default or Event of Default.
(c) In the event that the Borrower does not notify the Agent of
its election hereunder with respect to any Loan, such Loan shall be
automatically converted to a Base Rate Loan at the end of the applicable
Interest Period.
Section 4.2. Closing Fee. The Borrower agrees to pay, on or before
the Closing Date, to the Agent for the ratable account of the Banks a
closing fee as specified in the Agreement Regarding Fees.
Section 4.3. Agent's Fee. The Borrower shall pay to the Agent, for
the Agent's own account, an Agent's fee as specified in the Agreement
Regarding Fees.
Section 4.4. Funds for Payments.
(a) All payments of principal, interest, facility fees, Agent's
fees, closing fees and any other amounts due hereunder or under any of the
other Loan Documents shall be made to the Agent, for the respective
accounts of the Banks and the Agent, as the case may be, at the Agent's
Head Office, not later than 12:00 Noon (Boston time) on the day when due,
in each case in immediately available funds. The Agent is hereby
authorized to charge the account of the Borrower with BKB, on the dates
when the amount thereof shall become due and payable, with the amounts of
the principal of and interest on the Loans and all fees, charges, expenses
and other amounts owing to the Agent and/or the Banks under the Loan
Documents.
(b) All payments by the Borrower hereunder and under any of the
other Loan Documents shall be made without setoff or counterclaim and free
and clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any
jurisdiction or any political subdivision thereof or taxing or other
authority therein unless the Borrower is compelled by law to make such
deduction or withholding. If any such obligation is imposed upon the
Borrower with respect to any amount payable by it hereunder or under any of
the other Loan Documents, the Borrower will pay to the Agent, for the
account of the Banks or (as the case may be) the Agent, on the date on
which such amount is due and payable hereunder or under such other Loan
Document, such additional amount in Dollars as shall be necessary to enable
the Banks or the Agent to receive the same net amount which the Banks or
the Agent would have received on such due date had no such obligation been
imposed upon the Borrower. The Borrower will deliver promptly to the Agent
certificates or other valid vouchers for all taxes or other charges
deducted from or paid with respect to payments made by the Borrower
hereunder or under such other Loan Document.
Section 4.5. Computations. All computations of interest on the
Loans and of other fees to the extent applicable shall be based on a
360-day year and paid for the actual number of days elapsed. Except as
otherwise provided in the definition of the term "Interest Period" with
respect to Eurodollar Rate Loans, whenever a payment hereunder or under any
of the other Loan Documents becomes due on a day that is not a Business
Day, the due date for such payment shall be extended to the next succeeding
Business Day, and interest shall accrue during such extension. The
outstanding amount of the Loans as reflected on the records of the Agent
from time to time shall be considered prima facie evidence of such amount.
Section 4.6. Inability to Determine Eurodollar Rate. In the event
that, prior to the commencement of any Interest Period relating to any
Eurodollar Rate Loan, the Agent shall determine that adequate and
reasonable methods do not exist for ascertaining the Eurodollar Rate for
such Interest Period, the Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrower and
the Banks) to the Borrower and the Banks. In such event (a) any Loan
Request with respect to Eurodollar Rate Loans shall be automatically
withdrawn and shall be deemed a request for Base Rate Loans and (b) each
Eurodollar Rate Loan will automatically, on the last day of the then
current Interest Period thereof, become a Base Rate Loan, and the
obligations of the Banks to make Eurodollar Rate Loans shall be suspended
until the Agent determines that the circumstances giving rise to such
suspension no longer exist, whereupon the Agent shall so notify the
Borrower and the Banks.
Section 4.7. Illegality. Notwithstanding any other provisions
herein, if any present or future law, regulation, treaty or directive or
the interpretation or application thereof shall make it unlawful, or any
central bank or other governmental authority having jurisdiction over a
Bank or its Eurodollar Lending Office shall assert that it is unlawful, for
any Bank to make or maintain Eurodollar Rate Loans, such Bank shall
forthwith give notice of such circumstances to the Agent and the Borrower
and thereupon (a) the commitment of the Banks to make Eurodollar Rate Loans
or convert Loans of another type to Eurodollar Rate Loans shall forthwith
be suspended and (b) the Eurodollar Rate Loans then outstanding shall be
converted automatically to Base Rate Loans on the last day of each Interest
Period applicable to such Eurodollar Rate Loans or within such earlier
period as may be required by law.
Section 4.8. Additional Interest. If any Eurodollar Rate Loan or
any portion thereof is repaid or is converted to a Base Rate Loan for any
reason on a date which is prior to the last day of the Interest Period
applicable to such Eurodollar Rate Loan, the Borrower will pay to the Agent
upon demand for the account of the Banks in accordance with their
respective Commitment Percentages, in addition to any amounts of interest
otherwise payable hereunder, any amounts required to compensate the Banks
for any losses, costs or expenses which may reasonably be incurred as a
result of such payment or conversion, including, without limitation, an
amount equal to daily interest for the unexpired portion of such Interest
Period on the Eurodollar Rate Loan or portion thereof so repaid or
converted at a per annum rate equal to the excess, if any, of (a) the
interest rate calculated on the basis of the Eurodollar Rate applicable to
such Eurodollar Rate Loan minus (b) the yield obtainable by the Agent upon
the purchase of debt securities customarily issued by the Treasury of the
United States of America which have a maturity date most closely
approximating the last day of such Interest Period (it being understood
that the purchase of such securities shall not be required in order for
such amounts to be payable and that a Bank shall not be obligated or
required to have actually obtained funds at the Eurodollar Rate).
Section 4.9. Additional Costs, Etc. Notwithstanding anything herein
to the contrary, if any future applicable law or any amendment or
modification of present applicable law which expression, as used herein,
includes statutes, rules and regulations thereunder and legally binding
interpretations thereof by any competent court or by any governmental or
other regulatory body or official with appropriate jurisdiction charged
with the administration or the interpretation thereof and requests,
directives, instructions and notices at any time or from time to time
hereafter made upon or otherwise issued to any Bank or the Agent by any
central bank or other fiscal, monetary or other authority (whether or not
having the force of law), shall:
(a) subject any Bank or the Agent to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature with respect to
this Agreement, the other Loan Documents, such Bank's Commitment or the
Loans (other than taxes based upon or measured by the income or profits of
such Bank or the Agent), or
(b) materially change the basis of taxation (except for changes
in taxes on income or profits) of payments to any Bank of the principal of
or the interest on any Loans or any other amounts payable to any Bank under
this Agreement or the other Loan Documents, or
(c) impose or increase or render applicable any special deposit,
reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held
by, or deposits in or for the account of, or loans by, or commitments of an
office of any Bank beyond those in effect as of the date hereof, or
(d) impose on any Bank or the Agent any other conditions or
requirements with respect to this Agreement, the other Loan Documents, the
Loans, such Bank's Commitment, or any class of loans or commitments of
which any of the Loans or such Bank's Commitment forms a part; and the
result of any of the foregoing is
(i) to increase the cost to any Bank of making, funding,
issuing, renewing, extending or maintaining any of the Loans or such
Bank's Commitment, or
(ii) to reduce the amount of principal, interest or other
amount payable to such Bank or the Agent hereunder on account of such
Bank's Commitment or any of the Loans, or
(iii) to require such Bank or the Agent to make any
payment or to forego any interest or other sum payable hereunder, the
amount of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum receivable or
deemed received by such Bank or the Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, within fifteen (15) days of
demand made by such Bank or (as the case may be) the Agent at any time and
from time to time and as often as the occasion therefor may arise, pay to
such Bank or the Agent such additional amounts as such Bank or the Agent
shall determine in good faith to be sufficient to compensate such Bank or
the Agent for such additional cost, reduction, payment or foregone interest
or other sum. Each Bank and the Agent in determining such amounts may use
any reasonable averaging and attribution methods, generally applied by such
Bank or the Agent.
Section 4.10. Capital Adequacy. If after the date hereof any Bank
determines that (a) the adoption of or change in any law, rule, regulation
or guideline regarding capital requirements of general application for
banks or bank holding companies or any change in the interpretation or
application thereof by any governmental authority charged with the
administration thereof, or (b) compliance by such Bank or its parent bank
holding company with any future guideline, request or directive of any such
entity regarding capital adequacy or any amendment or change in
interpretation of any existing guideline, request or directive (whether or
not having the force of law), has the effect of reducing the return on such
Bank's or such holding company's capital as a consequence of such Bank's
commitment to make Loans hereunder to a level below that which such Bank or
holding company could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's or such holding company's
then existing policies with respect to capital adequacy and assuming the
full utilization of such entity's capital) by any amount deemed by such
Bank to be material, then such Bank may notify the Borrower thereof. The
Borrower agrees to pay to such Bank the amount of such reduction in the
return on capital as and when such reduction is determined, upon
presentation by such Bank of a statement of the amount setting for the
Bank's calculation thereof. In determining such amount, such Bank may use
any reasonable averaging and attribution methods, generally applied by such
Bank or the Agent.
Section 4.11. Indemnity of Borrower. The Borrower agrees to
indemnify each Bank and to hold each Bank harmless from and against any
loss, cost or expense that such Bank may sustain or incur as a consequence
of (a) default by the Borrower in payment of the principal amount of or any
interest on any Eurodollar Rate Loans as and when due and payable,
including any such loss or expense arising from interest or fees payable by
such Bank to lenders of funds obtained by it in order to maintain its
Eurodollar Rate Loans, or (b) default by the Borrower in making a borrowing
or conversion after the Borrower has given (or is deemed to have given) a
Loan Request or a Conversion Request; provided, however, that the Borrower
shall not be required to so indemnify any Bank pursuant to clause (b) above
which fails or refuses to fund its proportionate share of a Loan in
accordance with the terms of this Agreement.
Section 4.12. Interest on Overdue Amounts; Late Charge. Overdue
principal and (to the extent permitted by applicable law) interest on the
Loans and all other overdue amounts payable hereunder or under any of the
other Loan Documents shall bear interest payable on demand at a rate per
annum equal to four percent (4.0%) above the Base Rate from the date due
until such amount shall be paid in full (after as well as before judgment).
In addition, the Borrower shall pay a late charge equal to three percent
(3.0%) of any amount of interest and/or principal payable on the Loans or
any other amounts payable hereunder or under the Loan Documents, which is
not paid within ten days of the date when due.
Section 4.13. Intentionally Omitted.
Section 4.14. Certificate. A certificate setting forth any amounts
payable pursuant to Section 4.8, Section 4.9, Section 4.10, Section
4.11 or Section 4.12 and a brief explanation of such amounts which are
due, submitted by any Bank or the Agent to the Borrower, shall be
conclusive in the absence of manifest error.
Section 4.15. Limitation on Interest. Notwithstanding anything in
this Agreement to the contrary, all agreements between the Borrower and the
Banks and the Agent, whether now existing or hereafter arising and whether
written or oral, are hereby limited so that in no contingency, whether by
reason of acceleration of the maturity of any of the Obligations or
otherwise, shall the interest contracted for, charged or received by the
Banks exceed the maximum amount permissible under applicable law. If, from
any circumstance whatsoever, interest would otherwise be payable to the
Banks in excess of the maximum lawful amount, the interest payable to the
Banks shall be reduced to the maximum amount permitted under applicable
law; and if from any circumstance the Banks shall ever receive anything of
value deemed interest by applicable law in excess of the maximum lawful
amount, an amount equal to any excessive interest shall be applied to the
reduction of the principal balance of the Obligations and to the payment of
interest or, if such excessive interest exceeds the unpaid balance of
principal of the Obligations, such excess shall be refunded to the
Borrower. All interest paid or agreed to be paid to the Banks shall, to
the extent permitted by applicable law, be amortized, prorated, allocated
and spread throughout the full period until payment in full of the
principal of the Obligations (including the period of any renewal or
extension thereof) so that the interest thereon for such full period shall
not exceed the maximum amount permitted by applicable law. This section
shall control all agreements between the Borrower and the Banks and the
Agent.
Section 4.16. Certain Provisions Relating to Increased Costs. If
any Bank requests compensation for any losses or costs to be reimbursed
pursuant to any one or more of the provisions of Section 4.9 or Section
4.10, then, upon request of Borrower, such Bank shall use reasonable
efforts in a manner consistent with such institution's practice in
connection with loans like the Loan to eliminate, mitigate or reduce
amounts that would otherwise be payable by Borrower under the foregoing
provisions, provided that such action would not be otherwise prejudicial to
such Bank, including, without limitation, by designating another of such
Bank's offices, branches or affiliates; the Borrower agreeing to pay all
reasonably incurred costs and expenses incurred by such Bank in connection
with any such action. Notwithstanding anything to the contrary contained
herein, if no Default or Event of Default shall have occurred and be
continuing, and if any Bank has requested payment or compensation for any
losses or costs to be reimbursed pursuant to any one or more of the
provisions of Section 4.9 or Section 4.10 (each, an "Affected Bank"),
then, within thirty (30) days after such request for payment or
compensation, Borrower shall have the one-time right as to such Affected
Bank, to be exercised by delivery of written notice delivered to the Agent
and the Affected Bank within thirty (30) days of receipt of such notice, to
elect to cause the Affected Bank to transfer its Commitment. The Agent
shall promptly notify the remaining Banks that each of such Banks shall
have the right, but not the obligation, to acquire a portion of the
Commitment, pro rata based upon their relevant Commitment Percentages, of
the Commitment of the Affected Bank (or if any of such Banks does not elect
to purchase its pro rata share, then to such remaining Banks in such
proportion as approved by the Agent). In the event that the Banks do not
elect to acquire all of the Affected Bank's Commitment, then the Agent
shall endeavor to obtain a new Bank to acquire such remaining Commitment.
Upon any such purchase of the Commitment of the Affected Bank, the Affected
Bank's interest in the Obligations and its rights hereunder and under the
Loan Documents shall terminate at the date of purchase, and the Affected
Bank shall promptly execute all documents reasonably requested to surrender
and transfer such interest. The purchase price for the Affected Bank's
Commitment shall equal any and all amounts outstanding and owed by Borrower
to the Affected Bank, including principal and all accrued and unpaid
interest or fees.
Section 5. COLLATERAL SECURITY.
Section 5.1. Collateral. The Obligations shall be secured by (i) a
perfected first priority lien or security title to be held by the Agent for
the benefit of the Banks in the Mortgaged Property pursuant to the terms of
the Security Deeds, (ii) a perfected first priority security interest to be
held by the Agent for the benefit of the Banks in the Leases pursuant to
the Assignments of Rents and Leases, (iii) the Indemnity Agreement, and
(iv) such additional collateral, if any, as the Agent for the benefit of
the Banks from time to time may accept as security for the Obligations with
the consent of the Majority Banks, which consent may be given or withheld
in the sole discretion of the Majority Banks. The Obligations shall also
be guaranteed pursuant to the Guaranty.
Section 5.2. Appraisals.
(a) The Agent on behalf of the Banks shall require biennial
Appraisals of each of the Mortgaged Property, which will be ordered by the
Agent and reviewed and approved by the appraisal departments of the
Majority Banks, in order to determine the current Appraised Value of the
Mortgaged Property, and the Borrower shall pay to the Agent on demand all
reasonable costs of all such Appraisals; provided, however, that so long as
no Default or Event of Default shall have occurred and be continuing and
regulatory requirements of any Bank generally applicable to real estate
loans of the category made under this Agreement as reasonably interpreted
by such Bank shall not require more frequent Appraisals, and except as
required with respect to the addition of Eligible Real Estate as a
Mortgaged Property under Section 5.4, the Borrower shall not be required
to pay for Appraisals more often than once in any 24-month period, with the
result that unless such condition shall occur the first Appraisals for
which the Borrower shall be financially responsible after the Closing Date
shall not be required prior to the second anniversary of the date of this
Agreement.
(b) Notwithstanding the provisions of Section 5.2(a), the Agent
may obtain Appraisals or perform internal studies updating and revising
prior Appraisals with respect to the Mortgaged Property or such portion
thereof as the Majority Banks shall determine, for the purpose of
determining the current Appraised Value of the Mortgaged Property (i) at
any time following a partial condemnation of or uninsured casualty to a
Mortgaged Property (provided that such Appraisal shall be limited to the
affected property). The expense of such Appraisals and updates performed
pursuant to this Section 5.2(b) shall be borne by the Borrower.
Section 5.3. Release of Collateral. Provided no Default or Event of
Default shall have occurred hereunder and be continuing (or would exist
immediately after giving effect to the transactions contemplated by this
Section 5.3 except as provided in this Section 5.3), the Agent shall
release a Mortgaged Property from the lien of the Security Documents
encumbering the same upon the request of the Borrower and upon the
following terms and conditions:
(a) The Borrower shall deliver to the Agent written notice of
its desire to obtain each such release no later than fifteen (15) days
prior to the date on which each such release is to be effected together
with evidence satisfactory to the Agent that such release is to facilitate
a sale of such Mortgaged Property to an unrelated third party in a bona-
fide arms-length transaction for a cash sales price; and
(b) The Borrower shall submit to the Agent with such request a
Compliance Certificate prepared using the financial statements of the
Borrower most recently provided or required to be provided to the Agent
under Section 6.4 or Section 7.4 adjusted in the best good faith estimate
of the Borrower to give effect to the proposed release and demonstrating
that no Default or Event of Default with respect to the covenants referred
to therein shall exist after giving effect to such release; and
(c) The Borrower shall pay all reasonable costs and expenses of
the Agent in connection with such release, including without limitation,
reasonable attorney's fees; and
(d) The Borrower shall pay to the Agent for the account of the
Banks, which payment shall be applied to reduce the outstanding principal
balance of the Loans, a release price equal to one hundred twenty percent
(120%) of the Designated Collateral Value of such Mortgaged Property. In
the event of a release pursuant to this 5.3, the amount of the Total
Commitment shall be reduced by an amount equal to twenty percent (20%) of
the Designated Collateral Value of the Mortgaged Property so released
without reducing the Designated Collateral Value of the remaining Mortgaged
Properties for purposes of calculating release prices. Notwithstanding the
foregoing, the vacant land described on Schedule 5.3 hereto comprising part
of the Mortgaged Property commonly known as Greenbrook Corporate Center
shall be released upon the payment to the Agent for the account of the
Banks an amount (without premium) equal to the amount allocated to such
vacant land in the Appraisal of such Mortgaged Property (as most recently
determined pursuant to this Agreement) upon the sale of such land to an
unrelated third party, provided that the Borrower shall submit to the Agent
with the request for the release of such land (A) a survey satisfactory to
Agent showing such land that Borrower desires to release from the Security
Documents and such other evidence as Agent may reasonably require to show
the availability of unrestricted (whether by private agreement or
governmental provision) direct access to public roads and utilities from
all unreleased portions of such Mortgaged Property, (B) a certification
from Borrower that the conveyance by Borrower of such land which is
requested to be released will not violate the terms of any lease,
agreement, ordinance or restriction by which such Mortgaged Property is
subject, and (C) evidence of the proper subdivision of the property to be
released. Such payments shall be applied to reduce the outstanding
principal balance of the Loans; provided, that the Borrower shall not be
required to make a payment which would reduce the principal balance below
zero.
(e) No release of a Mortgaged Property from the lien of the
Security Documents encumbering the same shall be granted by Lender prior to
the first anniversary of the Closing Date, unless the release payment
applicable thereto pursuant to Section 5.3(d) hereinabove shall be
deposited into an account of the Agent or other cash collateral vehicle
acceptable to Agent in its sole discretion, which shall be pledged to the
Agent, pursuant to documentation acceptable to Agent in its sole
discretion, for the account of the Banks as security for the Obligations
and which shall not be applied against or reduce the Outstanding Loans,
unless the Agent shall otherwise so elect in its sole discretion.
Section 5.4. Subsequent Loans; Additional Collateral.
(a) In the event the Borrower wishes to borrow any sums
hereunder after the Closing Date, the Borrower may request such Loan upon
the following terms and conditions and the addition of such Collateral for
such requested Loan shall not increase the Designated Collateral Value and
the amounts available to be borrowed by the Borrower unless each of the
following conditions shall be satisfied:
(i) the proposed additional Collateral for such Loan shall
be Eligible Real Estate to be purchased by the Borrower from the
Revolver Borrower or a third party and upon funding of such Loan shall
become a Mortgaged Property;
(ii) no Default or Event of Default shall have occurred or
exist or would occur or exist if such proposed additional Collateral
were included within the Collateral and the requested Loan fully
funded, including, without limitation, under Section 9.4;
(iii) the Borrower shall have executed and delivered to
the Agent all Eligible Real Estate Qualification Documents or other
instruments, documents, or agreements, including Uniform Commercial
Code financing statements, as the Agent shall deem necessary or
desirable to perfect a first priority security interest in, or lien
on, such Collateral, all of which instruments, documents or agreements
shall be in form and substance satisfactory to the Agent in its sole
discretion; and
(iv) the Agent, on behalf of the Banks, shall have received
any other appraisals, surveys, rent rolls, environmental reports,
title insurance reports, certificates, opinions or other information
or documentation with respect to the Collateral as the Agent, in its
sole discretion, shall deem necessary or desirable.
The Borrower acknowledges that the decision of all of the Banks to
grant or withhold their consent to the acceptance of additional Collateral
under this Section 5.4 and the funding of such requested Loan shall be
based entirely on such factors as the Majority Banks deem relevant in their
sole discretion, including, without limitation, those enumerated in clauses
(i) through (iv) hereinabove, and such consent may be granted or withheld
solely at the discretion of the Majority Banks. The Borrower further
acknowledges that no such requests for fundings of additional Loans after
the initial Loan funded at the Closing Date shall be approved or funded by
the Banks unless the Banks shall have received all required information and
shall have had sufficient time prior to the expiry of the time period
during which such additional Loans are available under Section 2.1 to
complete all underwriting matters and reviewed all materials and
information required to be delivered by Borrower with respect to the
Eligible Real Estate proposed as additional Collateral for the Loans.
(b) In connection with each such item of Eligible Real Estate,
the Borrower shall pay to the Agent the reasonable out-of-pocket costs and
expenses (including reasonable attorney's fees and expenses) of the Agent
in connection with the addition of such Collateral.
(c) In no event shall the acquisition cost of any Mortgaged
Property exceed $40,000,000.00.
Section 6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Agent and the Banks as
follows.
Section 6.1. Corporate Authority, Etc.
(a) Incorporation; Good Standing. The Borrower is a limited
liability company duly organized pursuant to its organizational documents
and amendments thereto filed with the Secretary of State of Delaware and is
validly existing and in good standing under the laws of the State of
Delaware. The Revolver Borrower is a limited liability company duly
organized pursuant to its organizational documents and amendments thereto
filed with the Secretary of State of Delaware and is validly existing and
in good standing under the laws of the State of Delaware. Borrower (i) has
all requisite power to own its property and conduct its business as now
conducted and as presently contemplated, and (ii) is in good standing as a
foreign entity and is duly authorized to do business in the jurisdictions
where the Mortgaged Property is located and in each other jurisdiction
where a failure to be so qualified in such other jurisdiction could have a
materially adverse effect on the business, assets or financial condition of
such Person. Borrower is a qualified subsidiary of a real estate
investment trust within the meaning of the Code.
(b) Intentionally Omitted.
(c) Authorization. The execution, delivery and performance of
this Agreement and the other Loan Documents to which the Borrower or the
Guarantor is or is to become a party and the transactions contemplated
hereby and thereby (i) are within the authority of the such Person, (ii)
have been duly authorized by all necessary proceedings on the part of such
Person, (iii) do not and will not conflict with or result in any breach or
contravention of any provision of law, statute, rule or regulation to which
such Person is subject or any judgment, order, writ, injunction, license or
permit applicable to such Person, (iv) do not and will not conflict with or
constitute a default (whether with the passage of time or the giving of
notice, or both) under any provision of the articles of incorporation ,
bylaws, or other charter documents of, or any agreement or other instrument
binding upon, such Person, or any of its properties, and (v) do not and
will not result in or require the imposition of any lien or other
encumbrance on any of the properties, assets or rights of the Borrower or
the Guarantor, as applicable.
(d) Enforceability. The execution and delivery of this
Agreement and the other Loan Documents to which the Borrower or the
Guarantor is or is to become a party are valid and legally binding
obligations of such Person enforceable in accordance with the respective
terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights and
except to the extent that availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the court
before which any proceeding therefor may be brought.
Section 6.2. Governmental Approvals. The execution, delivery and
performance by the Borrower of this Agreement and the other Loan Documents
and the transactions contemplated hereby and thereby do not require the
approval or consent of, or filing with, any governmental agency or
authority other than those already obtained and the filing of the Security
Documents in the appropriate records office with respect thereto.
Section 6.3. Title to Properties; Leases. The Borrower owns all of
the Mortgaged Properties, subject to no rights of others, including any
mortgages, leases, conditional sales agreements, title retention
agreements, liens or other encumbrances except Permitted Liens.
Section 6.4. Financial Statements. The Borrower has furnished to
each of the Banks: (a) an unaudited consolidated balance sheet and an
unaudited consolidated statement of income and cash flows of the Revolver
Borrower and its Subsidiaries (including the Borrower) as of the Balance
Sheet Date certified by Revolver Borrower's chief financial or chief
accounting officer to have been prepared in accordance with generally
accepted accounting principles and to fairly present the financial
condition of the Revolver Borrower and its Subsidiaries (including the
Borrower) as at the close of business on the dates thereof (subject to
year-end adjustments), and (b) an unaudited consolidated statement of
operating income for the Mortgaged Property satisfactory in form to the
Agent and certified by the Borrower's chief financial or accounting officer
as fairly presenting the operating income for such parcels for such
periods. Such balance sheet and statements of income, stockholder's equity
and cash flows have been prepared in accordance with generally accepted
accounting principles and fairly present the financial condition of the
Revolver Borrower and its Subsidiaries (including the Borrower) as of such
dates and the results of the operations of the Revolver Borrower and its
Subsidiaries (including the Borrower) for such periods. There are no
liabilities, contingent or otherwise, of the Revolver Borrower or any of
its Subsidiaries (including the Borrower) involving material amounts not
disclosed in said financial statements and the related notes thereto as of
their respective dates.
Section 6.5. No Material Adverse Changes. Since the Balance Sheet
Date, there has occurred no materially adverse change in the financial
condition or business of the Borrower, as shown on or reflected in the
consolidated balance sheet of the Revolver Borrower and its Subsidiaries
(including the Borrower) as of the Balance Sheet Date, other than changes
in the ordinary course of business that have not had any materially adverse
effect either individually or in the aggregate on the business or financial
condition of the Borrower taken as a whole.
Section 6.6. Franchises, Patents, Copyrights, Etc. The Borrower
possesses all franchises, patents, copyrights, trademarks, trade names,
service marks, licenses and permits, and rights in respect of the
foregoing, adequate for the conduct of their business substantially as now
conducted without known conflict with any rights of others.
Section 6.7. Litigation. Except as stated on Schedule 6.7 there are
no actions, suits, proceedings or investigations of any kind pending or
threatened against the Borrower before any court, tribunal or
administrative agency or board that, if adversely determined, might, either
in any case or in the aggregate, materially adversely affect the
properties, assets, financial condition or business of the Borrower or
materially impair the right of the Borrower to carry on business
substantially as now conducted by it, or result in any liability not
adequately covered by insurance, or for which adequate reserves are not
maintained on the balance sheet of the Borrower, or which question the
validity of this Agreement or any of the other Loan Documents, any action
taken or to be taken pursuant hereto or thereto or any lien or security
interest created or intended to be created pursuant hereto or thereto, or
which will adversely affect the ability of the Borrower to pay and perform
the Obligations in the manner contemplated by this Agreement and the other
Loan Documents.
Section 6.8. No Materially Adverse Contracts, Etc. The Borrower is
not subject to any charter, corporate or other legal restriction, or any
judgment, decree, order, rule or regulation that has or is expected in the
future to have a materially adverse effect on the business, assets or
financial condition of the Borrower. The Borrower is not a party to any
contract or agreement that has or is expected, in the judgment of the
officers of the Borrower, to have any materially adverse effect on the
business of the Borrower.
Section 6.9. Compliance with Other Instruments, Laws, Etc. The
Borrower is not in violation of any provision of its charter or other
organizational documents, by-laws, or any agreement or instrument to which
it may be subject or by which it or any of its properties may be bound or
any decree, order, judgment, statute, license, rule or regulation, in any
of the foregoing cases in a manner that could result in the imposition of
substantial penalties or materially and adversely affect the financial
condition, properties or business of the Borrower.
Section 6.10. Tax Status. The Borrower (a) has made or filed all
federal and state income and all other tax returns, reports and
declarations required by any jurisdiction to which it is subject, (b) has
paid all taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations, except
those being contested in good faith and by appropriate proceedings and (c)
has set aside on its books provisions reasonably adequate for the payment
of all taxes for periods subsequent to the periods to which such returns,
reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and
the officers of the Borrower know of no basis for any such claim.
Section 6.11. No Event of Default. No Default or Event of Default
has occurred and is continuing.
Section 6.12. Holding Company and Investment Company Acts. The
Borrower is not a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company", as such terms
are defined in the Public Utility Holding Company Act of 1935; nor is it an
"investment company", or an "affiliated company" or a "principal
underwriter" of an "investment company", as such terms are defined in the
Investment Company Act of 1940.
Section 6.13. Absence of UCC Financing Statements, Etc. Except with
respect to Permitted Liens, there is no financing statement, security
agreement, chattel mortgage, real estate mortgage or other document filed
or recorded with any filing records, registry, or other public office, that
purports to cover, affect or give notice of any present or possible future
lien on, or security interest or security title in, any of the Mortgaged
Property.
Section 6.14. Setoff, Etc. The Collateral and the rights of the
Agent and the Banks with respect to the Collateral are not subject to any
setoff, claims, withholdings or other defenses. The Borrower is the owner
of the Collateral free from any lien, security interest, encumbrance or
other claim or demand, except Permitted Liens.
Section 6.15. Certain Transactions. None of the officers, trustees,
directors, or employees of the Borrower is a party to any transaction with
the Borrower (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of
real or personal property to or from, or otherwise requiring payments to or
from any officer, trustee, director or such employee or, to the knowledge
of the Borrower, any corporation, partnership, trust or other entity in
which any officer, trustee, director, or any such employee has a
substantial interest or is an officer, director, trustee or partner.
Section 6.16. Employee Benefit Plans. The Borrower and each ERISA
Affiliate are in compliance in all material respects with ERISA. There has
been no Reportable Event with respect to any Employee Benefit Plan,
Multiemployer Plan or Guaranteed Pension Plan. There has been no
institution of proceedings or any other action by PBGC, the Borrower or any
ERISA Affiliate to terminate or withdraw or partially withdraw from any
such Plan under any circumstances which could lead to material liabilities
to PBGC or, with respect to a Multiemployer Plan, the "Reorganization" or
"Insolvency" (as each such term is defined in ERISA) of any such Plan. To
the best of the Borrower's knowledge, no "prohibited transaction" (within
the meaning of Section 406 of ERISA or Section 4975 of the Code) has
occurred with respect to any such Plan, and neither the consummation of the
transactions provided for in this Agreement and compliance by the Borrower
with the provisions hereof and the other Loan Documents will involve any
prohibited transaction.
Section 6.17. ERISA Taxes. Neither the Borrower nor any ERISA
Affiliate thereof is currently and the Borrower has no reason to believe
that the Borrower or any ERISA Affiliate thereof will become subject to any
liability (other than routine expenses or contributions relating to the
Plans set forth on Schedule 6.17, if timely paid), tax or penalty
whatsoever to any person whomsoever, which liability, tax or penalty is
directly or indirectly related to any Plans set forth on Schedule 6.17
including, but not limited to, any penalty or liability arising under Title
I or Title IV of ERISA, any tax or penalty resulting from a loss of
deduction under Section s 404 and 419 of the Code, or any tax or penalty
under Chapter 43 of the Code, except such liabilities, taxes or penalties
(when taken as a whole) as will not have a material adverse effect on the
Borrower or upon its financial condition, assets, business, operations,
liabilities or prospects.
Section 6.18. Plan Payments. The Borrower and each ERISA Affiliate
has made full and timely payment of all amounts (i) required to be
contributed under the terms of each Plan set forth on Schedule 6.17 and
applicable law and (ii) required to be paid as expenses of each Plan set
forth on Schedule 6.17. No Plan set forth on Schedule 6.17 would have an
"amount of unfunded benefit liabilities" (as defined in Section
4001(a)(18) of ERISA) if such Plan were terminated as of the date on which
this representation and warranty is made.
Section 6.19. Regulations U and X. No portion of any Loan is to be
used for the purpose of purchasing or carrying any "margin security" or
"margin stock" as such terms are used in Regulations U and X of the Board
of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
Section 6.20. Environmental Compliance. The Borrower has conducted
or caused to be conducted Phase I environmental site assessments with
respect to the past usage and condition of the Mortgaged Property and the
operations conducted thereon, and is familiar with the present condition
and usage of the Mortgaged Property and the operations conducted thereon
and, based upon such reports and knowledge, makes the following
representations and warranties.
(a) With respect to the Mortgaged Property, none of the Borrower
or any operator of the Mortgaged Property, or any operations thereon is in
violation, or alleged violation, of any judgment, decree, order, law,
license, rule or regulation pertaining to environmental matters, including
without limitation, those arising under the Resource Conservation and
Recovery Act ("RCRA"), the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 as amended ("CERCLA"), the Superfund
Amendments and Reauthorization Act of 1986 ("SARA"), the Federal Clean
Water Act, the Federal Clean Air Act, the Toxic Substances Control Act, or
any state or local statute, regulation, ordinance, order or decree relating
to the environment (hereinafter "Environmental Laws"), which violation
involves the Mortgaged Property and would have a material adverse effect on
the environment or the business, assets or financial condition of the
Borrower.
(b) The Borrower has not received any notice from any third
party including, without limitation, any federal, state or local
governmental authority, (i) that it has been identified by the United
States Environmental Protection Agency ("EPA") as a potentially responsible
party under CERCLA with respect to a site listed on the National Priorities
List, 40 C.F.R. Part 300 Appendix B (1986); (ii) that any hazardous waste,
as defined by 42 U.S.C. Section 9601(5), any hazardous substances as
defined by 42 U.S.C. Section 9601(14), any pollutant or contaminant as
defined by 42 U.S.C. Section 9601(33) or any toxic substances, oil or
hazardous materials or other chemicals or substances regulated by any
Environmental Laws ("Hazardous Substances") which it has generated,
transported or disposed of have been found at any site at which a federal,
state or local agency or other third party has conducted or has ordered
that the Borrower, conduct a remedial investigation, removal or other
response action pursuant to any Environmental Law; or (iii) that it is or
shall be a named party to any claim, action, cause of action, complaint, or
legal or administrative proceeding (in each case, contingent or otherwise)
arising out of any third party's incurrence of costs, expenses, losses or
damages of any kind whatsoever in connection with the release of Hazardous
Substances.
(c) With respect to the Mortgaged Property, except as
specifically set forth in the environmental site assessment reports for the
initial Mortgaged Properties, each of which has been provided to the Agent
on or about the date hereof or, in the case of any Mortgaged Properties
which become Collateral after the date hereof, the environmental site
assessment reports with respect thereto provided to the Agent under Section
5.4: (i) no portion of the Mortgaged Property has been used for the
handling, processing, storage or disposal of Hazardous Substances except in
accordance with applicable Environmental Laws, and no underground tank or
other underground storage receptacle for Hazardous Substances is located on
any portion of the Mortgaged Property; (ii) in the course of any activities
conducted by the Borrower, or the operators of its properties, no Hazardous
Substances have been generated or are being used on the Mortgaged Property
except in the ordinary course of business and in accordance with applicable
Environmental Laws; (iii) there has been no past or present releasing,
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, disposing or dumping (a "Release") or threatened
Release of Hazardous Substances on, upon, into or from the Mortgaged
Property, which Release would have a material adverse effect on the value
of any of the Mortgaged Property or adjacent properties or the environment;
(iv) to the best of the Borrower's knowledge, there have been no Releases
on, upon, from or into any real property in the vicinity of any of the
Mortgaged Property which, through soil or groundwater contamination, may
have come to be located on, and which would have a material adverse effect
on the value of, the Mortgaged Property; and (v) to the best of Borrower's
knowledge and belief, any Hazardous Substances that have been generated on
any of the Mortgaged Property have been transported off-site only by
carriers having an identification number issued by the EPA or approved by a
state or local environmental regulatory authority having jurisdiction
regarding the transportation of such substance and, to the best knowledge
of the Borrower without independent investigation, treated or disposed of
only by treatment or disposal facilities maintaining valid permits as
required under all applicable Environmental Laws, which transporters and
facilities have been and are, to the best of the Borrower's knowledge,
operating in compliance with such permits and applicable Environmental
Laws.
(d) Neither the Borrower nor the Mortgaged Property is required
by any applicable Environmental Law to perform Hazardous Substances site
assessments, or remove or remediate Hazardous Substances, or give notice to
any governmental agency or to record or deliver to other Persons of
environmental disclosure document or statement by virtue of the
transactions set forth herein and contemplated hereby, or as a condition to
the recording of the Security Deed or to the effectiveness of any other
transactions contemplated hereby.
Section 6.21. Intentionally Omitted.
Section 6.22. Leases. The Borrower has delivered to the Agent true
copies of the Leases and any amendments thereto relating to the Mortgaged
Property.
Section 6.23. Loan Documents. All of the representations and
warranties made by or on behalf of the Borrower or the Guarantor made in
the Loan Documents to which it is a party or any document or instrument
delivered to the Agent or the Banks pursuant to or in connection with any
of such Loan Documents are true and correct in all material respects, and
no such party has failed to disclose such information as is necessary to
make such representations and warranties not misleading.
Section 6.24. Mortgaged Property. The Borrower makes the following
representations and warranties concerning each Mortgaged Property:
(a) Off-Site Utilities. All water, sewer, electric, gas,
telephone and other utilities necessary for the use and operation of the
Mortgaged Property are installed to the property lines of the Mortgaged
Property through dedicated public rights-of-way or through perpetual
private easements approved by the Agent with respect to which the
applicable Security Deed creates a valid and enforceable first lien and,
except in the case of drainage facilities, are connected to the Building
located thereon with valid permits and are adequate to service the Building
in compliance with applicable law.
(b) Access, Etc. The streets abutting the Mortgaged Property
are dedicated and accepted public roads, to which the Mortgaged Property
has direct access by trucks and other motor vehicles and by foot, or are
perpetual private ways (with direct access by trucks and other motor
vehicles and by foot to public roads) to which the Mortgaged Property has
direct access approved by the Agent and with respect to which the
applicable Security Deed creates a valid and enforceable first lien. All
private ways providing access to the Mortgaged Property are zoned in a
manner which will permit access to the Building over such ways by trucks
and other commercial and industrial vehicles.
(c) Independent Building. The Building is fully independent in
all respects including, without limitation, in respect of structural
integrity, heating, ventilating and air conditioning, plumbing, mechanical
and other operating and mechanical systems, and electrical, sanitation and
water systems, all of which are connected directly to off-site utilities
located in public streets or ways or through insured perpetual private
easements approved by the Agent. The Building is located on a lot which is
separately assessed for purposes of real estate tax assessment and payment.
The Building, all Building Service Equipment and all paved or landscaped
areas related to or used in connection with the Building are, except as
specifically disclosed on a Survey delivered to the Agent prior to the date
hereof, located wholly within the perimeter lines of the lot or lots on
which the Mortgaged Property is located.
(d) Condition of Building; No Asbestos. Except as may otherwise
be specifically disclosed in any written engineering report furnished or
caused to be furnished by the Borrower to the Agent prior to the date
hereof, the Building is structurally sound, in good repair and free of
material defects in materials and workmanship. All major building systems
located within the Building, including without limitation heating,
ventilating and air conditioning, electrical, sprinkler, plumbing or other
mechanical systems, are in good working order and condition. No asbestos
is located in or on the Building, except for nonfriable asbestos or
contained friable asbestos which is being monitored and/or remediated in
accordance with the recommendations of an Environmental Engineer.
(e) Building Compliance with Law. Except as may otherwise be
specifically disclosed on the face of any certificate of occupancy
delivered to the Agent prior to the date hereof, the Building as presently
constructed, used, occupied and operated does not violate any applicable
federal or state law or governmental regulation, or any local ordinance,
order or regulation, including but not limited to laws, regulations, or
ordinances relating to zoning, building use and occupancy, subdivision
control, fire protection, health, sanitation, safety, handicapped access,
historic preservation and protection, tidelands, wetlands, flood control
and Environmental Laws. The Building complies with applicable zoning laws
and regulations and is not a so-called non-conforming use. The zoning laws
permit use of the Building for its current use. There is such number of
parking spaces on the lot or lots on which the Mortgaged Property is
located as is adequate under the zoning laws and regulations to permit use
of the Building for its current use.
(f) No Required Mortgaged Property Consents, Permits, Etc. The
Borrower
has not received notice of, and has no knowledge of, any approvals,
consents, licenses, permits, utility installations and connections
(including, without limitation, drainage facilities), curb cuts and street
openings, required by applicable laws, rules, ordinances or regulations or
any agreement affecting the Mortgaged Property for the maintenance,
operation, servicing and use of the Mortgaged Property or the Building for
its current use which have not been granted, effected, or performed and
completed (as the case may be), or any fees or charges therefor which have
not been fully paid, or which are no longer in full force and effect. No
such approvals, consents, permits or licenses (including, without
limitation, any railway siding agreements) will terminate, or become void
or voidable or terminable on any foreclosure sale of the Mortgaged Property
pursuant to the Security Deed. To the best knowledge of the Borrower,
there are no outstanding notices, suits, orders, decrees or judgments
relating to zoning, building use and occupancy, fire, health, sanitation or
other violations affecting, against, or with respect to, the Mortgaged
Property or any part thereof.
(g) Insurance. The Borrower has not received any notice from
any insurer or its agent requiring performance of any work with respect to
the Mortgaged Property or canceling or threatening to cancel any policy of
insurance, and the Mortgaged Property complies with the requirements of all
carriers of insurance on the Mortgaged Property.
(h) Real Property Taxes; Special Assessments. There are no
unpaid or outstanding real estate or other taxes or assessments on or
against the Mortgaged Property or any part thereof which are payable by the
Borrower (except only real estate or other taxes or assessments, that are
not yet due and payable). The Borrower has delivered or caused to be
delivered to the Agent, or has requested from the appropriate authorities
and will deliver to the Agent promptly upon receipt, true and correct
copies of real estate tax bills for the Mortgaged Property for the past
three fiscal tax years. No abatement proceedings are pending with
reference to any real estate taxes assessed against the Mortgaged Property.
There are no betterment assessments or other special assessments presently
pending with respect to any portion of the Mortgaged Property, and the
Borrower has not received any notice of any such special assessment being
contemplated.
(i) Historic Status. The Building is not a historic structure
or landmark and neither the Building nor the Mortgaged Property is located
within any historic district pursuant to any federal, state or local law or
governmental regulation.
(j) Eminent Domain; Casualty. There are no pending eminent
domain proceedings against the Mortgaged Property or any part thereof, and,
to the knowledge of the Borrower, no such proceedings are presently
threatened or contemplated by any taking authority. Neither the Mortgaged
Property, the Building nor any part thereof is now damaged or injured as a
result of any fire, explosion, accident, flood or other casualty.
(k) Leases. An accurate and complete Rent Roll and summary
thereof in a form reasonably satisfactory to the Agent as of the date of
inclusion of each Mortgaged Property (or such other recent date as may be
acceptable to the Agent) with respect to all Leases of any portion of the
Mortgaged Property has been provided to the Agent. The Leases reflected on
such Rent Roll constitute as of the date thereof the sole agreements and
understandings relating to leasing or licensing of space at such Mortgaged
Property and in the Building relating thereto. There are no occupancies,
rights, privileges or licenses in or to any Mortgaged Property or portion
thereof other than pursuant to the Leases reflected in Rent Rolls
previously furnished to the Agent for such Mortgaged Property. Except as
set forth in each Rent Roll, the Leases reflected therein are in full force
and effect in accordance with their respective terms, without any payment
default or any other material default thereunder, nor are there any
defenses, counterclaims, offsets, concessions or rebates available to any
tenant thereunder, and the Borrower has not given or made any notice of any
payment or other material default, or any claim, which remains uncured or
unsatisfied, with respect to any of the Leases. The Rent Rolls furnished
to the Banks accurately and completely set forth all rents payable by and
security, if any, deposited by tenants, no tenant having paid more than one
month's rent in advance. The Borrower has reviewed the estoppel
certificates delivered by the tenants of the Mortgaged Property to the
Agent and such estoppel certificates are true and correct in all material
respects. All tenant improvements or work to be done, furnished or paid
for by the Borrower or credited or allowed to a tenant, for, or in
connection with, the Building pursuant to any Lease has been completed and
paid for or provided for in a manner satisfactory to the Agent. No
material leasing, brokerage or like commissions, fees or payments are due
from the Borrower in respect of the Leases.
(l) Management Agreements. Borrower has delivered to Agent
true, correct and complete copies of the Management Agreements for the
Mortgaged Property. To the best knowledge of the Borrower, there are no
material claims or any bases for material claims in respect of the
Mortgaged Property or its operation by any party to any Management
Agreement.
(m) Other Material Real Property Agreements; No Options. There
are no material agreements pertaining to the Mortgaged Property, any
Building thereon or the operation or maintenance of either thereof other
than as described in this Agreement (including the Schedules hereto) or
otherwise disclosed in writing to the Agent and the Banks by the Borrower;
and no person or entity has any right or option to acquire the Mortgaged
Property on any Building thereon or any portion thereof or interest
therein.
Section 6.25. Brokers. The Borrower has not engaged or otherwise
dealt with any broker, finder or similar entity in connection with this
Agreement or the Loans contemplated hereunder.
Section 6.26. Fair Consideration. The Borrower (and, as applicable,
the Guarantor), by receiving the benefits under this Agreement is receiving
"reasonably equivalent value" within the meaning of Section 548 of the
Bankruptcy Code, Title 11, U.S.C.A. and "fair consideration" within the
meaning of Consolidated Laws of New York Annotated, Chapter 12, Article 10,
Section 272 in exchange for the delivery of the Security Documents to
Agent, and but for the willingness of the Guarantor to provide the guaranty
of the Loan, Borrower would be unable to obtain the financing contemplated
hereunder which financing will enable Borrower (including the Guarantor) to
have available financing to conduct and expand its business. The
transaction evidenced by this Agreement and the other Loan Documents is in
the best interests of the Borrower and the Guarantor and the creditors of
such Persons.
Section 6.27. Solvency. As of the Closing Date and after giving
affect to the transactions contemplated by this Agreement and the other
Loan Documents, including all of the Loans made or to be made hereunder the
Borrower is not insolvent on a balance sheet basis, the sum of the
Borrower's assets exceeds the sum of the Borrower's liabilities, the
Borrower is able to pay its debts as they become due, and the Borrower has
sufficient capital to carry on its business.
Section 6.28. No Bankruptcy Filing. The 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 its assets or
property, and Borrower has no knowledge of any Person contemplating the
filing of any such petition against it.
Section 6.29. No Fraudulent Intent. Neither the execution and
delivery of this Agreement or any of the other Loan Documents nor the
performance of any actions required hereunder or thereunder is being
undertaken by the Borrower or the Guarantor with or as a result of any
actual intent by any of such Persons to hinder, delay or defraud any entity
to which any of such Persons is now or will hereafter become indebted.
Section 6.30. Other Debt. Neither the Borrower or the Guarantor nor
any of the Subsidiaries of Guarantor is in default in the payment of any
other Indebtedness or under any agreement, mortgage, deed of trust,
security agreement, financing agreement, indenture or lease to which any of
them is a party. The Borrower is not a party to or bound by any agreement,
instrument or indenture that may require the subordination in right or time
of payment of any of the Obligations to any other indebtedness or
obligation of the Borrower. The Borrower has provided to the Agent copies
of all agreements, mortgages, deeds of trust, financing agreements or other
material agreements binding upon Borrower, the Guarantor or their
respective properties and entered into by such Person as of the date of
this Agreement with respect to any Indebtedness of such Person.
Section 6.31. Ownership of Borrower. The Revolver Borrower and the
Special Member are the sole members of the Borrower.
Section 6.32. Special Purpose Entity. The Borrower is in full and
complete compliance with the Operating Agreement.
Section 7. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan or Note is
outstanding or any Bank has any obligation to make any Loans:
Section 7.1. Punctual Payment. The Borrower will duly and
punctually pay or cause to be paid the principal and interest on the Loans
and all interest and fees provided for in this Agreement, all in accordance
with the terms of this Agreement and the Notes as well as all other sums
owing pursuant to the Loan Documents.
Section 7.2. Maintenance of Office. The Borrower will maintain its
chief executive office at 610 Fifth Avenue, 7th Floor, New York County, New
York, New York, or at such other place in the United States of America as
the Borrower shall designate upon prior written notice to the Agent and the
Banks, where notices, presentations and demands to or upon the Borrower in
respect of the Loan Documents may be given or made.
Section 7.3. Records and Accounts. The Borrower will (a) keep true
and accurate records and books of account in which full, true and correct
entries will be made in accordance with generally accepted accounting
principles and (b) maintain adequate accounts and reserves for all taxes
(including income taxes), depreciation and amortization of its properties,
contingencies and other reserves. The Borrower shall not, without the
prior written consent of the Majority Banks, (x) make any material changes
to the accounting procedures used by Borrower in preparing the financial
statements and other information described in Section 6.4 or (y) change
its fiscal year.
Section 7.4. Financial Statements, Certificates and Information.
The Borrower will deliver or cause to be delivered to each of the Banks:
(a) as soon as practicable, but in any event not later than 90
days after the end of each fiscal year of the Borrower, the audited balance
sheet of the Borrower at the end of such year, and the related audited
statements of income, changes in shareholders' equity and cash flows for
such year, each setting forth in comparative form the figures for the
previous fiscal year (other than the fiscal year ending prior to the
Closing Date for which such statements of Borrower were not separately
prepared) and all such statements to be in reasonable detail, prepared in
accordance with generally accepted accounting principles, and accompanied
by an auditor's report prepared without qualification by Ernst & Young LLP
or by another "Big Six" accounting firm, together with the unaudited annual
operating statement of each Mortgaged Property (which statement shall also
be reconciled to the budget for the Mortgaged Property), together with a
certification by Borrower's chief financial or chief accounting officer
that the information contain in such statement fairly presents the
operations of the Mortgaged Property for such period, and any other
information the Banks may need reasonably to complete a financial analysis
of the Borrower;
(b) as soon as practicable, but in any event not later than 45
days after the end of each fiscal quarter of the Borrower (including the
fourth quarter), copies of the unaudited balance sheet of the Borrower as
at the end of such quarter, and the related unaudited consolidated
statements of income, changes in shareholders' equity and cash flows for
the portion of the Borrower's fiscal year then elapsed, and the unaudited
operating statement for the Mortgaged Property for such quarter and year-
to-date (which statement shall also be reconciled to the budget for the
Mortgaged Property), all in reasonable detail and prepared in accordance
with generally accepted accounting principles, together with a
certification by the principal financial or accounting officer of the
Borrower that the information contained in such financial statements fairly
presents the financial position of the Borrower and the operations of the
Mortgaged Property on the date thereof (subject to year-end adjustments);
(c) as soon as practicable, but in any event not later than 45
days after the end of each fiscal quarter of the Borrower (including the
fourth fiscal quarter in each year), copies of a statement of Net Operating
Income for such fiscal quarter and year-to-date for each of the Mortgaged
Properties, prepared in a manner reasonable satisfactory to the Agent,
together with a certification by the Borrower's chief financial or chief
accounting officer that the information contained in such statement fairly
presents the Net Operating Income of the Mortgaged Property for such
period;
(d) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement (a "Compliance
Certificate") certified by the principal financial or accounting officer of
the Borrower in the form of Exhibit C hereto setting forth in reasonable
detail computations evidencing compliance with the covenants contained in
Section 9, and (if applicable) reconciliations to reflect changes in
generally accepted accounting principles since the Closing Date;
(e) concurrently with the delivery of the financial statements
described in subsections (b) and (c) above, a certificate signed by the
President or Chief Financial Officer of the Borrower to the effect that,
having read this Agreement, and based upon an examination which they deem
sufficient to enable them to make an informed statement, there does not
exist any Default or Event of Default, or if such Default or Event of
Default has occurred, specifying the facts with respect thereto;
(f) contemporaneously with the filing, mailing or releasing
thereof, copies of all press releases and all material of a financial
nature filed with the SEC, if applicable, or sent to all of the members of
the Borrower;
(g) as soon as practicable but in any event not later than 45
days after the end of each fiscal quarter of the Borrower (including the
fourth fiscal quarter in each year), updated Rent Rolls with respect to the
Mortgaged Property and a summary of each Rent Roll in form reasonably
satisfactory to the Agent;
(h) as soon as practicable, but in any event not later than 30
days prior to the beginning of each calendar year, the annual operating
budget for each of the Mortgaged Property, in form and substance
satisfactory to the Majority Banks;
(i) promptly after they are filed with the Internal Revenue
Service, copies of all annual federal income tax returns and amendments
thereto of the Borrower;
(j) not later than 45 days after the end of each fiscal quarter
of the Borrower (including the fourth fiscal quarter in each year), the
market comparable study conducted by the Borrower's internal staff or its
property managers, and at other times copies of such market studies
relating to the Mortgaged Property as are from time to time prepared by or
on behalf of the Borrower; and
(k) from time to time such other financial data and information
in the possession of the Borrower (including without limitation auditors'
management letters, property inspection and environmental reports and
information as to zoning and other legal and regulatory changes affecting
the Borrower) as the Agent may reasonably request.
Section 7.5. Notices.
(a) Defaults. The Borrower will promptly notify the Agent in
writing of the occurrence of any Default or Event of Default. If any
Person shall give any notice or take any other action in respect of a
claimed default (whether or not constituting an Event of Default) under
this Agreement or under any note, evidence of indebtedness, indenture or
other obligation to which or with respect to which the Borrower is a party
or obligor, whether as principal or surety, and such default would permit
the holder of such note or obligation or other evidence of indebtedness to
accelerate the maturity thereof, which acceleration would have a material
adverse effect on the Borrower, the Borrower shall forthwith give written
notice thereof to the Agent and each of the Banks, describing the notice or
action and the nature of the claimed default.
(b) Environmental Events. The Borrower will promptly give
notice to the Agent (i) upon the Borrower obtaining knowledge of any
potential or known Release, or threat of Release, of any Hazardous
Substances at or from the Mortgaged Property; (ii) of any violation of any
Environmental Law that the Borrower reports in writing or is reportable by
the Borrower in writing (or for which any written report supplemental to
any oral report is made) to any federal, state or local environmental
agency and (iii) upon becoming aware thereof, of any inquiry, proceeding,
investigation, or other action, including a notice from any agency of
potential environmental liability, of any federal, state or local
environmental agency or board, that in either case involves the Mortgaged
Property or has the potential to materially affect the assets, liabilities,
financial conditions or operations of the Borrower or the Agent's liens on
the Collateral pursuant to the Security Documents.
(c) Notification of Claims Against Collateral. The Borrower
will, immediately upon becoming aware thereof, notify the Agent in writing
of any setoff, claims (including, with respect to the Mortgaged Property,
environmental claims), withholdings or other defenses to which any of the
Collateral, or the rights of the Agent or the Banks with respect to the
Collateral, are subject.
(d) Notice of Litigation and Judgments. The Borrower will give
notice to the Agent in writing within 15 days of becoming aware of any
litigation or proceedings threatened in writing or any pending litigation
and proceedings affecting the Borrower or to which the Borrower is or is to
become a party involving an uninsured claim against the Borrower that could
reasonably be expected to have a materially adverse effect on the Borrower
and stating the nature and status of such litigation or proceedings. The
Borrower will give notice to the Agent, in writing, in form and detail
satisfactory to the Agent and each of the Banks, within ten days of any
judgment not covered by insurance, whether final or otherwise, against the
Borrower in an amount in excess of $250,000.
(e) Intentionally Omitted.
(f) Notification of Banks. Promptly after receiving any notice
under this Section 7.5, the Agent will forward a copy thereof to each of
the Banks, together with copies of any certificates or other written
information that accompanied such notice.
Section 7.6. Existence; Maintenance of Properties.
(a) The Borrower will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence as a
Delaware limited liability company and shall not amend or modify the
Operating Agreement in any manner without the prior written consent of the
Agent. The Borrower will do or cause to be done all things necessary to
preserve and keep in full force all of its rights and franchises.
(b) The Borrower (i) will cause all of its properties used or
useful in the conduct of its business to be maintained and kept in good
condition, repair and working order (ordinary wear and tear excepted) and
supplied with all necessary equipment, and (ii) will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof in all cases in which the failure so to do would have a material
adverse effect on the condition of the applicable Mortgaged Property or on
the financial condition, assets or operations of the Borrower.
Section 7.7. Insurance.
(a) The Borrower will, at its expense, procure and maintain, or
cause to be procured and maintained, for the benefit of the Borrower and
the Agent, insurance policies issued by such insurance companies, in such
amounts, in such form and substance, and with such coverages, endorsements,
deductibles and expiration dates as are acceptable to the Agent, providing
the following types of insurance covering the Mortgaged Property:
(i) "All Risks" property insurance (including broad form
flood, broad form earthquake and comprehensive boiler and machinery
coverages) on each Building and the contents therein of the Borrower
in an amount not less than one hundred percent (100%) of the full
replacement cost of each Building and the contents therein of the
Borrower, with deductibles not to exceed $50,000 for any one
occurrence, with a replacement cost coverage endorsement, and, if
requested by the Agent, a contingent liability from operation of
building laws endorsement in such amounts as the Agent may require.
Full replacement cost as used herein means the cost of replacing the
Building (exclusive of the cost of excavations, foundations and
footings below the lowest basement floor) and the contents therein of
the Borrower without deduction for physical depreciation thereof;
(ii) During the course of construction or repair of any
Building having a cost in excess of $1,000,000, the insurance required
by clause (i) above shall be written on a builders risk, completed
value, non-reporting form, meeting all of the terms required by clause
(i) above, covering the total value of work performed, materials,
equipment, machinery and supplies furnished, existing structures, and
temporary structures being erected on or near the Mortgaged Property,
including coverage against collapse and damage during transit or while
being stored off-site, and containing a soft costs (including loss of
rents) coverage endorsement and a permission to occupy endorsement;
(iii) Flood insurance if at any time any Building is
located in any federally designated "special hazard area" (including
any area having special flood, mudslide and/or flood-related erosion
hazards, and shown on a Flood Hazard Boundary Map or a Flood Insurance
Rate Map published by the Federal Emergency Management Agency as Zone
A, AO, Al-30, AE, A99, AH, VO, Vl-30, VE, V, M or E) and the broad
form flood coverage required by clause (i) above is not available, in
an amount equal to the full replacement cost or the maximum amount
then available under the National Flood Insurance Program;
(iv) Rent loss insurance in an amount sufficient to recover
at least the total estimated gross receipts from all sources of
income, including without limitation, rental income, for the Mortgaged
Property for a twelve month period;
(v) Commercial general liability insurance against claims
for personal injury (to include, without limitation, bodily injury and
personal and advertising injury) and property damage liability, all on
an occurrence basis, if commercially available, with such coverages as
the Agent may reasonably request (including, without limitation,
contractual liability coverage, completed operations coverage for a
period of two years following completion of construction of any
improvements on the Mortgaged Property, and coverages equivalent to an
ISO broad form endorsement), with a general aggregate limit of not
less than $1,000,000, a completed operations aggregate limit of not
less than $1,000,000, and a combined single "per occurrence" limit of
not less than $1,000,000 for bodily injury, property damage and
medical payments;
(vi) During the course of construction or repair of any
improvements on the Mortgaged Property in excess of $1,000,000,
owner's contingent or protective liability insurance covering claims
not covered by or under the terms or provisions of the insurance
required by clause (v) above;
(vii) Employers liability insurance (with respect to the
Borrower's employees only);
(viii) Umbrella liability insurance with limits of not
less than $50,000,000 to be in excess of the limits of the insurance
required by clauses (v), (vi) and (vii) above, with coverage at least
as broad as the primary coverages of the insurance required by clauses
(v), (vi) and (vii) above, with any excess liability insurance to be
at least as broad as the coverages of the lead umbrella policy. All
such policies shall be endorsed to provide defense coverage
obligations;
(ix) Workers' compensation insurance for all employees of
the Borrower engaged on or with respect to the Mortgaged Property; and
(x) Such other insurance in such form and in such amounts
as may from time to time be required by the Majority Banks against
other insurable hazards and casualties which at the time are commonly
insured against in the case of properties of similar character and
location to the Mortgaged Property.
The Borrower shall pay or cause to be paid all premiums on insurance
policies. The insurance policies with respect to all Mortgaged Property
provided for in clauses (v), (vi) and (viii) above with respect to all
Mortgaged Property shall name the Agent and each Bank as an additional
insured. The insurance policies provided for in clauses (i), (ii), (iii)
and (iv) above shall name the Agent as mortgagee and loss payee, shall be
first payable in case of loss to the Agent, and shall contain mortgage
clauses and lender's loss payable endorsements in form and substance
acceptable to the Agent. The Borrower shall deliver duplicate originals or
certified copies of all such policies to the Agent, and the Borrower shall
promptly furnish to the Agent all renewal notices and evidence that all
premiums or portions thereof then due and payable have been paid. At least
15 days prior to the expiration date of the policies, the Borrower shall
deliver to the Banks evidence of continued coverage, including a
certificate of insurance, as may be satisfactory to the Agent.
(b) All policies of insurance required by this Agreement shall
contain clauses or endorsements to the effect that (i) no act or omission
of either the Borrower or anyone acting for the Borrower shall affect the
validity or enforceability of such insurance insofar as the Agent is
concerned, (ii) the insurer waives any right of setoff, counterclaim,
subrogation, or any deduction in respect of any liability of the Borrower
and the Agent, (iii) such insurance is primary and without right of
contribution from any other insurance which may be available, (iv) such
policies shall not be modified, canceled or terminated prior to the
scheduled expiration date thereof without the insurer thereunder giving at
least 15 days prior written notice to the Agent by certified or registered
mail, and (v) that the Agent or the Banks shall not be liable for any
premiums thereon or subject to any assessments thereunder, and shall in all
events be in amounts sufficient to avoid any coinsurance liability.
(c) The insurance required by this Agreement may be effected
through a blanket policy or policies covering additional locations and
property of the Borrower and other Persons not included in the Mortgaged
Property, provided that such blanket policy or policies comply with all of
the terms and provisions of this Section 7.7 and contain endorsements or
clauses reasonably satisfactory to the Agent.
(d) All policies of insurance required by this Agreement shall
be issued by companies licensed to do business in the State where the
policy is issued and also in the states where the Mortgaged Property is
located and having a rating in Best's Key Rating Guide of at least "A" and
a financial size category of at least "VIII".
(e) The Borrower shall not carry separate insurance, concurrent
in kind or form or contributing in the event of loss, with any insurance
required under this Agreement unless such insurance complies with the terms
and provisions of this Section 7.7.
(f) In the event of any loss or damage to the Mortgaged
Property, the Borrower shall give immediate written notice to the insurance
carrier and the Agent, and the Agent shall furnish a copy of such notice
promptly to each of the Banks. The Borrower may make proof of loss and
adjust and compromise any claim under insurance policies which is of an
amount not more than $1,000,000.00 so long as no Event of Default has
occurred and is continuing and so long as such claim is pursued diligently
and in good faith. The Borrower hereby irrevocably authorizes and empowers
the Agent, at the Agent's option in the Agent's sole discretion or at the
request of the Majority Banks in their sole discretion, as attorney in fact
for the Borrower, to make proof of any loss except as provided in the
preceding sentence, to adjust and compromise any claim under insurance
policies, to appear in and prosecute any action arising from such insurance
policies, to collect and receive insurance proceeds, and to deduct
therefrom the Agent's expenses incurred in the collection of such proceeds.
If the Mortgaged Property is acquired by the Agent or any nominee through
foreclosure, deed in lieu of foreclosure or otherwise is acquired from the
owner thereof, all right, title and interest of the owner of such Mortgaged
Property in and to any insurance policies and unearned premiums thereon and
in and to the proceeds thereof resulting from loss or damage to the
Mortgaged Property prior to such sale or acquisition shall pass to the
Agent or any other successor in interest to the owner or purchaser or
grantee of the Mortgaged Property.
(g) Subject to the terms of the following sentence, the Borrower
authorizes the Agent, at the Agent's option or at the request of the
Majority Bank's in their sole discretion, to (i) apply the balance of such
proceeds to the payment of the Obligations whether or not then due, or
(ii) if the Agent or the Majority Banks shall require the reconstruction or
repair of the Mortgaged Property, to hold the balance of such proceeds to
be used to pay all taxes, charges, sewer use fees, water rates and
assessments which may be imposed upon the Mortgaged Property and the
Obligations as they become due during the course of reconstruction or
repair of the Mortgaged Property and to reimburse the Borrower, in
accordance with such terms and conditions as Agent may prescribe, for the
cost of such reconstruction or repair of the Mortgaged Property, and on
completion of such reconstruction or repair to pay any excess funds to the
Borrower so long as no Default or Event of Default has occurred and is
continuing, or if a Default or Event of Default has occurred and is
continuing, to apply any of the excess to the payment of the Obligations.
Notwithstanding the foregoing, the Agent shall make such net proceeds
available to the Borrower to reconstruct and repair the Mortgaged Property,
in accordance with such terms and conditions as the Agent may prescribe for
the disbursement of such proceeds to assure completion of such
reconstruction or repair provided that (A) no Default or Event of Default
shall have occurred and be continuing, (B) the Borrower shall have provided
to Agent additional cash security in an amount equal to the amount
reasonably estimated by the Agent to be the amount in excess of such
proceeds which will be required to complete such repair or restoration, and
(C) the Agent shall determine that such repair or reconstruction can be
completed prior to the Maturity Date, (D) the cost of such reconstruction
or repair is not estimated by the Agent to exceed fifty percent (50%) of
the Appraised Value of such Mortgaged Property, (E) the Agent shall have
approved the plans and specifications for such repair or restoration and
determined that the repaired or restored Mortgaged Property will provide
the Banks with adequate security for the Obligations, and (F) the Borrower
shall have delivered to the Agent written agreements binding upon all
tenants or other parties having present or future rights to possession of
any portion of the Mortgaged Property or having any right to require
repair, restoration or completion of the Mortgaged Property or any portion
thereof, agreeing upon a date for delivery of possession of the Mortgaged
Property or their respective portions thereof, or for such required repair,
restoration or completion, to permit time which is sufficient in the
judgment of the Agent for such repair or restoration and approving the
plans and specifications for such repair or restoration, or other evidence
satisfactory to the Agent that none of such tenants or other parties may
terminate their Leases as a result of such casualty or have a right to
approve the plans and specifications for such repair or restoration.
(h) The Borrower, at its expense, will procure and maintain or
cause to be procured and maintained, insurance covering the Borrower and
the Mortgaged Property in such amounts and against such risks and
casualties as are customary for properties of similar character and
location, due regard being given to the type of improvements thereon, their
construction, location, use and occupancy.
(i) The Borrower shall provide or cause to be provided to the
Agent for the benefit of the Banks Title Policies for all of the Mortgaged
Property which shall at all times be in an aggregate amount of not less
than the initial Designated Collateral Value attributable to such Mortgaged
Property (provided that a Title Policy for an individual Mortgaged Property
need not equal the aggregate Designated Collateral Value). Each Title
Policy shall also contain, to the extent available, a tie-in endorsement
aggregating the insurance coverage provided under all of the policies with
tie-in endorsements.
Section 7.8. Taxes. The Borrower will duly pay and discharge, or
cause to be paid and discharged, before the same shall become overdue, all
taxes, assessments and other governmental charges imposed upon it and upon
the Mortgaged Property, sales and activities, or any part thereof, or upon
the income or profits therefrom, as well as all claims for labor,
materials, or supplies that if unpaid might by law become a lien or charge
upon any of its property; provided that any such tax, assessment, charge,
levy or claim need not be paid if the validity or amount thereof shall
currently be contested in good faith by appropriate proceedings and if the
Borrower shall have set aside on its books adequate reserves with respect
thereto; and provided, further, that forthwith upon the commencement of
proceedings to foreclose any lien that may have attached as security
therefor, the Borrower either (i) will provide a bond issued by a surety
reasonably acceptable to the Majority Banks and sufficient to stay all such
proceedings or (ii) if no such bond is provided, will pay each such tax,
assessment, charge, levy or claim.
Section 7.9. Inspection of Properties and Books. The Borrower shall
permit the Banks, through the Agent or any representative designated by the
Agent, at the Borrower's expense to visit and inspect any of the Mortgaged
Properties, to examine the books of account of the Borrower (and to make
copies thereof and extracts therefrom) and to discuss the affairs, finances
and accounts of the Borrower with, and to be advised as to the same by, its
officers, all at such reasonable times and intervals as the Agent or any
Bank may reasonably request. The Banks shall use good faith efforts to
coordinate such visits and inspections so as to minimize the interference
with and disruption to the Borrower's normal business operations.
Section 7.10. Compliance with Laws, Contracts, Licenses, and
Permits. The Borrower will comply in all respects with (i) all applicable
laws and regulations now or hereafter in effect wherever its business is
conducted, including all Environmental Laws, (ii) the provisions of its
corporate charter, and other charter documents and bylaws, (iii) all
agreements and instruments to which it is a party or by which it or any of
its properties may be bound, (iv) all applicable decrees, orders, and
judgments, and (v) all licenses and permits required by applicable laws and
regulations for the conduct of its business or the ownership, use or
operation of its properties. If at any time while any Loan or Note is
outstanding or the Banks have any obligation to make Loans hereunder, any
authorization, consent, approval, permit or license from any officer,
agency or instrumentality of any government shall become necessary or
required in order that the Borrower may fulfill any of its obligations
hereunder, the Borrower will immediately take or cause to be taken all
steps necessary to obtain such authorization, consent, approval, permit or
license and furnish the Agent and the Banks with evidence thereof.
Section 7.11. Use of Proceeds. The Borrower will use the proceeds
of the Loans solely (a) for the acquisition of fee interests by Borrower in
Eligible Real Estate which immediately upon such acquisition by the
Borrower becomes a Mortgaged Property, including, without limitation,
acquisition of properties from the Revolver Borrower as contemplated by the
Revolving Credit Agreement, (b) for Capital Improvement Projects to
Mortgaged Property (but not in excess of $5,000,000.00 of the proceeds of
the Loans may be used by Borrower for such purpose), and (c) for reasonable
transaction costs related to the transactions referred to in the preceding
clause (a).
Section 7.12. Further Assurances. The Borrower will cooperate with
the Agent and the Banks and execute such further instruments and documents
as the Banks or the Agent shall reasonably request to carry out to their
satisfaction the transactions contemplated by this Agreement and the other
Loan Documents.
Section 7.13. Management Agreements. The Borrower shall provide
prompt written notice to the Agent of any termination or material
modification or amendment of any Management Agreement, provided that,
without the prior consent of the Majority Banks, none of the Management
Agreements shall be modified or amended to increase the fees payable
thereunder. The Borrower shall not enter into any Management Agreement or
otherwise manage any of the Mortgaged Property except with property and
leasing managers having sufficient expertise and resources to manage such
properties as class A office buildings, and on leasing terms and conditions
no less favorable to the Borrower than are contained in the Management
Agreements delivered to the Agent prior to the date hereof or are otherwise
on then commercially reasonable terms.
Section 7.14. ERISA Compliance. The Borrower will not permit the
present value of all employee benefits vested in all Employee Benefit
Plans, Multiemployer Plans and Guaranteed Pension Plans maintained by the
Borrower and any ERISA Affiliate thereof to exceed the present value of the
assets allocable to such vested benefits by an amount greater than
$500,000.00 in the aggregate. Neither the Borrower nor any ERISA Affiliate
thereof will at any time permit any such Plan maintained by it to engage in
any "prohibited transaction" as such term is defined in Section 4975 of
the Code or Section 406 of ERISA, incur any "accumulated funding
deficiency" as such term is defined in Section 302 of ERISA, whether or
not waived, or terminate any such Plan in any manner which could result in
the imposition of a lien on the property of the Borrower or the Guarantor
pursuant to Section 4068 of ERISA.
Section 7.15. Intentionally Deleted.
Section 7.16. Intentionally Omitted.
Section 7.17. Compliance. The Borrower shall operate its business
in compliance with the terms and conditions of this Agreement and the other
Loan Documents.
Section 7.18. Intentionally Omitted.
Section 7.19. Leasing. The Borrower will take or cause to be taken
all reasonable steps within the power of the Borrower to market and lease
the leasable area of the Mortgaged Properties in accordance with sound and
customary leasing and management practices for similar properties. The
Borrower will not lease all or any portion of the Mortgaged Property or
amend, supplement or otherwise modify, terminate or cancel, or accept the
surrender of, or consent to the assignment or subletting of, or grant any
concessions to or waive the performance of any obligations of any tenant,
lessee or licensee under, any now existing or future Lease without the
prior written consent of the Agent; provided, however, with respect to any
Lease which covers less than the 25,000 square feet or provides less than
three percent (3%) of the Net Operating Income of the Mortgaged Property,
the Borrower may amend, supplement or otherwise modify, terminate or
cancel, or accept the surrender of, or consent to the assignment or
subletting of, or granting concessions to or waive the performance of any
obligations of any tenant, lessee or licensee under any such Lease in the
ordinary course of business consistent with sound leasing and management
practices for similar properties. The Borrower shall furnish the Agent
with executed copies of all Leases hereafter made, and all Leases now or
hereafter entered into will be in form and substance subject to the
approval of the Agent. Upon the Agent's request, the Borrower shall make a
separate and distinct assignment to the Agent as additional security, of
all Leases hereafter made. Notwithstanding the foregoing, following the
Agent's approval of the "Leasing Parameters" (as hereinafter defined) for
the Mortgaged Property, then the Borrower may, without the prior approval
of the Agent and (prior to the initial syndication) Goldman, enter into any
Lease provided that the Lease covers less than 25,000 square feet or
provides less than three percent (3%) of the Net Operating Income of the
Mortgaged Property, is a bona fide arm's length lease entered into in the
ordinary course of business with a party unaffiliated with the Borrower,
Guarantor or any member of Borrower, falls within the Leasing Parameters
and is on the standard lease form (without material modification or
addition). In connection with any Lease to be approved by the Agent as
provided herein, the Borrower shall submit to the Agent for its approval
the identity of the tenant and a summary of the major terms of the Lease
(which terms shall include without limitation those matters included within
the Leasing Parameters) (collectively the "Major Terms"), and Agent's
approval shall be limited to the approval of the Major Terms, and provided
further than any such terms submitted to the Agent for approval shall be
deemed approved by the Agent unless the Agent expressly disapproves the
same by written notice delivered to the Borrower (which shall state the
reasons for disapproval) within five (5) business days after the date of
the delivery of such Lease to the Agent for approval and all other
information reasonably requested by the Agent in order to make such
determination. Following the approval by the Agent of the Major Terms, the
Borrower shall be permitted to enter into a lease to such tenant which
falls within the Major Terms. As used herein, "Leasing Parameters" means
leasing parameters for the Mortgaged Property approved by the Agent and
(prior to the initial syndication) Goldman. Leasing Parameters shall
include, without limitation, the minimum and maximum term, the minimum
rent, tax and operating stops, tenant standard improvements, tenant
allowances and other tenant inducements and leasing commissions, and shall
be approved by the Agent prior to the commencement of each calendar year
during the term of the Notes. The Borrower will require, and each Lease
will require, each tenant to enter into a Nondisturbance, Attornment and
Subordination Agreement and to provide an estoppel certificate satisfactory
to the Agent upon the request of the Agent. The Agent shall have the
right, and the Borrower hereby authorizes the Agent, to communicate
directly with any tenant under a Lease to verify any information delivered
to the Agent by the Borrower concerning such tenant or such tenant's Lease.
Section 7.20 Special Purpose Entity. The Borrower shall conduct its
business in full compliance with and shall not violate the terms and
conditions of the Operating Agreement.
Section 7.21 Plan Assets, etc. The Borrower will do, or cause to be
done, all things necessary to ensure that it will not be deemed to hold
Plan Assets at any time. Each owner of an equity interest in Borrower has
certified to Borrower and the Banks, and Borrower shall require each
proposed transferee of any equity interest in Borrower, as a condition
precedent to such transfer, to certify to Borrower and the Banks, that the
source of funds used or to be used by it to acquire its interest in
Borrower are not assets of any plan subject to Title I of ERISA or Section
4975 of the Code and are not deemed to be assets of any such plan under the
U.S. Department of Labor's plan asset regulations. Borrower has provided
the Agent with a copy of each such certification from each owner of an
equity interest in Borrower and will promptly provide the Agent with a copy
of each such certification from each proposed transferee.
Section 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan or Note is
outstanding or any of the Banks has any obligation to make any Loans:
Section 8.1. Restrictions on Indebtedness. The Borrower will not
create, incur, assume, guarantee or be or remain liable, contingently or
otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Banks arising under any of the Loan
Documents;
(b) current liabilities of the Borrower incurred in the ordinary
course of business and relating to the Mortgaged Property but not incurred
through (i) the borrowing of money, or (ii) the obtaining of credit except
for credit on an open account basis customarily extended and in fact
extended in connection with normal purchases of goods and services relating
to the Mortgaged Property;
(c) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies relating to
the Mortgaged Property to the extent that payment therefor shall not at the
time be required to be made in accordance with the provisions of Section
7.8;
(d) Indebtedness in respect of judgments or awards relating to
the operation and maintenance of the Mortgaged Property in accordance with
this Agreement that have been in force for less than the applicable period
for taking an appeal so long as execution is not levied thereunder or in
respect of which the Borrower shall at the time in good faith be
prosecuting an appeal or proceedings for review and in respect of which a
stay of execution shall have been obtained pending such appeal or review;
or
(e) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary
course of business and relating to the Mortgaged Property.
Section 8.2. Restrictions on Liens, Etc. Without limiting the terms
of Section 8.1, the Borrower will not (a) create or incur or suffer to be
created or incurred or to exist any lien, encumbrance, mortgage, pledge,
negative pledge, charge, restriction or other security interest of any kind
upon any of its property or assets of any character whether now owned or
hereafter acquired, or upon the income or profits therefrom; (b) transfer
any of its property or assets or the income or profits therefrom for the
purpose of subjecting the same to the payment of Indebtedness or
performance of any other obligation in priority to payment of its general
creditors; (c) acquire, or agree or have an option to acquire, any property
or assets upon conditional sale or other title retention or purchase money
security agreement, device or arrangement; (d) suffer to exist for a period
of more than 30 days after the same shall have been incurred any
Indebtedness or claim or demand against it that if unpaid might by law or
upon bankruptcy or insolvency, or otherwise, be given any priority
whatsoever over its general creditors; (e) sell, assign, pledge or
otherwise transfer any accounts, contract rights, general intangibles,
chattel paper or instruments, with or without recourse; or (f) incur or
maintain any obligation to any holder of Indebtedness of the Borrower which
prohibits the creation or maintenance of any lien securing the Obligations
(collectively "Liens"); provided that the Borrower may create or incur or
suffer to be created or incurred or to exist:
(i) Leases permitted under this Agreement;
(ii) liens on properties to secure taxes, assessments and other
governmental charges or claims for labor, material or supplies
relating to the Mortgaged Property in respect of obligations not
overdue;
(iii) deposits or pledge made in connection with, or to
secure payment of, worker's compensation, unemployment insurance, old
age pensions or other social security obligations;
(iv) liens in favor of the Agent and the Banks under the Loan
Documents; and
(v) liens and encumbrances on a Mortgaged Property, if any,
expressly permitted under the terms of the Security Deed relating
thereto.
Section 8.3. Intentionally Omitted.
Section 8.4. Merger, Consolidation. The Borrower will not become a
party to any merger, consolidation or other business combination, or agree
to effect any asset acquisition, stock acquisition or other acquisition
without the prior written consent of the Majority Banks.
Section 8.5. Intentionally Omitted.
Section 8.6. Compliance with Environmental Laws. The Borrower will
not: (a) use any of the Mortgaged Property or any portion thereof as a
facility for the handling, processing, storage or disposal of Hazardous
Substances, except for small quantities of Hazardous Substances used in the
ordinary course of business and in compliance with all applicable
Environmental Laws, (b) cause or permit to be located on any of the
Mortgaged Property any underground tank or other underground storage
receptacle for Hazardous Substances except in full compliance with
Environmental Laws, (c) generate any Hazardous Substances on any of the
Mortgaged Property except in full compliance with Environmental Laws, (d)
conduct any activity at any Mortgaged Property or use any Mortgaged
Property in any manner so as to cause a Release of Hazardous Substances on,
upon or into the Mortgaged Property or any surrounding properties or any
threatened Release of Hazardous Substances which might give rise to
liability under CERCLA or any other Environmental Law, or (e) directly or
indirectly transport or arrange for the transport of any Hazardous
Substances (except in compliance with all Environmental Laws).
The Borrower shall:
(i) in the event of any change in Environmental Laws governing
the assessment, release or removal of Hazardous Substances, which change
would lead a prudent lender to require additional testing to avail itself
of any statutory insurance or limited liability, take all action
(including, without limitation, the conducting of engineering tests at the
sole expense of the Borrower) to confirm that no Hazardous Substances have
been Released or disposed of on the Mortgaged Property in violation of any
Environmental Laws; and
(ii) if any Release or disposal of Hazardous Substances shall
occur or shall have occurred on the Mortgaged Property (including without
limitation any such Release or disposal occurring prior to the acquisition
of such Mortgaged Property by the Borrower), cause the prompt containment
and removal of such Hazardous Substances and remediation of the Mortgaged
Property in full compliance with all applicable laws and regulations and to
the satisfaction of the Majority Banks; provided, that the Borrower shall
be deemed to be in compliance with Environmental Laws for the purpose of
this clause (ii) so long as it or a responsible third party with sufficient
financial resources is taking reasonable action to remediate or manage any
event of noncompliance to the satisfaction of the Majority Banks and no
action shall have been commenced by any enforcement agency. The Majority
Banks may engage their own Environmental Engineer to review the
environmental assessments and the Borrower's compliance with the covenants
contained herein.
At any time after an Event of Default shall have occurred hereunder,
or, whether or not an Event of Default shall have occurred, at any time
that the Agent or the Majority Banks shall have reasonable grounds to
believe that a Release or threatened Release of Hazardous Substances may
have occurred, relating to any Mortgaged Property, or that any of the
Mortgaged Property is not in compliance with the Environmental Laws, the
Agent may at its election (and will at the request of the Majority Banks)
obtain such environmental assessments of such Mortgaged Property prepared
by an Environmental Engineer as may be necessary or advisable for the
purpose of evaluating or confirming (i) whether any Hazardous Substances
are present in the soil or water at or adjacent to such Mortgaged Property
and (ii) whether the use and operation of such Mortgaged Property comply
with all Environmental Laws. Environmental assessments may include
detailed visual inspections of such Mortgaged Property including, without
limitation, any and all storage areas, storage tanks, drains, dry wells and
leaching areas, and the taking of soil samples, as well as such other
investigations or analyses as are necessary or appropriate for a complete
determination of the compliance of such Mortgaged Property and the use and
operation thereof with all applicable Environmental Laws. All such
environmental assessments shall be at the sole cost and expense of the
Borrower.
Section 8.7. Distributions. The Borrower shall make no
Distributions in the event that an Event of Default shall have occurred
and be continuing or a Default or Event of Default would be created after
giving effect to such Distribution.
Section 8.8. Intentionally Omitted.
Section 8.9. Development Activity. The Borrower shall not, without
the prior written consent of the Majority Banks, engage, directly or
indirectly, in the development of properties to be used for commercial
office purposes or otherwise.
Section 8.10. Intentionally Omitted.
Section 8.11. Transfers. The Borrower shall not permit any pledge,
mortgage, hypothecation or encumbering of any direct interest in Borrower
or, other than a Permitted Indirect Transfer, any indirect interest in
Borrower.
Section 8.12. Additional Covenants with Respect to Indebtedness,
Operations, Fundamental Changes. The Borrower represents, warrants and
covenants as of the date hereof and until such time as the Obligations are
paid in full, that Borrower:
(a) does not own and will not own any asset other than the
Collateral;
(b) is not engaged and will not engage in any business other
than the ownership, operation and sale of the Collateral;
(c) does not and will not have any subsidiaries (whether the
same would constitute an entity that could be consolidated on any of
such Person's financial statements or a minority interest);
(d) will not enter into any contract or agreement with any
partner, member, shareholder, principal or affiliate of any Guarantor,
or any affiliate of any such partner, member, shareholder, principal
or affiliate, except upon terms and conditions that are intrinsically
fair and substantially similar to those that would be available on an
arms-length basis with third parties other than an affiliate;
(e) has not incurred and will not incur any Indebtedness, other
than the Obligations, and other than current liabilities incurred in
the ordinary course of business in connection with normal purchases of
goods and services in connection with the ownership and operation of
the Collateral;
(f) has not made and will not make any loans or advances to any
third party ;
(g) is and will remain solvent and pay its debts and liabilities
(including, without limitation, employment and overhead expenses) from
its own assets as the same shall become due;
(h) has done or caused to be done and will do all things
necessary to observe limited liability company, corporate and
partnership formalities (as applicable) and to preserve its existence,
and will not, nor will any partner, member or shareholder thereof,
amend, modify or otherwise change its partnership agreement, operating
agreement, articles of incorporation, by-laws or other organizational
documents in a manner which adversely affects the Borrower's or such
partners, member's or shareholder's existence as a single purpose
entity;
(i) will conduct and operate its business as presently conducted
and operated;
(j) will maintain books and records and bank accounts separate
from those of its affiliates, including its partners, members and
shareholders;
(k) will be, and at all times will hold itself out to the public
as, a legal entity separate and distinct from any other entity
(including any affiliate thereof, including any partner, member,
shareholder or any affiliate of any partner, member or shareholder of
the Borrower) and shall maintain and use separate stationery, invoices
and checks;
(l) will file its own separate tax returns;
(m) will maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and in
light of its contemplated business operations;
(n) will not, nor shall any partner, member, shareholder or
affiliate, seek the dissolution or winding up, in whole or in part,
the Borrower;
(o) will not enter into any transaction of merger, consolidation
or other business combination, or acquire by purchase or otherwise all
or substantially all of the business or assets of, or any stock or
beneficial ownership of, any entity;
(p) will not commingle the funds and other assets of the
Borrower, with those of any partner, member, shareholder, any
affiliate or any other Person;
(q) has and will maintain its assets in such a manner that it is
not costly or difficult to segregate, ascertain or identify its
individual assets from those of any affiliate or any other Person; and
(r) does not and will not hold itself out to be responsible for
the debts or obligations of any other Person.
Section 9. FINANCIAL COVENANTS OF BORROWER.
The Borrower covenants and agrees that, so long as any Loan or Note is
outstanding or any Bank has any obligation to make any Loans it will comply
with the following:
Section 9.1. Intentionally Omitted.
Section 9.2. Intentionally Omitted.
Section 9.3. Intentionally Omitted.
Section 9.4. Net Operating Income. The Borrower will not, as of any
December 31 or June 30 during the term of the Loan, permit the ratio of (a)
the outstanding principal balance of the Loans to (b) an amount equal to
(i) an amount equal to the difference of (A) the Net Operating Income of
the Mortgaged Properties for the period covered by the four previous
consecutive fiscal quarters (treated as a single accounting period) minus
(B) the Capital Improvement Reserve for such period divided by (ii) a nine
and one-fourth percent (9.25%) capitalization rate, to exceed 0.75 to 1.
Notwithstanding the foregoing, in the event that a Mortgaged Property has
not been stabilized for the previous four consecutive fiscal quarters upon
its acceptance as a Mortgaged Property as Collateral as determined by the
Borrower and the Majority Banks upon such acceptance, then the Borrower and
the Majority Banks shall in connection with the acceptance of such
Mortgaged Property as Collateral agree upon a method of annualizing Net
Operating Income for such Mortgaged Property.
Section 10. CLOSING CONDITIONS.
The obligations of the Agent and the Banks to make the initial
Loans shall be subject to the satisfaction of the following conditions
precedent on or prior to December 15, 1997:
Section 10.1. Loan Documents. Each of the Loan Documents shall have
been duly executed and delivered by the respective parties thereto, shall
be in full force and effect and shall be in form and substance satisfactory
to the Majority Banks. The Agent shall have received a fully executed copy
of each such document, except that each Bank shall have received a fully
executed counterpart of its Note.
Section 10.2. Certified Copies of Organizational Documents. The
Agent shall have received from the Borrower a copy, certified as of a
recent date by the appropriate officer of the State in which the Borrower
and the Guarantor are organized or in which the Mortgaged Property is
located, and by a duly authorized officer of such Person to be true and
complete, of the articles of incorporation or other organizational
documents of the Borrower and any Guarantor or their respective
qualification to do business, as applicable, as in effect on such date of
certification.
Section 10.3. Bylaws; Resolutions. All action on the part of the
Borrower and the Guarantor necessary for the valid execution, delivery and
performance by the Borrower and the Guarantor of the Loan Documents to
which it is or is to become a party shall have been duly and effectively
taken, and evidence thereof satisfactory to the Agent shall have been
provided to the Agent. The Agent shall have received from the Borrower and
the Guarantor, as applicable, true copies of its bylaws and the resolutions
adopted by its board of directors or other governing body authorizing the
transactions described herein, each certified by its secretary or other
duly authorized officer as of a recent date to be true and complete.
Section 10.4. Incumbency Certificate; Authorized Signers. The Agent
shall have received from the Borrower and Guarantor an incumbency
certificate, dated as of the Closing Date, signed by a duly authorized
officer of the Borrower and Guarantor and giving the name and bearing a
specimen signature of each individual who shall be authorized: (a) to sign,
in the name and on behalf of the Borrower and the Guarantor, each of the
Loan Documents to which the Borrower or the Guarantor is or is to become a
party; (b) in the case of the Borrower to make Loan and Conversion
Requests; and (c) to give notices and to take other action on behalf of the
Borrower under the Loan Documents.
Section 10.5. Opinion of Counsel. The Agent shall have received a
favorable opinion addressed to the Banks and the Agent and dated as of the
Closing Date, in form and substance satisfactory to the Banks and the
Agent, from Robinson, Silverman, Pearce, Aronsohn & Berman, counsel of the
Borrower and the Guarantor, as to such matters as the Agent shall
reasonably request.
Section 10.6. Payment of Fees. The Borrower shall have paid to the
Agent the commitment fee pursuant to Section 4.2.
Section 10.7. Appraisals. The Agent shall have received Appraisals
of the Mortgaged Property in form and substance satisfactory to the
Majority Banks prior to the Closing Date demonstrating that the initial
Collateral has a Designated Collateral Value that is in compliance with the
terms of this Agreement.
Section 10.8. Environmental Reports. The Agent shall have received
environmental site assessment reports for the Mortgaged Property prepared
by an Environmental Engineer no more than three months prior to the Closing
Date, which indicate the condition of the Mortgaged Property and such other
properties and any Buildings thereon and which set forth no qualifications
except those that are acceptable to the Majority Banks in their sole
discretion, and disclosing that each piece of Mortgaged Property and any
Building thereon is free of oil, underground storage tanks, asbestos or
asbestos containing material, lead paint and other Hazardous Substances
(except to the extent acceptable to the Majority Banks in their sole
discretion), and which reports are otherwise in form and substance
satisfactory to the Majority Banks).
Section 10.9. Insurance. The Agent shall have received duplicate
originals or certified copies of all policies of insurance required by this
Agreement.
Section 10.10. Performance; No Default. The Borrower shall have
performed and complied with all terms and conditions herein required to be
performed or complied with by it on or prior to the Closing Date, and on
the Closing Date there shall exist no Default or Event of Default.
Section 10.11. Representations and Warranties. The representations
and warranties made by the Borrower and the Guarantor in the Loan Documents
or otherwise made by or on behalf of any Borrower and Guarantor, or any
Subsidiary thereof, in connection therewith or after the date thereof shall
have been true and correct in all material respects when made and shall
also be true and correct in all material respects on the Closing Date.
Section 10.12. Proceedings and Documents. All proceedings in
connection with the transactions contemplated by this Agreement and the
other Loan Documents shall be reasonably satisfactory to the Agent and the
Agent's Special Counsel in form and substance, and the Agent shall have
received all information and such counterpart originals or certified copies
of such documents and such other certificates, opinions or documents as the
Agent and the Agent's Special Counsel may reasonably require.
Section 10.13. Eligible Real Estate Qualification Documents. The
Eligible Real Estate Qualification Documents for each parcel of Mortgaged
Property shall have been delivered to the Agent.
Section 10.14. Compliance Certificate. A Compliance Certificate
dated as of the date of the Closing Date demonstrating compliance with each
of the covenants calculated therein as of the most recent fiscal quarter
end for which the Borrower has provided financial statements under Section
6.4 adjusted in the best good faith estimate of the Borrower dated as of
the date of the Closing Date shall have been delivered to the Agent.
Section 10.15. Other Documents. To the extent requested by the
Agent, executed copies of all material agreements of any nature whatsoever
to which the Borrower is a party affecting or relating to the use,
operation, development, construction or management of the Mortgaged
Property.
Section 10.16. No Condemnation/Taking. The Agent shall have
received written confirmation from the Borrower that no condemnation
proceedings are pending or to the Borrower's knowledge threatened against
any Mortgaged Property or, if any such proceedings are pending or
threatened, identifying the same and the Mortgaged Property affected
thereby and the Agent shall have determined that none of such proceedings
is or will be material to the Mortgaged Property affected thereby.
Section 10.17. Governmental Policy. Each Bank shall have determined
that there have been no material changes in governmental regulations or
policy affecting the Banks, the Borrower or the Guarantor.
Section 10.18. Other. The Agent shall have reviewed such other
documents, instruments, certificates, opinions, assurances, consents and
approvals as the Agent or the Agent's Special Counsel may reasonably have
requested.
Section 11. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan, whether on or
after the Closing Date, shall also be subject to the satisfaction of the
following conditions precedent:
Section 11.1. Prior Conditions Satisfied. All conditions set forth
in Section 10 shall continue to be satisfied as of the date upon which any
Loan is to be made.
Section 11.2. Representations True; No Default. Each of the
representations and warranties contained in this Agreement, the other Loan
Documents or in any document or instrument delivered pursuant to or in
connection with this Agreement shall be true as of the date as of which
they were made and shall also be true at and as of the time of the making
of such Loan (except that representations and warranties as to any
Guarantors shall not be deemed to have been repeated), with the same effect
as if made at and as of that time (except to the extent of changes
resulting from transactions contemplated or permitted by this Agreement and
the other Loan Documents and changes occurring in the ordinary course of
business that singly or in the aggregate are not materially adverse, and
except to the extent that such representations and warranties relate
expressly to an earlier date) and no Default or Event of Default shall have
occurred and be continuing. Agent shall have received a certificate of the
Borrower signed by an authorized officer of the Borrower to such effect.
Section 11.3. No Legal Impediment. No change shall have occurred in
any law or regulations thereunder or interpretations thereof that in the
reasonable opinion of any Bank would make it illegal for such Bank to make
such Loan.
Section 11.4. Governmental Regulation. Each Bank shall have
received such statements in substance and form reasonably satisfactory to
such Bank as such Bank shall require for the purpose of compliance with any
applicable regulations of the Comptroller of the Currency or the Board of
Governors of the Federal Reserve System.
Section 11.5. Proceedings and Documents. All proceedings in
connection with the Loan shall be satisfactory in substance and in form to
the Majority Banks, and the Majority Banks shall have received all
information and such counterpart originals or certified or other copies of
such documents as the Majority Banks may reasonably request.
Section 11.6. Borrowing Documents. In the case of any request for a
Loan, the Agent shall have received a copy of each of the request for a
Loan required by Section 2.6 in the form of Exhibit B hereto, fully
completed.
Section 11.7. Endorsement to Title Policy. At such time as the
Agent shall determine in its discretion, to the extent available under
applicable law, a "date down" endorsement to each Title Policy indicating
no change in the state of title and containing no survey exceptions not
approved by the Agent, which endorsement shall, expressly or by virtue of a
proper "pending disbursements" clause or endorsement in the Title Policy,
increase the coverage of the Title Policy to the aggregate amount of all
Loans advanced and outstanding on or before the effective date of such
endorsement (provided that the amount of coverage under an individual Title
Policy for an individual Mortgaged Property need not equal the aggregate
amount of all Loans), or if such endorsement is not available, such other
evidence and assurances as the Agent may reasonably require (which evidence
may include, without limitation, an affidavit from the Borrower stating
that there have been no changes in title from the date of the last
effective date of the Title Policy).
Section 11.8. Future Advances Tax Payment. As a condition precedent
to any Bank's obligations to make any Loans, the Borrower will pay or cause
to be paid to the Agent any mortgage, recording, intangible, documentary
stamp or other similar taxes and charges which the Agent reasonably
determines to be payable as a result of such Loan to any state or any
county or municipality thereof in which any of the Mortgaged Property is
located and deliver to the Agent such affidavits or other information which
the Agent reasonably determines to be necessary in connection with the
payment of such tax, in order to insure that the Security Deeds on
Mortgaged Property located in such state secure the Borrower's obligation
with respect to the Loans then being requested. The provisions of this
Section 11.8 shall be without limitation of the Borrower's obligations
under other provisions of the Loan Documents, including without limitation
Section 15 hereof.
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC.
Section 12.1. Events of Default and Acceleration. If any of the
following events ("Events of Default" or, if the giving of notice or the
lapse of time or both is required, then, prior to such notice or lapse of
time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the Loans
when the same shall become due and payable, whether at the stated date of
maturity or any accelerated date of maturity or at any other date fixed for
payment;
(b) the Borrower shall fail to pay any interest on the Loans or
any other sums due hereunder or under any of the other Loan Documents, when
the same shall become due and payable, whether at the stated date of
maturity or any accelerated date of maturity or at any other date fixed for
payment;
(c) Intentionally Omitted.
(d) Intentionally Omitted.
(e) the Borrower or Guarantor or any other party shall fail to
perform any other term, covenant or agreement contained herein or in any of
the other Loan Documents (other than those specified above in this Section
12.1);
(f) any representation or warranty of the Borrower or Guarantor
in this Agreement or any other Loan Document, or in any report,
certificate, financial statement, request for a Loan, or in any other
document or instrument delivered pursuant to or in connection with this
Agreement, any advance of a Loan or any of the other Loan Documents shall
prove to have been false in any material respect upon the date when made or
deemed to have been made or repeated;
(g) the Borrower shall fail to pay at maturity, or within any
applicable period of grace, any obligation for borrowed money or credit
received, or fail to observe or perform any material term, covenant or
agreement contained in any agreement by which it is bound, evidencing or
securing any such borrowed money or credit received for such period of time
as would permit (assuming the giving of appropriate notice if required) the
holder or holders thereof or of any obligations issued thereunder to
accelerate the maturity thereof;
(h) the Borrower (A) shall make an assignment for the benefit of
creditors, or admit in writing its general inability to pay or generally
fail to pay its debts as they mature or become due, or shall petition or
apply for the appointment of a trustee or other custodian, liquidator or
receiver of the Borrower of any substantial part of the assets of any
thereof, (B) shall commence any case or other proceeding relating to the
Borrower under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect, or (C) shall take any action to
authorize or in furtherance of any of the foregoing;
(i) a petition or application shall be filed for the appointment
of a trustee or other custodian, liquidator or receiver of the Borrower or
any substantial part of the assets of any thereof, or a case or other
proceeding shall be commenced against the Borrower under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution
or liquidation or similar law of any jurisdiction, now or hereafter in
effect, and the Borrower shall indicate its approval thereof, consent
thereto or acquiescence therein or such petition, application, case or
proceeding shall not have been dismissed within 60 days following the
filing or commencement thereof;
(j) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower bankrupt or
insolvent, or approving a petition in any such case or other proceeding, or
a decree or order for relief is entered in respect of the Borrower, in each
case of the foregoing in an involuntary case under federal bankruptcy laws
as now or hereafter constituted;
(k) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than 60 days, whether or not consecutive, any uninsured
final judgment against the Borrower that, with other outstanding uninsured
final judgments, undischarged, against the Borrower exceeds in the
aggregate $5,000,000.00;
(l) if any of the Loan Documents shall be canceled, terminated,
revoked or rescinded otherwise than in accordance with the terms thereof or
with the express prior written agreement, consent or approval of the Banks,
or any action at law, suit in equity or other legal proceeding to cancel,
revoke or rescind any of the Loan Documents shall be commenced by or on
behalf of the Borrower or Guarantor or any of their respective holders of
Voting Interests, or any court or any other governmental or regulatory
authority or agency of competent jurisdiction shall make a determination
that, or issue a judgment, order, decree or ruling to the effect that, any
one or more of the Loan Documents is illegal, invalid or unenforceable in
accordance with the terms thereof in any material respect as determined by
the Majority Banks;
(m) any dissolution, termination, partial or complete
liquidation, merger or consolidation of the Borrower or Guarantor, or any
sale, transfer or other disposition of the assets of the Borrower, other
than as permitted under the terms of this Agreement or the other Loan
Documents;
(n) any suit or proceeding shall be filed against the Borrower
or any of the Mortgaged Property which in the good faith business judgment
of the Majority Banks after giving consideration to the likelihood of
success of such suit or proceeding and the availability of insurance to
cover any judgment with respect thereto and based on the information
available to them, if adversely determined, would have a materially adverse
affect on the ability of the Borrower to perform each and every one of
their respective obligations under and by virtue of the Loan Documents;
(o) the Borrower shall be indicted for a federal crime, a
punishment for which could include the forfeiture of any assets of the
Borrower included in the Mortgaged Property;
(p) Jeffrey H. Lynford shall cease to be the Chairman of the
Board of, or Edward Lowenthal shall cease to be the President of Wellsford
Commercial, and a competent and experienced successor for such Person shall
not be approved by the Majority Banks within six (6) months of such event;
(q) Any change in the legal or beneficial ownership of the
Borrower other than any Permitted Indirect Transfer;
(r) with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Majority Banks shall have
determined in their reasonable discretion that such event reasonably could
be expected to result in liability of any of the Borrower or Guarantor to
the PBGC or such Guaranteed Pension Plan in an aggregate amount exceeding
$1,000,000 and such event in the circumstances occurring reasonably could
constitute grounds for the termination of such Guaranteed Pension Plan by
the PBGC or for the appointment by the appropriate United States District
Court of a trustee to administer such Guaranteed Pension Plan; or a trustee
shall have been appointed by the United States District Court to administer
such Plan; or the PBGC shall have instituted proceedings to terminate such
Guaranteed Pension Plan;
(s) Guarantor denies that it has any liability or obligation
under the Guaranty or the Indemnity Agreement, or shall notify the Agent or
any of the Banks of such Guarantor's intention to attempt to cancel or
terminate the Guaranty or the Indemnity Agreement, or shall fail to observe
or comply with any term, covenant, condition or agreement under the
Guaranty or the Indemnity Agreement; or
(t) the Special Member shall fail to be in full and complete
compliance with the Special Member Operating Agreement or the Special
Member Operating Agreement shall be amended or modified without the written
consent of the Agent.
then, and in any such event, the Agent may, and upon the request of the
Majority Banks shall, by notice in writing to the Borrower declare all
amounts owing with respect to this Agreement, the Notes and the other Loan
Documents to be, and they shall thereupon forthwith become, immediately due
and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower; provided
that in the event of any Event of Default specified in Section 12.1(h),
Section 12.1(i) or Section 12.1(j), all such amounts shall become
immediately due and payable automatically and without any requirement of
notice from any of the Banks or the Agent.
Section 12.lA. Limitation of Cure Periods.
(a) Notwithstanding anything contained in Section 12.1 to the
contrary, (i) no Event of Default shall exist hereunder upon the occurrence
of any failure described in Section 12.1(b) in the event that the Borrower
cures such default within five (5) days following receipt of written notice
of such default, provided, however, that Borrower shall not be entitled to
receive more than two (2) notices in the aggregate pursuant to this clause
(i) in any period of 365 days ending on the date of any such occurrence of
default, and provided further that no such cure period shall apply to any
payments due upon the maturity of the Notes, and (ii) no Event of Default
shall exist hereunder upon the occurrence of any failure described in
Section 12.1(e) in the event that the Borrower cures such default with
thirty (30) days following receipt of written notice of such default,
provided that the provisions of this clause (ii) shall not pertain to
defaults consisting of a failure to provide insurance as required by
Section 7.7, to any default consisting of a failure to comply with Section
7.4(e), or to any default excluded from any provision of cure of defaults
contained in any other of the Loan Documents.
(b) Notwithstanding the provisions of subsections (c) and (d) of
Section 12.1 or of Section 12.1B, the cure periods provided therein shall
not be allowed and the occurrence of a Default thereunder immediately shall
constitute an Event of Default for all purposes of this Agreement and the
other Loan Documents if, within the period of twelve months immediately
preceding the occurrence of such Default, there shall have occurred two
periods of cure or portions thereof under any one or more than one of said
subsections.
Section 12.lB. Certain Cure Periods.
(a) In the event that there shall occur any Default under
Section 12.1(c), then within five Business Days after receipt of notice of
such Default from the Agent or the Majority Banks the Borrower may elect to
cure such Default by providing additional Eligible Real Estate as
additional Mortgaged Property or reducing the outstanding Loans, in which
event such actions shall be completed not later than 15 days following the
date on which the Borrower is notified that the Majority Banks have
approved the Borrower's proposed actions (or 60 days in the event that the
Borrower intends to provide additional Mortgaged Property). The Borrower's
notice of its election pursuant to the preceding sentence shall be
delivered to the Agent within the period of five Business Days provided
above. Within five Business Days after receipt of such advice, the
Majority Banks shall advise the Borrower as to whether in their good faith
judgment the actions proposed by the Borrower are sufficient to cure such
Default without the creation of any other Default hereunder. In the event
that the Majority Banks determine that Borrower's proposal is insufficient
to cure such Default or is otherwise not in accordance with the terms of
this Agreement, the Borrower within an additional three Business Days after
such negative notice may submit to the Agent an alternative plan or
evidence establishing that the Borrower's original election was sufficient.
In the event that within the times provided herein the Borrower shall have
failed to provide evidence satisfactory to the Majority Banks that
Borrower's proposed actions are sufficient to cure such Default in
accordance with the terms hereof, the cure period shall terminate and such
Default immediately shall constitute an Event of Default.
(b) In the event that the Borrower shall elect in whole or in
part under subsection 12.1B(a) to provide Eligible Real Estate as
additional Mortgaged Property, the acceptance by the Banks of such Eligible
Real Estate as Mortgaged Property shall be subject to all conditions set
forth in Section 5.4 and on or prior to the expiration of the 60-day
period each of the Eligible Real Estate Qualification Documents shall have
been completed and provided to the Agent for the benefit of the Banks.
Section 12.2. Termination of Commitments. If any one or more Events
of Default specified in Section 12.1(h), Section 12.1(i) or Section
12.1(j) shall occur, then immediately and without any action on the part of
the Agent or any Bank any unused portion of the credit hereunder shall
terminate and the Banks shall be relieved of all obligations to make Loans
to the Borrower. If any other Event of Default shall have occurred and be
continuing, the Agent, upon the election of the Majority Banks, may by
notice to the Borrower terminate the obligation to make Loans to the
Borrower. No termination under this Section 12.2 shall relieve the
Borrower of its obligations to the Banks arising under this Agreement or
the other Loan Documents.
Section 12.3. Remedies. In case any one or more of the Events of
Default shall have occurred and be continuing, and whether or not the Banks
shall have accelerated the maturity of the Loans pursuant to Section 12.1,
the Agent on behalf of the Banks, may, with the consent of the Majority
Banks but not otherwise, proceed to protect and enforce their rights and
remedies under this Agreement, the Notes or any of the other Loan Documents
by suit in equity, action at law or other appropriate proceeding, whether
for the specific performance of any covenant or agreement contained in this
Agreement and the other Loan Documents or any instrument pursuant to which
the Obligations are evidenced, including to the full extent permitted by
applicable law the obtaining of the ex parte appointment of a receiver,
and, if such amount shall have become due, by declaration or otherwise,
proceed to enforce the payment thereof or any other legal or equitable
right. No remedy herein conferred upon the Agent or the holder of any Note
is intended to be exclusive of any other remedy and each and every remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
any other provision of law. In the event that all or any portion of the
Obligations is collected by or through an attorney-at-law, the Borrower
shall pay all costs of collection including, but not limited to, reasonable
attorney's fees not to exceed fifteen percent (15%) of such portion of the
Obligations.
Section 12.4. Distribution of Collateral Proceeds. In the event
that, following the occurrence or during the continuance of any Event of
Default, any monies are received in connection with the enforcement of any
of the Security Documents, or otherwise with respect to the realization
upon any of the Collateral, such monies shall be distributed for
application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of, the Agent for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or
sustained by the Agent to protect or preserve the collateral or in
connection with the collection of such monies by the Agent, for the
exercise, protection or enforcement by the Agent of all or any of the
rights, remedies, powers and privileges of the Agent under this Agreement
or any of the other Loan Documents or in respect of the Collateral or in
support of any provision of adequate indemnity to the Agent against any
taxes or liens which by law shall have, or may have, priority over the
rights of the Agent to such monies;
(b) Second, to all other Obligations in such order or preference
as the Majority Banks shall determine; provided, however, that (i)
distributions in respect of such Obligations shall be made pari passu among
Obligations with respect to the Agent's fee payable pursuant to Section
4.3 and all other Obligations, (ii) in the event that any Bank shall have
wrongfully failed or refused to make an advance under Section 2.7 and such
failure or refusal shall be continuing, advances made by other Banks during
the pendency of such failure or refusal shall be entitled to be repaid as
to principal and accrued interest in priority to the other Obligations
described in this subsection (b), and (iii) Obligations owing to the Banks
with respect to each type of Obligation such as interest, principal, fees
and expenses, shall be made among the Banks pro rata; and provided,
further, that the Majority Banks may in their discretion make proper
allowance to take into account any Obligations not then due and payable;
and
(c) Third, the excess, if any, shall be returned to the Borrower
or to such other Persons as are entitled thereto.
Section 13. SETOFF.
Regardless of the adequacy of any collateral, during the
continuance of any Event of Default, any deposits (general or specific,
time or demand, provisional or final, regardless of currency, maturity, or
the branch of where such deposits are held) or other sums credited by or
due from any of the Banks to the Borrower or any Guarantor and any
securities or other property of the Borrower or any Guarantor in the
possession of such Bank may be applied to or set off against the payment of
Obligations and any and all other liabilities, direct, or indirect,
absolute or contingent, due or to become due, now existing or hereafter
arising, of the Borrower or any Guarantor to such Bank. Each of the Banks
agrees with each other Bank that if such Bank shall receive from the
Borrower or any Guarantor, whether by voluntary payment, exercise of the
right of setoff, or otherwise, and shall retain and apply to the payment of
the Note or Notes held by such Bank any amount in excess of its ratable
portion of the payments received by all of the Banks with respect to the
Notes held by all of the Banks, such Bank will make such disposition and
arrangements with the other Banks with respect to such excess, either by
way of distribution, pro tanto assignment of claims, subrogation or
otherwise as shall result in each Bank receiving in respect of the Notes
held by it its proportionate payment as contemplated by this Agreement;
provided that if all or any part of such excess payment is thereafter
recovered from such Bank, such disposition and arrangements shall be
rescinded and the amount restored to the extent of such recovery, but
without interest.
Section 14. THE AGENT.
Section 14.1. Authorization. The Agent is authorized to take such
action on behalf of each of the Banks and to exercise all such powers as
are hereunder and under any of the other Loan Documents and any related
documents delegated to the Agent, together with such powers as are
reasonably incident thereto, provided that no duties or responsibilities
not expressly assumed herein or therein shall be implied to have been
assumed by the Agent. The obligations of Agent hereunder are primarily
administrative in nature, and nothing contained in this Agreement or any of
the other Loan Documents shall be construed to constitute the Agent as a
trustee for any Bank or to create any agency or fiduciary relationship.
The Borrower and any other Person shall be entitled to conclusively rely on
a statement from the Agent that it has the authority to act for and bind
the Banks pursuant to this Agreement and the other Loan Documents.
Section 14.2. Employees and Agents. The Agent may exercise its
powers and execute its duties by or through employees or agents and shall
be entitled to take, and to rely on, advice of counsel concerning all
matters pertaining to its rights and duties under this Agreement and the
other Loan Documents. The Agent may utilize the services of such Persons as
the Agent may reasonably determine, and all reasonable fees and expenses of
any such Persons shall be paid by the Borrower.
Section 14.3. No Liability. Neither the Agent nor any of its
shareholders, directors, officers or employees nor any other Person
assisting them in their duties nor any agent, or employee thereof, shall be
liable for any waiver, consent or approval given or any action taken, or
omitted to be taken, in good faith by it or them hereunder or under any of
the other Loan Documents, or in connection herewith or therewith, or be
responsible for the consequences of any oversight or error of judgment
whatsoever, except that the Agent or such other Person, as the case may be,
may be liable for losses due to its willful misconduct or gross negligence.
Section 14.4. No Representations. The Agent shall not be
responsible for the execution or validity or enforceability of this
Agreement, the Notes, any of the other Loan Documents or any instrument at
any time constituting, or intended to constitute, collateral security for
the Notes, or for the value of any such collateral security or for the
validity, enforceability or collectability of any such amounts owing with
respect to the Notes, or for any recitals or statements, warranties or
representations made herein or in any of the other Loan Documents or in any
certificate or instrument hereafter furnished to it by or on behalf of the
Borrower or the Guarantor, or be bound to ascertain or inquire as to the
performance or observance of any of the terms, conditions, covenants or
agreements herein or in any other of the Loan Documents. The Agent shall
not be bound to ascertain whether any notice, consent, waiver or request
delivered to it by the Borrower or the Guarantor or any holder of any of
the Notes shall have been duly authorized or is true, accurate and
complete. The Agent has not made nor does it now make any representations
or warranties, express or implied, nor does it assume any liability to the
Banks, with respect to the creditworthiness or financial condition of the
Borrower or the Guarantor. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and
based upon such information and documents as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement.
Each Bank also acknowledges that it will, independently and without
reliance upon the Agent or any other Bank, based upon such information and
documents as it deems appropriate at the time, continue to make its own
credit analysis and decisions in taking or not taking action under this
Agreement and the other Loan Documents.
Section 14.5. Payments.
(a) A payment by the Borrower or the Guarantor to the Agent
hereunder or under any of the other Loan Documents for the account of any
Bank shall constitute a payment to such Bank. The Agent agrees to
distribute to each Bank not later than one Business Day after the Agent's
receipt of good funds, determined in accordance with the Agent's customary
practices, such Bank's pro rata share of payments received by the Agent for
the account of the Banks except as otherwise expressly provided herein or
in any of the other Loan Documents.
(b) If in the opinion of the Agent the distribution of any
amount received by it in such capacity hereunder, under the Notes or under
any of the other Loan Documents might involve it in liability, it may
refrain from making distribution until its right to make distribution shall
have been adjudicated by a court of competent jurisdiction. If a court of
competent jurisdiction shall adjudge that any amount received and
distributed by the Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Agent its
proportionate share of the amount so adjudged to be repaid or shall pay
over the same in such manner and to such Persons as shall be determined by
such court.
(c) Notwithstanding anything to the contrary contained in this
Agreement or any of the other Loan Documents, any Bank that fails (i) to
make available to the Agent its pro rata share of any Loan or (ii) to
comply with the provisions of Section 13 with respect to making
dispositions and arrangements with the other Banks, where such Bank's share
of any payment received, whether by setoff or otherwise, is in excess of
its pro rata share of such payments due and payable to all of the Banks, in
each case as, when and to the full extent required by the provisions of
this Agreement, shall be deemed delinquent (a "Delinquent Bank") and shall
be deemed a Delinquent Bank until such time as such delinquency is
satisfied. A Delinquent Bank shall be deemed to have assigned any and all
payments due to it from the Borrower and the Guarantor, whether on account
of outstanding Loans, interest, fees or otherwise, to the remaining
nondelinquent Banks for application to, and reduction of, their respective
pro rata shares of all outstanding Loans. The Delinquent Bank hereby
authorizes the Agent to distribute such payments to the nondelinquent Banks
in proportion to their respective pro rata shares of all outstanding Loans.
A Delinquent Bank shall be deemed to have satisfied in full a delinquency
when and if, as a result of application of the assigned payments to all
outstanding Loans of the nondelinquent Banks or as a result of other
payments by the Delinquent Banks to the nondelinquent Banks, the Banks'
respective pro rata shares of all outstanding Loans have returned to those
in effect immediately prior to such delinquency and without giving effect
to the nonpayment causing such delinquency.
Section 14.6. Holders of Notes. Subject to the terms of Article 18,
the Agent may deem and treat the payee of any Note as the absolute owner or
purchaser thereof for all purposes hereof until it shall have been
furnished in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
Section 14.7. Indemnity. The Banks ratably agree hereby to
indemnify and hold harmless the Agent from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages,
costs, expenses (including any expenses for which the Agent has not been
reimbursed by the Borrower as required by Section 15), and liabilities of
every nature and character arising out of or related to this Agreement, the
Notes, or any of the other Loan Documents or the transactions contemplated
or evidenced hereby or thereby, or the Agent's actions taken hereunder or
thereunder, except to the extent that any of the same shall be directly
caused by the Agent's willful misconduct or gross negligence.
Section 14.8. Agent as Bank. In its individual capacity, BKB shall
have the same obligations and the same rights, powers and privileges in
respect to its Commitment and the Loans made by it, and as the holder of
any of the Notes as it would have were it not also the Agent.
Section 14.9. Resignation. The Agent may resign at any time by
giving 60 days' prior written notice thereof to the Banks and the Borrower.
Upon any such resignation, the Majority Banks shall have the right to
appoint as a successor Agent any Bank or any bank whose senior debt
obligations are rated not less than "A" or its equivalent by Moody's
Investors Service, Inc. or not less than "A" or its equivalent by Standard
& Poor's corporation and which has total assets in excess of $10 billion.
Unless a Default or Event of Default shall have occurred and be continuing,
such successor Agent shall be reasonably acceptable to the Borrower. If no
successor Agent shall have been so appointed by the Majority Banks and
shall have accepted such appointment within 30 days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent, which shall be a Bank or
any bank whose debt obligations are rated not less than "A" or its
equivalent by Moody's Investors Service, Inc. or not less than "A" or its
equivalent by Standard & Poor's Corporation and which has total assets in
excess of $10 billion. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder as Agent. After any retiring
Agent's resignation, the provisions of this Agreement and the other Loan
Documents shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Agent.
Section 14.10. Duties in the Case of Enforcement. In case one or
more Events of Default have occurred and shall be continuing, and whether
or not acceleration of the Obligations shall have occurred, the Agent
shall, if (a) so requested by the Majority Banks and (b) the Banks have
provided to the Agent such additional indemnities and assurances against
expenses and liabilities as the Agent may reasonably request, proceed to
enforce the provisions of the Security Documents authorizing the sale or
other disposition of all or any part of the Collateral and exercise all or
any such other legal and equitable and other rights or remedies as it may
have in respect of such Collateral. The Majority Banks may direct the
Agent in writing as to the method and the extent of any such sale or other
disposition, the Banks hereby agreeing to indemnify and hold the Agent
harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that the Agent need
not comply with any such direction to the extent that the Agent reasonably
believes the Agent's compliance with such direction to be unlawful or
commercially unreasonable in any applicable jurisdiction.
Section 15. EXPENSES.
The Borrower agrees to pay (a) the reasonable costs of producing
and reproducing this Agreement, the other Loan Documents and the other
agreements and instruments mentioned herein, (b) any taxes (including any
interest and penalties in respect thereto) payable by the Agent or any of
the Banks (other than taxes based upon the Agent's or any Bank's gross or
net income, except that the Agent and the Banks shall be entitled to
indemnification for any and all amounts paid by them in respect of taxes
based on income or other taxes assessed by any State in which Mortgaged
Property or other Collateral is located, such indemnification to be limited
to taxes due solely on account of the granting of Collateral under the
Security Documents and to be net of any credit allowed to the indemnified
party from any other State on account of the payment or incurrence of such
tax by such indemnified party), including any recording, mortgage,
documentary or intangibles taxes in connection with the Security Deeds and
other Loan Documents, or other taxes payable on or with respect to the
transactions contemplated by this Agreement, including any such taxes
payable by the Agent or any of the Banks after the Closing Date (the
Borrower hereby agreeing to indemnify the Agent and each Bank with respect
thereto), (c) all title insurance premiums, appraisal fees, engineer's
fees, reasonable internal charges of the Agent (determined in good faith
and in accordance with the Agent's internal policies applicable generally
to its customers) for commercial finance exams and engineering and
environmental reviews and the reasonable fees, expenses and disbursements
of the counsel to the Agent, counsel for the Majority Banks and any local
counsel to the Agent incurred in connection with the preparation,
administration or interpretation of the Loan Documents and other
instruments mentioned herein (excluding, however, the preparation of
agreements evidencing participations granted under Section 18.4), the
review of any additional or substitute Collateral, the addition of any
guarantor, each closing hereunder, and amendments, modifications,
approvals, consents or waivers hereto or hereunder, (d) the reasonable
fees, expenses and disbursements of the Agent incurred by the Agent in
connection with the preparation, administration or interpretation of the
Loan Documents and other instruments mentioned herein, and the making of
each advance hereunder, (e) all reasonable out-of-pocket expenses
(including reasonable attorneys' fees and costs, which attorneys may be
employees of any Bank or the Agent and the fees and costs of appraisers,
engineers, investment bankers or other experts retained by any Bank or the
Agent) incurred by any Bank or the Agent in connection with (i) the
enforcement of or preservation of rights under any of the Loan Documents
against the Borrower or any guarantor or the administration thereof after
the occurrence of a Default or Event of Default and (ii) any litigation,
proceeding or dispute whether arising hereunder or otherwise, in any way
related to the Agent's or any of the Bank's relationship with the Borrower
or any guarantor, (f) all reasonable fees, expenses and disbursements of
any Bank or the Agent incurred in connection with U.C.C. searches, U.C.C.
filings, title rundowns, title searches or mortgage recordings, and (g) all
reasonable fees and expenses of Goldman and its counsel incurred in
connection with the initial closing under this Agreement, and (h) all
reasonable fees and expenses (including reasonable attorney's fees and
costs) incurred by BankBoston and Goldman in connection with the assignment
of Commitments and interests in the Loans pursuant to Section 18.1. The
covenants of this Section 15 shall survive payment or satisfaction of
payment of amounts owing with respect to the Notes.
Section 16. INDEMNIFICATION.
The Borrower agrees to indemnify and hold harmless the Agent and
the Banks and each director, officer, employee, agent and Person who
controls the Agent or any Bank from and against any and all claims, actions
and suits, whether groundless or otherwise, and from and against any and
all liabilities, losses, damages and expenses of every nature and character
arising out of or relating to this Agreement or any of the other Loan
Documents or the transactions contemplated hereby and thereby including,
without limitation, (a) any leasing fees and any brokerage, finders or
similar fees asserted against any Person indemnified under this Section 16
based upon any agreement, arrangement or action made or taken, or alleged
to have been made or taken, by the Borrower or Guarantor, (b) any condition
of the Mortgaged Property, (c) any actual or proposed use by the Borrower
of the proceeds of any of the Loans, (d) any actual or alleged infringement
of any patent, copyright, trademark, service mark or similar right of the
Borrower, or Guarantor comprised in the Collateral, (e) the Borrower and
the Guarantor entering into or performing this Agreement or any of the
other Loan Documents, (f) any actual or alleged violation of any law,
ordinance, code, order, rule, regulation, approval, consent, permit or
license relating to the Mortgaged Property, or (g) with respect to the
Borrower, or Guarantor and their respective properties and assets, the
violation of any Environmental Law, the Release or threatened Release of
any Hazardous Substances or any action, suit, proceeding or investigation
brought or threatened with respect to any Hazardous Substances (including,
but not limited to claims with respect to wrongful death, personal injury
or damage to property), in each case including, without limitation, the
reasonable fees and disbursements of counsel and allocated costs of
internal counsel incurred in connection with any such investigation,
litigation or other proceeding; provided, however, that the Borrower shall
not be obligated under this Section 16 to indemnify any Person for
liabilities arising from such Person's own gross negligence or willful
misconduct. In litigation, or the preparation therefor, the Banks and the
Agent shall be entitled to select a single law firm as their own counsel
and, in addition to the foregoing indemnity, the Borrower agrees to pay
promptly the reasonable fees and expenses of such counsel. If, and to the
extent that the obligations of the Borrower under this Section 16 are
unenforceable for any reason, the Borrower hereby agrees to make the
maximum contribution to the payment in satisfaction of such obligations
which is permissible under applicable law. The provisions of this Section
16 shall survive the repayment of the Loans and the termination of the
obligations of the Banks hereunder.
Section 17. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made
herein, in the Notes, in any of the other Loan Documents or in any
documents or other papers delivered by or on behalf of the Borrower or
Guarantor pursuant hereto or thereto shall be deemed to have been relied
upon by the Banks and the Agent, notwithstanding any investigation
heretofore or hereafter made by any of them, and shall survive the making
by the Banks of any of the Loans, as herein contemplated, and shall
continue in full force and effect so long as any amount due under this
Agreement or the Notes or any of the other Loan Documents remains
outstanding or any Bank has any obligation to make any Loans. The
indemnification obligations of the Borrower provided herein and the other
Loan Documents shall survive the full repayment of amounts due and the
termination of the obligations of the Banks hereunder and thereunder to the
extent provided herein and therein. All statements contained in any
certificate or other paper delivered to any Bank or the Agent at any time
by or on behalf of the Borrower or Guarantor pursuant hereto or in
connection with the transactions contemplated hereby shall constitute
representations and warranties by the Borrower or the Guarantor hereunder.
Section 18. ASSIGNMENT AND PARTICIPATION.
Section 18.1. Conditions to Assignment by Banks. Except as provided
herein, each Bank may assign to one or more banks or other entities all or
a portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Commitment Percentage and Commitment and
the same portion of the Loans at the time owing to it, and the Notes held
by it); provided that (a) the Agent shall have given its prior written
consent to such assignment, which consent shall not be unreasonably
withheld (provided that such consent shall not be required for any
assignment to another Bank, to a bank which is under common control with
the assigning Bank or to a wholly-owned Subsidiary of such Bank provided
that such assignee shall remain a wholly-owned Subsidiary of such Bank),
(b) each such assignment shall be of a constant, and not a varying,
percentage of all the assigning Bank's rights and obligations under this
Agreement, (c) the parties to such assignment shall execute and deliver to
the Agent, for recording in the Register (as hereinafter defined), a notice
of such assignment, together with any Notes subject to such assignment,
(d) in no event shall any voting, consent or approval rights of a Bank be
assigned to any Person controlling, controlled by or under common control
with, or which is not otherwise free from influence or control by, the
Borrower or Guarantor, which rights shall instead be allocated pro rata
among the other remaining Banks, (e) such assignee shall have a net worth
as of the date of such assignment of not less than $500,000,000 and (f)
such assignee shall acquire an interest in the Loans of not less than
$10,000,000.00. No such assignment shall be made without the prior consent
of the Borrower, which consent shall not be unreasonably withheld or
delayed; provided that such consent shall not be required in the event that
a Default or Event of Default shall have occurred. Upon such execution,
delivery, acceptance and recording, of such notice of assignment, (i) the
assignee thereunder shall be a party hereto and all other Loan Documents
executed by the Banks and, to the extent provided in such assignment, have
the rights and obligations of a Bank hereunder, (ii) the assigning Bank
shall, to the extent provided in such assignment and upon payment to the
Agent of the registration fee referred to in Section 18.2, be released
from its obligations under this Agreement, and (iii) the Agent may
unilaterally amend Schedule 1.1 to reflect such assignment. In connection
with each assignment, the assignee shall represent and warrant to the
Agent, the assignor and each other Bank as to whether such assignee is
controlling, controlled by, under common control with or is not otherwise
free from influence or control by, the Borrower or Guarantor.
Section 18.2. Register. The Agent shall maintain a copy of each
assignment delivered to it and a register or similar list (the "Register")
for the recordation of the names and addresses of the Banks and the
Commitment Percentages of, and principal amount of the Loans owing to the
Banks from time to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and the Borrower, the Agent and the Banks
may treat each Person whose name is recorded in the Register as a Bank
hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower and the Banks at any reasonable
time and from time to time upon reasonable prior notice. Upon each such
recordation, the assigning Bank agrees to pay to the Agent a registration
fee in the sum of $2,000.
Section 18.3. New Notes. Upon its receipt of an assignment executed
by the parties to such assignment, together with each Note subject to such
assignment, the Agent shall (a) record the information contained therein in
the Register, and (b) give prompt notice thereof to the Borrower and the
Banks (other than the assigning Bank). Within five Business Days after
receipt of such notice, the Borrower, at its own expense, shall execute and
deliver to the Agent, in exchange for each surrendered Note, a new Note to
the order of such assignee in an amount equal to the amount assumed by such
assignee pursuant to such assignment and, if the assigning Bank has
retained some portion of its obligations hereunder, a new Note to the order
of the assigning Bank in an amount equal to the amount retained by it
hereunder, and shall cause the Guarantor to deliver to Agent an
acknowledgment in form and substance satisfactory to the Agent to the
effect that the Guaranty extends and is applicable to each new Note. Such
new Notes shall provide that they are replacements for the surrendered
Notes, shall be in an aggregate principal amount equal to the aggregate
principal amount of the surrendered Notes, shall be dated the effective
date of such assignment and shall otherwise be in substantially the form of
the assigned Notes. The surrendered Notes shall be canceled and returned
to the Borrower.
Section 18.4. Participations. Each Bank may sell participations to
one or more banks or other entities in all or a portion of such Bank's
rights and obligations under this Agreement and the other Loan Documents;
provided that (a) any such sale or participation shall not affect the
rights and duties of the selling Bank hereunder to the Borrower, (b) such
sale and participation shall not entitle such participant any rights or
privileges under this Agreement or the Loan Documents (including, without
limitation, the right to approve waivers, amendments or modifications),
(c) such participant shall have no direct rights against the Borrower or
the Guarantor except the rights granted to the Banks pursuant to Section
13, (d) such sale is effected in accordance with all applicable laws, and
(e) such participant shall not be a Person controlling, controlled by or
under common control with, or which is not otherwise free from influence or
control by, the Borrower or Guarantor.
Section 18.5. Pledge by Bank. Any Bank may at any time pledge all
or any portion of its interest and rights under this Agreement (including
all or any portion of its Note) to any of the twelve Federal Reserve Banks
organized under Section 4 of the Federal Reserve Act, 12 U.S.C. Section
341. No such pledge or the enforcement thereof shall release the pledgor
Bank from its obligations hereunder or under any of the other Loan
Documents.
Section 18.6. No Assignment by Borrower. The Borrower shall not
assign or transfer any of its rights or obligations under any of the Loan
Documents without the prior written consent of each of the Banks.
Section 18.7. Disclosure. The Borrower agrees that in addition to
disclosures made in accordance with standard banking practices any Bank may
disclose information obtained by such Bank pursuant to this Agreement to
assignees or participants and potential assignees or participants
hereunder.
Section 19. NOTICES.
Each notice, demand, election or request provided for or permitted to
be given pursuant to this Agreement (hereinafter in this Section 19
referred to as "Notice"), but specifically excluding to the maximum extent
permitted by law any notices of the institution or commencement of
foreclosure proceedings, must be in writing and shall be deemed to have
been properly given or served by personal delivery or by sending same by
overnight courier or by depositing same in the United States Mail, postpaid
and registered or certified, return receipt requested, or as expressly
permitted herein, by telegraph, telecopy, telefax or telex, and addressed
as follows:
If to the Agent or BKB:
BankBoston, N.A.
100 Federal Street
Boston, Massachusetts 02110
Attn: Real Estate Division
With a copy to:
BankBoston, N.A.
115 Perimeter Center Place, N.E.
Suite 500
Atlanta, Georgia 30346
Attn: Mr. Jay Johns
Telecopy No.: 770/390-8434
If to the Borrower:
WEL/WH 1275 K Street, L.L.C.
620 Fifth Avenue
7th Floor
New York, New York 10020
Attn: Mr. Gregory F. Hughes
With a copy to:
Alan S. Pearce, Esq.
Robinson Silverman Pearce Aronsohn & Berman LLP
1290 Avenue of the Americas
New York, New York 10104
if to another Bank now a party to this Agreement, to the address set forth
on the signature page hereto, and to each other Bank which may hereafter
become a party to this Agreement at such address as may be designated by
such Bank. Each Notice shall be effective upon being personally delivered
or upon being sent by overnight courier or upon being deposited in the
United States Mail as aforesaid. The time period in which a response to
such Notice must be given or any action taken with respect thereto (if
any), however, shall commence to run from the date of receipt if personally
delivered or sent by overnight courier, or if so deposited in the United
States Mail, the earlier of three (3) Business Days following such deposit
or the date of receipt as disclosed on the return receipt. Rejection or
other refusal to accept or the inability to deliver because of changed
address for which no notice was given shall be deemed to be receipt of the
Notice sent. By giving at least fifteen (15) days prior Notice thereof,
the Borrower, a Bank or Agent shall have the right from time to time and at
any time during the term of this Agreement to change their respective
addresses and each shall have the right to specify as its address any other
address within the United States of America.
Section 20. RELATIONSHIP.
Neither the Agent nor any Bank has any fiduciary relationship with or
fiduciary duty to Borrower arising out of or in connection with this
Agreement or the other Loan Documents, or the transactions contemplated
hereunder or thereunder, and the relationship between each Bank and the
Borrower is solely that of a lender and borrower, and nothing contained
herein or in any of the other Loan Documents shall in any manner be
construed as making the parties hereto partners, joint venturers or any
other relationship other than lender and borrower.
Section 21. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE.
THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF
THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF SUCH STATE (EXCLUDING THE LAWS APPLICABLE
TO CONFLICTS OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT
THE ADDRESS SPECIFIED IN Section 19. THE BORROWER HEREBY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT
OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
Section 22. HEADINGS.
The captions in this Agreement are for convenience of reference only
and shall not define or limit the provisions hereof.
Section 23. COUNTERPARTS.
This Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which
when so executed and delivered shall be an original, and all of which
together shall constitute one instrument. In proving this Agreement it
shall not be necessary to produce or account for more than one such
counterpart signed by the party against whom enforcement is sought.
Section 24. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Agreement
nor any term hereof may be changed, waived, discharged or terminated,
except as provided in Section 27.
Section 25. WAIVER OF JURY TRIAL.
EACH OF THE BORROWER, THE AGENT AND THE BANKS HEREBY WAIVES ITS
RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF
ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY NOTE OR ANY OF THE OTHER
LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. THE BORROWER (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK OR THE AGENT HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH BANK OR THE AGENT WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT THE AGENT AND THE BANKS HAVE BEEN INDUCED TO ENTER INTO
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE PARTIES BY,
AMONG OTHER THINGS, THE WAIVER AND CERTIFICATIONS CONTAINED IN THIS Section
25.
Section 26. DEALINGS WITH THE BORROWER.
The Banks and their affiliates may accept deposits from, extend credit
to and generally engage in any kind of banking, trust or other business
with the Borrower or the Guarantor or any of their affiliates regardless of
the capacity of the Bank hereunder.
Section 27. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Agreement, any consent
or approval required or permitted by this Agreement may be given, and any
term of this Agreement or of any other instrument related hereto or
mentioned herein may be amended, and the performance or observance by the
Borrower or the Guarantor of any terms of this Agreement or such other
instrument or the continuance of any Default or Event of Default may be
waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of
the Majority Banks. Notwithstanding the foregoing, none of the following
may occur without the written consent of each Bank: a change in the rate
of interest on and the term of the Notes; a change in the amount of the
Commitments of the Banks; a forgiveness, reduction or waiver of the
principal of any unpaid Loan or any interest thereon or fee payable under
the Loan Documents; a change in the amount of any fee payable to a Bank
hereunder; the postponement of any date fixed for any payment of principal
of or interest on the Loan; an extension of the Maturity Date; a change in
the manner of distribution of any payments to the Banks or the Agent; the
release of the Borrower or the Guarantor or any Collateral except as
otherwise provided herein; an amendment of the definition of Majority Banks
or of any requirement for consent by all of the Banks; any modification to
require a Bank to fund a pro rata share of a request for an advance of the
Loan made by the Borrower other than based on its Commitment Percentage; an
amendment to this Section 27; an amendment of the definition of Majority
Banks; or an amendment of any provision of this Agreement or the Loan
Documents which requires the approval of all of the Banks or the Majority
Banks to require a lesser number of Banks to approve such action. The
amount of the Agent's fee payable for the Agent's account and the
provisions of Section 14 may not be amended without the written consent of
the Agent. No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon. No course of
dealing or delay or omission on the part of the Agent or any Bank in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the Borrower shall
entitle the Borrower to other or further notice or demand in similar or
other circumstances.
Section 28. SEVERABILITY.
The provisions of this Agreement are severable, and if any one
clause or provision hereof shall be held invalid or unenforceable in whole
or in part in any jurisdiction, then such invalidity or unenforceability
shall affect only such clause or provision, or part thereof, in such
jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this
Agreement in any jurisdiction.
Section 29. NO UNWRITTEN AGREEMENTS.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS
BETWEEN THE PARTIES.
Section 30. TIME OF THE ESSENCE.
Time is of the essence with respect to each and every covenant,
agreement and obligation of the Borrower under this Agreement and the other
Loan Documents.
Section 31. LIMITATION ON LIABILITY.
NO OBLIGATION OR LIABILITY WHATSOEVER OF THE BORROWER WHICH MAY ARISE
AT ANY TIME UNDER THIS AGREEMENT OR ANY OBLIGATION OR LIABILITY WHICH MAY
BE INCURRED BY IT PURSUANT TO ANY OTHER LOAN DOCUMENT SHALL BE PERSONALLY
BINDING UPON, NOR SHALL RESORT FOR THE ENFORCEMENT THEREOF BE HAD TO, THE
PRIVATE PROPERTY OF ANY OF THE BORROWER'S MEMBERS REGARDLESS OF WHETHER
SUCH OBLIGATION OR LIABILITY IS IN THE NATURE OF CONTRACT, TORT OR
OTHERWISE; PROVIDED, HOWEVER, NOTHING HEREIN SHALL DIMINISH OR IMPAIR THE
RIGHTS OF AGENT AND THE BANKS TO PURSUE ANY REMEDY AGAINST ANY ASSETS OF
THE BORROWER OR RELIEVE, REDUCE OR IMPAIR ANY OBLIGATION OF ANY GUARANTOR
UNDER ITS GUARANTY OR INDEMNITY AGREEMENT.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as a sealed instrument as of the date first set forth above.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
WEL/WH 1275 K STREET, L.L.C.
By: WELLSFORD/WHITEHALL PROPERTIES, L.L.C.,
Managing Member
By: WELLSFORD COMMERCIAL PROPERTIES
TRUST, Manager
By: /s/ Edward Lowenthal
Edward Lowenthal
President
BANKBOSTON, N.A., a national banking
association, individually and as Agent
By:/s/ Mark Basham
------------------------------
Title: Managing Director
[BANK SEAL]
GOLDMAN SACHS MORTGAGE COMPANY, a New
York limited partnership, individually
and as Co-Arranger and Co-Syndication
Agent
By: Goldman Sachs Real Estate Funding
Corp., general partner
By: /s/ Robert R. Foley
Name: Robert R. Foley
Title: Authorized Signatory
[CORPORATE SEAL]
Goldman Sachs Mortgage Company
85 Broad Street
New York, New York 10004
Attn: Mr. Bob Foley
EXHIBIT A
FORM OF NOTE
$______________ _______________
FOR VALUE RECEIVED, the undersigned ___________________________, a
_______________________, hereby promises to pay to
_______________________________ or order, in accordance with the terms of
that certain Term Loan Agreement dated as of December 15, 1997 (the "Credit
Agreement"), as from time to time in effect, among the undersigned,
BankBoston, N.A., for itself and as Agent, Goldman Sachs Mortgage Company,
and such other Banks as may be from time to time named therein, to the
extent not sooner paid, on or before the Maturity Date, the principal sum
of ____________________________ DOLLARS ($______________), or such amount
as may be advanced by the payee hereof under the Credit Agreement with
daily interest from the date hereof, computed as provided in the Credit
Agreement, on the principal amount hereof from time to time unpaid, at a
rate per annum on each portion of the principal amount which shall at all
times be equal to the rate of interest applicable to such portion in
accordance with the Credit Agreement, and with interest on overdue
principal and, to the extent permitted by applicable law, on overdue
installments of interest and late charges at the rates provided in the
Credit Agreement. Interest shall be payable on the dates specified in the
Credit Agreement, except that all accrued interest shall be paid at the
stated or accelerated maturity hereof or upon the prepayment in full
hereof. Capitalized terms used herein and not otherwise defined herein
shall have the meanings set forth in the Credit Agreement.
Payments hereunder shall be made to BankBoston, N.A., as Agent for the
payee hereof, 100 Federal Street, Boston, Massachusetts 02110.
This Note is one of one or more Notes evidencing borrowings under and
is entitled to the benefits and subject to the provisions of the Credit
Agreement. The principal of this Note may be due and payable in whole or
in part prior to the maturity date stated above and is subject to mandatory
prepayment in the amounts and under the circumstances set forth in the
Credit Agreement, and prepayment is permitted or prohibited in whole or
from time to time in part, all as set forth in the Credit Agreement.
Notwithstanding anything in this Note to the contrary, all agreements
between the Borrower and the Banks and the Agent, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that
in no contingency, whether by reason of acceleration of the maturity of any
of the Obligations or otherwise, shall the interest contracted for, charged
or received by the Banks exceed the maximum amount permissible under
applicable law. If, from any circumstance whatsoever, interest would
otherwise be payable to the Banks in excess of the maximum lawful amount,
the interest payable to the Banks shall be reduced to the maximum amount
permitted under applicable law; and if from any circumstance the Banks
shall ever receive anything of value deemed interest by applicable law in
excess of the maximum lawful amount, an amount equal to any excessive
interest shall be applied to the reduction of the principal balance of the
Obligations and to the payment of interest or, if such excessive interest
exceeds the unpaid balance of principal of the Obligations, such excess
shall be refunded to the Borrower. All interest paid or agreed to be paid
to the Banks shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full period until
payment in full of the principal of the Obligations (including the period
of any renewal or extension thereof) so that the interest thereon for such
full period shall not exceed the maximum amount permitted by applicable
law. This paragraph shall control all agreements between the Borrower and
the Banks and the Agent.
In case an Event of Default shall occur, the entire principal amount
of this Note may become or be declared due and payable in the manner and
with the effect provided in said Credit Agreement.
This Note shall be governed by and construed in accordance with the
laws of the State of New York (without giving effect to the conflict of
laws rules of any jurisdiction).
The undersigned maker and all guarantors and endorsers, hereby waive
presentment, demand, notice, protest, notice of intention to accelerate the
indebtedness evidenced hereby, notice of acceleration of the indebtedness
evidenced hereby and all other demands and notices in connection with the
delivery, acceptance, performance and enforcement of this Note, except as
specifically otherwise provided in the Credit Agreement, and assent to
extensions of time of payment or forbearance or other indulgence without
notice.
IN WITNESS WHEREOF the undersigned has by its duly authorized
officers, executed this Note under seal as of the day and year first above
written.
WEL/WH 1275 K STREET, L.L.C.
By: WELLSFORD/WHITEHALL PROPERTIES, L.L.C.,
Managing Member
By: WELLSFORD COMMERCIAL PROPERTIES
TRUST, Manager
By:___________________________
Edward Lowenthal
President
EXHIBIT B
FORM OF REQUEST FOR LOAN
BankBoston, N.A.,as Agent
115 Perimeter Center Place, N.E.
Suite 500
Atlanta, Georgia 30346
Attn: Mr. Jay Johns
Ladies and Gentlemen:
Pursuant to the provisions of Section 2.6 of the Term Loan Agreement
dated December 15, 1997, as from time to time in effect (the "Credit
Agreement"), among WEL/WH 1275 K Street, L.L.C. (the "Borrower"),
BankBoston, N.A., for itself and as Agent, Goldman Sachs Mortgage Company,
and the other Banks from time to time party thereto, the Borrower hereby
requests and certifies as follows:
1. Loan. The Borrower hereby requests a Loan under Section 2.1 of
the Credit Agreement:
Principal Amount: $
Type (Eurodollar, Base Rate):
Drawdown Date: _____________, 19__
Interest Period:
by credit to the general account of the Borrower with the Agent at the
Agent's Head Office.
2. Use of Proceeds. Such Loan shall be used for the following
purposes permitted by Section 7.11 of the Credit Agreement:
[Describe]
3. Capital Improvement Project. In the event that such Loan relates
to any Capital Improvement Project or portion thereof, the Borrower
represents and warrants that such Loan will reimburse the Borrower for or
pay costs incurred for work on the Capital Improvement Project identified
above, which work covered by this request is in place or is for stored
materials which are properly secured. The Borrower further certifies that
all materialmen, laborers, subcontractors and any other parties who might
or could claim statutory or common law liens and are furnishing or have
furnished material or labor to the Mortgaged Property in connection with
such Capital Improvement Project have been paid (or will be paid from the
proceeds of the requested advance) all amounts due for such labor and
materials. The total amount heretofore borrowed under the Loans for
Capital Improvement Projects, exclusive of the amount requested hereby, is
$______________, leaving $___________ available for disbursements under
Section ____ of the Credit Agreement for Capital Improvement Projects.
4. No Default. The undersigned chief financial or chief accounting
officer of the Borrower certifies that the Borrower is and will be in
compliance with all covenants under the Loan Documents after giving effect
to the making of the Loan requested hereby. No condemnation proceedings
are pending or to the Borrower's knowledge threatened against any Mortgaged
Property.
5. Representations True. Each of the representations and warranties
made by or on behalf of the Borrower and the Guarantor contained in the
Credit Agreement, in the other Loan Documents or in any document or
instrument delivered pursuant to or in connection with the Credit Agreement
was true as of the date as of which it was made and shall also be true at
and as of the Drawdown Date for the Loan requested hereby, with the same
effect as if made at and as of such Drawdown Date (except to the extent of
changes resulting from transactions contemplated or permitted by the Credit
Agreement and the other Loan Documents and changes occurring in the
ordinary course of business that singly or in the aggregate are not
materially adverse, and except to the extent that such representations and
warranties relate expressly to an earlier date) and no Default or Event of
Default has occurred and is continuing.
6. Other Conditions. All other conditions to the making of the Loan
requested hereby set forth in Section 11 of the Credit Agreement have been
satisfied. (Reference title insurance "date down", if applicable.)
7. Drawdown Date. Except to the extent, if any, specified by notice
actually received by the Agent prior to the Drawdown Date specified above,
the foregoing representations and warranties shall be deemed to have been
made by the Borrower on and as of such Drawdown Date.
8. Definitions. Terms defined in the Credit Agreement are used
herein with the meanings so defined.
IN WITNESS WHEREOF, I have hereunto set my hand this _____ day of
_______________, 199___.
WEL/WH 1275 K STREET, L.L.C.
By: WELLSFORD/WHITEHALL PROPERTIES, L.L.C.,
Managing Member
By: WELLSFORD COMMERCIAL PROPERTIES
TRUST, Manager
By:___________________________
Edward Lowenthal
President
EXHIBIT C
FORM OF
COMPLIANCE CERTIFICATE
BankBoston, N.A.,
for itself and as Agent
115 Perimeter Center Place, N.E.
Suite 500
Atlanta, Georgia 30346
Attn: Mr. Jay Johns
Ladies and Gentlemen:
Reference is made to the Term Loan Agreement dated as of December 15,
1997 (the "Credit Agreement") by and among WEL/WH 1275 K Street, L.L.C.
(the "Borrower"), BankBoston, N.A., for itself and as Agent, Goldman Sachs
Mortgage Company, and the other Banks from time to time party thereto.
Terms defined in the Credit Agreement and not otherwise defined herein are
used herein as defined in the Credit Agreement.
Pursuant to the Credit Agreement, the Borrower is furnishing to you
herewith (or has most recently furnished to you) the financial statements
of the Borrower for the fiscal period ended September 30, 1997 (the
"Balance Sheet Date"). Such financial statements have been prepared in
accordance with generally accepted accounting principles and present fairly
the financial position of the Borrower covered thereby at the date thereof
and the results of their operations for the periods covered thereby,
subject in the case of interim statements only to normal year-end audit
adjustments.
This certificate is submitted in compliance with requirements of
Section 9.4 of the Credit Agreement. The calculations provided below are
made using the financial statements of the Revolver Borrower as of the
Balance Sheet Date adjusted in the best good-faith estimate of the Borrower
to give effect to the making of a Loan, or other event that occasions the
preparation of this certificate; and the nature of such event and the
Borrower's estimate of its effects are set forth in reasonable detail in an
attachment hereto. The undersigned officer of the Borrower is its chief
financial or chief accounting officer.
The undersigned officer has caused the provisions of the Credit
Agreement to be reviewed and has no knowledge of any Default or Event of
Default. (Note: If the signer does have knowledge of any Default or Event
of Default, the form of certificate should be revised to specify the
Default or Event of Default, the nature thereof and the actions taken,
being taken or proposed to be taken by the Borrower with respect thereto.)
The Borrower is providing the following information to demonstrate
compliance as of the date hereof with the following covenants:
I. Section 9.4 Net Operating Income
A. Total outstanding principal balance of Loans
(after giving effect to any Loan Request) $__________
B. Net Operating Income
(for previous four quarters) $__________
Minus Capital Improvement $__________
Reserve (for such period)
Divided by 9.5% capitalization rate $__________
[B may not exceed 0.75 of A]
IN WITNESS WHEREOF, I have hereunto set may hand this __ day
____________, _______.
WEL/WH 1275 K STREET, L.L.C.
By: WELLSFORD/WHITEHALL PROPERTIES, L.L.C.,
Managing Member
By: WELLSFORD COMMERCIAL PROPERTIES
TRUST, Manager
By:___________________________
Edward Lowenthal
President
SCHEDULE 1.1
BANKS AND COMMITMENTS
Name and Address Commitment Commitment Percentage
BankBoston, N.A. $112,500,000 50%
100 Federal Street
Boston, Massachusetts 02110
Attn: Real Estate Division
Eurodollar Lending Office
Same as above
Goldman Sachs Mortgage Company $112,500,000 50%
85 Broad Street
New York, New York 10004
Attn: Mr. Bob Foley
Eurodollar Lending Office
Same as above
Total Commitment $225,000,000 100%
SCHEDULE 5.3
DESCRIPTION OF GREENBROOK CORPORATE
CENTER VACANT LAND
SCHEDULE 6.7
LITIGATION
None.
SCHEDULE 6.17
ERISA PLANS
None.
SCHEDULE 6.24
AGREEMENTS
NONE
TABLE OF CONTENTS
Section 1. DEFINITIONS AND RULES OF INTERPRETATION. . . . . . . . . . . 1
Section 1.1. Definitions. . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Rules of Interpretation.. . . . . . . . . . . . . . .15
Section 2. THE TERM LOAN. . . . . . . . . . . . . . . . . . . . . . . .15
Section 2.1. Commitment to Lend. . . . . . . . . . . . . . . . . .15
Section 2.2. Intentionally Omitted. . . . . . . . . . . . . . . .16
Section 2.3. Intentionally Omitted. . . . . . . . . . . . . . . . .16
Section 2.4. Notes. . . . . . . . . . . . . . . . . . . . . . . .16
Section 2.5. Interest on Loans.. . . . . . . . . . . . . . . . . .16
Section 2.6. Requests for Loans. . . . . . . . . . . . . . . . . .16
Section 2.7. Funds for Loans.. . . . . . . . . . . . . . . . . . .18
Section 3. REPAYMENT OF THE LOANS.. . . . . . . . . . . . . . . . . . .18
Section 3.1. Stated Maturity. . . . . . . . . . . . . . . . . . .18
Section 3.2. Intentionally Omitted . . . . . . . . . . . . . . . .18
Section 3.3. Optional Prepayments. . . . . . . . . . . . . . . . .18
Section 3.4. Partial Prepayments. . . . . . . . . . . . . . . . .19
Section 3.5. Effect of Prepayments. . . . . . . . . . . . . . . .19
Section 4. CERTAIN GENERAL PROVISIONS.. . . . . . . . . . . . . . . . .19
Section 4.1. Conversion Options. . . . . . . . . . . . . . . . . .19
Section 4.2. Closing Fee. . . . . . . . . . . . . . . . . . . . .20
Section 4.3. Agent's Fee. . . . . . . . . . . . . . . . . . . . .20
Section 4.4. Funds for Payments. . . . . . . . . . . . . . . . . .20
Section 4.5. Computations. . . . . . . . . . . . . . . . . . . . .20
Section 4.6. Inability to Determine Eurodollar Rate. . . . . . . .20
Section 4.7. Illegality. . . . . . . . . . . . . . . . . . . . . .21
Section 4.8. Additional Interest. . . . . . . . . . . . . . . . .21
Section 4.9. Additional Costs, Etc. . . . . . . . . . . . . . . .21
Section 4.10. Capital Adequacy. . . . . . . . . . . . . . . . . .22
Section 4.11. Indemnity of Borrower. . . . . . . . . . . . . . . .23
Section 4.12. Interest on Overdue Amounts; Late Charge. . . . . .23
Section 4.13. Intentionally Omitted.. . . . . . . . . . . . . . . .23
Section 4.14. Certificate. . . . . . . . . . . . . . . . . . . . .23
Section 4.15. Limitation on Interest. . . . . . . . . . . . . . .23
Section 5. COLLATERAL SECURITY. . . . . . . . . . . . . . . . . . . . .24
Section 5.1. Collateral. . . . . . . . . . . . . . . . . . . . . .24
Section 5.2. Appraisals. . . . . . . . . . . . . . . . . . . . . .24
Section 5.3. Release of Collateral. . . . . . . . . . . . . . . .25
Section 5.4. Subsequent Loans; Additional Collateral . . . . . . .26
Section 6. REPRESENTATIONS AND WARRANTIES.. . . . . . . . . . . . . . .28
Section 6.1. Corporate Authority, Etc. . . . . . . . . . . . . . .28
Section 6.2. Governmental Approvals. . . . . . . . . . . . . . . .28
Section 6.3. Title to Properties; Leases. . . . . . . . . . . . . .28
Section 6.4. Financial Statements. . . . . . . . . . . . . . . . .28
Section 6.5. No Material Adverse Changes. . . . . . . . . . . . .29
Section 6.6. Franchises, Patents, Copyrights, Etc. . . . . . . . .29
Section 6.7. Litigation. . . . . . . . . . . . . . . . . . . . . .29
Section 6.8. No Materially Adverse Contracts, Etc. . . . . . . . .29
Section 6.9. Compliance with Other Instruments, Laws, Etc. . . . .29
Section 6.10. Tax Status. . . . . . . . . . . . . . . . . . . . .29
Section 6.11. No Event of Default. . . . . . . . . . . . . . . . .30
Section 6.12. Holding Company and Investment Company Acts. . . . .30
Section 6.13. Absence of UCC Financing Statements, Etc. . . . . .30
Section 6.14. Setoff, Etc. . . . . . . . . . . . . . . . . . . . .30
Section 6.15. Certain Transactions. . . . . . . . . . . . . . . .30
Section 6.16. Employee Benefit Plans. . . . . . . . . . . . . . .30
Section 6.17. ERISA Taxes. . . . . . . . . . . . . . . . . . . . .30
Section 6.18. Plan Payments. . . . . . . . . . . . . . . . . . . .31
Section 6.19. Regulations U and X. . . . . . . . . . . . . . . . .31
Section 6.20. Environmental Compliance. . . . . . . . . . . . . .31
Section 6.21. Intentionally Omitted.. . . . . . . . . . . . . . . .32
Section 6.22. Leases. . . . . . . . . . . . . . . . . . . . . . .32
Section 6.23. Loan Documents. . . . . . . . . . . . . . . . . . .33
Section 6.24. Mortgaged Property. . . . . . . . . . . . . . . . .33
Section 6.25. Brokers. . . . . . . . . . . . . . . . . . . . . . .35
Section 6.26. Fair Consideration. . . . . . . . . . . . . . . . .35
Section 6.27. Solvency. . . . . . . . . . . . . . . . . . . . . .36
Section 6.28. No Bankruptcy Filing. . . . . . . . . . . . . . . .36
Section 6.29. No Fraudulent Intent. . . . . . . . . . . . . . . .36
Section 6.30. Other Debt. . . . . . . . . . . . . . . . . . . . . .36
Section 6.31. Ownership of Borrower. . . . . . . . . . . . . . . .36
Section 6.32. Special Purpose Entity.. . . . . . . . . . . . . . .36
Section 7. AFFIRMATIVE COVENANTS OF THE BORROWER. . . . . . . . . . . .36
Section 7.1. Punctual Payment. . . . . . . . . . . . . . . . . . .36
Section 7.2. Maintenance of Office. . . . . . . . . . . . . . . .37
Section 7.3. Records and Accounts. . . . . . . . . . . . . . . . .37
Section 7.4. Financial Statements, Certificates and Information. .37
Section 7.5. Notices.. . . . . . . . . . . . . . . . . . . . . . .39
Section 7.6. Existence; Maintenance of Properties. . . . . . . . .40
Section 7.7. Insurance. . . . . . . . . . . . . . . . . . . . . .40
Section 7.8. Taxes. . . . . . . . . . . . . . . . . . . . . . . .44
Section 7.9. Inspection of Properties and Books. . . . . . . . . .44
Section 7.10. Compliance with Laws, Contracts, Licenses, and
Permits. . . . . . . . . . . . . . . . . . . . . . . . . . . .44
Section 7.11. Use of Proceeds. . . . . . . . . . . . . . . . . . .44
Section 7.12. Further Assurances. . . . . . . . . . . . . . . . .45
Section 7.13. Management Agreements. . . . . . . . . . . . . . . .45
Section 7.14. ERISA Compliance. . . . . . . . . . . . . . . . . .45
Section 7.15. Intentionally Deleted.. . . . . . . . . . . . . . . .45
Section 7.16. Intentionally Omitted. . . . . . . . . . . . . . . .45
Section 7.17. Compliance . . . . . . . . . . . . . . . . . . . . .45
Section 7.18. Intentionally Omitted.. . . . . . . . . . . . . . . .45
Section 7.19. Leasing. . . . . . . . . . . . . . . . . . . . . . .45
Section 7.20 Special Purpose Entity. . . . . . . . . . . . . . . .47
Section 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.. . . . . . . . .47
Section 8.1. Restrictions on Indebtedness. . . . . . . . . . . . .47
Section 8.2. Restrictions on Liens, Etc. . . . . . . . . . . . . .47
Section 8.3. Intentionally Omitted. . . . . . . . . . . . . . . . .48
Section 8.4. Merger, Consolidation. . . . . . . . . . . . . . . .48
Section 8.5. Intentionally Omitted . . . . . . . . . . . . . . . .48
Section 8.6. Compliance with Environmental Laws. . . . . . . . . .48
Section 8.7. Distributions. T . . . . . . . . . . . . . . . . . .49
Section 8.8. Intentionally Omitted.. . . . . . . . . . . . . . . .49
Section 8.9. Development Activity.. . . . . . . . . . . . . . . . .50
Section 8.10. Intentionally Omitted.. . . . . . . . . . . . . . . .50
Section 8.11. Transfers. . . . . . . . . . . . . . . . . . . . . .50
Section 8.12. Additional Covenants with Respect to Indebtedness,
Operations, Fundamental Changes.. . . . . . . . . . . . . . . .50
Section 9. FINANCIAL COVENANTS OF BORROWER. . . . . . . . . . . . . . .51
Section 9.1. Intentionally Omitted.. . . . . . . . . . . . . . . .51
Section 9.2. Intentionally Omitted.. . . . . . . . . . . . . . . .51
Section 9.3. Intentionally Omitted.. . . . . . . . . . . . . . . .51
Section 9.4. Net Operating Income. . . . . . . . . . . . . . . . .51
Section 10. CLOSING CONDITIONS. . . . . . . . . . . . . . . . . . . . .52
Section 10.1. Loan Documents. . . . . . . . . . . . . . . . . . .52
Section 10.2. Certified Copies of Organizational Documents. . . .52
Section 10.3. Bylaws; Resolutions. . . . . . . . . . . . . . . . .52
Section 10.4. Incumbency Certificate; Authorized Signers. . . . .52
Section 10.5. Opinion of Counsel. . . . . . . . . . . . . . . . .52
Section 10.6. Payment of Fees. . . . . . . . . . . . . . . . . . .53
Section 10.7. Appraisals. . . . . . . . . . . . . . . . . . . . .53
Section 10.8. Environmental Reports. . . . . . . . . . . . . . . .53
Section 10.9. Insurance. . . . . . . . . . . . . . . . . . . . . .53
Section 10.10. Performance; No Default. . . . . . . . . . . . . .53
Section 10.11. Representations and Warranties. . . . . . . . . . .53
Section 10.12. Proceedings and Documents. . . . . . . . . . . . .53
Section 10.13. Eligible Real Estate Qualification Documents. . . .53
Section 10.14. Compliance Certificate. . . . . . . . . . . . . . .53
Section 10.15. Other Documents. . . . . . . . . . . . . . . . . .54
Section 10.16. No Condemnation/Taking. . . . . . . . . . . . . . .54
Section 10.17. Governmental Policy. . . . . . . . . . . . . . . .54
Section 10.18. Other. . . . . . . . . . . . . . . . . . . . . . .54
Section 11. CONDITIONS TO ALL BORROWINGS. . . . . . . . . . . . . . . .54
Section 11.1. Prior Conditions Satisfied. . . . . . . . . . . . .54
Section 11.2. Representations True; No Default. . . . . . . . . .54
Section 11.3. No Legal Impediment. . . . . . . . . . . . . . . . .54
Section 11.4. Governmental Regulation. . . . . . . . . . . . . . .54
Section 11.5. Proceedings and Documents. . . . . . . . . . . . . .55
Section 11.6. Borrowing Documents. . . . . . . . . . . . . . . . .55
Section 11.7. Endorsement to Title Policy. . . . . . . . . . . . .55
Section 11.8. Future Advances Tax Payment. . . . . . . . . . . . .55
Section 12. EVENTS OF DEFAULT; ACCELERATION; ETC. . . . . . . . . . . .55
Section 12.1. Events of Default and Acceleration. . . . . . . . .55
Section 12.lA. Limitation of Cure Periods. . . . . . . . . . . . .58
Section 12.lB. Certain Cure Periods. . . . . . . . . . . . . . . .58
Section 12.2. Termination of Commitments. . . . . . . . . . . . .59
Section 12.3. Remedies.. . . . . . . . . . . . . . . . . . . . . .59
Section 12.4. Distribution of Collateral Proceeds. . . . . . . . .60
Section 13. SETOFF. . . . . . . . . . . . . . . . . . . . . . . . . . .60
Section 14. THE AGENT. . . . . . . . . . . . . . . . . . . . . . . . . .61
Section 14.1. Authorization. . . . . . . . . . . . . . . . . . . .61
Section 14.2. Employees and Agents. . . . . . . . . . . . . . . .61
Section 14.3. No Liability. . . . . . . . . . . . . . . . . . . .61
Section 14.4. No Representations. . . . . . . . . . . . . . . . .61
Section 14.5. Payments.. . . . . . . . . . . . . . . . . . . . . .62
Section 14.6. Holders of Notes. . . . . . . . . . . . . . . . . .63
Section 14.7. Indemnity. . . . . . . . . . . . . . . . . . . . . .63
Section 14.8. Agent as Bank. . . . . . . . . . . . . . . . . . . .63
Section 14.9. Resignation. . . . . . . . . . . . . . . . . . . . .63
Section 14.10. Duties in the Case of Enforcement. . . . . . . . .63
Section 15. EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . .64
Section 16. INDEMNIFICATION.. . . . . . . . . . . . . . . . . . . . . .65
Section 17. SURVIVAL OF COVENANTS, ETC. . . . . . . . . . . . . . . .65
Section 18. ASSIGNMENT AND PARTICIPATION. . . . . . . . . . . . . . . .66
Section 18.1. Conditions to Assignment by Banks. . . . . . . . . .66
Section 18.2. Register. . . . . . . . . . . . . . . . . . . . . .66
Section 18.3. New Notes. . . . . . . . . . . . . . . . . . . . . .66
Section 18.4. Participations. . . . . . . . . . . . . . . . . . .67
Section 18.5. Pledge by Bank. . . . . . . . . . . . . . . . . . .67
Section 18.6. No Assignment by Borrower. . . . . . . . . . . . . .67
Section 18.7. Disclosure. . . . . . . . . . . . . . . . . . . . .67
Section 19. NOTICES.. . . . . . . . . . . . . . . . . . . . . . . . . .67
Section 20. RELATIONSHIP. . . . . . . . . . . . . . . . . . . . . . .69
Section 21. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE. . . .69
Section 22. HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . . .69
Section 23. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . .69
Section 24. ENTIRE AGREEMENT, ETC.. . . . . . . . . . . . . . . . . . .69
Section 25. WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . .70
Section 26. DEALINGS WITH THE BORROWER. . . . . . . . . . . . . . . .70
Section 27. CONSENTS, AMENDMENTS, WAIVERS, ETC. . . . . . . . . . . . .70
Section 28. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . .71
Section 29. NO UNWRITTEN AGREEMENTS.. . . . . . . . . . . . . . . . . .71
Section 30. TIME OF THE ESSENCE.. . . . . . . . . . . . . . . . . . . .71
Section 31. LIMITATION ON LIABILITY.. . . . . . . . . . . . . . . . . .71