EXHIBIT 10.2
LOAN AGREEMENT
BY AND BETWEEN
DVL, INC.
AND
DVL MORTGAGE HOLDINGS, LLC
(COLLECTIVELY "BORROWER")
AND
PENNSYLVANIA BUSINESS BANK
("BANK")
April __ 2004
Table of Contents
Page
ARTICLE I
DEFINITIONS
1.1 Definitions....................................................................... 1
1.2 Construction...................................................................... 7
1.3. Accounting Principles............................................................. 7
ARTICLE II
AGREEMENT TO LEND
2.1. Agreement to Lend................................................................. 7
2.2 The Note ......................................................................... 7
2.3 Term ......................................................................... 7
ARTICLE III
LOAN INTEREST, PAYMENTS AND FEES
3.1 Interest Rate..................................................................... 7
3.2 Default Interest; Late Payment Charge............................................. 8
3.3 Payments ......................................................................... 8
3.4 Interest Payment Dates............................................................ 8
3.5 Mandatory Amortization............................................................ 8
3.6 Optional Prepayments.............................................................. 8
3.7 Increased Costs or Reduced Return................................................. 9
3.8 Application of Prepayments........................................................ 9
3.9 Receipt of Payment................................................................ 9
ARTICLE IV
AFFIRMATIVE COVENANTS
4.1 Preservation of Existence......................................................... 10
4.2 Payment of Liabilities............................................................ 10
4.3 Compliance with Laws.............................................................. 10
4.4 Keeping of Records and Books of Account........................................... 10
4.5 Visitation Rights................................................................. 10
4.6 Subordination of Affiliate Loans and Advances to Borrower......................... 11
4.7 Performance of Obligations........................................................ 11
4.8 Enforcement of the Collateral Loan Documents...................................... 11
4.9 Notices ......................................................................... 11
4.10 Further Assurances................................................................ 11
4.11 Estoppel Certificates............................................................. 11
4.12 Inspection........................................................................ 12
4.13 Accounts ......................................................................... 12
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ARTICLE V
NEGATIVE COVENANTS
5.1 Changes in Organizational Documents............................................... 12
5.2 Transfer of the Collateral........................................................ 12
5.3 Liquidation or Dissolution or Transfer of Interest in Borrower.................... 13
5.4 Transfer of the Properties or Ownership Interest in the Collateral Borrowers...... 13
5.5 Breach of Documents............................................................... 13
5.6 Judgments......................................................................... 13
5.7 Creation of Liens................................................................. 13
5.8 Material Adverse Change........................................................... 13
5.9 Collateral Loan Documents......................................................... 13
5.10 Publicity......................................................................... 13
ARTICLE VI
CONDITIONS PRECEDENT AND DISBURSEMENT MATTERS
6.1 Conditions Precedent to Closing................................................... 14
6.2 Disbursement Procedures........................................................... 15
6.3 Note and Collateral Documents..................................................... 15
6.4 No Other Rights................................................................... 15
ARTICLE VII
REPORTING REQUIREMENTS
7.1 Financial Reports................................................................. 15
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
8.1 Due Formation; Capacity........................................................... 16
8.2 Power and Authority............................................................... 16
8.3 General Partners.................................................................. 16
8.4 Validity and Binding Effect of Bank Loan Documents................................ 17
8.5 Validity and Binding Effect of Collateral Loan Documents.......................... 17
8.6 Validity and Binding Effect of Tenant Leases...................................... 17
8.7 No Conflict....................................................................... 17
8.8 Other Agreements.................................................................. 17
8.9 No Conditional Default or Event of Default........................................ 17
8.10 Default Under the Collateral Loan Documents....................................... 17
8.11 Senior Loan Balances and Collateral Loan Balances................................. 18
8.12 Default Under the Senior Loan Documents........................................... 18
8.13 Tenant Leases..................................................................... 18
8.14 Senior Loans and Tenant Leases.................................................... 18
8.15 No Litigation or Investigations................................................... 18
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8.16 Information....................................................................... 18
8.17 Title Aspects..................................................................... 18
8.18 Government Approvals.............................................................. 19
8.19 Security Interests................................................................ 19
8.20 Mortgages......................................................................... 19
8.21 Insurance......................................................................... 19
8.22 Solvency ......................................................................... 19
8.23 Hazardous Substances.............................................................. 19
ARTICLE IX
DEFAULTS AND REMEDIES
9.1 Events of Default................................................................. 19
9.2 Remedies ......................................................................... 21
9.3 Notice of Sale.................................................................... 23
ARTICLE X
MISCELLANEOUS
10.1 Modifications, Amendments or Waivers.............................................. 23
10.2 No Implied Waivers; Cumulative Remedies; Writing Required......................... 23
10.3 Reimbursement and Indemnification of Bank by Borrower; Impositions................ 23
10.4 Holidays ......................................................................... 24
10.5 Participation and Assignment of the Loan by Bank.................................. 24
10.6 Notices ......................................................................... 24
10.7 Severability...................................................................... 25
10.8 Governing Law..................................................................... 25
10.9 Prior Understanding............................................................... 25
10.10 Duration; Survival................................................................ 25
10.11 Successors and Assigns............................................................ 26
10.12 Joint and Several Liability....................................................... 26
10.13 Counterparts...................................................................... 26
10.14 Exceptions........................................................................ 26
10.15 Jurisdiction, etc................................................................. 26
10.16 Waiver of Jury Trial.............................................................. 26
10.17 No Third Parties Benefited........................................................ 26
10.18 Authority to File Notices......................................................... 27
10.19 Interpretation.................................................................... 27
10.20 Status of Parties................................................................. 27
10.21 Brokerage Fee..................................................................... 27
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LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made as of the _____ day of
April, 2004, by and between DVL, INC. ("DVL"), a Delaware corporation, and DVL
Mortgage Holdings, LLC ("DVL Holdings"), a Delaware limited liability company
(DVL and DVL Holdings hereinafter sometimes are referred to collectively as
"Borrower") and PENNSYLVANIA BUSINESS BANK, a Pennsylvania State banking
association ("Bank").
WITNESSETH THAT:
WHEREAS, Borrower has requested and applied to Bank for the Loan in
order to refinance the costs for the acquisition of the Collateral Loans and
certain costs related thereto, and to provide funds for capital investments, and
Bank is willing to make the Loan on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, and intending to be legally bound hereby, the parties
hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. As used herein, and in the schedules and exhibits
attached hereto, the following terms shall have the following meanings:
"Affiliates" shall mean any Person controlled, controlling or under
common control with such affiliated Person. Control shall mean the possession,
direct or indirect, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"Assignments of Leases and Rents" shall mean those assignments of
leases and rents set forth on Schedule I hereto, and all amendments and
modifications thereof, which secure the Collateral Notes and which have been
acquired by Borrower this day and collaterally assigned to Bank as security for
the Loan.
"Bank" shall mean Pennsylvania Business Bank, a Pennsylvania banking
corporation, and its successors and assigns.
"Bank Debt" shall mean all obligations, liabilities and indebtedness of
Borrower to Bank, its successors and assigns, evidenced by, arising under or
relating to Bank Loan Documents, whether as principal, guarantor, surety or
otherwise, direct or indirect, secured or unsecured, joint and/or several,
absolute or contingent, due or not due, matured and unmatured, original,
renewed, extended, refinanced or replaced, now existing or hereafter incurred or
created, consensual or created by law, and including principal (whether
resulting from advances made by Bank or from indebtedness purchased by Bank),
interest, yield protection payments, premiums, fees, expenses (including
collection expenses), taxes, charges, commissions and attorneys' fees, including
indemnification
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obligations of Borrower with respect to any claims that may be made against Bank
whether arising before or after payment of Bank Debt or any assignment of Bank
Debt, and including all obligations, liabilities and indebtedness of Borrower to
Bank incurred or arising after the commencement of any case by or against
Borrower under the U.S. Bankruptcy Code, specifically including any
post-petition interest or advances.
"Bank Loan Documents" shall mean this Agreement, the Note, the
Collateral Assignment Documents, the Environmental Indemnity Agreement, the St.
Albans Mortgage and all other guaranties, security agreements, documents,
instruments, certificates and agreements now or hereafter executed and/or
delivered to Bank in connection with the Loan, as the same may be amended,
modified, restated, refinanced, extended, restructured, converted, increased,
replaced or supplemented from time to time.
"Borrower" shall mean, collectively, jointly and severally, DVL, Inc.,
a Delaware corporation, DVL Mortgage Holdings, LLC, a Delaware limited liability
company, and their respective successors and permitted assigns.
"Borrower Documents" shall mean all articles of incorporation, by-laws,
authorizing resolutions, and organizational or governing documents of either DVL
or DVL Holdings, all amendments, and all consents, certificates and agreements
issued or entered into in respect to any of the foregoing.
"Business Day" shall mean any day other than a Saturday or Sunday or a
legal holiday on which commercial banks are authorized or required to be closed
for business in Philadelphia, Pennsylvania.
"Collateral" shall mean the Collateral Loan Documents as collaterally
assigned and pledged by the Collateral Assignment Documents and all other
security pledged or otherwise provided pursuant to this Agreement, the
Collateral Assignment Documents or any of the other Bank Loan Documents.
"Collateral Assignments of Assignments of Leases and Rents" shall mean
those certain Collateral Assignments of Assignments of Leases and Rents dated
this date and executed and delivered by Borrower pursuant to which Borrower has
collaterally assigned and pledged to Bank the Collateral Assignments of Leases
and Rents, as the same may be amended or modified.
"Collateral Assignment Documents" shall mean the Collateral Assignment
and Pledge Agreement, the Note Allonges, the Collateral Assignments of
Mortgages, and the Collateral Assignments of Assignments of Leases and Rents, as
the same may be amended, replaced or supplemented from time to time.
"Collateral Assignment and Pledge Agreement" shall mean that certain
Pledge, Collateral Assignment and Security Agreement dated this date and
executed and delivered by Borrower pursuant to which Borrower has collaterally
assigned and pledged to Bank the Collateral Loan Documents, as the same may be
amended or modified.
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"Collateral Assignments of Mortgages" shall mean those certain
Collateral Assignments of Mortgage dated this date and executed and delivered by
Borrower pursuant to which Borrower has collaterally assigned and pledged to
Bank the Collateral Mortgages.
"Collateral Borrowers" shall mean the maker, and its successors and
assigns, of each of the Collateral Notes.
"Collateral Loan Documents" shall mean the Collateral Notes, the
Mortgages, the Collateral Assignments of Leases and Rents and any and all other
documents, agreements or instruments evidencing, securing or otherwise
pertaining to the Collateral Loans.
"Collateral Loans" shall mean the loans evidenced by the Collateral
Notes.
"Collateral Notes" shall mean those promissory notes set forth on
Schedule II hereto, and all amendments and modifications thereof, which have
been acquired by Borrower on or about this day and which have been collaterally
assigned to Bank as security for the Loan.
"Conditional Default" shall mean an event or condition which, with the
passage of time or the giving of notice, or both, would become an Event of
Default.
"Default Rate" shall have the meaning assigned to it in SECTION 3.2
hereof.
"Environmental Indemnity Agreement" shall mean that certain
Environmental Indemnity Agreement of even date from Borrower to Lender with
respect to all properties encumbered by any of the Mortgages or the St. Albans
Mortgage.
"Event of Default" or "Events of Default" shall have the meaning
assigned to those terms in SECTION 9.1 hereof.
"GAAP" shall mean generally accepted accounting principles as are in
effect from time to time, applied on a consistent basis both as to
classification of items and amounts.
"Governmental Approvals" shall mean all consents, licenses, permits and
all other authorizations or approvals required with respect to the use and
occupancy of the Improvements.
"Guarantor" shall mean, individually and collectively, any guarantor,
surety, endorser, or any other party now or hereafter liable with respect to the
Loan or any of Borrower's obligations thereunder.
"Hazardous Substances" shall mean any substances, chemicals, materials
or elements that are prohibited, limited or regulated by any Law, or any other
substances,
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chemicals, materials or elements that are defined as "hazardous" or "toxic," or
otherwise regulated, under any Law, or that are known or considered to be
harmful to the health or safety of occupants or users of the Properties. The
term Hazardous Substances shall also include any substance, chemical, material
or element (i) defined as a "hazardous substance" under the
Comprehensive-Environmental Response, Compensation and Liability Act of 1980
("CERCLA") (42 U.S.C. ss.ss. 9601, ET SEQ.), as amended by the Superfund
Amendments and Reauthorization Act of 1986, and as further amended from time to
time, and regulations promulgated thereunder, (ii) defined as a "regulated
substance" within the meaning of Subtitle I of the Resource Conservation and
Recovery Act (42 U.S.C. ss.ss. 6991-69911), and regulations promulgated
thereunder; (iii) designated as a "hazardous substance" pursuant to Section 311
of the Clean Water Act (33 U.S.C. ss. 1321), or listed pursuant to Section 307
of the Clean Water Act (33 U.S.C. ss. 1317); (iv) defined as "hazardous",
"toxic", or otherwise regulated, under any Law or by any Federal, state or local
agency or political subdivision, including,; (v) which is petroleum, petroleum
products or derivatives or constituents thereof; (vi) which is asbestos or
asbestos-containing materials; (vii) the presence of which requires
notification, investigation or remediation under any Laws or common law; (viii)
the presence of which on the Properties causes or threatens to cause a nuisance
upon any of the Properties or to adjacent properties or poses or threatens to
pose a hazard to the health or safety of persons on or about any of the
Properties; (ix) the presence of which on adjacent properties would constitute a
trespass; (x) which is urea formaldehyde foam insulation or urea formaldehyde
foam insulation-containing materials; (xi) which is lead base paint or lead base
paint-containing materials; (xii) which are polychlorinated biphenyls or
polychlorinated biphenyl-containing materials; (xiii) which is radon or
radon-containing or producing materials; or (xiv) which by any laws of any
governmental authority requires special handling in its collection, storage,
treatment, or disposal.
"Impositions" shall mean all (i) real estate and personal property
taxes and other taxes and assessments, water and sewer rates and charges and all
other governmental charges and any interest or costs or penalties with respect
thereto and charges for any easement or agreement maintained for the benefit of
any of the Properties, general and special, ordinary and extraordinary, foreseen
and unforeseen, of any kind and nature whatsoever which at any time may be
assessed, levied or imposed upon the Properties, or the rent or income received
therefrom, or any use or occupancy thereof, and (ii) other taxes, assessments,
fees and governmental charges levied, imposed or assessed upon or against the
Properties.
"Improvements" shall mean all improvements now or hereafter located on
any of the Land.
"Indebtedness" shall mean any and all indebtedness, obligations, or
liabilities (whether matured or unmatured, liquidated or unliquidated, direct or
indirect, absolute or contingent, or joint or several) of any nature whatsoever.
"Insolvency Proceedings" shall mean an action or proceeding seeking any
reorganization, arrangement, composition, readjustment, liquidation or other
similar relief
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under the U.S. Bankruptcy Code or any present or future statute, law or
regulation, or any proceedings for voluntary liquidation, dissolution or other
winding up, or the appointment of any trustee, receiver, liquidator or
conservator or similar official (whether in a proceeding or otherwise), or any
assignment for the benefit of creditors or any marshalling of assets.
"Interest Payment Date" shall mean each date specified for the payment
of interest in Section 3.4 hereof.
"Land" shall mean the land and other real property and appurtenants
thereto which are encumbered by the Mortgages or the St. Albans Mortgage.
"Law" shall mean any law (including common law), constitution, statute,
treaty, regulation, rule, ordinance, order, injunction, writ, decree or award of
any Official Body.
"Loan" shall mean the loan to be made by Bank pursuant to this
Agreement in the principal amount of One Million Four Hundred and Fifty Thousand
Dollars ($1,450,000).
"Loan Fee" shall have the meaning assigned to it in SECTION 6.1 (d).
"Material Adverse Change" shall mean any set of circumstances or events
which (a) has or could reasonably be expected to have any material adverse
effect whatsoever upon the validity or enforceability of this Agreement, any
other Bank Loan Document or any of the Collateral Loan Documents, (b) impairs
materially or could reasonably be expected to impair materially the ability of
Borrower or St. Albans to duly and punctually pay or perform its obligations
under any of the Bank Loan Documents or to enforce, or realize the benefits of,
the Collateral Loan Documents, (c) impairs materially or could reasonably be
expected to impair materially the ability of Bank to enforce its legal remedies
pursuant to this Agreement or any other Bank Loan Document, or (d) impairs
materially or could reasonably be expected to impair materially the value of the
Collateral Loans or the Properties.
"Maturity Date" shall have the meaning assigned to it in SECTION 2.3
hereof.
"Mortgages" shall mean those mortgages set forth on Schedule III
hereto, and all amendments and modifications thereof; which secure the
Collateral Notes and which have been acquired by Borrower on or about this day
and collaterally assigned to Bank as security for the Loan.
"Note" shall mean that certain Promissory Note, of even date herewith,
given by Borrower to Bank in a face amount equal to the Loan, as amended,
renewed, replaced or supplemented from time to time.
"Note Allonges" shall mean those certain allonges by which Borrower has
endorsed over to Bank the Collateral Notes.
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"Official Body" shall mean any national, federal, state, local or other
government or political subdivision or any agency, authority, bureau, central
bank, commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
"Prime Rate" shall mean the interest rate per annum as the "Prime
Commercial Rate" in the Money Rates section of the Wall Street Journal (or any
successor publication, or if such publication ceases to exist or ceases to
report such rate, a rate of interest as is reasonably determined by Bank (which
determination shall be conclusive absent manifest error) and publicly announced
by Bank from time to time as its prime rate of interest), which interest rate is
not necessarily the most favorable interest rate offered by Bank.
"Principal Office" shall mean the main banking office of Bank in
Philadelphia, Pennsylvania.
"Properties" shall mean the Land and the Improvements.
"Senior Loans" shall mean any and all loans which are secured by Senior
Mortgages.
"Senior Lender" shall mean the lender under or holder of a Senior Loan.
"Senior Loan Documents" shall mean the Senior Mortgages and any and all
other documents, agreements or instruments evidencing, securing or delivered in
connection with the Senior Loans.
"Senior Mortgages" shall mean any and all mortgages on the Properties
which mortgages are senior in lien priority to the Mortgages and which mortgages
are set forth in the Title Policies.
"Solvent" shall mean, with respect to any party on a particular date,
that on such date (i) the fair value of the property of such party is greater
than the total amount of liabilities, including, without limitation, contingent
liabilities, of such party, (ii) the present fair market value of the assets of
such party is not less than the amount that will be required to pay the probable
liability of such party on its debts as they become absolute and matured, (iii)
such party is able to realize upon its assets and pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the
normal course of business, and (iv) such party does not intend to, and does not
believe that it will, incur debts or liabilities beyond such party's ability to
pay such debts and liabilities as they mature.
"St. Albans" shall mean Saint Albans Associates, a Pennsylvania Limited
Partnership.
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"St. Albans Mortgage" shall mean that certain first Mortgage of even
date from St. Albans to Bank encumbering certain land located at 21 Lower Newton
Street, St. Albans, Franklin County, Vermont, as more fully described in the St.
Albans Mortgage.
"Tenants" shall mean any and all lessees, tenants or occupants, now or
hereafter, of the Improvements or any portion thereof.
"Tenant Leases" shall mean those leases set forth on Schedule IV hereto
pursuant to which a Tenant leases, occupies or licenses the Improvements or any
portion thereof.
"Term" shall have the meaning assigned to that term in SECTION 2.3
hereof.
"Title Policies" shall mean the title policies insuring the lien
priority of the Mortgages and naming Bank as an insured party pursuant to the
Collateral Assignments of Mortgages, which Title Policy shall be in form and
substance, and issued by a title company, reasonably satisfactory to Bank.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as
enacted in each applicable jurisdiction.
1.2 CONSTRUCTION. All references to article or section numbers
shall refer to this Agreement, unless otherwise stated. The above recitals are
hereby made a part of this Agreement.
1.3 ACCOUNTING PRINCIPLES. Except as otherwise provided in this
Agreement, all accounting or financial terms shall have the meanings ascribed to
such terms by GAAP.
ARTICLE II
AGREEMENT TO LEND
2.1 AGREEMENT TO LEND. Subject to and conditioned upon the terms,
provisions and conditions contained in this Agreement and the other Bank Loan
Documents and in reliance upon the representations and warranties set forth
herein, Bank agrees to advance the Loan to Borrower.
2.2 THE NOTE. The Loan shall be evidenced by the Note, and the
Loan shall bear interest calculated and payable as provided in Article III
below.
2.3 TERM. The term of the Loan (the "Term") shall commence as of
the date hereof and shall terminate on May 1, 2009 (the "Maturity Date").
Borrower shall pay the outstanding principal of the Loan and all unpaid interest
accrued on the Loan in full on the Maturity Date. The unpaid amounts of the
Loan, as set forth on the books and records of Bank or other holders of the Note
maintained in the ordinary course of business shall be presumptive evidence of
the principal amount thereof owing and unpaid, absent manifest error, but the
failure to record any such amount on the books and records shall not limit or
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affect the obligations of Borrower hereunder or under the Note to make payments
of principal and interest on the Loan when due.
ARTICLE III
LOAN INTEREST. PAYMENTS AND FEES
3.1 INTEREST RATE. Borrower shall pay interest in respect of the
outstanding unpaid principal amount of the Loan at a per annum rate equal to the
Prime Rate, as it may change from time to time, plus one and one half percent
(1.50%) but in no event less than six percent (6%). Bank's determination, made
generally in accordance with its determinations applicable on loans similar to
the Loan, of a rate of interest and any change therein shall, in the absence of
manifest error, be presumed correct and binding upon all parties hereto. If at
any time the designated rate applicable to any portion of the Loan made by Bank
exceeds the highest lawful rate, the rate of interest on the Loan shall be
limited to the highest lawful rate.
3.2 DEFAULT INTEREST; LATE PAYMENT CHARGE. To the extent permitted
by law, upon the occurrence and during the continuation of any Event of Default,
Borrower shall pay interest on the entire principal amount of the Loan then
outstanding and all other sums due under the Loan, at a rate per annum equal to
the interest rate then in effect pursuant to Section 3.1 above plus five percent
(5%) (the "Default Rate"). The rate of interest payable under this SECTION 3.2
shall accrue before and after any judgment has been entered. In addition,
Borrower shall pay a late payment charge equal to five percent (5%) of the
amount of any payment due under the Loan which is not received by Bank within
ten (10) days after the date such payment is due. Borrower acknowledges that the
increased interest rate and the late payment charge provided for herein reflect,
among other things, the fact that the Loan has become a substantially greater
risk given its default status and that Bank is entitled to additional
compensation for such risk.
3.3 PAYMENTS. All payments and prepayments to be made in respect
of principal, interest or other amounts due from Borrower hereunder (including
amounts to be advanced from the proceeds of the Loan pursuant to SECTION 6.1
hereof), shall be payable prior to 12:00 Noon Philadelphia time on the date when
due without presentment, demand, protest or notice of any kind except as
otherwise required by Bank Loan Documents, all of which are hereby expressly
waived by Borrower, and without setoff, counterclaim or other deduction of any
nature, and an action therefor shall immediately accrue, subject, nevertheless,
to any grace and cure periods provided in this Agreement and applicable thereto.
Such payments shall be made to Bank at the Principal Office in U.S. Dollars and
in immediately available funds.
3.4 INTEREST PAYMENT DATES. Interest on the Loan shall be due and
payable in arrears on the first (1st) day of each month, beginning on June 1,
2004, and also on the Maturity Date or any earlier date to which payment of the
Note has been accelerated. Interest on the outstanding principal balance of the
Loan shall be billed to Borrower as provided in the Note.
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3.5 MANDATORY AMORTIZATION.
(a) Mandatory payments on account of principal of the
Loan shall be due and payable as follows: (i) Borrower shall make monthly
payments of principal in the amount of $24,166.67 on the first (1st) day of each
month, commencing on June 1, 2004 and ending on the Maturity Date. If not
earlier paid, all outstanding principal and interest under the Loan shall be due
and payable on the Maturity Date.
(b) As additional payments to be applied to principal
outstanding under the Loan, Borrower shall remit or cause to be remitted to
Bank, within three (3) days of receipt, any and all amounts paid on account of
principal outstanding under any of the Collateral Loans which are in excess of
the regularly scheduled monthly payments made by, or on behalf of, the
Collateral Borrower under such Collateral Loans including, without limitation,
any repayment in full of any of the Collateral Loans.
3.6 OPTIONAL PREPAYMENTS. Borrower shall have the right at its
option from time to time to make permanent prepayments of the Loan in whole or
part without premium or penalty.
3.7 INCREASED COSTS OR REDUCED RETURN. If any Law, guideline or
interpretation or any change in any Law, guideline or interpretation or
application thereof by any Official Body charged with the interpretation or
administration thereof or compliance with any request or directive (whether or
not having the force of Law) of any central bank or other Official Body:
(a) subjects Bank, its holding company or any of their
respective assets to any tax or charge with respect to this Agreement, the Note
or payments by Borrower of principal, interest, or other amounts due from
Borrower hereunder or under the Note (except for taxes, including any franchise
tax, on the overall net income of Bank),
(b) imposes, modifies or deems applicable any reserve,
special deposit, allocation of capital or similar requirement (including,
without limitation, Regulation D of the Board of Governors of the Federal
Reserve System) against credits or commitments to extend credit extended by, or
assets (funded or contingent) of, deposits with or for the account of, or other
acquisition of funds by, Bank or its holding company, or
(c) imposes, modifies or deems applicable any capital
adequacy or similar requirement (A) against assets (funded or contingent) of, or
credits or commitments to extend credit extended by, Bank or its holding
company, or (B) otherwise applicable to the obligations of Bank under this
Agreement, and the result of any of the foregoing is to increase the actual cost
to, reduce the actual income receivable by, or impose any actual expenses
(including loss of margin) upon Bank with respect to this Agreement, the Note,
or the making, maintenance or funding of any part of the Loan (or, in the case
of any capital adequacy or similar requirement, to have the effect of reducing
the rate of return on Bank's capital, taking into consideration Bank's customary
policies with respect to capital adequacy) by an amount which Bank in its
reasonable discretion deems to be material,
9
and, provided such cost, reduction in income, or expense affects other loans
similar to the Loan and Bank generally requires compensation similar to the
compensation provided herein to be paid on such similar loans, Bank may from
time to time notify Borrower of the amount determined in good faith (using any
averaging and attribution methods employed in good faith) by Bank to be
necessary to compensate Bank for such increase in cost, reduction of income or
additional expense. Such notice shall be delivered within three (3) months of
the date Bank becomes aware of the increased costs or reduced return and shall
set forth in reasonable detail the basis for such determination. Such amount
shall be due and payable by Borrower to Bank within twenty (20) days following
receipt of such notice; provided, that, if within such twenty (20) day period,
Borrower gives notice that it intends to repay in full the Loan and all other
sums owing under this Loan Agreement, the Note and the other Bank Loan Documents
and Borrower does in fact make such full repayment within ninety (90) days of
Bank's original notice, no additional compensation under this Section 3.7 shall
be required.
3.8 APPLICATION OF PREPAYMENTS. All prepayments permitted pursuant
to SECTION 3.6 shall be applied in the following order: first, to the payment of
any outstanding fees, expenses or other charges due to Bank; second, to accrued
and unpaid interest due on the Loan; and third, to the principal amount of the
Loan.
3.9 RECEIPT OF PAYMENT. Subject to the rights of the Senior
Lenders, Borrower hereby acknowledges and agrees that it is intended that Bank
shall receive directly all payments made by the Tenants under the Tenant Leases
and the Collateral Borrowers under the Collateral Loans, such payments to be
applied to interest and principal under the Loan in accordance with the terms
hereof. Borrower shall take all actions necessary to cause such payments to be
sent to Bank including the giving by Borrower of any necessary notices.
ARTICLE IV
AFFIRMATIVE COVENANTS
Borrower hereby covenants and agrees that, from the date hereof and
until all Bank Debt has been paid in full and all other obligations hereunder
shall have been performed and discharged, it will comply (and will cause St.
Albans to comply) with each of the following covenants:
4.1 PRESERVATION OF EXISTENCE. DVL shall maintain its existence as
a corporation under the laws of the State of Delaware. DVL Holdings shall
maintain its existence as a limited liability company under the laws of the
State of Delaware. St. Albans shall maintain its existence as a limited
partnership under the laws of the Commonwealth of Pennsylvania.
4.2 PAYMENT OF LIABILITIES. Borrower (and St. Albans) shall duly
pay and discharge all liabilities to which it is subject or which are asserted
against it, prior to the date when any fine, late charge or other penalty for
late payment may be imposed, except to the extent that such liabilities are
being contested in good faith and by appropriate and
10
lawful proceedings diligently conducted. Borrower shall cause the Collateral
Borrowers to duly pay and discharge all liabilities to which any of them or the
Properties are subject or which are asserted against it or the Properties, prior
to the date when any fine, late charge or other penalty for late payment may be
imposed, except to the extent that such liabilities are being contested in good
faith and by appropriate and lawful proceedings diligently conducted.
4.3 COMPLIANCE WITH LAWS. Borrower shall comply with, and shall
cause St. Albans and each of the Collateral Borrowers to comply with, all
applicable Laws in all respects, provided that Borrower shall not be deemed to
be in violation of this SECTION 4.3 if any failure to comply with any Law (a)
would not result in fines, penalties, other similar liabilities or injunctive
relief, the imposition of which would result in a Material Adverse Change and
(b) would not materially adversely affect the Collateral or the validity of the
Loan, any of Bank Loan Documents, the Collateral Loan or any of the Collateral
Loan Documents.
4.4 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. Borrower shall, and
shall cause St. Albans and each of the Collateral Borrowers to, maintain and
keep proper books of record and account, which enable it to issue financial
statements and reports in accordance with SECTION 7.1 and in which full, true
and correct entries shall be made in all material respects of all of its
dealings and business and financial affairs.
4.5 VISITATION RIGHTS. Borrower shall permit any of the officers
or authorized employees or representatives of Bank to, as often as Bank may
reasonably request, with reasonable notice, at Bank's expense and at such
reasonable times, to examine, copy and make excerpts from its books and records.
Borrower shall cause St. Albans to comply with the preceding sentence as to the
books and records of St. Albans.
4.6 SUBORDINATION OF AFFILIATE LOANS AND ADVANCES TO BORROWER.
Borrower shall cause any Indebtedness between it and any and all of the
Collateral Borrowers and/or St. Albans to be subordinated to the Loan, Bank Loan
Documents, the Collateral Loans and the Collateral Loan Documents.
Notwithstanding the preceding sentence, Borrower shall, in the normal course of
its business as general partner of the Collateral Borrowers, be permitted, from
time to time, to make, and receive payment on, loans to the Collateral
Borrowers, provided, that such outstanding loans shall not exceed $10,000 to any
one of the Collateral Borrowers and payment shall be suspended and subordinated
to the Loan upon the occurrence of an Event of Default.
4.7 PERFORMANCE OF OBLIGATIONS. Borrower and St. Albans shall duly
pay, perform and discharge all of its obligations hereunder and under the other
Bank Loan Documents and with respect to the Collateral Loans. Borrower shall
cause each of the Collateral Borrowers to duly pay, perform and discharge all of
the Collateral Borrower's obligations under the Collateral Loan Documents and
the Senior Loan Documents.
4.8 ENFORCEMENT OF THE COLLATERAL LOAN DOCUMENTS. Borrower shall
enforce, and preserve all of its rights under, the Collateral Loan Documents in
accordance with their
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terms subject to the right of Bank hereunder. In the event Borrower becomes
aware of a default under the Collateral Loan Documents, Borrower shall promptly
provide Bank with written notice of such default.
4.9 NOTICES. Borrower shall promptly provide Bank with written
notice of the occurrence of a default under any of the Tenant Leases or any of
the Senior Loan Documents.
4.10 FURTHER ASSURANCES. Borrower and St. Albans shall, from time
to time, at its expense, faithfully preserve and protect Bank's lien on and
security interest in the Collateral as continuing first priority perfected
liens, and shall take such other action as Bank may reasonably deem necessary or
advisable from time to time in order to preserve, perfect and protect the liens
granted under the Collateral Documents, to exercise and enforce Bank's rights
and remedies thereunder and with respect to the Collateral and to carry out the
terms of this Agreement and the other Bank Loan Documents. Borrower shall, from
time to time, at its expense, cause the Collateral Borrowers to take such action
as Bank may reasonably deem necessary or advisable from time to time in order to
preserve, perfect and protect the liens granted under the Collateral Loan
Documents, to exercise and enforce Borrower or Bank's rights and remedies under
the Collateral Loan Documents and with respect to the Collateral Loans and to
carry out the terms of this Agreement, the other Bark Loan Documents and the
Collateral Loan Documents.
4.11 ESTOPPEL CERTIFICATES. At any time or times, within ten (10)
Business Days after written demand by Bank therefor, Borrower shall deliver to
Bank a certificate duly executed and in form satisfactory to Bank, stating and
acknowledging the then unpaid principal balance of, and interest due and unpaid
under, the Loan, the fact that there are no defenses, offsets or counterclaims
thereto (or, if such should not be the fact, then the facts and circumstances
relating to such defenses, off sets or counterclaims) and such other matters as
Bank may reasonably require. At anytime or times, within ten (10) Business Days
after written demand by Bank therefor, Borrower shall deliver to Bank a
certificate duly executed by each of the Collateral Borrowers in form
satisfactory to Bank, stating and acknowledging the then unpaid principal
balance of, and interest due and unpaid under, each of the Collateral Loans, the
fact that there are no defenses, off-sets or counterclaims thereto (or, if such
should not be the fact, then the facts and circumstances relating to such
defenses, off sets or counterclaims) and such other matters as Bank may
reasonably require. Within forty-five (45) days of the date hereof and from time
to time within ten (10) Business Days after written demand by Bank therefor,
Borrower shall endeavor to deliver to Bank a certificate duly executed by each
of the Tenants in form satisfactory to Bank, but in accordance with the form
required to be given by each of the Tenants under its Tenant Lease, stating and
acknowledging the date through which rent is paid under, and the remaining term
of, its Tenant Lease, the fact that there are no defenses, off sets or
counterclaims thereto or defaults on the part of the Collateral Borrower
thereunder (or, if such should not be the fact, then the facts and circumstances
relating to such defenses, off sets, counterclaims or defaults) and such other
matters as Bank may reasonably require; provided, that the failure by Borrower
to provide such certificate from one or more of the
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Tenants shall not constitute an Event of Default if Borrower has exercised
diligent good faith efforts to obtain such certificates.
4.12 INSPECTION. Borrower shall endeavor, in good faith, to
provide, or cause to be provided, to Bank, or its designees, access to the
Properties upon the reasonable request of Bank Prior to the occurrence of an
Event of Default hereunder, the cost of all such inspections shall be at the
reasonable expense of Borrower.
4.13 ACCOUNTS. Borrower and any Guarantor shall maintain with the
Bank at all times during the Term deposit accounts having an aggregate balance
in an amount equal to at least five percent (5%) of the sum, from time to time,
of the balance outstanding under the Loan plus the balance outstanding under all
other loans made by Bank to Borrower or to any affiliate of Borrower or any
Guarantor .
ARTICLE V
NEGATIVE COVENANTS
Borrower hereby covenants and agrees that, from the date hereof and
until Bank Debt has been paid in full and all other obligations hereunder shall
have been performed and discharged, it will comply with each of the following
negative covenants:
5.1 CHANGES IN ORGANIZATIONAL DOCUMENTS. Borrower shall not amend
or modify, or permit any material, non-administrative amendment or modification
of; in any respect, any of the Borrower Documents to the extent the same would
result in a Material Adverse Change. In addition, Borrower shall provide to Bank
copies of any and all amendments or modifications to Borrower Documents.
5.2 TRANSFER OF THE COLLATERAL. Borrower shall not, voluntarily or
by operation of law, directly or indirectly, sell, convey, transfer, assign,
pledge, encumber, or permit to be sold, conveyed, transferred, assigned, pledged
or encumbered any interest, whether nominal, beneficial or otherwise in or any
part of the Collateral. Any prohibited transaction under this SECTION 5.2 shall
be null and void. Bank shall not be under any obligation to allege or show any
impairment of the Collateral, and Bank may pursue any legal or equitable
remedies for default without such allegation or showing, notwithstanding the
foregoing.
5.3 LIQUIDATION OR DISSOLUTION OR TRANSFER OF INTEREST IN
BORROWER. Borrower shall not liquidate or dissolve nor shall any portion of the
ownership interest in Borrower be transferred, assigned, pledged or encumbered.
5.4 TRANSFER OF THE PROPERTIES OR OWNERSHIP INTEREST IN THE
COLLATERAL BORROWERS. Borrower shall not authorize, permit or allow (i) the
Properties or any of them to be sold, conveyed, transferred, assigned, pledged
or encumbered except for the Senior Mortgages and the Mortgages, whether
nominal, beneficial or otherwise or (ii) its general partnership interest or its
limited partnership interest, if any, in the Collateral Borrowers to be sold,
conveyed, transferred, assigned, pledged or encumbered. Any prohibited
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transaction under this SECTION 5.5 shall be null and void. Bank shall not be
under any obligation to allege or show any impairment of the Properties, the
Collateral Loan Documents or the Collateral, and Bank may pursue any legal or
equitable remedies for default without such allegation or showing,
notwithstanding the foregoing.
5.5 BREACH OF DOCUMENTS. Borrower shall not commit any act, or
permit any act to occur, which would, in any manner, give rise to a breach of
any term, covenant or condition under any of Bank Loan Documents, the Collateral
Loan Documents or any other contract to which Borrower is a party or by which it
is bound.
5.6 JUDGMENTS. Borrower shall not permit any judgment obtained
against it in an amount exceeding $50,000 to remain unpaid for a period of
thirty (30) days following the entry - thereof without obtaining a stay of
execution or causing such judgment to be bonded
5.7 CREATION OF LIENS. Borrower shall not, whether voluntarily or
involuntarily, create, incur, assume or suffer to exist or be created, or permit
any pledge of, or any deed of trust, mortgage, lien, charge, security interest
or encumbrances of any nature with respect to the Collateral, or assign, pledge
or in any way transfer or encumber its rights to receive income from the
Collateral, except for Bank Loan Documents.
5.8 MATERIAL ADVERSE CHANCE. Borrower shall not take any action
which would result in a Material Adverse Change.
5.9 COLLATERAL LOAN DOCUMENTS. Borrower shall not amend, modify,
replace or extend any of the Collateral Loan Documents or any of the obligations
of the Collateral Borrowers thereunder nor shall Borrower release, enforce or
file suit with respect to any obligation on the part of the Collateral Borrower
without the prior written consent of Bank, which consent shall not be
unreasonably withheld.
5.10 PUBLICITY. Borrower shall not without the prior written
consent of Bank (which consent may be withheld at Bank's sole discretion) allow,
cause or otherwise permit any publicity, advertisement or other public notice of
the Loan or the matters described herein, unless Borrower in its good faith
discretion, believes that such publicity, advertisement or other public notice
is required by law.
ARTICLE VI
CONDITIONS PRECEDENT AND DISBURSEMENT MATTERS
6.1 CONDITIONS PRECEDENT TO CLOSING. As a condition to Bank's
obligation to close and fund the Loan and to proceed with the transactions
contemplated herein, Borrower, at its expense, shall have satisfied, fulfilled
or provided, to Bank's sole satisfaction, at or before the date hereof all of
the conditions and items set forth below unless the satisfaction, fulfillment or
provision thereof shall have been waived by Bank:
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(a) No portion of the Property shall have been damaged by
fire or other casualty and not repaired to the condition immediately prior to
such casualty, and no condemnation or taking of the Property or any portion
thereof shall be pending or threatened;
(b) Bank shall have received all duly executed, and
acknowledged if necessary, Bank Loan Documents, Borrower Documents and
Collateral Documents, including originals of all of the Collateral Notes and all
amendments and modification thereto, and all other documents to be delivered
and/or executed by third parties shall have been delivered and/or executed, and
all of the same shall be in form and substance acceptable to Bank;
(c) The security interests in all personal property
described in the Collateral Documents shall have been, subject to recording of
any financing statements, duly perfected and shall constitute valid and
enforceable first priority liens and security interests in such property,
(d) A Loan Fee in the amount of $7,600.00 shall have been
paid to Bank;
(e) No Event of Default or Conditional Default shall have
occurred and be continuing under this Agreement or any of the other Bank Loan
Documents;
(f) No default shall have occurred and be continuing
under any of the Senior Loan Documents or any of the Tenant Leases;
(g) Bank shall have received the most recent financial
statements of Borrower as required by SECTION 7.1:
(h) Bank shall have received a written opinion or
opinions of counsel to Borrower addressed to Bank in form and scope satisfactory
to Bank and its counsel;
(i) Bank shall have received or be reimbursed for all of
Bank's reasonable out-of-pocket expenses incurred in connection with the Loan,
including, but not limited to, the reasonable fees and expenses of Bank's legal
counsel;
(j) All of the representations and warranties of Borrower
as set forth in Article VIII hereof shall be true, correct and accurate in all
material respects; Documents;
(k) Bank shall have received, reviewed and approved the
Collateral Loan
(l) Bank shall have received commitments for the Title
Policies;
(m) Bank shall have received and reviewed all of the
documents in connection with the acquisition of the Collateral Loan Documents by
Borrower;
15
(n) Borrower and, if necessary, each of the Collateral
Borrowers, shall have executed and delivered to Bank letters addressed to each
of the Senior Lenders and/or the Tenants, as the case may be, directing payment
to Bank of all sums to be paid by the Tenants under the Tenant Leases, subject
to the rights of the Senior Lenders; and
(o) Bank shall have received and reviewed such other
materials and documents as Bank may reasonably require.
6.2 DISBURSEMENT PROCEDURES. Upon satisfaction of the requirements
set forth in SECTION 6.1 hereof, Bank shall disburse the Loan, in a manner
satisfactory to Bank, for payment towards the acquisition of the Collateral Loan
Documents.
6.3 NOTE AND COLLATERAL DOCUMENTS. All advances of the Loan
proceeds shall be evidenced by the Note and secured by the Collateral Documents.
6.4 NO OTHER RIGHTS. All conditions to the obligation of Bank to
make advances hereunder are imposed solely and exclusively for the benefit of
Bank and its assigns, and no other person shall have standing to require
satisfaction of such conditions in accordance with their terms or be entitled to
assume that Bank will make or not make advances in the absence of strict
compliance with any or all thereof, and no other person shall, under any
circumstances, be deemed to be a beneficiary of such conditions, any or all of
which may be freely waived in whole or in part by Bank at any time if, in its
sole discretion, it deems it advisable to do so. In no event shall any other
party be deemed to be a beneficiary of the Loan that may be advanced to Borrower
pursuant to the terms hereof or have any right to an accounting therefor. Bank
shall not in anyway or for any purpose be deemed to be or to become a partner of
or a joint venturer or a member of a joint enterprise with Borrower in
connection with the ownership of the Collateral Loan Documents or the ownership,
development or operation of the Properties or the Loan contemplated herein.
ARTICLE VII
REPORTING REQUIREMENTS
7.1 FINANCIAL REPORTS. Until Bank Debt is repaid in full, Borrower
shall furnish or cause to be furnished to Bank within the time periods specified
below, the following financial reports and information:
(a) In the case of any Guarantor, as soon as available,
but in no event later than thirty (30) days after filing, copies of all (i)
quarterly 10Q reports filed with the Securities and Exchange Commission, (ii)
annual I OK reports filed with the Securities and Exchange Commission and (iii)
income tax returns and any requests for extensions thereof filed with the
Internal Revenue Service;
(b) In the case of Borrower, within sixty (60) days (i)
after the end of each calendar year, a balance sheet and annual income and cash
flow statements as of December
16
31 of such calendar year, and (ii) after filing, income tax returns and any
requests for extensions thereof filed with the Internal Revenue Service;
(c) Within fifteen (l5) days after receipts, all reports
and materials submitted by the Collateral Borrowers to Borrower, and
(d) Within a reasonable period after demand, such other
information requested by Bank from time to time as reasonably deemed necessary
or appropriate by Bank to evaluate the financial condition of Borrower, any
Guarantor or any of the Collateral Loan Documents.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants to Bank as follows, which
representations and warranties shall be recertified to Bank with submission of
the information set forth in Article VII:
8.1 DUE FORMATION; CAPACITY. DVL Holdings is a limited liability
company duly formed and validly existing under the laws of the State of
Delaware, and has full power and authority to own such of the Collateral Loan
Documents as it presently owns and to conduct its affairs as now being conducted
and as proposed to be conducted. One hundred percent (100%) of the ownership
interest in DVL Holdings is owned by DVL.
8.2 POWER AND AUTHORITY. DVL is a corporation duly formed and
validly existing under the laws of the State of Delaware, and has full power and
authority to own such of the Collateral Loan Documents it presently owns. Each
of DVL and DVL Holdings has full power and authority to enter into, execute,
deliver and carry out this Agreement and the other Bank Loan Documents to which
it is a party, and to perform its respective obligations hereunder and
thereunder, and all such actions have been duly authorized by all necessary
proceedings on its part. Each of DVL and DVL Holdings has obtained all consents
and authorizations required for its existence and for their operation and
ownership of the Collateral Loan Documents by any Law, Official Body, Borrower
Documents or any other agreement or instrument to which it is bound
8.3 GENERAL PARTNERS. DVL is the sole general partner of each of
the Collateral Borrowers.
8.4 VALIDITY AND BINDING EFFECT OF BANK LOAN DOCUMENTS. Borrower
has duly and validly executed and delivered this Agreement and the other Bank
Loan Documents to which it is a party. This Agreement and the other Bank Loan
Documents constitute legal, valid and binding obligations of Borrower
enforceable against it in accordance with their respective terms, except to the
extent that enforceability of any of such documents may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforceability of creditors' rights generally and general
principles of equity
17
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing.
8.5 VALIDITY AND BINDING EFFECT OF COLLATERAL LOAN DOCUMENTS. The
Collateral Borrowers have each duly and validly executed and delivered each of
the Collateral Loan Documents to which it is a party. The Collateral Loan
Documents constitute legal, valid and binding obligations of each of the
Collateral Borrowers enforceable against each in accordance with their
respective terms, except to the extent that enforceability of any of such
documents may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforceability of creditors' rights
generally and general principles of equity including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing.
8.6 VALIDITY AND BINDING EFFECT OF TENANT LEASES. Each of the
Tenant Leases were duly and validly executed and delivered by each of the
Tenants to which it is a party. The Tenant Leases constitute legal, valid and
binding obligations of each of the Tenants enforceable against each in
accordance with their respective terms, except to the extent that enforceability
of any of such documents may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforceability of
creditors' rights generally and general principles of equity including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing.
8.7 NO CONFLICT. Neither the execution and delivery of this
Agreement or the other Bank Loan Documents nor the consummation of the
transactions herein or therein contemplated or compliance with the terms and
provisions hereof or thereof by them will conflict with, constitute a default
under or result in any breach of (i) the terms and conditions of Borrower's
Documents, (ii) any Governmental Approval or (iii) or any agreement or
instrument to which Borrower is a party or is bound by any Law.
8.8 OTHER AGREEMENTS. Borrower is not a party to any agreement or
instrument materially adversely affecting its present or proposed business,
properties or assets, operation or conditions, financial or otherwise and
Borrower has no actual knowledge that it is in default of the performance,
observance, or fulfillment of any material obligation, covenant or condition set
forth in any agreement or instrument to which it is a party.
8.9 NO CONDITIONAL DEFAULT OR EVENT OF DEFAULT. No Conditional
Default has occurred and is continuing and no condition exists or will be caused
by the disbursement of the Loan which will constitute a Conditional Default or
an Event of Default.
8.10 DEFAULT UNDER THE COLLATERAL LOAN DOCUMENTS. No default on the
part of any of the Collateral Borrower exists under the Collateral Loan
Documents.
8.11 SENIOR LOAN BALANCES AND COLLATERAL LOAN BALANCES. The current
principal amount outstanding under each of the Senior Loans and the Collateral
Loans is as set forth on Schedule V hereto. The annual payments to be made under
the Collateral Loan
18
Documents, after reduction for payments owing under the Senior Loans, are as set
forth on Schedule VI hereto.
8.12 DEFAULT UNDER THE SENIOR LOAN DOCUMENTS. No default on the
part of any of the Collateral Borrower exists under the Senior Loan Documents.
8.13 TENANT LEASES. Except for the Tenant Leases, there are no
leases, occupancy agreements, licenses or other agreements pertaining to the
leasing, occupancy or licensing of the Improvements, or any portion thereof. No
default on the part of any of the Tenants or the Collateral Borrower exists
under the Tenant Leases and the Tenant Leases remain in full force and effect
binding on the Tenants in accordance with their terms.
8.14 SENIOR LOANS AND TENANT LEASES. The information with respect
to the Senior Loans and the Tenant Leases as set forth on Schedule IV hereto is
true, correct and complete.
8.15 NO LITIGATION OR INVESTIGATIONS. There is no pending or, to
Borrower's knowledge, threatened litigation or governmental investigation (or
any basis therefor known to Borrower) which questions the capacity, ability or
authority of (i) Borrower to execute, deliver and perform the provisions of this
Agreement or Bank Loan Documents or (ii) any of the Collateral Borrowers to have
executed, delivered and perform the provisions of the Collateral Loan Documents.
8.16 INFORMATION. The information, financial statements and other
financial data furnished by Borrower to Bank are true and correct in all
material respects and, in the case of financial statements, present fairly the
financial condition of Borrower in accordance with GAAP (if such information,
financial statements and other information are required to be prepared in
accordance with GAAP accounting pursuant to the terms hereof). All other
information given to Bank with respect to Borrower, the Collateral Borrowers,
the Guarantor and the Collateral Loans is accurate and correct in all material
respects and is complete insofar as completeness may be necessary to give Bank a
true and accurate knowledge of the subject matter. All surveys, plot plans and
similar documents heretofore furnished by Borrower to Bank with respect to the
Properties were, to Borrower's knowledge, accurate and complete in all material
respects as of their respective dates and, to Borrower's knowledge, remain true
and correct in all material respects as of the date hereof. Except as set forth
on Schedules 1, II and III hereto, there are no documents or agreements
pertaining to (i) the Collateral Loans, (ii) the Collateral Borrower's
obligations under the Collateral Loans, or (iii) Borrower's obligations, rights
and remedies with respect to the Collateral Loans.
8.17 TITLE ASPECTS. The Collateral Borrowers and St. Albans have
clear and unencumbered title to the Properties owned by them, subject to only to
the Senior Mortgages, the Mortgages and the other exceptions set forth in the
Title Policies.
8.18 GOVERNMENTAL APPROVALS. To Borrower's knowledge, all
Governmental Approvals are in full force and effect.
19
8.19 SECURITY INTERESTS. The liens and security interests granted
or to be granted to Bank pursuant to this Agreement and the other Bank Loan
Documents constitute and will continue to constitute valid perfected first
priority security interests under the Uniform Commercial Code or other
applicable Law, entitled to all the rights, benefits and priorities provided by
the Uniform Commercial Code or any other Law, and the property secured thereby
is subject to no other liens or encumbrances. Borrower authorizes Bank to file
such UCC-1 Financing Statements as Bank deems necessary to perfect the security
interests granted hereby and by the other Bank Loan Documents.
8.20 MORTGAGES. The liens and security interests granted to
Borrower pursuant to the Collateral Mortgages and the other Collateral Loan
Documents constitute and will continue to constitute valid perfected mortgage
liens on the Properties and valid perfected security interests under the Uniform
Commercial Code or other applicable Law on all personalty of the Collateral
Borrowers located at the Properties, entitled to all the rights, benefits and
priorities provided pursuant to the terms thereof and by the Uniform Commercial
Code or any other Law, and the Properties secured thereby are subject to no
other liens or encumbrances except as set forth on the Title Policies.
8.21 INSURANCE. All insurance policies and bonds to be furnished
pursuant to the Leases and the Collateral Loan Documents have been famished and
are valid and in full force and effect. No notice has been received by Borrower
and, to Borrower's knowledge, no claim made and no grounds exist to cancel or
void any of such policies or bonds or to reduce the coverage provided thereby.
8.22 SOLVENCY. Borrower and each of the Collateral Borrowers is
Solvent as of the date of this Agreement. After giving effect to the
transactions contemplated by Bank Loan Documents, including all indebtedness
incurred thereby and the security interests granted and the payment of all fees
related thereto, Borrower will be Solvent.
8.23 HAZARDOUS SUBSTANCES. To the best of Borrower's actual
knowledge (without inquiry or investigation), there are no Hazardous Substances
located or present at or about the Properties, or any portion thereof.
ARTICLE IX
DEFAULTS AND REMEDIES
9.1 EVENTS OF DEFAULT. The following shall be deemed to be Events
of Default under this Agreement (whatever the reason therefor and whether
voluntary, involuntary or affected by operation of Law):
(a) Borrower or St. Albans shall (i) fail to pay the
principal of the Loan at the Maturity Date or (ii) fail to make any other
payment of principal (including the Mandatory Principal Payments), interest or
any other amount owing hereunder or under the other Bank Loan Documents for five
(5) business days after such payment became due and payable.
20
(b) Any representation or warranty made at any time by
Borrower or St. Albans herein or in any other Bank Loan Document, or in any
certificate, other instrument or written statement furnished to Bank pursuant to
the provisions hereof or thereof, shall prove to have been false or misleading
in any material and adverse respect as of the time it was made or furnished;
(c) Borrower or St. Albans shall default in the
performance or observance of any of the covenants set forth in SECTIONS 4.1 OR
4.3.
(d) Borrower or St. Albans shall fail to comply with any
covenant contained in this Agreement or any of the other Bank Loan Documents,
other than those defaults referred to in the other subparagraphs of this SECTION
9.1. and shall not cure that failure within the period of time specified for
such cure or, if no such period of time is specified, within thirty (30) days
after written notice thereof by Bank to Borrower, or, if such failure can not be
cured using diligent efforts in said thirty (30) day period, then such longer
period of time as Bank determines to be reasonable under the circumstances, but
in no event longer than ninety (90) days provided Borrower is diligently
pursuing such cure.
(e) Borrower or St. Albans or any of the Collateral
Borrowers shall cease to be Solvent or shall be unable to pay its respective
debts as the same shall mature or there shall be filed by or against (unless
dismissed within sixty (60) days after any involuntary filing) Borrower, St.
Albans or any of the Collateral Borrowers a petition in bankruptcy or a petition
seeking the appointment of a receiver, trustee or conservator for Borrower, St.
Albans or any of the Collateral Borrowers or any portion of their respective
properties or seeking reorganization or to effect a plan or other arrangement
with or for the benefit of creditors, or Borrower, or St. Albans or any of the
Collateral Borrowers shall consent to the appointment of a receiver, trustee or
conservator,
(f) Any of Bank Loan Documents shall cease to be legal,
valid and binding agreements enforceable against Borrower or any other party
thereto in accordance with the material respective terms thereof or shall in any
way be terminated (except in accordance with their terms) or any of Bank Loan
Documents become or be judicially declared ineffective or inoperative or shall
in any way cease to give or provide the respective liens, security interests,
rights, titles, interests, remedies, powers or privileges intended to be created
thereby,
(g) Any of the Collateral Loan Documents shall cease to
be legal, valid and binding agreements enforceable against any of the Collateral
Borrowers or any other party thereto in accordance with the material respective
terms thereof or shall in any way be terminated (except in accordance with their
terms) or any of the Collateral Loan Documents become or be judicially declared
ineffective or inoperative or shall in any way cease to give or provide the
respective liens, security interests, rights, titles, interests, remedies,
powers or privileges intended to be created thereby;
21
(h) A default shall occur under any of the other Bank
Loan Documents beyond the longer of any applicable notice or grace period
contained therein or contained in this Loan Agreement;
(i) A default on the part of any of the Collateral
Borrowers shall occur under any of the other Collateral Loan Documents beyond
any applicable notice or grace period contained therein but in no event beyond
thirty (30) days;
(j) A default on the part of any of the Collateral
Borrowers shall occur under any of the other Senior Loan Documents beyond any
applicable notice or grace period contained therein but in no event beyond
thirty (30) days;
(k) A default shall occur under any of the Tenant Leases
on the part of any of the Tenants or on the part of any of the Collateral
Borrowers beyond any applicable notice or grace period contained therein but in
no event beyond thirty (30) days;
(l) A Material Adverse Change shall have occurred;
(m) Any party shall obtain an order or decree in any
court of competent jurisdiction enjoining or prohibiting Bank, Borrower or St.
Albans from carrying out the terms and conditions of any of Bank Loan Documents
or any of the Collateral Loan Documents and such order or decree is not vacated
or stayed within sixty (60) days after the filing thereof;
(n) A judgment is entered in connection with any
obligation, other than the Loan, in excess of $50,000 with respect to Borrower,
St. Albans or any of the Collateral Borrowers and any such judgment remains
unpaid for a period of thirty (30) days following the entry thereof without the
obtaining of a stay of execution or causing such judgment to be bonded;
(o) The Land or the Improvements, or any portion thereof,
shall be sold without the prior written consent of Bank which consent shall be
granted or conditioned at the sole discretion of Bank; or
(p) Any Guarantor shall default under any of the Bank
Loan Documents or any other obligation to Bank, and such default shall continue
uncured after the expiration of all applicable notice and cure periods, if any.
9.2 REMEDIES.
(a) If an Event of Default shall occur and be continuing,
and without any notice to Borrower or any other act by Bank, at the election of
Bank, the Note shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
Borrower, together with interest at the Default Rate accruing on the principal
amount thereof from and after the date of such Event of Default (including
following the entry of a judgment); and
22
(b) If an Event of Default shall occur and be continuing,
and without any notice to Borrower or any other act by Bank, at the election of
Bank, Bank (i) shall have, and may exercise, every and all of the rights and
benefits of the holder of the Collateral Loan Documents (including without
limitation the right to receive all payments under the Collateral Loan Documents
or any of them) including, without limitation; under the Collateral Mortgages in
accordance with their terms, (ii) may give any notices, declare any defaults or
file any actions or petitions with respect to any of the Collateral Loan
Documents including, without limitation, mortgage foreclosure actions with
respect to some or all of the Properties, (iii) may endorse, assign, sell or
otherwise convey any or all of the Collateral Notes and any or all of the other
Collateral Loans and (iv) shall have any and all other rights with respect to
the Collateral Loan Documents as is provided to it under this Loan Agreement,
any of the other Bank Loan Documents or at law or in equity, all of which
Borrower hereby authorizes and agrees to.
(c) If an Event of Default shall occur and be continuing,
Bank shall have the right, in addition to all other rights and remedies
available to it, without notice to Borrower, to set-off against and apply to the
then unpaid balance of Bank Debt and all other obligations of Borrower hereunder
or under any other Bank Loan Document any debt owing to, and any other funds
held in any manner for the account of, Borrower, other than third party security
and similar deposits, by Bank or by such branch, subsidiary or affiliate,
including without limitation, all funds in all deposit accounts (whether time or
demand, general or special, provisionally credited or finally credited, or
otherwise) now or hereafter maintained by Borrower for its own account with Bank
or such branch, subsidiary or affiliate. Such right shall exist whether or not
Bank shall have made any demand under this Agreement or any other Bank Loan
Document, whether or not such debt owing to or funds held for the account of
Borrower is or are matured or unmatured and regardless of the existence or
adequacy of any Collateral, the Guaranty or other security for the Loan, right
or remedy available to Bank; and
(d) From and after the date on which Bank has taken any
action pursuant to this Article IX and until all Bank Debt has been paid in
full, any and all proceeds received by Bank from any sale or other disposition
of any Collateral, or any part thereof, or the exercise of any other remedy by
Bank, shall be applied as follows:
(i) first, to reimburse Bank for reasonable
out-of-pocket costs, expenses and disbursements, including without limitation,
reasonable attorneys' fees and legal expenses, incurred by Bank in connection
with realizing on any Collateral or collection of any obligations of Borrower
under any of Bank Loan Documents or of any of the Collateral Borrowers under any
of the Collateral Loan Documents, including advances made subsequent to an Event
of Default by Bank or for the reasonable maintenance, preservation, protection
or enforcement of, or realization upon, any Collateral, including without
limitation, advances for Impositions, insurance, repairs and the like and
reasonable expenses incurred to sell or otherwise realize on, or prepare for
sale or other realization on, any of the Collateral; and
23
(ii) second, to the repayment of the Loan
principal, interest, fees, expenses or otherwise, in such order as Bank shall
determine.
(e) Bank shall have all of the rights and remedies
contained in this Agreement and the other Bank Loan Documents. In exercising any
rights or remedies hereunder or under the other Bank Loan Documents or the
Collateral Loan Documents (including without limitation, delivery of any default
notice and the election of judicial or non judicial remedies) or in waiving any
of the express terms of this Agreement or the other Bank Loan Documents or any
of the Collateral Loan Documents, Bank shall be permitted to proceed in such
order, successively or concurrently, and manner as Bank may determine in its
sole discretion. In addition, Bank shall have all of the rights and remedies of
a secured party under the Uniform Commercial Code or other applicable Law, all
of which rights and remedies shall be cumulative and non-exclusive, to the
extent permitted by Law.
9.3 NOTICE OF SALE. Any notice required to be given by Bank of a
sale, lease, or other disposition of any Collateral or any other intended action
by Bank, if given five (5) Business Days prior to such proposed action, shall
constitute commercially reasonable and fair notice thereof to Borrower.
ARTICLE X
MISCELLANEOUS
10.1 MODIFICATIONS. AMENDMENTS OR WAIVERS. This Agreement maybe
modified or amended and any right set forth herein waived, only by an instrument
in writing signed by both Bank and Borrower.
10.2 NO IMPLIED WAIVERS, CUMULATIVE REMEDIES; WRITING REQUIRED. No
course of dealing and no delay or failure of Bank in exercising any right,
power, remedy or privilege under this Agreement or any other Bank Loan Document
or any of the Collateral Loan Documents shall affect any other or future
exercise thereof or operate as a waiver thereof; nor shall any single or partial
exercise thereof or any abandonment or discontinuance of steps to enforce such a
right, power, remedy or privilege preclude any further exercise thereof or of
any other right, power, remedy or privilege. The rights and remedies of Bank
under this Agreement and any other Bank Loan Documents and any of the Collateral
Loan Documents are cumulative and not exclusive of any rights or remedies which
they would otherwise have and may be exercised multiple times. Any waiver,
consent or approval of any kind or character on the part of Bank of any breach
or default under this Agreement or any such waiver of any provision or condition
of this Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing.
10.3 REIMBURSEMENT AND INDEMNIFICATION OF BANK BY BORROWER;
IMPOSITIONS. Except as otherwise limited in this Agreement, Borrower agrees
unconditionally upon demand to pay or reimburse to Bank and to hold Bank
harmless against (i) liability for the payment of all reasonable out-of-pocket
costs, expenses and disbursements, including but not limited to reasonable fees
and expenses of counsel, incurred by Bank
24
subsequent to the date of this Agreement (a) relating to any amendments, waivers
or consents pursuant to the provisions hereof, and (b) in connection with any
workout or restructuring, or in connection with the protection, preservation,
exercise or enforcement of this Agreement or any other Bank Loan Document or any
of the Collateral Loan Documents or collection of amounts due hereunder or under
any of the other Bank Loan Documents or due under any of the Collateral Loan
Documents or the proof and allowability of any claim arising under this
Agreement or any other Bank Loan Document or any of the Collateral Loan
Documents, whether in insolvency proceedings or otherwise, upon an Event of
Default or Conditional Default, and (ii) all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against Bank in any way relating to or arising out of this Agreement or
any other Bank Loan Document or any of the Collateral Loan Documents or any
action taken or omitted by Bank hereunder or thereunder, except to the extent
the same is caused by the gross negligence or willful misconduct of Bank or its
agents, employees, contractors or Affiliates. Borrower agrees unconditionally to
pay all stamp, document, transfer, recording or filing taxes or fees and similar
Impositions (except for taxes, including any franchise tax, on the overall net
income of Bank) now or hereafter determined by Bank to be payable in connection
with this Agreement or any other Bank Loan Document or any of the Collateral
Loan Documents, and Borrower agrees unconditionally to save Bank harmless from
and against any and all present or future claims, liabilities or losses with
respect to or resulting from any omission to pay or delay in paying any such
taxes, fees or other similar Impositions.
10.4 HOLIDAYS. Whenever any payment or action to be made or taken
hereunder shall be stated to be due, or any time period is otherwise set to
expire, on a day which is not a Business Day, such payment or action shall be
made or taken on the next following Business Day, and such extension of time
shall be included in computing interest or fees, if any, in connection with such
payment or action, or such time period shall be extended to the next following
Business Day.
10.5 PARTICIPATION AND ASSIGNMENT OF THE LOAN BY BANK.
Notwithstanding any other provision of this Agreement, Borrower understands that
Bank may, without notice to Borrower, at any time or from time to time assign
and/or participate all or portions of the Loan.
10.6 NOTICES. All notices, requests, demands, directions and other
communications (collectively, "Notices") given to or made upon any party hereto
under the provisions of this Agreement shall be in writing and shall be
delivered or sent to the respective parties at the addresses and numbers set
forth below or in accordance with any subsequent written direction from any
party to the others. All Notices shall, except as otherwise expressly herein
provided, be effective (i) in the case of hand delivered notice, when hand
delivered, (ii) if given by mail, with first class postage prepaid, return
receipt requested, on the date of delivery indicated on the return receipt, and
(iii) if given by any other means (including by air courier), when delivered.
25
If to Borrower.
c/o DVL, Inc. Heron Tower
70 East 55th Street, 7th Floor
New York, NY 10022
Attention: Peter Grey
26
With a copy to:
Klehr, Harrison, Harvey, Branzburg & Ellers LLP
260 S. Broad Street
Philadelphia, PA 19102
Attention: Richard S. Roisman, Esquire
With a copy to:
c/o P&A Associates
4900 South Broad Street
Philadelphia, PA 19112
Attention: Alan E. Casnoff, President
If to Bank:
Pennsylvania Business Bank
1401 Walnut Street, Suite 400
Philadelphia, PA 19102
Attention: Alan S. Fellheimer, President & CEO
With a copy to:
Obermayer Rebmann Maxwell & Hippel LLP
19th Floor, 1617 John F. Kennedy Boulevard
Philadelphia, PA 19103
John E. Ryan, Esquire
10.7 SEVERABILITY. The provisions of this Agreement are intended to
be severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
10.8 GOVERNING LAW. This Agreement shall be deemed to be a contract
under the laws of the Commonwealth of Pennsylvania and for all purposes shall be
governed by and construed and enforced in accordance with the laws of the
Commonwealth of Pennsylvania without regard to its conflicts of laws principles.
10.9 PRIOR UNDERSTANDING. This Agreement, together with the other
Bank Loan Documents, supersedes all prior understandings and agreements, whether
written or oral, between the parties hereto and thereto relating to the
transactions provided for herein and therein, including any prior
confidentiality agreements and commitments.
27
10.10 DURATION; SURVIVAL. All representations and warranties of
Borrower contained herein or made in connection herewith shall survive the
making of the Loan and shall not be waived by the execution and delivery of this
Agreement, any investigation by Bank, the making of the Loan or payment in full
of Bank Debt. All covenants and agreements of Borrower contained herein relating
to the payment of principal, interest, premiums, additional compensation or
expenses and indemnification, including those set forth in the Note, Article III
and SECTIONS 10.3 AND 10.20 hereof, shall survive payment in full of Bank Debt.
10.11 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of Bank, and Borrower its successors and assigns,
except that Borrower may not assign or transfer any of its rights and
obligations hereunder or any interest herein.
10.12 JOINT AND SEVERAL LIABILITY. Anything in this Agreement to the
contrary notwithstanding, it is specifically agreed that the liability of DVL
and DVL Holdings hereunder and under the Bank Loan Documents shall be joint and
several in all respects.
10.13 COUNTERPARTS. This Agreement may be executed by different
parties hereto on any number of separate counterparts, each of which, when so
executed and delivered, shall be an original, and all such counterparts shall
together constitute one and the same instrument.
10.14 EXCEPTIONS. The representations and warranties and covenants
contained herein shall be independent of each other and no exception to any
representation, warranty or covenant shall be deemed to be an exception to any
other representation, warranty or covenant contained herein unless expressly
provided, nor shall any such exceptions be deemed to permit any action or
omission that would be in contravention of applicable Law.
10.15 JURISDICTION, ETC. Borrower hereby unconditionally and
irrevocably (a) subjects itself to the jurisdiction of the courts of the
Commonwealth of Pennsylvania and any federal courts sitting in Pennsylvania in
connection with any action, suit or proceeding under or relating to, or to
enforce any of the provisions of, this Agreement, (b) waives, to the extent
permitted by law, any right to obtain a change in venue from any such court in
any such action, suit or proceeding, and (c) agrees to service of process sent
both by certified mail, return receipt requested, postage prepaid and by
reputable overnight courier to its address referred to in SECTION 10.6 hereof
Borrower irrevocably agrees that service of process in accordance with the
foregoing sentence shall be deemed in every respect effective and valid personal
service of process upon Borrower. The provisions of this SECTION 10.14 shall not
limit or otherwise affect the right of Bank to institute and conduct an action
in any other appropriate manner, jurisdiction or court.
10.16 WAIVER OF JURY TRIAL. BORROWER AND BANK AS CONSIDERATION TO
THE OTHER FOR ENTERING INTO THIS LOAN AGREEMENT HEREBY WAIVE TRIAL BY JURY IN
ANY ACTION OR
28
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER BANK LOAN DOCUMENT TO THE
FULL EXTENT PERMITTED BY LAW.
10.17 NO THIRD PARTIES BENEFITED. This Agreement is made and entered
into for the sole protection and benefit of Borrower and Bank. No trust fund is
created by this Agreement and no other persons or entities including, without
limitation, any Collateral Borrower will have any right of action under this
Agreement or any right against Bank to obtain any proceeds of the Loan.
10.18 AUTHORITY TO FILE NOTICES. Borrower irrevocably appoints Bank
as its attorney-in-fact, coupled with an interest, with full power of
substitution, after the occurrence of and during the continuation of any Event
of Default, to file for record, at Borrower's cost and expense and in Borrower's
names, any actions, complaints, petitions, requests or notices that Bank
considers necessary or desirable to protect the Collateral.
10.19 INTERPRETATION. Whenever the context requires, all words used
in the singular will be construed to have been used in the plural, and vice
versa, and each gender will include any other gender. The captions of the
articles, sections, schedules and exhibits of this Agreement are for convenience
only and do not define or limit any terms or provisions. In the event of a
conflict between the terms of the other Bank Loan Documents and this Agreement,
the terms of this Agreement shall control. The terms and provisions of this
Agreement and the other Bank Loan Documents shall be construed in accordance
with their plain meaning, without regard for any canons or principles requiring
interpretation against the party responsible for the preparation of same, or for
any other inconsistent or contrary canons or principles of construction.
10.20 STATUS OF PARTIES. It is understood and agreed that the
relationship of the parties hereto is that of borrower and lender and that
nothing contained herein or in any of the other Bank Loan Documents shall be
construed to constitute a partnership, joint venture or co-tenancy between
Borrower and Bank.
10.21 BROKERAGE FEE. Borrower represents to Bank that no broker or
other person is entitled to a brokerage fee or commission as a result of
Borrower's actions or undertakings in connection with the Loan and agrees to
hold Bank harmless from all claims for brokerage commissions which may be made
as a result of such actions or undertakings, if any.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
29
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed this Agreement under seal as of the day and year
first above written.
BORROWER:
DVL, INC., a Delaware corporation
By:
-----------------------------------
Name:
Title:
DVL Mortgage Holdings, LLC, a
Delaware limited liability company
By:
-----------------------------------
Name:
Title:
BANK:
PENNSYLVANIA BUSINESS BANK
By:
-----------------------------------
Name:
Title:
30
SCHEDULE I
ASSIGNMENTS OF LEASES AND RENTS
- -----------------------------------------------------------------------------------------------------
DOCUMENT EXECUTION RECORDING BOOK/PAGE
DATE DATE
Assignment of Leases from 2/1/88 2/21/89 111/293
Waldron Associates to Del-Val Financial
Corporation, as amended and assigned
Assignment of Leases and Rents from 11/23/82 11/30/82 394/129
Stigler Associates to Kenbee Management -
Oklahoma, Inc., as assigned
Assignment of Leases and Rents from 11/19/85 11/20/85 904/337
Alexandria Associates to Kenbee Management
- Oklahoma, Inc.
- -----------------------------------------------------------------------------------------------------
SCHEDULE II
COLLATERAL NOTES
--------------------------------------------------------------------------------------------------
DOCUMENT EXECUTION DATE
--------------------------------------------------------------------------------------------------
$1,000,000 Note from Edna Associates to Kenbee Management-Oklahoma, Inc., 05/25/83
as amended 3/26/84 and 1/1/92
--------------------------------------------------------------------------------------------------
$2,040,000 Wraparound Note from Waldron Associates to Del-Val Financial 02/01/88
Corporation, as amended 1/1/92
--------------------------------------------------------------------------------------------------
$900,000 Note from Jena Associates to Kenbee Management-Oklahoma, Inc., as 11/28/83
amended 11/28/83
--------------------------------------------------------------------------------------------------
$3,550,000 Note from St. Albans Associates to Spring Valley Development 12/28/79
Corporation, Inc.
--------------------------------------------------------------------------------------------------
$1,090,000 Note from Stigler Associates to Kenbee Management-Oklahoma, Inc. 11/23/82
--------------------------------------------------------------------------------------------------
$685,000 Note from Alexandria Associates to Kenbee Management-Oklahoma, Inc. 11/19/85
--------------------------------------------------------------------------------------------------
$1,083,000 Note from Champlain Associates to Kenbee Management-Connecticut, Inc. 1/29/82
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
$260,000 Note from Ava Associates to Kenbee Management-Connecticut, Inc. 11/7/83
--------------------------------------------------------------------------------------------------
SCHEDULE III
MORTGAGES
- -------------------------------------------------------------------------------------------------------------------------
EXECUTION RECORDING
DOCUMENT DATE DATE BOOK/PAGE
- -------------------------------------------------------------------------------------------------------------------------
$1,000,000 Mortgage from Edna Associates to Kenbee 05/25/83 05/31/83 170/447
Management-Oklahoma, Inc., as amended 3/26/84 and
1/1/92
$2,040,000 Wraparound Mortgage from Waldron 02/01/88 02/21/89 111/270
Associates to Del-Val Financial Corporation, as
amended 1/1/92
$1,083,000 Mortgage from Champlain Associates to 1/29/82 2/8/82 343/111
Kenbee Management - Connecticut, Inc., as modified
1/1/92
$260,000 Mortgage from Ava Associates to Kenbee 11/7/83
Management - Connecticut, Inc., as modified 1/1/92
$900,000 Wrap-Around Mortgage from Jena Associates to 11/28/83 11/30/83 123/414
Kenbee Management - Oklahoma, Inc., as modified 1/1/92
$1,090,000 Mortgage from Stigler Associates to Kenbee 11/23/82 11/30/82 394/118
Management - Oklahoma, Inc., as modified 12/15/83,
9/25/92 and 9/15/93
$3,550,000 Mortgage from St. Albans Associates to 12/28/79 1/10/80 39/336
Spring Valley Development Corporation, Inc., as
corrected 12/28/79, as modified 1/1/92, as corrected
9/16/92, as modified 3/18/96
$685,000 Mortgage from Alexandria Associates to Kenbee 11/19/85 11/20/85 480/219
Management - Oklahoma, Inc., as modified 3/20/86, as
modified 1/1/92
$1,000,000 Mortgage from Edna Associates to Kenbee 5/25/83 5/31/83 170/447
Management - Oklahoma, Inc., as modified 1/1/92
- -------------------------------------------------------------------------------------------------------------------------
SCHEDULE IV
TENANT LEASES
- ------------------------------------------------------------------------------------------------
DOCUMENT EXECUTION DATE
- ------------------------------------------------------------------------------------------------
Lease between Edna Associates and Wal-Mart Stores, Inc. 05/25/83
- ------------------------------------------------------------------------------------------------
Lease between Waldron Associates and Wal-Mart Stores, Inc. 11/12/82
- ------------------------------------------------------------------------------------------------
Lease between Kenbee Management - Oklahoma, Inc. and Wal-Mart Stores, Inc. 11/28/83
- ------------------------------------------------------------------------------------------------
Lease between Tanner Building Co., Inc. and Fay's Drug Company 3/25/85
- ------------------------------------------------------------------------------------------------
Lease between St. Albans Associates and The Fonda Group, Inc., as amended
August 24, 1990 and March 24, 1995 9/1/89
- ------------------------------------------------------------------------------------------------
Lease between Stigler Associates and Wal-Mart Stores, Inc. 11/23/82
- ------------------------------------------------------------------------------------------------
Lease between Ava Associates and Hannaford Bros. Co.
- ------------------------------------------------------------------------------------------------
SCHEDULE V
SENIOR LOAN AND COLLATERAL LOAN BALANCES
- -------------------------------------------------------------------------------
PROPERTY Senior Loan Balances Collateral Loan Balances
- -------------------------------------------------------------------------------
Edna $536,122
- -------------------------------------------------------------------------------
Waldron $483,443
- -------------------------------------------------------------------------------
Alexandria $820,278
- -------------------------------------------------------------------------------
Jena $480,857
- -------------------------------------------------------------------------------
Stigler $392,498
- -------------------------------------------------------------------------------
St. Albans $1,385,907
- -------------------------------------------------------------------------------
Ava $800,465
- -------------------------------------------------------------------------------
Champlain $1,250,251
- -------------------------------------------------------------------------------
SCHEDULE VI
SENIOR LOANS AND TENANT LEASES
- --------------------------------------------------------------------------------------------------------------------------
PROPERTY Senior Loans Tenant Leases
- --------------------------------------------------------------------------------------------------------------------------
Edna State of Wisconsin Investment Board dated Wal-Mart Stores, Inc.
3/26/84 in the original principal amount of
$907,427
- --------------------------------------------------------------------------------------------------------------------------
Waldron Western National Life Insurance Company Wal-Mart Stores, Inc.
dated 4/3/84 in the original principal amount
of $896.116.
- --------------------------------------------------------------------------------------------------------------------------
Alexandria Central Life Assurance Company dated 3/18/86 in original Fay's Drug Company
principal amount of $603,500
- --------------------------------------------------------------------------------------------------------------------------
Jena State of Wisconsin Investment Board dated 11/28/83 in Wal-Mart Stores, Inc.
original principal amount of $800,631
Firstar Trust Company, as agent for Phoenix Home Life
Mutual Insurance Company dated 5/6/94 in original
principal amount of $231,784.48
- --------------------------------------------------------------------------------------------------------------------------
Stigler State of Wisconsin Board of Investment dated 12/15/83 in Wal-Mart Stores, Inc.
original principal amount of $783,493
Firstar Trust Company, as agent for Phoenix Home Life
Mutual Insurance Company dated 5/23/94 in original
principal amount of $184,048.84
- --------------------------------------------------------------------------------------------------------------------------
St. Albans Lincoln National Life Insurance Company dated 6/30/95 in The Fonda Group
original principal amount of $1,633,456.25
- --------------------------------------------------------------------------------------------------------------------------