EXHIBIT 10.11
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LOAN AGREEMENT
BETWEEN
PARKING COMPANY OF AMERICA AIRPORTS, LLC
AND
PCA AIRPORTS, LTD.
AND
PARKING COMPANY OF AMERICA AIRPORTS PHOENIX, LLC
(COLLECTIVELY, BORROWER)
AND
GMAC COMMERCIAL MORTGAGE CORPORATION
(LENDER)
DATED: OCTOBER 1, 2003
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINED TERMS AND CONSTRUCTION GUIDELINES
1.01. Defined Terms...................................................................... 1
1.02. General Construction............................................................... 1
1.03. Property........................................................................... 1
ARTICLE 2 LOAN AMOUNT; PAYMENT TERMS; ADVANCES
2.01. Commitment to Lend................................................................. 2
2.02. Calculation of Interest............................................................ 2
2.03. Payment of Principal and Interest.................................................. 4
2.04. Payments Generally................................................................. 6
2.05. Prepayment Rights.................................................................. 7
2.06. Right of First and Last Refusal.................................................... 8
2.07. Interest Rate Cap/Hedge............................................................ 8
ARTICLE 3 CASH MANAGEMENT
3.01. Lockbox............................................................................ 9
ARTICLE 4 ESCROW AND RESERVE REQUIREMENTS
4.01. Creation and Maintenance of Escrows and Reserves................................... 10
4.02. Tax Escrow......................................................................... 12
4.03. Insurance Premium Escrow........................................................... 12
4.04. Capital Improvements Escrow Account................................................ 13
4.05. Replacement Reserve Account........................................................ 14
4.06. Recourse Carveout Reserve Account.................................................. 15
4.07. Deferred Purchase Payment Reserve Account.......................................... 16
4.08. Leasehold Payment Reserve Account.................................................. 17
ARTICLE 5 COMPLETION OF REPAIRS RELATED TO RESERVE ACCOUNTS;
CONDITIONS TO RELEASE OF FUNDS
5.01. Conditions Precedent to Disbursements from Certain Reserve Accounts................ 17
5.02. Waiver of Conditions to Disbursement............................................... 19
5.03. Direct Payments to Suppliers and Contractors....................................... 19
5.04. Performance of Reserve Items....................................................... 19
ARTICLE 6 LOAN SECURITY AND RELATED OBLIGATIONS
6.01. Security Instrument and Assignment of Rents and Leases............................. 20
6.02. Assignment of Property Management Contract......................................... 20
6.03. Assignment of Rate Cap Agreement................................................... 20
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LOAN NUMBER: 41655
6.04. Assignment of Operating Agreements................................................. 20
6.05. Pledge as Property; Grant of Security Interest..................................... 21
6.06. Environmental Indemnity Agreement.................................................. 21
6.07. Guaranty of Borrower Sponsors...................................................... 21
6.08. Letter of Credit................................................................... 21
ARTICLE 7 SINGLE PURPOSE ENTITY REQUIREMENTS
7.01. Commitment to be a Single Purpose Entity........................................... 23
7.02. Definition of Single Purpose Entity................................................ 23
ARTICLE 8 REPRESENTATIONS AND WARRANTIES
8.01. Organization; Legal Status......................................................... 26
8.02. Power; Authorization; Enforceable Obligations...................................... 27
8.03. No Legal Conflicts................................................................. 27
8.04. No Litigation...................................................................... 27
8.05. Business Purpose of Loan........................................................... 27
8.06. Warranty of Title.................................................................. 27
8.07. Condition of the Property.......................................................... 28
8.08. No Condemnation.................................................................... 28
8.09. Requirements of Law................................................................ 28
8.10. Operating Permits.................................................................. 28
8.11. Separate Tax Lot................................................................... 28
8.12. Flood Zone......................................................................... 28
8.13. Adequate Utilities................................................................. 29
8.14. Public Access...................................................................... 29
8.15. Boundaries......................................................................... 29
8.16. Mechanic Liens..................................................................... 29
8.17. Assessments........................................................................ 29
8.18. Insurance.......................................................................... 29
8.19. Leases............................................................................. 29
8.20. Management Agreement............................................................... 30
8.21. Financial Condition................................................................ 30
8.22. Taxes.............................................................................. 30
8.23. No Foreign Person.................................................................. 30
8.24. Federal Regulations................................................................ 30
8.25. Investment Company Act; Other Regulations.......................................... 30
8.26. ERISA.............................................................................. 30
8.27. No Illegal Activity as Source of Funds............................................. 31
8.28. Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws.. 31
8.29. Brokers and Financial Advisors..................................................... 31
8.30. Complete Disclosure; No Change in Facts or Circumstances........................... 31
8.31. Survival........................................................................... 31
8.32. Memorandum of Lease................................................................ 31
8.33. No Senior Liens.................................................................... 31
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LOAN NUMBER: 41655
8.34. Parking Lease Assignable........................................................... 32
8.35. Parking Lease Default.............................................................. 32
8.36. Parking Lease Notice............................................................... 32
8.37. Parking Lease Cure................................................................. 32
8.38. Parking Lease Term................................................................. 32
8.39. New Parking Lease.................................................................. 32
8.40. Parking Lease Insurance Proceeds................................................... 32
8.41. Parking Lease Subleasing........................................................... 32
8.42. Trademark Agreement................................................................ 33
ARTICLE 9 BORROWER COVENANTS
9.01. Payment of Debt and Performance of Obligations..................................... 33
9.02. Payment of Taxes and Other Lienable Charges........................................ 33
9.03. Insurance.......................................................................... 34
9.04. Obligations upon Condemnation or Casualty.......................................... 37
9.05. Inspections and Right of Entry..................................................... 42
9.06. Leases and Rents................................................................... 42
9.07. Use of Property.................................................................... 43
9.08. Maintenance of Property............................................................ 43
9.09. Waste.............................................................................. 44
9.10. Compliance with Laws............................................................... 44
9.11. Financial Reports, Books and Records............................................... 44
9.12. Performance of Other Agreements.................................................... 46
9.13. Existence; Change of Name; Location as a Registered Organization................... 47
9.14. Property Management................................................................ 47
9.15. ERISA.............................................................................. 47
9.16. Compliance with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering Laws.. 48
9.17. Equity Contribution................................................................ 48
9.18. Parking Lease Covenants............................................................ 48
9.19. Additional Covenants............................................................... 48
9.20. Defaults........................................................................... 49
9.21. Parking Lease Lessor Estoppel Certificate.......................................... 49
9.22. Taxes.............................................................................. 49
9.23. Trademark Agreement................................................................ 50
9.24. JFK Lease.......................................................................... 51
ARTICLE 10 NO TRANSFERS OR ENCUMBRANCES; DUE ON SALE
10.01. Prohibition Against Transfers...................................................... 51
10.02. Lender Approval.................................................................... 51
10.03. Borrower Right to Partial Releases for Partial Release Price....................... 52
10.04. Other Releases of the Mortgaged Property........................................... 54
ARTICLE 11 EVENTS OF DEFAULT; REMEDIES
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LOAN NUMBER: 41655
11.01. Events of Default.................................................................. 54
11.02. Remedies........................................................................... 56
11.03. Cumulative Remedies; No Waiver; Other Security..................................... 59
11.04. Enforcement Costs.................................................................. 59
11.05. Application of Proceeds............................................................ 59
11.06. Cross-Default; Cross-Collateralization; Waiver of Marshalling of Assets............ 60
ARTICLE 12 NONRECOURSE - LIMITATIONS ON PERSONAL LIABILITY
12.01. Nonrecourse Obligation............................................................. 60
12.02. Full Personal Liability............................................................ 60
12.03. Personal Liability for Certain Losses.............................................. 61
12.04. No Impairment...................................................................... 62
12.05. No Waiver of Certain Rights........................................................ 62
ARTICLE 13 INDEMNIFICATION
13.01. Indemnification Against Claims..................................................... 62
13.02. Duty to Defend..................................................................... 63
ARTICLE 14 SUBROGATION; NO USURY VIOLATIONS
14.01. Subrogation........................................................................ 63
14.02. No Usury........................................................................... 64
ARTICLE 15 SALE OR SECURITIZATION OF LOAN
15.01. Splitting the Note................................................................. 64
15.02. Lender's Rights to Sell or Securitize.............................................. 65
15.03. Dissemination of Information....................................................... 65
15.04. Reserves Accounts.................................................................. 66
15.05. Securitization Indemnification..................................................... 66
15.06. Additional Financial Information for Large Loans................................... 67
ARTICLE 16 BORROWER'S FURTHER ACTS AND ASSURANCES PAYMENT OF SECURITY RECORDING CHARGES
16.01. Further Acts....................................................................... 68
16.02. Replacement Documents.............................................................. 68
16.03. Borrower Estoppel Certificates..................................................... 68
16.04. Recording Costs.................................................................... 69
16.05. Publicity.......................................................................... 69
ARTICLE 17 LENDER CONSENT
17.01. No Joint Venture; No Third Party Beneficiaries..................................... 69
17.02. Lender Approval.................................................................... 69
17.03. Performance at Borrower's Expense.................................................. 70
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LOAN NUMBER: 41655
ARTICLE 18 MISCELLANEOUS PROVISIONS
18.01. Notices............................................................................ 70
18.02. Entire Agreement; Modifications; Time of Essence................................... 71
18.03. Binding Effect; Joint and Several Obligations...................................... 71
18.04. Duplicate Originals; Counterparts.................................................. 72
18.05. Unenforceable Provisions........................................................... 72
18.06. Governing Law...................................................................... 72
18.07. Consent to Jurisdiction............................................................ 72
18.08. WAIVER OF TRIAL BY JURY............................................................ 72
18.09. Good Faith......................................................................... 72
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LOAN NUMBER: 41655
LOAN AGREEMENT
(CII - LIBOR)
THIS LOAN AGREEMENT is made as of this 1st day of October, 2003, by
PARKING COMPANY OF AMERICA AIRPORTS, LLC, a Delaware limited liability company
("PCAA"), PCA Airports, Ltd., a Texas limited partnership ("PCA TEXAS"), and
Parking Company of America Airports Phoenix, LLC, a Delaware limited liability
company ("PCA PHOENIX" and, together with PCAA and PCA Texas, individually and
collectively as the context requires, "Borrower"), as borrower, and GMAC
COMMERCIAL MORTGAGE CORPORATION, a California corporation (together with its
successors and assigns, "LENDER"), as lender.
BACKGROUND
Borrower desires to obtain a commercial mortgage loan from Lender in
the original principal amount of $126,000,000.00 in lawful money of the United
States of America. Lender is willing to make such loan to Borrower on the terms
and conditions set forth in this Loan Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of such loan and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, Borrower and Lender
agree as follows:
ARTICLE 1
DEFINED TERMS AND CONSTRUCTION GUIDELINES
1.01. Defined Terms. Each defined term used in this Loan Agreement
has the meaning given to that term in Schedule 1.01 to this Loan Agreement.
1.02. General Construction. Defined terms used in this Loan
Agreement may be used interchangeably in singular or plural form, and pronouns
are to be construed to cover all genders. All references to this Loan Agreement
or any agreement or instrument referred to in this Loan Agreement shall mean
such agreement or instrument as originally executed and as hereafter amended,
supplemented, extended, consolidated or restated from time to time. The words
"herein," "hereof" and "hereunder" and other words of similar import refer to
this Loan Agreement as a whole and not to any particular subdivision; and the
words "Article" and "section" refer to the entire article or section, as
applicable and not to any particular subsection or other subdivision. Reference
to days for performance means calendar days unless business days are expressly
indicated.
1.03. Property. The parties hereto acknowledge that the defined term
"Property" has been defined to collectively include each Individual Property.
All references to "Property" in this Loan Agreement shall be deemed to refer to
one or more Individual Properties, as the context requires. It is the intent of
the parties hereto in making any determinations under
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LOAN NUMBER: 41655
this Loan Agreement, including, without limitation, in determining whether (a)
breach of a representation, warranty or a covenant has occurred, (b) there has
occurred a default or Event of Default, or (c) an event has occurred which would
create recourse obligations under Article 12 of this Loan Agreement, that any
such breach, occurrence or event with respect to any Individual Property shall
be deemed to be such a breach, occurrence or event with respect to the Loan.
ARTICLE 2
LOAN AMOUNT; PAYMENT TERMS; ADVANCES
2.01. Commitment to Lend.
(a) Loan Amount Approved. Subject to the terms and conditions set
forth herein, and in reliance on Borrower's representations, warranties and
covenants set forth herein, Lender agrees to loan the Loan Amount to Borrower.
The Loan shall be evidenced by this Loan Agreement and by the Note made by
Borrower to the order of Lender and shall bear interest and be paid upon the
terms and conditions provided herein.
(b) Advance of Loan Amount. On the Closing Date, Lender shall
advance the entire Loan Amount to Borrower.
2.02. Calculation of Interest.
(a) Calculation Basis. Interest due on the Loan shall be paid in
arrears, calculated based on a 360-day year and paid for the actual number of
days elapsed for any whole or partial month in which interest is being
calculated.
(b) Initial Applicable Interest Rate and Rate Adjustment Date.
Interest shall accrue on outstanding principal at the rate ("APPLICABLE INTEREST
RATE") which is the LIBOR Rate plus three and forty-four hundredths percent
(3.44%) (as the same may be increased pursuant to Section 2.03(d)(ii)(E) below,
"MARGIN"), provided that in no event shall the Applicable Interest Rate during
the initial term of the Loan (prior to any extension under Section 2.03(d)) be
less than four and fifty-six hundredths percent (4.56%). Adjustments to the
Applicable Interest Rate in connection with changes in the LIBOR Rate shall be
made on the Interest Rate Adjustment Date, except that the initial Applicable
Interest Rate shall be determined two business days prior to the Closing Date.
(c) LIBOR Unascertainable. Lender's obligation to maintain interest
based on the LIBOR Rate shall be suspended and the Applicable Interest Rate
shall be based on the Interest Rate Index (plus Margin) upon Lender's
determination, in good faith, that adequate and reasonable means do not exist
for ascertaining the LIBOR Rate or that a contingency has occurred which
materially and adversely affects the London Interbank Eurodollar Market at which
Lender prices loans (which determination by Lender shall be conclusive and
binding on Borrower in the absence of manifest error). Computation of the
Applicable Interest Rate based on the Interest Rate Index shall continue until
Lender determines that the circumstances giving rise to Lender's substitution of
the Interest Rate Index for the LIBOR Rate no longer exist. Lender shall
promptly notify Borrower of each such determination.
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LOAN NUMBER: 41655
(d) Adjustment Due to Calculation Errors. If, at any time, Lender
determines that it has miscalculated the Applicable Interest Rate (whether
because of a miscalculation of the LIBOR Rate or otherwise), Lender shall
promptly notify Borrower of the necessary correction. If the corrected
Applicable Interest Rate represents an increase in the applicable monthly
payment, Borrower shall, within ten (10) days after receipt of such written
notice, pay to Lender the corrected amount. If the corrected Applicable Interest
Rate represents an overpayment by Borrower to Lender and no Event of Default
then exists, Lender shall refund the overpayment to Borrower or, at Lender's
option, credit such amounts against Borrower's payment next due hereunder.
(e) Adjustment for Impositions on Loan Payment. All payments made by
Borrower hereunder shall be made free and clear of, and without reduction for,
or on account of, any income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings hereafter imposed, levied, collected,
withheld or assessed by any government or taxing authority (other than taxes on
the overall net income or overall gross receipts of Lender imposed as a result
of a present or former connection between Lender and the jurisdiction of the
government or taxing authority imposing such; this exclusion shall not apply to
a connection arising solely from Lender's having executed, delivered, performed
its obligations under, received a payment under, or enforced this Loan Agreement
or any other Loan Document). If any such amounts are required to be withheld
from amounts payable to Lender, the amounts payable to Lender under these Loan
Documents shall be increased to the extent necessary to yield to Lender, after
payment of such amounts, interest or any such other amounts payable at the rates
or in the amounts specified herein. If any such amounts are payable by Borrower,
Borrower shall pay all such amounts before penalties or interest begin to accrue
thereon and promptly send Lender a certified copy of an original official
receipt showing payment thereof. If Borrower fails to pay such amounts before
penalties or interest begin to accrue thereon or to deliver the required receipt
to Lender, Borrower shall indemnify Lender for any incremental taxes, interest
or penalties that may become payable by Lender as a result of any such failure.
(f) Increased Costs of Maintaining Interest. If Lender determines
that the adoption of any law, regulation, rule or guideline (including, without
limitation, any change regarding the imposition or increase in reserve
requirements but excluding taxes on the overall net income or overall gross
receipts of Lender imposed as a result of a present or former connection between
Lender and the jurisdiction of the government or taxing authority imposing
such), whether or not having the force of law, does or will have the effect of
reducing Lender's rate of return on the Loan, then, from time to time, within
five (5) business days after written demand by Lender (which demand shall
include an itemized calculation of the additional amounts necessary to
compensate Lender for such reduction), Borrower shall pay Lender such additional
amount as will compensate Lender for its reduction. In addition, if any law,
regulation, rule or guideline hereafter is enacted or modified, whether or not
having the force of law, and compliance therewith results in an increase in the
cost to Lender (including, without limitation, a reduction in the income
received by Lender but excluding taxes on the overall net income or overall
gross receipts of Lender imposed as a result of a present or former connection
between Lender and the jurisdiction of the government or taxing authority
imposing such) in making, funding or maintaining interest on the Loan at the
rate herein provided, then, within five
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LOAN NUMBER: 41655
(5) business days after written demand by Lender, Borrower shall pay Lender the
additional amounts necessary to compensate Lender for such increased costs.
(g) Acceleration. Notwithstanding anything to the contrary contained
herein, if Borrower is prohibited by law from paying any amount due to Lender
under Section 2.02(e) or (f), Lender may elect to declare the unpaid principal
balance of the Loan, together with all unpaid interest accrued thereon and any
other amounts due hereunder, due and payable within ninety (90) days after
Lender's written notice to Borrower. No prepayment fee shall be due in such
event. Lender's delay or failure in accelerating the Loan upon the discovery or
occurrence of an event under Section 2.02(e) or (f), shall not be deemed a
waiver or estoppel against the exercise of such right.
2.03. Payment of Principal and Interest.
(a) Payment at Closing. If the Loan is funded on a date other than
the first (1st) day of a calendar month, Borrower shall pay to Lender at the
time of funding an interest payment calculated by multiplying (i) the number of
days from and including the date of funding to (but excluding) the first (1st)
day of the next calendar month by (ii) a daily rate based on the Applicable
Interest Rate effective on the Closing Date and calculated for a 360-day year.
(b) Payment Dates. Commencing on the first (1st) day of November
2003 and continuing on the first (1st) day of each and every successive month
thereafter (each, a "PAYMENT DUE DATE"), through and including the Payment Due
Date immediately prior to the Maturity Date, Borrower shall pay consecutive
monthly payments of interest only, at the Applicable Interest Rate (determined
as of the immediately preceding Interest Rate Adjustment Date), based on
principal advanced and outstanding during the prior calendar month; and
(c) Maturity Date. Subject to Section 2.02(d) below, on the first
(1st) day of October 2006 ("MATURITY DATE"), Borrower shall pay the entire
outstanding principal balance of the Loan, together with all accrued but unpaid
interest thereon and all other amounts due under this Loan Agreement, the Note
or any other Loan Document.
(d) Extension of Maturity Date.
(i) Extension Option. Borrower has the right to extend the Maturity
Date of the Loan for two (2) additional, consecutive, twelve-month terms (each
an "EXTENSION TERM"; the first additional term is referred to in this Loan
Agreement as the "FIRST EXTENSION TERM", and the second additional term is
referred to in this Loan Agreement as the "SECOND EXTENSION TERM"). The Maturity
Date, as extended for the First Extension Term, is sometimes referred to in this
Loan Agreement as the "FIRST EXTENDED MATURITY DATE", and, as extended for the
Second Extension Term, is referred to sometimes in this Loan Agreement as the
"SECOND EXTENDED MATURITY DATE". Upon Borrower's proper and timely exercise of
its rights under this Section 2.03(d), the term "MATURITY DATE" shall be deemed
to mean the First Extended Maturity Date and, as applicable, the Second Extended
Maturity Date.
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LOAN NUMBER: 41655
(ii) Conditions Precedent to Maturity Date Extension. Each of the
following conditions must be satisfied in a manner reasonably acceptable to
Lender (or waived in writing by Lender) as a condition precedent to extension of
the Maturity Date:
(A) Borrower delivers written notice to Lender not more than
ninety (90) days and not less than thirty (30) days prior to the
expiring Maturity Date advising that Borrower is exercising its
extension option, together with all materials needed by Lender to
confirm that the Property satisfies the performance criteria
identified in subsection (D) below.
(B) Intentionally omitted.
(C) No Event of Default exists as of the date Borrower
exercises such extension option and as of the commencement date of
the relevant Extension Term.
(D) Borrower demonstrates to Lender's satisfaction that the
Property achieved and maintained, prior to the commencement date of
the relevant Extension Term, the following performance criteria: (1)
for the First Extension Term, a Debt Service Coverage Constant Ratio
of at least 1.10:1.00 and (2) for the Second Extension Term, a Debt
Service Coverage Constant Ratio of at least 1.15:1.00.
(E) Commencing on the first day of the First Extension Term
and ending on the First Extended Maturity Date, the Margin shall be
equal to 3.54%, and commencing on the first day of the Second
Extension Term and ending on the Second Extended Maturity Date, the
Margin shall be equal to 3.69%. In no event shall the Applicable
Interest Rate during the First Extension Term be less than four and
sixty-six hundredths percent (4.66%) or the Applicable Interest Rate
during the Second Extension Term be less than four and eighty-one
hundredths percent (4.81%).
(F) Borrower obtains, and assigns to the benefit of Lender, a
Rate Cap which (1) will be effective for the Extension Term and
provide for payments whenever the LIBOR Rate exceeds a strike price
determined by Lender for the Extension Term such that a minimum Debt
Service Coverage Ratio of 1.30:1.00 is maintained, and (2) otherwise
satisfies all requirements of Section 2.07 of this Loan Agreement.
(G) Borrower executes and delivers to Lender an amendment to
the Loan Agreement, reasonably acceptable to Lender in all respects
which confirms the date to which the Maturity Date has been
extended, the principal and interest amounts payable during the
Extension Term and such other matters as Lender may reasonably
require.
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LOAN NUMBER: 41655
(H) Borrower reimburses Lender for all out-of-pocket costs
reasonably incurred by Lender in processing the extension request,
including, without limitation, reasonable legal fees and expenses.
2.04. Payments Generally.
(a) Delivery of Payments. All payments due to Lender under this Loan
Agreement and the other Loan Documents are to be paid to Lender at Lender's
office located at 200 Witmer Road, P.O. Box 809, Horsham, Pennsylvania 19044,
Attn: Servicing - Accounting Manager, or at such other place as Lender may
designate to Borrower in writing from time to time in immediately available
funds. All amounts due under this Loan Agreement and the other Loan Documents
shall be paid without setoff, counterclaim or any other deduction whatsoever.
(b) Credit for Payment Receipt. No payment due under this Loan
Agreement or any of the other Loan Documents shall be deemed paid to Lender
until received by Lender at its designated office on a business day prior to
2:00 p.m. Eastern Standard Time. Any payment received after the time established
by the preceding sentence shall be deemed to have been paid on the immediately
following business day. Each payment that is paid to Lender in the calendar
month in which it is due, but prior to its scheduled Payment Due Date, shall not
be deemed a prepayment and shall be deemed to have been received on the Payment
Due Date solely for the purpose of calculating interest due. Where a Payment Due
Date falls on a date other than a business day, the Payment Due Date shall be
deemed the first business day immediately thereafter.
(c) Invalidated Payments. If any payment received by Lender is
deemed by a court of competent jurisdiction to be a voidable preference or
fraudulent conveyance under any bankruptcy, insolvency or other debtor relief
law, and is required to be returned by Lender, then the obligation to make such
payment shall be reinstated, notwithstanding that the Note may have been marked
satisfied and returned to Borrower or otherwise canceled, and such payment shall
be immediately due and payable upon demand.
(d) Late Charges. If any payment due on a Payment Due Date is not
received by Lender on the Payment Due Date, Borrower shall pay to Lender,
immediately and without demand, a late fee equal to five percent (5%) of such
delinquent amount (provided, however, that Lender agrees to waive the late
charge provided in this subsection (d) if and only if (i) such payment is
received by Lender within five (5) days after the applicable Payment Due Date
and (ii) Borrower's failure to make the payment on the Payment Due Date occurs
no more than once in any calendar year during the term of the Loan).
(e) Default Interest Rate. If the Loan is not paid in full on or
before the Maturity Date (subject to any extension thereto properly exercised by
Borrower in accordance with this Loan Agreement) or if the Loan is accelerated
following an Event of Default and during the continuance thereof, the interest
rate payable on the Loan shall immediately increase to the Applicable Interest
Rate plus five hundred (500) basis points ("DEFAULT RATE") and continue to
accrue at the Default Rate until full payment is received. In addition, Lender
shall have the right, without acceleration of the Loan, to collect interest at
the Default Rate on any other payment not described in the first sentence of
this subsection (e) due hereunder (including, without limitation,
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LOAN NUMBER: 41655
late charges and fees for legal counsel) which is not received by Lender within
five (5) days of the date on which such payment originally was due. Interest at
the Default Rate also shall accrue on any judgment obtained by Lender in
connection with collection of the Loan or enforcement of any obligations due
under the other Loan Documents until such judgment amount is paid in full.
(f) Application of Payments. Payments of principal and interest due
from Borrower shall be applied first to the payment of late fees, then to Lender
advances made to protect the Property or to perform obligations which Borrower
failed to perform, then to the payment of accrued but unpaid interest, and then
to reduction of the outstanding principal. Following an Event of Default, Lender
may apply all payments to amounts then due in any manner and in any order
determined by Lender, in its sole discretion. No principal amount repaid may be
reborrowed.
2.05. Prepayment Rights.
(a) Lock-out Period. Borrower may not prepay the Loan in whole or in
part at any time until after the date which is 18 months following the Closing
Date ("LOCK-OUT PERIOD").
(b) Prepayment After Lock-Out Period. After the Lock-Out Period has
expired, Borrower may prepay principal in whole or in part, provided any such
partial prepayment is in the amount not less than $1,000,000.00, as long as each
of the following conditions are satisfied:
(i) Borrower provides written notice to Lender of its intent to
prepay not more than sixty (60) days and not less than thirty (30) days
prior to the intended prepayment date.
(ii) No Event of Default exists as of the date Borrower delivers
notice of intent to prepay and as of the date such prepayment is made.
(iii) Intentionally Omitted.
(iv) Borrower pays with such prepayment all accrued interest and all
other outstanding amounts then due and unpaid under this Loan Agreement
and the other Loan Documents.
(v) Intentionally Omitted.
(vi) If prepayment is not made on a Payment Due Date, Borrower pays
with such prepayment (in addition to all other amounts due under this
Section 2.05(b)) an amount equal to the unearned interest computed on the
principal amount being prepaid which would accrue for the period from the
date of prepayment through the forthcoming Payment Due Date.
(c) Prohibited Prepayment During Lock-Out Period. Except as
otherwise set forth in Section 2.05(d) below, if payment of all or any part of
the principal balance of the Loan is tendered by Borrower, a purchaser at
foreclosure, a Guarantor, or any other Person prior to the
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LOAN NUMBER: 41655
expiration of the Lock-Out Period, whether by reason of acceleration of the Loan
or otherwise (a "PROHIBITED PREPAYMENT"), such tender shall be deemed an attempt
to circumvent the prohibition against prepayment set forth in Section 2.05(a)
and, at Lender's option, shall be an Event of Default. If a Prohibited
Prepayment occurs and is accepted voluntarily or otherwise by Lender, then, in
addition to all other rights and remedies available to Lender upon an Event of
Default, a prepayment premium equal to three percent (3%) of the Loan Amount
("PROHIBITED PREPAYMENT FEE") shall be due to compensate Lender for damages
suffered as a result of the Prohibited Prepayment, such amount shall be due in
addition to the outstanding principal balance, all accrued and unpaid interest
and other outstanding amounts due under the Loan Documents.
(d) Prepayment as a Result of a Casualty or Condemnation.
Prepayments arising from Lender's application of insurance proceeds upon the
occurrence of a Casualty or the application of a condemnation award upon the
occurrence of a Condemnation may be made during the Lock-Out Period without
being deemed a Prohibited Prepayment and without payment of the Prohibited
Prepayment Fee.
(e) Notice Irrevocable. Notwithstanding any provision of this Loan
Agreement to the contrary, Borrower's notice of prepayment in accordance with
subsection (a) above shall be irrevocable, and the principal balance to be
prepaid shall be absolutely and unconditionally due and payable on or about the
date specified in such notice.
2.06. Right of First and Last Refusal. In consideration for Lender's
agreement to waive its customary exit fee, Borrower agrees to grant to Lender
the right of first and last refusal to refinance the Loan and further agrees in
the event of the sale of all or part of the Property, to introduce Lender to the
prospective purchaser of all or part of the Property. Borrower reserves the sole
and exclusive right to select the source(s) of all refinancing proposals. If
Lender does not agree, in writing, to refinance the Loan upon the same terms set
forth in any bona fide refinancing proposal received by Borrower (a "REFINANCING
PROPOSAL") within thirty (30) days after Borrower gives Lender written notice of
the terms of such Refinancing Proposal, Lender's rights under this Section shall
terminate, provided, however, that if the material economic terms set forth in
the Refinancing Proposal are modified in any material way adverse to Borrower
prior to the closing of the new loan, Borrower shall once again notify Lender of
same, and Lender shall have fifteen (15) days to notify Borrower of its intent
to match the revised Refinancing Proposal. If Lender does not so notify Borrower
within such fifteen (15) day period, Lender's rights under this Section shall
terminate.
2.07. Interest Rate Cap/Hedge.
(a) Initial Interest Rate Cap. On or before the date hereof,
Borrower shall obtain a Rate Cap for the benefit of Lender which provides for
payments to be made by the Rate Cap Provider if, at any time during the term of
the Loan, the LIBOR Rate exceeds the Strike Rate. Each Rate Cap required
hereunder must: (i) be issued by a Rate Cap Provider that satisfies the credit
criteria set forth below in Section 2.07(c); (ii) be fully effective as of the
Closing Date; (iii) permit Borrower's interest in the Rate Cap to be assigned to
Lender without the payment of fees or costs and without the Rate Cap Provider's
consent; (iv) contain no cross-defaults to any other agreements among any
Borrower, Rate Cap Provider and Lender, or any of
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LOAN NUMBER: 41655
their respective Affiliates; (v) contain no performance obligations of Borrower
or Lender beyond Borrower's payment of a one-time fee at the effective date of
the Rate Cap Agreement; (vi) be evidenced by a Rate Cap Agreement acceptable to
Lender in all respects and delivered to Lender at Closing, fully executed, along
with a legal opinion from Rate Cap Provider's counsel (which may be in-house
counsel) as to the authorization, execution and delivery by Rate Cap Provider
and enforceability in accordance with its terms; (vii) comply with criteria
issued by any of the Rating Agencies regarding interest rate cap agreements
including, without limitation, the requirement for additional legal opinions
from Rate Cap Provider's counsel; and (viii) otherwise be reasonably
satisfactory to Lender in all respects.
(b) Assignment to Lender as Property. The Rate Cap, each replacement
of a Rate Cap, and each Rate Cap that Borrower is required to provide in
connection with the extension of the Maturity Date, shall be assigned to Lender
as collateral. Borrower acknowledges that Borrower's assignment of the Rate Cap
to Lender shall not be deemed completed until such time as Borrower has
delivered to Lender a written acknowledgement from the Rate Cap Provider of
Borrower's assignment of the Rate Cap to Lender that is acceptable to Lender in
all respects. All payments made by the Rate Cap Provider shall be made directly
to the Lockbox Account. Failure by the Rate Cap Provider to make any payment
under the Rate Cap shall not relieve Borrower of any of its obligations to make
any payments hereunder or any other Loan Documents.
(c) Credit Rating of Can Provider; Replacement Upon Adverse Change
in Rating. The Rate Cap must be issued by a Rate Cap Provider having (i) a
long-term unsecured debt rating of at least "A+" from S & P; or (ii) a
short-term unsecured debt rating of at least "A-1" from S & P; or (iii) an
equivalent rating by a Rating Agency approved by Lender. If, at any time during
the term of the Loan, the Rate Cap Provider's credit rating falls below that
required in the previous sentence, Lender shall have the right to require that
Borrower, at Borrower's expense, provide a replacement Rate Cap from a different
Rate Cap Provider which satisfies the required credit rating. Each replacement
Rate Cap shall satisfy all requirements of this Section 2.07 and, unless
otherwise agreed by Lender, shall be substantially in the form of the Rate Cap
Agreement assigned to Lender as of the Closing Date. Each replacement Rate Cap
and all required documents must be delivered to Lender within ten (10) business
days of Lender's notification that a replacement Rate Cap is required.
(d) Borrower's Payment of Lender Review Expenses. Borrower shall pay
all reasonable, out-of-pocket expenses incurred by Lender in connection with
Lender's review and approval of the initial Rate Cap and Rate Cap Provider, each
Rate Cap due in connection with an extension of the Maturity Date, and each
replacement of a Rate Cap that is required under the terms of this Loan
Agreement, including, without limitation, reasonable out-of-pocket legal fees
and expenses.
ARTICLE 3
CASH MANAGEMENT
3.01. Lockbox. Borrower acknowledges that all Operating Income from
the Property is deposited into blocked bank accounts at local banks ("PROPERTY
BANKS") by
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LOAN NUMBER: 41655
Borrower no less than once weekly and if a property manager is subsequently
engaged, Borrower shall cause such Property Manager to do likewise. Borrower
shall direct all Property Banks to make deposits of all Operating Income (other
than petty cash not to exceed $1,000 per Collection Account (as such term is
defined in the Lockbox Agreement), and amounts necessary to satisfy the minimum
balance requirements of the Property Banks, if any) to the Lockbox Account
pursuant to the Lockbox Agreement in accordance with existing practices, but no
less than once weekly. Borrower acknowledges that it has sent Credit Card Issuer
Letters (as defined in the Lockbox Agreement) to all Credit Card Issuers (as
defined in the Lockbox Agreement). Prior to an Event of Default, Borrower shall
have access to the Lockbox Account in accordance with the terms and conditions
of the Lockbox Agreement. Borrower agrees and covenants not to (i) change the
identity of the Property Banks, or (ii) alter or modify the terms and conditions
governing the operation of the blocked accounts at the Property Banks in any
material respect without Lender's prior written consent, not to be unreasonably
withheld, conditioned or delayed.
ARTICLE 4
ESCROW AND RESERVE REQUIREMENTS
4.01. Creation and Maintenance of Escrows and Reserves.
(a) Control of Reserve Accounts. On the Closing Date, each of the
Reserve Accounts shall be established by Lender. Each Reserve Account required
under this Loan Agreement shall be a custodial account established by Lender,
and, at Lender's option, funds deposited into a Reserve Account may be
commingled with other money held by Lender. Each Reserve Account shall be under
the sole dominion and control of Lender, and Borrower shall not have any right
to withdraw funds from a Reserve Account. Unless required by the laws of the
state which govern this Loan Agreement or otherwise expressly provided in this
Loan Agreement, Borrower shall not be entitled to any earnings or interest on
funds deposited in the Tax Escrow Account and the Insurance Premium Escrow
Account. The Reserve Accounts, other than the Tax Escrow Account and the
Insurance Premium Escrow Account, shall be interest-bearing accounts, provided,
however, that interest paid or payable with respect to any Reserve Account held
by or on behalf of Lender may not be based on the highest rate of interest
payable by Lender on deposits and shall not be calculated based on any
particular external interest rate or interest rate index, nor shall any such
interest reflect the interest rate utilized by Lender to calculate interest
payable on deposits held with respect to any particular loan or borrower or
class of loans or borrowers, and Lender shall have no liability with respect to
the amount of interest paid and/or loss of principal. All interest earned on the
Reserve Accounts (other than the Tax Escrow Account and Insurance Premium Escrow
Account) by Lender shall be credited to such accounts. Subject to the provisions
of Section 4.07, upon the occurrence of an Event of Default, Lender may, in
addition to any and all other rights and remedies available to Lender, apply any
sums then present in any or all of the Reserve Accounts to the payment of the
Debt in any order as determined by Lender in its sole discretion; provided,
however, that Lender may not apply sums held in the Recourse Carveout Reserve
Account to the payment of Debt unless (and then only to the extent that)
Borrower has personal liability for the Loan pursuant to Section 12.02 of this
Loan Agreement or has personal liability for Lender's losses, costs and expenses
pursuant to Section 12.03 of this Loan Agreement. If and to the extent that, as
of the Maturity Date, Borrower has previously deposited into any of the Reserve
Accounts any sums that have
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(a) not been applied to the payment of the amounts with respect to which such
Reserve Accounts were created or to the payment of subsequent monthly deposits
required to be made into the applicable Reserve Accounts or (b) not repaid by
Lender to Borrower, then such amounts shall be applied to the then-outstanding
principal balance of the Loan, together with all accrued and unpaid interest and
other charges then payable thereon.
(b) Funds Dedicated to Particular Purpose. Funds held in a Reserve
Account are not to be used to fund Reserve Items contemplated by a different
Reserve Account, and Borrower may not use and Lender shall have no obligation to
apply funds from one Reserve Account to pay for Reserve Items contemplated by
another Reserve Account. For example, (i) funds held in the Capital Improvements
Escrow Account shall not be used to pay for Replacements and (ii) funds held in
the Replacement Reserve Account shall not be used to pay for Capital
Improvements.
(c) Release of Reserves Upon Payment of Debt. Upon payment in full
of the Loan, Lender shall disburse to Borrower all unapplied funds, including
any accrued and unpaid interest thereon, held by Lender in the Reserve Accounts
pursuant to this Loan Agreement.
(d) Release of Individual Reserve Account after Full Performance of
Reserve Items. Lender shall disburse to Borrower all unapplied funds remaining
in the Capital Improvements Escrow Account upon receipt of evidence reasonably
satisfactory to Lender that (i) Borrower has completed, in the manner required
by this Loan Agreement, all Reserve Items to be funded by such Reserve Account,
and (ii) no Liens (other than Liens granted in favor of Lender) exist against
the Property with respect to such Reserve Items. Lender shall not be obligated
to make any such disbursement when an Event of Default exists, and Lender may
deduct from any such disbursement all outstanding amounts then due and unpaid to
Lender under the Loan Documents.
(e) No Obligation of Lender. Nothing in this Loan Agreement shall:
(i) make Lender responsible for making or completing any Reserve Item; (ii)
require Lender to advance, disburse or expend funds in addition to funds then on
deposit in the related Reserve Account to make or complete any Reserve Item; or
(iii) obligate Lender to demand from Borrower additional sums to make or
complete any Reserve Item.
(f) No Waiver of Default. No disbursements made from a Reserve
Account at the time when a Borrower default or Event of Default has occurred and
is then continuing shall be deemed a waiver or cure by Lender of that default or
Event of Default, nor shall Lender's rights and remedies by prejudiced in any
manner thereby.
(g) Insufficient Amounts in a Reserve Account. Notwithstanding that
Lender has the right to require Borrower to pay any deficiency in a Reserve
Account if Lender determines that amounts in a Reserve Account are insufficient,
the insufficiency of funds in a Reserve Account, or Lender's application of
funds in a Reserve Account following an Event of Default other than for funding
of the Reserve Items, shall not relieve Borrower from its obligation to perform
in full each of its: (i) obligations and covenants under this Loan Agreement or
(ii) agreements or covenants as tenant under the Parking Leases.
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LOAN NUMBER: 41655
4.02. Tax Escrow.
(a) Deposits to the Tax Reserve. On the Closing Date, Borrower has
deposited such amount as is noted on the Closing Statement for Taxes to the Tax
Escrow Account which is the amount determined by Lender that is necessary to pay
when due Borrower's obligation for Taxes upon the due dates established by the
appropriate tax or assessing authorities during the next ensuing twelve (12)
months, taking into consideration the Monthly Tax Deposits to be collected from
the first Payment Due Date to the due date for payment of Taxes. Thereafter,
beginning on the first Payment Due Date and on each Payment Due Date thereafter,
Borrower shall deliver to Lender the Monthly Tax Deposit.
(b) Disbursement from Tax Escrow Account. Provided amounts in the
Tax Reserve Account are sufficient to pay the Taxes then due and no Event of
Default exists, Lender shall pay the Taxes as they become due on their
respective due dates on behalf of Borrower by applying the funds held in the Tax
Escrow Account to the payments of Taxes then due. In making any payment of
Taxes, Lender may do so according to any bill, statement or estimate obtained
from the appropriate public office with respect to Taxes without inquiry into
the accuracy of such bill, statement or estimate or into the validity of any
tax, assessment, sale, forfeiture, tax lien or title or claim thereof.
(c) Surplus or Deficiency in Tax Escrow Account. If amounts on
deposit in the Tax Escrow Account collected for an annual tax period exceed the
Taxes actually paid during such tax period, Lender shall return the excess to
Borrower or, in its discretion, credit the excess against the payments Borrower
is to make to the Tax Escrow Account for the next tax period. If amounts on
deposit in the Tax Escrow Account collected for an annual tax period are
insufficient to pay the Taxes actually due during such tax period, Lender shall
notify Borrower of the deficiency and, within ten (10) days after Borrower's
receipt of such notice, Borrower shall deliver to Lender such deficiency amount.
If, however, Borrower receives notice of any such deficiency on a date that is
within ten (10) days prior to the date that Taxes are due, Borrower will deposit
the deficiency amount within three (3) business days after its receipt of such
deficiency notice.
(d) Changes in Amount of Taxes Due; Changes in the Monthly Tax
Deposit. Borrower shall notify Lender immediately of any changes to the amounts,
schedules and instructions for payment of any Taxes of which it has or obtains
knowledge and authorizes Lender or its agent to obtain the bills for Taxes
directly from the appropriate taxing authority. If the amount due for Taxes
shall increase and Lender reasonably determines that amounts on deposit in the
Tax Escrow Account will not be sufficient to pay Taxes due for an annual tax
period, Lender shall notify Borrower of such determination and of the increase
needed to the Monthly Tax Deposit. Commencing with the first Payment Due Date
following such notice from Lender, Borrower shall make deposits at the increased
amount of the Monthly Tax Deposit.
4.03. Insurance Premium Escrow.
(a) Deposits to Insurance Premium Escrow Account. On the Closing
Date, Borrower has deposited such amount as is noted on the Closing Statement
for Insurance Premiums to the Insurance Premium Escrow Account which is the
amount determined by Lender
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LOAN NUMBER: 41655
that is necessary to pay when due Borrower's obligation for twenty-five percent
(25%) of the annual expected Insurance Premiums.
(b) Payments of Insurance Premiums. Borrower shall pay the Insurance
Premiums as they become due on their respective due dates and shall provide
Lender with proof of such payment promptly following such payment.
(c) Intentionally Omitted.
(d) Changes in Insurance Premium Amounts. Borrower shall notify
Lender immediately of any changes to the amounts, schedules and instructions for
payment of any Insurance Premiums of which it has or obtains knowledge and
authorizes Lender or its agent to obtain copies of the bills for the Insurance
Premiums directly from the insurance provider or its agent. If the amount due
for Insurance Premiums shall increase and Lender reasonably determines that
amounts on deposit in the Insurance Premium Escrow Account will not be
sufficient to pay for twenty-five percent (25%) of the annual expected Insurance
Premiums, Lender shall notify Borrower of such determination and of the increase
needed to the Insurance Premium Escrow Account. Promptly following such notice,
but in no event more than thirty (30) days following such notice, Borrower shall
make the required deposit. Following any failure of Borrower to provide evidence
of the required monthly payment (following notice and a five (5) day cure
period), or at any time following an Event of Default, Lender may require, in
its sole discretion, change to the procedures for the escrow and payment of
Insurance Premiums, to include monthly escrows for same. If Lender requires
monthly escrows, Borrower shall deposit such amount as is determined by Lender
that is necessary to pay when due Borrower's obligation for Insurance Premiums
during the next ensuing twelve (12) months, taking into consideration the
Monthly Insurance Deposits to be collected from the next succeeding Payment Due
Date to the due date for payment of such Insurance Premiums. Thereafter,
beginning on the next succeeding Payment Due Date and on each Payment Due Date
thereafter, Borrower shall deliver to Lender the Monthly Insurance Deposit.
4.04. Capital Improvements Escrow Account.
(a) Capital Improvements Escrow Generally. Amounts in the Capital
Improvements Escrow Account are to be used for the purpose of funding the
Capital Improvements, which Borrower covenants and agrees to perform in
accordance with the terms of this Loan Agreement not later than twelve (12)
months from the date hereof.
(b) Deposit to the Capital Improvements Escrow Account. On the
Closing Date, Borrower shall deposit $209,100 with Lender as the reserve for
completion of the Capital Improvements ("CAPITAL IMPROVEMENTS DEPOSIT").
(c) Disbursements from the Capital Improvements Escrow Account.
Lender shall make disbursements from the Capital Improvements Escrow Account
upon Borrower's performance, to Lender's satisfaction, of all conditions to
disbursement set forth in Article 5 of this Loan Agreement.
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LOAN NUMBER: 41655
(d) Reassessment of Required Deposit. If at any time Lender
reasonably determines that the Capital Improvements Deposit will not be
sufficient to pay the cost of the Capital Improvements, Lender may notify
Borrower of such determination and of the amount estimated by Lender to make-up
such deficiency. Within ten (10) days after receipt of such notice from Lender,
Borrower shall deliver the deficiency amount to Lender, and Lender shall deposit
in the Capital Improvements Escrow Account and hold and administer same in
accordance with this Loan Agreement.
4.05. Replacement Reserve Account.
(a) Replacement Reserve Generally. Amounts in the Replacement
Reserve Account are to be used for the purpose of funding the Replacements,
which Replacements Borrower covenants and agrees to perform in accordance with
the terms of this Loan Agreement, and within the time periods shown on Exhibit F
attached hereto.
(b) Deposits to the Replacement Reserve Account. On the Closing
Date, Borrower shall deposit $38,067 with Lender as an initial deposit to the
Replacement Reserve Account. Beginning on the first Payment Due Date and on each
Payment Due Date thereafter, Borrower shall pay $38,067 ("MONTHLY REPLACEMENT
RESERVE DEPOSIT") to Lender as a deposit to the Replacement Reserve Account.
Provided no Event of Default exists, the amounts on deposit in the
Replacement Reserve Account shall not exceed $150,000 (the "REPLACEMENT RESERVE
CAP"). Notwithstanding the foregoing, the Replacement Reserve Cap may be
increased not more than once annually upon mutual agreement of Borrower and
Lender. If Lender and Borrower are unable, after using good faith efforts, to
agree upon whether any increase in the Replacement Reserve Cap is necessary,
and, if so, the amount of any such increase, Lender may, but not more frequently
than once per year, engage an independent inspector at Borrower's expense to
inspect the Property and to determine whether an increase in the Replacement
Reserve Cap is necessary to fund replacements of the nature described in Section
4.05(d)(i) or (ii) below. In such event, the determination of the independent
inspector shall be final absent manifest error.
Borrower's Monthly Reserve Deposit shall be suspended at such time
as and only for so long as, the amounts on deposit in the Replacement Reserve
Account equals or exceeds the Replacement Reserve Cap. At such time as amounts
on deposit in the Replacement Reserve Account are less than the Replacement
Reserve Cap, Borrower's obligation to make the Monthly Replacement Reserve
Deposit shall be reinstated until such time as and only for so long as, the
amount on deposit in the Replacement Reserve Account equals the Replacement
Reserve Cap. Borrower may, at its option, provide a Letter of Credit which
complies with the terms and conditions of Section 6.08 of this Loan Agreement,
in the amount of the Replacement Reserve Cap, in fulfillment of its obligations
under this Section 4.05, provided that, upon disbursement of funds under such
Letter of Credit, Borrower provides Lender with a replacement Letter of Credit
in the amount of the Replacement Cap.
(c) Disbursements from the Replacement Reserve Account. Lender shall
make disbursements from the Replacement Reserve Account upon Borrower's
performance, to Lender's satisfaction, of all conditions to disbursement set
forth in Article 5 hereof.
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LOAN NUMBER: 41655
(d) Reassessment of Required Monthly Deposits. The amount of the
Monthly Replacement Reserve Deposit may be increased upon the mutual agreement
of Lender and Borrower if an increase is necessary (i) to fund replacements not
listed as part of the Replacements (and not intended to be covered by the
Capital Improvements Escrow Account) which are advisable to keep the Property in
good order, repair and marketable condition, or (ii) to fund the replacement of
any major building systems or components (e.g., roof, HVAC system) not listed as
part of the Replacements (and not intended to be covered by the Capital
Improvements Escrow Account) which will reach the end of its useful life within
two (2) years of the date of Lender's inspection. If Lender and Borrower are
unable, after using good faith efforts, to agree upon whether any increase in
the Monthly Replacement Reserve Deposit is necessary, and, if so, the amount of
any such increase, Lender may, but not more frequently than once per year,
engage an independent inspector at Borrower's expense to inspect the Property
and to determine whether an increase in the Monthly Replacement Reserve Deposit
is necessary to fund replacements of the nature described in clause (i) or
clause (ii) above. In such event, the determination of the independent inspector
shall be final absent manifest error. Promptly following such determination,
whether by mutual agreement or following the determination by the independent
inspector, but in no event more than thirty (30) days following such notice,
Borrower shall commence paying the increased Monthly Replacement Reserve
Deposit.
4.06. Recourse Carveout Reserve Account.
(a) Recourse Carveout Reserve Generally. Amounts in the Recourse
Carveout Reserve Account are to be used for the purpose of paying Borrower's
obligations pursuant to Article 12 of this Loan Agreement.
(b) Deposits to the Recourse Carveout Reserve Account. On the
Closing Date, Lender shall establish a Recourse Carveout Reserve Account.
Thereafter, all cash flow otherwise distributable to Borrower (after payment of
monthly Debt Service then due and payable, the Monthly Replacement Reserve
Deposit, Monthly Tax Deposit, any other deposit required under this Loan
Agreement, and normal and customary Operating Expenses) pursuant to the Lockbox
Agreement shall instead be added to the Recourse Carveout Reserve Account until
the balance of such Reserve Accounts equals $3,000,000.00. Notwithstanding the
foregoing, Borrower may fulfill its obligations under this Section 4.06 by
delivering to Lender a Letter of Credit, in the amount of $3,000,000.00, that
satisfies the terms and conditions of Section 6.08 of this Loan Agreement.
(c) Disbursements from the Recourse Carveout Reserve Account. Lender
shall disburse amounts in the Recourse Carveout Reserve Account to reimburse
Lender for any losses, claims, expenses or other liabilities incurred by Lender
pursuant to Section 12.02 or Section 12.03 of this Loan Agreement. If Borrower
elects to deposit cash into the Recourse Carveout Reserve Account, Borrower
shall, once the balance of such account reaches $3,000,000.00, and provided such
balance remains at $3,000,000.00, be entitled to any interest accrued on such
account, payable not less than quarterly.
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LOAN NUMBER: 41655
4.07. Deferred Purchase Payment Reserve Account.
(a) Deferred Purchase Payment Reserve Account Generally. On the
Closing Date, Borrower shall deposit $1,000,000.00 with Lender as a deposit to
the Deferred Purchase Payment Reserve Account. Notwithstanding the foregoing,
Borrower may fulfill its obligations under this Section 4.07 by delivering to
Lender a Letter of Credit in the amount of One Million and NO/100 Dollars
($1,000,000.00) which satisfies the terms and conditions of Section 6.08 of this
Loan Agreement.
(b) Disbursements from the Deferred Purchase Payment Reserve
Account. Borrower, on or before the Closing Date, entered into a certain Asset
Purchase Agreement (the "ASSET PURCHASE AGREEMENT") with Airport Satellite
Parking, LLC, a Delaware limited liability company, and certain of its wholly
owned subsidiaries (collectively "AVISTAR") for the purchase of certain assets
which constitute a portion of the Property. Pursuant to the Asset Purchase
Agreement, Borrower is obligated, under certain circumstances, to pay to Avistar
the sum of $1,000,000.00 on or before the first anniversary date of the Asset
Purchase Agreement. Subject to Section 4.07(c) below, Lender shall disburse the
funds in the Deferred Purchase Payment Reserve Account to the appropriate party
(i) upon receipt of a writing signed by both Borrower and Avistar, (ii)
following the decision of the Independent Accountant (as such term is defined in
the Asset Purchase Agreement), which decision is not appealed by any party to
the Asset Purchase Agreement within ninety (90) days thereafter, (iii) following
a final, nonappealable decision by a court of competent jurisdiction with
respect to such funds, or (iv) pursuant to a procedure (provided such procedure
has been agreed to by Avistar in the Asset Purchase Agreement), whereby Borrower
notifies Avistar that Avistar is not entitled to the additional purchase
consideration described in Section 3.2(d) of the Asset Purchase Agreement and
Avistar fails to object thereto in writing to Borrower and Lender (at the
address provided in Section 18.01 hereof) within thirty (30) days of such
notice. Notwithstanding the foregoing, if Lender shall at any time in its sole
discretion determine that a dispute exists with respect to the appropriate
recipient of the funds in the Deferred Purchase Payment Reserve Account, Lender
may deposit such funds with a court of competent jurisdiction for an appropriate
judicial determination thereof, at which time Lender shall have no further
liability to Borrower, Avistar or any other third party, express or implied with
respect to the funds in the Deferred Purchase Payment Reserve Account.
(c) Event of Default. If at any time prior to Lender's disbursement
from the Deferred Purchase Payment Reserve Account pursuant to subsection (b)
above (i) there shall occur an Event of Default or Borrower shall otherwise
incur liability to Lender under Article 12 of this Loan Agreement and (ii) the
amount held by Lender in the Recourse Carveout Reserve Account is less than
$3,000,000.00 (and further Borrower has not fulfilled its obligation under
Section 4.06 by delivering a Letter of Credit in the amount of $3,000,000.00),
then Lender shall be entitled to apply sums then present in the Deferred
Purchase Payment Reserve Account to the Recourse Carveout Reserve Account in
order to increase the balance of the Recourse Carveout Reserve Account to
$3,000,000.00.
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LOAN NUMBER: 41655
4.08. Leasehold Payment Reserve Account.
(a) Intentionally Omitted.
(b) Deposits into the Leasehold Payment Reserve Account. On the
Closing Date, Borrower shall deposit $568,000 with Lender for the Leasehold
Payment Reserve Account, which is the amount determined by Lender that is
necessary to pay when due Borrower's obligations under the Parking Leases for a
minimum of one (1) month.
(c) Payments of Leasehold Rents. Borrower shall pay all amounts due
under the Parking Leases on their respective due dates, and each month during
the term of the Loan shall promptly provide Lender with a certification which
provides reasonable proof of all such payments during the month.
(d) Deposit Reassessment. Lender may, from time to time, based on
Lender's review of the Parking Leases, reassess the amount determined by Lender
that is necessary to pay when due Borrower's obligations under the Parking
Leases for a minimum of one (1) month and may increase such amount on not less
than thirty (30) days written notice to Borrower if Lender determines that an
increase is necessary to maintain a proper reserve to pay all amounts likely to
arise with respect to the Parking Leases for a minimum of one (1) month.
Following any failure of Borrower to provide evidence of the required monthly
payment, or following an Event of Default, Lender may require, in its sole
discretion, changes to the procedures for the escrow and payment of amounts due
under the Parking Leases, to include monthly escrows for same.
ARTICLE 5
COMPLETION OF REPAIRS RELATED TO RESERVE ACCOUNTS;
CONDITIONS TO RELEASE OF FUNDS
5.01. Conditions Precedent to Disbursements from Certain Reserve
Accounts. The following provisions apply to each request for disbursement from
the Capital Improvements Escrow Account and the Replacement Reserve Account.
(a) Disbursement only for Completed Repairs. Disbursements shall be
limited to Reserve Items that are fully completed and paid for in full by
Borrower, except to the extent permitted under Section 5.01(b) of this
Loan Agreement. At no time shall Lender be obligated to pay amounts to
Borrower in excess of the current balance in the applicable Reserve
Account at the time of disbursement.
(b) Partial Completion. Lender may agree to disburse funds for
Reserve Items prior to completion thereof where (i) the contractor
performing such work requires periodic payments pursuant to the terms of
its written contract with Borrower and Lender has given its prior written
approval to such contract, and (ii) the cost of the portion of the Reserve
Item to be completed under such contract exceeds $10,000.
(c) Disbursement Request; Maximum Frequency and Amount. Borrower
shall submit to Lender a Disbursement Request together with such
additional information as Lender may reasonably request in connection with
the Disbursement Request, at least
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LOAN NUMBER: 41655
ten (10) business days prior to the date on which Borrower requests Lender
to make a disbursement from a Reserve Account. Unless otherwise agreed to
by Lender, Borrower may not submit, and Lender shall not be required to
respond to, more than one (1) Disbursement Request for each Reserve
Account during any calendar quarter. No Disbursement Request shall be made
for less than $10,000 or the total cost of the Reserve Items, if less.
(d) No Existing Event of Default. Lender may refuse to make any
disbursement if an Event of Default exists as of the date on which
Borrower submits the Disbursement Request or on the date the disbursement
is actually to be made.
(e) Responsible Officer Certificate. Lender must receive a
certificate, signed by a Responsible Officer of Borrower (and, at Lender's
option, also signed by Borrower's project architect or engineer if (i)
Borrower has engaged an architect or engineer or (ii) the disbursement
requested is for a work which is structural in nature), which certifies
that:
(i) All information stated in the Disbursement Request is true
and correct in all material respects, each attachment to the
Disbursement Request is correct and complete in all material
respects, and if the attachment is a copy of the original, it is a
true and an accurate reproduction of the original;
(ii) Each of the Reserve Items to be funded in connection with
the Disbursement Request was performed in a good and workmanlike
manner and in accordance with all Requirements of Law and has been
paid in full by Borrower;
(iii) Subject to Section 5.03, each party that supplied
materials, labor or services has been paid in full (for the portion
for which disbursement is sought in the case of disbursements
authorized in accordance with Section 5.01(b) hereof); and
(iv) In the case of disbursements authorized in accordance
with Section 5.01(b) hereof, the materials for which the request are
made are on-site at the Property and properly secured or have been
installed in the Property.
(f) Inspection to Confirm Completion. Prior to making any
disbursement Lender may require an inspection of the Property, performed
at Borrower's expense, to verify completion thereof.
(g) Absence of Liens. Lender may require that Borrower provide
Lender with any or all of the following: (i) a written lien waiver
acceptable to Lender from each party to be paid in connection with the
Disbursement Request; (ii) a search of title to the Property effective to
the date of the disbursement which shows no Liens other than the Permitted
Encumbrances; or (iii) an endorsement to the Title Insurance Policy which
updates the effective date of such policy to the date of the disbursement
and shows no Liens other than the Permitted Encumbrances.
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LOAN NUMBER: 41655
(h) Payment of Lender's Expenses. Borrower shall pay all reasonable
out-of-pocket expenses incurred by Lender in good faith in processing
Borrower's Disbursement Request, provided such costs are customary in the
industry, including, without limitation, any inspection costs (whether
performed by Lender or an independent inspector selected by Lender) and
reasonable legal fees and expenses.
(i) Other Items Lender Deems Necessary. Lender shall have received
such other evidence as Lender reasonably requests in connection with its
confirmation that each Reserve Item to be paid in connection with the
Disbursement Request has been completed or performed in accordance with
the terms of this Loan Agreement.
5.02. Waiver of Conditions to Disbursement. No waiver given by
Lender of any condition precedent to disbursement from a Reserve Account shall
preclude Lender from requiring that such condition be satisfied prior to making
any other disbursement from a Reserve Account.
5.03. Direct Payments to Suppliers and Contractors. Lender, at its
option, may make disbursements directly to the supplier or contractor to be paid
in connection with the Disbursement Request. Borrower's execution of this Loan
Agreement constitutes an irrevocable direction and authorization for Lender to
make requested payments directly to the supplier or contractor, notwithstanding
any contrary instructions from Borrower or notice from Borrower of a dispute
with such supplier or contractor. Each disbursement so made by Lender shall
satisfy Lender's obligation under this Loan Agreement.
5.04. Performance of Reserve Items.
(a) Performance of Reserve Items. Borrower agrees to commence each
Reserve Item by its required commencement date stated on the applicable Exhibit
to this Loan Agreement identifying such Reserve Item and to pursue completion
diligently of each Reserve Item on or before its completion date stated on such
Exhibit and, in the absence of a commencement date or completion date being
specified, when necessary in order to keep the Property in good order and
repair, in a good and marketable condition and as necessary to keep any portion
thereof from deteriorating. Borrower shall complete each Reserve Item in a good
and workmanlike manner, using only materials of the same or better quality than
that being replaced. All Reserve Items shall be performed in accordance with,
and upon completion shall comply with, all Requirements of Law (including
without limitation obtaining and maintaining in effect all necessary permits and
governmental approvals) and all applicable insurance requirements.
(b) Contracts. Lender shall have the right, at its option, not to be
unreasonably withheld, conditioned or delayed, to approve all contracts or work
orders with materialmen, mechanics, suppliers, subcontractors, contractors or
other parties providing labor or materials in connection with the Reserve Items
which require aggregate payments in excess of $50,000.
(c) Entry onto Property. In order to perform inspections or,
following an Event of Default, to complete Reserve Items which Borrower has
failed to perform, Borrower
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LOAN NUMBER: 41655
hereby grants Lender and its agents the right, from time to time, to enter onto
the Property upon prior notice to Borrower (notice to be given not less than (2)
business days prior to entry by Lender or its agents unless an Event of Default
or an emergency exists, as determined by Lender in good faith).
(d) Lender Remedy for Failure to Perform. In addition to Lender's
remedies following an Event of Default, Borrower acknowledges that Lender shall
have the right following an Event of Default (but not the obligation) to
complete or perform the Reserve Items for which amounts have been reserved under
this Loan Agreement and for such purpose, Borrower hereby appoints Lender its
attorney-in-fact with full power of substitution (and which shall be deemed to
be coupled with an interest and irrevocable until the Loan is paid in full and
the Security Instrument is discharged of record, with Borrower hereby ratifying
all that its said attorney shall do by virtue thereof): (i) to complete or
undertake such work in the name of Borrower; (ii) to proceed under existing
contracts or to terminate existing contracts (even where a termination penalty
may be incurred) and employ such contractors, subcontractors, watchman, agents,
architects and inspectors as Lender' determines necessary or desirable for
completion of such work; (iii) to make any additions, changes and corrections to
the scope of the work as Lender deems necessary or desirable for timely
completion; (iv) to pay, settle or compromise all existing bills and claims
which are or may become Liens against the Property or as may be necessary or
desirable for completion of such work; (v) to execute all applications and
certificates in the name of Borrower which may be required to obtain permits and
approvals for such work or completion of such work; (vi) to prosecute and defend
all actions or proceedings in connection with the repair or improvements to the
Property; and (vii) to do any and every act which Borrower might do in its own
behalf to fulfill the terms of Borrower's obligations under this Loan Agreement.
Amounts expended by Lender which exceed amounts held in the Reserve Accounts
shall be added to the Loan Amount, shall be immediately due and payable, and
shall bear interest at the Default Rate from the date of disbursement until paid
in full.
ARTICLE 6
LOAN SECURITY AND RELATED OBLIGATIONS
6.01. Security Instrument and Assignment of Rents and Leases.
Payment of the Loan and performance of the Obligations shall be secured, inter
alia, by the Security Instrument and the Assignment of Leases and Rents.
Borrower shall execute at closing the Security Instrument and the Assignment of
Leases and Rents and abide by its obligations thereunder.
6.02. Assignment of Property Management Contract. Borrower and any
Property Manager shall execute at closing the Assignment of the Property
Management Contract and Subordination of Management Fees and to abide by their
respective obligations thereunder.
6.03. Assignment of Rate Cap Agreement. Borrower shall execute and
deliver at closing the assignment and consent with respect to the Rate Cap as
contemplated by Section 2.07 of this Loan Agreement and abide by its obligations
thereunder.
6.04. Assignment of Operating Agreements. As security for payment of
the Loan and performance by Borrower of all Obligations, Borrower hereby
transfers, sets over and
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LOAN NUMBER: 41655
assigns to Lender, to the extent assignable, all of Borrower's right, title and
interest in and to the Operating Agreements to Lender for security purposes.
6.05. Pledge as Property; Grant of Security Interest. As security
for payment of the Loan and performance by Borrower of all Obligations, Borrower
hereby pledges, assigns, sets over and transfers to Lender, and grants to Lender
a continuing security interest in and to: (a) each of the Reserve Accounts and
each of the Collection Accounts, (b) all funds and monies from time to time
deposited or held in each of the Reserve Accounts and each of the Collection
Accounts, and (c) all interest accrued, if any, with respect to the Reserve
Accounts and each of the Collection Accounts; provided that Lender shall make
disbursements from each of the Reserve Accounts when, as and to the extent
required by this Loan Agreement. The parties agree that each of the Reserve
Accounts and each of the Collection Accounts is a "deposit account" within the
meaning of Article 9 of the UCC and that this Loan Agreement also constitutes a
"security agreement" within the meaning of Article 9 of the UCC. Borrower shall
not, without Lender's prior written consent, further pledge, assign, transfer or
grant any security interest in any of the Reserve Accounts or in any of the
Collection Accounts nor permit any Lien to attach thereto, except as may be
created in favor of Lender in connection with the Loan.
6.06. Environmental Indemnity Agreement. Borrower will be required
to execute at closing the Environmental Indemnity and to abide by its
obligations thereunder.
6.07. Guaranty of Borrower Sponsors. Each Guarantor will be required
to execute at closing the Guaranty of Exceptions to Nonrecourse Liability and to
abide by its obligations thereunder.
6.08. Letter of Credit. In lieu of making deposits into the
Replacement Reserve Account and/or the Recourse Carveout Reserve Account and/or
the Deferred Purchase Payment Reserve Account, Borrower may, as security for
performance of Borrower's obligations under Section 4.04 and Article 5 of this
Loan Agreement, Borrower's obligations under Section 4.06 and Article 12, or
Borrower's obligations under Section 4.07 and the Asset Purchase Agreement,
respectively, deliver to Lender on the Closing Date an irrevocable letter of
credit (payable on sight draft) in the amounts specified in Sections 4.04(b),
4.06(b) and 4.07(a), respectively, (each, a "LETTER OF CREDIT"), naming Lender
as the sole beneficiary thereof. The Letter of Credit shall: (a) be perpetual or
for a term of one year with automatic renewals unless Lender receives written
notice of non-renewal from the issuing financial institution sixty (60) days
prior to the expiration of the then current Letter of Credit; (b) be issued by a
domestic financial institution that is not an Affiliate of Borrower and that has
a long-term senior debt rating by S&P of not less than "AA" or such other credit
rating as is acceptable to Lender; (c) permit full or partial draws without
condition or charge to the beneficiary of the Letter of Credit; (d) be freely
transferable by the beneficiary of the Letter of Credit (and each successor as
beneficiary) without restriction or charge and (e) otherwise be acceptable to
Lender in all respects. If Borrower elects, in lieu of making deposits to the
Replacement Reserve Account and/or the Recourse Carveout Reserve Account and/or
the Deferred Purchase Payment Reserve Account, to deliver to Lender a Letter of
Credit, Borrower shall cause the Letter of Credit to remain valid and effective
at all times while Borrower's obligations under Section 4.04 or 4.06 or 4.07, as
the case may be, remain to be completed plus an additional thirty (30) days
unless and to the extent the Letter of Credit is drawn upon by Lender and paid
in the amount of such draw. The Letter of Credit shall be
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LOAN NUMBER: 41655
effective and delivered as of the Closing Date. Subject to Section 4.06(c) above
and 4.07 above, Lender shall have the right to draw in full or in part upon the
Letter of Credit, without notice to Borrower: (i) upon the occurrence of an
Event of Default; (ii) to satisfy Borrower's obligations under Section 4.04 or
4.06 or 4.07, as the case may be; (iii) if Lender has not received, at least
thirty (30) days prior to the date on which the then outstanding Letter of
Credit is scheduled to expire, a renewal or replacement Letter of Credit that
satisfies all requirements of this Section 6.08 and Borrower has not deposited
into the Replacement Reserve Account and/or the Recourse Carveout Reserve
Account and/or the Deferred Purchase Payment Reserve Account the amounts that
Borrower is obligated to deposit pursuant to Section 4.04 and/or Section 4.06 or
4.07; (iv) if, upon a transfer of the Loan by Lender (within the meaning of
Article 15 hereof) to another party ("TRANSFEREE"), Lender or its Transferee has
not been delivered, for any reason, either an endorsement to any Letter of
Credit by the issuing financial institution evidencing Transferee as the new
beneficiary thereunder or a substitute Letter of Credit naming Transferee as
beneficiary thereunder and Borrower has not deposited into the Replacement
Reserve Account and/or the Recourse Carveout Reserve Account and/or the Deferred
Purchase Payment Reserve Account the amounts that Borrower is obligated to
deposit pursuant to Section 4.04 and/or Section 4.06 or 4.07; (v) if Borrower
fails to cooperate in any manner deemed appropriate or advisable by Lender in
order for Lender to obtain an endorsement or substitute Letter of Credit and
Borrower has not deposited into the Replacement Reserve Account and/or the
Recourse Carveout Reserve Account and/or the Deferred Purchase Payment Reserve
Account the amounts that Borrower is obligated to deposit pursuant to Section
4.04 and/or Section 4.06 or 4.07; (vi) if Borrower fails to pay any transfer fee
due in connection with transferring the Letter of Credit to the Transferee and
Borrower has not deposited into the Replacement Reserve Account and/or the
Recourse Carveout Reserve Account and/or the Deferred Purchase Payment Reserve
Account the amounts that Borrower is obligated to deposit pursuant to Section
4.04 and/or Section 4.06 or 4.07; or (vii) if Lender has not received within ten
(10) business days of the earlier of (A) Lender's notice to Borrower that the
financial institution issuing the Letter of Credit ceases to meet the rating
requirement set forth in this Section 6.08, or (B) Borrower finding out that the
financial institution issuing the Letter of Credit ceases to meet the rating
requirement set forth in this Section 6.08, a replacement Letter of Credit that
satisfies all requirements of this Section 6.08 and Borrower has not deposited
into the Replacement Reserve Account and/or the Recourse Carveout Reserve
Account and/or the Deferred Purchase Payment Reserve Account the amounts that
Borrower is obligated to deposit pursuant to Section 4.04 and/or Section 4.06 or
4.07. Lender shall be entitled to charge Borrower a reasonable processing fee
for administering and reviewing any renewal, replacement or release of the
Letter of Credit which Borrower is required to provide pursuant to this Loan
Agreement unless Borrower deposits into the Replacement Reserve Account and/or
the Recourse Carveout Reserve Account and/or the Deferred Purchase Payment
Reserve Account, as the case may be, the amounts the Borrower is obligated to
have on deposit in such Reserve Account.
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LOAN NUMBER: 41655
ARTICLE 7
SINGLE PURPOSE ENTITY REQUIREMENTS
7.01. Commitment to be a Single Purpose Entity. Borrower represents,
warrants and covenants to Lender as follows:
(a) Borrower is, and will continue to be, a Single Purpose Entity at
all times until the Loan has been paid in full. Borrower has at all times
since its formation been in material compliance with the Borrower criteria
set forth in Section 7.02(a) hereof.
(b) SPE Equity Owner has been, is, and will continue to be a Single
Purpose Entity at all times until the Loan has been paid in full.
(c) As of the Closing Date, the Organizational Chart attached to
this Loan Agreement as Exhibit D is true, complete and correct.
(d) All of the factual assumptions made in the substantive
nonconsolidation legal opinion delivered by Borrower's counsel to Lender,
of even date herewith, are true and correct in all material respects.
(e) The "single purpose entity" provisions included in the
organizational documents of Borrower and SPE Equity Owner shall not,
without Lender's prior written consent, be amended, rescinded or otherwise
revoked until the Loan has been paid in full.
(f) Prior to the withdrawal or the disassociation of the SPE Equity
Owner from PCA Texas, PCA Texas shall immediately appoint a new managing
member whose articles of incorporation or articles of organization are
substantially similar to those of the original SPE Equity Owner and, if an
opinion letter pertaining to substantive nonconsolidation was required at
closing, deliver a new substantive nonconsolidation opinion letter with
respect to the new SPE Equity Owner and its equity owners which is
acceptable in all respects to Lender and, if a Securitization has
occurred, to the Rating Agencies. (The requirements of this subsection
shall not be construed to permit a Transfer in violation of Article 10.)
7.02. Definition of Single Purpose Entity.
(a) Borrower Criteria. With respect to Borrower, a "SINGLE PURPOSE
ENTITY" means a corporation, limited partnership or limited liability company
which, at all times since its formation and thereafter:
(i) has not engaged and shall not engage in any business or activity
other than with respect to Borrower, the ownership, operation and
maintenance of the Property, and activities incidental thereto;
(ii) has not acquired or owned and shall not acquire or own any
assets other than with respect to Borrower, the Property and such
incidental Personal Property as may be necessary for the operation of the
Property. Borrower may not acquire additional property (whether through
purchase or lease of additional land) without the prior written
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LOAN NUMBER: 41655
consent of Lender, which consent may be conditioned upon receipt of a
Rating Confirmation;
(iii) if such entity is (A) a limited liability company (other than
a single member limited liability company which satisfies the requirements
of clause (iv), which single member limited liability company is governed
instead by Section 7.02(c) below), has had and shall have at least one
member that satisfies the requirements of Section 7.02(b) below (unless
such member is a single member limited liability company which satisfies
the requirements of clause (iv) below), and (B) a limited partnership, has
had and shall have a general partner that satisfies the requirements of
Section 7.02(b) below (unless such general partner is a single member
limited liability company which satisfies the requirements of clause (iv)
below);
(iv) if such entity is a single member limited liability company,
such entity shall be formed and organized under Delaware law and otherwise
comply with all other Rating Agency criteria for single member limited
liability companies (including, without limitation, the inclusion of a
"springing member" and delivery of Delaware single member liability
company opinions acceptable in all respects to Lender and to the Rating
Agencies and Independent Director or equivalent;
(v) if such entity is a corporation, has had and shall have at least
one (1) Independent Director on its board of directors; provided, however,
if this Loan becomes part of a Securitization and any Rating Agency
requires at least two (2) Independent Directors, Borrower shall appoint,
or cause the appointment of, a second Independent Director;
(vi) has preserved and shall preserve its existence as an entity
duly organized, validly existing and in good standing (if applicable)
under the laws of the jurisdiction of its formation or organization;
(vii) has not merged or consolidated and shall not merge or
consolidate with any other Person;
(viii) has not taken, and shall not take, any action to dissolve,
wind-up, terminate or liquidate in whole or in part; to sell, transfer or
otherwise dispose of all or substantially all of its assets; to change its
legal structure, transfer, or permit the direct or indirect transfer of,
any partnership, membership or other equity interests, as applicable,
other than Permitted Transfers; or seek to accomplish any of the
foregoing;
(ix) shall not, without the unanimous written consent of all
Borrower's members and the written consent of 100% of the members of the
board of directors of the SPE Equity Owner or board of managers in the
case of a single member limited liability company, including without
limitation the Independent Director(s): (A) file or consent to the filing
of any petition, either voluntary or involuntary, to take advantage of any
applicable insolvency, bankruptcy, liquidation or reorganization statute;
(B) seek or consent to the appointment of a receiver, liquidator or any
similar official; or (C) make an assignment for the benefit of creditors;
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LOAN NUMBER: 41655
(x) shall not amend or restate its organizational documents if such
change would adversely impact the requirements set forth in this Section
7.02;
(xi) shall not own any subsidiary or make any investment in any
other Person;
(xii) shall not commingle its assets with the assets of any other
Person;
(xiii) shall not incur any debt, secured or unsecured, direct or
contingent (including, without limitation, guaranteeing any obligation),
other than (A) the Loan and (B) customary unsecured trade payable incurred
in the ordinary course of owning and operating the Property, or capital
leases or installment financing contracts for shuttle buses, provided the
same do not exceed, in the aggregate, at any time a maximum amount of four
percent (4%) of the outstanding principal balance of the Loan, and are
paid within ninety (90) days of the date incurred (other than the capital
leases or installment financing contracts which shall be paid in
accordance with their terms);
(xiv) shall maintain its records, books of account, financial
statements, accounting records and other entity documents separate and
apart from those of any other Person and maintain its bank accounts
separate and apart from those of any other Person who is not a Borrower.
Each Borrower agrees, if requested by Lender, to establish separate bank
accounts for all operating and collection accounts, all such accounts to
be in accordance with the terms and conditions of the Lockbox Agreement;
(xv) shall only enter into any contract or agreement with any
general partner, member, shareholder, principal or Affiliate of Borrower
or Guarantor, or any general partner, member, principal or Affiliate
thereof, upon terms and conditions that are intrinsically fair and
substantially similar to those that would be available on an arms-length
basis with third parties;
(xvi) shall not maintain its assets in such a manner that it will be
costly or difficult to segregate, ascertain or identify its individual
assets from those of any other Person;
(xvii) shall not assume or guaranty the debts of any other Person,
hold itself out to be responsible for the debts of another Person, or
otherwise pledge its assets for the benefit of any other Person or hold
out its credit as being available to satisfy the obligations of any other
Person, other than the liability which each of the three Borrowers
hereunder, jointly and severally, have with respect to the Loan;
(xviii) shall not make any loans or advances to any other Person;
(xix) shall file its own tax returns as required under federal and
state law;
(xx) shall hold itself out to the public as a legal entity separate
and distinct from any other Person, shall conduct its business solely in
its own name or as otherwise permitted under the Trademark Agreement, and
shall correct any known misunderstanding regarding its separate identity;
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LOAN NUMBER: 41655
(xxi) shall maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and in
light of its contemplated business operations;
(xxii) shall allocate shared expenses (including, without
limitation, shared office space) and to use separate stationery, invoices
and checks;
(xxiii) shall pay (or cause the Property Manager, if any, to pay on
behalf of Borrower from Borrower's funds) its own liabilities (including,
without limitation, salaries of its own employees) from its own funds; and
(xxiv) shall not acquire obligations or securities of its partners,
members or shareholders, as applicable.
(b) SPE Equity Owner Criteria. With respect to SPE Equity Owner, a
"SINGLE PURPOSE ENTITY" means an entity which, at all times since its formation
and thereafter: (i) has had as its sole asset its interest in PCA Airports, Ltd.
(and incidental assets relating thereto); (ii) complies in its own right with
each of the requirements contained in Section 7.02(a)(iv) - (xxiv) except that
with respect to 7.02(a)(xi), the SPE Equity Owner shall not own any subsidiary
or make any investment in any other Person other than its general partnership
interest in PCA Airports, Ltd., and with respect to 7.02(a)(xiii), the SPE
Equity Owner shall not incur any debt, secured or unsecured, direct or
contingent (including, without limitation, guaranteeing any obligation) other
than customary unsecured trade payables incurred on the ordinary course of
business relating to the ownership of its equity interest in PCA Airports, Ltd.
provided the same do not exceed, in the aggregate, at any time, a maximum amount
of $10,000 and are paid within sixty (60) days of the date incurred; (iii) shall
not engage in any business or activity other than owning an interest in PCA
Airports, Ltd.; and (iv) shall not acquire or own any assets other than its
partnership, membership, or other equity interest in PCA Airports, Ltd.
(c) Equity Owner Criteria. So long as SPE Equity Owner, Parking
Company of America Airports, LLC and Parking Company of America Airports
Phoenix, LLC shall each remain single member limited liability companies formed
and organized under Delaware law and otherwise comply with all other Rating
Agency criteria for single member limited liability companies (including,
without limitation, the inclusion of a "springing member" and delivery of
Delaware single member liability company opinions acceptable in all respects to
Lender and to the Rating Agencies and Independent Director or equivalent, Equity
Owner, their respective single member, need not comply with the provisions of
Sections 7.02(a) or (b).
ARTICLE 8
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender that, as of the Closing
Date:
8.01. Organization; Legal Status. Borrower (a) is duly organized,
validly existing and in good standing under the laws of its state of formation;
(b) is duly qualified to transact business and is in good standing in each state
where the Property is located; and (c)
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LOAN NUMBER: 41655
other than as set forth on Schedule 8.01 attached hereto, has all necessary
approvals, governmental and otherwise, and full power and authority to own,
operate and lease the Property and otherwise carry on its business as now
conducted and proposed to be conducted. Borrower's correct legal name is set
forth on the first page of this Loan Agreement. Borrower is a "registered
organization" within the meaning of the UCC and Borrower's organization
identification number issued by its state of organization is correctly stated on
the signature page to this Loan Agreement.
8.02. Power; Authorization; Enforceable Obligations. Borrower has
full power, authority and legal right to execute, deliver and perform its
obligations under the Loan Documents. Borrower has taken all necessary action to
authorize the borrowing of the Loan on the terms and conditions of this Loan
Agreement and the other Loan Documents, and Borrower has taken all necessary
action to authorize the execution and delivery of its performance under the Loan
Documents. The officer or representative of Borrower signing the Loan Documents
has been duly authorized and empowered to do so. The Loan Documents constitute
legal, valid and binding obligations of Borrower, enforceable against Borrower
in accordance with their terms.
8.03. No Legal Conflicts. The borrowing of the Loan and Borrower's
execution, delivery and performance of its obligations under the Loan Documents
will not: (a) violate, conflict with, result in a material default (following
notice and/or expiration of the related grace/cure period without cure or both,
as applicable) under any agreement or other instrument to which Borrower is a
party or by which the Property may be bound or affected, or any Requirements of
Law (including, without limitation, usury laws); (b) result in the creation or
imposition of any Lien whatsoever upon any of its assets, except the Liens
created by the Loan Documents; or (c) require any authorization or consent from,
or any filing with, any Governmental Authority (except for the recordation of
the Security Instrument in the appropriate land records in each state where the
Property is located and UCC filings relating to the security interest created
hereby and by the Security Instrument which are necessary to perfect Lender's
security interest in the Property).
8.04. No Litigation. Except as set forth on Schedule 8.04 attached
hereto, no action, suit or proceeding, or investigation, judicial,
administrative or otherwise (including, without limitation, any reorganization,
bankruptcy, insolvency or similar proceeding) currently is pending or, to the
best of Borrower's knowledge, threatened or contemplated against or affecting
Borrower, SPE Equity Owner, Equity Owner, any Guarantor or the Property that has
not been disclosed by Borrower in writing to Lender and which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
8.05. Business Purpose of Loan. Borrower will use the proceeds of
the Loan solely for the purpose of carrying on a business or commercial
enterprise and not for personal, family or household purposes.
8.06. Warranty of Title. Borrower has good, marketable and insurable
fee simple or leasehold title of record to the Property, as applicable, free and
clear of all Liens whatsoever except for the Permitted Encumbrances. The
Security Instrument and Assignment of Leases and Rents, when properly recorded
in the appropriate recording office, together with the
27
LOAN NUMBER: 41655
UCC financing statements required to be filed in connection therewith, will
create (a) a valid, first priority, perfected lien on the Property subject only
to Permitted Encumbrances; and (b) perfected security interests in and to, and
perfected assignments as collateral of, all Personal Property (including,
without limitation, the Leases), all in accordance with the terms thereof, in
each case subject only to any Permitted Encumbrances. None of the Permitted
Encumbrances, individually or in the aggregate: (a) materially interferes with
the benefits of the security intended to be provided by the Security Instrument,
(b) materially and adversely affects the value of the Property, or (c)
materially and adversely impair the use and operations of the Property. Borrower
owns or has rights in all collateral given as security for the Loan, free and
clear of any and all Liens except for Permitted Encumbrances and the Liens
created in favor of Lender in connection with the Loan. Borrower shall forever
warrant, defend and preserve the title and the validity and priority of the
Liens created in favor of Lender in connection with the Loan and shall forever
warrant and defend the same to Lender against the claims of all persons except
the holders of Permitted Encumbrances.
8.07. Condition of the Property. The Improvements are fit for the
purpose for which they are used, are structurally sound, in good repair and free
of material defects in materials and workmanship. All major building systems
located within the Improvements (including, without limitation, the heating and
air conditioning systems, the electrical systems, plumbing systems, and all
liquid and solid waste disposal, septic and sewer systems), if any, are in good
working order and condition and in compliance with all Requirements of Law. The
Property is free from damage caused by fire or other casualty.
8.08. No Condemnation. Except as set forth on Schedule 8.08 attached
hereto, no Condemnation proceeding has been commenced or, to the best of
Borrower's knowledge, is contemplated with respect to all or any portion of the
Property or for the relocation of roadways providing access to the Property.
8.09. Requirements of Law. Except as set forth on Schedule 8.09
attached hereto, the Property and its present and contemplated use and occupancy
are in compliance in all material respects with all Requirements of Law.
8.10. Operating Permits. Except as set forth on Schedule 8.10
attached hereto, Borrower has obtained all licenses, permits, registrations,
certificates and other approvals, governmental and otherwise (including, without
limitation, zoning, building code, land use and environmental), necessary for
the use, occupancy and operation of the Property and the conduct of its business
thereat, all of which are in full force and effect as of the date hereof. No
event or condition currently exists which could result in the revocation,
suspension, or forfeiture thereof.
8.11. Separate Tax Lot. Except as set forth on Schedule 8.11
attached hereto, the Property is assessed for real estate tax purposes as one or
more wholly independent tax lot or lots, separate from any adjoining land or
improvements not constituting a part of the Property.
8.12. Flood Zone. Except as otherwise disclosed on the surveys of
the Property provided to Lender in connection with the Loan, no portion of the
Improvements is located in an area identified by the Federal Emergency
Management Agency or any successor thereto, as an area having special flood
hazards.
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LOAN NUMBER: 41655
8.13. Adequate Utilities. The Property is adequately served by all
utilities required for the current or contemplated use thereof. All water and
sewer systems are provided to the Property by public utilities, and the Property
has accepted or is equipped to accept such utility services.
8.14. Public Access. All public roads and streets necessary for
access to the Property for the current or contemplated use thereof have been
completed, are serviceable and all-weather, and are physically and legally open
for use by the public.
8.15. Boundaries. Except as set forth on Schedule 8.15 attached
hereto, all of the Improvements lie wholly within the boundaries and building
restriction lines of the Property, and no easements or other encumbrances
affecting the Property (including, without limitation, the Permitted
Encumbrances) encroach upon any of the Improvements. No improvements on adjacent
properties encroach upon the Property.
8.16. Mechanic Liens. No mechanics', materialmen's or similar liens
or claims have been, or may be, filed for work, labor or materials affecting the
Property which are or may be Liens prior, equal or subordinate to the Security
Instrument.
8.17. Assessments. No unpaid assessments for public improvements or
assessments otherwise affecting the Property currently exist or, to the best of
Borrower's knowledge, are pending, nor are improvements contemplated to the
Property that may result in any such assessments.
8.18. Insurance. Borrower has obtained and delivered to Lender all
insurance policies Lender has required pursuant to Section 9.03 of this Loan
Agreement, reflecting the insurance coverages, amounts and other requirements
set forth in this Loan Agreement. No claims have been made under any of such
insurance policies, and no party, including Borrower, has done, by act or
omission, anything which would impair the coverage of any of such insurance
policies.
8.19. Leases. With respect to the Leases: (a) except as disclosed on
Schedule 8.19(a), the Property is not subject to any Leases; (b) Borrower has
delivered to Lender complete and accurate copies of all Leases and no verbal or
written agreements exist which terminate, modify or supplement the Leases,
except as otherwise disclosed to Lender in writing and acknowledged by Lender;
(c) Borrower is the sole owner of the entire lessor's interest in the Leases and
has not assigned, pledged or otherwise transferred the Rents reserved in the
Leases (except to Lender); (d) except as disclosed on Schedule 8.19(d), all of
the Leases are bona fide, arms-length agreements with tenants unrelated to
Borrower; (e) none of the Rents have been collected for more than one (1) month
in advance (and for such purpose, a security deposit shall not be deemed rent
collected in advance); (f) all security deposits, if any, have been collected
and are being held by Borrower in the full amount; (g) all work to be performed
by Borrower, if any, under each Lease has been performed as required and has
been accepted unconditionally by the applicable tenant; (h) no offsets or
defenses exist in favor of any tenant under any Lease to the payment of any
portion of the Rents and Borrower has no monetary obligation to any tenant under
any Lease; (i) Borrower has not received notice from any tenant under any Lease
challenging the validity or enforceability of the applicable Lease; (j) all
payments due from
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LOAN NUMBER: 41655
tenants under the Leases are current; (k) no tenant under any Lease is in
default thereunder, or is a debtor in any bankruptcy, reorganization, insolvency
or similar proceeding, or has demonstrated a history of payment problems which
suggest financial difficulty; (l) no Lease contains an option to purchase, right
of first refusal to purchase, or any other similar provision; and (m) no
brokerage commissions, finders fees or similar payment obligations are due and
unpaid by Borrower or any Affiliate of Borrower regarding any Lease.
8.20. Management Agreement. No change in the employment agreements
with the Key Management Personnel has occurred since the date of the most recent
information submitted to Lender with respect thereto, other than any change that
has been disclosed in writing to Lender.
8.21. Financial Condition. Borrower currently is solvent and has
received reasonably equivalent value for its granting of the Liens in favor of
Lender in connection with the Loan. No change has occurred in the financial
condition of Borrower, SPE Equity Owner, Equity Owner, Guarantor, or any of
their respective constituent equity owners, general partners or managing
members, which would have a Material Adverse Effect since the date of the most
recent financial statements submitted to Lender with respect to each such party,
other than has been disclosed in writing to Lender.
8.22. Taxes. Borrower, SPE Equity Owner and Equity Owner have filed
all federal, state, county, municipal, and city income tax returns required to
have been filed by them and have paid all taxes and related liabilities which
have become due pursuant to such returns or pursuant to any assessments received
by them. Borrower does not know of any basis for any additional assessment in
respect of any such taxes and related liabilities for prior years.
8.23. No Foreign Person. Borrower is not a "foreign person" within
the meaning of Section 1445(f)(3) of the Tax Code.
8.24. Federal Regulations. Borrower is not engaged nor will it
engage, principally, or as one of its important activities, in the business of
extending credit for the purpose of "purchasing" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms under
Regulation U or Regulation G.
8.25. Investment Company Act; Other Regulations. Borrower is not an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940 and the regulations issued
thereunder, each as amended. Borrower is not subject to regulations under any
federal or state statute or regulation which limits its ability to incur
indebtedness.
8.26. ERISA. (a) Borrower is not and will not be an "employee
benefit plan," as defined in Section 3(3) of ERISA, subject to Title I of ERISA,
(b) none of the assets of Borrower constitute or will constitute "plan assets"
of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101,
(c) Borrower is not and will not be a "governmental plan" within the meaning of
Section 3(3) of ERISA, and (d) transactions by or with Borrower are not and will
not be subject to state statutes regulating investment of, and fiduciary
obligations with respect to, governmental plans.
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LOAN NUMBER: 41655
8.27. No Illegal Activity as Source of Funds. No portion of the
Property has been or will be purchased, improved, equipped or furnished with
proceeds of any illegal activity.
8.28. Compliance with Anti-Terrorism, Embargo, Sanctions and
Anti-Money Laundering Laws. Borrower, SPE Equity Owner, Equity Owner, each
Guarantor, and to the best of Borrower's knowledge, after having made diligent
inquiry (a) each Person owning a direct or indirect interest in Borrower, SPE
Equity Owner, Equity Owner, each Guarantor, and (b) any tenant whose rent
exceeds 20% of the total revenue generated by relevant Parking Lot Operation:
(i) is not currently identified on OFAC List, and (ii) is not a Person with whom
a citizen of the United States is prohibited to engage in transactions by any
trade embargo, economic sanction, or other prohibition of United States law,
regulation, or Executive Order of the President of the United States. As of the
Closing Date, Borrower has implemented procedures, and will consistently apply
those procedures throughout the term of the Loan, to ensure the foregoing
representations and warranties remain true and correct during the term of the
Loan.
8.29. Brokers and Financial Advisors. Borrower has not dealt with
any financial advisor, broker, underwriter, placement agent or finder in
connection with the transaction contemplated by this Loan Agreement who may be
owed a commission or other compensation which Borrower will not have paid in
full as of the Closing Date, including but not limited to, a fee to Macquarie
Securities (USA), Inc. for financial advisory services rendered in connection
with the contemplated transaction. To the extent any fee due under this Section
8.29 is not paid at Closing, Borrower shall deposit a like sum with Lender at
Closing to be held in escrow pending the payment of such obligation.
8.30. Complete Disclosure; No Change in Facts or Circumstances.
Borrower has disclosed to Lender all material facts and has not failed to
disclose any material fact that could cause any representation or warranty made
herein to be materially inaccurate, incomplete or misleading. All information
provided or supplied in connection with the application for Loan, or in
satisfaction of the terms thereof, remains true, complete and correct in all
material respects, and no adverse change in any condition or fact has occurred
that would make any of such information materially inaccurate, incomplete or
misleading.
8.31. Survival. The representations and warranties contained in this
Article 8 survive for so long as the Loan remains payable and any Obligation
remains to be performed.
8.32. Memorandum of Lease. Except as set forth on Schedule 8.32
attached hereto, a memorandum of ground lease or its equivalent has been duly
recorded for each Parking Lease. Each Parking Lease contains the entire
agreement of the landlord thereunder (the "PARKING LEASE LESSOR") and the
Borrower pertaining to Borrower's interest under the respective Parking Lease.
Except as described on Schedule 8.32 attached hereto, since the date on which
each such memorandum was recorded, the applicable Parking Lease has not been
amended or modified so as to render the memorandum thereof inaccurate in any
material respect.
8.33. No Senior Liens. Except for the Permitted Encumbrances,
Borrower's interest in each Parking Lease is not subject to any liens or
encumbrances superior to, or of equal priority with, the Security Instrument,
other than the fee interest of the Parking Lease Lessor thereunder and any fee
mortgage liens thereon.
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LOAN NUMBER: 41655
8.34. Parking Lease Assignable. Borrower's interest in each Parking
Lease is assignable to Lender as collateral security for the Loan without the
consent of the Parking Lease Lessor thereunder (or if any such consent is
required, it has been obtained prior to the Closing Date).
8.35. Parking Lease Default. Except as disclosed on Schedule 8.35
attached hereto, as of the Closing Date, each Parking Lease is in full force and
effect and to the best of Borrower's knowledge no default has occurred under any
Parking Lease and there is no existing condition which, but for the passage of
time or the giving of notice or both, would result in a default under the terms
of any Parking Lease.
8.36. Parking Lease Notice. Except as disclosed in Schedule 8.36
attached hereto, each Parking Lease (as amended by any landlord estoppel
executed in favor of Lender) requires the Parking Lease Lessor thereunder to
give notice of any default by Borrower thereunder to Lender.
8.37. Parking Lease Cure. Except as disclosed in Schedule 8.37
attached hereto, Lender is permitted a reasonable opportunity (which cure period
is detailed on such Schedule) to cure any default under such Parking Lease (as
amended by any landlord estoppel executed in favor of Lender), which is curable
after the receipt of notice of such default before the Parking Lease Lessor may
terminate the applicable Parking Lease.
8.38. Parking Lease Term. The Parking Leases have a current term,
and extension options, as shown on Schedule 8.38 attached hereto. There are no
restrictions to Borrower's exercise of any renewal or extension options under
any Parking Lease except as set forth on Schedule 8.38 attached hereto.
8.39. New Parking Lease. Except as disclosed in Schedule 8.39
attached hereto, each Parking Lease (as amended by any landlord estoppel
executed in favor of Lender) requires the Parking Lease Lessor to enter into a
new lease with Lender upon termination of the Parking Lease for any reason,
including, without limitation, rejection of the Parking Lease in a bankruptcy
proceeding.
8.40. Parking Lease Insurance Proceeds. Except as disclosed in
Schedule 8.40 attached hereto, under the terms of each Parking Lease (as amended
by any landlord estoppel executed in favor of Lender) and the Security
Instrument, taken together, any insurance proceeds will be applied either to the
repair or restoration of the affected Individual Property with Lender having the
right to hold and disburse the proceeds as the repair or restoration progresses,
or, to the extent not so used, to the payment of the outstanding principal
balance of the Loan together with any accrued interest thereon.
8.41. Parking Lease Subleasing. Except as disclosed in Schedule 8.41
attached hereto, no Parking Lease (as amended by any landlord estoppel executed
in favor of Lender) imposes any restrictions on subletting, other than that
subleases be subject to the terms, covenants and conditions of the Parking
Lease, that all subleases be at not less than market rents, and that any such
sublease requires the consent of the Parking Lease Lessor, not to be
unreasonably withheld, conditioned or delayed.
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LOAN NUMBER: 41655
8.42. Trademark Agreement. No change in the Trademark Agreement has
occurred since the date of the most recent information submitted to Lender with
respect thereto, other than has been disclosed in writing to Lender. The
Trademark Agreement is in full force and effect, and to the best of Borrower's
knowledge, there is no default, breach or violation existing thereunder by any
party thereto and no event has occurred that, with the passage of time or the
giving of notice, or both, would constitute a default, breach or violation by
any party thereunder. Neither the execution and delivery of the Loan Documents,
Borrower's performance thereunder, nor the exercise of any remedies by Lender,
will adversely affect Borrower's rights under the Trademark Agreement.
ARTICLE 9
BORROWER COVENANTS
9.01. Payment of Debt and Performance of Obligations. Borrower shall
fully and punctually pay the Loan and perform the Obligations when and as
required by the Loan Documents. Borrower may not prepay the Loan except in
strict accordance with this Loan Agreement.
9.02. Payment of Taxes and Other Lienable Charges.
(a) Payment Obligation. Except to the extent sums sufficient to pay
Taxes or Other Charges have been deposited with Lender in accordance with this
Loan Agreement, Borrower shall promptly and fully pay by their due date all
Taxes and Other Charges now or hereafter assessed or charged against the
Property as they become due and payable. Subject to Section 9.02(b) below,
Borrower shall promptly cause to be paid and discharged any Lien which may be or
become a Lien against the Property (including, without limitation, mechanic's or
materialman's liens). Except to the extent sums sufficient to pay Taxes or Other
Charges have been deposited with Lender in accordance with this Loan Agreement,
Borrower shall furnish to Lender, upon request, evidence reasonably satisfactory
to Lender that all Taxes and Other Charges have been paid and are not
delinquent. Provided (i) the Tax Escrow Account has sufficient funds to pay
Taxes and Other Charges, and (ii) no Event of Default has occurred and is then
continuing, Lender shall pay such Taxes and Other Charges on Borrower's behalf
from funds in the Tax Escrow Account.
(b) Right to Contest. After prior written notice to Lender,
Borrower, at its own expense, may contest by appropriate legal proceedings,
promptly initiated and conducted in good faith with due diligence, the amount or
validity or application in whole or in part of any of the Taxes or Other
Charges, provided that: (i) no Event of Default exists; (ii) such proceedings
suspend the collection of such Taxes or Other Charges and the Property will not
be in danger of being sold for such unpaid Taxes or Other Charges, or Borrower
has paid all of such Taxes or Other Charges under protest; (iii) such proceeding
is permitted under and is conducted in accordance with the provisions of any
other instrument to which Borrower or the Property is subject and does not
constitute a default thereunder; (iv) if Borrower has not paid the disputed
amounts in full under protest, Borrower shall deposit with Lender cash (or other
security as may be approved, in writing, by Lender) in an amount which Lender
deems (together with all funds then existing in the Tax Escrow Account)
sufficient to insure the payment of any such Taxes or Other
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LOAN NUMBER: 41655
Charges together with interest and penalties thereon, if any, provided that
after a Securitization, one hundred twenty-five percent (125%) of the contested
amount (plus anticipated penalty and interest) shall be deposited with Lender
(after crediting all amounts then existing in the Tax Escrow Account which are
not otherwise reserved for other known Taxes or Other Charges due or to become
due); (v) Borrower furnishes to Lender all other items reasonably requested by
Lender; and (vi) upon a final determination thereof, Borrower, subject to the
provisions of the following sentence, promptly pays the amount of any such Taxes
or Other Charges, together with all costs, interest and penalties which may be
payable in connection therewith. Lender shall pay over any security held by
Lender pursuant to this Section to the claimant entitled thereto at any time
when, in Lender's reasonable judgment, the entitlement of such claimant is
established, and, to the extent the security posted by Borrower with Lender is
insufficient to pay the full amount due (including, without limitation, any
penalties or interest thereon), Borrower shall be liable for the deficiency. If
Lender pays the deficiency (which Lender shall not be obligated to do), the
amount paid by Lender shall be added to principal, shall bear interest at the
Default Rate until paid in full and payment of such amounts shall be secured by
the Security Instrument and other collateral given to secure the Loan.
9.03. Insurance.
(a) Insurance Required During the Loan Term. Borrower, at Borrower's
expense, shall obtain and maintain during the term of the Loan such insurance
coverage (including, without limitation, type, minimum coverage amount, maximum
deductible and acceptable exclusions) for Borrower and the Property as Lender
deems reasonably necessary considering, among other things, the location and
occupancy of the Property and all uses of the Property. Lender reserves the
right to periodically review the insurance coverage Lender has required (types,
minimum coverage amounts and maximum deductibles) and to increase or otherwise
change the required coverage should Lender deem an increase or change to be
reasonably necessary under then existing circumstances. Without limiting
Lender's rights hereunder in any respect, it shall be deemed reasonable for
Lender to require no less coverage than the coverage in place on the Closing
Date. Subject to the foregoing, Lender shall require the following insurance
coverage to be effective during the term of the Loan, coverage amounts and
deductibles to be acceptable to Lender:
(i) Property Insurance. Casualty insurance must be maintained for
the Improvements and all Personal Property insuring against any peril now
or hereafter included within the classification "all risks of physical
loss" and in an amount at all times equal to the full replacement cost (as
reasonably determined and adjusted from time to time by Lender) of the
Improvements and Personal Property (without taking into account any
depreciation and exclusive of excavations, footings and foundations,
landscaping and paving), without any exclusions for windstorms. In all
cases where (A) the outstanding principal balance on the Note exceeds $5
million, or (B) any part of the Improvements constitutes a legal
non-conforming use under the Requirements of Law, such insurance must
include "Ordinance of Law Coverage," with "Time Element," "Loss to the
Undamaged Portion of the Building," "Demolition Cost" and "Increased Cost
of Construction" endorsements in the amount of coverage requested by
Lender. The policy must name Lender as an insured mortgagee under a
standard mortgagee clause. The deductible shall not exceed $10,000.00 for
each Individual Property.
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LOAN NUMBER: 41655
(ii) Insurance against Acts of Terrorism. The insurance coverage
provided under Section 9.03(a) in effect as of the Closing Date and during
the Loan Term must also insure against loss or damage resulting from acts
of terrorism or comparable coverage acceptable to Lender in its
discretion. The deductible shall not exceed $10,000.00 for each Individual
Property.
(iii) Boiler and Machinery Insurance. Broad form boiler and
machinery insurance (without exclusion for explosion) and systems
breakdown coverage must be maintained, covering all steam boilers, pipes,
turbines, engines or other pressure vessels, electrical machinery, HVAC
equipment, refrigeration equipment and other similar mechanical equipment
located in, on or about the Property in such amount per accident equal to
the full replacement cost thereof (as reasonably determined and adjusted
from time to time by Lender) and also providing coverage against loss of
occupancy or use arising from any breakdown thereof. The policy must name
Lender as an insured under a standard joint loss clause and provide that
all proceeds are to be paid to Lender.
(iv) Flood Insurance. Flood insurance must be maintained if any
portion of the Improvements is located in an area identified by the
Federal Emergency Management Agency or any successor thereto as a 100-year
flood zone or special hazard area. The required coverage amount shall be
equal to the full replacement cost of the Improvements and Personal
Property (without taking into account any depreciation and exclusive of
excavations, footings and foundations, landscaping and paving). Such
coverage may need to be purchased through excess carriers if the required
coverage exceeds the maximum insurance available for the Property under
the then-current guidelines published by the Federal Emergency Management
Agency or any successor thereto. The policy must name Lender as an insured
mortgagee under a standard mortgagee clause.
(v) Business Interruption. Business interruption insurance must be
maintained in an amount sufficient to provide the lost Operating Income
for the Property for a period of not less than one (1) year from the date
of Casualty, with a six (6) month extended period of indemnity (but a
minimum of eighteen (18) months with a six (6) month extended period of
indemnity at all times during which the outstanding principal balance of
the Note is greater that $25 million and a minimum of eighteen (18) months
with a twelve (12) month extended period of indemnity at all times during
which the outstanding principal balance of the Note is greater than $50
million). The policy must name Lender as a loss payee and provide that all
proceeds are to be paid to Lender.
(vi) Liability Insurance. Commercial general liability insurance
coverage must be maintained, covering bodily injury or death and property
damage, including all legal liability to the extent insurable and all
court costs, legal fees and expenses, arising out of, or connected with,
the possession, use, leasing, operation, maintenance or condition of the
Property in such amounts generally required by institutional lenders for
properties comparable to the Property but in no event for a combined
single limit of less than $2 million and $1 million per occurrence. The
required coverage must provide for claims to be made on an occurrence
basis. The policy must name Lender as an additional insured. The insurance
coverage required under this subsection (vi) may be satisfied by a
layering of Commercial General Liability, Umbrella and Excess Liability
Policies, but in
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LOAN NUMBER: 41655
no event will the Commercial General Liability policy be written for an
amount less than $1,000,000 per occurrences and $2,000,000 aggregate for
bodily injury and property damage liability. Lender may require umbrella
coverage which will be evaluated on a case by case basis, but in no event
less than $25,000,000.
(vii) Workers' Compensation Insurance. Workers' compensation
insurance must be maintained with respect to all employees employed at the
Property, in compliance with the laws of the state in which the Property
is located.
(viii) Earthquake Insurance. If the Property is located in a high
earthquake hazard area, earthquake insurance must be maintained in an
amount equal to the full replacement value of the Property and for loss of
revenues and be in form, amount and with deductibles satisfactory to
Lender but in no event greater than 10% of the Allocated Loan Amount.
(ix) Garage Keeper's Insurance. Garage keeper's insurance in form
and substance acceptable to Lender must be maintained in the amount of
$2,500,000 for each Individual Property and must name Lender as an insured
mortgagee under a standard mortgage clause.
(x) Automobile Insurance. Comprehensive automobile liability
insurance must be maintained for all owned and non-owned vehicles used in
connection with the operation, maintenance, or management of the Property
and in an amount of not less than $1,000,000 per occurrence.
(xi) Other Coverage. Without limiting Lender's rights under this
Section 9.03(a), Lender may also require Borrower to maintain builder's
risk insurance during any period of construction, renovation or alteration
of the Improvements, "dram shop" or similar coverage if alcoholic
beverages are sold at the Property, fidelity bond coverage for employees
handling Rents and other income from the Property, environmental
insurance, sinkhole coverage and other insurance with respect to the
Property or on any replacements or substitutions thereof or additions
thereto against other insurable hazards or casualties which at the time
are commonly insured against in the case of property similarly situated,
due regard being given to the height and type of buildings, their
construction, location, use and occupancy.
(b) Qualified Insurers; Lender's Consent. All insurance must be
issued under valid and enforceable policies of insurance acceptable to Lender
and issued by one or more domestic primary insurers authorized to issue
insurance in the state in which the Property is located. Each insurer must have
a minimum investment grade rating of "A" or better (but a minimum of "AA" at all
times during which the outstanding principal balance of the Note is $25,000,000
or more unless Borrower obtains an acceptable "cut through" endorsement from a
properly rated reinsurer) from S&P, or equivalent ratings from one or more
comparable credit rating agencies acceptable to Lender. Lender's approval of
insurance coverage at any time is not a representation or warranty concerning
the sufficiency of any coverage or the solvency of any insurer, and Lender shall
not be responsible for, nor incur any liability for, the insolvency of the
insurer or other failure of the insurer to perform.
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LOAN NUMBER: 41655
(c) Policy Requirements. All policies must be for a term of not less
than a year and name Lender as a beneficiary of such coverage as provided in
this Section 9.03 or otherwise identified by Lender. Each policy must also
contain: (i) an endorsement or provision that permits recovery by Lender
notwithstanding the negligent or willful acts or omission of Borrower; (ii) a
waiver of subrogation endorsement as to Lender to the extent available at
commercially reasonable rates; (iii) a provision that prohibits cancellation or
termination before the expiration date, denial of coverage upon renewal, or
material modification without at least thirty (30) days prior written notice to
Lender in each instance; and (iv) effective waivers by the insurer of all claims
for Insurance Premiums against Lender. If the required insurance coverage is to
be provided under a blanket policy covering the Property and other properties
and assets not part of the Property, such blanket policy must specify the
portion of the total coverage that is allocated to the Property and any sublimit
in such blanket policy which is applicable to the Property and shall otherwise
comply in all respects with the requirements of this Section 9.03.
(d) Evidence of Insurance. Borrower must deliver to Lender either
(i) the original of each insurance policy required hereunder or (ii) a copy of
such policy certified by the insurance agent to be a true, correct and complete
copy of the original. Insurance binders or certificates will not be accepted.
Evidence of the required coverage for the first year of the Loan (as well as
satisfactory proof of payment) must be delivered to Lender on or before the
Closing Date and thereafter not less than thirty (30) days prior to the
expiration date of each policy.
(e) Lender's Right to Obtain Insurance for Borrower. If Borrower
fails to deliver to Lender the evidence of insurance coverage required by this
Loan Agreement and does not cure such deficiency within ten (10) days after
Lender's notice of nondelivery, an Event of Default shall be deemed to have
occurred (without further cure period or notice) and Lender may procure such
insurance at Borrower's expense, without prejudice to Lender's rights upon an
Event of Default. All amounts advanced by Lender to procure the required
insurance shall be added to principal, secured by the Security Instrument and
bear interest at the Default Rate. Lender shall not be responsible for, nor
incur any liability for the insolvency of the insurer or other failure of the
insurer to perform, even though Lender has caused the insurance to be placed
with the insurer after Borrower's failure to furnish such insurance.
(f) Additional Insurance. Borrower shall not obtain insurance for
the Property in addition to that required by Lender without Lender's prior
written consent, which consent will not be unreasonably withheld provided that
(i) Lender is named insured on such insurance, (ii) Lender receives evidence of
such insurance as required by subsection (d) above, and (iii) such insurance
will not breach any requirements set forth in this Loan Agreement.
9.04. Obligations upon Condemnation or Casualty. If the Property, or
any portion thereof, shall be damaged or destroyed by a Casualty or become
subject to any Condemnation, the following shall apply:
(a) Generally. Borrower shall promptly notify Lender, in writing, of
any actual or threatened Condemnation or of any Casualty that damages or
renders unusable the Property or any part thereof and, except as otherwise
provided below, shall promptly and diligently pursue Borrower's claim for
a Condemnation award or insurance proceeds, as applicable. Borrower shall
not make any agreement in lieu of Condemnation or accept
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LOAN NUMBER: 41655
any Condemnation award without Lender's prior written consent (which
Lender agrees not to unreasonably withhold or delay). Borrower shall not
accept any settlement of insurance proceeds with respect to a Casualty
without Lender's prior written consent (which Lender agrees not to
unreasonably withhold or delay). If requested by Lender, Borrower agrees
to provide copies to Lender of all notices or filings made or received by
Borrower in connection with the Casualty or Condemnation or with respect
to collection of the insurance proceeds or Condemnation award, as
applicable. Notwithstanding that a Casualty or Condemnation has occurred,
or that rights to a Condemnation award or insurance proceeds are pending,
Borrower shall continue to pay the Loan at the time and in the manner
provided in this Loan Agreement.
(b) Lender Right to Pursue Claim. If the amount of any claim arising
with respect to Casualty or Condemnation exceeds $250,000, Lender may
elect, at Lender's option, either: (i) to settle and adjust any claim
arising with respect to the Casualty or Condemnation without Borrower's
consent, or (ii) to allow Borrower to settle and adjust such claim;
provided that, in either case, the insurance proceeds or Condemnation
award, as applicable, is paid directly to Lender. Borrower hereby appoints
Lender its attorney-in-fact with full power of substitution (and which
shall be deemed to be coupled with an interest and irrevocable until the
Loan is paid and the Security Instrument is discharged of record, with
Borrower hereby ratifying all that its said attorney shall do by virtue
thereof) to endorse any agreements, instruments or drafts received in
connection with a Casualty or Condemnation. If any portion of the
insurance proceeds or Condemnation award, as applicable, should be paid
directly to Borrower, Borrower shall be deemed to hold such amounts in
trust for Lender and shall promptly remit such amounts to Lender. If the
Property is sold, through foreclosure or otherwise, prior to the receipt
of the Condemnation award, Lender shall have the right, whether or not a
deficiency judgment on the Note shall have been sought, recovered or
denied, to receive the proceeds of such sale in an amount sufficient to
pay the Loan in full. All expenses reasonably incurred by Lender in the
settlement and collection of amounts paid with respect to a Casualty or
Condemnation (including, without limitation, reasonable legal fees and
expenses) shall be deducted and reimbursed to Lender from the insurance
proceeds or Condemnation award, as applicable, prior to any other
application thereof. The insurance proceeds or Condemnation award paid or
payable on account of a Casualty or Condemnation, as applicable (including
all business interruption insurance proceeds paid as a result of such
Casualty or Condemnation), less expenses to be reimbursed to Lender
hereunder, is referred to herein as the "RESTORATION PROCEEDS."
(c) Application of Restoration Proceeds; Restoration Obligations.
Except as specifically hereafter provided in subsection (d) below, Lender
may, in its sole discretion, either (i) apply the Restoration Proceeds to
payment of the Loan, whether or not then due and payable, or (ii) hold and
release the Restoration Proceeds to Borrower (A) for the costs of
Restoration undertaken by Borrower in accordance with this Loan Agreement
and (B) to cover any shortfall in Operating Income as a result of such
Casualty or Condemnation that is necessary to pay in full the debt service
payments due from Borrower on each Payment Due Date and other Operating
Expenses falling due during the period until Restoration is completed;
provided, however, that Lender shall have no
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LOAN NUMBER: 41655
obligation to release Restoration Proceeds to fund amounts contemplated by
clause (B) unless (1) Lender is satisfied that Restoration Proceeds are
sufficient to pay in full the estimated cost to complete Restoration and
(2) all Operating Expenses to be funded with Restoration Proceeds are
approved by Lender. If Lender applies Restoration Proceeds to payment of
the Loan and the Loan is still outstanding, interest will continue to
accrue and be due on the unpaid principal at the Applicable Interest Rate.
If Lender makes the Restoration Proceeds available to Borrower for
Restoration, Borrower shall diligently pursue Restoration so as to restore
the Property to at least equal value and substantially the same character
as existed immediately prior to such Casualty or Condemnation. Provided
the cost of Restoration exceeds $250,000, all plans and specifications for
the Restoration and all contractors, subcontractors and materialmen to be
engaged in the Restoration, as well as the contracts under which they have
been engaged, shall be subject to Lender's prior review and approval,
which Lender agrees not to unreasonably withhold or delay. Lender may
engage, at Borrower's expense, an independent engineer or inspector to
assist Lender in its review of the approvals requested of Lender in
connection with the Restoration and to periodically inspect the
Restoration in progress and upon substantial completion.
(d) Condition to Release of Restoration Proceeds for Restoration.
Lender agrees to make the Restoration Proceeds available to Borrower for
Restoration as long as:
(i) The Restoration Proceeds recovered are less than the
outstanding principal balance of the Loan.
(ii) No Event of Default exists.
(iii) Borrower demonstrates to Lender's satisfaction that the
Restoration Proceeds are sufficient to pay in full the estimated
cost to complete Restoration and any shortfalls in Operating Income
as a result of such Casualty or Condemnation that are anticipated
until Restoration is substantially completed, or, if the Restoration
Proceeds are determined by Lender to be insufficient to pay such
costs in full, Borrower deposits with Lender, in cash or by a cash
equivalent acceptable to Lender, the additional amount estimated by
Lender to be necessary to pay the full cost of Restoration
("RESTORATION DEFICIENCY DEPOSIT").
(iv) Intentionally Omitted.
(v) Restoration can be completed not later than the earlier of
(A) twelve (12) months from the date the Casualty or Condemnation
occurred, (B) the earliest date by which completion is required
under the Requirements of Law to preserve the right to rebuild the
Improvements as they existed prior to the Casualty or Condemnation,
(C) the expiration of Borrower's business interruption insurance, or
(D) six (6) months prior to the Maturity Date (without taking into
consideration any unexercised extension).
(vi) If a Condemnation has occurred, (A) less than 10% of the
Land is taken and the land taken is along the perimeter or periphery
of the Land, and (B)
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LOAN NUMBER: 41655
no portion of any structural Improvements are taken which would have
a Material Adverse Effect.
(vii) If a Casualty has occurred, (A) less than 10% of the
paved parking area of the Individual Property is damaged or rendered
unusable by the Casualty, and (B) no portion of any structural
Improvements are damaged or rendered unusable which would have a
Material Adverse Effect.
(viii) Intentionally Omitted.
(ix) The Property and its use after completion of Restoration
will be in compliance in all material respects with, and permitted
under, all Requirements of Law.
(e) Disbursement Procedure; Holdback. If the Restoration Proceeds
will be made available by Lender to Borrower for Restoration and the
estimated cost of Restoration approved by Lender (together with all other
amounts then held by Borrower pursuant to this subsection (e)) is less
than $250,000, Lender shall disburse the entire amount of the Restoration
Proceeds to Borrower, and Borrower hereby covenants and agrees to use the
Restoration Proceeds solely for Restoration performed in accordance with
this Loan Agreement. If, however, the estimated cost of Restoration
approved by Lender (together with all other amounts then held by Borrower
pursuant to this subsection (e)) is more than $250,000, Lender may retain
the Restoration Proceeds in an interest bearing escrow account and make
periodic disbursements to Borrower as follows:
(i) Disbursements for Restoration.
(A) Lender will disburse Restoration Proceeds for the costs of
Restoration to, or as directed by, Borrower from time to time during
the course of the Restoration, upon receipt of evidence reasonably
satisfactory to Lender that (1) all materials installed and work and
labor performed in connection with the Restoration have been paid in
full (except to the extent that they are to be paid out of the
requested disbursement), and (2) there exist no notices of pendency,
stop orders, mechanic's or materialman's liens or notices of
intention to file same, or any other Liens of any nature whatsoever
on the Property arising out of the Restoration which have not either
been fully bonded and discharged of record or, in the alternative,
fully insured to Lender's reasonable satisfaction by the title
company insuring the Lien of the Security Instrument.
(B) Lender may limit disbursements to not more than one (1)
per month.
(C) Lender may hold-back from each requested disbursement an
amount equal to the greater of (1) ten percent (10%) of the
requested disbursement or (2) the amount which Borrower is permitted
to withhold under its contract with the contractor or supplier to be
paid with the
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LOAN NUMBER: 41655
proceeds of such disbursement (either "RESTORATION HOLDBACK").
Amounts held as the Restoration Holdback shall be disbursed once:
(1) Lender receives satisfactory evidence that Restoration has been
fully completed in accordance with all Requirements of Law; (2)
Lender receives satisfactory evidence that all Restoration costs
have been paid in full or will be fully paid from the remaining
Restoration Proceeds and the Restoration Holdback; and (3) Lender
receives, at Lender's option, a search of title to the Property,
effective as of the date on which the Restoration Holdback is to be
disbursed, showing no Liens other than the Permitted Encumbrances or
an endorsement to its Title Insurance Policy which updates the
effective date of such policy to the date on which the Restoration
Holdback is to be disbursed and which shows no Liens since the date
of recordation of the Security Instrument (other than the Permitted
Encumbrances).
(D) Notwithstanding subsection (C) above, Lender may release
from the Restoration Holdback payments to a contractor or supplier
if: (1) Lender receives satisfactory evidence that such contractor
has satisfactorily completed its contract with Borrower; (2) such
contractor or supplier delivers to Lender an acceptable written
waiver of its mechanic's lien, in recordable form; and (3) Borrower
provides written consent from the surety company, if any, which has
issued a payment or performance bond with respect to such contractor
or supplier.
(ii) Disbursements for Shortfalls in Operating Income. Provided that
Lender determines that the Restoration Proceeds are sufficient to pay in
full the estimated cost to complete Restoration, Lender will disburse
Restoration Proceeds not reserved for Restoration to pay the shortfall in
Operating Income necessary to pay (A) first, the debt service payments due
from Borrower on each Payment Due Date falling due from the date of the
Casualty or Condemnation through the date on which Restoration is
substantially completed and (B) then, any Operating Expenses approved by
Lender. Lender may require satisfactory evidence that Operating Expenses
to be paid have been incurred and may issue payments directly to the
Person entitled to the payment claimed as an Operating Expense.
(iii) Restoration Proceeds Deemed Insufficient. If, in Lender's
judgment, at any time during Restoration, the undisbursed portion of the
Restoration Proceeds shall not be sufficient to pay the costs remaining
for Restoration to be completed or to pay any shortfall in Operating
Income needed to pay in full Borrower's debt service payments on the Loan
and Operating Expenses anticipated to be incurred during the period of
Restoration, Borrower shall deposit the deficiency with Lender, in cash or
by a cash equivalent acceptable to Lender (also called a "RESTORATION
DEFICIENCY DEPOSIT"), within ten (10) days after Lender's notice of such
deficiency, and no further disbursement of the Restoration Proceeds will
be made until such funds are deposited. Amounts held by Lender as the
Restoration Deficiency Deposit shall be disbursed in accordance with this
Section 9.04.
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LOAN NUMBER: 41655
(iv) Consequence of Event of Default. Lender shall not be obligated
to disburse Restoration Proceeds or amounts from the Restoration Holdback
when an Event of Default exists, and upon the occurrence of an Event of
Default, any undisbursed portion of the Restoration Proceeds (including
the Restoration Deficiency Deposit and the Restoration Holdback) may, at
Lender's option, be applied against the Loan, whether or not then due or
accelerated, in such order and manner as Lender determines.
(v) Surplus Restoration Proceeds After Restoration Completion. Any
Restoration Proceeds remaining after full payment of Restoration costs and
unpaid expenses due to Lender for which Lender is permitted reimbursement
under this Section 9.04 shall be released to Borrower provided no Event of
Default exists, and Borrower delivers evidence satisfactory to Lender that
(i) Restoration has been fully completed in accordance with all
Requirements of Law and (ii) the Property is free and clear of all Liens
which may be asserted with respect to the Restoration.
9.05. Inspections and Right of Entry. Lender and its agents may
enter the Property upon prior notice to Borrower (notice to be given not less
than two (2) business days prior to entry by Lender or its agents unless an
Event of Default or an emergency exists, as determined by Lender in good faith)
to inspect the Property and Borrower's books and records relating to the
Property. In making such entry and inspection, Lender agrees to use reasonable
efforts to minimize disturbance to Borrower and tenants of the Property. Lender
and its agents shall have access, at all reasonable times, to the Property,
including, without limitation, all contracts, plans and specifications, permits,
licenses and approvals required or obtained in connection with the Property.
9.06. Leases and Rents.
(a) Right to Enter into New Leases. Borrower may enter into new
Leases for space at the Property and renew or extend existing Leases only with
Lender's prior written consent, which shall not be unreasonably withheld or
delayed. Notwithstanding the foregoing, Lender's approval shall not be required
for leases ("PERMITTED LEASES") which (i) are for non-parking related uses, (ii)
have a term of three (3) years or less, (iii) together with all other Leases
affecting the Parking Lot Operation in question, do not generate in excess of
five percent (5%) of the gross revenue attributable to such Parking Lot
Operation, and (iv) do not contain provisions permitting tenant mortgages,
options, rights of first refusal or offer, exclusivity, or extension options in
favor of the tenant thereunder. Borrower shall promptly deliver to Lender a copy
of each executed Lease. All subleases shall be in accordance with the terms and
conditions of the applicable Parking Leases.
(b) Leasing Decisions. Other than Permitted Leases, Borrower may
not, without Lender's prior written consent: (i) amend or supplement any Lease
or waive any term thereof (including, without limitation, shortening the lease
term, reducing rents, granting rent abatements, or accepting a surrender of all
or any portion of the leased space); (ii) cancel or terminate any Lease; (iii)
consent to a tenant's assignment of its Lease or subleasing of space; or (iv)
amend, supplement, waive or terminate any Lease Guaranty; provided that none of
the
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LOAN NUMBER: 41655
foregoing actions (taking into account the planned alternative use of the
affected space in the case of termination, rent reduction, surrender of space or
shortening of term) will have a Material Adverse Effect on the value of the
Property taken as a whole and such Lease, as amended, supplemented or waived, is
otherwise in compliance with the requirements of Section 9.06(a) hereof.
Termination of a Lease with a tenant who is in default beyond applicable notice
and grace/cure periods shall not be considered action which has a Material
Adverse Effect on the value of the Property taken as a whole. Any action with
respect to any Lease that does not satisfy the requirements set forth in this
Section requires Lender's prior written approval, which may not be unreasonably
withheld or delayed, at Borrower's expense (including reasonable legal fees).
Borrower shall promptly deliver to Lender a copy of all instruments documenting
the action taken, together with written certification from a Responsible Officer
that (x) the copies delivered are true, complete and correct copies of the
materials represented thereby and (y) Borrower has satisfied all conditions of
this Section. Lender's acceptance of Borrower's certification or a copy of such
Lease materials shall not be deemed a waiver of the requirements of this Section
if the action taken is not in compliance herewith.
(c) Observance of Lessor Obligations. Borrower (i) shall observe and
perform all obligations imposed upon the lessor under the Leases and shall not
do or permit to be done anything to impair the value of any of the Leases as
security for the Loan; (ii) upon Lender's request, shall promptly send copies to
Lender of all notices of default which Borrower shall send or receive (or may
have sent or received) under any non-residential Lease; (iii) shall enforce in a
commercially reasonable manner all of the material terms, covenants and
conditions contained in the Leases to be observed or performed by the tenant;
(iv) shall not collect any Rents more than one (1) month in advance which, in
the aggregate, exceed $50,000 (and for this purpose a security deposit shall not
be deemed rent collected in advance); and (v) shall not execute any assignment
or pledge of the lessor's interest in any of the Leases or the Rents (other than
in connection with the Loan).
9.07. Use of Property. Borrower shall not allow changes in the use
of the Property without Lender's prior written consent, which shall not be
unreasonably withheld, conditioned or delayed. Borrower shall not initiate, join
in, or consent to any change in any private restrictive covenant or zoning or
land use ordinance limiting or defining the uses which may be made of the
Property as of the Closing Date. If use of all or any portion of the Property is
or shall become a nonconforming use, Borrower will not cause or permit the
nonconforming use to be discontinued or the nonconforming portion of the
Property to be abandoned without Lender's prior written consent.
9.08. Maintenance of Property. Borrower shall maintain the Property
in a good and safe condition and repair. No portion of the Property shall be
removed, demolished or materially altered (except for normal repair or
replacement) without Lender's prior written consent. Borrower shall promptly
repair or replace any portion of the Property which may become damaged, worn or
dilapidated. Borrower shall obtain and maintain all licenses, permits,
registrations, certificates and other approvals, governmental and otherwise
(including, without limitation, zoning, building code, land use and
environmental), necessary for the use, occupancy and operation of the Property
and the conduct of its business thereat.
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LOAN NUMBER: 41655
9.09. Waste. Borrower shall not commit or suffer any waste of the
Property or do or permit to be done thereon anything that may in any way impair
the value of the Property or invalidate the insurance coverage required
hereunder to be maintained by Borrower. Borrower will not, without Lender's
prior written consent, permit any drilling or exploration for or extraction,
removal, or production of any minerals from the surface or the subsurface of the
Property, regardless of the depth thereof or the method of mining or extraction
thereof.
9.10. Compliance with Laws.
(a) Obligation to Perform. Borrower shall promptly and fully comply
with all Requirements of Law now or hereafter affecting the Property. Borrower
shall notify Lender promptly of Borrower's knowledge or receipt of any notice
related to a violation of any Requirements of Law or of the commencement of any
proceedings or investigations which relate to compliance with Requirements of
Law. At Lender's request, Borrower shall provide Lender with copies of all
notices, reports or other documents relating to any litigation or governmental
investigation relating to Borrower or the Property.
(b) Right to Contest. After prior written notice to Lender,
Borrower, at its own expenses may contest, by appropriate legal proceedings,
promptly initiated and conducted in good faith and with due diligence, the
Requirements of Law affecting the Property or alleged violation thereof,
provided that: (i) no Event of Default exists; (ii) such proceeding shall not
otherwise be prohibited by any, and shall be conducted in accordance with all,
Requirements of Law; (iii) the Property will not be in danger of being sold,
forfeited, terminated, cancelled or lost; (iv) non-compliance with such
Requirement of Law shall not impose any civil liability on Lender or Borrower
which has not otherwise been accounted for by the reserve created under clause
(v) below, or any criminal or environmental liability on Lender or Borrower; (v)
Borrower deposits with Lender cash (or other security reasonably acceptable to
Lender) in such amount as Lender deems sufficient to cover loss or damage that
may result from Borrower's failure to prevail in such contest, provided that
after a Securitization, one hundred twenty-five percent (125%) of the amount
estimated by Lender is deposited; (vi) Borrower furnishes to Lender all other
items reasonably requested by Lender; and (vii) upon a final determination
thereof, Borrower promptly complies with the obligations, if any, determined to
be applicable.
9.11. Financial Reports, Books and Records.
(a) Delivery of Financial Statements. Borrower shall keep adequate
books and records of account with respect to its financial condition and the
operation of the Property, in accordance with GAAP consistently applied (or such
other method which is reasonably acceptable to Lender), and shall furnish the
following to Lender, each prepared in such detail as reasonably required by
Lender and certified by a Responsible Officer to be true, complete and correct:
(i) if requested by Lender (but not more often than once per
calendar quarter), a Rent Roll;
(ii) as soon as available, but in any event within sixty (60) days
after the end of each fiscal quarter, a quarterly operating statement for
Borrower detailing the
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LOAN NUMBER: 41655
Operating Income received, Operating Expenses incurred, the cost of all
Capital Improvements and Replacements performed or paid during such
quarter, and the Debt Service Coverage Ratio as of the end of such fiscal
quarter;
(iii) within sixty (60) days after the end of each fiscal quarter, a
quarterly Compliance Certificate;
(iv) as soon as available, but in any event within one hundred
twenty (120) days after the close of Borrower's fiscal year, (A) an annual
operating statement for each Property presented on a basis consistent with
the quarterly operating statements described above and audited by an
independent certified public accountant; (B) an annual balance sheet and
profit and loss statement for Borrower audited by an independent certified
public accountant; and (C) a statement of change of financial position of
Borrower, setting forth in comparative form the figures for the previous
fiscal year;
(v) if requested by Lender, an annual operating budget for Borrower
presented on a monthly basis consistent with the information required in
the quarterly operating statement described above which budget shall be
subject to Lender's approval; and
(vi) such other financial information or property management
information (including, without limitation, copies of Borrower's state and
federal tax returns, information on tenants under Leases to the extent
such information is available to Borrower, and an accounting of security
deposits) as may reasonably be required by Lender from time to time.
Notwithstanding the foregoing, (i) upon the request of Lender prior to a
Securitization, (ii) following an Event of Default, or (iii) until such time as
either the Recourse Carveout Reserve Account has a balance of $3,000,000, or
Borrower has posted a $3,000,000 letter of credit pursuant to Section 4.06(b) in
lieu thereof. Borrower shall promptly provide monthly statements in connection
with subsections (ii) and (iii) above, within twenty (20) days following the end
of each calendar month. Until either the Recourse Carveout Reserve Account has a
balance of $3,000,000, or Borrower has posted a $3,000,000 letter of credit
pursuant to Section 4.06(b) in lieu thereof, Borrower will also supply, with
each such monthly statement, a computation of excess cash flow (i.e., Operating
Income less Operating Expenses, Loan Debt Service, Reserve Amounts and such
other amounts as otherwise approved by Lender (in its reasonable discretion with
respect to out-of-pocket expenses paid to non-affiliates and in its sole
discretion with respect to any other amounts)). Once Lender accepts Borrower's
determination of excess cash flow (whether as computed by Borrower in the
monthly statement, or as subsequently revised by Borrower based on consultation
with Lender), Lender shall promptly withdraw such excess cash flow from the
Deposit Account (as defined in the Lockbox Agreement) and deposit such sum into
the Recourse Carveout Reserve Account.
(b) Lender Audit Rights. Lender and its agents have the right, upon
prior written notice to Borrower (notice to be given at least two (2) business
days prior to such inspection unless an Event of Default exists), to examine the
records, books and other papers which reflect upon Borrower's financial
condition or pertain to the income, expense and management of the Property and
to make copies and abstracts from such materials. Lender also
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LOAN NUMBER: 41655
shall have the right, from time to time (but, in the absence of an Event of
Default existing, not more than annually) and upon prior notice to Borrower
(notice to be given unless an Event of Default exists), to have an independent
audit conducted of any of Borrower's financial information. Lender shall pay the
cost of such audit unless Lender performed the audit following the occurrence of
an Event of Default or if the results of Lender's audit disclose an error in the
categories of total income, total expenses, total assets or total liabilities by
more than ten percent (10%), in which case (and in addition to Lender's other
remedies) Borrower shall pay the cost incurred by Lender with respect to such
audit upon Lender's demand. Upon Borrower's failure to pay such amounts, and in
addition to Lender's remedies for Borrower's failure to perform, the unpaid
amounts shall be added to principal, shall bear interest at the Default Rate
until paid in full, and payment of such amounts shall be secured by the Security
Instrument and other collateral given to secure the Loan.
(c) Financial Reports from Guarantors, SPE Equity Owner and Equity
Owner. Borrower shall cause each Guarantor and, at Lender's request, the SPE
Equity Owner and Equity Owner, to provide to Lender (i) within ninety (90) days
after the close of such party's fiscal year, such party's balance sheet and
profit and loss statement (or if such party is an individual, within ninety (90)
days after the close of each calendar year, such party's personal financial
statements) in form reasonably satisfactory to Lender and certified by such
party to be accurate and complete; and (ii) such additional financial
information (including, without limitation, copies of state and federal tax
returns) as Lender may reasonably require from time to time and in such detail
as reasonably required by Lender.
(d) Data Delivery Failure. If a Data Delivery Failure occurs,
Borrower shall pay Lender, without demand, the applicable Data Delivery Failure
Fee on the first Business Day following each occurrence of a Data Delivery
Failure. If a Data Delivery Failure occurs on more than two (2) separate
occasions during any twelve month period or on more than five (5) occasions
while the Loan is outstanding, it shall be an immediate Event of Default
hereunder. The collection of the Data Delivery Failure Fee shall be in addition
to Lender's other rights and remedies under the Loan Documents and, until paid,
shall be deemed added to the Debt, secured by the Security Instrument and shall
bear interest at the Default Rate.
9.12. Performance of Other Agreements. Borrower shall observe and
perform in a timely manner each and every obligation to be observed or performed
by Borrower pursuant to the terms of any agreement or recorded instrument
affecting or pertaining to the Property or used in connection with the operation
of the Property (including, without limitation, the Operating Agreements).
Without limiting the foregoing, Borrower shall (a) give prompt notice to Lender
of any notice received by Borrower with respect to any of the Operating
Agreements which alleges a default or nonperformance by Borrower thereunder,
together with a complete copy of any such notice; (b) enforce, short of
termination, performance of the Operating Agreements to be performed or
observed, and (c) not terminate or amend, or waive compliance with, any of the
Operating Agreements without Lender's prior written consent, except as may be
(i) permitted pursuant to the respective terms thereof or (ii) absent the
existence of an Event of Default, done in the ordinary course of business. If
the absence of an Operating Agreement that has terminated will have a Material
Adverse Effect on the value of the Property, Borrower agrees to use commercially
reasonable efforts to enter into a new Operating Agreement in replacement of the
terminated Operating Agreement, containing terms and conditions no less
favorable to
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LOAN NUMBER: 41655
Borrower than the terminated Operating Agreement. Borrower shall notify Lender
if Borrower does not replace any terminated Operating Agreement, the absence of
which is likely to have a Material Adverse Effect.
9.13. Existence; Change of Name; Location as a Registered
Organization. Borrower shall continuously maintain (a) its existence and shall
not dissolve or permit its dissolution, and (b) its rights and franchises to do
business in each state where the Property is located. Borrower shall not change
Borrower's name, legal entity, or its location as a registered organization
within the meaning of the UCC, without notifying Lender of such change in
writing at least thirty (30) days prior to its effective date. The notification
requirements set forth in this Section are in addition to, and not in limitation
of, the requirements of Article 7. Borrower shall pay all costs and expenses
incurred by Lender (including, without limitation, reasonable legal fees) in
connection with any change described herein.
9.14. Property Management. Borrower intends to self-manage the
Property, and has entered into employment contracts (reasonably approved by
Lender) with the following individuals: Alex Martin Chaves, Eric Chaves, Rick
West and Frank Lemieux ("KEY MANAGEMENT PERSONNEL"). Borrower shall not remove
(except for cause) or replace the Key Management Personnel, or modify or waive
any material terms of the employment contract with such parties, without
Lender's prior written consent. The Key Management Personnel shall enter into
agreements with Lender subordinating all management fees, compensation, bonuses
or other payments due such parties to the repayment of the Loan, and otherwise
in form and substance reasonably acceptable to Lender. Following an Event of
Default, or in the event the Debt Service Coverage Ratio should at any time fall
below 1.20:1.00, Lender reserves the right to cause Borrower to terminate all
in-house management and management overhead personnel, including but not limited
to the Key Management Personnel, and immediately engage a third party property
manager reasonably acceptable to Lender, on terms reasonably acceptable to
Lender, but in no event at a management fee in excess of 3.5% of Operating
Income unless otherwise approved by Lender. Borrower shall not engage any third
party manager for the Property without Lender's prior written consent and Rating
Confirmation. Upon engagement of a property manager, Borrower shall, and shall
cause the new manager of the Property to, execute an Assignment of Property
Management Contract in form and substance reasonably acceptable to Lender.
Borrower agrees that no management or related costs, expenses and employee
compensation shall be paid at any time as, and for so long as, any payment due
under the Loan remains delinquent unless otherwise approved by Lender. Other
than if required by law, Borrower shall not enter into any collective bargaining
agreement with its employees without the consent of Lender, to be granted in its
sole discretion.
9.15. ERISA. Borrower shall not engage in any transaction which
would cause any obligation or action taken or to be taken hereunder by Borrower
(or the exercise by Lender of any of its rights under any of the Loan Documents)
to be a non-exempt (under a statutory or administrative class exemption)
prohibited transaction under ERISA. Borrower agrees to deliver to Lender such
certifications or other evidence throughout the term of the Loan as requested by
Lender in its sole discretion to confirm compliance with Borrower's obligations
under this Section 9.15 or to confirm that Borrower's representations and
warranties regarding ERISA remain true.
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LOAN NUMBER: 41655
9.16. Compliance with Anti-Terrorism, Embargo, Sanctions and
Anti-Money Laundering Laws. Borrower shall comply in all material respects with
all Requirements of Law relating to money laundering, anti-terrorism, trade
embargos and economic sanctions, now or hereafter in effect. Upon Lender's
request from time to time during the term of the Loan, Borrower shall certify in
writing to Lender that Borrower's representations, warranties and obligations
under Section 8.28 and this Section 9.16 remain true and correct in all material
respects and have not been breached. Borrower shall immediately notify Lender in
writing if any of such representations, warranties or covenants are no longer
true or have been breached or if Borrower has a reasonable basis to believe that
they may no longer be true or have been breached in any material respect. In
connection with such an event, Borrower shall comply in all material respects
with all Requirements of Law and directives of Governmental Authorities and, at
Lender's request, provide to Lender copies of all notices, reports and other
communications exchanged with, or received from, Governmental Authorities
relating to such an event. Borrower shall also reimburse Lender any reasonable
expense incurred by Lender in evaluating the effect of such an event on the Loan
and Lender's interest in the collateral for the Loan, in obtaining any necessary
license from Governmental Authorities as may be necessary for Lender to enforce
its rights under the Loan Documents, and in complying with all Requirements of
Law applicable to Lender as the result of the existence of such an event and for
any penalties or fines imposed upon Lender as a result thereof.
9.17. Equity Contribution. On the Closing Date, the equity owners of
Borrower shall provide satisfactory evidence to Lender that they have, as of the
Closing Date, an aggregate equity investment in Borrower in an amount not less
than $32,000,000.00 in a manner which is satisfactory to Lender.
9.18. Parking Lease Covenants. Borrower covenants and agrees as
follows: (i) promptly and faithfully to observe, perform and comply in all
material respects with all of the terms, covenants and provisions of the Parking
Leases; (ii) to refrain from doing anything and not do or permit any act, event
or omission, as a result of which there is likely to occur a default or breach
under any Parking Lease; (iii) to immediately give Lender notice of any default
by the Parking Lease Lessor or the Borrower under any Parking Lease upon
learning of such default and immediately deliver to Lender a copy of each notice
of default and all responses to such notice of default and all other material
instruments, notices or demands received or delivered by Borrower under or in
connection with any Parking Lease; (iv) to notify immediately Lender in writing
in the event of the initiation of any litigation or arbitration proceeding
affecting Borrower or the Property under or in connection with any Parking
Lease; and (v) not to exercise any purchase option under any Parking Lease
without Lender's prior written consent. The occurrence of a default on the part
of Borrower under any Parking Lease beyond the periods granted in any Parking
Lease for notice and cure shall constitute a deemed Partial Release of such
Individual Property pursuant to Section 10.03(a) hereof.
9.19. Additional Covenants. Borrower further covenants and agrees
that it will not fail to exercise in a timely manner any renewal option(s)
contained in each Parking Lease, if reasonably required by Lender, nor, without
written consent of Lender, modify, alter or amend any Parking Lease, either
orally or in writing, which consent (a) with respect to monetary or material
non-monetary provisions, may be granted, conditioned or withheld in Lender's
sole discretion and (b) with respect to non-monetary, non-material provisions,
may not be
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LOAN NUMBER: 41655
unreasonably withheld, conditioned or delayed. Any assignment, transfer,
conveyance, surrender, termination, cancellation, modification, alteration or
amendment of any Parking Lease in contravention of the foregoing sentence shall
be void and of no force and effect. For the purposes of this Section 9.19, the
phrase "material non-monetary" shall mean provisions with respect to any of the
following: (i) the term of any Parking Lease, (ii) any economic matter
(including costs passed through to Borrower) that would affect the rent or any
other charge thereunder, (iii) any security deposit, if any, (iv) defaults,
events of default and remedies, (v) termination or cancellation, (vi)
disposition of casualty or condemnation proceeds, (vii) transfer of the leased
premises, (viii) tenant mortgages, (ix) assignment and subletting (other than as
otherwise permitted in such lease and this Loan Agreement) and (x) options,
rights of first refusal or offer and extension options.
9.20. Defaults. In the event of a default and during its continuance
by Borrower under any Parking Lease, then, in each and every such case, Lender
may (but shall not be obligated to), in its sole discretion, cause such default
or defaults by Borrower to be remedied and otherwise take or perform such other
actions as Lender may deem necessary or desirable as a result thereof or in
connection therewith. Borrower shall, on demand, reimburse Lender for all
advances made and expenses incurred by Lender in curing any such default(s)
(including, without limitation, reasonable attorneys' fees), together with
interest thereon at the Default Rate, from the date advanced by Lender until the
same is paid in full to Lender and all such sums so advanced shall be secured
hereby. The provisions of this subsection are in addition to any other right or
remedy given to or allowed Lender under each Parking Lease or otherwise.
9.21. Parking Lease Lessor Estoppel Certificate. Subject to the fact
that the Parking Lease Lessor under each Parking Lease may not have an
obligation to deliver an estoppel certificate, Borrower shall, from time to
time, use commercially reasonable efforts to obtain and deliver (or cause to be
delivered) to Lender, an estoppel certificate, in a form reasonably acceptable
to Lender, from the Parking Lease Lessor. Borrower shall provide such estoppel
certificates, at its own cost and expense, upon the request of Lender no more
than two (2) times each calendar year, unless an Event of Default has occurred
(in which case no such limitation shall apply).
9.22. Taxes. To the extent not otherwise covered by Section 4.02, in
the event that it is claimed by any governmental agency, authority or
subdivision that any tax or governmental charge or imposition is due, unpaid or
payable by Borrower upon or in connection with any Parking Lease, Borrower shall
promptly either (i) pay such tax, charge or imposition when due and deliver to
Lender satisfactory proof of payment thereof or (ii) contest such tax in
accordance with the applicable provisions of this Loan Agreement. If liability
for such tax is asserted against Lender, Lender will give to Borrower prompt
notice of such claim, and Borrower, upon complying with the provisions of this
Loan Agreement pertaining to contesting taxes, shall have full right and
authority to contest such claim of taxability.
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LOAN NUMBER: 41655
9.23. Trademark Agreement.
(a) Borrower shall cause Property to be operated pursuant to the
Trademark Agreement.
(b) Borrower shall:
(i) pay all sums required to be paid by Borrower under the Trademark
Agreement and/or promptly perform and observe all of the covenants and
agreements required to be performed and observed by it under the Trademark
Agreement and do all things necessary to preserve and to keep unimpaired
its material rights thereunder;
(ii) promptly notify Lender in writing of any default under the
Trademark Agreement of which it is aware and provide Lender with copies of
any notices delivered in connection therewith;
(iii) promptly enforce the performance and observance of all of the
covenants and agreements required to be performed and observed by the
licensor under the Trademark Agreement;
(iv) grant Lender the right, but Lender shall be under no
obligation, to pay any sums and to perform any act or take any action as
may be appropriate to cause all the terms, covenants and conditions of the
Trademark Agreement on the part of Borrower to be performed or observed to
be promptly performed or observed on behalf of Borrower, to the end that
the rights of Borrower in, to and under the Trademark Agreement shall be
kept unimpaired and free from default;
(v) use its reasonable efforts to obtain, from time to time, from
the licensor such certificates of estoppel with respect to compliance by
Borrower with the terms of the Trademark Agreement as may be reasonably
requested by Lender;
(vi) promptly notify Lender in writing and provide Lender with
copies of any notices delivered to Borrower, including, without
limitation, any notice of default under the Trademark Agreement, which
contain information that, if true, might materially adversely affect the
value, use or operation of the Property; and
(vii) assign to Lender as collateral security for the Loan
Borrower's interest in the Trademark Agreement and cause licensor to
deliver a Consent, Subordination and Recognition Agreement in form and
content satisfactory to Lender.
(c) Borrower shall not, without Lender's prior written consent: (i)
surrender, terminate or cancel the Trademark Agreement; (ii) reduce or consent
to the reduction of the term of the Trademark Agreement; (iii) increase or
consent to the increase of the amount of any charges under the Trademark
Agreement; (iv) otherwise modify, change, supplement, alter or amend, or waive
or release any of its rights and remedies under the Trademark Agreement in any
material respect; or (v) operate any of the Individual Properties which are
currently operated under the name of Parking Company of America under any other
name.
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LOAN NUMBER: 41655
9.24. JFK Lease. Borrower acknowledges that it occupies and operates
a parking operation located at 129th and 52nd Avenue (the "JFK LOCATION"),
adjacent to JFK Airport pursuant to that certain lease agreement dated April 14,
2003 by and between Borrower (by an assignment from Airport Satellite Parking,
LLC), as tenant and Fleet Recovery, Inc., as landlord ("JFK LANDLORD"). The JFK
Landlord is a permit holder from the State of New York, which permits the JFK
Landlord to use the JFK Location on a month to month basis. Accordingly,
Borrower recognizes that its right to use and operate the JFK Location is
subject to possible termination at any time. Borrower agrees to notify Lender
within ten (10) days following any action or notice by the JFK Landlord or the
State of New York to terminate Borrower's right (or with respect to the State of
New York, the JFK Landlord's right) to use and occupy the JFK Location. Any
notice delivered by Borrower to Lender pursuant to the preceding sentence shall
include evidence, reasonably satisfactory to Lender, regarding the impact which
the loss of Borrower's right to use and occupy the JFK Location is expected to
have on Borrower's Operating Income. If Lender is satisfied, in its reasonable
discretion, based on evidence submitted by Borrower, that the loss of the JFK
Location will have no material adverse impact on Borrower's Operating Income,
Borrower shall not be required to take any further action as a result of the
loss of the JFK Location. If, however, Lender concludes that the loss of the JFK
Location can reasonably be expected to have a material adverse effect on
Borrower's Operating Income, Lender shall so notify Borrower, at which time (i)
Borrower may elect to install parking lifts at adjacent properties in order to
increase Borrower's parking capacity at such properties in a manner reasonably
satisfactory to Lender to recoup the loss in Operating Income or (ii) in the
event Borrower fails to so elect, or fails to so install such parking lifts
within a reasonable period following its election, the termination shall be
deemed a Partial Release pursuant to Section 10.03(a) hereof, and the Allocated
Loan Amount shall, in accordance with Exhibit H, be $3,759,017. If Borrower
installs parking lifts at adjacent properties in a manner which Lender
reasonably believes will recoup any loss in Operating Income resulting from the
termination of the Parking Lease at the JFK Location, Borrower shall not be
treated as having experienced a Parking Lease termination pursuant to Section
10.03(a), and shall not be required to repay any portion of the Loan.
ARTICLE 10
NO TRANSFERS OR ENCUMBRANCES; DUE ON SALE
10.01. Prohibition Against Transfers. Borrower shall not permit any
Transfer to be undertaken or cause any Transfer to occur other than a Permitted
Transfer. Any Transfer made in violation of this Loan Agreement shall be void.
10.02. Lender Approval. Except as otherwise provided in this Section
10.02, Lender's decision to approve any Transfer proposed by Borrower shall be
made in Lender's sole discretion and Lender shall not be obligated to approve
any Transfer. Notwithstanding the foregoing, Lender will not unreasonably
withhold its consent one (1) time during the term of the Loan to a transfer or
sale (but not a pledge, mortgage, assignment, encumbrance or other transfer as
security for an obligation) of the Property and Borrower's obligations under the
Loan Documents to a Qualified Transferee, provided Borrower satisfies all of the
conditions set forth in this Section 10.02. Borrower agrees to supply all
information Lender may request to evaluate a Transfer, including, without
limitation, information regarding the proposed transferee's
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LOAN NUMBER: 41655
ownership structure, financial condition and management experience for
comparable properties. Borrower acknowledges that Lender may impose conditions
to its approval of a Transfer, including, without limitation, (i) no Event of
Default, or an event which with the giving of notice or lapse of time or both
could become an Event of Default, has occurred and is continuing, (ii) approval
of the proposed transferee's ownership structure, financial condition and
management experience for comparable properties, (iii) payment of an assumption
fee equal to one half of one percent (1/2%) of the outstanding principal balance
of the Loan, (iv) replacing the Guarantors with substitute guarantors reasonably
acceptable to Lender, (v) assumption in writing by the transferee and a
guarantor acceptable to Lender in its sole discretion of all obligations of the
transferor and Guarantor under the Loan Documents and execution and delivery of
such other documentation as may be required by Lender and the Rating Agencies,
(vi) delivery of a new substantive nonconsolidation opinion, and other
applicable opinions as required by Lender and the Rating Agencies, (vii)
adjusting amounts required for the Reserve Accounts, and (viii) obtaining Rating
Confirmations if a Securitization has occurred. Borrower agrees to pay all of
Lender's reasonable expenses incurred in connection with reviewing and
documenting a Transfer (including, without limitation, the costs of obtaining
Rating Confirmations if required), which amounts must be paid by Borrower
whether or not the proposed Transfer is approved. Upon Borrower's failure to pay
such amounts, and in addition to Lender's remedies for Borrower's failure to
perform, the unpaid amounts shall be added to principal, shall bear interest at
the Default Rate until paid in full, and payment of such amounts shall be
secured by the Security Instrument and other collateral given to secure the
Loan.
10.03. Borrower Right to Partial Releases for Partial Release Price.
(a) Right to Release. After the Lock-Out Period has expired,
Borrower shall have the right, from time to time, to obtain a partial release
("PARTIAL RELEASE") of a Release Property from the Security Instrument,
Assignment of Leases and Rents and related UCC financing statements. Borrower
must provide not less than forty-five (45) days prior written notice to Lender
requesting a Partial Release and identifying the Release Property and date upon
which Borrower intends to have the Release Property released ("PARTIAL RELEASE
DATE"). Lender shall permit a Partial Release, upon satisfaction, to Lender's
reasonable satisfaction, of each of the following conditions:
(i) No Event of Default shall have occurred and be continuing at the
time Borrower requests a Partial Release or on the Partial Release Date.
(ii) On or before the Partial Release Date, Borrower shall deliver
to Lender 125% of the Allocated Loan Amount (the "PARTIAL RELEASE PRICE")
allocated to the Release Property under this Loan Agreement (unless the
Debt Service Coverage Ratio, after giving effect to the release, is
1.20:1.00 or greater, whereupon the Partial Release Price shall be equal
to 115% of the Allocated Loan Amount allocated to the Release Property).
(iii) Borrower pays to Lender a release fee equal to one percent
(1%) of the Partial Release Price for the applicable Property.
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LOAN NUMBER: 41655
(iv) The Property remaining after the Partial Release (and all prior
Partial Releases) continues to be in material compliance with all
Requirements of Law (including, without limitation, all zoning and
subdivision laws, setback requirements, parking ratio requirements and use
requirements), has direct access to a public right of way and is subject
to no material encroachments from the Release Property.
(v) Borrower has delivered to Lender forms of all documents
necessary to release the Release Property from the liens created by the
Security Instrument, Assignment of Rents and Leases and related UCC
financing statements, each in appropriate form required by the state in
which the Release Property is located and otherwise reasonably
satisfactory to Lender in all respects.
(vi) Borrower has obtained a Rating Confirmation.
(vii) Borrower has delivered a Compliance Certificate along with a
certificate from a Responsible Officer certifying that the requirements
set forth in this Section 10.03 have been satisfied in all material
respects.
(viii) Borrower has paid all amounts then due and payable under the
Loan Documents through (and including) the Release Date and in connection
with the Partial Release.
Following a Partial Release, all references in the Loan Documents
shall be deemed to refer to the Property as it existed prior to the Partial
Release less the Release Property. Subject to the provisions of Section 9.24
hereof, any transfer or termination of any Parking Lease (whether by expiration
of the stated term or otherwise), or the loss of any license or permit or zoning
designation necessary to operate the Individual Property as a parking lot
(unless Borrower proves to Lender's reasonable satisfaction that such license or
permit can be obtained within a reasonable period of time, or, in the
alternative, such loss will not have a material adverse impact on Borrower's
Operating Income) shall be deemed a Partial Release of such Property, and
Borrower shall comply with all of the obligations set forth in this Section
10.03(a) within five (5) days of such transfer or termination.
(b) Reimbursement of Lender Expenses. Borrower agrees to pay all of
Lender's reasonable, out-of-pocket expenses incurred in connection with
reviewing and documenting such Partial Release (including, without limitation,
the costs of obtaining Rating Confirmations if required by Lender), which
amounts must be paid by Borrower whether or not the proposed Partial Release is
approved or executed. Upon Borrower's failure to pay such amounts, and in
addition to Lender's remedies for Borrower's failure to perform, the unpaid
amounts shall be added to principal, shall bear interest at the Default Rate
until paid in full and payment of such amounts shall be secured by the Security
Instrument and other collateral given to secure the Loan.
(c) Liens of Security Instrument Otherwise Unaffected. No Partial
Release granted by Lender shall, in any way, impair or affect the lien or
priority of the Security Instrument relating to the portion of the Property not
included in the Partial Release (or any prior Partial Release) or improve the
position of any subordinate lienholder with respect thereto,
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LOAN NUMBER: 41655
except to the extent that the obligations hereunder shall have been reduced by
the actual monetary consideration, if any, received by Lender for such Partial
Release. This Security Instrument shall continue as a Lien and security interest
on the portion of the Property not included in a Partial Release (or any prior
Partial Releases).
10.04. Other Releases of the Mortgaged Property. In addition to the
rights granted to Borrower under Section 10.03 with respect to the Release
Properties, Lender may release any other portions of the Property for such
consideration and upon such conditions as Lender may require without, as to the
remainder of the Property, in any way impairing or affecting the Lien or
priority of the Security Instrument or improving the position of any subordinate
lienholder with respect thereto, except to the extent that the obligations
hereunder shall have been reduced by the actual monetary consideration, if any,
received by Lender for such release, and Lender may accept by assignment, pledge
or otherwise any other property in place thereof as Lender may require without
being accountable for so doing to any other lienholder. Notwithstanding anything
to the contrary herein, Borrower shall have no right to request and Lender shall
have no obligation to grant its consent to any release pursuant this Section
10.04.
ARTICLE 11
EVENTS OF DEFAULT; REMEDIES
11.01. Events of Default. The occurrence of any one or more of the
following events shall, at Lender's option, constitute an "Event of Default"
hereunder:
(a) If any payment of interest is not paid in full within five (5)
days after the Payment Due Date on which such payment is due;
(b) If any monthly payment required to be made to a Reserve Account
is not paid within five (5) days after the Payment Due Date on which such
payment is due;
(c) If unpaid principal, accrued but unpaid interest and all other
amounts outstanding under the Loan Documents are not paid in full on or
before the Maturity Date;
(d) Intentionally Omitted;
(e) If any representation or warranty made by Borrower, SPE Equity
Owner, Equity Owner or any Guarantor herein, in the Guaranty, in the
Environmental Indemnity or in any other Loan Document, or in any
certificate, report, financial statement or other instrument or document
furnished to Lender in connection herewith or hereafter, or in connection
with any request for consent by Lender made during the term of the Loan
shall have been false or misleading in any material respect as of the date
made;
(f) If Borrower, SPE Equity Owner, Equity Owner or any Guarantor
shall (i) make an assignment for the benefit of creditors; (ii) generally
not be paying its debts as they become due; or (iii) admit in writing its
inability to pay its debts as they become due;
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LOAN NUMBER: 41655
(g) If (i) Borrower, SPE Equity Owner, Equity Owner or any Guarantor
shall commence any case, proceeding or other action under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization, conservatorship or relief of
debtors (A) seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for it or for all or any substantial part of its
assets; or (ii) there shall be commenced against Borrower, SPE Equity
Owner, Equity Owner or any Guarantor any case, proceeding or other action
of a nature referred to in clause (i) above by any party other than Lender
which (A) results in the entry of an order for relief or any such
adjudication or appointment, or (B) remains undismissed, undischarged or
unbonded for a period of ninety (90) days; or (iii) there shall be
commenced against Borrower, SPE Equity Owner, Equity Owner or any
Guarantor any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all
or any substantial part of its assets which results in the entry of any
order for any such relief which shall not have been vacated, discharged,
or stayed or bonded pending appeal within ninety (90) days from the entry
thereof; or (iv) Borrower, SPE Equity Owner, Equity Owner or any Guarantor
shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause (i),
(ii), or (iii) above;
(h) Any judgment for monetary damages is entered against Borrower,
SPE Equity Owner, Equity Owner or any Guarantor which, in Lender's sole
judgment, has a Material Adverse Effect or is not covered to Lender's
satisfaction by collectible insurance proceeds;
(i) If Borrower or SPE Equity Owner violates or fails to comply in
any material respect with any provision of Article 7 of this Loan
Agreement (captioned: Single Purpose Entity Requirements);
(j) If Borrower violates or fails to comply with any of the
provisions of Section 9.03 (captioned: Insurance), Section 9.06
(captioned: Leases and Rents), or Section 9.13 (captioned: Existence,
Change of Name or Location as a Registered Organization);
(k) If a Transfer (other than a Permitted Transfer) shall occur
without Lender's prior written consent or in violation of the terms of
Lender's consent;
(l) If Borrower abandons or ceases work on any Capital Improvement
or Replacement for a period of more than twenty (20) days, unless such
cessation results from causes beyond the reasonable control of Borrower
and Borrower is diligently pursuing reinstitution of such work or such
cessation occurs in the ordinary course of business and will not have a
Material Adverse Effect;
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LOAN NUMBER: 41655
(m) If a Lien (other than a Permitted Encumbrance or a Lien granted
to Lender) is filed against the Property, unless such Lien is promptly
contested in good faith by Borrower as permitted in accordance with
Section 9.02 (b);
(n) If a Data Delivery Failure occurs as described in Section
9.11(d);
(o) If any of the material assumptions contained in the substantive
nonconsolidation opinion delivered to Lender in connection with the Loan,
or in any update thereof or additional substantive nonconsolidation
opinion delivered subsequent to the closing of the Loan, is or shall
become untrue in any material respect;
(p) If Borrower fails to pay the Prohibited Prepayment Fee or any
other fees or damages due hereunder when required;
(q) Except for the specific defaults set forth in this Section
11.01, if Borrower fails to perform fully and timely any obligation
hereunder or under any other Loan Document, or any other default occurs
hereunder or under any other Loan Document, in either case which is not
cured (i) in the case of any failure or default which can be cured by the
payment of a sum of money, within five (5) days after written notice from
Lender to Borrower, or (ii) in the case of any other failure or default,
within thirty (30) days after written notice from Lender to Borrower;
provided that if a failure or default under clause (ii) cannot reasonably
be cured within such thirty (30) day period and Borrower has responsibly
commenced to cure such failure or default promptly upon notice thereof
from Lender and thereafter diligently proceeds to cure same, such thirty
(30) day period shall be extended for so long as necessary to permit
Borrower, in the exercise of due diligence, to cure such failure or
default, but in no event shall the entire cure period be more than sixty
(60) days;
(r) If any Guarantor repudiates or revokes the Guaranty; or
(s) The death or incapacity of any Guarantor.
Notwithstanding the foregoing, a Guarantor's actions in subsections
(f), (g), (h), (r) and (s) shall not result in an Event of Default
hereunder, if (i) Borrower provides a replacement Guarantor within ninety
(90) days of the occurrence of any event described in such subsections who
satisfies Lender's requirements as to creditworthiness, net worth and
liquidity substantially similar to those imposed by Lender on the existing
Guarantors, or (ii) each remaining Guarantor increases its Guaranteed
Amount (as such term is defined in the Guaranty) on a prorata basis such
that the total of all remaining Guarantors' Guaranteed Amounts equals
$2,000,000.
11.02. Remedies. If an Event of Default occurs, Lender may, at its
option, and without prior notice or demand, do and hereby is authorized and
empowered by Borrower so to do, any or all of the following:
(a) Acceleration. Lender may declare the entire unpaid principal
balance of the Loan to be immediately due and payable.
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LOAN NUMBER: 41655
(b) Recovery of Unpaid Sums. Lender may, from time to time, take
legal action to recover any sums as the same become due, without regard to
whether or not the Loan shall be accelerated and without prejudice to
Lender's right thereafter to accelerate the Loan or exercise any other
remedy, if such sums remain uncollected.
(c) Foreclosure. Lender may institute proceedings, judicial or
otherwise, for the complete or partial foreclosure of the Security
Instrument or the complete or partial sale of the Property under power of
sale or under any applicable provision of law. In connection with any such
proceeding, Lender may sell the Property as an entirety or in parcels or
units and at such times and place (at one or more sales) and upon such
terms as it may deem expedient unless prohibited by law from so acting.
(d) Receiver. Lender may apply for the appointment of a receiver,
trustee, liquidator or conservator of the Property, without regard for the
adequacy of the security for the Debt or a showing of insolvency, fraud or
mismanagement on the part of Borrower. Any receiver or other party so
appointed has all powers permitted by law which may be necessary or usual
in such cases for the protection, possession, control, management and
operation of the Property. Borrower hereby consents, to the extent
permitted under applicable law, to the appointment of a receiver or
trustee of the Property upon Lender's request if an Event of Default has
occurred. At Lender's option, such receiver or trustee shall serve without
any requirement of posting a bond.
(e) Recovery of Possession. Lender may enter into or upon the
Property, either personally or by its agents, and dispossess and exclude
Borrower and its agents and servants therefrom (without liability for
trespass, damages or otherwise), and take possession of all books, records
and accounts relating to the Property, and Borrower agrees to surrender
possession of the Property and all other Property, including without
limitation, all documents, books, records and accounts relating to the
Property, to Lender upon demand. As a mortgagee-in-possession of the
Property, Lender shall have all rights and remedies permitted by law or in
equity to a mortgagee-in-possession, including, without limitation, the
right to charge Borrower the fair and reasonable rental value for
Borrower's use and occupation of any part of the Property that may be
occupied or used by Borrower and the right to exercise all rights and
powers of Borrower with respect to the Property, whether in the name of
Borrower or otherwise (including, without limitation, the right to make,
cancel, enforce or modify Leases, obtain and evict tenants, and demand,
sue for, collect and receive all Rents of the Property).
(f) UCC Remedies. Lender may exercise with respect to the Property,
each right, power or remedy granted to a secured party under the UCC,
including, without limitation, (i) the right to take possession of the
Property and to take such other measures as Lender deems necessary for the
care, protection and preservation of the Property, and (ii) the right to
require that Borrower, at its expense, assemble the Property and make it
available to Lender at a convenient place acceptable to Lender. Any notice
of sale, disposition or other intended action by Lender with respect to
the Property sent to Borrower in accordance with the provisions hereof at
least ten (10) days prior to such action, shall constitute reasonable
notice to Borrower. Lender shall not have any obligation to clean-up or
otherwise prepare the Property for sale.
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LOAN NUMBER: 41655
(g) Apply Funds in Reserve Accounts. Lender may apply any funds then
deposited in any or all of the Reserve Accounts and or otherwise held in
escrow or reserve by Lender under the Loan Documents (including without
limitation Restoration Proceeds) as a credit on to Loan, in such priority
and proportion as Lender deems appropriate; provided, however, that Lender
may not apply sums in the Recourse Carveout Reserve Account to the payment
of Debt unless (and then only to the extent that) Borrower has personal
liability for the Loan pursuant to Section 12.02 of this Loan Agreement or
has personal liability for Lender's losses, costs and expenses pursuant to
Section 12.03 of this Loan Agreement.
(h) Insurance Policies. Lender may surrender any or all insurance
policies maintained as required by this Loan Agreement, collect the
unearned Insurance Premiums and apply such sums as a credit on the Loan,
in such priority and proportion as Lender deems appropriate. Borrower
hereby appoints Lender its attorney-in-fact with full power of
substitution (and which shall be deemed to be coupled with an interest and
irrevocable until the Loan is paid and the Security Instrument is
discharged of record, with Borrower hereby ratifying all that its said
attorney shall do by virtue thereof) to surrender such insurance policies
and collect such Insurance Premiums.
(i) Application of Letter of Credit. Lender may draw on the Letter
of Credit, without prior notice to Borrower, and apply such amounts as a
credit on the Loan, in such priority and proportion as Lender deems
appropriate; provided, however, that Lender may not apply the proceeds of
any letter of Credit provided by Borrower in lieu of its obligation to
deposit funds into the Recourse Carveout Reserve Account to the payment of
the Loan unless (and then only to the extent that) Borrower has personal
liability for the Loan pursuant to Section 12.02 of this Loan Agreement or
has personal liability for Lender's losses, costs and expenses pursuant to
Section 12.03 of this Loan Agreement.
(j) Protection of Lender's Security and Right to Cure. Lender may,
without releasing Borrower from any obligation hereunder or waiving the
Event of Default, perform the obligation which Borrower failed to perform
in such manner and to such extent as Lender deems necessary to protect and
preserve the Property and Lender's interest therein, including without
limitation (i) appearing in, defending or bringing any action or
proceeding with respect to the Property, in Borrower's name or otherwise;
(ii) making repairs to the Property or completing improvements or repairs
in progress; (iii) hiring and paying legal counsel, accountants,
inspectors or consultants; and (iv) paying amounts which Borrower failed
to pay. Amounts disbursed by Lender shall be added to the Loan, shall be
immediately due and payable, and shall bear interest at the Default Rate
from the date of disbursement until paid in full.
(k) Violation of Laws. If the Property is not, in any material
respect, in compliance with all Requirements of Laws, Lender may impose
additional requirements upon Borrower in connection with such Event of
Default including, without limitation, monetary reserves or financial
equivalents.
(l) Purchase of Rate Cap by Lender. If the Loan has been accelerated
following an Event of Default and the Rate Cap obtained by Borrower
expires prior to
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LOAN NUMBER: 41655
Lender's receipt of full payment of the Loan or completion of a
foreclosure action (or acceptance of a deed-in-lieu of foreclosure),
Lender may purchase, at Borrower's expense, a Rate Cap upon such terms as
Lender deems necessary to guard against fluctuations of the interest rate
of the Loan until the Loan is paid in full or a foreclosure action (or
acceptance of a deed-in-lieu of foreclosure) is completed.
11.03. Cumulative Remedies; No Waiver; Other Security. Lender's
remedies under this Loan Agreement are cumulative (whether set forth in this
Article 11 or in any other section of this Loan Agreement) with those in the
other Loan Documents and otherwise permitted by law or in equity and, to the
extent permitted by applicable law, may be exercised independently, concurrently
or successively in Lender's sole discretion and as often as occasion therefor
shall arise. Lender's delay or failure to accelerate the Loan or exercise any
other remedy upon the occurrence of an Event of Default shall not be deemed a
waiver of such right as remedy. No partial exercise by Lender of any right or
remedy will preclude further exercise thereof. Notice or demand given to
Borrower in any instance will not entitle Borrower to notice or demand in
similar or other circumstances (except where notice is expressly required by
this Loan Agreement to be given) nor constitute Lender's waiver of its right to
take any future action in any circumstance without notice or demand. Lender may
release security for the Loan, may release any party liable therefor, may grant
extensions, renewals or forbearances with respect thereto, may accept a partial
or past due payment or grant other indulgences, or may apply any other security
held by it to payment of the Loan, in each case without prejudice to its rights
under the Loan Documents and without such action being deemed an accord and
satisfaction or a reinstatement of the Loan. Lender will not be deemed as a
consequence of its delay or failure to act, or any forbearance granted, to have
waived or be estopped from exercising any of its rights or remedies.
11.04. Enforcement Costs. Borrower shall pay, on written demand by
Lender all costs incurred by Lender in (a) collecting any amount payable under
the Loan Documents, or (b) enforcing its rights under the Loan Documents, in
each case whether or not legal proceedings are commenced or whether legal action
is pursued to final judgment. Such fees and expenses include, without
limitation, reasonable fees for attorneys, paralegals, law clerks and other
hired professionals, a reasonable assessment of the cost of services performed
by Lender's default management staff, court fees, costs incurred in connection
with pre-trial, trial and appellate level proceedings, including discovery, and
costs incurred in post-judgment collection efforts or in any bankruptcy
proceeding. Amounts incurred by Lender shall be added to principal, shall be
immediately due and payable, shall bear interest at the Default Rate from the
date of disbursement until paid in full, if not paid in full within five (5)
days after Lender's written demand for payment, and such amounts shall be
secured by the Security Instrument and other collateral given to secure the
Loan.
11.05. Application of Proceeds. The proceeds from disposition of the
Property shall be applied by Lender as a credit to the Loan and to recovery or
reimbursement of the costs of enforcement (contemplated by Section 11.04 above)
in such priority and proportion as Lender determines appropriate.
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LOAN NUMBER: 41655
11.06. Cross-Default; Cross-Collateralization; Waiver of Marshalling
of Assets.
(a) Borrower acknowledges that Lender has made the Loan to Borrower
upon the security of its collective interest in the Property and in reliance
upon the aggregate of the Property taken together being of greater value as
collateral security than the sum of each Individual Property taken separately.
Borrower agrees that the Security Instruments are and will be
cross-collateralized and cross-defaulted with each other so that (i) an Event of
Default under any of the Security Instruments shall constitute an Event of
Default under each of the other Security Instrument which secure the Note; (ii)
an Event of Default under the Note or this Agreement shall constitute an Event
of Default under each Security Instrument; (iii) each Security Instrument shall
constitute security for the Note as if a single blanket lien were placed on all
of the Properties as security for the Note; and (iv) such
cross-collateralization shall in no event be deemed to constitute a fraudulent
conveyance.
(b) To the fullest extent permitted by law, Borrower, for itself and
its successors and assigns, waives all rights to a marshalling of the assets of
Borrower, Borrower's partners and others with interests in Borrower, and of the
Property, or to a sale in inverse order of alienation in the event of
foreclosure of all or any of the Security Instruments, and agrees not to assert
any right under any laws pertaining to the marshalling of assets, the sale in
inverse order of alienation, homestead exemption, the administration of estates
of decedents, or any other matters whatsoever to defeat, reduce or affect the
right of Lender under the Loan Documents to a sale of the Property for the
collection of the Debt without any prior or different resort for collection or
of the right of Lender to the payment of the Debt out of the net proceeds of the
Property in preference to every other claimant whatsoever. In addition, to the
extent permitted by applicable law, Borrower, for itself and its successors and
assigns, waives in the event of foreclosure of any or all of the Security
Instruments, any equitable right otherwise available to Borrower which would
require the separate sale of the Property or require Lender to exhaust its
remedies against any Individual Property or any combination of the Property
before proceeding against any other Individual Property or combination of
Property; and further in the event of such foreclosure Borrower does hereby
expressly consents to and authorizes, at the option of Lender, the foreclosure
and sale either separately or together of any combination of the Property.
ARTICLE 12
NONRECOURSE - LIMITATIONS ON PERSONAL LIABILITY
12.01. Nonrecourse Obligation. Except as otherwise provided in this
Article 12, in Section 15.05 or as expressly stated in any of the other Loan
Documents, Lender shall enforce the liability of Borrower to perform and observe
the obligations contained in this Loan Agreement and in each other Loan Document
only against the Property and other collateral given by Borrower as security for
payment of the Loan and performance of Borrower's obligations under the Loan
Documents and not against Borrower or any of Borrower's principals, directors,
officers or employees. Without limiting the foregoing, this Article 12 is not
applicable to the Environmental Indemnity or to any Guaranty executed in
connection herewith.
12.02. Full Personal Liability. Section 12.01 above shall BECOME
NULL AND VOID and the Loan FULLY RECOURSE to Borrower if: (a) the Property or
any part thereof
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becomes an asset in a voluntary bankruptcy or other voluntary insolvency
proceeding; or (b) an involuntary bankruptcy or other insolvency proceeding is
commenced against Borrower (by a party other than Lender) but only if Borrower
has failed to use commercially reasonable efforts to cause such proceeding to be
dismissed (provided that such efforts shall not require that the Borrower is
capitalized to pay off the person or entity that has commenced such proceedings)
or has consented to such proceeding or if Borrower, Guarantor or any Affiliate
of Borrower or any Guarantor has acted in concert with, colluded or conspired
with the party to cause the filing thereof.
12.03. Personal Liability for Certain Losses. Section 12.01 above
SHALL NOT APPLY and Borrower shall be PERSONALLY LIABLE for all losses, claims,
expenses or other liabilities incurred by Lender arising out of, or attributable
to, any of the following:
(a) Fraud or intentional misrepresentation or failure to disclose a
material fact by Borrower or any other agent or representative of Borrower
in connection with (i) the application for the Loan or the execution and
delivery of the Loan Documents or making of the Loan, (ii) any financial
statement or any other material certificate, report or document required
to be furnished by Borrower to Lender herewith or hereafter, or (iii) any
request for Lender's consent made during the term of the Loan;
(b) A violation of any provision of Article 10 (captioned: No
Transfers or Encumbrances; Due On Sale);
(c) Any material breach by Borrower or the SPE Equity Owner of
Article 7 (captioned: Single Purpose Entity Requirements);
(d) Failure by Borrower, SPE Equity Owner or the Equity Owner to
comply with any of the provisions of Section 9.13 (captioned: Existence,
Change of Name or Location as a Registered Organization) of the Loan
Agreement;
(e) Misapplication or misappropriation of (i) insurance proceeds or
condemnation awards payable to Lender in accordance with the Loan
Agreement; (ii) Rent or other Operating Income received by Borrower, (iii)
Rent paid in advance by tenants under the Leases; (iv) tenant security
deposits or other refundable deposits held by or on behalf of Borrower in
connection with Leases or (v) collateral, including but not limited to (x)
removal of all or any portion of the Personal Property in violation of the
Loan Documents and (y) fees or commissions paid by Borrower, after the
occurrence and during the continuance of an Event of Default, to any
Guarantor, any Affiliate, or any principal of Borrower, any Guarantor or
Affiliate, in violation of the Loan Documents;
(f) Intentionally Omitted;
(g) Intentionally Omitted;
(h) Criminal acts or gross negligence of Borrower, any principal of
Borrower, or any Affiliate resulting in the seizure, forfeiture or loss of
all or any part of the Property;
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LOAN NUMBER: 41655
(i) Intentionally Omitted;
(j) All amounts contemplated under Section 11.04;
(k) All amounts expended by Lender to protect its interest in the
Property or other collateral;
(l) All amounts expended by Lender for any real estate or other
transfer tax incurred to transfer title to the Property in connection with
any foreclosure, deed in lieu of foreclosure or non-judicial sale of the
Property following the occurrence of an Event of Default; and
(m) Any liability arising under the Environmental Indemnity.
12.04. No Impairment. Nothing contained in this Article 12 shall
impair, release or otherwise adversely affect: (a) any lien, assignment or
security interest created by the Loan Documents; (b) any indemnity, personal
guaranty, master lease or similar instrument now or hereafter made in connection
with the Loan (including, without limitation, the Environmental Indemnity and
Guaranty); (c) Lender's right to have a receiver or trustee appointed for the
Property; (d) Lender's right to name Borrower as a defendant in any foreclosure
action or judicial sale under the Security Instrument or other Loan Documents or
in any action for specific performance or otherwise to enable Lender to enforce
obligations under the Loan Documents or to realize upon Lender's interest in any
collateral given to Lender as security for the Loan; or (e) Lender's right to a
judgment on the Note against Borrower if necessary to enforce any guaranty or
indemnity provided in connection with the Note or to obtain any insurance
proceeds or condemnation awards to which Lender would otherwise be entitled
under this Loan Agreement; provided, however, that any judgment obtained against
Borrower shall, except to the extent otherwise expressly provided in this
Article 12, be enforceable against Borrower only to the extent of Borrower's
interest in the Property and other collateral securing payment of the Loan and
performance of Borrower's obligations under the Loan Documents.
12.05. No Waiver of Certain Rights. Nothing contained in this
Article 12 shall be deemed a waiver of any right which Lender may have under the
Bankruptcy Code or applicable law to protect and pursue its rights under the
Loan Documents including, without limitation, its rights under Sections 506(a)
or any other provision of the Bankruptcy Code to file a claim for the full
amount of the Loan or to require that the collateral continues to secure all of
the indebtedness owing to Lender under Loan Documents.
ARTICLE 13
INDEMNIFICATION
13.01. Indemnification Against Claims. Borrower shall indemnify,
defend, release and hold harmless Lender and each of the other Indemnified
Parties from and against any and all Losses (other than, with respect to any
Individual Property, those Losses arising solely from a state of facts that
first came into existence after the date that Lender acquired title to such
Individual Property by foreclosure or deed in lieu of foreclosure) directly or
indirectly arising out
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LOAN NUMBER: 41655
of, or in any way relating to, or as a result of (a) accident, injury to or
death of Persons, or loss of, or damage to, property occurring in, on or with
respect to the Property or on the adjoining sidewalks, curbs, adjacent property
or adjacent parking areas, streets or ways or otherwise arising with respect to
the use of the Property; (b) failure of the Property to be in compliance with
any Requirements of Law; (c) breach or default of Borrower's representations or
obligations under Sections 8.27, 8.28 or 9.16 of this Loan Agreement; (d) any
and all claims and demands whatsoever which may be asserted against Lender by
reason of any alleged obligations or undertakings on its part to perform or
discharge the lessor's agreements contained in any Lease; (e) breach or default
under the ERISA obligations set forth in Sections 8.26 and 9.15 of this Loan
Agreement (including, without limitation, legal fees and costs incurred in the
investigations, defense and settlement of Losses incurred in correcting any
prohibited transaction or in the sale of a prohibited loan, and in obtaining any
individual prohibited transaction exemption under ERISA that may be required, in
Lender's sole discretion); or (f) any claim, litigation, investigation or
proceeding commenced or threatened relating to any of the foregoing, whether or
not Indemnified Party is a party thereto; provided, however, any such indemnity
shall not apply to any Indemnified Party to the extent any such Losses arise
from Indemnified Party's gross negligence or willful misconduct (collectively,
"INDEMNIFIED CLAIMS").
13.02. Duty to Defend. If an Indemnified Party claims
indemnification under this Loan Agreement, the Indemnified Party shall promptly
notify Borrower of the Indemnified Claim. After notice by any Indemnified Party,
Borrower shall defend such Indemnified Party against such Indemnified Claim (if
requested by any Indemnified Party, in the name of the Indemnified Party) by
attorneys and other professionals reasonably approved, in writing, by the
Indemnified Party. Notwithstanding the foregoing, any Indemnified Party may, in
its sole discretion and at the expense of Borrower, engage its own attorneys and
other professionals to defend or assist it if such Indemnified Party reasonably
determines that the strategic approach of the defense proposed or conducted by
Borrower is unsatisfactory or that a conflict of interest exists between any of
the parties represented by Borrower's counsel in such action or proceeding.
Within five (5) business days of Indemnified Party's demand, Borrower shall pay
or, in the sole discretion of the Indemnified Party, reimburse, the Indemnified
Party for the payment of Indemnified Party's costs and expenses (including,
without limitation, reasonable attorney fees, engineer fees, environmental
consultant fees, laboratory fees and other professionals in connection
therewith) in connection with the Indemnified Claim. Payment not made timely
shall bear interest at the Default Rate until paid in full and payment of such
amounts shall be secured by the Security Instrument and other collateral given
to secure the Loan.
ARTICLE 14
SUBROGATION; NO USURY VIOLATIONS
14.01. Subrogation. If the Loan is used to pay, satisfy, discharge,
extend or renew any indebtedness secured by a pre-existing mortgage, deed of
trust or other Lien encumbering the Property, then to the extent of funds so
used, Lender shall automatically, and without further action on its part, be
subrogated to all rights, including lien priority, held by the holder of the
indebtedness secured by such prior Lien, whether or not the prior Lien is
released, and such former rights are not waived but rather are continued in full
force and effect in favor of
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LOAN NUMBER: 41655
Lender and are merged with the Liens created in favor of Lender as security for
payment of the Loan and performance of the Obligations.
14.02. No Usury. At no time is Borrower required to pay interest on
the Loan or on any other payment due hereunder or under any of the other Loan
Documents (or to make any other payment deemed by law or by a court of competent
jurisdiction to be interest) at a rate which would subject Lender either to
civil or criminal liability as a result of being in excess of the maximum
interest rate which Borrower is permitted by applicable law to pay. If interest
(or such other amount deemed to be interest) paid or payable by Borrower is
deemed to exceed such maximum rate, then the amount to be paid immediately shall
be reduced to such maximum rate and thereafter computed at such maximum rate.
All previous payments in excess of such maximum rate shall be deemed to have
been payments of principal (in inverse order of maturity) and not on account of
interest due hereunder. For purposes of determining whether any applicable usury
law has been violated, all payments deemed by law or a court of competent
jurisdiction to be interest shall, to the extent permitted by applicable law, be
deemed to be amortized, prorated, allocated and spread over the full term of the
Loan in such manner so that interest is computed at a rate throughout the full
term of the Loan which does not exceed the maximum lawful rate of interest.
ARTICLE 15
SALE OR SECURITIZATION OF LOAN
15.01. Splitting the Note. Lender has the right, from time to time,
to sever the Note into one or more separate promissory notes in such
denominations as Lender determines in its sole discretion (including the
creation of a mezzanine loan secured by a collateral assignment of the equity
interest in Borrower and SPE Equity Owner and Equity Owner) which promissory
notes may be included in separate sales or securitizations undertaken by Lender.
In conjunction with any such action, Lender may redefine the interest rate;
provided, however, that if Lender redefines the interest rate, the interest
rates contained in the severed promissory notes taken in the aggregate shall
equal the Applicable Interest Rate. Subject to the foregoing, each severed
promissory note, and the Loan evidenced thereby, shall be upon all of the terms
and provisions contained in this Loan Agreement and the Loan Documents which
continue in full force and effect, except that Lender may allocate specific
collateral given for the Loan as security for performance of specific promissory
notes, in each case with or without cross default provisions. Borrower, at
Borrower's expense, agrees to cooperate with all reasonable requests of Lender
to accomplish the foregoing, including, without limitation, execution and prompt
delivery to Lender of a severance agreement and such other documents as Lender
shall reasonably require. Borrower hereby appoints Lender its attorney-in-fact
with full power of substitution (and which shall be deemed to be coupled with an
interest and irrevocable until the Loan is paid and the Security Instrument is
discharged of record, with Borrower hereby ratifying all that its said attorney
shall do by virtue thereof) to make and execute all documents necessary or
desirable to effect the aforesaid severance; provided, however, Lender shall not
make or execute any such documents under such power until five (5) days after
written notice has been given to Borrower by Lender of Lender's intent to
exercise its rights under such power. Borrower's failure to deliver any of the
documents requested by Lender hereunder for a period of ten (10) business
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LOAN NUMBER: 41655
days after such notice by Lender shall, at Lender's option, constitute an Event
of Default hereunder.
15.02. Lender's Rights to Sell or Securitize. Borrower acknowledges
that Lender, and each successor to Lender's interest, may (without prior notice
to Borrower or Borrower's prior consent), sell or grant participation in the
Loan (or any part thereof), sell or subcontract the servicing rights related to
the Loan, Securitize the Loan or include the Loan as part of a Securitization
and, in connection therewith, assign Lender's rights hereunder to a
securitization trustee. Borrower, at its expense, agrees to cooperate with all
reasonable requests of Lender in connection with any of the foregoing including,
without limitation, (i) providing additional information regarding the Property,
Borrower, or any of its Affiliates (such information to include additional
appraisals, environmental reports, engineering reports and similar due diligence
materials and updates, and verifications and consents with respect to such
materials that were delivered at closing), (ii) delivering additional landlord
and/or tenant estoppel letters, subordination agreements or similar agreements
(subject, in all instances, to the terms and conditions of the applicable
leases), (iii) participating in meetings and presentations (including the senior
management of Borrower) to the Rating Agencies and prospective investors (in
each case as required by the Rating Agencies or prospective investors), (iv)
executing any financing statements or other documents deemed necessary by Lender
or its transferee to create, perfect or preserve the rights and interest to be
acquired by such transferee, (v) provide any updated financial information with
appropriate verification through auditors letters, (vi) deliver revised
organizational documents and counsel opinions satisfactory to the Rating
Agencies, (vii) execute amendments to the Loan Documents, and (viii) review
information contained in a preliminary or final private placement memorandum,
prospectus, prospectus supplements or other disclosure document providing a
mortgagor estoppel certificate and such other information about Borrower, SPE
Equity Owner, Equity Owner, any Guarantor or the Property as Lender may require
for Lender's offering materials, provided that no such modification, revision,
additional documents, or other action in connection with such cooperation shall
materially increase the obligations or materially decrease the rights of
Borrower pursuant to the Loan Documents. At the request of Lender, Borrower
shall make such representations and warranties as of the date of the
securitization as are customary in securitization transactions involving
properties of the same nature as the subject properties. Notwithstanding the
foregoing, Borrower's obligations to obtain landlord estoppel letters with
respect to the Parking Leases shall be limited as follows: Borrower shall not be
required to obtain estoppels for those Individual Properties listed on Schedule
15.02.1, shall be required only to use commercially reasonable efforts to obtain
estoppels for those Individual Properties listed on Schedule 15.02.2, and for
all other Individual Properties shall obtain estoppels representing at least 80%
of the Loan amount allocated to all such Individual Properties.
15.03. Dissemination of Information. Borrower acknowledges that
Lender may provide to third parties with an existing or prospective interest in
the servicing, enforcement, evaluation, performance, ownership, purchase,
participation or Securitization of the Loan, including, without limitation, any
Rating Agency and any entity maintaining databases on the underwriting and
performance of commercial mortgage loans, any and all information which Lender
now has or may hereafter acquire relating to the Loan, the Property, Borrower,
SPE Equity Owner, Equity Owner or any Guarantor, as Lender determines necessary
or desirable and
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LOAN NUMBER: 41655
that such information may be included in disclosure documents in connection with
a Securitization or syndication of participation interests, including, without
limitation, a prospectus, prospectus supplement, offering memorandum, private
placement memorandum or similar document (each, a "DISCLOSURE DOCUMENT") and
also may be included in filing with the Securities and Exchange Commission
pursuant to the Securities Act on the Securities Exchange Act. To the fullest
extent permitted under applicable law, Borrower irrevocably waives all rights,
if any, to prohibit such disclosure, including, without limitation, any right of
privacy.
15.04. Reserves Accounts. If the Loan is made a part of a
Securitization, Borrower acknowledges that all funds held by Lender in the
Reserve Accounts in accordance with this Loan Agreement or the other Loan
Documents shall be deposited in "eligible accounts" at "eligible institutions"
or invested in "permitted investments" as then defined and required by the
Rating Agencies, and this Loan Agreement will automatically be amended to so
provide.
15.05. Securitization Indemnification. Each of Borrower and each
Guarantor agrees to provide, in connection with each Disclosure Document
provided by Lender to such parties, an indemnification certificate: (a)
certifying that Borrower and such Guarantor have reviewed such Disclosure
Document including, without limitation, the sections entitled "Special
Considerations," and/or "Risk Factors," and "Certain Legal Aspects of the
Mortgage Loan," or similar sections, and all sections relating to Borrower, SPE
Equity Owner, Equity Owner, Guarantors, Property Manager, if any, their
respective Affiliates, the Loan, the Loan Documents and the Property, and any
risks or special considerations relating thereto, and that, to the best of such
Indemnitor's knowledge, such sections (and any other sections reasonably
requested) do not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements made, in the
light of the circumstances under which they were made, not misleading; (b)
indemnifying Lender (and for purposes of this Section 15.05, Lender shall
include its officers and directors) and the Affiliate of Lender that (i) has
filed the registration statement, if any, relating to the Securitization and/or
(ii) which is acting as issuer, depositor, sponsor and/or a similar capacity
with respect to the Securitization (any Person described in (i) or (ii), an
"ISSUER PERSON"), and each director and officer of any Issuer Person, and each
Person or entity who controls any Issuer Person within the meaning of Section 15
of the Securities Act or Section 20 of the Securities Exchange Act
(collectively, "ISSUER GROUP"), and each Person which is acting as an
underwriter, manager, placement agent, initial purchaser or similar capacity
with respect to the Securitization, each of its directors and officers and each
Person who controls any such Person within the meaning of Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act which is acting as
an underwriter, manager, placement agent, initial purchaser or similar capacity
with respect to the Securitization, each of its directors and officers and each
Person who controls any such Person within the meaning of Section 15 of the
Securities Act and Section 20 of the Securities Exchange Act (collectively,
"UNDERWRITER GROUP") for any Losses to which Lender, the Issuer Group or the
Underwriter Group may become subject insofar as the Losses arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in such section or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated in such
sections necessary in order to make the statements in such sections or in light
of the circumstances under which they were made, not misleading (collectively,
"SECURITIES LIABILITIES"); and (c) agreeing to reimburse Lender, the Issuer
Group and the Underwriter Group for any legal or other expenses reasonably
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LOAN NUMBER: 41655
incurred by Lender, the Issuer Group and the Underwriter Group in investigating
or defending the Securities Liabilities; provided, however, that indemnitor will
be liable under clauses (b) or (c) above only if and to the extent that (a) such
misstatement or omission is material and (b) Borrower, each Guarantor and their
respective Affiliates knew, or reasonably should have known after due inquiry,
at the time that Borrower, each Guarantor and their respective Affiliates
approved the Disclosure Document, that the Disclosure Document contained a
material misstatement or omission. This indemnity is in addition to any
liability which Borrower may otherwise have and shall be effective whether or
not an indemnification certificate described in (a) above is provided and shall
be applicable based on information previously provided by or on behalf of
Borrower or a Guarantor if the indemnification certificate is not provided.
15.06. Additional Financial Information for Large Loans.
(a) If required by law in connection with a Securitization,
Borrower, at Borrower's expense, shall provide Lender with all financial
statements and other financial, statistical or operating information, to the
extent required pursuant to Regulation S-X of the Securities Act or any other
Requirements of Law in connection with any Disclosure Document or Securities
Filing. All financial statements provided by Borrower pursuant to this Section
shall be prepared in accordance with GAAP and shall meet the requirements of
Regulation S-X and other applicable Requirements of Law. All financial
statements reporting for a full operating year (i) shall be audited by the
independent accountants in accordance with generally accepted auditing
standards, Regulation S-X and all other applicable Requirements of Law, (ii)
shall be accompanied by the manually executed report of the independent
accountants thereon, which report shall meet the requirements of Regulation S-X
and all other applicable Requirements of Law, and (iii) shall be accompanied by
a manually executed written consent of the independent accountants, acceptable
to Lender, that authorizes the inclusion of such financial statements in any
Disclosure Document or Securities Filing and permits the use of the name of such
independent accountants and reference to such independent accountants as
"experts" in any Disclosure Document and Securities Filing, all of which shall
be provided, at Borrower's expense, at the same time as the related financial
statements are required to be provided. All other financial statements shall be
certified by the chief financial officer of Borrower, which certification shall
state that such financial statements meet the requirements set forth in the
first sentence of this paragraph.
(b) If requested by Lender, Borrower shall provide Lender, promptly
upon request, with any other or additional financial statements or financial,
statistical or operating information as Lender determines to be required
pursuant to Regulation S-X or other legal requirements in connection with any
Disclosure Document or any filing under or pursuant to the Securities Exchange
Act in connection with or relating to a Securitization.
(c) If Lender determines in connection with a Securitization, that
the financial statements required in order to comply with Regulation S-X or
other legal requirements are other than as provided herein, then notwithstanding
the provisions of this Section, Lender may request, and Borrower shall promptly
provide, such combination of Acquired Property Statement and/or Large Loan
Statements or such other financial statements as Lender determines to be
necessary or appropriate for such compliance.
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LOAN NUMBER: 41655
ARTICLE 16
BORROWER'S FURTHER ACTS AND ASSURANCES
PAYMENT OF SECURITY RECORDING CHARGES
16.01. Further Acts. Borrower, at Borrower's expense, agrees to take
such further actions and execute such further documents as Lender reasonably may
request to carry out the intent of the Loan Documents or to establish and
protect the rights and remedies created or intended to be created Lender under
the Loan Documents or to protect the value of the Property and Lender's security
interest or liens therein. Borrower agrees to pay all filing, registration or
recording fees or taxes, and all expenses incident to the preparation,
execution, acknowledgement, or filing/recording of the Security Instrument, the
Assignment of Leases and Rents, financing statements or any such instrument of
further assurance, except where prohibited by law so to do.
16.02. Replacement Documents. Upon receipt of an affidavit from an
officer of Lender as to the loss, theft, destruction or mutilation of the Note
or any other Loan Document which is not of public record, and, in the case of
any such mutilation, upon surrender and cancellation of such document, Borrower
will issue a replacement original in lieu thereof in the same original principal
amount and otherwise on the same terms and conditions as the original.
16.03. Borrower Estoppel Certificates.
(a) Borrower Information. Borrower, within ten (10) days of Lender's
written request (but in any event not more than four (4) times annually, except
following an Event of Default, in which case such limitation shall not apply),
shall furnish to Lender or Lender's designee a statement, duly acknowledged and
certified by a Responsible Officer, setting forth: (i) the Loan Amount and the
amount of principal advanced as of the certificate date; (ii) the unpaid
principal amount of the Loan; (iii) the calculation of the rate of interest
accruing on the Loan, including the then Applicable Interest Rate; (iv) the
Payment Due Date, the Maturity Date, any unexercised rights to extend the
Maturity Date and any exercised extension of the Maturity Date, if any; (v) the
date installments of interest and/or principal were last paid; (vi) that, except
as provided in such statement, no defaults or events exists which would be an
Event of Default with the giving of any applicable notice or the expiration of
any applicable grace or cure period or both; (vii) that the Loan Documents are
valid, legal and binding obligations and have not been modified or, if modified,
giving the particulars of such modification; (viii) whether any offsets or
defenses exist against Borrower's obligation to pay the Loan and perform the
Obligations and, if any are alleged to exist, a detailed description thereof;
(ix) that all Leases are in full force and effect, and for Leases other than
residential Leases, have not been modified or if modified, setting forth all
modifications; (x) if requested, a current Rent Roll for the Property, (xi) the
date to which Rents under the Leases have been paid; (xii) whether or not, to
the best knowledge of Borrower, any of the tenants under the Leases are in
default under the Leases, and, if any of the tenants are in default, setting
forth the specific nature of all such defaults; and (xiii) such other matters
reasonably requested by Lender and reasonably related to the Leases or the
Property, including Borrower's due observance, performance and compliance with
the terms and conditions of the Parking Leases.
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LOAN NUMBER: 41655
(b) Tenant Estoppels. Subject to the terms and conditions of the
applicable leases, Borrower shall deliver to Lender, promptly upon Lender's
written request (but in any event no later than fifteen (15) business days
following Lender's request, but in any event not more often than twice annually,
except following an Event of Default, in which case such limitation shall not
apply), duly executed estoppel certificates from tenants identified by Lender
which are paying $50,000 or more annually to Borrower under their respective
leases, attesting to such facts regarding a tenant's non-residential Lease as
Lender may require, including, without limitation: (i) that the Lease is in full
force and effect with no defaults thereunder on the part of any party, and no
event exists that would be an event of default thereunder with giving of any
applicable notice or the expiration of any applicable grace or cure period or
both; (ii) that none of the Rents have been paid more than one month in advance,
except as a security deposit; and (iii) that the tenant claims no defense or
offset against the full and timely performance of its obligations under the
Lease.
(c) Lender Statement of Loan Information. After written request by
Borrower not more than twice annually, Lender shall furnish Borrower a statement
setting forth: (i) the original Loan Amount and the amount of principal advanced
by Lender as of the certificate date; (ii) the unpaid principal amount of the
Loan; (iii) the rate of interest accruing on the Loan, including the then
Applicable Interest Rate; and (iv) the balance of amounts held in the Reserve
Accounts, if any.
16.04. Recording Costs. Except as otherwise required by law,
Borrower will pay all transfer taxes, filing, registration, recording or similar
fees, and all expenses incident to the preparation, execution, acknowledgment,
recording, filing and/or release or discharge of the Note, the Security
Instrument and each of the other Loan Documents, and all modifications,
extensions, consolidations, or restatements of the same, except where prohibited
by law so to do.
16.05. Publicity. Borrower acknowledges and agrees that Lender may
release publicity articles concerning the financing or servicing of the Loan,
subject, however, to the terms of any confidentiality agreement between Borrower
and Lender.
ARTICLE 17
LENDER CONSENT
17.01. No Joint Venture; No Third Party Beneficiaries. Borrower and
Lender intend that the relationships created hereunder and under each of the
other Loan Documents are solely those of borrower and lender. Nothing herein or
in any of the other Loan Documents is intended to create, nor shall it be
construed as creating anything but a debtor-creditor relationship between
Borrower and Lender nor shall they be deemed to confer on anyone other than
Lender, and its successors and assigns, any right to insist upon or to enforce
the performance or observance of any of the obligations contained herein or
therein.
17.02. Lender Approval. Wherever pursuant to a Loan Document (a)
Lender exercises any right to approve or disapprove or to grant or withhold
consent; (b) any arrangement or term is to be satisfactory to Lender; (c) a
waiver is requested from Lender, or (d) any other decision is to be made by
Lender, all shall be made in Lender's sole discretion, unless expressly
69
LOAN NUMBER: 41655
provided otherwise in such Loan Document. By approving or granting consent,
accepting performance from Borrower, or releasing funds from a Reserve Account,
Lender shall not be deemed to have warranted or affirmed the sufficiency,
completeness, legality or effectiveness of the subject matter or of Borrower's
compliance with Requirements of Laws. Notwithstanding any provision under the
Loan Documents which provide Lender the opportunity to approve or disapprove any
action or decision by Borrower, Lender is not undertaking the performance of any
obligation of Borrower under any of the Loan Documents or any of the other
documents and agreements in connection with this transaction (including, without
limitation, the Leases).
17.03. Performance at Borrower's Expense. Borrower acknowledges and
agrees that in connection with each request by Borrower to: (a) modify or waive
any provision of the Loan Documents; (b) release or substitute Property; (c)
obtain Lender's approval or consent whenever required by the Loan Documents
including, without limitation, review of a Transfer request, matters affecting a
Major Lease, improvements or alterations to the Property, and easements or other
additions to Permitted Encumbrances; or (d) provide a subordination,
non-disturbance and attornment agreement, Lender reserves the right to collect a
review or processing fee from Borrower based on a reasonable estimate of the
administrative costs which Lender will incur to connection therewith. Borrower
agrees to pay such fee along with all reasonable legal fees and expenses
incurred by Lender and the fees required for a Rating Confirmation or approval
from the trustee if the Loan has been Securitized, as applicable, irrespective
of whether the matter is approved, denied or withdrawn (provided, however, that
Lender shall only charge review or processing fees which Lender typically and
customarily charges to similarly situated Borrowers). Any amounts payable by
Borrower hereunder, shall be deemed a part of the Loan, shall be secured by this
Loan Agreement and shall bear interest at the Default Rate if not fully paid
within ten (10) days of written demand for payment.
ARTICLE 18
MISCELLANEOUS PROVISIONS
18.01. Notices. All notices and other communications under this Loan
Agreement are to be in writing and addressed to each party as set forth below.
Default or demand notices shall be deemed to have been duly given upon the
earlier of: (a) actual receipt; (b) one (1) business day after having been
timely deposited for overnight delivery, fee prepaid, with a reputable overnight
courier service, having a reliable tracking system; or (c) three (3) business
days after having been deposited in any post office or mail depository regularly
maintained by the U.S. Postal Service and sent by certified mail, postage
prepaid, return receipt requested, and in the case of clause (b) and (c)
irrespective of whether delivery is accepted. A new address for notice may be
established by written notice to the other; provided, however, that no change of
address will be effective until written notice thereof actually is received by
the party to whom such address change is sent. Notice to outside counsel or
parties other than the named Borrower and Lender, now or hereafter designated by
a party as entitled to notice, are for convenience only and are not required for
notice to a party to be effective in accordance with this section. Notice
addresses are as follows:
70
LOAN NUMBER: 41655
Address for Lender: GMAC Commercial Mortgage Corporation
200 Witmer Road
Horsham, PA 19044
Attn.: Servicing Accounting - Manager
Fax: 215-328-3478
with required copies to: Commercial Capital Initiatives, Inc.
48 Wall Street, 17th Floor
New York, NY 10005
Attn.: Manager - Loan Administration
Fax: 212-269-5286
and Dechert LLP
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
Attn: Richard D. Jones
Fax: 215-994-2222
Address for Borrower: Parking Company of America Airports, LLC
11101 Lakewood Boulevard
Downey, CA 90241
Attn.: Greg Andrews
Fax: 562-622-2767
and Dykema Gossett PLLC
400 Renaissance Center
Detroit, MI 48243
Attn: Aleks Miziolek
Fax: 313-568-6832
18.02. Entire Agreement; Modifications; Time of Essence. This Loan
Agreement, together with the other Loan Documents, contain the entire agreement
between Borrower and Lender relating to the Loan and supersede and replace all
prior discussions, representations, communications and agreements (oral or
written). If any documents relating to the Loan are in conflict, the Note shall
control over this Loan Agreement, and this Loan Agreement shall control over all
of the other documents. No Loan Document shall be modified, supplemented or
terminated, nor any provision thereof waived, except by a written instrument
signed by the party against whom enforcement thereof is sought, and then only to
the extent expressly set forth in such writing. Time is of the essence with
respect to all of Borrower's obligations under the Loan Documents.
18.03. Binding Effect; Joint and Several Obligations. This Loan
Agreement and each of the other Loan Documents shall be binding upon and inure
to the benefit of Borrower and Lender and their respective successors and
assigns, whether by voluntary action of the parties or by operation of law. (The
foregoing does not modify any conditions regulating
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LOAN NUMBER: 41655
Transfers.) If Borrower consists of more than one party, each shall be jointly
and severally liable to perform the obligations of Borrower under the Loan
Documents.
18.04. Duplicate Originals; Counterparts. This Loan Agreement and
each of the other Loan Documents may be executed in any number of duplicate
originals, and each duplicate original shall be deemed to be an original. This
Loan Agreement and each of the other Loan Documents (and each duplicate
original) also may be executed in any number of counterparts, each of which
shall be deemed an original and all of which together constitute a fully
executed agreement even though all signatures do not appear on the same
document.
18.05. Unenforceable Provisions. Any provision of this Loan
Agreement or any other Loan Documents which is determined by a court of
competent jurisdiction or government body to be invalid, unenforceable or
illegal shall be ineffective only to the extent of such holding and shall not
affect the validity, enforceability or legality of any other provision, nor
shall such determination apply in any circumstance or to any party not
controlled by such determination.
18.06. Governing Law. This Loan Agreement and each of the other Loan
Documents shall be interpreted and enforced according to the laws of the State
of New York (without giving effect to rules regarding conflict of laws),
provided, however, that the creation, perfection and enforcement of the lien of
each Security Instrument and Assignment of Leases and Rents shall instead be
governed by the laws of the state in which the Individual Property encumbered by
such Security Instrument and Assignment of Leases and Rents is located.
18.07. Consent to Jurisdiction. Borrower hereby consents and submits
to the exclusive jurisdiction and venue of any state or federal court sitting in
the county and state of New York with respect to any legal action or proceeding
arising with respect to the Loan Documents and waives all objections which it
may have to such jurisdiction and venue. Nothing herein shall, however, preclude
or prevent Lender from bringing actions against Borrower in any other
jurisdiction as may be necessary to enforce or realize upon the security for the
Loan provided in any of the Loan Documents.
18.08. WAIVER OF TRIAL BY JURY. BORROWER AND LENDER EACH WAIVE THEIR
RESPECTIVE RIGHT, TO THE FULLEST EXTENT PERMITTED BY LAW, AND AGREE NOT TO ELECT
A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS LOAN AGREEMENT,
ANY OTHER LOAN DOCUMENT, OR THE RELATIONSHIP BETWEEN THE PARTIES AS BORROWER AND
LENDER.
18.09. Good Faith. All decisions, consents and approvals required of
Lender under the Loan Documents, whether exercised in Lender's sole discretion
or in its reasonable discretion, shall be made in good faith by Lender.
[REMAINDER OF PAGE IS BLANK; SIGNATURES APPEAR ON NEXT PAGE.]
72
IN WITNESS WHEREOF, Lender and Borrower hereby sign, seal and
deliver this Loan Agreement.
Lender: Borrower:
GMAC Commercial Mortgage Corporation PARKING COMPANY OF AMERICA
AIRPORTS, LLC, a Delaware limited
liability company
By: /s/ Nicholas P. Cassino
----------------------------------
Name: NICHOLAS P. CASSINO By: PCAA Parent, LLC, a Delaware
Title: SENIOR VICE PRESIDENT limited liability company, its
sole member
By: Parking Company of America
Airports Holdings, LLC, a
Delaware limited liability
company, its Managing Member
By: Macquarie Americas
Parking Corporation, a
Delaware corporation, its
Managing Member
By: /s/ Duncan Murdoch
----------------------
Name: DUNCAN MURDOCH
Title: VICE PRESIDENT
[Signature Page to Loan Agreement]
LOAN NUMBER: 41655
PCA AIRPORTS, LTD., a Texas limited partnership
By: PCAA GP, LLC, a Delaware limited liability
company, its general partner
By: PCAA Parent, LLC, a Delaware limited
liability company, its sole member
By: Parking Company of America Airports
Holdings, LLC, a Delaware limited
liability company, its Managing
Member
By: Macquarie Americas Parking
Corporation, a Delaware
corporation, its Managing
Member
By: /s/ Duncan Murdoch
----------------------------
Name: DUNCAN MURDOCH
Title: VICE PRESIDENT
73
LOAN NUMBER: 41655
PARKING COMPANY OF AMERICA AIRPORTS PHOENIX,
LLC, a Delaware limited liability company
By: PCAA Parent, LLC, a Delaware limited
liability company, its sole member
By: Parking Company of America Airports
Holdings, LLC, a Delaware limited
liability company, its Managing Member
By: Macquarie Americas Parking
Corporation, a Delaware
corporation, its Managing Member
By: /s/ Duncan Murdoch
-------------------------------
Name: DUNCAN MURDOCH
Title: VICE PRESIDENT
74
LOAN NUMBER: 41655
ATTACHMENTS:
- ----------------
Schedule 1.01 Defined Terms
Schedule 8.01 Exceptions to Required Approvals
Schedule 8.04 Litigation
Schedule 8.08 Condemnation Proceedings
Schedule 8.09 Exceptions to Compliance with Requirements of Law
Schedule 8.10 Exceptions to Required Licenses and Permits
Schedule 8.11 Exceptions to Separate Tax Lots
Schedule 8.15 Encroachments
Schedule 8.19(a) Leases
Schedule 8.19(d) Leases to Related Persons
Schedule 8.32 Changes since Memorandum of Lease
Schedule 8.35 Parking Lease Defaults
Schedule 8.36 Exceptions to Notice Requirement under Parking Leases
Schedule 8.37 Exceptions to Cure Provisions under Parking Leases
Schedule 8.38 Term and Extension Options of Parking Leases
Schedule 8.39 Exceptions to "New Lease" Requirement under Parking Leases
Schedule 8.40 Exceptions to Insurance/Condemnation Proceeds Application under Parking Leases
Schedule 8.41 Restrictions to Subletting under Parking Leases
Schedule 15.02.1 Parking Lease Estoppels not required
Schedule 15.02.2 Estoppels for which Borrower shall use commercially reasonable efforts
Exhibit A Compliance Certificate Form
Exhibit B Disbursement Request Form
Exhibit C Capital Improvements
Exhibit D Organizational Chart
Exhibit E Intentionally Omitted
Exhibit F Replacements
Exhibit G Intentionally Omitted
Exhibit H Allocated Loan Amounts
Exhibit I Parking Leases
Exhibit J Off-Airport Parking Lot Businesses
LOAN NUMBER: 41655
SCHEDULE 1.01
LIST OF DEFINED TERMS
1. "ACQUIRED PROPERTY STATEMENTS" has the meaning provided in Section
15.06 of this Loan Agreement.
2. "AFFILIATE" of any Person means (a) any other Person which, directly or
indirectly, is in Control of, is Controlled by or is under common Control with,
such Person; (b) any other Person who is a director or officer of (i) such
Person, (ii) any subsidiary of such Person, or (iii) any Person described in
clause (a) above; or (c) any corporation, limited liability company or
partnership which has as a director any Person described in clause (b) above.
3. "ALLOCATED LOAN AMOUNT" means, for each Individual Property, the amount
set forth on Exhibit H hereto.
4. "APPLICABLE INTEREST RATE" has the meaning set forth in Section 2.02(b)
of this Loan Agreement. It is the interest rate from time to time accruing on
the Loan.
5. "ASSET PURCHASE AGREEMENT" has the meaning set forth in Section 4.07 of
this Loan Agreement.
6. "ASSIGNMENT OF INTEREST RATE CAP" means the Assignment of Interest Rate
Cap Agreement dated as of the Closing Date from Borrower, as assignor, to
Lender, as assignee, assigning to Lender all of Borrower's rights, title and
interest in and to the Rate Cap Agreement.
7. "ASSIGNMENT OF LEASES AND RENTS" means the Assignment of Leases and
Rents dated as of the Closing Date from Borrower, as assignor, to Lender, as
assignee, assigning to Lender all of Borrower's right, title and interest in and
to the Leases and the Rents with respect to the Property.
8. "ASSIGNMENT OF PROPERTY MANAGEMENT CONTRACT" means an Assignment of
Property Management Contract and Subordination of Management Fees dated as of
the Closing Date from Borrower, as assignor, to Lender, as assignee, and
acknowledged by Property Manager, or, as applicable, any other Assignment of
Property Management Contract executed pursuant to Section 9.14.
9. "BANKRUPTCY CODE" means the Bankruptcy Reform Act of 1978 codified as
11 U.S.C. Section 101 et. seq., and the regulations issued thereunder, both as
hereafter modified from time to time.
10. "BORROWER" has the meaning in the introductory paragraph of this Loan
Agreement.
11. "BUSINESS DAY" or "BUSINESS DAY" means any day other than a Saturday,
a Sunday, or days when Federal Banks located in the State of New York or
Commonwealth of Pennsylvania are closed for a legal holiday or by government
directive. When used with respect
LOAN NUMBER: 41655
to the Interest Rate Adjustment Date, "BUSINESS DAY" shall mean a day on which
banks are open for dealing in foreign currency and exchange in London and New
York City.
12. "CAPITAL IMPROVEMENTS" means the capital improvements to be made to
the Property which are identified on Exhibit C hereto.
13. "CAPITAL IMPROVEMENTS DEPOSIT" has the meaning set forth in Section
4.04(b) of this Loan Agreement.
14. "CASH FLOW AVAILABLE FOR DEBT SERVICE" means, for a specified period,
(a) actual Operating Income normalized for the following twelve (12) month
period less (b) actual Operating Expenses normalized for the following twelve
(12) month period less (c) reserves for Replacements underwritten at the product
of $0.05 and the total square foot area of the Property. Notwithstanding the
foregoing, for the purposes of calculating Debt Service Coverage Ratio and Cash
Flow Available for Debt Service in connection with Borrower's exercise of an
Extension Option or in connection with a Partial Release, neither Operating
Income nor Operating Expenses associated with a Non-underwritten Parking Lease
shall be included. Operating Income and Operating Expenses will be normalized
(i) in accordance with the guidelines delivered to Borrower prior to the Closing
Date, provided that Lender shall have the right, in its sole and absolute
discretion, to amend or discontinue such guidelines from time to time, and (ii)
based upon information available to Lender at the time of such calculation which
are expected to effect such calculation, including but not limited to (x)
termination of a Lease or a Parking Lease, (y) changes in Borrower's obligations
under any Parking Lease or (z) receipt of a current tax bill.
15. "CASUALTY" means the occurrence of damage or destruction to the
Property, or any part thereof, by fire, flood, vandalism, windstorm, hurricane,
earthquake, acts of terrorism or any other casualty.
16. "CLOSING DATE" means October 1, 2003.
17. "CLOSING STATEMENT" means the closing statement executed by Borrower
in connection with the Loan.
18. "COLLECTION ACCOUNT" has the meaning set forth in the Lockbox
Agreement.
19. "COMPLIANCE CERTIFICATE" means a compliance certificate substantially
in the form of Exhibit A hereto, signed by a Responsible Office of Borrower.
20. "CONDEMNATION" means the taking by any Governmental Authority of the
Property or any part thereof through eminent domain or otherwise (including,
without limitation, any transfer made in lieu of or in anticipation of the
exercise of such taking).
21. "CONTROL" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person
whether through ownership of voting securities, beneficial interests, by
contract or otherwise. The definition is to be construed to apply equally to
variations of the word "Control" including "Controlled," "Controlling" or
"Controlled by."
LOAN NUMBER: 41655
22. "DATA DELIVERY FAILURE" means, without reference to any cure period
under Article 11, each instance that any of the following occur: (a) failure to
deliver any of the reports, information, statements or other materials required
under Section 9.11 after Lender giving of two written notices, the first written
notice to provide Borrower with thirty (30) days to cure Borrower's failure and
the second notice to provide Borrower with an additional thirty (30) days to
cure, (b) failure to provide the Compliance Certificate within five (5) business
days after written notice from Lender, or (c) failure to permit Lender or its
representatives to inspect or copy books and records within two (2) Business
Days of Lender's written request. Notwithstanding anything in this Loan
Agreement to the contrary, Borrower's failure to deliver any of the reports,
information, statements or other materials required under Section 9.11 on a
timely basis shall be excused by, and the respective dates by which Borrower
shall be required to provide such reports, information, statements or other
materials shall be extended for the period of any delay caused by any Force
Majeure Event.
23. "DATA DELIVERY FAILURE FEE" means an amount of Five Thousand Dollars
($5,000.00) for the first failure, Fifteen Thousand ($15,000.00) for the second
failure, Twenty-five Thousand Dollars ($25,000.00) for the third failure and
each failure thereafter.
24. "DEBT" means the aggregate of all principal and interest payments that
accrue or are due and payable in accordance with the Loan Agreement, together
with any other amounts due under the Loan Documents. The terms "Debt" and "Loan"
have the same meaning whenever used in the Loan Documents.
25. "DEBT SERVICE COVERAGE RATIO" means, as to a specific period, the
ratio obtained by dividing (a) the Cash Flow Available for Debt Service, by (b)
interest due and payable under the Note for that period.
26. "DEBT SERVICE COVERAGE CONSTANT RATIO" means, as to a specific period,
the ratio obtained by dividing (a) the Cash Flow Available for Debt Service, by
(b) a debt service payment calculated using the Loan Constant.
27. "DEFAULT RATE" has the meaning set forth in Section 2.04(e) of this
Loan Agreement.
28. "DISBURSEMENT REQUEST" means a written request from Borrower delivered
to Lender, substantially in the form attached hereto as Exhibit B, signed by a
Responsible Officer of Borrower and requesting Lender to disburse funds from a
Reserve Account. Each Disbursement Request shall describe in reasonable detail
the use of the funds requested by the Disbursement Request and shall have
attached to it, as applicable: (a) the original invoices for all items or
materials purchased or services performed which are to be funded by the
Disbursement Request, and (b) copies of all permits, licenses and approvals, if
any, by any Governmental Authority confirming completion of the Reserve Items.
If an original invoice is not available, Borrower shall be required to evidence,
to Lender's satisfaction, the amounts expended for which reimbursement is
requested.
29. "DISCLOSURE DOCUMENTS" has the meaning set forth in Section 15.03 of
this Loan Agreement.
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30. "ENVIRONMENTAL INDEMNITY" means the Environmental Indemnity Agreement
dated as of the Closing Date from Borrower to Lender.
31. "EQUITY INTERESTS" means (a) partnership interests (whether general or
limited) in an entity which is a partnership; (b) membership interests in an
entity which is a limited liability company; or (c) the shares or stock
interests in an entity which is a corporation.
32. "EQUITY OWNER" means PCAA Parent, LLC, a Delaware limited liability
company.
33. "ERISA" means the Employee Retirement Income Security Act of 1974, and
the regulations issued thereunder, all as amended or restated from time to time.
34. "EVENT OF DEFAULT" means any of the events specified in Section 11.01
of this Loan Agreement.
35. "EXTENSION TERM" has the meaning set forth in Section 2.03(d) of this
Loan Agreement.
36. "FIRST EXTENDED MATURITY DATE" has the meaning set forth in Section
2.03(d) of this Loan Agreement.
37. "FIRST EXTENSION TERM" has the meaning set forth in Section 2.03(d) of
this Loan Agreement.
38. "FORCE MAJEURE EVENT" means any act of God, act of war, insurrection,
terrorist activity, governmental restriction or any other cause beyond
Borrower's reasonable control.
39. "GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time.
40. "GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof, and any Person exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to such government.
41. "GUARANTOR" means the following Persons: Alex Chaves, Alex Martin
Chaves, Frank Lemieux and Richard West, individually or collectively as the
context requires, who are executing the Guaranty as guarantors, or, pursuant to
the terms and conditions of this Loan Agreement and the Guaranty, a replacement
guarantor who satisfies Lender's requirements as to creditworthiness, net worth
and liquidity substantially similar to those imposed by Lender on the foregoing
named guarantors.
42. "GUARANTY" means the Guaranty (Exceptions to Nonrecourse Liability)
dated as of the Closing Date from Guarantor to Lender.
43. "CAPITAL IMPROVEMENTS DEPOSIT" has the meaning set forth in Section
4.04(b) of this Loan Agreement, subject to adjustment as set forth in Section
4.04(d).
LOAN NUMBER: 41655
44. "CAPITAL IMPROVEMENTS ESCROW ACCOUNT" means an account held by Lender,
or Lender's designee, in which the Capital Improvements Deposit will be held,
which shall not constitute a trust fund.
45. "IMPROVEMENTS" has the meaning set forth in the Security Instrument.
46. "INDEMNIFIED CLAIM" means the basis for the Indemnified Party's claim
for indemnification under Article 13 hereof.
47. "INDEMNIFIED PARTIES" means Lender, together with its successors and
assigns, which shall include, without limitation, any owner or prior owner or
holder of the Note, any servicer of the Loan, any investor, or holder of a full
or partial interest in the Loan, any receiver or other fiduciary appointed in a
foreclosure or other proceeding under any Requirements of Law regarding
creditors' rights, any officers, directors, shareholders, partners, members,
employees, agents, servants, representatives, contractors, subcontractors,
Affiliates of any and all of the foregoing, in all cases whether during the term
of the Loan or as part of, or following, a foreclosure of the Security
Instrument.
48. "INDEPENDENT DIRECTOR" means an individual who shall not have been at
the time of such individual's initial appointment, and may not have been at any
time during the preceding five years, and shall not be at any time while serving
as an Independent Director of the SPE Equity Owner or Borrower if a single
member limited liability company, if applicable, either (a) a shareholder of, or
an officer, director, partner or employee of, Borrower or SPE Equity Owner or
Equity Owner or any of their respective shareholders, partners, members,
subsidiaries or Affiliates, (b) a customer of, or supplier to, Borrower or SPE
Equity Owner or Equity Owner or any of their respective shareholders, partners,
members, subsidiaries or Affiliates, (c) a person or other entity Controlling or
under common Control with any such shareholder, officer, director, partner,
member, employee, supplier or customer, or (d) a member of the immediate family
of any such shareholder, officer, director, partner, member, employee, supplier
or customer.
49. "INDIVIDUAL PROPERTY" means fee title to, or a leasehold interest in,
as the case may be, of any of the properties described in Exhibit G.
50. "INSURANCE PREMIUMS" means the premiums for the insurance Borrower is
required to provide pursuant to Section 9.03 of this Loan Agreement.
51. "INSURANCE PREMIUM ESCROW ACCOUNT" means an account held by Lender, or
Lender's designee, pursuant to the provisions of Section 4.03 of the Loan
Agreement.
52. "INTEREST RATE ADJUSTMENT DATE" means the first (1st) day of each
calendar month.
53. "INTEREST RATE INDEX" means the weekly average yield on United States
Treasury Securities adjusted to a constant maturity of one year, as made
available by the Federal Reserve Board forty-five (45) days prior to each Rate
Adjustment Date.
54. "ISSUER GROUP" has the meaning set forth in Section 15.05 of this Loan
Agreement.
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55. "ISSUER PERSON" has the meaning set forth in Section 15.05 of this
Loan Agreement.
56. "KEY MANAGEMENT PERSONNEL" has the meaning set forth in Section 9.14
of this Loan Agreement.
57. "LAND" has the meaning set forth in the Security Instrument.
58. "LARGE LOAN STATEMENTS" has the meaning provided in Section 15.06 of
this Loan Agreement.
59. "LEASE" has the meaning set forth in the Security Instrument.
60. "LEASE GUARANTY" has the meaning set forth in the Security Instrument.
61. "LENDER" has the meaning in the introductory paragraph of this Loan
Agreement.
62. "LETTER OF CREDIT" has the meaning set forth in Section 6.08 of this
Loan Agreement.
63. "LIBOR RATE" means the average of London Interbank Offered Rates (in
U.S. dollar deposits) for a term of one month as shown on the close-of-business
LIBOR Rate from "Page 3750" on the Telerate Service on the last business day of
the month immediately preceding the Interest Rate Adjustment Date. If Telerate
Service ceases publication or ceases to publish the LIBOR Rate, Lender shall
select a comparable publication to determine the LIBOR Rate and provide notice
thereof to Borrower. The LIBOR Rate may or may not be the lowest rate based upon
the market for U.S. dollar deposits in the London Interbank Eurodollar Market at
which Lender prices loans on the date on which the LIBOR Rate is determined by
Lender as set forth above.
64. "LIEN" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or otherwise), preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, the filing of any financing statement under the UCC or
comparable law of any jurisdiction in respect of any of the foregoing and a
mechanics' or materialman's lien).
65. "LOAN" means the aggregate of all principal and interest payments that
accrue or are due and payable in accordance with the Loan Agreement, together
with any other amounts due under the Loan Documents. The terms "Loan" and "Debt"
have the same meaning whenever used in the Loan Documents.
66. "LOAN AMOUNT" means the maximum principal amount of $126,000,000.00,
in lawful money of the United States of America, to be advanced to Borrower
pursuant to this Loan Agreement. Reference in the Loan Agreement to "Loan
Amount" mean the maximum principal amount, irrespective of actual principal
amount outstanding or actually advanced to Borrower during the term of the Loan.
LOAN NUMBER: 41655
67. "LOAN AGREEMENT" means this Loan Agreement.
68. "LOAN CONSTANT" means 11.33%.
69. "LOAN DOCUMENTS" means, collectively, this Loan Agreement, the Note,
the Security Instrument, the Assignment of Leases and Rents, the Assignment of
Property Management Contract, the Environmental Indemnity, the Guaranty, the
Lockbox Agreement, the Assignment of Interest Rate Cap Agreement, the Rate Cap
Provider Consent and any and all other documents and agreements executed in
connection with the Loan, as each such agreement may be modified, supplemented,
consolidated, extended or reinstated from time to time.
70. "LOCK-OUT PERIOD" has the meaning set forth in Section 2.05(a) of this
Loan Agreement.
71. "LOCKBOX ACCOUNT" means the Deposit Account and Lockbox as such terms
are defined in the Lockbox Agreement.
72. "LOCKBOX AGREEMENT" means the Lockbox - Deposit Account and Control
Agreement dated as of the Closing Date between Borrower, PNC Bank, National
Association and Lender.
73. "LOSSES" means any and all claims, suits, liabilities (including,
without limitation, strict liabilities and liabilities under federal and state
securities laws), actions, proceedings, obligations, debts, damages, losses,
costs, expenses, fines, penalties, charges, fees, judgments, awards, and amounts
paid in settlement of whatever kind or nature (including without limitation
reasonable legal fees and other costs of defense).
74. "MARGIN" has the meaning set forth in Section 2.02(b) of this Loan
Agreement.
75. "MATERIAL ADVERSE EFFECT" means, with respect to any circumstance,
act, condition or event of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding),
whether singly or in conjunction with any other event, act, condition
circumstances, whether or not related, in Lender's reasonable judgment, a
material adverse change in, or a materially adverse effect upon (a) the
business, operations, prospects or financial condition of Borrower or Guarantor;
(b) the ability of Borrower or Guarantor to perform its obligations under any
Loan Document to which it is a party; (c) the value or condition of the
Property; (d) compliance of the Property with any Requirements of Law; or (e)
the validity, priority or enforceability of any Loan Document or the liens,
rights (including, without limitation, recourse against the Property) or
remedies of Lender hereunder or thereunder.
76. "MATURITY DATE" has the meaning set forth in Section 2.03(c) of this
Loan Agreement. If Borrower has extended the Maturity Date in accordance with
this Loan Agreement, references thereafter in this Loan Agreement shall mean the
Maturity Date as so extended, unless the context otherwise requires.
77. "MONTHLY INSURANCE DEPOSIT" means, with respect to the specified
period, an amount equal to one-twelfth (1/12) of the Insurance Premiums that
Lender estimates will be
LOAN NUMBER: 41655
payable during the next ensuing twelve (12) months, subject to adjustment as set
forth in this Loan Agreement.
78. "MONTHLY REPLACEMENT RESERVE DEPOSIT" has the meaning set forth in
Section 4.05(b) of this Loan Agreement, subject to adjustment as set forth in
Section 4.05(d).
79. "MONTHLY TAX DEPOSIT" means, with respect to the specified period, an
amount equal to one-twelfth (1/12) of the Taxes that Lender estimates will be
payable during the next ensuing twelve (12) months, subject to adjustment as set
forth in Section 4.02(d) of this Loan Agreement.
80. "NON-UNDERWRITTEN PARKING LEASES" means all Parking Leases located at
(i) Bradley International Airport, Hartford, CT, (ii) Chicago-O'Hare Airport,
Chicago, IL, (iii) LaGuardia Airport, Queens, NY, and Philadelphia International
Airport, Philadelphia, PA, provided, however, that if the term of any such
Parking Lease is extended beyond 2046, such Parking Lease shall no longer be
deemed a Non-underwritten Parking Lease.
81. "NOTE" means the Promissory Note dated as of the Closing Date from
Borrower to the order of Lender in the original principal amount equal to the
Loan Amount.
82. "OBLIGATIONS" means the Loan, and all other obligations and
liabilities of the Borrower to Lender, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with the Loan or the Loan Documents,
whether on account of principal, interest, fees, indemnities, costs, expenses
(including, without limitation, all reasonable fees and disbursements of legal
counsel) or otherwise.
83. "OFAC LIST" means the list of specially designated nationals and
blocked persons subject to financial sanctions that is maintained by the U.S.
Treasury Department, Office of Foreign Assets Control and any other similar list
maintained by the U.S. Treasury Department, Office of Foreign Assets Control
pursuant to any Requirements of Law, including, without limitation, trade
embargo, economic sanctions, or other prohibitions imposed by Executive Order of
the President of the United States. The OFAC List is accessible through the
internet website www.treas.gov/ofac/t11sdn.pdf.
84. "OPERATING AGREEMENTS" has the meaning set forth in the Security
Instrument.
85. "OPERATING EXPENSES" means all cash expenses actually incurred by or
charged to Borrower (appropriately pro-rated for any expenses that, although
actually incurred in a particular period, also relate to other periods), with
respect to the ownership, operation, leasing and management of the Property in
the ordinary course of business, determined in accordance with GAAP, including,
without limitation: (a) personal property taxes and real estate taxes; (b) sales
taxes or any tax on rents (unless netted against Operating Income); (c) wages,
salaries, payroll taxes and employee benefits; (d) costs of utility services;
(e) maintenance, repair and custodial costs; (f) premiums payable for insurance
carried on or with respect to the Property; (g) office supplies, other
administrative expenses and professional fees; (h) costs of advertising and
marketing for the Property; (i) costs of telephone service; (j) costs of garbage
removal; (k) an
LOAN NUMBER: 41655
allowance for income items that are determined to be uncollectible; (1) if a
property or asset manager has been engaged by Borrower, any compensation, fees
or reimbursements paid to such property or asset manager; if a property or asset
manager has not been engaged by Borrower, all management related and head office
expenses and salaries incurred by Borrower (but not less than 3.5% of Operating
Income) and (k) ground rents. Notwithstanding the foregoing, Operating Expenses
specifically exclude (l) capital expenditures, (2) depreciation and
amortization, (3) payments made in connection with the payment of the
outstanding principal balance of the Loan, (4) costs of Restoration following a
Casualty or Condemnation, (5) funds disbursed from any Reserve Account, (6) any
other non-cash items, (7) interest expense and (8) all income tax expenses.
Solely for purposes of calculating the Debt Service Coverage Ratio under
Sections 2.03(d)(ii)(F) and 10.03(a)(ii) and the Debt Service Coverage Constant
Ratio under Section 2.03(d)(ii)(D), Operating Expenses under clause (1) above
shall be deemed capped at the higher of (x) the actual management fee paid to
any third party property manager and (y) 3.5% of Operating Income.
86. "OPERATING INCOME" means all gross cash income, revenues and
consideration received or paid to or for the account or benefit of Borrower
resulting from or attributable to the operation or leasing of the Property
determined in accordance with GAAP, including, without limitation: (a) parking
revenues, rents from tenants, assignees, subtenants, ground lessee, or parties
to walkway agreements, provided such tenants, assignees or subtenants are in
actual occupancy pursuant to valid leases and paying rent; (b) amounts (to the
extent included in Operating Expenses) payable by tenants to Borrower on account
of maintenance or service charges, taxes, assessments, utilities and maintenance
of the Property; (c) rents and receipts from licenses, service contracts,
concessions, vending machines and similar items located at or operated from the
Property; and (d) interest income; but excluding any income or revenues from a
sale, refinancing, Casualty or Condemnation, payment of rents more than one (1)
month in advance, lease termination payments, or payments from any other events
not related to the ordinary course of operations of the Property.
87. "ORGANIZATIONAL CHART" means the chart attached hereto as Exhibit D
which shows all persons or entities having an ownership interest in Borrower and
in the SPE Equity Owner and in Equity Owner.
88. "OTHER CHARGES" means all ground rents, maintenance charges,
impositions (other than Taxes) and similar charges (including, without
limitation, vault charges and license fees for the use of vaults, chutes and
similar areas adjoining the Property), now or hereafter assessed or imposed
against the Property, or any part thereof, together with any penalties thereon.
89. "PARKING LEASES" means Borrower's leasehold interest in the leases set
forth on Exhibit I hereto and any modifications, amendments, and supplements
thereto.
90. "PARKING LEASE LESSOR" has the meaning set forth in Section 8.32 of
this Loan Agreement.
91. "PARKING LOT OPERATIONS" means, collectively, the off-airport parking
lot businesses described on attached Exhibit J, which are operated on the
respective Individual
LOAN NUMBER: 41655
Properties set forth opposite the names of the respective
Parking Lot Operations. Each off-airport parking lot business described on
attached Exhibit J is referred to as a "Parking Lot Operation."
92. "PARTIAL RELEASE" has the meaning set forth in Section 10.03 of this
Loan Agreement.
93. "PARTIAL RELEASE DATE" has the meaning set forth in Section 10.03 of
this Loan Agreement.
94. "PARTIAL RELEASE PRICE" has the meaning set forth in Section 10.03 of
this Loan Agreement.
95. "PAYMENT DUE DATE" has the meaning set forth in Section 2.03(b) of
this Loan Agreement. It is the date that a regularly scheduled payment of
principal and interest (or interest if the loan payments are interest-only) is
due.
96. "PERMITTED ENCUMBRANCES" means each of the following:
(i) Those exceptions shown in the Title Insurance Policy and each
other Lien which has been approved in writing by Lender.
(ii) Liens for taxes or other governmental charges not at the time
delinquent or thereafter payable without penalty or being
contested in good faith by appropriate proceedings and, in
each case, for which Borrower maintains adequate reserves.
(iii) Liens arising in the ordinary course of business (such as (1)
Liens of carriers, warehousemen, mechanics and materialmen and
other similar Liens imposed by law and (2) Liens incurred in
connection with worker's compensation, unemployment
compensation and other types of social security (excluding
Liens arising under ERISA) or in connection with surety bonds,
bids, performance bonds and similar obligations) for sums not
overdue or being contested in good faith by appropriate
proceedings and not involving any deposits or advances or
borrower money or the deferred purchase price of property or
services and, in each case, for which Borrower maintains
adequate reserves.
(iv) Liens arising in connection with capital leases (and attaching
only to the property being leased), subject to the limitations
of Section 7.02(a)(xiii); and
(v) easements, rights of way, restrictions, minor defects or
irregularities in title and other similar Liens arising after
the date hereof which will not interfere in any material
respect with the value, use or ordinary conduct of the
business of the Borrower.
LOAN NUMBER: 41655
97. "PERMITTED LEASE" has the meaning set forth in Section 9.06(a) of this
Loan Agreement.
98. "PERMITTED TRANSFER" means each of the following:
(i) Transfers of Equity Interests which, in the aggregate over the
term of the Loan (i) do not exceed forty-nine percent (49%) of
the total interests in Borrower or in SPE Equity Owner or in
Equity Owner or in Guarantor, as applicable; (ii) do not
result in any Person holding an Equity Interest in Borrower or
SPE Equity Owner or in Equity Owner, as applicable, which
exceeds forty-nine percent (49%) of the total Equity Interests
in Borrower or in SPE Equity Owner or in Equity Owner, as
applicable; and (iii) do not result in a change of Control.
(ii) Transfers with respect to any Person whose stocks or
certificates are traded on a nationally recognized stock
exchange.
(iii) Transfers which have been approved by Lender in accordance
with Section 10.02 of this Loan Agreement.
(iv) Permitted Encumbrances.
(v) All Transfers of worn out or obsolete furnishings, fixtures or
equipment that are promptly replaced with property of
equivalent value and functionality.
(vi) All Leases which have been approved by Lender in accordance
with this Loan Agreement or which do not require Lender's
approval.
(vii) Transfer of interests in Borrower and its Affiliates prior to
Closing which have been approved by Lender.
99. "PERSON" means an individual, partnership, limited partnership,
corporation, limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture, governmental authority or
other entity of whatever nature.
100. "PERSONAL PROPERTY" has the meaning set forth in the Security
Instrument.
101. "PROHIBITED PREPAYMENT" has the meaning set forth in Section 2.05(c)
of this Loan Agreement.
102. "PROHIBITED PREPAYMENT FEE" has the meaning set forth in Section
2.05(c) of this Loan Agreement.
103. "PROPERTY" means collectively, all Individual Properties securing the
Loan, as described on Exhibit G, hereto, or one or more of the Individual
Properties, as the context requires.
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104. "PROPERTY MANAGER" means any third party property manager retained by
Borrower at Lender's direction or with Lender's approval, all as set forth in
this Loan Agreement.
105. "PROPERTY BANKS" has the meaning set forth in Section 3.01 of this
Loan Agreement.
106. "QUALIFIED TRANSFEREE" means shall mean one or more of the following:
(i) a real estate investment trust, bank, saving and loan
association, investment bank, insurance company, trust
company, commercial credit corporation, pension plan, pension
fund or pension advisory firm, mutual fund, government entity
or plan, provided that any such Person referred to in this
clause (i) satisfies the Eligibility Requirements;
(ii) an investment company, money management firm or "qualified
institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, as amended, or an institutional
"accredited investor" within the meaning of Regulation D under
the Securities Act of 1933, as amended, provided that any such
Person referred to in this clause (ii) satisfies the
Eligibility Requirements;
(iii) an institution substantially similar to any of the foregoing
entities described in clauses (i) or (ii) that has total
assets (in name or under management) in excess of $600,000,000
and (except with respect to a pension advisory firm or similar
fiduciary) capital/statutory surplus or shareholder's equity
of $250,000,000 satisfies the Eligibility Requirements;
(iv) any entity controlled by any of the entities described in
clauses (i), (ii) or (iii) above; or
(v) an investment fund, limited liability company, limited
partnership or general partnership where a Permitted Fund
Manager or an entity that is otherwise a Qualified Transferee
under clauses (i), (ii), (iii) or (iv) of this definition acts
as the general partner, managing member or fund manager and at
least 50% of the equity interests in such investment vehicle
are owned, directly or indirectly, by one or more entities
that are otherwise Qualified Transferees under clauses (i),
(ii), (iii) or (iv) of this definition.
which entity also either satisfies or engages a property manager or employs a
management team which satisfies the following:
1) has at least five (5) years' experience in the management of off-airport
parking operations similar to the operation of the Property.
LOAN NUMBER: 41655
2) operates at least ten (10) off-airport parking facilities which (i) are
located at a minimum of six (6) different airports nationally; (ii)
contain a minimum of 12,000 parking spaces in aggregate, and (iii)
generate a minimum revenue of $25 million annually.
107. "RATE CAP" means an interest rate cap in the notional amount of
$126,000,000.00 obtained by Borrower as protection against interest rate
fluctuations under the Loan, which interest rate cap shall remain in effect
until the Maturity Date.
108. "RATE CAP AGREEMENT" means the written agreement evidencing the
financial and performance terms of the Rate Cap purchased by Borrower from Rate
Cap Provider which satisfies all requirements of Section 2.07 of this Loan
Agreement.
109. "RATE CAP PROVIDER" means the counterparty issuing a Rate Cap to
Borrower.
110. "RATE CAP PROVIDER CONSENT" means the Rate Cap Provider Consent and
Acknowledgement to Assignment of Rate Cap with respect to the assignment of the
Rate Cap from Borrower to Lender, executed by the Rate Cap Provider in favor of
Lender.
111. "RATING AGENCIES" means Fitch, Inc., Moody's Investors Service, Inc.
and S&P, or any successor entity of the foregoing, or any other nationally
recognized statistical rating organization to the extent that any of the
foregoing have been or will be engaged by Lender or its designees in connection
with or in anticipation of Securitization or any other sale or grant of
participation interests in the Loan (or any part thereof).
112. "RATING CONFIRMATION" means a written confirmation from each of the
Rating Agencies (unless otherwise agreed by Lender) that an action shall not
result in a downgrade, withdrawal or qualification of any securities issued in
connection with a Securitization.
113. "RECOURSE CARVEOUT RESERVE ACCOUNT" means an account held by Lender
or Lender's designee, pursuant to Section 4.06 hereof, which shall not
constitute a trust fund.
114. Intentionally Omitted.
115. "RELEASE PROPERTY" means each portion of the Property identified as
"Release Property" above in the definition of Partial Release Price.
116. "RENT ROLL" means a statement from Borrower, in a form reasonably
acceptable to Lender, detailing the names of all tenants of the Property, the
portion of Property occupied by each tenant, the base rent and any other charges
payable under each Lease, the term of each Lease, the beginning date and
expiration date of each Lease, whether any tenant is in default under its Lease
(and detailing the nature of such default), and any other information as is
reasonably required by Lender, all certified by a Responsible Officer to be
true, correct and complete.
117. "RENTS" has the meaning set forth in the Security Instrument.
LOAN NUMBER: 41655
118. "REPLACEMENT RESERVE ACCOUNT" means an account held by Lender, or
Lender's designee, in which the Monthly Replacement Deposits will be held, which
shall not constitute a trust fund.
119. "REPLACEMENT RESERVE CAP" has the meaning set forth in Section
4.05(b).
120. "REPLACEMENTS" means the scheduled repairs and replacements to the
Property identified on Exhibit F hereto.
121. "REQUIREMENTS OF LAW" means (a) the organizational documents of an
entity, and (b) any law, regulation, ordinance, code, decree, treaty, ruling or
determination of an arbitrator, court or other Governmental Authority, or any
Executive Order issued by the President of the United States, in each case
applicable to or binding upon such Person or to which such Person, any of its
property or the conduct of its business is subject including, without
limitation, laws, ordinances and regulations pertaining to the zoning, occupancy
and subdivision of real property.
122. "RESERVE ACCOUNTS" means, individually and collectively, as the
context requires, the Tax Escrow Account, the Insurance Premiums Escrow Account,
the Capital Improvements Escrow Account, the Replacement Reserve Account and the
Recourse Carveout Reserve Account.
123. "RESERVE ITEM" means, individually and collectively, as the context
requires, the Capital Improvements and the Replacements.
124. "RESPONSIBLE OFFICER" means, as to any Person, an individual who is a
managing member, a general partner, the chief executive officer, the president
or any vice president of such Person or, with respect to financial matters, the
chief financial officer or treasurer of such Person or any other officer
authorized by such Person to deliver documents with respect to financial matters
pursuant to this Loan Agreement.
125. "RESTORATION" means the repairs, replacements, improvements, or
rebuilding of or to the Property following a Casualty or Condemnation.
126. "RESTORATION DEFICIENCY DEPOSIT" has the meaning set forth in Section
9.04(d) of this Loan Agreement. All amounts deposited by Borrower with Lender as
the Restoration Deficiency Deposit shall become a part of the Restoration
Proceeds and disbursed by Lender for Restoration on the same conditions
applicable to disbursement of Restoration Proceeds and, until so disbursed, are
pledged to Lender as security for the Loan and Obligations.
127. "RESTORATION HOLDBACK" has the meaning set forth in Section 9.04(e)
of this Loan Agreement.
128. "RESTORATION PROCEEDS" has the meaning set forth in Section 9.03(b)
of this Loan Agreement.
129. "S & P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., and any successor thereto.
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130. "SECOND EXTENDED MATURITY DATE" has meaning set forth in Section
2.03(d) of this Loan Agreement.
131. "SECOND EXTENSION TERM" has meaning set forth in Section 2.03(d) of
this Loan Agreement.
132. "SECURITIES ACT" means the Securities Act of 1933 and any successor
statute thereto and the related regulations issued thereunder, all as amended
from time to time.
133. "SECURITIES LIABILITIES" has the meaning provided in Section 15.05 of
this Loan Agreement.
134. "SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934,
and any successor statute thereto and the related regulations issued thereunder,
all as amended from time to time.
135. "SECURITIZATION" or "SECURITIZE" means the sale of the Loan, by
itself or as part of a pool with other loans, in a transaction whereby mortgage
pass-through certificates or other securities evidencing a beneficial interest,
backed by the Loan or such pool of loans, will be sold as a rated or unrated
public offering or private placement.
136. "SECURITY INSTRUMENT" means those certain Mortgages, Assignment of
Rents and Leases, Security Agreement and Fixture Filing, or the Deed of Trust,
Assignment of Rents and Leases, Security Agreement and Fixture Filing, as
applicable, encumbering the Property and executed by Borrower to Lender or to a
trustee for the benefit of Lender, as the case may be, to secure Borrower's
payment of the Loan and performance of the Obligations.
137. "SINGLE PURPOSE ENTITY" has the meaning set forth in Section 7.02 of
this Loan Agreement.
138. "SPE EQUITY OWNER" means PCAA GP, LLC, a Delaware limited liability
company.
139. "STRIKE RATE" means with respect to the period from and including the
Closing Date through October 1, 2006, 4.5%. The Strike Rate for any Extension
Term shall be determined by Lender in accordance with Section 2.03(d) of this
Loan Agreement.
140. "TAX ESCROW ACCOUNT" means an account held by Lender, or Lender's
designee, in which Borrower's initial deposit for Taxes made on the Closing Date
and the Monthly Tax Deposits will be held, which shall not constitute a trust
fund.
141. "TAXES" means all real estate taxes, government assessments or
impositions, lienable water charges, lienable sewer rents, assessments due under
owner association documents, ground rents, vault charges and license fees for
the use of vaults chutes and all other charges (other than the Other Charges),
now or hereafter levied or assessed against the Land and Improvements.
LOAN NUMBER: 41655
142. "TITLE INSURANCE POLICY" means the mortgagee title insurance policy
obtained by Lender in connection with the Loan, and, until the issuance of such
policy, the commitment for title insurance as marked-up as of the Closing Date,
in either case in form and substance (with such endorsements and affirmative
coverages) as is satisfactory to Lender, insuring that the Security Instrument
constitutes a perfected first Lien against the Property in the Loan Amount,
subject only to Permitted Encumbrances.
143. "TRADEMARK AGREEMENT" means that certain Trademark License Agreement
dated as of December 18, 2002 by and between Parking Company of America
Management, LLC as licensor, and Parking Company of America Airports, LLC as
licensee, as amended from time to time.
144. "TRANSFER" means any action by which either (a) the legal or
beneficial ownership of the Equity Interests in Borrower or in SPE Equity Owner
or in Equity Owner or, if the Guarantor is an entity, in the Guarantor or (b)
the legal or equitable title to the Property, or any part thereof, or (c) the
cash flow from the Property or any portion thereof, are sold, assigned,
transferred, hypothecated, pledged or otherwise encumbered or disposed of, in
each case (a), (b) or (c) whether undertaken, directly or indirectly, or
occurring by operation of law or otherwise, including, without limitation, each
of the following actions:
(i) the sale, conveyance, assignment, grant of an option with
respect to, mortgage, deed in trust, pledge, grant of a
security interest in, or any other transfer, as security or
otherwise, of the Property or with respect to the Leases or
Rents (or any thereof);
(ii) the grant of an easement across the Property (other than minor
easements not having a Material Adverse Effect) or any other
agreement granting rights in or restricting the use or
development of the Property (including, without limitation,
air rights);
(iii) an installment sale wherein Borrower agrees to sell the
Property for a price to be paid in installments; or
(iv) an agreement by Borrower leasing all or a substantial part of
the Property for other than actual occupancy by a space tenant
thereunder.
145. "TRANSFEREE" has the meaning provided in Section 6.08 of this Loan
Agreement.
146. "UCC" means the Uniform Commercial Code in effect in the State where
the Property is located, as from time to time amended or restated. For purposes
of this UCC's application to the Reserve Accounts, the parties agree that the
Reserve Accounts shall be deemed located in the laws of the State of New York.
147. "UNDERWRITER GROUP" has the meaning provided in Section 15.05 of this
Loan Agreement.