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Exhibit 99.2
Bridge Loan Agreement Between the Company and Bank One, NA dated as of
October 1, 2002
LOAN AGREEMENT
DATED AS OF OCTOBER 1, 2002
AMONG
GLR-MEDICAL PROPERTIES ONE, LLC, AS BORROWER,
THE LENDERS,
and
BANK ONE, NA,
AS AGENT
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TABLE OF CONTENTS
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ARTICLE PAGE
- ------- ----
ARTICLE I DEFINITIONS................................................................................... 1
ARTICLE II THE LOANS.....................................................................................12
2.1 Agreement to Lend and Borrow..................................................................12
2.2 Evidence of Indebtedness......................................................................12
2.3 Types of Portions.............................................................................12
2.4 Commitment Fees...............................................................................12
2.5 Minimum Amount of Each Portion and Maximum Number of Portions.................................13
2.6 Optional Principal Payments...................................................................13
2.7 Method of Selecting Types and Interest Periods for Portions on Closing Date...................13
2.8 Conversion and Continuation of Outstanding Portions...........................................13
2.9 Changes in Interest Rate, etc.................................................................14
2.10 Rates Applicable After Default................................................................14
2.11 Method of Payment.............................................................................14
2.12 Evidence of Indebtedness......................................................................15
2.13 Telephonic Notices............................................................................15
2.14 Interest Payment Dates; Interest and Fee Basis................................................15
2.15 Notification of Interest Rates and Prepayments................................................16
2.16 Lending Installations.........................................................................16
2.17 Non-Receipt of Funds by the Agent.............................................................16
2.18 Usury.........................................................................................16
2.19 Late Charges..................................................................................17
2.20 Closing Costs and Expenses....................................................................17
ARTICLE III YIELD PROTECTION; TAXES.......................................................................17
3.1 Yield Protection..............................................................................17
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3.2 Changes in Capital Adequacy Regulations.......................................................18
3.3 Availability of Types of Portions.............................................................18
3.4 Funding Indemnification.......................................................................19
3.5 Taxes.........................................................................................19
3.6 Lender Statements; Survival of Indemnity......................................................20
ARTICLE IV CONDITIONS PRECEDENT TO CLOSING...............................................................20
4.1 Appraisals and Remargining....................................................................20
4.2 Conditions Precedent to Closing...............................................................21
4.3 General Conditions............................................................................21
4.4 Representations and Warranties................................................................25
4.5 No Defaults...................................................................................26
ARTICLE V REPRESENTATIONS AND WARRANTIES...................................................................26
5.1 Existence and Standing........................................................................26
5.2 Authorization and Validity....................................................................26
5.3 No Conflict; Government Consent...............................................................26
5.4 Financial Statements..........................................................................27
5.5 Material Adverse Change.......................................................................27
5.6 Taxes.........................................................................................27
5.7 Litigation and Contingent Obligations.........................................................27
5.8 ERISA.........................................................................................28
5.9 Accuracy of Information.......................................................................28
5.10 Material Agreements...........................................................................28
5.11 Compliance With Laws..........................................................................28
5.12 Environmental Matters.........................................................................29
5.13 Financing Statements..........................................................................29
5.14 Title.........................................................................................29
5.15 Ground Leases.................................................................................30
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5.16 Investment Company Act........................................................................30
5.17 Public Utility Holding Company Act............................................................30
5.18 Tenant Leases.................................................................................30
5.19 Utilities; Authorities........................................................................30
5.20 Physical Condition............................................................................31
5.21 Management....................................................................................31
5.22 Condemnation..................................................................................31
ARTICLE VI COVENANTS.....................................................................................31
6.1 Financial Reporting...........................................................................31
6.2 Maintenance of Minimum DSCR...................................................................31
6.3 Use of Proceeds...............................................................................31
6.4 Notice of Default.............................................................................32
6.5 Conduct of Business...........................................................................32
6.6 Taxes.........................................................................................32
6.7 Insurance.....................................................................................32
6.8 Compliance with Laws..........................................................................32
6.9 Maintenance of Collateral Properties..........................................................32
6.10 Inspection....................................................................................32
6.11 Indebtedness..................................................................................32
6.12 Merger ....................................................................................33
6.13 Investments and Acquisitions ................................................................33
6.14 Liens.........................................................................................33
6.15 Affiliates....................................................................................33
6.16 Ground Leases and Tenant Leases...............................................................33
6.17 Sale, Encumbrance and Leasing of Collateral Properties........................................34
6.18 Restrictions Affecting Borrower...............................................................34
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6.19 Use of Income.................................................................................35
6.20 Additional Documents..........................................................................35
ARTICLE VII DEFAULTS......................................................................................35
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES................................................37
8.1 Acceleration..................................................................................37
8.2 Amendments....................................................................................37
8.3 Preservation of Rights........................................................................38
ARTICLE IX GENERAL PROVISIONS............................................................................38
9.1 Survival of Representations...................................................................38
9.2 Governmental Regulation.......................................................................38
9.3 Headings......................................................................................38
9.4 Entire Agreement..............................................................................38
9.5 Several Obligations; Benefits of this Agreement...............................................38
9.6 Expenses; Indemnification.....................................................................38
9.7 Numbers of Documents..........................................................................39
9.8 Accounting....................................................................................39
9.9 Severability of Provisions....................................................................39
9.10 Nonliability of Lenders.......................................................................40
9.11 Confidentiality...............................................................................40
9.12 Nonreliance...................................................................................40
9.13 Disclosure....................................................................................40
ARTICLE X THE AGENT.....................................................................................40
10.1 Appointment; Nature of Relationship...........................................................40
10.2 Powers........................................................................................41
10.3 General Immunity..............................................................................41
10.4 No Responsibility for Loans, Recitals, etc....................................................41
10.5 Action on Instructions of Lenders.............................................................42
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10.6 Employment of Agents and Counsel..............................................................42
10.7 Reliance on Documents; Counsel................................................................42
10.8 Agent's Reimbursement and Indemnification.....................................................42
10.9 Notice of Default.............................................................................43
10.10 Rights as a Lender............................................................................43
10.11 Lender Credit Decision........................................................................43
10.12 Successor Agent...............................................................................43
10.13 Delegation to Affiliates......................................................................44
10.14 Collateral Property Releases..................................................................44
ARTICLE XI SETOFF; RATABLE PAYMENTS......................................................................44
11.1 Setoff........................................................................................44
11.2 Ratable Payments..............................................................................44
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.............................................45
12.1 Successors and Assigns........................................................................45
12.2 Participations................................................................................45
12.3 Assignments...................................................................................46
12.4 Dissemination of Information ................................................................47
12.5 Tax Treatment.................................................................................47
ARTICLE XIII NOTICES.......................................................................................47
13.1 Notices.......................................................................................47
13.2 Change of Address.............................................................................47
ARTICLE XIV COUNTERPARTS..................................................................................47
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL..................................49
15.1 CHOICE OF LAW.................................................................................49
15.2 CONSENT TO JURISDICTION.......................................................................49
15.3 WAIVER OF JURY TRIAL..........................................................................49
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LOAN AGREEMENT
This Loan Agreement is dated as of the 1st day of October, 2002 and is
among Borrower (as hereinafter defined), the Lenders (as hereinafter defined)
and Bank One, NA, a national banking association, having its principal office in
Chicago, Illinois, as Agent. The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set
forth below:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower (i) acquires any going business or all or substantially all of the
assets of any firm, corporation or limited liability company, or division
thereof, whether through purchase of assets, merger or otherwise or (ii)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage or voting
power) of the outstanding ownership interests of a partnership or limited
liability company.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Agent" means Bank One in its capacity as contractual representative of
the Lenders pursuant to Article X, and not in its individual capacity as a
Lender, and any successor Agent appointed pursuant to Article X.
"Agreement" means this Loan Agreement, as it may be amended or modified
and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time.
"Alternate Base Rate" means, for any day, an annual rate of interest equal
to the higher of (i) the Prime Rate for such day, and (ii) the sum of the
Federal Funds Effective Rate for such day, plus 1/2% per annum.
"Applicable Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions applicable to Borrower,
the Guarantors or any one or more of the Collateral Properties.
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"Applicable Margin" means, with respect to (i) Floating Rate Portions, an
annual rate of interest equal to (x) one quarter of one percent (1/4%) during
the period commencing on the Closing Date and ending on the six-month
anniversary thereof, and thereafter so long as the Permanent Loan Condition has
been and remains satisfied, and (y) unless the Permanent Loan Condition has been
and remains satisfied, one percent (1%) during the period commencing on the day
following the six-month anniversary of the Closing Date and ending on the
Maturity Date, and (b) with respect to Eurodollar Portions, an annual rate of
interest equal to (x) one and eighty-five one hundredths percent (1.85%) during
the period commencing on the Closing Date and ending on the six-month
anniversary thereof, and thereafter so long as the Permanent Loan Condition has
been and remains satisfied, and (y) unless the Permanent Loan Condition has been
and remains satisfied, two and one half percent (2.5%) during the period
commencing on the day following the six-month anniversary of the Closing Date
and ending on the Maturity Date.
"Appraisals" are defined in Section 4.3.
"Appraised Value" means the "as is" dollar value of the Collateral
Properties as established by Agent based upon its review of the Appraisals.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assignment of Rents and Leases" means the collateral assignments of all
rents and Tenant Leases arising out of or covering all or any portion of the
Collateral Properties executed by Borrower in favor of Agent, as agent for the
Lenders , securing the Obligations, as such assignments of rents and leases may
be amended, modified, supplemented, renewed or restated from time to time.
"Authorized Officer" means any authorized officer of Great Lakes REIT,
designated as such in the resolutions delivered to Agent prior to the Closing
Date of Borrower, acting singly.
"Bank One" means Bank One, NA, a national banking association, having its
principal office in Chicago, Illinois, in its individual capacity, and its
successors.
"Borrower" means GLR-Medical Properties One, LLC, a Delaware limited
liability company, and its successors and assigns.
"Business Day" means (i) with respect to any payment or rate selection of
Eurodollar Portions, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago and New York City for the conduct of substantially
all of their commercial lending activities, interbank wire transfers can be made
on the Fedwire system and dealings in United States dollars are carried on in
the London interbank market and (ii) for all other purposes, a day (other than a
Saturday or Sunday) on which banks generally are open in Chicago for the conduct
of substantially all of their commercial
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lending activities and interbank wire transfers can be made on the Fedwire
system.
"Cash Equivalent Investments" means (i) short-term obligations of, or
fully guaranteed by, the United States of America, (ii) commercial paper rated
A-1 or better by S&P or P-1 or better by Moody's, (iii) demand deposit accounts
maintained in the ordinary course of business, and (iv) certificates of deposit
issued by and time deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000; PROVIDED in each case that
the same provides for payment of both principal and interest (and not principal
alone or interest alone) and is not subject to any contingency regarding the
payment of principal or interest.
"Change in Control" means (i) Great Lakes LP shall cease to own, free and
clear of all Liens or other encumbrances, at least 55% of the membership
interests in Borrower, (ii) Great Lakes LP shall cease to be the sole manager of
Borrower or shall cease to have the sole and exclusive right to make all
decisions regarding the operation of Borrower and the Collateral Properties, or
(iii) Great Lakes REIT shall cease to be the sole general partner of Great Lakes
LP.
"Christ Property" shall mean the land located in Oak Lawn, Illinois and
legally described in Exhibit A-1 attached hereto and made a part hereof,
together with all buildings, fixtures and other improvements, now or hereafter
owned or acquired by Borrower and situated thereon and all rights and easements
appurtenant thereto.
"Closing Date" shall mean the date upon which the proceeds of the Loans
are disbursed by the Lenders to Borrower pursuant to the terms and provisions of
this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral Documents" means, collectively, the Fee Mortgage, the
Leasehold Mortgage, the Assignment of Rents and Leases, the Guaranty, the
Security Agreement, the Environmental Indemnity and all other documents
delivered by Borrower or the Guarantors to Agent or the Lenders and securing the
Obligations.
"Collateral Properties" mean the Naperville Property, the Good Samaritan
Property, the South Suburban Property, the Christ Property, the Good Shepherd
Property and the Trinity Property, collectively.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership.
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"Conversion/Continuation Notice" is defined in Section 2.8.
"Controlled Group" means all members of a controlled group of corporations
or other business entities and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or the
Guarantors, are treated as a single employer under Section 414 of the Code.
"Debt Service" means an amount determined by Agent to be equal to the
principal and interest payments that would be due and payable during the first
twelve (12) months of the term of a loan in an amount equal to the then
outstanding principal balance of the Loans, bearing interest at an annual rate
equal to the greatest of (i) seven and one-quarter percent (7 1/4%), (ii) 230
basis points plus the annual rate being paid by ten-year United States Treasury
Notes at the time of such determination, (iii) the Eurodollar Rate (using an
Interest Period that results in the highest Eurodollar Rate) in effect as of the
date of such determination, or (iv) the Floating Rate in effect as of the date
of such determination.
"Default" means an event described in Article VII.
"DSCR" means the ratio, expressed as a percentage, of Net Operating Income
to Debt Service.
"Environmental Indemnity" means the Environmental Indemnity Agreement
dated as of the date hereof executed by Borrower and the Guarantors, jointly and
severally, in favor of Agent, as agent for the Lenders, as said agreement may be
amended, modified, supplement, renewed or restated from time to time.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
health, (iii) emissions, discharges or releases of pollutants, contaminants,
hazardous substances or wastes into surface water, ground water or land, or (iv)
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Portion" means a Portion which, except as otherwise provided
in Section 2.10, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Portion for the
relevant Interest Period, the applicable British Bankers' Association LIBOR rate
for deposits in U.S. dollars as reported by any generally recognized financial
information service as of 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period, and having a maturity equal to such
Interest Period, PROVIDED that, if no such British Bankers' Association LIBOR
rate is available to the Agent, the applicable Eurodollar Base Rate for the
relevant Interest Period shall instead be the
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rate determined by the Agent to be the rate at which Bank One or one of its
Affiliate banks offers to place deposits in U.S. dollars with first-class banks
in the London interbank market at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, in the approximate
amount of Bank One's relevant Eurodollar Loan and having a maturity equal to
such Interest Period.
"Eurodollar Rate" means, with respect to a Eurodollar Portion for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) the Applicable Margin, changing as and when the Applicable Margin changes
during any Interest Period.
"Excluded Taxes" means, in the case of each Lender or applicable Lending
Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Federal Funds Effective Rate" means, for any day, an interest 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 on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"Fee Mortgage" means the Mortgage, Security Agreement, Assignment of
Leases and Rents and Fixture Filing executed by Borrower in favor of Agent, as
agent for the Lenders, creating a first mortgage lien on the Naperville
Property, including all buildings, fixtures and other improvements, now or
hereafter owned or acquired by Borrower and situated thereon, and all rights and
easements appurtenant thereto, securing the Obligations, as said mortgage may be
amended, modified, supplemented, renewed or restated from time to time.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day, plus (ii) the Applicable Margin, in each case
changing when and as the Alternate Base Rate and the Applicable Margin change.
"Floating Rate Portion" means a Portion which, except as otherwise
provided in Section 2.10, bears interest at the Floating Rate.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
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"Good Samaritan Property" shall mean the land located in Downers Grove,
Illinois and legally described in Exhibit A-2 attached hereto and made a part
hereof, together with all buildings, fixtures and other improvements, now or
hereafter owned or acquired by Borrower and situated thereon and all rights and
easements appurtenant thereto.
"Good Shepherd Property" shall mean the land located in Barrington,
Illinois and legally described in Exhibit A-3 attached hereto and made a part
hereof, together with all buildings, fixtures and other improvements, now or
hereafter owned or acquired by Borrower and situated thereon and all rights and
easements appurtenant thereto.
"Great Lakes L.P." means Great Lakes REIT, LP, a Delaware limited
partnership.
"Great Lakes REIT" means Great Lakes REIT, a Maryland real estate
investment trust.
"Ground Lessor" means Advocate Health and Hospitals Corporation, an
Illinois not for profit corporation, or any successor landlord under the Ground
Leases.
"Ground Leases" means those certain five Ground Leases between Ground
Lessor, as landlord, and Borrower, as tenant, creating leasehold estates in the
real estate comprising the Good Samaritan Property, the South Suburban Property,
the Christ Property, the Good Shepherd Property and the Trinity Property,
respectively.
"Guarantors" means Great Lakes LP and Great Lakes REIT, their respective
successors and assigns, jointly.
"Guaranty" means that certain Guaranty dated as of the date hereof
executed by the Guarantors, jointly and severally, in favor of the Agent, for
the benefit of the Lenders, as said guaranty may be amended, modified,
supplemented, renewed or restated from time to time.
"Hazardous Materials" shall mean and include any and all hazardous,
toxic or dangerous substances, wastes and materials and other pollutants and
contaminants as defined or described in any or all applicable federal, state
or local statutes, laws, ordinances, codes, rules, regulations, orders or
decrees now or hereafter regulating, relating to or imposing liability or
standards of conduct with respect to environmental matters, including,
without limitation the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986 (42 U.S.C. Section 9601 ET SEQ.), the Hazardous
Materials Transportation Act (49 U.S.C Section 1801 ET SEQ.), the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of
1976, as amended by the Solid and Hazardous Waste Amendments of 1984 (42
U.S.C. Section 6901 ET SEQ.), the Federal Water Pollution Control Act, as
amended by the Clean Water Act of 1977 and the Water Quality Act of 1987 (33
U.S.C Section 1251 ET SEQ.), the Toxic Substances Control Act of 1976 (15
U.S.C Section 2601 ET seq.), the Emergency Planning and Community
Right-to-Know Act of 1986 (42 U.S.C Section 11001 ET SEQ.), the Clear Air Act
of 1966, as amended (42 U.S.C Section 7401 ET SEQ.), the National
Environmental Policy Act of 1970 (42 U.S.C.
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Section 4321 ET SEQ.), the Rivers and Harbours Act of 1899 (33 U.S.C Section
401 ET SEQ.), the Endangered Species Act of 1973, as amended (16 U.S.C
Section 1531 ET SEQ.), the Safe Drinking Water Act of 1974, as amended (42
U.S.C Section 300(f) ET SEQ.), the Occupational Safety and Health Act of
1970, as amended (29 U.S.C Section 651 ET SEQ.) and all rules, regulations
and guidance documents promulgated or published thereunder, all as amended or
hereinafter amended. Without intending to limit the scope or breadth of the
foregoing definition, the term Hazardous Materials shall include asbestos,
urea formaldehyde, polychlorinated biphenyls, crude oil, radioactive
materials and underground storage tanks.
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary
course of such Person's business payable on terms customary in the trade),
(iii) obligations, whether or not assumed, secured by Liens or payable out of
the proceeds or production from Property now or hereafter owned or acquired
by such Person, (iv) obligations which are evidenced by notes, acceptances,
or other instruments, (v) obligations of such Person to purchase securities
or other Property arising out of or in connection with the sale of the same
or substantially similar securities or Property, (vi) any other obligation
for borrowed money or other financial accommodation which in accordance with
Agreement Accounting Principles would be shown as a liability on the
consolidated balance sheet of such Person.
"Initial Notice" is defined in Section 2.7.
"Interest Period" means, with respect to a Eurodollar Portion, a period
of one, two or three months commencing on a Business Day selected by Borrower
pursuant to this Agreement. Such Interest Period shall end on the day which
corresponds numerically to such date one, two or three months thereafter,
PROVIDED, HOWEVER, that if there is no such numerically corresponding day in
such next, second or third succeeding month, such Interest Period shall end
on the last Business Day of such next, second or third succeeding month. If
an Interest Period would otherwise end on a day which is not a Business Day,
such Interest Period shall end on the next succeeding Business Day, PROVIDED,
HOWEVER, that if said next succeeding Business Day falls in a new calendar
month, such Interest Period shall end on the immediately preceding Business
Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in
the trade) or contribution of capital by such Person; stocks, bonds, mutual
funds, partnership interests, notes, debentures or other securities owned by
such Person; any deposit accounts and certificate of deposit owned by such
Person; and structured notes, derivative financial instruments and other
similar instruments or contracts owned by such Person.
"Leasehold Mortgage" shall mean the Fee and Leasehold Mortgage,
Security Agreement, Assignment of Leases and Rents and Fixture Filing
executed by Borrower in favor of Agent, as agent for the Lenders, creating a
first lien on the leasehold estates created under the Ground Leases and a
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first lien on all buildings, fixtures and other improvements now or hereafter
owned by Borrower and situated thereon, and all rights and easements appurtenant
thereto, securing the Obligations, as said mortgage may be amended, modified,
supplemented, renewed or restated from time to time.
"Lenders" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent, the
office, branch, subsidiary or affiliate of such Lender or the Agent listed on
the signature pages hereof or on a Schedule or otherwise selected by such Lender
or the Agent pursuant to Section 2.15.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind
or nature whatsoever (including, without limitation, the interest of a vendor
or lessor under any conditional sale, capitalized lease or other title
retention agreement).
"Loan" means, with respect to a Lender, such Lender's loan made pursuant
to Article II.
"Loan Documents" means this Agreement, the Notes and the Collateral
Documents.
"Loan-to-Value Ratio" means the ratio, expressed as a percentage, of (a)
the outstanding principal balance of the Loans, to (b) the Appraised Value.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of Borrower or the Guarantors, as applicable, taken as a whole,
(ii) the ability of Borrower or the Guarantors, as applicable, to perform their
respective obligations under the Loan Documents to which they are a party, or
(iii) the validity or enforceability of any of the Loan Documents or the rights
or remedies of the Agent or the Lenders thereunder.
"Maturity Date" means October 1, 2003.
"Maximum Aggregate Amount" means Loans in the aggregate principal amount
of $36,000,000, as said amount may be reduced as provided in Section 4.1 or 6.2.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Naperville Property" means the land located in Naperville, Illinois and
legally described in Exhibit A-4 attached hereto and made a part hereof,
together with all buildings, fixtures and other improvements, now or hereafter
owned or acquired by Borrower and situated thereon, and all rights and easements
appurtenant thereto.
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"Net Operating Income" for any Collateral Property means (a) the product
of four (4), multiplied by the sum of (i) all rental income (including minimum
rent, escalation and expense reimburse payments) actually received by Borrower
during the Quarter immediately preceding such determination from Tenants that
were in occupancy of their demised premises during the entire Quarter and are
not in default under their Tenant Leases (excluding Tenant's security deposits
and rent paid during such Quarter by any Tenant for more than 3 months of rental
obligations), plus (ii) the pro forma rent payable for three calendar months by
any Tenant in occupancy for less than the entire Quarter that is not in default
under its Tenant Lease, less (b) the product of the amount described in (a)
above, multiplied by the greater of 5% or the actual vacancy rate for such
Collateral Property less (c) the annualized sum of all accrued operating
expenses, ground rent payments, real estate taxes and other disbursements for
such Quarter, or if such Collateral Property is not stabilized, the "stabilized"
annual amount of such operating expenses, real estate taxes and other expenses
as used in the most recent Appraisal of such Collateral Property, but excluding:
(1) non-cash expenses, such as depreciation and amortization costs, (2) state
and federal income taxes, (3) the non-current portion of capital expenditures
determined in accordance with the Agreement Accounting Principles, and (4) debt
service payable on the Loans, less (d) to the extent any tenant concessions
remain in effect with respect to any Tenant Lease in the Collateral Property,
the product of twelve (12), multiplied by the amount of such concessions,
divided by the remaining number of months of the term of the applicable Tenant
Lease.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Notes" shall mean the Promissory Notes made by Borrower to each Lender in
the principal amount of such Lender's Loan, as said notes may be amended,
modified, supplemented, renewed or restated from time to time.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the Lenders
or to any Lender, the Agent or any indemnified party arising under the Loan
Documents.
"Other Taxes" is defined in Section 3.5(ii).
"Participants" is defined in Section 12.2.1.
"Payment Date" means the 1st day of each calendar month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permanent Loan Condition" means the satisfaction of all the following:
(a) the issuance to Borrower by an institutional lender acceptable to Agent in
its reasonable discretion and the acceptance by Borrower of a loan commitment,
the form and substance of which shall have been approved by Agent in the
exercise of its reasonable discretion, for a permanent loan in a net amount
(after the payment of all commitment fees and other closing costs relating to
said permanent loan) sufficient to repay the outstanding
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principal balance of the Loans prior to the Maturity Date, (b) the payment by
Borrower of all commitment fees and deposits then due under said loan
commitment, and (c) the absence of any default or termination under said loan
commitment.
"Permitted Exceptions" means the exceptions to the title to the Collateral
Properties listed in Exhibits C-1 through C-6 attached hereto and made a part
hereof.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which Borrower or any member of the Controlled Group may have any
liability.
"Portion" means a portion of the outstanding principal balance of the
Loans, designated on the Closing Date or converted or continued as herein
provided.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"Purchasers" is defined in Section 12.3.
"Quarter" means a calendar quarter.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reportable Event" means a reportable event as defined in Section 4043 of
ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, PROVIDED, HOWEVER, that a failure to
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meet the minimum funding standard of Section 412 of the Code and of Section 302
of ERISA shall be a Reportable Event regardless of the issuance of any such
waiver of the notice requirement in accordance with either Section 4043(a) of
ERISA or Section 412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having at least a
majority of the outstanding Loans.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Section" means a numbered Section of this Agreement, unless another
document is specifically referenced.
"Security Agreement" means a security agreement dated as of the date
hereof executed by Borrower in favor of Agent, for the benefit of Lenders,
encumbering all personal property owned by Borrower and located on or used in
connection with the Collateral Properties, as said agreement may be amended,
modified, supplemented, renewed or restated from time to time.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"South Suburban Property" shall mean the land located in Hazel Crest,
Illinois and legally described in Exhibit A-5 attached hereto and made a part
hereof, together with all buildings, fixtures and other improvements, now or
hereafter owned or acquired by Borrower and situated thereon and all rights and
easements appurtenant thereto.
"Standard Lease Form" means the standard form lease for the
leasing/subleasing of space in the Collateral Properties, as approved by Agent
as of the date hereof.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but EXCLUDING Excluded Taxes and Other Taxes.
"Tenant Leases" means Leases (with respect to the Naperville Property) and
subleases (with respect to the other Collateral Properties) entered into by
Borrower or in which the landlord's interest thereunder has been assigned to
Borrower.
"Tenants" means the tenants or subtenants, as applicable, under the Tenant
Leases.
"Title Company" means Chicago Title Insurance Company.
"Title Policies" means the title policies issued to Agent pursuant to
Section 4.3.
"Transferee" is defined in Section 12.4.
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"Trinity Property" shall mean the land located in Chicago, Illinois and
legally described in Exhibit A-6 attached hereto and made a part hereof,
together with all buildings, fixtures and other improvements, now or hereafter
owned or acquired by Borrower and situated thereon and all rights and easements
appurtenant thereto.
"Type" means, with respect to any Portion, its nature as a Floating Rate
Portion or a Eurodollar Portion.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event or condition which but for the lapse of
time or the giving of notice, or both, would constitute a Default.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II
THE LOANS
2.1 AGREEMENT TO LEND AND BORROW. Subject to the terms, provisions and
conditions contained in this Agreement and in reliance upon the representations
and warranties set forth herein, each Lender severally agrees to lend to
Borrower the amount set forth opposite such Lender's signature below and
Borrower agrees to borrow from the Lenders the amount of such Loans. Borrower
shall not be entitled to reborrow portions of the Loans once repaid or prepaid.
2.2 EVIDENCE OF INDEBTEDNESS. The Loans are and shall be evidenced by the
Notes and shall bear interest calculated and payable as provided below. The
outstanding principal balance of the Loans, together with all accrued and unpaid
interest thereon and all other amounts due and payable by Borrower to Lenders
under this Agreement, the Notes and the other Loan Documents shall be due and
payable in full on the Maturity Date.
2.3 TYPES OF PORTIONS. The Loans may consist of Floating Rate Portions or
Eurodollar Portions, or a combination thereof, selected by the Borrower in
accordance with Sections 2.7 and 2.8.
2.4 COMMITMENT FEES. On the Closing Date, Borrower agrees to pay to the
Agent for the account of each Lender a non-refundable commitment fee in the
amount of $100,000. In addition to the foregoing, in the event that the Loans
have not been fully repaid on or before the six-month anniversary of the Closing
Date and the Permanent Loan Condition has not been satisfied on or prior to such
six-month anniversary or does not remain satisfied, Borrower shall pay to Agent
for the account of each Lender an additional non-refundable commitment fee in
the amount of $50,000 on the later to occur of the six-month anniversary of the
Closing Date or five (5) days after demand
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from Agent following the occurrence of any event resulting in the Permanent Loan
Condition no longer being satisfied.
2.5 MINIMUM AMOUNT OF EACH PORTION AND MAXIMUM NUMBER OF PORTIONS. Each
Eurodollar Portion shall be in the minimum amount of $500,000. No more than five
(5) Portions shall exist at any one time.
2.6 OPTIONAL PRINCIPAL PAYMENTS. Subject to the last sentence of this
Section 2.6, Borrower may from time to time pay, without penalty or premium, all
outstanding Floating Rate Portions upon one Business Days' prior notice to the
Agent. Subject to the last sentence of this Section 2.6, the Borrower may from
time to time pay, subject to the payment of any funding indemnification amounts
required by Section 3.4 but without penalty or premium, all outstanding
Eurodollar Portions, or, in a minimum aggregate amount of $1,000,000 or any
integral multiple of $100,000 in excess thereof, any portion of the outstanding
Eurodollar Portions upon three Business Days' prior notice to the Agent.
Notwithstanding anything contained herein to the contrary, unless the
outstanding principal balance of the Loans are repaid in full, the outstanding
principal balance of the Loans shall at all times equal or exceed $15,000,000.
2.7 METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR PORTIONS ON
CLOSING DATE. Borrower shall select the Type of Portion and, in the case
of each Eurodollar Portion, the Interest Period applicable thereto from
time to time. Borrower shall give the Agent irrevocable notice (an
"Initial Notice") not later than 12:00 p.m. (Chicago time) at least one
Business Day before the Closing Date with respect to each Floating Rate
Portion and three Business Days before the Closing Date with respect to
each Eurodollar Portion, specifying:
(i) the aggregate amount of such Portion,
(ii) the Type of Portion selected, and
(iii) in the case of each Eurodollar Portion, the duration of
the Interest Period applicable thereto.
2.8 CONVERSION AND CONTINUATION OF OUTSTANDING PORTIONS. Floating Rate
Portions shall continue as Floating Rate Portions unless and until such Floating
Rate Portions are converted into Eurodollar Portions pursuant to this Section
2.6 or are repaid in accordance with Section 2.8 . Each Eurodollar Portion shall
continue as a Eurodollar Portion until the end of the then applicable Interest
Period therefor, at which time such Eurodollar Portion shall be automatically
converted into a Floating Rate Portion unless (x) such Eurodollar Portion is or
was repaid in accordance with Section 2.6 or (y) Borrower shall have given the
Agent a Conversion/Continuation Notice (as defined below) requesting that, at
the end of such Interest Period, such Eurodollar Portion continue as a
Eurodollar Portion for the same or another Interest Period. Subject to the terms
of Section 2.5, Borrower may elect from time to time to convert all or any part
of a Floating Rate Portion into a Eurodollar Portion. Borrower shall give the
Agent irrevocable notice (a "Conversion/Continuation Notice") of each conversion
of a Floating Rate Portion into a Eurodollar Portion or continuation of a
Eurodollar Portion not
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later than 12:00 p.m. (Chicago time) at least three Business Days prior to the
date of the requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Portion which is to
be converted or continued, and
(iii) the amount of such Portion which is to be converted into
or continued as a Eurodollar Portion and the duration of the
Interest Period applicable thereto.
2.9 CHANGES IN INTEREST RATE, ETC. Each Floating Rate Portion shall bear
interest on the outstanding principal amount thereof for each day from and
including the date such Portion is designated or is automatically converted from
a Eurodollar Portion into a Floating Rate Portion pursuant to Section 2.8, to
but excluding the date it is paid or is converted into a Eurodollar Portion
pursuant to Section 2.8 hereof, at a rate per annum equal to the Floating Rate
for such day. Changes in the rate of interest on any Portion maintained as a
Floating Rate Portion will take effect simultaneously with each change in the
Alternate Base Rate or the Applicable Margin. Each Eurodollar Portion shall bear
interest on the outstanding principal amount thereof for each day from and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest rate determined
by the Agent as applicable to such Eurodollar Portion based upon the Borrower's
selections under Sections 2.7 and 2.8, any changes in the Applicable Margin and
otherwise in accordance with the terms hereof. No Interest Period may end after
the Maturity Date.
2.10 RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in Section 2.7, 2.8 or 2.9, during the continuance of a
Default or Unmatured Default the Required Lenders may, at their option, by
notice to Borrower (which notice may be revoked at the option of the Required
Lenders notwithstanding any provision of Section 8.2 requiring unanimous consent
of the Lenders to changes in interest rates), declare that no Portion may be
made as, converted into or continued as a Eurodollar Portion. During the
continuance of a Default the Required Lenders may, at their option, by notice to
the Borrower (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that the outstanding principal
balance of the Loans (whether theretofore consisting of one or more Eurodollar
Portions or Floating Rate Portions) shall thereafter bear interest at a rate per
annum equal to the Alternative Base Rate in effect from time to time, plus 6%,
PROVIDED that, during the continuance of a Default under Section 7.4 or 7.5, the
default interest rate set forth herein shall be applicable to the Loan without
any election or action on the part of the Agent or any Lender.
2.11 METHOD OF PAYMENT. All payments of the Obligations hereunder shall be
made, without setoff, deduction, or counterclaim, in immediately available funds
to the Agent at the Agent's address specified pursuant to Article XIII, or at
any other Lending Installation of the Agent specified in writing by the Agent to
the Borrower, by noon (local time) on the date when
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due and shall be applied ratably by the Agent among the Lenders. Each payment
delivered to the Agent for the account of any Lender shall be delivered promptly
by the Agent to such Lender in the same type of funds that the Agent received at
its address specified pursuant to Article XIII or at any Lending Installation
specified in a notice received by the Agent from such Lender. The Agent is
hereby authorized to charge any accounts of the Borrower maintained with Bank
One for each payment of principal, interest and fees as the same become due
hereunder.
2.12 EVIDENCE OF INDEBTEDNESS.
(i) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from the Loan made by such Lender
to Borrower, including the amounts of principal and interest payable
and paid to such Lender from time to time hereunder.
(iv) The Agent shall also maintain accounts in which it will
record (a) the amount of each Loan made hereunder, the Type thereof
and the Interest Period with respect thereto, (b) the amount of any
principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder, and (c) the amount of
any sum received by the Agent hereunder from the Borrower and each
Lender's share thereof.
(v) The entries maintained in the accounts maintained pursuant
to paragraphs (i) and (ii) above shall be PRIMA FACIE evidence of
the existence and amounts of the Obligations therein recorded;
PROVIDED, HOWEVER, that the failure of the Agent or any Lender to
maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Obligations in
accordance with their terms.
2.13 TELEPHONIC NOTICES. The Borrower hereby authorizes the Lenders and
the Agent to convert or continue Portions, effect selections of Types of
Portions and to transfer funds based on telephonic notices made by any person or
persons the Agent or any Lender in good faith believes to be acting on behalf of
the Borrower, it being understood that the foregoing authorization is
specifically intended to allow the Initial Notice and Conversion/Continuation
Notices to be given telephonically. The Borrower agrees to deliver promptly to
the Agent a written confirmation, if such confirmation is requested by the Agent
or any Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, the records of the Agent and the Lenders shall govern
absent manifest error.
2.14 INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest accrued on
each Portion shall be payable on each Payment Date, commencing with the first
such Payment Date to occur after the Closing Date, on any date on which a
Portion is prepaid, whether due to acceleration or otherwise, and on the
Maturity Date. Notwithstanding the foregoing, interest accrued on that portion
of the outstanding principal amount of any Floating Rate Portion converted into
a Eurodollar Portion on a day other than a Payment Date shall
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be payable on the date of conversion. Interest shall be calculated for actual
days elapsed on the basis of a 360-day year. Interest shall be payable for the
day a Portion is established but not for the day of any payment on the amount
paid if payment is received prior to noon (local time) at the place of payment.
If any payment of principal of or interest on a Portion shall become due on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment, such extension
of time shall be included in computing interest in connection with such payment.
2.15 NOTIFICATION OF INTEREST RATES AND PREPAYMENTS. Promptly after
receipt thereof, the Agent will notify each Lender of the contents of the
Initial Notice, any Conversion/Continuation Notice and any repayment notice
received by it hereunder. The Agent will notify each Lender of the interest rate
applicable to each Eurodollar Portion promptly upon determination of such
interest rate and will give each Lender prompt notice of each change in the
Alternate Base Rate.
2.16 LENDING INSTALLATIONS. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such Lending
Installation and the Loans and any Notes issued hereunder shall be deemed held
by each Lender for the benefit of any such Lending Installation. Each Lender
may, by written notice to the Agent and the Borrower in accordance with Article
XIII, designate replacement or additional Lending Installations for whose
account Loan payments are to be made.
2.17 NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Borrower notifies the
Agent prior to the date on which it is scheduled to make payment to the Agent of
a payment of principal, interest or fees to the Agent for the account of the
Lenders, that it does not intend to make such payment, the Agent may assume that
such payment has been made. The Agent may, but shall not be obligated to, make
the amount of such payment available to the intended recipient in reliance upon
such assumption. If the Borrower has not in fact made such payment to the Agent,
the recipient of such payment shall, on demand by the Agent, repay to the Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Agent until the date the Agent recovers such amount at a rate per annum
equal to in the case of payment by the Borrower, the interest rate applicable to
the relevant Loan.
2.18 USURY. All agreements herein are expressly limited so that in no
contingency or event whatsoever, whether by reason of the disbursement of the
proceeds of the Loans, the acceleration of the maturity of the unpaid principal
balance of the Loans, or otherwise, shall the amount paid or agreed to be paid
to the Lenders for the use, forbearance or detention of the money to be advanced
under the Loan exceed the highest lawful rate permissible under applicable usury
laws. If, from any circumstances whatsoever, the fulfillment of any provision of
this Agreement or any of the other Loan Documents, at the time performance of
such provision shall be due, shall involve transcending the limit of validity
prescribed by law which a court of competent jurisdiction may deem applicable to
the Loan, then, IPSO FACTO, the obligation to be fulfilled shall be reduced to
the limit of such validity;
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and if, from any circumstance, any Lender shall ever receive as interest an
amount which would exceed the highest lawful rate, such amount which would be
excessive interest shall be applied to the reduction of such Lender's portion of
the unpaid principal balance due on the Loan and not to the payment of interest.
2.19 LATE CHARGES. If any payment of interest or principal is not received
by Agent within five (5) days after the date such payment is due, then at the
option of the Agent, in addition to the remedies conferred upon Agent pursuant
to this Agreement and the other Loan Documents, a late charge of five percent
(5%) of the amount of the regularly scheduled payment or $25.00, whichever is
greater, will be added to the delinquent amount to compensate Agent for the
expense of handling the delinquency for any payment past due in excess of ten
(10) days, regardless of any notice and cure periods. Such Late Charge is an
administrative charge that will be 100% retained by Agent and not paid to the
Lenders.
2.20 CLOSING COSTS AND EXPENSES. In addition to the commitment fees
payable as provided in Section 2.4 above, Borrower shall pay, on or prior to the
Closing Date, all closing costs and other fees and expenses incurred by Agent in
connection with the Loan (including Appraisal fees, title insurance premiums,
escrow fees, recording fees, out of pocket syndication expenses and attorneys'
fees and expenses), and other expenses as provided herein. Borrower hereby
acknowledges and agrees that the commitment fees do not include payment of any
such costs, fees or expenses.
ARTICLE III
YIELD PROTECTION; TAXES
3.1 YIELD PROTECTION. If, on or after the date of this Agreement, the
adoption of any law or any governmental or quasi-governmental rule, regulation,
policy, guideline or directive (whether or not having the force of law), or any
change in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Installation with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(i) subjects any Lender or any applicable Lending Installation
to any Taxes, or changes the basis of taxation of payments (other
than with respect to Excluded Taxes) to any Lender in respect of its
Eurodollar Portions, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation
(other than reserves and assessments taken into account in
determining the interest rate applicable to Eurodollar Portions), or
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(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining its Eurodollar
Portions or reduces any amount receivable by any Lender or any
applicable Lending Installation in connection with its Eurodollar
Portions, or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference to the
amount of Eurodollar Portions held or interest received by it, by an
amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Eurodollar Portions
or to reduce the return received by such Lender or applicable Lending
Installation in connection with such Eurodollar Portions, then, within 15 days
of demand by such Lender, the Borrower shall pay such Lender such additional
amount or amounts as will compensate such Lender for such increased cost or
reduction in amount received.
3.2 CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender determines the
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a Change (as hereinafter defined), then, within 15
days of demand by such Lender, the Borrower shall pay such Lender the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender determines is attributable to this
Agreement or its Loans (after taking into account such Lender's policies as to
capital adequacy). "Change" means (i) any change after the date of this
Agreement in the Risk-Based Capital Guidelines (as hereinafter defined), or (ii)
any adoption of or change in any other law, governmental or quasi-governmental
rule, regulation, policy, guideline, interpretation, or directive (whether or
not having the force of law) after the date of this Agreement which affects the
amount of capital required or expected to be maintained by any Lender or any
Lending Installation or any corporation controlling any Lender. "Risk-Based
Capital Guidelines" means (i) the risk-based capital guidelines in effect in the
United States on the date of this Agreement, including transition rules, and
(ii) the corresponding capital regulations promulgated by regulatory authorities
outside the United States implementing the July 1988 report of the Basle
Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
3.3 AVAILABILITY OF TYPES OF PORTIONS. If any Lender determines that
maintenance of Eurodollar Portions at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurodollar Portions are not
available, or (ii) the interest rate applicable to Eurodollar Portions does not
accurately reflect the cost of making or maintaining Eurodollar Portions, then
the Agent shall suspend the availability of Eurodollar Portions and require any
affected Eurodollar Portions to be repaid or converted to Floating Rate
Portions.
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3.4 FUNDING INDEMNIFICATION. If any payment of a Eurodollar Portion occurs
on a date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise, the Borrower will indemnify
each Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain such Eurodollar Portion.
3.5 TAXES.
(i) All payments by the Borrower to or for the account of any
Lender or the Agent hereunder or under any Note shall be made free
and clear of and without deduction for any and all Taxes. If the
Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender or the Agent, (a)
the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to
additional sums payable under this Section 3.5) such Lender or the
Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (b) the
Borrower shall make such deductions, (c) the Borrower shall pay the
full amount deducted to the relevant authority in accordance with
applicable law and (d) the Borrower shall furnish to the Agent the
original copy of a receipt evidencing payment thereof within 30 days
after such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any
present or future stamp or documentary taxes and any other excise or
property taxes, charges or similar levies which arise from any
payment made hereunder or under any Note or from the execution or
delivery of, or otherwise with respect to, this Agreement or any
Note ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Agent and
each Lender for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed on amounts
payable under this Section 3.5) paid by the Agent or such Lender as
a result of any Loans made by it hereunder, or otherwise in
connection with its participation in this Agreement and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. Payments due under this
indemnification shall be made within 30 days of the date the Agent
or such Lender makes demand therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof (each a "Non-U.S.
Lender") agrees that it will, not more than ten Business Days after
the date of this Agreement, (i) deliver to the Agent two duly
completed copies of United States Internal Revenue Service Form
W-8BEN or W-8ECI, certifying in either case that such Lender is
entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes, and (ii)
deliver to the Agent a United States
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Internal Revenue Form W-8 or W-9, as the case may be, and certify
that it is entitled to an exemption from United States backup
withholding tax. Each Non-U.S. Lender further undertakes to deliver
to each of the Borrower and the Agent (x) renewals or additional
copies of such form (or any successor form) on or before the date
that such form expires or becomes obsolete, and (y) after the
occurrence of any event requiring a change in the most recent forms
so delivered by it, such additional forms or amendments thereto as
may be reasonably requested by the Borrower or the Agent. All forms
or amendments described in the preceding sentence shall certify that
such Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income
taxes, UNLESS an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which
any such delivery would otherwise be required which renders all such
forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form or amendment with respect to
it and such Lender advises the Borrower and the Agent that it is not
capable of receiving payments without any deduction or withholding
of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed
to provide the Borrower with an appropriate form pursuant to clause
(iv), above (unless such failure is due to a change in treaty, law
or regulation, or any change in the interpretation or administration
thereof by any governmental authority, occurring subsequent to the
date on which a form originally was required to be provided), such
Non-U.S. Lender shall not be entitled to indemnification under this
Section 3.5 with respect to Taxes imposed by the United States;
PROVIDED that, should a Non-U.S. Lender which is otherwise exempt
from or subject to a reduced rate of withholding tax become subject
to Taxes because of its failure to deliver a form required under
clause (iv), above, the Borrower shall take such steps as such
Non-U.S. Lender shall reasonably request to assist such Non-U.S.
Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant
jurisdiction or any treaty shall deliver to the Borrower (with a
copy to the Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed
by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or
any political subdivision thereof asserts a claim that the Agent did
not properly withhold tax from amounts paid to or for the account of
any Lender (because the appropriate form was not delivered or
properly completed, because such Lender failed to notify the Agent
of a change in circumstances which rendered its
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exemption from withholding ineffective, or for any other reason),
such Lender shall indemnify the Agent fully for all amounts paid,
directly or indirectly, by the Agent as tax, withholding therefor,
or otherwise, including penalties and interest, and including taxes
imposed by any jurisdiction on amounts payable to the Agent under
this subsection, together with all costs and expenses related
thereto (including attorneys fees and time charges of attorneys for
the Agent, which attorneys may be employees of the Agent). The
obligations of the Lenders under this Section 3.5(vii) shall survive
the payment of the Obligations and termination of this Agreement.
3.6 LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Portions to reduce any liability of the Borrower to
such Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Portions under Section 3.3, so long as such designation is not, in
the judgment of such Lender, disadvantageous to such Lender. Each Lender shall
deliver a written statement of such Lender to the Borrower (with a copy to the
Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4 or 3.5. Such
written statement shall set forth in reasonable detail the calculations upon
which such Lender determined such amount and shall be final, conclusive and
binding on the Borrower in the absence of manifest error. Determination of
amounts payable under such Sections in connection with a Eurodollar Portion
shall be calculated as though each Lender funded its Eurodollar Portion through
the purchase of a deposit of the type and maturity corresponding to the deposit
used as a reference in determining the Eurodollar Rate applicable to such Loan,
whether in fact that is the case or not. Unless otherwise provided herein, the
amount specified in the written statement of any Lender shall be payable on
demand after receipt by the Borrower of such written statement. The obligations
of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of
the Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT TO CLOSING
4.1 APPRAISALS AND REMARGINING.
(a) As a condition precedent to disbursement of the Loans, Agent
shall have determined that the Loan-to-Value Ratio shall not be more than
60%. If for any reason the Loan-to-Value Ratio exceeds 60%, Lenders shall
have the right to reduce the Maximum Aggregate Amount to an amount at
which the Loan-to-Value Ratio will not exceed 60%.
(b) If prior to the Closing Date, the Appraisals have not been
completed and approved by Agent, Lenders may nonetheless, in their sole
and absolute discretion, proceed to make the Loans in the Maximum
Aggregate Amount, provided that if the completed and approved Appraisals
disclose that the Loan-to-Value Ratio exceeds 60%, Borrower shall, within
ten (10days after written demand from Agent, make a principal payment to
Agent in the amount by which the outstanding
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principal balance of the Loans exceeds the amount of Loans that would be
necessary such that the Loan-to-Value Ratio would not exceed 60%.
4.2 CONDITIONS PRECEDENT TO CLOSING. The Lenders' obligation to make the
Loans and to perform the remainder of their obligations under this Agreement are
subject to the Lenders' and the Agent's satisfaction of the conditions contained
herein in this Article IV.
4.3 GENERAL CONDITIONS. Borrower shall have delivered each of the
following items to the Agent for approval and Agent shall have approved the
same:
(a) The Loan Documents;
(b) Three copies of a plat of survey of each Collateral Property
(collectively, the "Surveys") prepared and certified by a registered
surveyor licensed in Illinois in compliance with the minimum detail
requirements most recently established by ALTA/ACSM (for a Class A
Survey), including, without limitation: the boundaries and legal
descriptions of the land comprising each Collateral Property; the location
of all existing buildings, parking areas and other improvements on such
land; the area of such land in square feet and acres (to the nearest one
one-hundredth of an acre); the location of all set-back lines,
rights-of-way, easements and public utilities located on such land; the
location of all abutting roadways, streets, and alleys; the location of
utility services and storm drain and sewer facilities; and showing any
encroachments by improvements on such land over easements or adjoining
property and showing any encroachments from adjoining property onto such
land. The Surveys shall be as of a current date and shall be certified in
favor of Agent and the Title Company. All matters shown on the Surveys
must be acceptable to Agent.
(c ) Evidence that the following insurance coverages are in effect
with respect to the Collateral Properties and in forms satisfactory to
Agent:
(i) Policies of insurance evidencing bodily injury, death or
property damage liability coverages in amounts not less than
$2,000,000 (combined single limit), and an excess/umbrella
liability coverage in an amount not less than $10,000,000
shall be in effect with respect to Borrower. Such policies
must be written on an occurrence basis so as to provide
blanket contractual liability, broad form property damage
coverage, and coverage for products and completed operations;
(ii) "Special Cause of Loss" insurance on the buildings and other
improvements constituting the Collateral Properties in amounts
equal to the replacement cost of such buildings, but not less
than $36,000,000;
(iii) If applicable, evidence of worker's compensation insurance
coverage satisfactory to Agent;
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(iv) If the Collateral Properties, or any part thereof, lie within
a "special flood hazard area" as designated on maps prepared
by the Department of Housing and Urban Development, a National
Flood Insurance Association standard flood insurance policy,
plus insurance from a private insurance carrier if necessary,
for the duration of the Loans in the amount of the full
insurable value of the Collateral Properties; and
(v) Such other insurance as Agent may reasonably require, which
may include, without limitation, errors and omissions
insurance with respect to the contractors, architects and
engineers, rent abatement and/or business loss insurance.
All insurance policies shall (v) be issued by an insurance company having
a rating of "A" VII or better by A.M. Best Co., in Best's Rating Guide,
(w) name Agent as an additional insured on all liability insurance and as
mortgagee and loss payee on all casualty insurance, (x) provide that Agent
is to receive thirty (30) days written notice prior to non-renewal or
cancellation, (y) be evidenced by a certificate of insurance to be held by
Agent, and (z)be in form and amounts reasonably acceptable to Agent.
(d) Fee and Leasehold Loan Policies of Title Insurance issued by the
Title Company in the full amount of the Loan insuring that (x) the Fee
Mortgage will be a first lien upon the fee simple title to the Naperville
Property, and (y) the Leasehold Mortgage will be a first lien upon the
leasehold interests under the Ground Leases and fee simple title to the
buildings comprising the Collateral Properties subject to the Ground
Leases, subject to no liens, claims, exceptions or encumbrances except the
Permitted Exceptions and containing the following endorsements:
(i) ALTA Broad Form 3.1 Zoning Endorsement, including parking and
deleting the standard marketability exclusion;
(ii) Comprehensive Endorsement No. 1;
(iii) Vehicular Access Endorsement;
(iv) Survey/Legal Description Endorsement; and
(v) Such additional endorsements as may be reasonably required by
Agent based upon its review of the Title Policies and Surveys;
(e) Copies of all recorded documents described in the Title
Policies;
(f) A copy of the operating agreement creating Borrower, certified
by the manager of Borrower as being a true and correct copy and as
otherwise unmodified and in full force and effect, a certified copy of the
Certificate of Formation of Borrower, including all amendments thereto, a
current Certificate of Good Standing for Borrower
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from its state of organization and the State of Illinois, a certificate
from the manager of Borrower providing that no certificate of dissolution
has been filed, an incumbency certificate showing specimen signatures for
all of the managers of Borrower executing any Loan Documents and, if
necessary, certified copies of resolutions from the members or managers of
Borrower authorizing execution and delivery of the Loan Documents.
(g) A copy of the partnership agreement creating Great Lakes LP,
certified by the general partner of Great Lakes LP as being a true and
correct copy and as otherwise unmodified and in full force and effect, a
certified copy of the certificate of limited partnership (and amendments
thereto) of Great Lakes LP and a current Certificate of Good Standing for
Great Lakes LP from its state of organization and from the State of
Illinois;
(h) A certified copy of the Articles of Organization, Trust
Agreement and By-Laws of Great Lakes REIT, including all amendments
thereto, a certified copy of the Certificate of Organization (and
amendments thereto) of Great Lakes REIT, a current Certificate of Good
Standing for Great Lakes REIT from its state of organization and from the
State of Illinois, and an incumbency certificate showing specimen
signatures for all officers of Great Lakes REIT executing the Loan
Documents, and certified copies of director resolutions authorizing
execution and delivery of the Loan Documents;
(i) Opinion letter from counsel for Borrower and the Guarantors in a
form satisfactory to Agent;
(j) Evidence that (i) no portion of the Collateral Properties on
which buildings or other improvements is located in an area designated by
the Secretary of Housing and Urban Development as having special flood
hazards; or if any portion of the Project is so located, evidence that
flood insurance is in effect; and (ii) no portion of the Collateral
Properties is located in a federally, state or locally designated wetland
or other type of government protected area.
(k) A written report ("Environmental Report") prepared at Borrower's
sole cost and expense by an independent professional environmental
consultant approved by Agent in its sole and absolute discretion. The
Environmental Report shall be subject to Agent's approval in its sole and
absolute discretion. If the Environmental Report reveals contamination or
conditions warranting further investigation in order to establish baseline
data, Agent may require, in its sole and absolute discretion, an
additional written report (also referred to herein as the "Environmental
Report") based on additional testing and investigation in order to define
the source and extent of the contamination or to establish baseline data,
as well as to provide relevant detailed information on the area's
geological and hydrogeological conditions. Any additional Environmental
Report prepared pursuant to this requirement shall be subject to Agent's
approval, in its sole and absolute discretion.
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(l) Certified copies of the Standard Lease Form, all Tenant Leases
then in effect or out for signature that Agent may request, and a rent
roll (collectively, "Rent Rolls") certified by an Authorized Officer with
respect to each Collateral Property. In addition, Borrower shall deliver
to Lender estoppel certificates and subordination non-disturbance and
attornment agreements from such Tenants as Agent may require. Borrower
shall deposit all security deposits required under Tenant Leases with
Agent in an account in Borrower's name, which account shall be pledged to
Agent pursuant to the Assignment of Rents and Leases; provided, however,
that such security deposits may only be applied in accordance with the
terms and conditions of the Leases.
(m) Appraisals (collectively, "Appraisals") acceptable to the Agent,
prepared by an independent appraiser engaged directly by the Agent, of
each Collateral Property, which appraisals satisfy the requirements of the
Financial Institutions Reform, Recovery and Enforcement Act, as amended,
and the regulations promulgated thereunder, and which shall evidence
compliance with the supervisory loan-to-value limits set forth in the
Federal Deposit Insurance Corporation Improvement Act of 1991, as amended,
and the regulations promulgated thereunder, if applicable.
(o) Certified copies of the Ground Leases, Memoranda of Ground
Leases and the Rights of First Refusal and Covenants Not to Compete,
together with a Recognition Agreement from the Ground Lessor.
(p) Financial statements, including a balance sheet, cash flow
statement and profit and loss statement for each Guarantor for the most
recent calendar year.
(q) Financial statements for the Collateral Properties for the last
three calendar years and an interim financial statement for the current
year, reflecting the operations of the Collateral Properties.
(r) A physical inspection report of the Collateral Properties
prepared by an architectural firm engaged by Agent.
(s) Copies of all federal, state and local governmental permits,
licenses and other approvals required for the operation of the Collateral
Properties.
(t) Such other items or documents as Agent may reasonably require.
4.4 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Borrower contained in this Agreement and the other Loan Documents shall be true
and correct in all material respects.
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4.5 NO DEFAULTS. No Defaults or Unmatured Default shall exist under this
Agreement or any of the other Loan Documents.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Lenders that:
5.1 EXISTENCE AND STANDING. Borrower is a limited liability company duly
and properly organized, validly existing and in good standing under the laws of
its jurisdiction of organization and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted. Great Lakes LP
is a limited partnership duly and properly organized, validly existing and in
good standing under the laws of its jurisdiction of organization and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted. Great Lakes REIT is a trust duly and properly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted
5.2 AUTHORIZATION AND VALIDITY. Borrower has the power and authority and
legal right to execute and deliver the Loan Documents to which it is a party and
to perform its obligations thereunder. The execution and delivery by Borrower of
the Loan Documents to which it is a party and the performance of its obligations
thereunder have been duly authorized by proper limited liability company action,
and the Loan Documents to which Borrower is a party constitute legal, valid and
binding obligations of Borrower enforceable against Borrower in accordance with
their terms, except as enforceability may be limited by bankruptcy, equity,
insolvency or similar laws affecting the enforcement of creditors' rights
generally. The Guarantors have the power and authority and legal right to
execute and deliver the Loan Documents to which they are a party and to perform
their obligations thereunder. The execution and delivery by the Guarantors of
the Loan Documents to which they are a party and the performance of their
obligations thereunder have been duly authorized by proper partnership and
corporate action, as applicable, and the Loan Documents to which the Guarantors
are a party constitute legal, valid and binding obligations of the Guarantors
enforceable against the Guarantors in accordance with their terms, except as
enforceability may be limited by bankruptcy, equity, insolvency or similar laws
affecting the enforcement of creditors' rights generally.
5.3 NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and delivery by
Borrower or either Guarantor of the Loan Documents to which each is a party, nor
the consummation of the transactions therein contemplated, nor compliance with
the provisions thereof will (a) violate (i) any law, rule, regulation, order,
writ, judgment, injunction, decree or award binding on Borrower or either
Guarantor, or (ii) Borrower's or either Guarantor's operating agreement,
partnership agreement, trust agreement, by-laws, articles of organization or
formation, or certificate of limited partnership, as the case may be, or (iii)
the provisions of any indenture, instrument or agreement to which Borrower or
either Guarantor is a party or is subject, or by which it, or its Property, is
bound, or (b) conflict with or constitute a default thereunder, or result in, or
require, the creation or imposition of
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any Lien in, of or on the Property of Borrower or either Guarantor pursuant to
the terms of any such indenture, instrument or agreement. No order, consent,
adjudication, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, or other action in respect of
any governmental or public body or authority, or any subdivision thereof, which
has not been obtained by Borrower or either Guarantor, is required to be
obtained by Borrower or either Guarantor in connection with the execution and
delivery of the Loan Documents, the borrowings under this Agreement, the payment
and performance by the Borrower of the Obligations, the payment and performance
by Guarantors of their obligations under the Guaranty and the Environmental
Indemnity or the legality, validity, binding effect or enforceability of any of
the Loan Documents.
5.4 FINANCIAL STATEMENTS. All financial statements submitted to Lender
relating to Borrower, the Guarantors and the Collateral Properties are true,
complete and correct, and have been prepared in accordance with general
accounting principles consistently applied and fairly present the financial
condition of the Person or Property to which they pertain and the other
information therein described and do not contain any untrue statement of a
material fact or omit to state a fact material to the financial statement
submitted or this Agreement. Borrower and each Guarantor are solvent and able to
pay their respective debts as such debts become due, and they have capital
sufficient to carry on their respective present businesses and transactions and
all businesses and transactions in which they are about to engage. None of
Borrower or any Guarantor (i) is bankrupt or insolvent, (ii) has made an
assignment for the benefit of its or his creditors, (iii) has had a trustee or
receiver appointed, (iv) has had any bankruptcy, reorganization or insolvency
proceedings instituted by or against it or him, or (v) shall be rendered
insolvent by its execution, delivery or performance of this Agreement or the
Loan Documents or by the transactions contemplated hereunder and thereunder.
5.5 MATERIAL ADVERSE CHANGE. Since August 1, 2002, there has been no
change in the business, Property, condition (financial or otherwise) or results
of operations of the Borrower, the Guarantors or the Collateral Properties which
could reasonably be expected to have a Material Adverse Effect.
5.6 TAXES. The Guarantors have filed all United States federal tax returns
and all other tax returns which are required to be filed and have paid all taxes
due pursuant to said returns or pursuant to any assessment received by the
Guarantors, except such taxes, if any, as are being contested in good faith and
as to which adequate reserves have been provided in accordance with Agreement
Accounting Principles and as to which no Lien exists. No tax liens have been
filed and no claims are being asserted with respect to any such taxes. The
charges, accruals and reserves on the books of the Guarantors in respect of any
taxes or other governmental charges are adequate. Borrower qualifies for
partnership tax treatment under United States federal tax law.
5.7 LITIGATION AND CONTINGENT OBLIGATIONS. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting
Borrower, either Guarantor or any of the Collateral Properties which could
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reasonably be expected to have a Material Adverse Effect or which seeks to
prevent, enjoin or delay the making of the Loans. Other than any liability
incident to any litigation, arbitration or proceeding which could not reasonably
be expected to have a Material Adverse Effect, the Borrower and the Guarantors
have no material contingent obligations not provided for or disclosed in the
financial statements referred to in Section 5.4.
5.8 ERISA. There are no Unfunded Liabilities of any Single Employer Plans.
None of the Borrower, either Guarantor or any other member of the Controlled
Group has incurred, or is reasonably expected to incur, any withdrawal liability
to Multiemployer Plans. Each Plan complies in all material respects with all
Applicable Laws, no Reportable Event has occurred with respect to any Plan, none
of the Borrower, either Guarantor or any other member of the Controlled Group
has withdrawn from any Plan or initiated steps to do so, and no steps have been
taken to reorganize or terminate any Plan. Borrower is not an entity deemed to
hold "plan assets" within the meaning of 29 C.F.R. ss. 2510.3-101 of an employee
benefit plan (as defined in Section 3(3) of ERISA) which iS subject to Title I
of ERISA or any plan (within the meaning of Section 4975 of the Code), and
neither the execution of this Agreement nor the making of Loans hereunder gives
rise to a prohibited transaction within the meaning of Section 406 of ERISA or
Section 4975 of the Code.
5.9 ACCURACY OF INFORMATION. No information, exhibit or report furnished
by Borrower or the Guarantors to the Agent or to any Lender in connection with
the negotiation of or compliance with the Loan Documents contains any material
misstatement of fact or omitted to state a material fact or any fact necessary
to make the statements contained therein not misleading.
5.10 MATERIAL AGREEMENTS. Neither the Borrower nor either Guarantor is a
party to any agreement or instrument or subject to any charter or other limited
liability, company, partnership, trust restriction which could reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor either
Guarantor is in default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in (i) any agreement to which
it is a party, which default could reasonably be expected to have a Material
Adverse Effect, or (ii) any agreement or instrument evidencing or governing
Indebtedness in excess of $10,000,000.
5.11 COMPLIANCE WITH LAWS. The Collateral Properties and the use,
occupancy and operation thereof for their existing purposes do not violate the
Ground Leases or any Applicable Laws (including without limitation, those
relating to environmental protection, water use, zoning, building, fire, health
or safety or the Americans with Disabilities Act), any contractual arrangements
with third parties or any covenants, conditions, easements, rights of way or
restrictions of record. None of Borrower, any Guarantor or any agent thereof has
received any notice, written or otherwise, alleging any such violation, which
violation has not previously been cured. The Collateral Properties are in full
compliance and conformity with all zoning requirements, including without
limitation, those relating to setbacks, height, parking, floor area ratio, fire
lanes and percentage of land coverage. No right to any off-site facilities is
necessary to insure compliance by the Collateral Properties with all
environmental protection,
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public highway, water use, zoning, building, fire, health, safety or similar
statutes, laws, ordinances, codes, rules, regulations, orders and decrees. There
has not been committed by or on behalf of Borrower, or to Borrower's knowledge,
any other Person in occupancy of or involved with the operation of use of any of
the Collateral Properties, any act or omission affording the Federal Government
or any state or local government the right of forfeiture against any of the
Collateral Properties or any portion thereof or any monies paid in performance
of its obligations under any of the Loan Documents. Borrower does not have any
outstanding Indebtedness other than the Loans.
5.12 ENVIRONMENTAL MATTERS. Neither Borrower nor either Guarantor has
received any notice to the effect that its operations are not in material
compliance with any of the requirements of applicable Environmental Laws or are
the subject of any federal or state investigation evaluating whether any
remedial action is needed to respond to a release of any toxic or hazardous
waste or substance into the environment, which non-compliance or remedial action
could reasonably be expected to have a Material Adverse Effect. Except as
described in the Environmental Report, no Hazardous Materials have been
generated, released, stored or deposited over, beneath or on the Collateral
Properties or in any structure located on the Collateral Properties. To the best
of Borrower's knowledge and except as described in the Environmental Report, no
Hazardous Materials have been used or will be used in the construction of all or
any portion of the Collateral Properties, nor, has any part of the Collateral
Properties been used for or as a land fill, the result of which could impose any
liability against Borrower, Agent, Lenders or the Collateral Properties under
any Applicable Law or regulation. Borrower covenants that it shall indemnify,
hold harmless and defend Agent, for the benefit of the Lenders, from any and all
claims, losses, damages, response costs and expenses (collectively, "Claims")
arising out of or in any way relating to the past, present or future presence,
removal or disposal of any Hazardous Materials over, beneath, in or on the
Collateral Properties regardless of whether such presence, removal or disposal
constitutes a breach of the representations, warranties, covenants and
agreements set forth in this Sections, including, but not limited to: (a) claims
of third parties (including governmental agencies) for damages, penalties,
response costs, injunctive or other relief; (b) costs of removal and
restoration, including fees of attorneys and experts and costs of reporting the
existence of any Hazardous Materials to any governmental agency; and (c) any and
all expenses or obligations incurred at, before and after any trial or appeal
therefrom, including without limitation, reasonable attorneys' fees, witness
fees, deposition costs, photocopying charges and other expenses, all of which
shall be paid by Borrower when incurred.
5.13 FINANCING STATEMENTS. There are no UCC financing statements in effect
other than those to be filed and/or recorded by Agent which name Borrower as
debtor and pertain to any rights in any of the Collateral Properties.
5.14 TITLE. As of the date hereof, Borrower owns fee simple title to the
Naperville Property, free and clear of all liens, claims and encumbrances,
except the Permitted Exceptions. As of the date hereof, Borrower owns a
leasehold estate in the Collateral Properties that are subject to the Ground
Leases and fee simple title to the buildings and other properties comprising
said Collateral Properties that are subject to the
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Ground Leases, free and clear of all liens, claims and encumbrances, except the
Permitted Exceptions.
5.15 GROUND LEASES. Borrower has delivered to Agent true, complete and
correct copies of the Ground Leases. The Ground Leases are in full force and
effect, unamended, and no default exists thereunder by any party thereto.
5.16 INVESTMENT COMPANY ACT. Neither Borrower nor either Guarantor is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.17 PUBLIC UTILITY HOLDING COMPANY ACT. Neither Borrower nor either
Guarantor is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
5.18 TENANT LEASES. To the best of Borrower's knowledge, Borrower has
delivered to Lender true, complete and correct copies of the Tenant Leases. To
the best of Borrower's knowledge, (i) the Tenant Leases are in full force and
effect, unamended and no default exists thereunder by any party thereto, except
as shown in the Rent Rolls, and (ii) the Rent Rolls are true and correct and all
material respect as of the date thereof. To the best of Borrower's knowledge and
except as indicated in the Rent Rolls, (i) no Tenant has any extension, renewal
or termination options, (ii) no security deposits are being held by Borrower,
(iii) all work to be performed to date by the landlord under the Tenant Leases
has substantially performed, all contributions to be made to date by the
landlord to the Tenants thereunder have been made and all other conditions to
each such Tenant's obligations thereunder required to be satisfied to date,
other than ordinary ongoing obligations of a landlord, have been satisfied or
waived by the applicable Tenant, (iv) no Tenant or any other Party has any
option, right of first refusal or similar preferential right to purchase or
lease all or any portion of the Collateral Properties or to require Borrower to
perform or finance any tenant improvements or material or alterations to the
Collateral Properties, and (v) no Tenant has any rights to require Borrower to
perform additional work, make additional contributions to such Tenant or satisfy
other conditions to such Tenant's obligations thereunder, other than ordinary,
ongoing obligations of a landlord. To the best of Borrower's knowledge and
except as indicated in the Rent Rolls, no rent (exclusive of any security
deposits) under any Tenant Lease has been paid more than thirty (30) days in
advance of its due date and no payments of rent under any Tenant Lease or more
than thirty (30) days delinquent.
5.19 UTILITIES; AUTHORITIES. All utilities and municipal services required
for use, operation and occupancy of the Collateral Properties (including,
without limitation, water, storm sewer, sanitary sewer and drainage, electric,
gas, cable services and telephone facilities) are available for use at the
boundaries of the respective Collateral Properties (or in the streets adjoining
the respective Collateral Properties), and all requirements for the use of and
connection to such utilities and municipal services have been fulfilled. All
building, zoning, safety, health, fire, water district, sewerage, access
(including curb cuts and highway access) and environmental protection agency
permits and other licenses and approvals
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which are required for the use, occupancy and operation of the Collateral
Properties as medical office buildings have been obtained by or furnished to
Borrower and are in full force and effect.
5.20 PHYSICAL CONDITION. Except for matters set forth in the written
inspection reports delivered by Borrower to Agent, the Collateral Properties
(including sidewalks, store drainage systems, roofs, plumbing systems, HVAC
systems, fire protection systems, electrical systems, equipment, elevators,
exterior sidings and doors, irrogation systems and structural components) are in
good condition, order and repair in all material respect.
5.21 MANAGEMENT. No property management agreements are in effect with
respect to the Collateral Properties.
5.22 CONDEMNATION. No condemnation has been commenced, or to Borrower's
knowledge, is contemplated as of the date hereof with respect to all or any
portion of the Collateral Properties or for the relocation of roadways providing
access to any of the Collateral Properties.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 FINANCIAL REPORTING. The Borrower will maintain a system of accounting
established and administered in accordance with the Agreement Accounting
Principles, and shall furnish to the Agent:
(i) Within 45 days after the close of each calendar quarter,
quarterly operating statements for the Collateral Properties,
including a balance sheet, statement of income and expense and
rent roll, all in form, scope and detail satisfactory to agent
and certified by an Authorized Representative; and
(ii) Within 90 days after the end of each calendar year, annual
audited financial statements for Borrower and the Collateral
Properties certified by an Authorized Representative, together
with an unqualified accountant's opinion in a form
satisfactory to agent.
6.2 MAINTENANCE OF MINIMUM DSCR. During each Quarter, commencing with the
calendar quarter ending December 31, 2002, the DSCR (measured with respect to
the Quarter then ended) for the Collateral Properties shall equal or exceed 1.50
to 1.0. If Agent determines that the DSCR does not equal or exceed 1.50 to 1.0,
Agent shall so notify Borrower and within ten (10) days after delivery of such
notice, Borrower shall pay to Agent, to be applied ratably among the Loans, an
amount of principal following which the DSCR shall equal 1.50 to 1.0.
6.3 USE OF PROCEEDS. Borrower will use the proceeds of the Loans to
acquire the Collateral Properties. Borrower will not use any of the proceeds
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of the Loans to purchase or carry any "margin stock" (as defined in Regulation
U) or to acquire any Property other than the Collateral Properties.
6.4 NOTICE OF DEFAULT. Borrower will give prompt notice in writing to the
Agent of the occurrence of any Default or Unmatured Default and of any other
development, financial or otherwise, which could reasonably be expected to have
a Material Adverse Effect, including without limitation, copies of any notices
of default received from the Ground Lessor or any Tenants.
6.5 CONDUCT OF BUSINESS. Borrower will carry on and conduct its business
in substantially the same manner and in substantially the same fields of
enterprise as it is presently conducted and do all things necessary to remain
duly organized, validly existing and in good standing as a limited liability
company in its jurisdiction of incorporation or organization, as the case may
be, and maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
6.6 TAXES. Borrower will timely file complete and correct United States
federal and applicable foreign, state and local tax returns required by law and
pay when due all taxes, assessments and governmental charges and levies upon it
or its income, profits or Property, except those which are being contested in
good faith by appropriate proceedings and with respect to which adequate
reserves have been set aside in accordance with Agreement Accounting Principles.
Borrower will qualify for partnership tax treatment under United States federal
tax law.
6.7 INSURANCE. Borrower will maintain all insurance policies required
pursuant to Section 4.3 above, and the Borrower will furnish to Agent upon
request full information as to the insurance carried.
6.8 COMPLIANCE WITH LAWS. Borrower will, and will cause each Collateral
Property to, comply with all Applicable Laws, including, without limitation, all
Environmental Laws.
6.9 MAINTENANCE OF COLLATERAL PROPERTIES. Borrower will do all things
necessary to maintain, preserve, protect and keep the Collateral Properties in
good repair, working order and condition, and make all necessary and proper
repairs, renewals and replacements so that the business carried on in connection
therewith may be properly conducted at all times.
6.10 INSPECTION. Borrower will permit the Agent and the Lenders, by their
respective representatives and agents, at reasonable times and upon prior
reasonable notice, to inspect any of the Collateral Properties and the books and
financial records of Borrower and each Guarantor relating thereto and to the
Loan Documents, to examine and make copies of the books of accounts and other
financial records of Borrower and each Guarantor, and to discuss the affairs,
finances and accounts of Borrower and each Guarantor with, and to be advised as
to the same by, their respective officers at such reasonable times and intervals
as the Agent or any Lender may designate.
6.11 INDEBTEDNESS. Borrower will not create, incur or suffer to exist any
Indebtedness, except:
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(i) The Loans; and
(ii) Trade payables incurred in the ordinary course of business
which shall not at any one time exceed the aggregate sum of
$100,000.
6.12 MERGER. Borrower will not merge or consolidate with or into any other
Person.
6.13 INVESTMENTS AND ACQUISITIONS. Borrower will not make or suffer to
exist any Investments (including without limitation, loans and advances to, and
other Investments in, Affiliates), or commitments therefor or to become or
remain a partner in any partnership or joint venture, or to make any Acquisition
of any Person, except Cash Equivalent Investments.
6.14 LIENS. Borrower will not create, incur, or suffer to exist any Lien
in, of or on any of the Collateral Properties, except:
(i) Liens for taxes, assessments or governmental charges or levies
on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings
and for which adequate reserves in accordance with Agreement
Accounting Principles shall have been set aside on its books;
(ii) Mechanics' liens which are being contested in good faith by
appropriate proceedings for which the conditions contained in
the Mortgage or the Leasehold Mortgage applicable to such
contest have been satisfied;
(iii) Liens constituting Permitted Exceptions and
(iv) Liens in favor of the Agent, for the benefit of the Lenders,
granted pursuant to any Collateral Document.
6.15 AFFILIATES. Borrower will not enter into any transaction (including,
without limitation, the purchase or sale of any Property or service) with, or
make any payment or transfer to, any Affiliate except in the ordinary course of
business and pursuant to the reasonable requirements of Borrower's business and
upon fair and reasonable terms no less favorable to Borrower than Borrower would
obtain in a comparable arms-length transaction, provided that any continuing
agreement with an Affiliate must be terminable, without payment or penalty, upon
not less than thirty days' prior written notice
6.16 GROUND LEASES AND TENANT LEASES. Borrower will promptly perform when
due all of its obligations, and liabilities under the Ground Leases and Tenant
Leases. Borrower will not amend or terminate any Ground Lease without the prior
written consent of Agent. Borrower shall promptly give to Agent notice of the
occurrence of any event which does or would with the passage of time or the
giving of notice, or both, constitute an Event of Default under any Ground
Lease.
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6.17 SALE, ENCUMBRANCE AND LEASING OF COLLATERAL PROPERTIES. Borrower
shall not, without Lender's prior written consent, suffer, permit or enter into
any agreement for any sale, lease, transfer, or in any way encumber or dispose
of or grant or suffer any security or other assignment (collateral or otherwise)
of or in all or any portion of the Collateral Properties. Any consent given by
Lender or deemed to have been given by Lender, or any waiver of default under
this Section 6.17, shall not constitute a consent to, or waiver of any right,
remedy or power of Lender under any subsequent default hereunder.
Notwithstanding the foregoing, Borrower may, execute Tenant Leases, provided,
however, that such Tenant Leases are on the Standard Lease Form and are
otherwise permitted by the terms and provisions of the Assignment of Rents and
Leases. In addition, Borrower shall have the right to sell or refinance any
Collateral Property, provided that each of the following conditions is
satisfied:
(a) No Default or Unmatured Default exists at the time of the
closing of the sale or refinancing;
(b) Concurrently with the closing of the sale or refinancing,
Borrower shall cause to be paid to Agent, for the benefit of Lenders (and
following receipt of such amount, Agent shall cause a partial release of
the Collateral Documents covering such Collateral Property to be delivered
to Borrower), but subject to the restriction contained in (c) below, an
amount equal to the greatest of: (i) 115% of the Maximum Aggregate Amount
allocated to the Collateral Property being sold or refinanced (determined
on a per square foot basis for all office buildings located on the
Collateral Properties); (ii) 100% of the proceeds realized from such sale
or refinancing, net of customary and reasonable closing costs, title
charges, escrow fees and commissions payable to persons that are not
Affiliates of Borrower or any Guarantor, all of which amounts shall be
reasonably acceptable to Agent; (iii) an amount necessary to reduce the
outstanding principal balance of the Loans such that the DSCR (based upon
the reduced outstanding principal balance of the Loans) is equal to 1.6 to
1.0; or (iv) an amount necessary to reduce the outstanding principal
balance of the Loans such that the ratio of the reduced outstanding
principal balance of the Loans to the "Direct Cap Rate Value" is equal to
or less than 50%. For purposes hereof, the "Direct Cap Rate Value" shall
be equal to the Net Operating Income of the remaining Collateral
Properties for the most recently ended Quarter capitalized on the basis of
the weighted average capitalization rates for such Collateral Properties
contained in the most recent Appraisals of such Collateral Properties; and
(c ) Following any such sale or refinancing of a Collateral
Property, the outstanding principle balance of the Loans shall not be less
than $15,000,000.
6.18 RESTRICTIONS AFFECTING BORROWER. Borrower covenants and agrees that,
without the prior written consent of Lender, there shall not occur: (i) any
amendment or modification of the Certificate of Formation or Operating Agreement
establishing or governing Borrower; (ii) the release or discharge of Great Lakes
LP as Borrower's sole manager; or (iii) the admission of any new manager of
Borrower. At all times prior to the
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repayment of the Loan, (A) Great Lakes LP shall be the sole manager of Borrower
and together with a future member to be owned by Tenants, shall be the sole
members of Borrower, (B) neither Great Lakes LP nor any such future member shall
sell, assign, transfer, pledge, encumber or dispose of all or any of its
respective membership interests in Borrower, including the right to receive
income or distributions from Borrower, (C) Great Lakes LP shall own not less
than 55% of the membership interests in Borrower, free and clear of all liens,
claims, encumbrances and rights of third parties, (D) Borrower shall not make or
permit any distributions of cash flow or cash proceeds to any member of Borrower
or any member, partner, subpartner, shareholder, officer, director or affiliate
of any member of Borrower following the occurrence of any Unmatured Default or
Default.
6.19 USE OF INCOME. Borrower shall cause all rents and other income and
receipts realized and received by Borrower from and in connection with the
Collateral Properties to be used first for the purpose of paying interest on the
Loans and then for the actual costs and expenses incurred by Borrower in
connection with the ownership, operation, management and repair of the
Collateral Properties, including without limitation, operating expenses, real
estate taxes and insurance premiums.
6.20 ADDITIONAL DOCUMENTS. Borrower shall not execute or record any
document pertaining to, affecting or running with all or any portion of the
Collateral Properties, without the prior written approval of Agent of the form
and substance of such documents.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
7.1 Any representation or warranty made or deemed made by or on behalf of
the Borrower or any Guarantor to the Lenders or the Agent under or in connection
with this Agreement, any Loan, or any certificate or information delivered in
connection with this Agreement or any other Loan Document shall be materially
false on the date as of which made.
7.2 Nonpayment of principal of the Loans when due, or nonpayment of
interest upon the Loans or of any commitment fee or other obligations under any
of the Loan Documents within five (5) days after written notice from Agent.
7.3 The breach by the Borrower (other than a breach which constitutes a
Default under another section of this Article VII) of any of the terms or
provisions of this Agreement which is not remedied within thirty days after
written notice from the Agent or any Lender, provided, that if such breach by
its nature can be cured, then so long as the continued operation and safety of
the Collateral Properties, and the priority, validity and enforceability of the
liens created by the Collateral Documents and the value of the Collateral
Properties are not impaired, threatened or jeopardized, Borrower shall have an
additional period of not to exceed 60 days after receipt of such written notice
from Agent or any Lender to cure such breach, so long as
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Borrower commences to cure such breach during the initial 30 day period and
diligently and in good faith continues attempting to effect such cure.
7.4 Borrower or either Guarantor shall (i) have an order for relief
entered with respect to it under the Federal bankruptcy laws as now or hereafter
in effect, (ii) make an assignment for the benefit of creditors, (iii) apply
for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, trustee, examiner, liquidator or similar official for it or any
substantial portion of its Property, (iv) institute any proceeding seeking an
order for relief under the Federal bankruptcy laws as now or hereafter in effect
or seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v)
take any corporate or partnership action to authorize or effect any of the
foregoing actions set forth in this Section 7.4 or (vi) fail to contest in good
faith any appointment or proceeding described in Section 7.5.
7.5 Without the application, approval or consent of Borrower or either
Guarantor, a receiver, trustee, examiner, liquidator or similar official shall
be appointed for the Borrower or any Guarantor of any substantial portion of its
Property, or a proceeding described in Section 7.4(iv) shall be instituted
against the Borrower or any Guarantor and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of 30 consecutive days.
7.6 Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of, all or any material
portion of the Property of the Borrower or any Guarantor.
7.7 Borrower or either Guarantor shall fail within 30 days to pay, bond or
otherwise discharge one or more (i) judgments or orders for the payment of money
in excess of $100,000 in the aggregate, or (ii) nonmonetary judgments or orders
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, which judgment(s), in any such case, is/are not stayed
on appeal or otherwise being appropriately contested in good faith.
7.8 A breach of any of the covenants contained in Sections 6.14, 6.17 or
6.18 or the occurrence of any Change in Control.
7.9 The failure of Guarantor to comply with any of the financial or other
covenants contained in Section 8 of the Guaranty.
7.10 The occurrence of any "Default" or "Event of Default" under any Loan
or Credit Agreement between Bank One, as agent or individually, and either or
both of the Guarantors.
7.11 Borrower shall (i) be the subject of any proceeding or investigation
pertaining to the release by the Borrower, or any other Person of any toxic or
hazardous waste or substance into the environment, or (ii) violate any
Environmental Law, which, in the case of an event described
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in clause (i) or clause (ii), could reasonably be expected to have a Material
Adverse Effect.
7.12 The occurrence of any "Event of Default", as defined in any Loan
Document (other than this Agreement) or the breach of any of the terms or
provisions of any Loan Document (other than this Agreement), which default or
breach continues beyond any period of grace therein provided.
7.13 Any Collateral Document shall for any reason fail to create a valid
and perfected first priority security interest in any collateral purported to be
covered thereby, except as permitted by the terms of any Collateral Document, or
any Collateral Document shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Collateral Document, or the Borrower shall fail to
comply with any of the terms or provisions of any Collateral Document.
7.14 The occurrence of an "Event of Default" under any Ground Lease,
regardless of whether or not such Event of Default is cured by Agent or any
Lender.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 ACCELERATION. If any Default described in Section 7.4 or 7.5 occurs
with respect to Borrower or either Guarantor, the Obligations shall immediately
become due and payable without any election or action on the part of the Agent
or any Lender. If any other Default occurs, the Required Lenders (or the Agent
with the consent of the Required Lenders) may declare the Obligations to be due
and payable, whereupon the Obligations shall become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of which the
Borrower hereby expressly waives.
8.2 AMENDMENTS. Subject to the provisions of this Section 8.2, the
Required Lenders (or the Agent with the consent in writing of the Required
Lenders) and the Borrower may enter into agreements supplemental hereto for the
purpose of adding or modifying any provisions to the Loan Documents or changing
in any manner the rights of the Lenders or the Borrower hereunder or waiving any
Default hereunder; PROVIDED, HOWEVER, that no such supplemental agreement shall,
without the consent of all of the Lenders:
(i) Extend the Maturity Date or forgive all or any portion of the
principal amount thereof, or reduce the rate or extend the
time of payment of interest or fees thereon;
(ii) Reduce the percentage specified in the definition of Required
Lenders; or
(iii) Amend this Section 8.2.
No amendment of any provision of this Agreement relating to the Agent shall be
effective without the written consent of the Agent.
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8.3 PRESERVATION OF RIGHTS. No delay or omission of the Lenders or the
Agent to exercise any right under the Loan Documents shall impair such right or
be construed to be a waiver of any Default or an acquiescence therein. Any
single or partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right, and no waiver, amendment or
other variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by Agent or the Lenders
required pursuant to Section 8.2, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Agent and the
Lenders until the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1 SURVIVAL OF REPRESENTATIONS. All representations and warranties of the
Borrower contained in this Agreement shall survive the making of the Loans
herein contemplated.
9.2 GOVERNMENTAL REGULATION. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.3 HEADINGS. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
9.4 ENTIRE AGREEMENT. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Agent and the Lenders and supersede all
prior agreements and understandings among the Borrower, the Agent and the
Lenders relating to the subject matter thereof.
9.5 SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. This Agreement shall not be construed so as to confer any
right or benefit upon any Person other than the parties to this Agreement and
their respective successors and assigns.
9.6 EXPENSES; INDEMNIFICATION.
(i) The Borrower shall reimburse the Agent for any costs, internal
charges and out-of-pocket expenses (including reasonable
attorneys' fees and time charges of attorneys for the Agent)
paid or incurred by the Agent in connection with the
preparation, negotiation, execution, delivery, syndication,
distribution (including, without limitation, via the
internet), review, amendment, modification, and administration
of the Loan Documents. The Borrower also
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agrees to reimburse the Agent and the Lenders for any costs,
internal charges and out-of-pocket expenses (including
attorneys' fees and time charges of attorneys for the Agent
and the Lenders, which attorneys may be employees of the Agent
or the Lenders) paid or incurred by the Agent or any Lender in
connection with the collection and enforcement of the Loan
Documents. Borrower acknowledges that from time to time Bank
One may prepare and may distribute to the Lenders (but shall
have no obligation or duty to prepare or to distribute to the
Lenders) certain audit reports (the "Reports") pertaining to
the Borrower's assets for internal use by Bank One from
information furnished to it by or on behalf of the Borrower,
after Bank One has exercised its rights of inspection pursuant
to this Agreement.
(ii) Borrower hereby further agrees to indemnify the Agent, each
Lender, their respective Affiliates, and each of their
directors, officers and employees against all losses, claims,
damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or
preparation therefor whether or not the Agent, any Lender or
any Affiliate is a party thereto) which any of them may pay or
incur arising out of or relating to this Agreement, the other
Loan Documents, the transactions contemplated hereby or the
direct or indirect application or proposed application of the
proceeds of any Loan hereunder except to the extent that they
are determined in a final non-appealable judgment by a court
of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrower under this
Section 9.6 shall survive the termination of this Agreement.
9.7 NUMBERS OF DOCUMENTS. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Agent with sufficient counterparts
so that the Agent may furnish one to each of the Lenders.
9.8 ACCOUNTING. Except as provided to the contrary herein, all accounting
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with Agreement Accounting Principles.
9.9 SEVERABILITY OF PROVISIONS. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
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9.10 NONLIABILITY OF LENDERS. The relationship between the Borrower on the
one hand and the Lenders and the Agent on the other hand shall be solely that of
borrower and lender. Neither the Agent nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither the Agent nor any Lender undertakes
any responsibility to the Borrower to review or inform the Borrower of any
matter in connection with any phase of the Borrower's business or operations.
The Borrower agrees that neither the Agent, nor any Lender shall have liability
to the Borrower (whether sounding in tort, contract or otherwise) for losses
suffered by the Borrower in connection with, arising out of, or in any way
related to, the transactions contemplated and the relationship established by
the Loan Documents, or any act, omission or event occurring in connection
therewith, unless it is determined in a final non-appealable judgment by a court
of competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. Neither the Agent
nor any Lender shall have any liability with respect to, and the Borrower hereby
waives, releases and agrees not to sue for, any special, indirect, consequential
or punitive damages suffered by the Borrower in connection with, arising out of,
or in any way related to the Loan Documents or the transactions contemplated
thereby.
9.11 CONFIDENTIALITY. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which such Lender is a party, (vi) to such Lender's direct or
indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties, (vii)
permitted by Section 12.4 and (viii) to rating agencies if requested or required
by such agencies in connection with a rating relating to the Advances hereunder.
9.12 NONRELIANCE. Each Lender hereby represents that it is not relying on
or looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Loans provided
for herein.
9.13 DISCLOSURE. The Borrower and each Lender hereby acknowledge and agree
that Bank One and/or its Affiliates from time to time may hold investments in,
make other loans to or have other relationships with the Borrower and its
Affiliates.
ARTICLE X
THE AGENT
10.1 APPOINTMENT; NATURE OF RELATIONSHIP. Bank One, is hereby appointed by
each of the Lenders as its contractual representative (herein referred to as the
"Agent") hereunder and under each other Loan Document, and each of the Lenders
irrevocably authorizes the Agent to act as the contractual representative of
such Lender with the rights and duties
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expressly set forth herein and in the other Loan Documents. The Agent agrees to
act as such contractual representative upon the express conditions contained in
this Article X. Notwithstanding the use of the defined term "Agent," it is
expressly understood and agreed that the Agent shall not have any fiduciary
responsibilities to any Lender by reason of this Agreement or any other Loan
Document and that the Agent is merely acting as the contractual representative
of the Lenders with only those duties as are expressly set forth in this
Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (i) does not hereby assume any fiduciary
duties to any of the Lenders, (ii) is a "representative" of the Lenders within
the meaning of the term "secured party" as defined in the Illinois Uniform
Commercial Code and (iii) is acting as an independent contractor, the rights and
duties of which are limited to those expressly set forth in this Agreement and
the other Loan Documents. Each of the Lenders hereby agrees to assert no claim
against the Agent on any agency theory or any other theory of liability for
breach of fiduciary duty, all of which claims each Lender hereby waives.
10.2 POWERS. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto. The
Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
10.3 GENERAL IMMUNITY. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith except
to the extent such action or inaction is determined in a final non-appealable
judgment by a court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of such Person.
10.4 NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the Agent nor any
of its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into, or verify (a) any statement, warranty or
representation made in connection with any Loan Document or any borrowing
hereunder; (b) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent; (d) the existence
or possible existence of any Default or Unmatured Default; (e) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; (f) the
value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (g) the financial condition of the Borrower or either
Guarantor of any of the Obligations or of any of the Borrower's or any such
Guarantor's respective subsidiaries. The Agent shall have no duty to disclose to
the Lenders information that is not required to be furnished by the Borrower to
the Agent at such time, but is voluntarily furnished by the Borrower to the
Agent (either in its capacity as Agent or in its individual capacity).
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10.5 ACTION ON INSTRUCTIONS OF LENDERS. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders. The Lenders hereby
acknowledge that the Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
or any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
10.6 EMPLOYMENT OF AGENTS AND COUNSEL. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
10.7 RELIANCE ON DOCUMENTS; COUNSEL. The Agent shall be entitled to rely
upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8 AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Loans outstanding (i) for any amounts not reimbursed by the Borrower for which
the Agent is entitled to reimbursement by the Borrower under the Loan Documents,
(ii) for any other expenses incurred by the Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents (including, without limitation, for any
expenses incurred by the Agent in connection with any dispute between the Agent
and any Lender or between two or more of the Lenders) and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way relating to or
arising out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby (including, without
limitation, for any such amounts incurred by or asserted against the Agent in
connection with any dispute between the Agent and any Lender or between two or
more of the Lenders), or the enforcement of any of the terms of the Loan
Documents or of any such other documents, PROVIDED that (i) no Lender shall be
liable for any of the foregoing to the extent any of the foregoing is found in a
final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Agent and (ii)
any indemnification required pursuant to Section 3.5(vii) shall, notwithstanding
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the provisions of this Section 10.8, be paid by the relevant Lender in
accordance with the provisions thereof. The obligations of the Lenders under
this Section 10.8 shall survive payment of the Obligations and termination of
this Agreement.
10.9 NOTICE OF DEFAULT. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Unmatured Default hereunder unless
the Agent has received written notice from a Lender or the Borrower referring to
this Agreement describing such Default or Unmatured Default and stating that
such notice is a "notice of default". In the event that the Agent receives such
a notice, the Agent shall give prompt notice thereof to the Lenders.
10.10 RIGHTS AS A LENDER. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
either Guarantor in which the Borrower or such Guarantor is not restricted
hereby from engaging with any other Person. The Agent, in its individual
capacity, is not obligated to remain a Lender.
10.11 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements prepared by the Borrower and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
10.12 SUCCESSOR AGENT. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, such resignation to be effective
upon the appointment of a successor Agent or, if no successor Agent has been
appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. The Agent may be removed at any time with or without cause
by written notice received by the Agent from the Required Lenders, such removal
to be effective on the date specified by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint, on
behalf of the Borrower and the Lenders, a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders within thirty days after
the resigning Agent's giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Agent. Notwithstanding the previous sentence, the Agent may at any
time without the consent of the Borrower or any Lender, appoint any of its
Affiliates which is a commercial bank as a successor Agent hereunder. If the
Agent has resigned or been removed and no successor Agent has been appointed,
the Lenders may perform
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all the duties of the Agent hereunder and the Borrower shall make all payments
in respect of the Obligations to the applicable Lender and for all other
purposes shall deal directly with the Lenders. No successor Agent shall be
deemed to be appointed hereunder until such successor Agent has accepted the
appointment. Any such successor Agent shall be a commercial bank having capital
and retained earnings of at least $100,000,000. 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 resigning or removed Agent. Upon the effectiveness of the
resignation or removal of the Agent, the resigning or removed Agent shall be
discharged from its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation or removal of an Agent,
the provisions of this Article X shall continue in effect for the benefit of
such Agent in respect of any actions taken or omitted to be taken by it while it
was acting as the Agent hereunder and under the other Loan Documents. In the
event that there is a successor to the Agent by merger, or the Agent assigns its
duties and obligations to an Affiliate pursuant to this Section 10.12, then the
term "Prime Rate" as used in this Agreement shall mean the prime rate, base rate
or other analogous rate of the new Agent.
10.13 DELEGATION TO AFFILIATES. The Borrower and the Lenders agree that
the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles IX and X.
10.14 COLLATERAL PROPERTY RELEASES. The Lenders hereby empower and
authorize the Agent to execute and deliver to the Borrower on their behalf any
agreements, documents or instruments as shall be necessary or appropriate to
effect any releases of a Property Collateral which shall be permitted by the
terms hereof or of any other Loan Document or which shall otherwise have been
approved by the Required Lenders.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 SETOFF. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of the Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part thereof, shall then be due.
11.2 RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received pursuant to
Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a
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portion of the Loans held by the other Lenders so that after such purchase each
Lender will hold its ratable proportion of Loans. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their Loans. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns permitted hereby, except
that (i) the Borrower shall not have the right to assign its rights or
obligations under the Loan Documents without the prior written consent of each
Lender, (ii) any assignment by any Lender must be made in compliance with
Section 12.3, and (iii) any transfer by Participation must be made in compliance
with Section 12.2. Any attempted assignment or transfer by any party not made in
compliance with this Section 12.1 shall be null and void, unless such attempted
assignment or transfer is treated as a participation in accordance with Section
12.3.2. The parties to this Agreement acknowledge that clause (ii) of this
Section 12.1 relates only to absolute assignments and this Section 12.1 does not
prohibit assignments creating security interests, including, without limitation,
(x) any pledge or assignment by any Lender of all or any portion of its rights
under this Agreement and any Note to a Federal Reserve Bank or (y) in the case
of a Lender which is a Fund, any pledge or assignment of all or any portion of
its rights under this Agreement and any Note to its trustee in support of its
obligations to its trustee; PROVIDED, HOWEVER, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of Section 12.3. The Agent may treat the Person which made any
Loan or which holds any Note as the owner thereof for all purposes hereof unless
and until such Person complies with Section 12.3; PROVIDED, HOWEVER, that the
Agent may in its discretion (but shall not be required to) follow instructions
from the Person which made any Loan or which holds any Note to direct payments
relating to such Loan or Note to another Person. Any assignee of the rights to
any Loan or any Note agrees by acceptance of such assignment to be bound by all
the terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the owner of the rights to any Loan (whether or not a
Note has been issued in evidence thereof), shall be conclusive and binding on
any subsequent holder or assignee of the rights to such Loan.
12.2 PARTICIPATIONS.
12.2.1 PERMITTED PARTICIPANTS; EFFECT. Any Lender may at any time
sell to one or more banks or other entities ("Participants") participating
interests in the Loan owing to such Lender, any Note held
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by such Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan
Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the owner of its Loan and the holder
of any Note issued to it in evidence thereof for all purposes under the
Loan Documents, all amounts payable by the Borrower under this Agreement
shall be determined as if such Lender had not sold such participating
interests, and the Borrower and the Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents.
12.2.2 VOTING RIGHTS. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than
any amendment, modification or waiver with respect to any Loan in which
such Participant has an interest which would require consent of all of the
Lenders pursuant to the terms of Section 8.2 or of any other Loan
Document.
12.2.3 BENEFIT OF CERTAIN PROVISIONS. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents, PROVIDED that each Lender shall retain the right of setoff
provided in Section 11.1 with respect to the amount of participating
interests sold to each Participant. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff
provided in Section 11.1, agrees to share with each Lender, any amount
received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 11.2 as if each Participant were a
Lender. The Borrower further agrees that each Participant shall be
entitled to the benefits of Sections 3.1, 3.2, 3.4 and 3.5 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to Section 12.3, PROVIDED that (i) a Participant shall not be
entitled to receive any greater payment under Section 3.1, 3.2 or 3.5 than
the Lender who sold the participating interest to such Participant would
have received had it retained such interest for its own account, unless
the sale of such interest to such Participant is made with the prior
written consent of the Borrower, and (ii) any Participant not incorporated
under the laws of the United States of America or any State thereof agrees
to comply with the provisions of Section 3.5 to the same extent as if it
were a Lender.
12.3 ASSIGNMENTS.
12.3.1 PERMITTED ASSIGNMENTS. Any Lender may at any time assign to
one or more banks or other entities ("Purchasers") all or any part of its
rights and obligations under the Loan Documents. Such assignment shall be
substantially in the form of Exhibit B or in such other form as may be
agreed to by the parties thereto. Each such assignment with respect to a
Purchaser which is not a Lender or an
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Affiliate of a Lender or an Approved Fund shall either be in an amount
equal to the entire applicable Commitment and Loans of the assigning
Lender or (unless each of the Borrower and the Agent otherwise consents)
be in an aggregate amount not less than $5,000,000.
12.3.2 CONSENTS. The consent of the Agent shall be required prior to
an assignment becoming effective unless the Purchaser is a Lender, an
Affiliate of a Lender or an Approved Fund. Any consent required under this
Section 12.3.2 shall not be unreasonably withheld or delayed.
12.3.3 EFFECT; EFFECTIVE DATE. Upon (i) delivery to the Agent of an
assignment, together with any consents required by Sections 12.3.1 and
12.3.2, and (ii) payment of a $3,500 fee to the Agent for processing such
assignment (unless such fee is waived by the Agent), such assignment shall
become effective on the effective date specified in such assignment. The
assignment shall contain a representation by the Purchaser to the effect
that none of the consideration used to make the purchase of the Commitment
and Loans under the applicable assignment agreement constitutes "plan
assets" as defined under ERISA and that the rights and interests of the
Purchaser in and under the Loan Documents will not be "plan assets" under
ERISA. On and after the effective date of such assignment, such Purchaser
shall for all purposes be a Lender party to this Agreement and any other
Loan Document executed by or on behalf of the Lenders and shall have all
the rights and obligations of a Lender under the Loan Documents, to the
same extent as if it were an original party thereto, and the transferor
Lender shall be released with respect to the Commitment and Loans assigned
to such Purchaser without any further consent or action by the Borrower,
the Lenders or the Agent. In the case of an assignment covering all of the
assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a Lender hereunder but shall continue to be
entitled to the benefits of, and subject to, those provisions of this
Agreement and the other Loan Documents which survive payment of the
Obligations and termination of the applicable agreement. Any assignment or
transfer by a Lender of rights or obligations under this Agreement that
does not comply with this Section 12.3 shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with Section 12.2. Upon the consummation of
any assignment to a Purchaser pursuant to this Section 12.3.3, the
transferor Lender, the Agent and the Borrower shall, if the transferor
Lender or the Purchaser desires that its Loans be evidenced by Notes, make
appropriate arrangements so that new Notes or, as appropriate, replacement
Notes are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each case
in principal amounts reflecting their respective Commitments, as adjusted
pursuant to such assignment.
12.3.4 REGISTER. The Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at one of its offices in Chicago,
Illinois a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders,
and the Commitments of, and principal amounts of the Loans
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owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the
Borrower, the Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to
the contrary. The Register shall be available for inspection by the
Borrower and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
12.4 DISSEMINATION OF INFORMATION. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, including
without limitation any information contained in any Reports; PROVIDED that each
Transferee and prospective Transferee agrees to be bound by Section 9.11 of this
Agreement.
12.5 TAX TREATMENT. If any interest in any Loan Document is transferred to
any Transferee which is not incorporated under the laws of the United States or
any State thereof, the transferor Lender shall cause such Transferee,
concurrently with the effectiveness of such transfer, to comply with the
provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1 NOTICES. Except as otherwise permitted with respect to
Continuation/Conversion Notices, all notices, requests and other communications
to any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Borrower or the Agent, at its address or facsimile number set
forth on the signature pages hereof, (y) in the case of any Lender, at its
address or facsimile number set forth below its signature hereto or (z) in the
case of any party, at such other address or facsimile number as such party may
hereafter specify for the purpose by notice to the Agent and the Borrower in
accordance with the provisions of this Section 13.1. Each such notice, request
or other communication shall be effective (i) if given by facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, or (ii) if given by any other means,
when delivered (or, in the case of electronic transmission, received) at the
address specified in this Section; PROVIDED that notices to the Agent under
Article II shall not be effective until received.
13.2 CHANGE OF ADDRESS. The Borrower, the Agent and any Lender may each
change the address for service of notice upon it by a notice in writing to the
other parties hereto.
ARTICLE XIV
COUNTERPARTS
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This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Agent and the Lenders
and each party has notified the Agent by facsimile transmission or telephone
that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET
SEQ, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
15.2 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO
THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE
COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER
IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER
AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
CHICAGO, ILLINOIS.
15.3 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER HEREBY
WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have executed
this Agreement as of the date first above written.
BORROWER:
GLR-MEDICAL PROPERTIES ONE, LLC, a Delaware limited
liability company
By: Great Lakes REIT, L.P., a Delaware limited
partnership
Its: Managing Member/Manager
By: Great Lakes REIT, a Maryland real
estate investment trust
Its: General Partner
By:________________________________
Name: James Hicks
Title: Treasurer
Address:
c/o Great Lakes REIT
823 Commerce Drive, Suite 300
Oak Brook, Illinois 60523
Attention: James Hicks
Telephone: (630) 368-2900
Fax: (630) 368-2929
With copies to:
Seyfarth Shaw
55 East Monroe Street, Suite 4200
Chicago, Illinois 60603
Attn: Andrew Lampert, Esq.
Telephone: (312) 346-8000
Fax: (312) 269-8869
Great Lakes REIT
823 Commerce Drive, Suite 300
Oak Brook, Illinois 60523
Attn: Adam E. Berman, Esq.
Telephone: (630) 368-2900
Fax: (630) 368-2929
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LOAN AMOUNT LENDER AND AGENT:
$36,000,000 BANK ONE, NA, individually and as Agent
By:____________________________________
Name:__________________________________
Title:_________________________________
Address:
1 Bank One Plaza
Chicago, Illinois 60670
Attention: James L. Imbeau
Telephone: (312) 732-4583
Fax: (312) 732-5939
With a copy to:
PIPER RUDNICK
203 North LaSalle Street, Suite 1800
Chicago, Illinois 60601
Attn: Merle Teitelbaum Cowin, Esq.
Telephone: (312) 368-4089
Fax: (312) 630-7419
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EXHIBIT A-1
Legal Description of Christ Property
THAT PART OF THE SOUTHWEST QUARTER OF SECTION 3, TOWNSHIP 37 NORTH, RANGE 13,
EAST OF THE THIRD PRINCIPAL MERIDIAN, BOUNDED AND DESCRIBED AS FOLLOWS:
BEGINNING AT THE POINT OF INTERSECTION OF A LINE DRAWN 40.00 FEET WEST OF AND
PARALEL WITH THE EAST LINE OF SAID SOUTHWEST QUARTER WITH A LINE DRAWN 50.00
FEET NORTH OF AND PARALLEL WITH THE SOUTH LINE OF SAID SOUTHWEST QUARTER; THENCE
WEST 222.83 FEET ALONG A LINE 50.00 FEET NORTH OF AND PARALLEL WITH THE SOUTH
LINE OF SAID SOUTHWEST QUARTER, BEING ALSO THE NORTH LINE OF WEST 95TH STREET IN
ACCORDANCE WITH PLAT OF DEDICATION RECORDED MAY 27, 1958 AS DOCUMENT NO.
17219540; THENCE NORTH 177.05 FEET ALONG A LINE FORMING AN ANGLE OF 89 DEGREES
54 MINUTES 37 SECONDS AS MEASURED FROM EAST TO NORTH WITH SAID NORTH LINE OF
95TH STREET; THENCE EAST 24.70 FEET PARALLEL WITH SAID NORTH OF WEST 95TH
STREET; THENCE NORTH 72.34 FEET PARALLEL WITH THE EAST LINE OF SAID SOUTHWEST
QUARTER; THENCE EAST 197.28 FEET PARALLEL WITH SAID NORTH LINE OF WEST 95TH
STREET TO THE WEST LINE OF SOUTH KOSTNER AVENUE, BEING A LINE 40.00 FEET WEST OF
THE EAST LINE OF SAID SOUTHWEST QUARTER IN ACCORDANCE WITH THE AFORESAID PLAT OF
DEDICATION; THENCE SOUTH 249.39 FEET ALONG THE WEST LINE OF SOUTH KOSTNER AVENUE
TO THE HEREIN ABOVE DESCRIBED POINT OF BEGINNING, ALL IN COOK COUNTY, ILLINOIS.
PIN: 24-03-318-017
COMMONLY KNOWN AS: CHRIST HOSPITAL, 4400 WEST 95TH STREET, OAK LAWN, ILLINOIS
A-1-1
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EXHIBIT A-2
Legal Description of Good Samaritan Property
THAT PART OF LOT "A" OF EVANGELICAL HOSPITAL ASSOCIATION ASSESSMENT PLAT NO. 2
IN THE SOUTHWEST 1/4 OF SECTION 32, TOWNSHIP 39 NORTH, RANGE 11, EAST OF THE
THIRD PRINCIPAL MERIDIAN, RECORDED AS DOCUMENT NUMBER R77-108464, DESCRIBED AS
FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID LOT "A"; THENCE SOUTH 08
DEGREES 30 MINUTES 00 SECONDS EAST ALONG THE EASTERLY LINE OF SAID LOT "A", A
DISTANCE OF 2117.29 FEET; THENCE NORTH 88 DEGREES 48 MINUTES 52 SECONDS WEST,
438.33 FEET FOR A POINT OF BEGINNING; THENCE SOUTH 01 DEGREES 11 MINUTES 08
SECONDS WEST, 161.38 FEET; THENCE SOUTH 46 DEGREES 16 MINUTES 08 SECONDS WEST,
157.62 FEET; THENCE NORTH 88 DEGREES 41 MINUTES 12 SECONDS WEST, 96.73 FEET;
THENCE NORTH 01 DEGREES 18 MINUTES 48 SECONDS EAST, 34.97 FEET; THENCE NORTH 44
DEGREES 23 MINUTES 52 SECONDS EAST, 110.72 FEET; THENCE NORTH 00 DEGREES 29
MINUTES 47 SECONDS EAST, 68.11 FEET; THENCE NORTH 88 DEGREES 57 MINUTES 45
SECONDS WEST, 68.73 FEET; THENCE NORTH 01 DEGREES 18 MINUTES 48 SECONDS EAST,
111.37 FEET; THENCE SOUTH 88 DEGREES 48 MINUTES 52 SECONDS EAST, 95.12 FEET;
THENCE SOUTH 01 DEGREES 11 MINUTES 08 SECONDS WEST, 22.50 FEET; THENCE SOUTH 88
DEGREES 48 MINUTES 52 SECONDS EAST, 106.64 FEET TO THE POINT OF BEGINNING, IN DU
PAGE COUNTY, ILLINOIS.
PIN: 06-32-306-028
COMMONLY KNOWN AS: GOOD SAMARITAN HOSPITAL, 3825 HIGHLAND AVENUE,
DOWNERS GROVE, ILLINOIS.
A-2-1
<Page>
EXHIBIT A-3
Legal Description of Good Shepherd Property
PARCEL 1: THAT PART OF THE WEST 1/2 OF THE NORTHWEST 1/4 OF SECTION 22, TOWNSHIP
43 NORTH, RANGE 9, EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF THE WEST 1/2 OF THE NORTHWEST 1/4 OF SAID
SECTION 22; THENCE SOUTH 00 DEGREES 48 MINUTES 42 SECONDS WEST, 392.23 FEET
ALONG THE EAST LINE OF SAID WEST 1/2; THENCE NORTH 89 DEGREES 59 MINUTES 05
SECONDS WEST 319.19 FEET; THENCE SOUTH 00 DEGREES 00 MINUTES 55 SECONDS WEST,
340.88 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 47 DEGREES 50 MINUTES 28
SECONDS EAST, 47.89 FEET; THENCE NORTH 42 DEGREES 09 MINUTES 32 SECONDS EAST,
13.28 FEET; THENCE SOUTH 47 DEGREES 50 MINUTES 28 SECONDS EAST 88.41 FEET;
THENCE SOUTH 42 DEGREES 09 MINUTES 32 SECONDS WEST, 106.04 FEET; THENCE NORTH 47
DEGREES 50 MINUTES 28 SECONDS WEST 34.32 FEET; THENCE SOUTH 42 DEGREES 09
MINUTES 32 SECONDS WEST 92.59 FEET; THENCE SOUTH 47 DEGREES 50 MINUTES 28
SECONDS EAST, 34.41 FEET; THENCE SOUTH 42 DEGREES 09 MINUTES 32 SECONDS WEST,
54.08 FEET; THENCE NORTH 47 DEGREES 50 MINUTES 28 SECONDS WEST 48.03 FEET;
THENCE SOUTH 42 DEGREES 09 MINUTES 32 SECONDS WEST, 13.35 FEET; THENCE NORTH 47
DEGREES 50 MINUTES 28 SECONDS WEST 28.20 FEET; THENCE SOUTH 42 DEGREES 16
MINUTES 43 SECONDS WEST, 26.46 FEET; THENCE SOUTH 55 DEGREES 43 MINUTES 29
SECONDS EAST, 71.56 FEET; THENCE SOUTH 34 DEGREES 16 MINUTES 31 SECONDS WEST,
107.47 FEET; THENCE NORTH 55 DEGREES 43 MINUTES 29 SECONDS WEST, 53.85 FEET;
THENCE SOUTH 22 DEGREES 55 MINUTES 49 SECONDS WEST, 39.78 FEET; THENCE SOUTH 78
DEGREES 27 MINUTES 34 SECONDS EAST, 53.89 FEET; THENCE SOUTH 11 DEGREES 32
MINUTES 26 SECONDS WEST, 108.75 FEET; THENCE NORTH 78 DEGREES 27 MINUTES 34
SECONDS WEST 164.05 FEET; THENCE NORTH 11 DEGREES 32 MINUTES 26 SECONDS EAST,
108.75 FEET; THENCE SOUTH 78 DEGREES 27 MINUTES 34 SECONDS EAST, 97.73 FEET;
THENCE NORTH 22 DEGREES 55 MINUTES 49 SECONDS EAST, 44.68 FEET; THENCE NORTH 55
DEGREES 43 MINUTES 29 SECONDS WEST, 97.73 FEET; THENCE NORTH 34 DEGREES 16
MINUTES 31 SECONDS EAST, 107.47 FEET; THENCE SOUTH 55 DEGREES 43 MINUTES 29
SECONDS EAST, 81.99 FEET; THENCE NORTH 42 DEGREES 16 MINUTES 43 SECONDS EAST,
27.97 FEET; THENCE NORTH 47 DEGREES 50 MINUTES 28 SECONDS WEST, 49.76 FEET;
THENCE NORTH 42 DEGREES 09 MINUTES 32 SECONDS EAST, 106.04 FEET; THENCE SOUTH 47
DEGREES 50 MINUTES 28 SECONDS EAST, 38.04 FEET; THENCE NORTH 42 DEGREES 09
MINUTES 32 SECONDS EAST, 92.60 FEET; THENCE NORTH 47 DEGREES 50 MINUTES 28
SECONDS WEST, 38.08 FEET; THENCE NORTH 42 DEGREES 09 MINUTES 32 SECONDS EAST,
54.05 FEET TO THE POINT OF BEGINNING, ALL IN LAKE COUNTY, ILLINOIS.
PARCEL 2: THAT PART OF THE NORTHWEST 1/4 OF SECTION 22, TOWNSHIP 43 NORTH, RANGE
9, EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE
NORTHEAST CORNER OF THE WEST 1/2 OF THE NORTHWEST 1/4 OF SAID SECTION 22; THENCE
SOUTH 00 DEGREES 48 MINUTES 42 SECONDS WEST, 392.23 FEET ALONG THE EAST LINE OF
SAID WEST 1/2; THENCE NORTH 89 DEGREES 59 MINUTES 05 SECONDS WEST, 22.36 FEET;
THENCE SOUTH 00 DEGREES 00 MINUTES 55 SECONDS WEST, 389.10 FEET TO THE POINT OF
BEGINNING; THENCE NORTH 85 DEGREES 56 MINUTES 37 SECONDS EAST, 40.77 FEET;
THENCE SOUTH 04 DEGREES 03 MINUTES 23 SECONDS EAST 46.70 FEET; THENCE NORTH 85
DEGREES 56 MINUTES 37 SECONDS EAST 90.50 FEET; THENCE SOUTH 04 DEGREES 03
MINUTES 23 SECONDS EAST, 95.46 FEET; THENCE SOUTH 85 DEGREES 56 MINUTES 37
SECONDS WEST, 172.56 FEET; THENCE NORTH 04 DEGREEES 03 MINUTES 23 SECONDS WEST,
9.92 FEET; THENCE SOUTH 85 DEGREES 56 MINUTES 37 SECONDS WEST 18.28 FEET; THENCE
NORTH 04 DEGREES 03 MINUTES 23 SECONDS WEST, 7.89 FEET; THENCE SOUTH 85 DEGREES
56 MINUTES 37 SECONDS WEST 18.01 FEET; THENCE NORTH 04 DEGREES 03 MINUTES 23
SECONDS WEST 23.02 FEET; THENCE NORTH
A-3-1
<Page>
40 DEGREES 56 MINUTES 37 SECONDS EAST 51.31 FEET; THENCE NORTH 04 DEGREES 03
MINUTES 23 SECONDS WEST 9.16 FEET; THENCE NORTH 85 DEGREES 56 MINUTES 37 SECONDS
EAST 35.16 FEET; THENCE NORTH 04 DEGREES 03 MINUTES 23 SECONDS WEST 13.07 FEET;
THENCE NORTH 85 DEGREES 56 MINUTES 37 SECONDS EAST 6.13 FEET; THENCE NORTH 04
DEGREES 03 MINUTES 23 SECONDS WEST 42.81 FEET TO THE POINT OF BEGINNING, ALL IN
LAKE COUNTY, ILLINOIS.
PIN: 13-22-100-009 (AFFECTS PARCEL 1)
13-22-100-012 (AFFECTS PARCEL 1)
13-22-100-013 (AFFECTS PARCEL 1)
13-22-100-002 (AFFECTS PARCEL 2)
COMMONLY KNOWN AS: GOOD SHEPHERD HOSPITAL, 450 W. HIGHWAY 22,
BARRINGTON, ILLINOIS
A-3-2
<Page>
EXHIBIT A-4
Legal Description of Naperville Property
PARCEL 1:
LOT 1 IN COPPERFIELD SQUARE, BEING A SUBDIVISION IN THE SOUTHEAST 1/4 OF SECTION
7 AND THE SOUTHWEST 1/4 OF SECTION 8, TOWNSHIP 38 NORTH, RANGE 10, EAST OF THE
THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED JANUARY 26,
1993 AS DOCUMENT R93-016376, IN DUPAGE COUNTY, ILLINOIS.
PARCEL 2: LOT 1 IN COPPERFIELD VILLAGE UNIT 1, BEING A SUBDIVISION OF PART OF
THE SOUTHWEST 1/4 OF SECTION 8, TOWNSHIP 38 NORTH, RANGE 10 EAST OF THE THIRD
PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF RECORDED OCTOBER 28, 1988 AS
DOCUMENT R88-123217, IN DUPAGE COUNTY, ILLINOIS.
P.I.N. 08-07-407-015 (AFFECTS PARCEL 1)
08-08-314-018 (AFFECTS PARCEL 1)
08-08-314-001 (AFFECTS PARCEL 2)
COMMONLY KNOWN AS: 1020 EAST OGDEN AVENUE, NAPERVILLE, ILLINOIS.
A-4-1
<Page>
EXHIBIT A-5
Legal Description of South Suburban Property
THAT PART OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 35,
TOWNSHIP 36 NORTH, RANGE 13 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED
AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF THE NORTHEAST QUARTER OF
SAID SECTION 35; THENCE NORTH 00(DEGREES) 00' 00" EAST 264.10 FEET ALONG THE
SAID EAST LINE OF SAID NORTHEAST QUARTER; THENCE NORTH 89(DEGREES) 51' 20"
WEST 616.18 FEET TO THE POINT OF BEGINNING; THENCE NORTH 89(DEGREES) 51' 20"
WEST 31.81 FEET; THENCE SOUTH 00(DEGREES) 08' 40" WEST 8.75 FEET; THENCE
NORTH 89(DEGREES) 51' 20" WEST 24.90 FEET; THENCE NORTH 00(DEGREES) 08' 40"
EAST 8.65 FEET; THENCE NORTH 89(DEGREES) 51' 20" WEST 32.09 FEET; THENCE
NORTH 00(DEGREES) 08' 40" EAST 83.96 FEET; THENCE NORTH 89(DEGREES) 51' 20"
WEST 16.10 FEET; THENCE NORTH 00(DEGREES) 08' 40" EAST 27.76 FEET; THENCE
NORTH 89(DEGREES) 51' 20" WEST 16.30 FEET; THENCE NORTH 00(DEGREES) 08' 40"
EAST 60.91 FEET; THENCE SOUTH 89(DEGREES) 51' 20" EAST 89.06 FEET; THENCE
SOUTH 00(DEGREES) 08' 40" WEST 27.92 FEET; THENCE SOUTH 89(DEGREES) 51' 20"
EAST 15.84 FEET; THENCE SOUTH 00(DEGREES) 08' 40" WEST 28.05 FEET; THENCE
SOUTH 89(DEGREES) 51' 20" EAST 16.30 FEET; THENCE SOUTH 00(DEGREES) 08' 40"
WEST 116.56 FEET TO THE POINT OF BEGINNING, ALL IN COOK COUNTY, ILLINOIS.
PIN: 28-35-202-004 (AFFECTS PARCEL IN QUESTION AND OTHER PROPERTY).
COMMONLY KNOWN AS: SOUTH SUBURBAN HOSPITAL, 17850 SOUTH KEDZIE AVENUE,
HAZEL CREST, ILLINOIS
A-5-1
<Page>
EXHIBIT A-6
Legal Description of Trinity Property
THAT PART OF LOTS 1 THROUGH 10, ALL INCLUSIVE, IN BLOCK 19 IN S.E. GROSS'
CALUMET HEIGHTS ADDITION TO SOUTH CHICAGO, BEING A SUBDIVISION OF THE
SOUTHEAST QUARTER OF SECTION 1, TOWNSHIP 37 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN, BEING DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST
CORNER OF SAID LOT 1 IN BLOCK 19 ON THE WEST LINE OF OGLESBY AVENUE, THENCE
SOUTH 00(DEGREES) 39' 09" EAST 65.05 FEET ALONG SAID WEST LINE OF OGLESBY
AVENUE AND THE EAST LINE OF SAID LOT 1; THENCE SOUTH 89(DEGREES) 41' 24" WEST
78.22 FEET; THENCE SOUTH 00(DEGREES) 38' 16" EAST 14.00 FEET; THENCE SOUTH
89(DEGREES) 41' 24" WEST 13.00 FEET; THENCE NORTH 00(DEGREES) 38' 16" WEST
14.00 FEET; THENCE SOUTH 89(DEGREES) 41' 24" WEST 97.77 FEET; THENCE SOUTH
00(DEGREES) 38' 16" EAST 12.00 FEET; THENCE SOUTH 89(DEGREES) 41' 24" WEST
11.29 FEET; THENCE SOUTH 00(DEGREES) 38' 16" EAST 47.95 FEET TO THE NORTH
LINE OF AN EAST-WEST 16-FOOT PUBLIC ALLEY IN SAID BLOCK 19; THENCE SOUTH
89(DEGREES) 41' 24" WEST 66.31 FEET ALONG THE NORTH LINE OF SAID PUBLIC ALLEY
IN BLOCK 19 TO THE SOUTHWEST CORNER OF SAID LOT 10 IN BLOCK 19 ON THE EAST
LINE OF CRANDON AVENUE; THENCE NORTH 00(DEGREES) 38' 16" WEST 125.00 FEET
ALONG SAID EAST LINE OF CRANDON AVENUE AND THE WEST LINE OF SAID LOT 10 IN
BLOCK 19 TO THE NORTHWEST CORNER OF SAID LOT 10 ON THE SOUTH LINE OF 93RD
STREET; THENCE NORTH 89(DEGREES) 41' 24" EAST 266.43 FEET ALONG THE NORTH
LINE OF SAID BLOCK 19 AND THE SOUTH LINE OF 93RD STREET TO THE POINT OF
BEGINNING, ALL IN COOK COUNTY, ILLINOIS.
P.I.N. 25-01-423-004
25-01-423-010
25-01-423-061
25-10-423-062-8001
25-10-423-062-8002
COMMONLY KNOWN AS: TRINITY HOSPITAL, 2315 EAST 93RD STREET, CHICAGO, ILLINOIS.
A-6-1
<Page>
EXHIBIT B
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption (the "ASSIGNMENT AND ASSUMPTION") is
dated as of the Effective Date set forth below and is entered into by and
between [INSERT NAME OF ASSIGNOR] (the "ASSIGNOR") and [INSERT NAME OF ASSIGNEE]
(the "ASSIGNEE"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Loan Agreement identified below (as amended, the
"LOAN AGREEMENT"), receipt of a copy of which is hereby acknowledged by the
Assignee. The Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells
and assigns to the Assignee, and the Assignee hereby irrevocably purchases
and assumes from the Assignor, subject to and in accordance with the Standard
Terms and Conditions and the Loan Agreement, as of the Effective Date
inserted by the Agent as contemplated below, the interest in and to all of
the Assignor's rights and obligations in its capacity as a Lender under the
Loan Agreement and any other documents or instruments delivered pursuant
thereto that represents the amount and percentage interest identified below
of all of the Assignor's outstanding rights and obligations under the
respective facilities identified below (including without limitation any
letters of credit, guaranties and swingline loans included in such facilities
and, to the extent permitted to be assigned under applicable law, all claims
(including without limitation contract claims, tort claims, malpractice
claims, statutory claims and all other claims at law or in equity), suits,
causes of action and any other right of the Assignor against any Person
whether known or unknown arising under or in connection with the Loan
Agreement, any other documents or instruments delivered pursuant thereto or
the loan transactions governed thereby) (the "ASSIGNED INTEREST"). Such sale
and assignment is without recourse to the Assignor and, except as expressly
provided in this Assignment and Assumption, without representation or
warranty by the Assignor.
1. Assignor:
-----------------------------------------------------
2. Assignee:
-----------------------------------------------------
[and is an Affiliate/Approved Fund of
[IDENTIFY LENDER](1)
3. Borrower(s):
-----------------------------------------------------
4. Agent:
-----------------------------------------------------
, as the agent under the Credit Agreement.
5. Loan Agreement: The Loan Agreement dated as of _______________ among
- -------------
(1) Select as applicable.
B-1-1
<Page>
[NAME OF BORROWER(S)], the Lenders party
thereto, [NAME OF AGENT], as Agent, and the
other agents party thereto.
6. Assigned Interest:
<Table>
<Caption>
Aggregate Amount Amount of
of Commitment/Loans Percentage
Facility Assigned Commitment/Loans Assigned* Assigned of
for all Lenders* Commitment/Loans(2)
- ------------------------------- ---------------------------- ---------------------------- ----------------------------
____________(3) $ $ _______%
____________ $ $ _______%
____________ $ $ _______%
</Table>
7. Trade Date: (4)
_____________________________________________
Effective Date: ____________________, 20__ [TO BE INSERTED BY AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER BY THE AGENT.]
The terms set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
--------------------------------------------------
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
--------------------------------------------------
Title:
[Consented to and] Accepted:
[NAME OF AGENT], as Agent
By:
-----------------------------------------
Title:
[Consented to:]
* Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective
Date.
(2) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
(3) Fill in the appropriate terminology for the types of facilities under the
Loan Agreement that are being assigned under this Assignment (e.g.
"Revolving Credit Commitment," "Term Loan Commitment,", etc.)
(4) Insert if satisfaction of minimum amounts is to be determined as of the
Trade Date.
B-1-2
<Page>
[NAME OF RELEVANT PARTY]
By:
--------------------------------------------------
Title:
B-1-3
<Page>
ANNEX 1
TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. REPRESENTATIONS AND WARRANTIES.
1.1 ASSIGNOR. The Assignor represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby. Neither the Assignor nor any of its officers,
directors, employees, agents or attorneys shall be responsible for (i) any
statements, warranties or representations made in or in connection with the Loan
Agreement or any other Loan Document, (ii) the execution, legality, validity,
enforceability, genuineness, sufficiency, perfection, priority, collectibility,
or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other
Person obligated in respect of any Loan Document, (iv) the performance or
observance by the Borrower, any of its Affiliates or any other Person of any of
their respective obligations under any Loan Documents, (v) inspecting any of the
property, books or records of the Borrower, or any guarantor, or (vi) any
mistake, error of judgment, or action taken or omitted to be taken in connection
with the Loans or the Loan Documents.
1.2. ASSIGNEE. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Loan Agreement, (ii) from
and after the Effective Date, it shall be bound by the provisions of the Loan
Agreement as a Lender thereunder and, to the extent of the Assigned Interest,
shall have the obligations of a Lender thereunder, (iii) agrees that its payment
instructions and notice instructions are as set forth in Schedule 1 to this
Assignment and Assumption, (iv) confirms that none of the funds, monies, assets
or other consideration being used to make the purchase and assumption hereunder
are "plan assets" as defined under ERISA and that its rights, benefits and
interests in and under the Loan Documents will not be "plan assets" under ERISA,
(v) agrees to indemnify and hold the Assignor harmless against all losses, costs
and expenses (including, without limitation, reasonable attorneys' fees) and
liabilities incurred by the Assignor in connection with or arising in any manner
from the Assignee's non-performance of the obligations assumed under this
Assignment and Assumption, (vi) it has received a copy of the Loan Agreement,
together with copies of financial statements and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision
independently and without reliance on the Agent or any other Lender, and (vii)
attached as Schedule 1 to this Assignment and Assumption is any documentation
required to be delivered by the Assignee with respect to its tax status pursuant
to the terms of the Loan Agreement, duly completed and executed by the Assignee
and (b) agrees that (i) it will, independently and without reliance on the
Agent, the Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan Documents, and
(ii) it will perform in accordance with their terms all of the obligations
<Page>
which by the terms of the Loan Documents are required to be performed by it as a
Lender.
2. PAYMENTS. The Assignee shall pay the Assignor, on the Effective Date,
the amount agreed to by the Assignor and the Assignee. From and after the
Effective Date, the Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignor for amounts which have accrued to but excluding the Effective Date
and to the Assignee for amounts which have accrued from and after the Effective
Date.
3. GENERAL PROVISIONS. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of Illinois.
2
<Page>
EXHIBIT C-1
PERMITTED EXCEPTIONS FOR CHRIST PROPERTY
1. Real Estate Taxes not yet due and payable.
2. Building line(s) as contained in the Deed recorded as Document No.
16178707, affecting the South 25 feet of the land.
3. Building setback along the North line of the South 75 feet of the land
as contained in the Deed from Weigel to Evangelical Hospital Association of
Chicago recorded March 18, 1955 as Document No. 16178708.
4. Existing unrecorded leases and all rights thereunder of the lessees and
of any person or party claiming by, through or under the lessees, as tenants
only under the leases with no rights of first refusal or options to purchaser.
C-1-1
<Page>
EXHIBIT C-2
PERMITTED EXCEPTIONS FOR GOOD SAMARITAN PROPERTY
1. Real Estate Taxes not yet due and payable.
2. Existing unrecorded and all rights thereunder of the lessees and of any
person or party claiming by, through or under the lessees, as tenants only with
no options to purchase or rights of first refusal.
3. Terms, provisions and conditions contained in Agreement for Enforcement
of Fire Lane Restrictions on Private Property recorded September 2, 1998 as
Document Number R98-181921 made by Village of Downers Grove and Advocate Health
and Hospitals Corporation d/b/a Good Samaritan Hospital-Advocate concerning
enforcement of fire lane restrictions on the property located at 3815-25
Highland Avenue, Downers Grove, Illinois. (Affects land and other property)
4. Grant of Easements as set forth on Plat of Easement recorded February
14, 1980 as Document R80-09949, made by the Peace Memorial Manor of the
Evangelical Hospital Association, according to the terms of Lease and Easement
Agreement recorded November 5, 1979 as Document R79-99911, the location of said
easements being more particularly described therein.
5. Easement in favor of the Illinois Bell Telephone Company, its
successors and assigns, to install, operate and maintain all equipment necessary
for the purpose of serving the land and other property, together with the right
of access to said equipment, and the provisions relating thereto contained in
the grant recorded/filed as Document No. 843878, affecting the property which he
owns or in which he has any interest in the Southwest 1/4 of said Section 32.
C-2-1
<Page>
EXHIBIT C-3
PERMITTED EXCEPTIONS FOR GOOD SHEPHERD PROPERTY
1. Real Estate Taxes not yet due or payable.
2. Rights of Way for drainage tiles, ditches, feeders, laterals and
underground pipes, if any.
3. Covenants, conditions and restrictions, (but omitting any such covenant
or restriction based on race, color, religion, sex, handicap, familial status or
national origin unless and only to the extent that said covenant (A) is exempt
under Chapter 42, Section 3607 of the United States Code or (B) relates to
handicap but does not discriminate against handicapped persons), contained in
the three deeds from the Quaker Oats Company, a corporation of New Jersey, to
Evangelical Hospital Association, a non-profit corporation of Illinois, one a
Quit Claim Deed, one a Special Warranty Deed, dated August 27, 1973 and recorded
September 6, 1973 as Documents 1633403 and 1633404, and the third a Special
Warranty Deed dated March 21, 1973 and recorded April 5, 1973 as Document
1607691, as follows: the real estate hereinbefore described shall not be
subdivided into lots or parcels of less than two acres each; nor shall
conveyance or transfer be made, or the property utilized for any but single
family residences. The foregoing notwithstanding, the Grantee may utilize or
cause to be utilized, all or any portion of said real estate for a hospital and
hospital related purposes which shall include housing for hospital staff and
employees. Note: said instrument contains no provision for a forfeiture of or
reversion of title in case of breach of condition. Modification Agreement
recorded June 22, 1999 as Document 04374571, wherein the above restrictions were
modified to now allow the land to be subdivided into parcels of lots not less
than 1 acre each.
4. Perpetual Easement for the purpose of drainage, carrying off water and
maintaining a tile drain together with right to make necessary repairs over the
land herein as disclosed by Agreement dated January 23, 1945 and recorded
February 21, 1945 as Document 557903 from the Quaker Oats Company, a New Jersey
corporation, to Isabel F. Bates. Said easement grant includes the right to
relocate the drain if such relocation is necessary or convenient. (Affects all)
5. Right of the Commonwealth Edison Company and the Illinois Bell
Telephone Company, their respective successors and assigns, to an easement to
construct, operate, maintain, etc., wires, cables, etc., over a ten foot wide
strip of land, five feet on either side of the center line of a tract described
in the instrument creating such easement, dated April 5, 1984 and recorded April
30, 1984 as Document 2279997 and re-recorded February 5, 1985 as Document
2336877.
6. Right of the Natural Gas Pipeline Company to construct and operate a 20
inch gas main across a 37 1/2 foot wide strip of land, as disclosed by
instrument recorded August 18, 1951 as Document 735806, located on the plat
attached thereto.
7. Various easements for the benefit of a portion of the land over the
remainder of the land and over a portion of the land for the benefit of
C-3-1
<Page>
the remainder of the land more specifically described in the instrument creating
said easements as granted by document recorded as Document 2352060 and the terms
and provisions therein contained.
8. Right of Commonwealth Edison Company and Illinois Bell Telephone
Company, their successors and assigns, to construct and maintain their
facilities over a 950 foot by 12 foot parcel adjoining the Southerly right of
way line of Route 22 as granted by instrument recorded September 10, 1985 as
Document 2382668. (Affects Parcel 1)
9. Attention is directed to ordinances by the County of Lake one recorded
as Document 2037978, and others recorded from time to time, relating to the
payment of certain charges as a condition precedent to permission to tap into a
sewer or water system.
10. Terms and provisions of Sanitary Sewer Service Agreement dated January
20, 1993 and recorded February 1, 1993 as Document 3280492, as amended by
instrument recorded March 31, 1993 as Document 3307357, by and between Good
Shepard Hospital of Evangelical Hospitals Corporation and the Village of Fox
Lake.
11. 10 foot easement for electric utility services in favor of the
Commonwealth Edison Company, and its respective successors and assigns, to
install, operate and maintain all equipment necessary for the purpose of serving
the land and other property, together with the right of access to said
equipment, and the provisions relating thereto contained in the easement plat
recorded November 6, 1995 as Document No. 3744836, affecting that portion of
Parcels 2 and 3 as located and depicted thereon.
12. 10 foot easement for natural gas utility services in favor of Northern
Illinois Gas Company and its respective successors and assigns, to install,
operate and maintain all equipment necessary for the purpose of serving the land
and other property, together with the right of access to said equipment, and the
provisions relating thereto contained in the easement plat recorded November 6,
1995 as Document No. 3744837, affecting that portion of Parcels 2 and 3 as
located and depicted thereon.
13. The land is included in plats of survey recorded November 9, 1998 as
Documents 04236536 and 04236537.
14. Existing unrecorded leases and all rights thereunder of the lessees
and of any person or party claiming by, through or under the lessees, as tenants
only with no rights of first refusal and no options to purchase.
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EXHIBIT C-4
PERMITTED EXCEPTIONS FOR NAPERVILLE PROPERTY
1. Real Estate Taxes not yet due or payable.
2. Terms and provisions contained in Covenant to Maintain Storm Water
Detention Facility recorded December 31, 1991 as Document R91-175797. (Affects
Parcel 2)
3. Building line as shown on Plat of Naper Terrace recorded April 17, 1957
as Document No. 839229 and Certificate of Correction recorded as Document
845450, as follows: 35 feet on the Southeasterly lines of Lot 21 and 22; 35 feet
on the East lines of Lots 23 and 24. (Affects that part of the land falling in
Naper Terrace) (Affects Parcel 1)
4. Building line as shown on the Plat of Copperfield Village Unit 1,
aforesaid, as follows: 25 feet along the Northeasterly curved line of Lot 1.
(Affects Parcel 2)
5. Easement for Public Utilities across the South 10 feet, as shown on
Plat of P. A. G. Naperville, Inc., - Sundberg Resubdivision, aforesaid. (Affects
that part of the land falling in Lot 1 in P. A. G. Naperville, Inc. Sundberg
Resubdivision recorded as Document R61-01081) (Affects Parcel 1)
6. Grant recorded December 19, 1969 as Document R69-53627, made by W. R.
Grace and Company, to the City of Naperville, a municipal corporation, of an
easement for the construction and maintenance of mains and necessary
appurtenances thereto, on, over, under and across the Northwesterly 10 feet
immediately contiguous and adjacent to the Southeasterly right of way line of
Ogden Avenue, as now existing, of the land. (Affects that part of the land
falling in Lot 1 in P. A. G. Naperville, Inc. Sundberg Resubdivision recorded as
Document R61-01081) (Affects Parcel 1)
7. Easement in favor of Northern Illinois Gas Company, and its/their
respective successors and assigns, to install, operate and maintain all
equipment necessary for the purpose of serving the land and other property,
together with the right of access to said equipment, and the provisions relating
thereto contained in the Grant recorded/filed as Document No. R89-133047.
(Affects Parcel 1)
8. Rights of the Public, the State of Illinois and the Municipality in and
to that Northeasterly part of the land dedicated as Dickens Avenue by the Plat
of Copperfield Square Subdivision recorded as Document R93-016376. (Affects
Parcel 1)
9. Public Sidewalk Easement granted to the City of Naperville by the Plat
of Copperfield Square Subdivision recorded January 26, 1993 as Document
R93-016376, affecting the Northwesterly corner of Parcel 1 (30 feet on the
Northwesterly line and 8 feet on the Southwesterly line of the land). (Affects
Parcel 1)
10. Public Utility and Drainage Easement granted to the City of
Naperville, the Illinois Bell Telephone Company, and Northern Illinois Gas
Company, by the Plat of Copperfield Square Subdivision recorded January 26,
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1993 as Document R93-016376, as follows: 15 to 23 feet on the Southeasterly line
of Parcel 1, 5 to 24 feet on the Southwesterly line of Parcel 1. (Affects Parcel
1)
11. All of Lot 1 is designated as a public utility and drainage easement.
(Affects Parcel 2)
12. Existing unrecorded leases and all rights thereunder of the lessees
and of any person or party claiming by, through or under the lessees, as tenants
only with no rights of first refusal or options to purchase.
C-4-2
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EXHIBIT C-5
PERMITTED EXCEPTIONS FOR SOUTH SUBURBAN PROPERTY
1. Real Estate Taxes not yet due or payable.
2. Existing unrecorded leases and all rights thereunder of the lessees and
of any person or party claiming by, through or under the lessees, as tenants
only with no options to purchase.
3. Rights of Way for drainage tiles, ditches, feeders, laterals and
underground pipes, if any.
C-5-1
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EXHIBIT C-6
PERMITTED EXCEPTIONS FOR TRINITY PROPERTY
1. Real Estate Taxes not yet due and payable.
2. Existing unrecorded leases and all rights thereunder of the lessees and
of any person or party claiming by, through or under the lessees as tenants only
with no rights of first refusal or options to purchase.
C-5-2