Loan Agreement
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U.S. $109,185,728.00
LOAN AGREEMENT
BETWEEN
WXI/MCN COMMERCIAL REAL ESTATE LIMITED PARTNERSHIP,
AS BORROWER
AND
GENERAL ELECTRIC CAPITAL CORPORATION,
AS LENDER
JANUARY 31, 2000
(WHITEHALL/MCNEIL PORTFOLIO)
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LOAN AGREEMENT
This Loan Agreement ("AGREEMENT") is entered into as of January 31,
2000 between GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation
("LENDER"), and WXI/MCN COMMERCIAL REAL ESTATE LIMITED PARTNERSHIP, a Delaware
limited partnership ("BORROWER"). Capitalized terms used in the Recitals shall
have the meanings ascribed to such terms hereinbelow.
RECITALS
WHEREAS, Borrower desires to obtain the Loan from Lender for the
purposes of (i) financing or refinancing the Properties and (ii) funding Working
Capital Advances;
WHEREAS, Borrower and Lender desire to set forth the terms and
conditions of the Loan and of each Advance made hereunder;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and the payment of $10 and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Lender and Borrower
agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
Section 1.1 CERTAIN DEFINITIONS. As used herein, the following terms
have the meanings indicated:
(1) "ACQUISITION ADVANCE" means an Advance made for the purpose of
financing or refinancing an Additional Property, if any.
(2) "ACQUISITION ADVANCE TERMINATION DATE" means June 1, 2000.
(3) "ADDITIONAL PROPERTIES" means, collectively, the properties
designated as "Additional Properties" on Schedule 1.1(B).
(4) "ADJUSTED ANNUAL DEBT SERVICE" means, as of the date of
calculation, subject to the adjustment set forth below in this paragraph,
annual debt service calculated on the outstanding balance of the Loan on
the calculation date (taking into account, in the case of a release of a
Property, the application of the Release Payment to the outstanding balance
of the Loan), at the greater of the then current interest rate payable
under the Loan and the average interest rate for the prior six month period
(such greater interest rate, as applicable, the "APPLICABLE RATE"),
provided in each case that such annual debt service shall be reduced by
amounts that would be payable (based on such interest rate) to Borrower
under any interest rate swap, cap, collar or similar agreement entered into
by Borrower in connection with the Loan (assuming, for purposes of
determining the amount payable under any such agreement, that the interest
rate applied under the respective agreement is the Applicable Rate)
provided the benefits of such agreement are pledged to Lender as further
security for the Loan. (For example, if the current interest rate payable
under the Loan is 8% and the average interest rate for the six month period
prior to determining Adjusted Annual Debt Service was 7%, then annual debt
service shall be determined using the 8% rate and, for purposes of
determining the amounts payable under any interest rate swap, cap, call or
of similar agreement, the rate used to calculate the counterparty's
obligations shall be deemed to have been 8% for such prior six month
period.)
(5) "ADJUSTED LOAN BASIS" means, with respect to any Property, the
amount set forth opposite the reference to such Property on the attached
Schedule 1.1(B) under the caption "Loan Basis," and as such Loan Basis may
be increased or decreased pursuant to the terms hereof.
(6) "ADJUSTED OPERATING CASH FLOW" shall mean, for any period, the sum
of Operating Cash Flow for such period (but excluding income from or
expenses related to (a) any interest rate swap, cap, collar, or similar
agreement entered into by Borrower in connection with the Loan, and (b) any
Properties previously released or to be released in connection with the
calculation of Adjusted Operating Cash Flow). Notwithstanding the
foregoing, no lump sum nonrecurring Operating Expense or Gross Receipt, as
reasonably determined by Lender, shall be included in determining
annualized Adjusted Operating Cash Flow for purposes of this definition.
Similarly, the determination of annualized Adjusted Operating Cash Flow for
purposes of this paragraph shall be adjusted, as reasonably determined by
Lender, to reflect annualized decreases or increases in Operating Expenses
or Gross Receipts resulting from anticipated major events. The
determination of Adjusted Operating Cash Flow for purposes of this
definition shall be based upon the lesser of market occupancy or the actual
occupancy rate of each Property (but in no event greater than a 95%
occupancy rate) and shall assume as part of Operating Expenses (i) the
greater of the actual property management fees incurred by Borrower or a
fee equal to 3% of gross rental receipts from the Properties, and (ii)
annual replacement reserves of $0.25 per square foot). In addition, based
upon, among other things, the operating statements provided to Lender by
Borrower (if available), Lender shall consider such adjustments to the
annualized Adjusted Operating Cash Flow as it deems reasonably appropriate,
which considerations may take into account nonrecurring periods where one
or more Properties were not generating gross receipts or were generating
significantly lower gross receipts.
(7) "ADVANCE" means each advance of the Loan made by Lender to
Borrower pursuant to and in accordance with the terms and conditions of
this Agreement,
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including the Initial Advance and each Working Capital Advance and each
Acquisition Advance.
(8) "AFFILIATE" means, with respect to any Person, any Person that
directly or indirectly through one or more intermediaries controls or is
controlled by or is under common control with such Person.
(9) "AGREEMENT" means this Loan Agreement, together with all Exhibits
and Schedules hereto.
(10) "AGREEMENT REGARDING MANAGEMENT AGREEMENT" means the Agreement
Regarding Asset Management Agreement executed by Holding Company and Asset
Manager in favor of Lender, in form and substance satisfactory to Lender.
(11) "ANCILLARY AGREEMENTS" means any supplemental agreement,
undertaking, instrument, document or other writing executed by Borrower as
a condition to Advances under this Agreement or otherwise in connection
herewith, including the Loan Documents.
(12) "APPROVED PLANS" has the meaning set forth in Section 3.2 hereof.
(13) "ARCHITECT" means any architect and/or inspecting engineer,
chosen by Borrower and reasonably satisfactory to Lender, that is retained
in connection with any Work or the construction of any Capital Improvements
or Tenant Improvements.
(14) "ASSET BUSINESS PLAN"means a "Portfolio Business Plan" as such
term is defined in the Asset Management Agreement.
(15) "ASSET MANAGEMENT AGREEMENT" means that certain Portfolio
Advisory Agreement dated as of January 31, 2000, executed by Holding
Company and Asset Manager, regarding the Properties.
(16) "ASSET MANAGEMENT FEE" means the portion of the "Portfolio
Advisory Fee" payable under the Asset Management Agreement which is
allocable to the Properties.
(17) "ASSET MANAGER" means Archon Group, L.P., a Delaware limited
partnership, or its permitted successors or assigns, or any replacement
asset manager reasonably acceptable to Lender.
(18) "ASSIGNMENT OF LEASES" means each first priority assignment of
rents and leases executed by Borrower for the benefit of Lender with
respect to a Property, in form and substance satisfactory to Lender.
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(19) "BORROWER PARTY" means Whitehall and any general partner of
Borrower.
(20) "BORROWING DATE CERTIFICATE" means a certificate executed by
Borrower in favor of Lender, in form and substance satisfactory to Lender,
in which Borrower shall confirm certain matters regarding Borrower and the
Properties as of the Closing Date.
(21) "BUSINESS DAY" means a day other than a Saturday, a Sunday, or a
day on which national banks located in the State of New York are not open
for general banking business.
(22) "CAPITAL EXPENDITURES" means all commercially reasonable payments
for necessary and customary replacements or substitutions to improvements
to any Property, including remediation of deferred maintenance.
(23) "CAPITAL LEASE" means, with respect to any Person, a lease of any
property (whether real, personal or mixed) by such Person as lessee that,
in accordance with GAAP, either would be required to be classified and
accounted for as a capital lease on a balance sheet of such Person or
otherwise be disclosed as such in a note to such balance sheet.
(24) "CAPITAL LEASE OBLIGATION" means, with respect to any Capital
Lease, the amount of the obligation of the lessee thereunder that, in
accordance with GAAP, would appear on a balance sheet of such lessee in
respect of such Capital Lease or otherwise be disclosed in a note to such
balance sheet.
(25) "CAPITAL TRANSACTION" means, with respect to any Property (a) a
sale or refinancing of the whole of such Property, (b) an event giving rise
to an insurance recovery or a condemnation award to the extent such
insurance recovery or condemnation award exceeds the actual out-of-pocket
cost of repair or restoration to such Property or the portion thereof
affected by the event which gave rise to such insurance recovery or
condemnation award, (c) a Complete Taking or (d) any financing or
refinancing of, or sale of, a partial interest in such Property, if
permitted under the terms of this Agreement.
(26) "CASH ON CASH LIMIT" means, as of the date of calculation, the
Loan balance resulting in a 12.04% Cash On Cash Return, calculated by
dividing (a) the amount of Adjusted Operating Cash Flow which would be used
as of such date in calculating Cash On Cash Return by (b) .1204; provided,
however, that upon making each Acquisition Advance (if any), the Cash On
Cash Return percentage used above in this definition shall be revised to
equal the Cash On Cash Return for the Properties (including the Additional
Property added in connection with such Acquisition Advance) as of the date
of such Acquisition Advance, which revision shall be confirmed in writing
by the parties, and shall be effective for the balance of the Term (unless
such revised percentage is replaced as the result of a subsequent
Acquisition Advance).
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(27) "CASH ON CASH RETURN" means, as of the date of calculation, the
quotient, expressed as a percentage, obtained by dividing (a) Adjusted
Operating Cash Flow from all Properties which constitute Collateral on the
calculation date, determined for the twelve (12) month period prior to such
date of calculation, by (b) the outstanding balance of the Loan on the
calculation date (taking into account, in the case of a release of a
Property, the application of the Release Payment to the outstanding Loan
balance). Lender agrees that calculations of Cash On Cash Return after the
Closing Date will be performed in a manner reasonably consistent with the
underwriting practices, procedures and policies which were followed by
Lender in verifying satisfaction of the Cash On Cash Return closing
condition contained in Part A of Schedule 2.1.
(28) "CHARGES" means all federal, state, county, city, municipal,
local, foreign or other governmental (including PBGC) taxes at the time due
and payable, levies, assessments, charges, liens, claims or encumbrances
upon or relating to (i) the Properties, (ii) the Obligations, (iii)
Borrower's employees, payroll, income or gross receipts, (iv) Borrower's
ownership or use of any of the Properties, or (v) any other aspect of
Borrower's business.
(29) "CHARGES ACCOUNT" has the meaning set forth in Section 3.4
hereof.
(30) "CLOSING DATE" means the date on which Lender makes the Initial
Advance.
(31) "CODE" means the Uniform Commercial Code of the jurisdiction with
respect to which such term is used, as in effect from time to time.
(32) "COLLATERAL" means the collateral covered by the Collateral
Documents.
(33) "COLLATERAL ASSIGNMENT OF CONTRACTS" means each Collateral
Assignment of Contracts, Licenses and Permits executed by Borrower in favor
of Lender, in form and substance satisfactory to Lender.
(34) "COLLATERAL ASSIGNMENT OF INTEREST RATE CAP AGREEMENT" means each
Collateral Assignment of Interest Rate Cap Agreement executed by Borrower
in favor of Lender, substantially in the form of Exhibit "C" hereto.
(35) "COLLATERAL DOCUMENTS" means the Collateral Assignments of
Contracts, the Assignments of Leases, the Deeds of Trust, the Collateral
Assignments of Interest Rate Cap Agreement and any other deeds of trust,
mortgages, security agreements, pledge agreements, financing statements or
similar documents now or hereafter executed to secure (or perfect a
security interest granted to secure) any or all of the Obligations.
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(36) "COMPLETE TAKING" means a taking or condemnation by any competent
Governmental Authority of the whole of any Property or so much thereof that
the part not so taken or condemned cannot feasibly be used or reconverted
for use as a building of the type and character existing immediately prior
to such taking or condemnation.
(37) "CONTRACT RATE" has the meaning set forth in Section 2.2 hereof.
(38) "DEBT SERVICE COVERAGE RATIO" means, as of the date of
calculation, the ratio of (a) Adjusted Operating Cash Flow from all
Properties which constitute Collateral on the calculation date, determined
for the six-month period ending on such date of calculation adjusted to
reflect a one-year period, to (b) Adjusted Annual Debt Service.
(39) "DEBT SERVICE COVERAGE RATIO LIMIT" means, as of the date of
calculation, the Loan balance resulting in a 1.32 to 1.00 Debt Service
Coverage Ratio, calculated by dividing (a) the amount of Adjusted Operating
Cash Flow which would be used as of such date in calculating the Debt
Service Coverage Ratio by (b) the product obtained by multiplying (i) the
Contract Rate (expressed as a decimal) by (ii) 1.32; provided, however,
that upon making each Acquisition Advance, the Debt Service Coverage Ratio
used above in this definition shall be revised to equal the Debt Service
Coverage Ratio for the Properties (including the Additional Property added
in connection with such Acquisition Advance) as of the date of such
Acquisition Advance, which revision shall be confirmed in writing by the
parties and shall be effective for the balance of the Term (unless such
revised ratio is replaced as the result of a subsequent Acquisition
Advance).
(40) "DEED OF TRUST" means each first priority deed of trust, mortgage
and security agreement executed by Borrower in favor of Lender, creating a
first priority lien against a Property, in form and substance satisfactory
to Lender.
(41) "DEFAULT PROPERTY" has the meaning set forth in Section 10.1
hereof.
(42) "DEFAULT RATE" means the lesser of (a) the maximum rate of
interest allowed by applicable Laws, and (b) three percent (3%) per annum
in excess of the Contract Rate.
(43) "EARLY TERMINATION DATE" has the meaning set forth in Section 2.3
hereof.
(44) "ENVIRONMENTAL LAWS" has the meaning set forth in Section 4.1
hereof.
(45) "ENVIRONMENTAL LIABILITIES AND COSTS" has the meaning set forth
in Section 4.1 hereof.
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(46) "ENVIRONMENTAL SITE ASSESSMENT" means an environmental
engineering report (Phase I and, when necessary or appropriate in Lender's
judgment, Phase II) for each Property prepared by an engineer engaged by
Lender at Borrower's expense, and in a manner satisfactory to Lender, based
upon an investigation relating to and making appropriate inquiries
concerning the existence of Hazardous Materials on or about such Property,
and the past or present discharge, disposal, release or escape of any such
substances, all consistent with good customary and commercial practice.
(47) "ERISA" means the Employee Retirement Income Security Act of 1974
(or any successor legislation thereto), as amended from time to time.
(48) "EVENT OF DEFAULT" has the meaning set forth in Article 10.
(49) "EXTENSION NOTICE" has the meaning set forth in Section 2.3
hereof.
(50) "FEDERAL RESERVE BOARD" has the meaning set forth in Section 6.14
hereof.
(51) "FIDELITY FEDERAL GROUND LEASES" means, collectively, the ground
leases described in Exhibit "E" hereto, as the same may from time-to-time
be modified or amended as permitted under the Loan Documents.
(52) "FIDELITY FEDERAL PROPERTY" means the Property described in
Exhibit "D-8" hereto.
(53) "FISCAL YEAR" means the calendar year. Subsequent changes of the
fiscal year of Borrower shall not change the term "Fiscal Year," unless
Lender shall consent in writing to such changes.
(54) "GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time.
(55) "GECC" means General Electric Capital Corporation, a New York
corporation.
(56) "GOVERNMENTAL AUTHORITY" means any nation or government, any
state or other political subdivision thereof, and any agency, department or
other entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
(57) "GROSS RECEIPTS" means, for any period, all rental and other cash
income (other than any proceeds in respect of a Capital Transaction)
actually received by, on behalf of, or for the account of Borrower from any
source in respect of the Properties, including rental receipts (including
percentage rents and room charges) from Tenants, advance rentals or prepaid
rents (but only to the extent not required to be segregated under
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any applicable Law), reimbursements from Tenants for their share of
utilities, services and supplies and other operating expenses under Leases,
Security Deposit forfeitures, proceeds from letters of credit or other
credit enhancements (except to the extent applied to the Loan balance or to
the items for which such credit enhancements were originally provided, as
otherwise required in this Agreement), proceeds from rental or business
interruption insurance, parking, concessions and vending fees, food and
beverage income, laundry income, and furniture rentals, but excluding (a)
Security Deposits made by Tenants until such deposits are applied by
Borrower pursuant to the applicable Lease, (b) capital contributions or
loans made to Borrower by any of the partners in Borrower, and (c) Advances
under the Loan.
(58) "GUARANTEED INDEBTEDNESS" means, as to any Person, any obligation
of such Person guaranteeing any indebtedness, lease, dividend, or other
obligation ("primary obligations") of any other Person (the "primary
obligor") in any manner including any obligation or arrangement of such
Person (a) to purchase or repurchase any such primary obligation, (b) to
advance or supply funds (i) for the purchase or payment of any such primary
obligation or (ii) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet condition of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (d) to indemnify the owner of such
primary obligation against loss in respect thereof.
(59) "HAZARDOUS MATERIALS" has the meaning set forth in Section 4.1
hereof.
(60) "HAZARDOUS SUBSTANCES INDEMNITY AGREEMENT" means the hazardous
substances indemnity agreement executed by Borrower and Whitehall in favor
of Lender with respect to the Properties, in form and substance
satisfactory to Lender.
(61) "HOLDING COMPANY" means WXI/McN Realty L.L.C., a Delaware limited
liability company.
(62) "IMPAIRED PROPERTY" has the meaning set forth in Section 8.18.
(63) "INDEBTEDNESS" of any Person shall mean (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of
property or services (including reimbursement and all other obligations
with respect to surety bonds, letters of credit and bankers' acceptances,
whether or not matured, but not including obligations to trade creditors
incurred in the ordinary course of business), (b) all obligations of such
Person evidenced by notes, bonds, debentures or similar instruments, (c)
all indebtedness created or arising under any conditional sale or other
title retention agreements with respect to property acquired by such
Person, (d) all Capital Lease Obligations, (e) all Guaranteed Indebtedness,
(f) all Indebtedness referred to in clause (a), (b), (c), (d) or (e) above
secured by (or for which the holder of such Indebtedness has an existing
right, contingent or
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otherwise, to be secured by) any Lien upon or in property (including
accounts and contract rights) owned by such Person, even though such Person
has not assumed or become liable for the payment of such Indebtedness, (g)
as to Borrower and any Borrower Party, the Obligations, and (h) all
liabilities under Title IV of ERISA.
(64) "INITIAL ADVANCE" means the initial Advance made by Lender to
Borrower on the Closing Date in the maximum amount of $99,185,728, less the
sum of the amounts in the "Loan Basis" column on Schedule 1.1(B) for the
properties identified on such Schedule as Additional Properties (if any).
The Initial Advance shall be made for the purpose of financing or
refinancing the Initial Properties and paying certain Loan closing costs.
(65) "INITIAL PROPERTIES" means the properties described in Exhibits
"D-1" through "D-21" attached hereto, excluding any such properties
identified as "Additional Properties" on Schedule 1.1(B).
(66) "INTEREST PAYMENT DATE" has the meaning set forth in Section 2.3
hereof.
(67) "IRC" means the Internal Revenue Code of 1986, as amended, and
any successor thereto.
(68) "IRS" means the Internal Revenue Service, or any successor
thereto.
(69) "LAWS" means all federal, state and local laws, rules,
regulations, ordinances and codes.
(70) "LEASE BUY OUT CONSIDERATION" means all amounts paid to Borrower
by any tenant under a Lease as consideration for terminating such Lease
prior to its stated expiration date.
(71) "LEASES" means all written rights to use any portion of any
Property in which Borrower is the lessor.
(72) "LEASING COSTS" means, with respect to any Property, leasing
commissions payable to brokers who are not Affiliates of Borrower, which
are commercially reasonable and customary for the area where the Property
is located.
(73) "LENDER" means GECC and any future holder of all or any portion
of the Note.
(74) "LIBOR RATE" means the U.S. Dollar rate listed on page 3750
(i.e., the LIBOR page) of the Telerate News Services titled "BRITISH BANKER
ASSOCIATION INTEREST SETTLEMENT RATES" for a designated maturity of one (1)
month determined as of 11:00 a.m. London Time on the second (2nd) full
Eurodollar Business Day next preceding the first day
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of each month with respect to which interest is payable under the Loan
(unless such date is not a Business Day in which event the next succeeding
Eurodollar Business Day which is also a Business Day will be used). If the
Telerate News Services (1) publishes more than one (1) such LIBOR Rate, the
average of such rates shall apply, or (2) ceases to publish the LIBOR Rate,
then the LIBOR Rate shall be determined from such substitute financial
reporting service as Lender in its discretion shall determine. The term
"EURODOLLAR BUSINESS DAY", shall mean any day on which banks in the City of
London are generally open for interbank or foreign exchange transactions.
(75) "LIEN" means any mortgage or deed of trust (including any Deed of
Trust), pledge, hypothecation, assignment, deposit arrangement, lien,
Charge that becomes a lien on real property, claim, security interest,
easement or encumbrance, or preference, priority or other security
agreement of any kind or nature whatsoever (including any lease or title
retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or agreement to
give, any financing statement perfecting a security interest under the Code
or comparable Law of any jurisdiction).
(76) "LOAN" means the loan to be made by Lender to Borrower under this
Agreement up to the Maximum Loan Amount.
(77) "LOAN DOCUMENTS" means this Agreement, the Note, the Borrowing
Date Certificate, the Collateral Documents, the Hazardous Substances
Indemnity Agreement, the Agreement Regarding Asset Management Agreement,
the Whitehall Indemnity and all other agreements, instruments, documents
and certificates evidencing, securing, governing or otherwise pertaining to
the Loan.
(78) "MAJOR WORK" has the meaning set forth in Section 3.2 hereof.
(79) "MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on
(a) the assets, operations or financial condition of Borrower taken as a
whole, (b) Borrower's ability to pay the Obligations in accordance with the
terms thereof and otherwise comply with the terms of this Agreement, (c)
any Property individually or (d) Lender's Liens (individually or
collectively) on the Collateral or the priority of any such Lien.
(80) "MATERIAL AGREEMENT" shall mean any material written or oral
agreement, contract, commitment or understanding requiring payments,
pledges, or performance executed or assumed by Borrower in connection with
the Properties (other than the Loan Documents) which provides for payments
by Borrower over the term of any such agreement, contract, commitment or
understanding in excess of One Hundred Thousand and No/100 Dollars
($100,000.00) and which is not cancelable by Borrower upon sixty (60) days'
or less notice without liability for further payment other than a nominal
penalty and which is not assignable without consent of the other party
thereto. For purposes of clarification, this term shall not include Leases
currently in effect or entered into in accordance with the terms hereof.
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(81) "MATERIAL LEASE" has the meaning set forth in Section 5.4 hereof.
(82) "MATURITY DATE" means the earliest of (a) January 31, 2003, as
such date may be extended pursuant to the provisions of Section 2.3(3), (b)
the Early Termination Date, or (c) any other date on which the entire Loan
is required to be paid in full, by acceleration or otherwise, under this
Agreement or any of the other Loan Documents.
(83) "MAXIMUM LIABILITY" has the meaning set forth in Section 12.1
hereof.
(84) "MAXIMUM LOAN AMOUNT" means $109,185,728.00.
(85) "MCNEIL" means McNeil Partners, L.P., a Delaware limited
partnership.
(86) "NET CAPITAL PROCEEDS" shall mean, with respect to a Capital
Transaction, (a) the cash proceeds (including cash equivalents) therefrom
plus (b) the cash proceeds (including cash equivalents) of the disposition
of any non-cash consideration, in each case received by or for the account
of Borrower, less the ordinary and customary direct selling expenses
incurred by Borrower in connection with such Capital Transaction (including
then customary brokerage commissions for assets similar to the affected
Property and a disposition fee to the Asset Manager of up to one percent
(1%) of the Consideration (as defined in the Asset Management Agreement)
received by Borrower).
(87) "NON-STORAGE LEASES" means the Leases, other than the Leases for
any portion of the Storage Properties.
(88) "NOTE" means the Promissory Note of even date herewith, in the
stated principal amount of One Hundred Nine Million One Hundred Eighty-Five
Thousand Seven Hundred Twenty-Eight and No/100 Dollars ($109,185,728.00)
executed by Borrower, and payable to the order of Lender, in evidence of
the Loan.
(89) "NOTICE OF ADDITIONAL ADVANCE" means a notice, substantially in
the form of Exhibit "A" hereto, which Borrower shall deliver to Lender in
connection with each requested Advance and which shall specify the
requested date and amount of such Advance.
(90) "OBLIGATIONS" shall mean all loans, advances, debts, liabilities
and obligations for monetary amounts (whether such amounts are liquidated
or determinable) owing by Borrower to Lender, and all present or future
covenants and duties regarding such amounts, of any kind or nature, whether
evidenced by any note, agreement or other instrument, arising under any of
the Loan Documents. This term includes all interest, charges, expenses,
attorneys' fees and any other sum chargeable to Borrower under any of the
Loan Documents.
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(91) "OPERATING CASH FLOW" shall mean, for any period, the excess, if
any, of (a) cumulative Gross Receipts from all Properties and from any
other source of Borrower for the period in question (including from any
interest rate cap or other hedging device) over (b) cumulative Operating
Expenses (excluding debt service) for all Properties for such period.
(92) "OPERATING EXPENSES" shall mean, for any period, all ordinary,
normal and necessary cash expenses directly or indirectly incurred by or
for the account of Borrower in respect of any Property as would be incurred
by owners of assets similar to the Properties and which would be considered
operating expenses under GAAP, including payments under the Fidelity
Federal Ground Leases, repair and maintenance costs, Charges in respect of
the Properties, litigation costs, fees paid to property managers and
expenses properly reimbursable to the property managers and which would
otherwise be an operating expense hereunder, including Reserves therefor;
but excluding (a) any completed Capital Transactions and the expenses
(including adjustments and prorations) incurred in any completed Capital
Transaction, (b) any amounts in respect of the Asset Management Fee or any
other fee, compensation or reimbursement payable to Asset Manager under the
Asset Management Agreement, or Asset Manager's or Borrower's general
partner's overhead and operating expenses, (c) any item for which a Reserve
has been previously established and considered an Operating Expense, and
(d) any costs, fees or expenses related to or in connection with the
negotiation or consummation of the transactions contemplated by this
Agreement. Notwithstanding the foregoing, it is understood and agreed that
to the extent that any of the foregoing are funded out of the Loan, such
expenses shall not be deemed to be Operating Expenses.
(93) "OTHER TAXES" has the meaning set forth in Section 8.10 hereof.
(94) "PARTIAL RELEASE NOTICE" has the meaning set forth in Section 2.4
hereof.
(95) "PARTNERSHIP AGREEMENT" means that certain Amended and Restated
Agreement of Limited Partnership of WXI/MCN Commercial Real Estate Limited
Partnership, dated as of January 31, 2000.
(96) "PERMITTED ENCUMBRANCES" means the following encumbrances: (a)
Liens for taxes or assessments or other governmental charges or levies,
either not yet due and payable or to the extent that nonpayment thereof is
permitted by the terms of this Agreement; (b) workers', mechanics', or
other similar liens on the Properties arising after the Closing Date in the
ordinary course of business and securing indebtedness which can be realized
by foreclosure on any Property and which (i) with respect to such Property
shall not exceed $100,000 at any time outstanding, and (ii) with respect to
all of the Properties shall not exceed, in the aggregate, $1,000,000 at any
time outstanding, and which are being contested in good faith to the extent
and in the manner expressly permitted under this Agreement; (c) deposits
securing or in lieu of surety, appeal or customs bonds in proceedings to
which Borrower is a party; (d) any attachment or judgment Lien, provided
that the
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judgment it secures shall, within 60 days after the entry thereof, have
been discharged or execution thereof stayed pending appeal, or shall have
been discharged within 60 days after the expiration of any such stay; (e)
any additional permitted liens expressly allowed by any provision of the
Loan Documents; (f) mechanics' liens, which are subordinate to the Lien of
the applicable Deed of Trust, arising out of work performed by or materials
furnished to or on behalf of Tenants for which Borrower is not indebted;
(g) with respect to each Property, such exceptions to title as appear on
Schedule B to the Title Policy delivered to and accepted by Lender with
respect to such Property; and (h) easements, rights-of-way, restrictions
(including zoning restrictions), defects or irregularities in title and
other similar title matters not, in any material respect, interfering with
the operation, use or value of the property encumbered or affected
(provided that the foregoing clause (h) shall in no way be deemed a waiver
by Lender of, or otherwise operate to impair, any rights or remedies Lender
may have under the Title Policies with respect to items described in such
clause which are not excluded from coverage under such policies).
(97) "PERSON" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, trustee, estate, limited
liability company, unincorporated organization, real estate investment
trust, government or any agency or political subdivision thereof, or any
other form of entity.
(98) "PLAN" means, with respect to Borrower, at any time, an employee
benefit plan, as defined in Section 3(3) of ERISA, which Borrower
maintains, contributes to, or has an obligation to contribute to on behalf
of participants employed by Borrower.
(99) "POTENTIAL DEFAULT" means the occurrence of any event or
condition which, with the giving of notice, the passage of time, or both,
would constitute an Event of Default.
(100) "PROPERTIES" means, collectively, (a) the Initial Properties,
(b) each Additional Property, if any, which is financed or refinanced with
an Acquisition Advance, and (c) as to each property described in clauses
(a) or (b) above, all other "Property" described in the Deed of Trust
encumbering such property.
(101) "PROPERTY BASIS" means, with respect to a particular Property,
the amount set forth opposite the reference to such Property on the
attached Schedule 1.1(B) under the caption "Property Basis."
(102) "PROPERTY DOCUMENTS" has the meaning set forth in Section 6.23.
(103) "PURCHASE AGREEMENT" means that certain Master Agreement dated
as of June 24, 1999, by and among Holding Company, McNeil, the "McNeil
Partnerships" described therein, McNeil Investors, Inc., McNeil Real Estate
Management, Inc., McNeil Summerhill, Inc. and Robert A. McNeil
(104) "RELEASE" has the meaning set forth in Section 4.1 hereof.
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(105) "RELEASE PAYMENT" has the meaning set forth in Section 2.4
hereof.
(106) "REMEDIAL ACTION" has the meaning set forth in Section 4.1
hereof.
(107) "RESERVES" means (a) any reserves required by the terms of the
Loan Documents, (b) reserves for ordinary trade payables coming due within
the next 30 day period, and (c) reserves established by Borrower and
approved by Lender, for doubtful accounts, returns, allowances, contingent
liabilities, Operating Expenses and the like, in each case as may be, or as
may otherwise be required in accordance with GAAP.
(108) "SECURITY DEPOSITS" shall have the meaning set forth in Section
5.6 hereof.
(109) "SELLER" means, collectively, the "Participating McNeil
Partnerships" (as defined in the Purchase Agreement) which at any time held
title to one or more Properties.
(110) "SHAREHOLDER LITIGATION" means any litigation (whether a court
proceeding, arbitration, mediation, administrative action or otherwise)
heretofore or hereafter commenced by any limited partners in the Sellers
against the Sellers, the general partner(s) of the Sellers, Borrower,
Borrower's general partner, Holding Company, Whitehall and/or Lender in
connection with, arising from or relating to the Purchase Agreement, any of
the other "Transaction Documents" described therein, any of the "Proxy
Statements" described therein, any of the transactions contemplated by any
of the foregoing, any challenge to the fairness or the bidding process
leading up to such transactions (or any of them), and/or any of the matters
upon which any of the plaintiffs' claims in the class action litigation
described in Section 8.1(d) of the Purchase Agreement were based, in whole
or in part.
(111) "STATE" means the State of New York.
(112) "STORAGE PROPERTIES" means, collectively, those Properties which
have a "Self Storage" property type designation on Schedule 1.1(A).
(113) "TAXES" has the meaning set forth in Section 8.10 hereof.
(114) "TENANT" means the tenant or lessee under any Lease or any other
occupant of any Property pursuant to any legal right.
(115) "TENANT ALLOWANCES" means, with respect to Leases executed after
the Closing Date (a) moving expenses of the Tenant not to exceed three
dollars ($3.00) per square foot of rentable space to be leased by such
Tenant under the Lease and (b) buyout payments to a Tenant to pay or
reimburse such Tenant for amounts required to be paid to the landlord of
the space which was leased and surrendered by such Tenant for terminating
such lease prior to its stated expiration date, provided that such moving
expenses and buyout
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payments are commercially reasonable and customary for the area in which
the particular Property is located.
(116) "TENANT IMPROVEMENTS" means (a) tenant improvements which are
paid for by Borrower or reimbursed to Tenants in connection with Leases
which are commercially reasonable and customary for the area in which the
particular Property is located and (b) Tenant Allowances.
(117) "TERM" means the period commencing as of the Closing Date and
ending on the close of business on the Maturity Date.
(118) "TITLE COMPANY" means Lawyers Title Insurance Corporation.
(119) "TITLE POLICY" means with respect to each Property, an ALTA
mortgagee's title insurance policy as more particularly described on
Schedule 2.1 attached hereto.
(120) "TO BORROWER'S KNOWLEDGE" means to the knowledge of Whitehall
and any Persons which are Affiliates of Whitehall prior to the Closing
Date, but without any imputed knowledge from (a) any prior owner of any the
Properties, (b) any Persons which, prior to the Closing Date, are
Affiliates of any such prior owner, or (c) any other Persons which, prior
to the Closing Date, were partners, directors, officers, members,
principals, trustees, stockholders, consultants or employees of any such
prior owner or any such Affiliate.
(121) "WHITEHALL" means Whitehall Street Real Estate Limited
Partnership XI, a Delaware limited partnership.
(122) "WHITEHALL XII" means Whitehall Street Real Estate Limited
Partnership XII, a Delaware limited partnership.
(123) "WHITEHALL INDEMNITY" means that certain Indemnification
Agreement executed by Whitehall and Whitehall XII in favor of Lender with
respect to Shareholder Litigation, in form and substance satisfactory to
Lender.
(124) "WHITEHALL NET WORTH" means the "Net Worth" of Whitehall and
Whitehall XII as defined in the Whitehall Indemnity.
(125) "WORK" has the meaning set forth in Section 3.2 hereof.
(126) "WORKING CAPITAL ADVANCE" means an Advance made by Lender to
Borrower for the purpose of reimbursing Borrower for, or paying for,
certain costs in respect of Capital Expenditures, Tenant Improvements
and/or Leasing Costs.
(127) "WORKING CAPITAL ADVANCE ALLOCATION" means $10,000,000.00.
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(128) "WORKING CAPITAL BUDGET" means, for any Property, the budget
approved by Lender setting forth the amount of Working Capital Advances
allocated to pay Capital Expenditures, Tenant Improvements and Leasing
Costs incurred in connection with such Property.
ARTICLE 2
LOAN TERMS
Section 2.1 THE LOAN ADVANCES.
(1) PURPOSES. Lender agrees to make to Borrower the Loan, to be funded
in one or more Advances and repaid in accordance with this Agreement, for
the following purposes: (a) to finance or refinance the Properties and pay
certain Loan closing costs; and (b) to fund Working Capital Advances.
(2) AMOUNTS. The aggregate amount of all Advances on a cumulative
basis shall not exceed the Maximum Loan Amount. In addition, the aggregate
amount of all Working Capital Advances, on a cumulative basis, shall not
exceed the Working Capital Advance Allocation.
(3) FREQUENCY. Advances shall not be made more frequently than once
per calendar month.
(4) INITIAL ADVANCE. Provided Borrower has satisfied all terms and
conditions described in Part A of Schedule 2.1 hereto, Lender shall
disburse the Initial Advance on the Closing Date as follows:
(a) An amount equal to the commitment fee owing to Lender, plus
all other sums owing to Lender described in Part A of Schedule 2.1
hereto, shall be disbursed to Lender in payment of such sums;
(b) The amount specified in Lender's escrow and recording
instructions shall be disbursed by wire transfer to the Title Company
for credit to the escrow established to consummate the Loan closing,
which shall be disbursed by the Title Company in accordance with
Lender's escrow and recording instructions to finance the acquisition
of the Properties and to pay certain Loan closing costs; and
(c) The balance of the Initial Advance by wire transfer to
Borrower (or as otherwise requested by Borrower).
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(5) WORKING CAPITAL ADVANCES. During the initial Term, Lender shall
make Working Capital Advances to Borrower subject to and in accordance with
the following terms and conditions:
(a) Working Capital Advances for each Property shall be made in
accordance with the allocations set forth in the Working Capital
Budget for such Property. The Working Capital Budgets for the
Properties are set forth in Schedule 2.1(5) hereof. Unless Lender
otherwise consents in writing, Borrower shall not, on a cumulative,
aggregate basis, reallocate more than five percent (5.0%) of the Loan
funds within a Working Capital Budget. Subject to Lender's prior
written consent in each instance, Borrower may reallocate demonstrated
surplus Loan funds (i) among categories within any Working Capital
Budget (except that such consent is not required to the extent such
reallocation is permitted under the immediately preceding sentence),
or (ii) under any Working Capital Budget to the Working Capital Budget
of one or more other Properties (whether such reallocation is
requested in connection with a sale of a Property, the failure to add
an Additional Property to the Properties, or otherwise).
(b) As to each Working Capital Advance, Borrower shall have
satisfied the terms and conditions set forth in Parts B and C of
Schedule 2.1 hereto.
(c) The amount of each Working Capital Advance shall in no event
exceed the lesser of (i) an amount which, when added to the Loan
balance, results in a sum equal to the Cash On Cash Limit, or (ii)
eighty percent (80%) of the actual costs incurred by Borrower from
third parties in respect of the Tenant Improvements, Leasing Costs or
Capital Expenditures for which such Advance is requested. In no event
shall any Working Capital Advance be used to pay or reimburse Borrower
for any commissions, fees, expenses or costs charged by or to be paid
for services rendered by Borrower or Borrower's Affiliates.
(d) Each Working Capital Advance shall be in an amount not less
than Fifty Thousand Dollars ($50,000).
(6) ACQUISITION ADVANCES. As to each Additional Property (if any),
Lender shall make an Acquisition Advance to Borrower to finance or
refinance such Additional Property and to pay certain Loan funding costs in
connection therewith, subject to and in accordance with the following terms
and conditions:
(a) The amount of the Acquisition Advance shall not exceed the
least of (i) the amount designated as the "Loan Basis" amount for such
Additional Property, as set forth on Schedule 1.1(B), (ii) an amount
which, when added to the then existing Loan balance, results in a
10.75% Cash On Cash Return, (iii) an amount which, when added to the
then current Loan balance, results in a 1.15 to 1.00 Debt Service
Coverage Ratio, and (iv) an amount equal to eighty percent (80%) of
the acquisition costs incurred by Borrower for such Additional
Property, including the
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costs of any interest rate cap agreement (or amendment thereto) which
Borrower is required to obtain in connection with such Acquisition
Advance under the terms of this Agreement. Lender shall determine
Borrower's satisfaction of the foregoing condition based upon an
updated Operating Cash Flow audit of the Additional Property and each
of the Properties.
(b) As to each Acquisition Advance, Borrower shall have satisfied
the conditions specified in paragraphs 1, 4, 9, 13, 14, 15, 16, 19,
20, 24, 26, 28, 29, 30, 31, 32, 35, 36, 40, 41 and 42 of Part A of
Schedule 2.1.
(c) Borrower shall have satisfied the terms and conditions set
forth in Part B of Schedule 2.1.
(d) No new or additional information shall have become known to
Lender since the Closing Date which Lender, in it sole discretion,
determines would cause any of the environmental or engineering reports
with respect to the Additional Property, which were reviewed by Lender
prior to the Closing Date, to be inaccurate in any material respect.
(e) Borrower shall have paid to Lender, as the balance of the
commitment fee owing with respect to the Additional Property, an
amount equal to .67% of the amount of the Acquisition Advance funded.
(f) Borrower shall have confirmed in writing the revised Cash On
Cash Limit and the revised Debt Service Coverage Ratio Limit as
determined by Lender in connection with the addition of the Additional
Property to the Properties.
(g) Notwithstanding anything to the contrary contained in this
Agreement, Borrower shall not be entitled to any Acquisition Advance
after the Acquisition Advance Termination Date, and all undisbursed
Loan proceeds available for Acquisition Advances but which are not
advanced on or before the Acquisition Advance Termination Date shall
be cancelled.
(7) TIMING OF ADDITIONAL ADVANCES. Each Advance following the Initial
Advance shall be made no later than 5:00 p.m. (New York City time) on the
fifth (5th) Business Day after receipt by Lender of a Notice of Additional
Advance for the requested Advance and satisfaction of all conditions to
making such Advance (as specified in this Section 2.1 and in Schedule 2.1
hereof).
(8) NO REVOLVING ADVANCES. The Loan is not a revolving credit loan,
and Borrower is not entitled to any readvances of any portion of the Loan
which it may (or is otherwise required to) prepay pursuant to the
provisions of this Agreement.
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Section 2.2 INTEREST RATE; LATE CHARGE.
(1) CONTRACT RATE. The outstanding principal balance of the Loan
(including any amounts added to principal under the Loan Documents) shall
bear interest at a rate of interest equal to three hundred twenty-five
(325) basis points in excess of the LIBOR Rate (the "CONTRACT RATE").
(2) COMPUTATION OF INTEREST. Interest shall be computed on the basis
of a fraction, the denominator of which is three hundred sixty (360) and
the numerator of which is the actual number of days elapsed from the date
of the Initial Advance or the date on which the immediately preceding
payment was due.
(3) LATE CHARGE. If Borrower fails to pay any installment of interest
or principal within five (5) days after the date on which the same is due
(other than the payment due on the Maturity Date), Borrower shall pay to
Lender a late charge on such past-due amount, as liquidated damages and not
as a penalty, equal to two percent (2%) of such amount, notwithstanding the
date on which such payment is actually paid to Lender; provided, however,
that if any court of competent jurisdiction determines that such
delinquency charge under this Section 2.2(3) is not liquidated damages for
such delinquency (as contemplated by Borrower and Lender), and is deemed to
be interest in excess of the maximum amount of interest allowed by
applicable Law, the amount actually collected by Lender in excess of such
lawful amount shall be applied in accordance with the provisions of Section
11.3 hereof. While any Event of Default exists, the Loan shall bear
interest at the Default Rate.
Section 2.3 TERMS OF PAYMENT. The Loan shall be payable as follows:
(1) INTEREST. Commencing on March 1, 2000, Borrower shall pay interest
in arrears on the first Business Day of each month (the "INTEREST PAYMENT
DATE") until the Maturity Date, when all amounts secured by and outstanding
under the Loan Documents shall be paid in full.
(2) PRINCIPAL AMORTIZATION. During the initial Term, the Loan shall be
an interest-only loan and Borrower shall not be required to make any
regularly scheduled principal amortization payments. If the Term is
extended for one or both of the 12-month periods contemplated by Section
2.3(3) below (each, an "EXTENSION PERIOD"), then commencing on March 1,
2003, and continuing on each Interest Payment Date thereafter until all
Obligations are paid in full, Borrower shall make monthly principal
amortization payments in accordance with this Section 2.3(2), which
payments shall be applied to the outstanding principal balance of the Loan.
For each Extension Period, Lender shall calculate the total amount of
principal payments payable for such Extension Period based upon a 25-year
amortization schedule, an amortization period which begins on February 1,
2003, a fixed interest rate equal to the Contract Rate in effect as of
February 1 of such Extension Period, and the outstanding principal balance
of the Loan as of February 1 of such Extension Period. The amount of the
monthly principal amortization payment for a given Extension
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Period shall be the amount determined by dividing the aggregate amount of
all monthly principal amortization payments payable for such Extension
Period (calculated as set forth above) by twelve (12). The foregoing
notwithstanding, upon application of any Release Payment or any other
permitted or required prepayment of the Loan (other than the amortization
payments required by this Section 2.3(2)) to the Loan balance, Lender shall
recalculate the amount of the monthly principal amortization payments owing
for the remainder of the then current Extension Period, based upon the new
Loan balance and the Contract Rate then in effect, and such revised
principal amortization payment shall be due commencing on the first
Interest Payment Date occurring after the date the Release Payment (or such
other permitted or required prepayment) is made.
(3) MATURITY. On the Maturity Date, Borrower shall pay to Lender all
outstanding principal, accrued and unpaid interest, and any other amounts
due under the Loan Documents. Subject to the provisions of this paragraph,
Borrower, at its option, may extend the Term for two (2) 12-month periods,
by giving written notice (the "EXTENSION NOTICE") to Lender of Borrower's
election to obtain each such extension not less than sixty (60) days prior
to the expiration of the original Term or the first extension period, as
applicable. If Borrower elects to so extend the Term, all of the other
terms and conditions of this Agreement and the other Loan Documents shall
remain in full force and effect and unmodified except that all undisbursed
Loan funds shall be canceled as of the original Maturity Date and Borrower
shall have no further right to extend the Term after the second extension.
Borrower's right to extend the Term is subject to the satisfaction of each
of the following conditions as to each extension:
(a) No Event of Default has occurred and is continuing on the
date on which Borrower gives Lender the Extension Notice and on the
last day of the then existing Term;
(b) The Cash On Cash Return equals or exceeds twelve and one-half
percent (12.50%), and (b) the Debt Service Coverage Ratio equals or
exceeds 1.40 to 1.00;
(c) Borrower shall have paid to Lender an extension fee (for each
such extension) equal to one-quarter of one percent (0.25%) of the
outstanding principal balance of the Loan (it being the parties'
understanding and agreement that any portion of the Maximum Loan
Amount which is undisbursed as of the end of the initial Term shall be
canceled and no longer available for disbursement);
(d) Borrower shall have completed (i) all structural repairs
described in paragraph 2 on Schedule 8.19 which, in accordance with
such paragraph (and any revised work plan agreed to by the parties
pursuant thereto), are required to be completed prior to commencement
of such extension, and (ii) all Remedial Action described in paragraph
3 on Schedule 8.19 hereof (including the delivery of all required
"closure" or "no further action" letters with respect to such Remedial
Action);
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(e) Borrower shall execute and deliver such other instruments,
certificates, opinions of counsel and documentation as Lender shall
reasonably request in order to preserve, confirm or secure the Liens
and security granted to Lender by the Loan Documents, including any
amendments, modifications or supplements to any of the Loan Documents,
endorsements to Title Policies and, if required by Lender, estoppel
and other certificates; and
(f) Borrower shall pay for any and all reasonable out-of-pocket
costs and expenses, including reasonable attorneys' fees and
disbursements, incurred by Lender in connection with or arising out of
the extension of the Term.
(4) PREPAYMENT. Except as provided below, at any time during the Term,
upon not less than ten (10) days' prior written notice to Lender, Borrower
may prepay the Loan in whole or in part without premium or penalty,
provided that each such prepayment shall be accompanied by the payment of
accrued and unpaid interest on the principal amount being prepaid, through
the date of prepayment, and any other costs or expenses which are payable
to Lender in accordance with the terms hereof or any other Loan Document.
The foregoing notwithstanding, prior to August 1, 2001, the Loan shall be
closed to prepayment in whole, and partial prepayment shall only be
permitted in connection with a sale or other transfer of a Property to a
Person which is not an Affiliate of Borrower or Whitehall. From and after
August 1, 2001, Loan shall be closed to partial prepayment from a refinance
(whether by third party financing, additional capital contributions, or
otherwise) of one or more Properties and from a sale or other transfer or
conveyance of one or more Properties to an Affiliate of Borrower or
Whitehall. A prepayment premium equal to two percent (2.0%) of the
outstanding principal balance of the Loan shall be payable if an Event of
Default occurs and the Loan is accelerated prior to August 1, 2001.
Borrower acknowledges that the prepayment premium required by this Section
2.3(4) constitutes partial compensation to Lender for the costs of
reinvesting the Loan proceeds and for loss of the contracted rate of return
on the Loan. Furthermore, Borrower acknowledges that the loss that may be
sustained by Lender as a result of such prepayment by Borrower is not
susceptible of precise calculation and the prepayment premium represents
the good faith effort of Borrower and Lender to compensate Lender for such
loss. Borrower confirms that Lender's agreement to make the Loan at the
interest rate and on the other terms set forth herein constitutes adequate
and valuable consideration, given individual weight by Borrower, for the
prepayment provision set forth in this Section. Notwithstanding anything to
the contrary contained in this Section 2.3(4), none of the foregoing
restrictions on prepayments of the Loan shall apply to a prepayment
resulting from a sale, transfer or refinance of the Fidelity Federal
Property (provided that the release of such Property shall be subject to
Section 2.4).
(5) EARLY LOAN ACCELERATION. Notwithstanding anything to the contrary
contained in this Agreement, if at any time (a) the outstanding principal
balance of the Loan is less than Fifteen Million Dollars ($15,000,000) and
(b) the Cash On Cash Return is less than twelve percent (12.0%), Lender
shall have the right to accelerate the Loan, whereupon all amounts due
under the Loan Documents shall become due and payable without any
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penalty or premium on the date which is one hundred twenty (120) days (the
"EARLY TERMINATION DATE") after the date that Lender provides Borrower with
notice of its intent to accelerate the Loan pursuant to the provisions of
this paragraph; provided that Borrower shall have the right to repay the
Loan without penalty or premium (including the premium contemplated in
Section 2.3(4) above, if payable) on any earlier date after Borrower's
receipt of such notice. Borrower shall pay to Lender, in immediately
available funds, all outstanding principal, accrued and unpaid interest,
and any other amounts due under the Loan Documents as of the Early
Termination Date (or as of such earlier date on which Borrower elects to
repay the Loan, as permitted in this paragraph).
(6) APPLICATION OF PAYMENTS. All payments received by Lender under the
Loan Documents shall be applied: first, to any fees and expenses due to
Lender under the Loan Documents; second, to any Default Rate interest or
late charges; third, to accrued and unpaid interest; and fourth, to the
principal sum and other amounts owing under the Loan Documents.
(7) LENDER ADVANCES TO COVER BORROWER'S PAYMENTS. Lender is authorized
to, and at is sole option may, make advances on behalf of Borrower for
payment of all fees, expenses, charges, costs, principal, interest and
other sums incurred or payable by Borrower hereunder when and as Borrower
fails to promptly pay any such amounts (after any applicable grace period).
To the extent permitted by Law, any such advances made by Lender shall be
added to the Obligations, shall bear interest from the date advanced until
paid at the Default Rate and shall be secured by the Collateral.
(8) RECEIPT OF PAYMENTS. Borrower shall make each payment under this
Agreement not later than 2:00 p.m. (New York City time) on the day when due
in lawful money of the United States of America in immediately available
funds to Lender's depository bank in the United States as designated by
Lender from time to time for deposit in Lender's depositary account. For
purposes only of computing interest hereunder, all payments shall be
applied by Lender to the Loan on the date payment has been credited by
Lender's depository bank to Lender's account in immediately available
funds.
Section 2.4 COLLATERAL; RELEASES OF COLLATERAL. The Loan and all other
Obligations (other than Borrower's Obligations under the Hazardous Substances
Indemnity Agreement) shall be secured by the Collateral. Except as expressly set
forth below in this Section, Lender shall have no obligation to release any of
the Collateral until all Obligations have been paid and performed in full and
all obligations of Lender under this Agreement and the other Loan Documents have
terminated. Borrower shall be entitled to obtain the release of a Property from
the Lien of the Loan Documents in connection with a Capital Transaction
(excluding a Capital Transaction consisting of an event giving rise to an
insurance recovery or condemnation award in excess of repair/restoration costs),
provided that all of the following conditions are satisfied:
(1) Borrower provides Lender with reasonable prior written notice (the
"PARTIAL RELEASE NOTICE") of the proposed release together with copies of
any documents which Borrower requests that Lender execute in connection
with such proposed release.
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(2) Concurrently with Lender's release of the Property, Borrower shall
pay to Lender an amount (the "RELEASE PAYMENT") determined as follows:
(a) if, after giving effect to the proposed release, (i) the Loan
balance does not exceed the least of (A) eighty percent (80%) of the
sum of the Property Basis amounts for all the then remaining
Properties, (B) the Cash On Cash Limit, and (C) the Debt Service
Coverage Ratio Limit, and (ii) the Discounted Release Amount (defined
below) is less than the Discounted Funding Amount (defined below),
then the Release Payment shall be equal to one-hundred ten percent
(110%) of the Adjusted Loan Basis of the Property to be released; or
(b) if either or both of the conditions specified in subparagraph
(a) immediately above are not satisfied, then the Release Payment
shall be equal to one-hundred twenty percent (120%) of the Adjusted
Loan Basis of the Property to be released;
provided, however, if the release involves an Impaired Property or a
Default Property (pursuant to Borrower's rights to obtain a release of such
Property set forth elsewhere in this Agreement), then the Release Payment
shall be equal to the Adjusted Loan Basis of such Property. Notwithstanding
the foregoing, in no event shall the Release Payment for any Property
exceed the then outstanding Obligations. As used above, "DISCOUNTED RELEASE
AMOUNT" means, as of any date, the aggregate difference between the Release
Payments paid by Borrower that were calculated pursuant to subparagraph (a)
immediately above (including, for purposes of such calculation, the Release
Payment to be paid in connection with the proposed release assuming it is
calculated pursuant to subparagraph (a) above) and the amount of such
Release Payments which would have been paid by Borrower if such Release
Payments had been calculated in accordance with subparagraph (b)
immediately above. As used above, "DISCOUNTED FUNDING AMOUNT" means the
lesser of (x) $4,300,000, and (y) the positive difference, if any, obtained
by subtracting the amount of the Initial Advance from an amount equal to
eighty percent (80%) of the aggregate acquisition costs for all Properties.
(3) Except as provided in this paragraph, no Event of Default has
occurred and is continuing on the date on which Borrower gives Lender the
Partial Release Notice and on the date of delivery of the release;
provided, however, if the Property to be released is a Default Property and
the only Event of Default which exists is the Event of Default which caused
such Property to be designated as a Default Property (and which arises from
the occurrence of a breach, default, failure of condition or other event
for which no cure period is provided), then this condition shall be waived
so long as the Default Property is released within 10 days of notice from
Lender, as required in the last paragraph of Section 10.1. In addition,
Lender shall release a Property which is the subject of a Complete Taking
notwithstanding the existence of an Event of Default, if and only if (a)
Borrower has otherwise satisfied the conditions set forth in this Section
2.4 to the release of such Property, and (b) Borrower pays to Lender, as
the Release Payment for such Property, an amount equal
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to 100% of the Net Capital Proceeds from the Complete Taking (it being
understood by the parties that if no Event of Default exists, the amount to
be paid by Borrower shall be the Release Payment as determined in
accordance with the paragraph (2) above).
(4) Borrower shall execute and deliver such other instruments,
certificates, opinions of counsel and documentation as Lender shall
reasonably request in order to preserve, confirm or secure the Liens and
security granted to Lender by the Loan Documents, including any amendments,
modifications or supplements to any of the Loan Documents and partial
release endorsements to the existing Title Policies.
(5) Borrower shall pay for any and all reasonable out-of-pocket costs
and expenses incurred in connection with any proposed release, including
reasonable attorneys' fees and disbursements and all title insurance
premiums for any endorsements to any existing Title Policies reasonably
required by Lender in connection with such proposed release.
(6) Borrower shall deliver to Lender evidence reasonably satisfactory
to Lender that all amounts owing to any parties in connection with the
transaction relating to the proposed release have been paid in full, or are
simultaneously paid in full at closing, or adequate Reserves therefor are
established by Borrower in cash with respect to contingent or other
liabilities that may arise out of such transaction.
(7) Unless the proposed release will repay the Loan in full (and
terminate all of Lender's obligations hereunder), or the proposed release
involves the Fidelity Federal Property or an Impaired Property or a Default
Property, the release shall be in connection with a sale or other transfer
of the Property to a Person which is not an Affiliate of Borrower or
Whitehall. If the proposed release involves the Fidelity Federal Property
or an Impaired Property or a Default Property, then concurrently with the
release Borrower shall transfer the Property to an entity which may be
related to Borrower, so long as Borrower is not directly or indirectly
liable on a recourse basis for any of such entity's indebtedness or
obligations to any Person.
(8) If the Release Payment to be paid in connection with the proposed
release would reduce the Loan Balance to an amount less than $30,000,000,
then in addition to the foregoing conditions, such release shall be subject
to the additional condition that either (a) the Fidelity Federal Property
has been previously released, or is being concurrently released, in
accordance with this Section 2.4, or (b) Borrower shall have delivered to
Lender a consent to encumbrance and estoppel, substantially in the form
previously provided by Lender to Borrower, executed by each of the lessors
under the Fidelity Federal Ground Leases (and by any Person owning a fee
interest in any portion of the Fidelity Federal Property).
Section 2.5 ADJUSTMENTS TO ADJUSTED LOAN BASIS. The Adjusted Loan Basis
for each Property shall be increased dollar for dollar for Working Capital
Advances and other Advances which relate directly to such Property. The Adjusted
Loan Basis for each Property shall be decreased dollar for dollar for
prepayments of principal which relate directly to such Property (e.g.,
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casualty or condemnation proceeds, or a Release Payment) and any prepayment
proceeds in excess of the Adjusted Loan Basis (e.g., the excess portion of the
Release Payment for any specific Property) and any other prepayment of principal
not directly related to a specific Property shall be allocated by Lender among
the Properties, on a pro rata basis, in accordance with each Property's Adjusted
Loan Basis.
Section 2.6 CAPITAL ADEQUACY; INCREASED COSTS; ILLEGALITY.
(1) If Lender shall determine that any new applicable Law adopted
after the Closing Date regarding capital adequacy, or any change after the
Closing Date in any existing Law, or any change after the Closing Date in
the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof or compliance by Lender (or its lending office) with
any request or directive regarding capital adequacy (whether or not having
the force of law) of any such Governmental Authority, central bank or
comparable agency, has or would have the effect of reducing the rate of
return on Lender's capital as a consequence of its obligations hereunder or
credit extended by it hereunder to a level below that which Lender could
have achieved but for such adoption, change or compliance by an amount
deemed by Lender to be material, then from time to time as promptly
specified by Lender in writing, Borrower shall pay such additional amount
or amounts as will compensate Lender for such reduction; provided that
Borrower shall not be required to pay any amounts pursuant to this
paragraph (1) to a subsequent holder of the Note to the extent that such
amounts would not have been payable had GECC continued to hold the Note.
(2) Upon the occurrence of any of the events set forth in paragraph
(1) above, Lender shall promptly notify Borrower in writing of the
occurrence of such event. If requested by Borrower, in connection with any
demand for payment pursuant to this Section, Lender shall provide to
Borrower a summary setting forth in reasonable detail the basis for such
demand, the amount required to be paid by Borrower to Lender and the
computations made by Lender to determine such amount (which computations
shall be deemed conclusive absent manifest error).
ARTICLE 3
INSURANCE, CONDEMNATION, DEPOSITS AND RESERVES
Section 3.1 INSURANCE. Borrower shall maintain insurance with respect
to the Properties as follows:
(1) PROPERTY; BUSINESS INTERRUPTION. Borrower shall keep the buildings
and the improvements located on each Property insured (a) against loss or
damage by fire, lightning, windstorm, tornado, hail and such other further
and additional hazards of whatever kind or nature as are now or hereafter
may be covered by standard extended coverage "all risk" endorsements
(including vandalism, malicious mischief and damage by water (other
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than flood)) of whatsoever kind, in an amount not less than one hundred
percent (100%) of the full replacement cost of such improvements including
the cost of debris removal, but excluding the value of foundations and
excavation and surface parking, (b) against loss or damage by earthquake,
including subsidence, as reasonably required by Lender, and (c) against
loss of rentals and business interruption due to any of the foregoing
causes, in an amount not less than twelve (12) months anticipated gross
rental income or gross business earnings, as applicable.
(2) LIABILITY. Borrower shall maintain commercial general liability
insurance with respect to each Property and the operations related thereto,
whether conducted on or off such Property, against liability for personal
injury, including bodily injury and death, and property damage in an amount
not less than $1,000,000 per Property and per occurrence, with a $4,000,000
per Property umbrella policy. Such liability insurance shall be on an
occurrence basis, shall provide (but need not specifically describe)
coverage for sprinkler leakage liability and water damage legal liability,
and shall specifically include premises operations, products liability, and
broad form contractual coverage. Borrower also shall maintain motor vehicle
liability for all owned and non-owned vehicles, including rented and leased
vehicles.
(3) WORKERS' COMPENSATION. Workers' compensation for employees of
Borrower as required by applicable Law.
(4) FORM AND QUALITY. All casualty and business interruption or rental
income insurance provided hereunder shall name Lender under a standard
"non-contributory mortgagee" endorsement or its equivalent, which shall be
acceptable to Lender, and liability insurance shall be evidenced by
certificates of insurance issued to Lender and naming Lender as additional
insured. All property insurance shall provide for loss payable to Lender as
provided in this Agreement, shall be provided by insurance companies which
have a Best's rating of at least "A-IX" or otherwise shall be acceptable to
Lender in its reasonable discretion. Every policy of insurance shall
contain an agreement by the insurer that it will not cancel such policy
except after thirty (30) days prior written notice to Lender, if obtainable
(but in no event less than ten (10) days) and that any loss payable
thereunder shall be payable notwithstanding any act or negligence of Lender
and Borrower which might, absent such agreement, result in a forfeiture of
all or a part of such insurance payment and notwithstanding (a) occupancy
or use of the Property for purposes more hazardous than permitted by the
terms of such policy, (b) any foreclosure or other action or proceeding
taken by Lender pursuant to the Deed of Trust encumbering the Property or
(c) any change in title to or ownership of the Property. All deductible
amounts under the insurance policies required to be carried pursuant to
this Section 3.1 shall be subject to Lender's reasonable approval. At
Lender's request, Borrower shall deliver to Lender copies of, or (at
Borrower's option) certificates of insurance for, all such policies of
insurance. If any insurance required to be provided hereunder shall expire,
be withdrawn, become void by breach of any condition thereof by Borrower
with respect to any Property, or become void or questionable by reason of
the failure or impairment of the capital of any insurer, Borrower
immediately shall obtain new or additional insurance which shall conform to
the requirements hereof.
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Borrower shall not take out any separate or additional insurance which is
contributing in the event of loss unless it is properly endorsed and
otherwise satisfactory to Lender in all respects. Lender shall have the
right to conduct a periodic audit of Borrower's procedures in respect of
insurance matters and Borrower shall cooperate with Lender therein.
(5) EVIDENCE OF INSURANCE. Borrower shall (a) pay as they become due
all premiums for the insurance required hereunder, and (b) not later than
thirty (30) days if available (but in no event less than ten (10) days)
prior to the expiration of each such policy, deliver a certificate of
insurance evidencing the insurance required to be provided hereunder for a
period of not less than one year, marked "premium paid," or accompanied by
such other evidence of payment as shall be reasonably satisfactory to
Lender.
(6) LENDER'S RIGHT TO PLACE INSURANCE. If Borrower shall be in default
of its obligation to insure any Property in accordance with the provisions
hereof, Lender, at its option and without notice, may (but shall have no
obligation to) obtain such insurance from year to year, and pay the premium
or premiums therefor, and, in such event, the amount of all such premiums
paid by Lender (a) shall be deemed to be Obligations, (b) shall be secured
by the Collateral prior to any right or title to, or interest in, or claim
upon, the Collateral subordinate to the Lien of Lender on the Collateral,
and (c) shall be immediately due and payable, on demand, together with
interest thereon at the Default Rate, from the date of any such payment by
Lender to the date of repayment to Lender.
(7) INCREASES IN INSURANCE AMOUNTS. Borrower shall increase the amount
of all-risk casualty insurance required to be provided pursuant to the
provisions of Section 3.1 hereof at the time that each such policy of
insurance is renewed (but, in any event, not less frequently than once
during each twelve (12) month period) by using the F.W. Dodge Building
Index (or, if such index is no longer available, such other similar
available index acceptable to Lender) to determine whether there shall have
been an increase in the replacement cost of the improvement since the most
recent adjustment to any such policy and, if there shall have been any such
increase, the amount of insurance required to be provided hereunder shall
be adjusted accordingly.
(8) COMPLIANCE WITH POLICY REQUIREMENTS. Borrower promptly shall
comply with (a) all of the provisions of each such insurance policy
affecting the Properties, and (b) all of the requirements of the insurers
thereunder applicable to Borrower or to any improvements located on the
Properties or to the use, manner of use, occupancy, possession, operation,
maintenance, alteration, repair or restoration of any of the improvements
located on the Properties, even if such compliance would necessitate
structural changes or improvements or would result in interference with the
use or enjoyment of the Properties or any portion thereof.
(9) ADDITIONAL INSURANCE. Lender shall have the right from time to
time to require Borrower to procure such other and additional insurance,
and increased amounts, relating to the Properties in such amounts and
against such insurable events or occurrences as Lender may reasonably
require and which are consistent with industry practice for assets
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similar to the Properties, including (a) if the Property is located in a
federally designated "special flood hazard zone", flood, including surface
water; and (b) contingent liability from the operation of any building Laws
pertaining to non-conforming property.
Section 3.2 CASUALTY; USE AND APPLICATION OF INSURANCE PROCEEDS. In the
event of damage or destruction to any Property, or any portion thereof, whether
insured or uninsured, Borrower and Lender shall proceed as follows:
(1) Borrower promptly shall give written notice of such damage or
destruction to Lender (and upon such notification, Schedule 6.5 hereof
shall be deemed to have been automatically amended to reflect the matters
contained in such notification) and promptly shall cause the Property to be
secured in a safe manner and thereafter to prepare and submit a budget, and
after approval thereof, shall commence and diligently continue to perform
repair, restoration and rebuilding of the portion of the Property so
damaged or destroyed (the "WORK") to restore the Property in full
compliance with all legal requirements so that the Property shall be at
least equal in value and quality and general utility as it was prior to the
damage or destruction and, if the cost of the Work as estimated by Lender
shall exceed the sum of $100,000 ("MAJOR WORK"), then Borrower, prior to
the commencement of the Work, shall furnish to Lender (a) complete plans
and specifications for the Work (approved by all Governmental Authorities
whose approval is required at such time), for Lender's approval, which
approval shall not be unreasonably withheld or delayed, which plans and
specifications (as approved by Lender, the "APPROVED PLANS") shall bear the
signed approval thereof by the Architect and shall be accompanied by the
Architect's signed estimate, bearing the Architect's seal, of the entire
cost of completing the Work; (b) certified or photostatic copies of all
permits and approvals required by Law in connection with the commencement
and conduct of the Work; and (c) a payment and performance bond for and/or
guaranty of the payment for and completion of, the Work, which bond or
guaranty shall be in form reasonably satisfactory to Lender, shall be
signed by a surety or sureties, or guarantor or guarantors, as the case may
be, who are reasonably acceptable to Lender, and shall be in an amount of
not less than one hundred ten percent (110%) of the Architect's estimate of
the entire cost of completing the Work.
(2) Borrower shall not commence any Work until Borrower shall have
complied with the requirements referred to in paragraph (1) above, and
after commencing the Work, Borrower shall perform the Work diligently in a
good and workmanlike manner and in good faith in accordance with the
Approved Plans, if applicable, and in compliance with all applicable Laws.
(3) The casualty insurance policies required to be maintained in
accordance with this Agreement shall provide that the proceeds shall be
paid in accordance with the provisions of this paragraph. If the proceeds
exceed One Hundred Thousand Dollars ($100,000), Borrower promptly shall
deliver to Lender any proceeds which are paid directly to Borrower by the
casualty insurance carrier. All proceeds delivered to Lender as aforesaid,
together with all proceeds paid directly to Lender on account of damage or
destruction to the Property, less the cost, if any, to Lender of such
recovery and of paying out such proceeds
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(including reasonable attorneys' fees and other third party out-of-pocket
costs allocable to inspecting the Work and reviewing the plans and
specifications therefor), upon written request of Borrower, shall be
applied by Lender to the payment of the cost of the Work and shall be paid
out from time to time as the Work progresses to Borrower and/or, at
Lender's option exercisable from time to time, directly to the contractor,
subcontractors, materialmen, laborers, engineers, architects and other
persons rendering services or materials in connection with the Work, except
as otherwise hereinafter provided, but subject to the following conditions,
any of which Lender may waive:
(a) If the Work to be done is Major Work, as reasonably
determined by Lender, the Architect shall administer the Work.
(b) Each request for payment shall be made at least ten (10) days
prior to the requested date of disbursement and shall be accompanied
by a certificate of an officer of the general partner of Borrower
stating that (i) all of the Work completed has been done in a good and
workmanlike manner and in material compliance with the Approved Plans
(if applicable), and in accordance with all applicable provisions of
Law; (ii) the sum requested is justly required to reimburse Borrower
for payments by Borrower to, or is justly due to, the contractor,
subcontractors, materialmen, laborers, engineers, architects or other
persons rendering services or supplying materials in connection with
the Work (giving a brief description of such services and materials),
and that when added to all sums previously paid out by Lender, if any,
the resulting sum does not exceed the value of the Work done to the
date of such certificate; and (iii) the amount of proceeds remaining
in the hands of Lender, together with other funds otherwise available
to Borrower, will be sufficient on completion of the Work to pay for
the same in full (giving in such reasonable detail as Lender may
require an estimate of the cost of such completion and, if such other
funds are required, as to the sources of such funds). If the Work is
structural or Major Work, as reasonably determined by Lender, then
each request for payment therefor also shall be accompanied by a
certificate of the Architect confirming, in Architect's professional
opinion, the matters listed in clauses (i) and (ii) of the preceding
sentence.
(c) Each request shall be accompanied by waivers or releases of
liens, reasonably satisfactory to Lender, covering that part of the
Work previously paid for, if any, and by a search prepared by a title
company or other evidence satisfactory to Lender showing that any
mechanic's lien or other lien or instrument for the retention of title
relative to the Work which has been filed with respect to the Property
or any part thereof, other than Permitted Encumbrances and those which
may have been approved by Lender, have been discharged of record by
bonding or otherwise.
(d) None of the Material Leases in effect immediately prior to
the damage or destruction shall have been canceled, nor contain any
still exercisable right to cancel, due to such damage or destruction.
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(e) There shall be no Event of Default on the part of Borrower
under this Agreement or any other Loan Documents.
(f) With respect to the final advance only (which shall include
any retainage previously held back by Lender) the request for any
payment after the Work has been completed shall be accompanied by a
copy of any certificate or certificates required by Law to render
occupancy and operation of the Property legal.
(4) Upon completion of the Work and payment in full therefor, or upon
failure on the part of Borrower promptly to commence or diligently to
continue the Work, or at any time upon request by Borrower, the amount of
any proceeds then or thereafter in the hands of Lender shall be applied by
Lender to the Loan balance.
(5) In the event the Work to be done is not Major Work, the proceeds
shall be paid to Borrower to be applied toward the cost of the Work,
subject to the provisions of the foregoing paragraphs (1), (2), (3) and (4)
above, other than those applicable to Major Work.
(6) If: (a) within sixty (60) days after the occurrence of any damage
or destruction to a Property or any portion thereof requiring Major Work in
order to restore the Property, Borrower fails to submit to Lender for
Lender's approval plans and specifications for the repair, restoration and
rebuilding of the Property so damaged or destroyed (approved by the
Architect and by all Governmental Authorities whose approval is required at
such time); or (b) within ninety (90) days after such plans and
specifications are approved by all such Governmental Authorities, other
parties and Lender, Borrower fails to promptly commence such repair,
restoration and rebuilding; or (c) thereafter Borrower fails to diligently
continue such repair, restoration and rebuilding or is more than 30 days
delinquent in the payment to mechanics, materialmen or others of the costs
incurred in connection with such Work (other than as a result of Lender's
improper failure to release the insurance proceeds for such Work and other
than payment delays associated with amounts which Borrower is contesting in
good faith to the extent and in the manner expressly permitted under this
Agreement); or (d) in the case of any damage or destruction to the Property
or any part thereof not requiring Major Work in order to restore the
Property, as determined by Lender, if Borrower fails to promptly repair,
restore and rebuild the Property so damaged or destroyed, or if Borrower in
any other respect fails to comply with its restoration obligations under
this Section 3.2, then, in addition to all other rights herein set forth,
and after giving Borrower ten (10) days' written notice of the
nonfulfillment of one or more of the foregoing conditions, Lender may, at
its option, perform or cause to be performed such repair, restoration and
rebuilding, and may take such other steps as it deems advisable to perform
such Work; provided, however, that Lender shall be permitted to give such
shorter notice (and in such manner) as is reasonably practical in case of
emergency circumstances. Lender may apply all or a portion of the proceeds
(without the need to fulfill any other requirements of this Section 3.2) to
reimburse Lender for all amounts expended or incurred by it in
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connection with the performance of such work, and any excess costs shall be
paid by Borrower to Lender upon demand.
Section 3.3 CONDEMNATION.
(1) Borrower, immediately upon obtaining actual knowledge of the
institution of any proceedings for the condemnation of any Property or any
portion thereof, shall notify Lender of the pendency of such proceedings
(and upon such notification, Schedule 6.4 hereof shall be deemed to have
automatically been modified to reflect the matters contained in such
notification). Lender, at its election and in its discretion, may
participate in any such proceedings and Borrower, from time to time, shall
deliver to Lender all instruments requested by Lender to permit such
participation. All awards which are payable to Borrower from a condemnation
or other taking, or purchase in lieu thereof, of any Property or any
portion thereof, shall be paid and applied in accordance with the
provisions of this Section 3.3. All such awards are hereby assigned to and
shall be paid to Lender. Borrower, upon request by Lender, shall make,
execute and deliver any and all instruments requested for the purposes of
confirming the assignment of the aforesaid awards and compensation to
Lender free and clear of any Liens. Borrower hereby authorizes Lender to
collect and receive such awards, to give proper receipts and acquittances
therefor and, to apply the same in the manner set forth in this Agreement.
(2) In the event that a portion of any Property is taken or condemned
so that there is less than a Complete Taking, then Borrower promptly shall
commence and diligently continue to repair, restore, replace or rebuild the
Property in accordance with the provisions of Section 3.2 hereof, as if
such taking or condemnation had resulted in a casualty to the Property, and
the proceeds of any award paid to Lender in connection therewith, shall be
made available to Borrower for such purposes; provided, however, that in
such event Borrower shall comply with, and such proceeds shall be disbursed
to Borrower in accordance with, the provisions of Section 3.2 hereof. In
the event of a Complete Taking, all Net Capital Proceeds therefrom shall be
applied in accordance with the release provisions in Section 2.4.
(3) Notwithstanding any taking by eminent domain, alteration of the
grade of any street or other injury to or decrease in value of any Property
by any Governmental Authority, Borrower shall continue to make all payments
due hereunder and under the other Loan Documents.
Section 3.4 DEPOSITS.
(1) CHARGES. Borrower shall segregate in a separate account held by
Borrower in a depository acceptable to Lender (the "CHARGES ACCOUNT") and
deposit therein on or before the twenty-fifth (25th) day of each month from
and after the Closing Date until the Obligations have been paid in full, an
amount equal to one-twelfth (1/12th) of the annual Charges in respect of
all Properties. Such deposits shall be used by Borrower to pay such Charges
prior to delinquency or any earlier date that any interest or penalty can
be imposed thereon. On the Closing Date, Borrower shall deposit into the
Charges Account an amount
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which when added to the monthly deposits required to be made thereafter
pursuant to this Section is sufficient to pay the next installment of such
Charges. From time to time, on demand by Lender, Borrower shall pay into
the Charges Account additional sums sufficient to permit payment of the
next due installments of such Charges, if, and to the extent that, the
required monthly deposits thereafter falling due before the respective
payment dates would otherwise be insufficient to permit the full payment
thereof.
(2) GENERAL REQUIREMENTS FOR FUNDS IN SEGREGATED ACCOUNTS. Borrower
shall irrevocably instruct and shall cause all depositories maintaining any
segregated accounts required under the terms of this Agreement (including
the Charges Account, the Security Deposits and Lease Buy Out Consideration
accounts and accounts in respect of any Impaired Properties) to, within
five (5) days after demand from Lender, deposit all funds deposited in such
segregated accounts maintained by Borrower into segregated accounts
maintained by Lender. Thereafter, Borrower shall cause all deposits which
Borrower otherwise would have been required to make into Borrower's
segregated accounts to be deposited in such accounts maintained by Lender.
Borrower shall contemporaneously with the delivery of such deposits to
Lender, deliver to Lender any security deposit in the form of a letter of
credit, certificate of deposit or similar non-cash form of credit
enhancement which exceeds $50,000. Upon any Event of Default, Lender may
apply any funds deposited in the accounts maintained by Lender or Borrower
to the payment of or to the performance of any Obligation, except for any
Security Deposit which, under the terms of the Lease to which it relates,
must be maintained in a segregated account. Borrower hereby designates
Lender as its attorney-in-fact, which designation is irrevocable and
coupled with an interest, to draw upon the accounts of Borrower in the name
of Borrower and to apply the funds therein as provided in the immediately
preceding sentence. As additional security for the Obligations, Borrower
hereby pledges to Lender, and grants to Lender a security interest in, all
Charges Accounts and all other segregated accounts required under this
Agreement (including the accounts maintained by Lender to the extent
Borrower has any interest therein), and all funds at any time on deposit
therein. Prior to the Closing Date, Borrower and Lender shall have executed
and delivered a notice to the depository at which any such account is held
(if such account is located in any state in which Lender determines such
notice is necessary or appropriate in connection with the pledge of, and
grant of security interest in, such account), which notice shall be
substantially in the form of Exhibit "B" hereto. Borrower shall deliver to
Lender monthly reports of all balances and activity with respect to each of
the segregated accounts required by the terms of this Agreement and any
other information reasonably requested by Lender.
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ARTICLE 4
ENVIRONMENTAL MATTERS
Section 4.1 CERTAIN DEFINITIONS. As used herein, the following terms
have the meanings indicated:
(1) "ENVIRONMENTAL LAWS" means all Laws, now or hereafter in effect,
and in each case as amended or supplemented from time to time, and any
judicial or administrative interpretation thereof, including any applicable
judicial or administrative order, consent decree or judgment, relative to
the applicable Property, relating to the regulation and protection of the
environment and natural resources (including ambient air, surface water,
groundwater, wetlands, land surface or subsurface strata, wildlife, aquatic
species and vegetation). "Environmental Laws" shall include Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended
(42 U.S.C. ss. 9601 et seq.) ("CERCLA"); the Hazardous Material
Transportation Act, as amended (49 U.S.C. ss. 1801 et seq.); the Federal
Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. ss. 136
et seq.); the Resource Conservation and Recovery Act, as amended (42 U.S.C.
ss. 6901 et seq.) ("RCRA"); the Toxic Substance Control Act, as amended (15
U.S.C. ss. 2601 et seq.); the Clean Air Act, as amended (42 U.S.C. ss. 740
et seq.); the Federal Water Pollution Control Act, as amended (33 U.S.C.
ss. 1251 et seq.); those portions of the Occupational Safety and Health
Act, as amended (29 U.S.C. ss. 651 et seq.) ("OSHA") concerning Hazardous
Materials; and the Safe Drinking Water Act, as amended (42 U.S.C. ss. 300f
et seq.), and any and all regulations promulgated thereunder, and all
analogous state and local counterparts or equivalents and any environmental
transfer of ownership notification or approval statutes such as the New
Jersey Industrial Site Recovery Act (N.J. Stat. Ann. ss. 13:1K-6 et seq.)
("ISRA").
(2) "ENVIRONMENTAL LIABILITIES AND COSTS" means, as to any Person, all
liabilities, obligations, responsibilities, Remedial Actions, losses,
damages, punitive damages, consequential damages, treble damages, costs and
expenses (including all fees, disbursements and expenses of counsel,
experts and consultants and costs of investigation and feasibility
studies), fines, penalties, sanctions and interest incurred as a result of
any claim or demand pending or threatened by any other Person, whether
based in contract, tort, implied or express warranty, strict liability,
criminal or civil statute or common law (including any thereof arising
under any Environmental Law, permit, order or agreement with any
Governmental Authority or other Person) and which relate to any
environmental condition regulated under any Environmental Law or in
connection with any other environmental matter or a Release or threatened
Release in connection with any Property.
(3) "HAZARDOUS MATERIALS" means (a) petroleum or chemical products,
whether in liquid, solid, or gaseous form, or any fraction or by-product
thereof, (b) asbestos or asbestos-containing materials, (c) polychlorinated
biphenyls (pcbs), (d) radon gas, (e) underground storage tanks, (f) any
explosive or radioactive substances, (g) lead or lead-based paint, or (h)
any other substance, material, waste or mixture which is or shall be
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listed, defined, or otherwise determined by any Governmental Authority to
be hazardous, toxic, dangerous or otherwise regulated, controlled or giving
rise to liability under any Environmental Laws.
(4) "RELEASE" means, as to any Person, any release, spill, emission,
leaking, pumping, injection, deposit, disposal, discharge, dispersal,
leaching or migration of any Hazardous Materials in violation of
Environmental Law into the indoor or outdoor environment or into or out of
any property owned by such Person, including the movement of Hazardous
Materials in violation of Environmental Law through or in the air, soil,
surface water, ground water or property, any disposal, any discharge,
spillage, uncontrolled loss, seepage or filtration of any Hazardous
Materials in violation of Environmental Law.
(5) "REMEDIAL ACTION" means all actions required by Environmental Law
to (a) clean up, remove, treat or in any other way address Hazardous
Materials in the indoor or outdoor environment, (b) prevent the Release or
threat of Release or minimize the further Release of Hazardous Materials so
they do not migrate or endanger or threaten to endanger public health or
welfare or the indoor or outdoor environment, or (c) perform pre-remedial
studies and investigations and post-remedial monitoring and care.
Section 4.2 REPRESENTATIONS AND WARRANTIES ON ENVIRONMENTAL MATTERS. As
of the Closing Date, except as disclosed in the reports listed on Schedule 4.2
hereof, to Borrower's knowledge, (1) no Hazardous Material is now or was
formerly used, stored, generated, manufactured, installed, disposed of or
otherwise present at or about any Property or any property adjacent to such
Property (except for cleaning and other products currently used in connection
with the routine maintenance or repair of any Property in full compliance with
Environmental Laws), (2) all permits, licenses, approvals and filings required
by Environmental Laws have been obtained, and the use, operation and condition
of the Property does not, and did not previously, violate any Environmental
Laws, and (3) no civil, criminal or administrative action, suit, claim, hearing,
investigation or proceeding has been brought or been threatened, nor have any
settlements been reached by or with any parties or any liens imposed in
connection with any Property concerning Hazardous Materials or Environmental
Laws, nor have any written notices concerning Hazardous Materials or
Environmental Laws been received from any Person in connection with any assets
or activities of Borrower or any Property. Borrower further represents and
warrants that (a) to its knowledge (i) neither Borrower nor any other party is
or has been involved in operations at or near any of the Properties which
operations could lead to (A) the imposition of liability on Borrower, or on any
subsequent or former owner of any of the Properties or (B) the creation of a
lien on any of the Properties under the Environmental Laws or under any similar
laws or regulations, and (ii) Borrower has not permitted any tenant or occupant
of any of the Properties to engage in any activity that could impose liability
under the Environmental Laws on Borrower or any other owner of any of the
Properties, (b) neither Borrower any other party will be involved in operations
at or near any of the Properties which operations could lead to (i) the
imposition of liability on Borrower, or on any subsequent or former owner of any
of the Properties or (ii) the creation of a lien on any of the Properties under
the Environmental Laws or under any similar laws or regulations, and (c)
Borrower will not permit any tenant or occupant of any of the Properties to
engage in any activity
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that could impose liability under the Environmental Laws on Borrower or any
other owner of any of the Properties.
Section 4.3 COVENANTS ON ENVIRONMENTAL MATTERS.
(1) Borrower shall (a) comply strictly and in all respects with the
requirements of the Environmental Laws and shall notify Lender within 10
days of Borrower's obtaining knowledge in the event of (i) any Release at,
upon, under or within any of the Properties or (ii) discovery of any
Hazardous Materials at, upon, under or within any of the Properties where
such discovered Hazardous Materials may result in Environmental Liabilities
and Costs and (b) forward promptly to Lender copies of all orders, notices,
permits, applications and other communications and reports Borrower
receives in connection with any Release or the presence of any Hazardous
Materials or any other matters relating to the Environmental Laws as all of
the above may affect any of the Properties or any other properties owned by
Borrower. Without limiting the foregoing, Borrower specifically covenants
and agrees to complete the Remedial Action described in paragraph 3 of
Schedule 8.19 hereof, for the Properties identified therein, within the
time frame(s) set forth therein for the completion of such work.
(2) To the extent that Lender reasonably believes that circumstances
exist that require additional environmental testing to be performed on the
Properties, promptly upon the written request of Lender from time to time,
Borrower shall provide Lender, at Borrower's expense, with an environmental
site assessment or environmental audit report prepared by an environmental
engineering firm mutually acceptable to Lender and Borrower, to assess with
a reasonable degree of certainty the presence or absence of any Hazardous
Materials and the potential costs in connection with Remedial Action of any
Hazardous Materials found on, under, at or within any of the Properties.
(3) Subject to the provisions of Section 12.1 hereof, Borrower and its
partners shall at all times indemnify and hold harmless Lender against and
from any and all Environmental Liabilities and Costs, including reasonable
attorneys' fees, litigation costs and any costs of settlement, suffered or
incurred by Lender, including those with respect to:
(a) any Release, the threat of a Release, or the presence of any
Hazardous Materials affecting any of the Properties, whether or not
the same originates or emanates from any of the Properties or any
contiguous real property, including any loss of value of any of the
Properties as a result of any of the foregoing;
(b) any costs of Remedial Action incurred by the United States
Government or any costs incurred by any other Person or damages from
injury to, destruction of, or loss of natural resources, including
reasonable costs of assessing such injury, destruction or loss
incurred pursuant to any Environmental Laws; and/or
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(c) liability for personal injury or property damage arising
under any statutory or common law tort theory, including damages
assessed for the maintenance of a public or private nuisance or for
the carrying on of an abnormally dangerous activity at or near any of
the Properties.
The provisions of this Section 4.3 shall apply whether or not the
Environmental Protection Agency, any other federal agency or any state or
local environmental agency has taken or threatened any action in connection
with the presence of any Hazardous Materials. Notwithstanding the foregoing
or anything else to the contrary in the Loan Documents, in no event shall
Borrower or its partners indemnify Lender for any Environmental Liabilities
and Costs caused by (i) actions taken solely and negligently by Lender, its
successors and assigns (including any purchaser at a foreclosure sale), or
(ii) the presence of Hazardous Materials on any Property which is brought
on a Property during the time that Lender or its successors or assigns
(including a purchaser at a foreclosure sale) takes actual physical
possession and control of such Property (except to the extent caused by
Borrower).
(4) In the event of any Release, the threat of a Release, or the
presence of any Hazardous Materials, where such may result in Environmental
Liabilities and Costs, affecting any Property, whether or not the same
originates or emanates from any Property or any contiguous real property,
or if Borrower shall fail to comply with any of the requirements of the
Environmental Laws, Lender may at its election, but without the obligation
so to do, give such notices and/or cause such work to be performed and/or
take any and all other actions as Lender shall reasonably deem necessary in
order to abate such Release, remove the Hazardous Materials to the extent
required by the Environmental Laws, cure Borrower's noncompliance with
Environmental Laws or take such steps as it deems necessary to remove any
lien imposed by federal or state authorities under Environmental Laws.
(5) If prior to the Maturity Date Lender reasonably determines after
consultation with Borrower (a) that Borrower faces a material risk of
sustaining an Environmental Liability and Cost (other than the cost of any
Remedial Action in respect of any Property that will continue to be owned
by Borrower) and (b) that, taking into account Borrower's then existing
assets and other liabilities, the outstanding Obligations, available
insurance coverage, the availability of indemnification or contribution
from other parties (such as prior owners or owners of nearby properties)
and other relevant factors, such as an orderly (not forced) disposition of
the Properties, there is a material risk that Borrower may be unable to
satisfy such contingent Environmental Liability and Cost if and when it
becomes due and to pay and perform all of the Obligations when due in full,
such that the partners in Borrower might become obligated in respect of the
Loan on a recourse basis as provided in Section 12.1 hereof, then by notice
to Borrower, Lender may require Borrower to establish and fund to the
extent of monies otherwise available to Borrower for distribution to its
partners, a Reserve in a reasonable amount to satisfy such material risk
and to maintain such funded Reserve in such amount and until such time as
Lender can reasonably determine that such Reserve is no longer needed to
satisfy the requirements of clauses (a) and (b) of this sentence. In such
event, Borrower, notwithstanding the foregoing provisions of this
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Section 4.3, shall be required, after making payments otherwise required on
the Loan, to apply any additional Operating Cash Flow or Net Capital
Proceeds to fund such Reserve before making any distributions to the
partners in Borrower. Borrower may, not more often than once each quarter,
require Lender to confirm that it requires continuation of such Reserve and
Lender shall set forth its reasons for so requiring. Borrower will
cooperate with Lender and make available to it such information as Lender
may reasonably request for purposes of making any such determination
regarding a Reserve, and Lender shall in good faith consider any relevant
information in respect of such matter provided to it by Borrower or any of
its partners.
(6) In the event of a dispute between Lender and Borrower or any
partners in Borrower as to whether Borrower faces a material risk of
sustaining an Environmental Liability and Cost as set forth in clause (a)
of paragraph (5) above or the estimated dollar amount of such material
risk, then Borrower shall pick an appropriate consultant and Lender shall
pick an appropriate consultant, and the two consultants shall confer and
jointly determine whether or not Borrower faces a material risk and the
estimated dollar amount of such material risk as more fully set forth in
clause (a) of paragraph (5) above. If the two consultants cannot agree
within thirty (30) days after being appointed as consultants as to whether
such a material risk exists or the estimated dollar amount of such material
risk, the two consultants will, within seven (7) days after the expiration
or such thirty (30) day period, jointly select a third consultant and
within thirty (30) days of its selection, the third consultant shall issue
its written determination as to whether such a material risk exists and the
estimated dollar amount of such material risk, which determination shall be
final and binding on all parties. In the event that the two consultants
shall be unable to timely agree on the selection of a third consultant, the
third consultant shall be selected by the President of the American
Arbitration Association. In the event of a dispute between Lender and
Borrower or any partners in Borrower in respect of the establishment or
continuation of any such Reserve, such Reserve shall be established or
continued in the interim while such dispute is resolved. No such resolution
shall constitute a limitation on or waiver of Lender's right to seek
recourse (subject to the provisions of Section 12.1 hereof) from the
partners in Borrower to the extent of distributions made to them by
Borrower in the event Lender becomes liable in respect of any Environmental
Liability and Cost of Borrower against which it is entitled to indemnity
from Borrower or in the event the Loan is not repaid in full by reason of
Borrower sustaining any such Environmental Liability and Cost.
Section 4.4 NO WAIVER. Notwithstanding any provision in this Article 4
or elsewhere in the Loan Documents, or any rights or remedies granted by the
Loan Documents, Lender does not waive and expressly reserves all rights and
benefits now or hereafter accruing to Lender under any "security interest" or
"secured creditor" exceptions under applicable Environmental Laws, as the same
may be amended. No action taken by Lender pursuant to the Loan Documents shall
be deemed or construed to be a waiver or relinquishment of any such rights or
benefits under the "security interest exception."
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ARTICLE 5
LEASING MATTERS
Section 5.1 REPRESENTATIONS AND WARRANTIES ON LEASES. Borrower
represents and warrants to Lender with respect to all Leases that: (1) the rent
roll delivered to Lender for each Property is true and correct as of the date of
such rent roll (provided that if Whitehall has owned a direct or indirect
interest in Borrower for less than two (2) months prior to the Closing Date, the
foregoing representation and warranty is made to Borrower's knowledge), and the
Leases are valid and in and full force and effect; (2) the Leases are in
writing, and there are no oral agreements with respect thereto; (3) the copies
of the Leases delivered to Lender are true and complete; (4) to Borrower's
knowledge, except as set forth in Schedule 5.1(A), neither the landlord nor any
Tenant is in material default under any of the Leases; (5) except as set forth
in Schedule 5.1(B), (a) Borrower has no knowledge, after due inquiry, of any
notice of termination or default with respect to any Non-Storage Lease and (b)
to Borrower's knowledge, after due inquiry, not more than 5% of the Leases at
any Storage Property are the subject of any notices of termination or default;
(6) Borrower has not assigned or pledged any of the Leases, the rents or any
interests therein except to Lender; (7) except as set forth in the rent roll
delivered to Lender, and except as set forth in Schedule 5.1(C), no Tenant or
other party has an option to purchase all or any portion of any Property; (8)
except as set forth in Schedule 5.1(D), no Tenant has the right to terminate its
Lease prior to expiration of the stated term of such lease; (9) except as set
forth in Schedule 5.1(E), there are no leasing commissions that are owing in
connection with any Leases or tenancies in effect as of the Closing Date; and
(10) except as set forth in Schedule 5.1(F), no tenant has prepaid more than one
month's rent in advance (except for bona fide security deposits not in excess of
an amount equal to two month's rent).
Section 5.2 GENERAL LEASE REQUIREMENTS. Each Lease hereafter entered
into by Borrower shall (1) not permit the Tenant thereunder to terminate or
invalidate the terms of the Lease as a result of any action taken by Lender to
enforce any right or remedy under the Loan Documents, including any sale of the
Property or any portion thereof pursuant to the power of sale or otherwise, (2)
include a subordination clause providing that the Lease and the interest of the
Tenant thereunder in the Property are in all respects subject and subordinate to
the Loan Documents, (3) provide that, at the option of Lender or the purchaser
at a foreclosure sale or the grantee in a voluntary conveyance in lieu of such
sale, the Tenant thereunder shall attorn to Lender or to such purchaser or
grantee under all of the terms of the Lease and recognize such entity as the
lessor under the Lease for the balance of the term of the Lease, and (4) provide
that, in the event of the enforcement by Lender of the rights and remedies
provided by law or in equity or by the Loan Documents, any Person succeeding to
the interest of Borrower as a result of such enforcement shall not be bound by
any prepayment of installments of rent for more than thirty (30) days in advance
of the time when the same shall become due or any amendment, modification,
extension, cancellation or renewal of the Lease made without the prior written
consent of Lender. Any Lease which is in a form approved by Lender after the
Closing Date shall be deemed to comply with this Section.
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Section 5.3 COVENANTS. Borrower shall deliver to Lender, promptly after
demand by Lender, a rent roll for each Property in form and substance
satisfactory to Lender. Borrower shall promptly deliver to Lender a fully
executed copy of any new Non-Storage Lease upon execution of the same, and shall
promptly deliver to Lender upon Lender's request a fully executed copy of all
other Leases not previously delivered to Lender. Borrower shall not (1) assign,
mortgage or otherwise encumber any of the Leases or any of the rents due or to
become due thereunder or to which Lender may now or hereafter become entitled,
or (2) accept prepayments of installments of rent for more than thirty (30) days
in advance of the time when the same shall become due or to anticipate the rents
thereunder, except for Security Deposits, provided that Borrower may accept
prepayments of rent installments up to six months in advance for Leases covering
not more than ten percent (10%) of the leasable space within each Storage
Property.
Section 5.4 ADDITIONAL COVENANTS REGARDING MATERIAL LEASES. All Leases
covering at least 10,000 rentable square feet, and any combination of Leases
which collectively cover at least 10,000 rentable square feet of any Property
and which are entered into with a single Tenant or with Tenants who are
Affiliates of each other, shall be referred to herein as "MATERIAL LEASES". As
to any Material Leases, Borrower shall (1) promptly perform all of the material
provisions of the Material Leases on the part of the lessor thereunder to be
performed; (2) promptly enforce all of the material provisions of the Material
Leases on the part of the Tenants thereunder to be performed; (3) not cancel,
terminate or accept a surrender of any Material Lease, or refrain from taking
any action which would result in the termination of a Material Lease by any
Tenant thereunder, unless the Tenant thereunder is in default or such action is
otherwise commercially prudent and all Lease Buy Out Consideration, if any, is
deposited and used in the manner set forth below in this Article 5; (4) appear
in and prosecute or defend any action or proceeding arising under, growing out
of, or in any manner connected with, the Material Leases or the obligations of
the lessor or the lessees thereunder, as the case may be; (5) provide Lender
with a copy of each notice of default received by Borrower from the Tenant under
any Material Lease immediately upon receipt thereof and deliver to Lender a copy
of each notice of default sent by Borrower to a Tenant under any Material Lease
simultaneously with its delivery of such notice under such Material Lease; and
(6) promptly notify Lender of all material disputes and claims in respect of any
Material Leases and not settle or adjust any such material claims or disputes
without Lender's consent. In addition, Borrower shall not (a) consent to any
assignment or subletting of any Material Lease if the assignor or sublessor
thereof would be relieved from liability thereafter accruing under such Material
Lease; (b) discount any rents under any Material Lease or otherwise refrain from
taking any action with respect to a Material Lease which would result in the
diminution of the rents thereunder; and (c) without Lender's prior consent,
enter into, modify, amend, extend, renew, or otherwise change in any material
manner, any of the terms covenants or conditions of, any Material Lease. Without
limiting the foregoing, Borrower shall not enter into, extend or modify any new
or existing Material Lease affecting a Property for base rentals which are less
than the lesser of (i) the average aggregate base rentals for all Leases
affecting such Property, and (ii) the fair market rental for similar space in
other buildings similarly situated.
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Section 5.5 LENDER'S CONSENT TO DEVIATIONS. Borrower shall obtain
Lender's prior, written consent to any deviations from the leasing covenants set
forth in this Article 5. Lender shall not unreasonably withhold its consent to
any such request, except with respect to requests to deviate from the minimum
rent requirements for Material Leases as set forth above, in which event Lender
may withhold its consent in its sole and absolute discretion. If Lender does not
respond to Borrower's request for consent to a deviation from the leasing
covenants set forth herein within ten (10) days after receipt of Borrower's
request, Lender shall be deemed to have consented to such request, provided,
however, that with respect to any request to deviate from the minimum rent
requirements for Material Leases set forth above, Lender's failure to respond
within such 10-day period shall be deemed a rejection of such request.
Section 5.6 SECURITY DEPOSITS; LEASE BUY OUT CONSIDERATION. Borrower
shall maintain all security deposits paid or payable under any Lease ("SECURITY
DEPOSITS"), and separately maintain all Lease Buy Out Consideration paid by
Tenants, in separate accounts held by Borrower in a depository institution
acceptable to Lender. Security Deposit funds held in such account for any Lease
shall be used to repay the Tenant which paid the Security Deposit to Borrower or
as otherwise provided in the applicable Lease. Any Lease Buy Out Consideration
received by Borrower or its agents with respect to space within a Property shall
be used by Borrower to pay for any Tenant Improvements, Capital Expenditures,
Leasing Costs or marketing costs in connection with that Property. The
segregated accounts for Security Deposits and Lease Buy Out Consideration
required by this Section shall be subject to the general provisions of this
Agreement pertaining to any segregated account which Borrower is required to
maintain in accordance with the terms of this Agreement. Provided no Event of
Default shall then be existing under this Agreement, if a Property in connection
with which any Lease Buy Out Consideration was paid or any Security Deposits are
held will be released from the lien of the applicable Deed of Trust in
accordance with this Agreement, any amounts in the account holding such Lease
Buy Out Consideration and/or Security Deposits applicable to such Property shall
be released, concurrently with such release, to Borrower. The monthly reports
which Borrower is required to provide Lender in connection with the Security
Deposits accounts and Lease Buy Out Consideration accounts shall identify, as to
each such account, the source Properties of the Security Deposits or Lease Buy
Out Consideration therein, and the amount of Security Deposit or Lease Buy Out
Consideration funds in such account allocable to each such Property.
Section 5.7 SUBORDINATION AGREEMENTS; TENANT ESTOPPELS. Without
limiting Borrower's obligation to provide Lender with subordination,
nondisturbance and attornment agreements as required by Lender as a condition to
the Initial Advance and (as to the applicable Additional Property) each
Acquisition Advance, upon request by Lender, Borrower shall use reasonable good
faith efforts to cause the Tenants under Material Leases selected by Lender to
execute and deliver to Lender subordination, nondisturbance and attornment
agreements with respect to such Tenant's Lease within forty-five (45) calendar
days of the date of Lender's request (on a form provided by Lender to Borrower).
Borrower's failure to obtain a subordination, nondisturbance and attornment
agreement as to any Material Lease within the aforementioned 45-day period shall
not constitute a Potential Default so long as Borrower has used reasonable, good
faith efforts to obtain such subordination, nondisturbance and attornment
agreement during such period. In addition, from time to time at Lender's
request, Borrower shall request from each Tenant (and shall deliver to
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Lender upon receipt from such Tenant) a written estoppel in the form required by
such Tenant's Lease (or if no form is specified, in form and substance
satisfactory to Lender) confirming, among other things, the term, rent, and
other provisions and matters relating to such Lease; provided, however, that
Borrower's obligation with respect to such estoppel certificates shall be
limited to requesting such estoppel certificates from Tenants and (if accurate)
informing such Tenants of their Lease obligation to provide such estoppel
certificates. No Potential Default shall be caused by the failure of one or more
Tenants to provide an estoppel certificate after such request is made.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
To induce Lender to make the Loan, Borrower makes the following
representations and warranties to Lender, each and all of which shall be true
and correct as of the date of execution and delivery of this Agreement, and
shall survive the execution and delivery of this Agreement; provided, however,
that the representations and warranties contained herein and in the other Loan
Documents with respect to the Properties are subject to the matters detailed in
Schedules 6.4, 6.5, 6.6, 6.7, 6.17 and 6.19 hereof.
Section 6.1 PARTNERSHIP AND ORGANIZATIONAL EXISTENCE; COMPLIANCE WITH
LAW. Each of Borrower and the general partner of Borrower (1) is a limited
partnership or limited liability company, as the case may be, duly organized,
validly existing and in good standing under the laws of its state of
organization; (2) is duly qualified to do business and is in good standing under
the laws of each jurisdiction where its ownership or lease of property or the
conduct of its business requires such qualification; (3) has the requisite
organizational or partnership (as applicable) power and authority and the legal
right to own, pledge, mortgage or otherwise encumber and operate its properties,
to lease the properties it operates under lease, and to conduct its business as
now, heretofore and proposed to be conducted; (4) has all material licenses,
permits, consents or approvals from or by, and has made all material filings
with, and has given all material notices to, all Governmental Authorities having
jurisdiction, to the extent required for such ownership, operation and conduct;
(5) is in compliance with its certificate of formation and operating agreement
or certificate of limited partnership and partnership agreement (as applicable);
and (6) is in compliance with all applicable provisions of Law, except where the
failure to be in compliance would not have a Material Adverse Effect.
Section 6.2 PARTNERSHIP OR ORGANIZATIONAL POWER; AUTHORIZATION;
ENFORCEABLE OBLIGATIONS. The execution, delivery and performance by Borrower of
the Loan Documents, Ancillary Agreements and all instruments and documents to be
delivered by Borrower and by its partners, to the extent they are parties
thereto, and the creation of all Liens provided for herein and therein: (1) are
within Borrower's and its partners' partnership and/or organizational power; (2)
have been duly authorized by all necessary or proper partnership and/or
organizational action; (3) are not in contravention of any provision of
Borrower's or its partners' respective partnership agreement and/or certificate
or certificate of formation and/or operating agreement; (4) do not violate any
Law, or any order or decree of any court or Governmental Authority; (5) do not
conflict with or result in
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the breach or termination of, constitute a default under or accelerate any
performance required by, any indenture, mortgage, deed of trust, lease,
agreement or other instrument to which Borrower or any of its partners is a
party or by which Borrower or its partners or any of their property is bound;
(6) do not result in the creation or imposition of any Lien upon any of the
property of Borrower or its partners other than those in favor of Lender, all
pursuant to the Loan Documents; and (7) do not require the consent or approval
of any Governmental Authority or any other Person, other than such consents and
approvals as have been duly obtained, made or complied with on or prior to the
Closing Date. Each of the Loan Documents has been duly executed and delivered
for the benefit of or on behalf of Borrower and, where a party thereto, its
partners, and each constitutes a legal, valid and binding obligation of
Borrower, and, to the extent they are parties thereto, its partners, enforceable
against each of them in accordance with its terms.
Section 6.3 OWNERSHIP OF COLLATERAL; LIENS. (1) Borrower owns good and
marketable title to the Collateral; (2) none of the Collateral is subject to any
Liens, except Permitted Encumbrances; and (3) Borrower has received all
assignments, waivers, consents and other documents, and duly effected all
recordings, filings and other actions necessary to establish, protect and
perfect Borrower's right, title and interest in and to the Collateral.
Section 6.4 CONDEMNATION. As of the Closing Date, except as expressly
set forth in Schedule 6.4 hereof, Borrower has not received any notice, and has
no knowledge, of any pending, threatened or contemplated condemnation proceeding
affecting any Property or any part thereof, or any proposed termination or
impairment of any parking at any Property or any part thereof in lieu of
condemnation.
Section 6.5 CASUALTY. To Borrower's knowledge, as of the Closing Date,
except as expressly set forth in Schedule 6.5 hereof, no portion of any Property
has suffered any material damage by fire or other casualty loss which has not
heretofore been completely repaired and restored to its original condition and
no portion of any Property is located in a special flood hazard area as
designated by any Federal Governmental Authorities and which is not covered by
flood insurance required pursuant to insurance provisions hereof.
Section 6.6 MATERIAL AGREEMENTS. As of the Closing Date, Borrower is
not directly, indirectly or contingently obligated with respect to any Material
Agreement relating to any Property except as expressly set forth in Schedule 6.6
hereof.
Section 6.7 PROPERTY COMPLIANCE. To Borrower's knowledge, as of the
Closing Date, except as expressly set forth in Schedule 6.7 hereof, each
Property complies with all applicable subdivision, platting, building, land use,
environmental, safety, traffic, fire and zoning Laws and requirements, except
when the failure to so comply would not have a Material Adverse Effect for such
Property.
Section 6.8 ACCESS. To Borrower's knowledge, as of the Closing Date,
each Property has access to and from public streets and roads adequate for its
intended use, and all such streets and roads have been completed, dedicated to
the public use and accepted for all purposes (including, but not limited to,
maintenance) by the appropriate Governmental Authority.
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Section 6.9 UTILITY SERVICES. To Borrower's knowledge, as of the
Closing Date, all utility services are available and operational in sufficient
size and capacity for the operation of each Property.
Section 6.10 PERMITS. To Borrower's knowledge, as of the Closing Date,
all material licenses, permits, inspections, authorizations, certifications and
approvals required by all Governmental Authorities having jurisdiction over each
Property have been performed or issued and paid for and are in full force and
effect.
Section 6.11 NO DEFAULT. To Borrower's knowledge, Borrower is not in
default nor is any third party in default, under or with respect to any
contract, agreement, lease or other instrument to which it is a party, except
for any default which (either individually or collectively with other defaults
arising out of the same event or events) would not have a Material Adverse
Effect.
Section 6.12 OTHER VENTURES/SINGLE PURPOSE ENTITY. Borrower is not
engaged in any joint venture or partnership with any other Person. Borrower's
sole purpose is to own and operate the Properties, and Borrower does not own any
assets other than the Properties and the other Collateral. Borrower will not
conduct any other business transactions except as contemplated by this Loan
Agreement.
Section 6.13 INVESTMENT COMPANY ACT. Borrower is not required to
register as an "investment company" under the Investment Company Act of 1940, as
amended. The making of the Loan by Lender, the application of the proceeds and
repayment thereof by Borrower and the consummation of the transactions
contemplated by this Agreement and the other Loan Documents will not violate any
applicable provision of such Act or any applicable rule, regulation or order
issued by the Securities and Exchange Commission thereunder which is binding on
Borrower.
Section 6.14 MARGIN REGULATIONS. Borrower does not own any "margin
security," as that term is defined in Regulation U of the Board of Governors of
the Federal Reserve System (the "FEDERAL RESERVE BOARD"), and the proceeds of
the Loan will be used only for the purposes contemplated hereunder. The Loan
will not be used, directly or indirectly, for the purpose of purchasing or
carrying any margin security, for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any margin
security or for any other purpose which might cause any of the loans under this
Agreement to be considered a "purpose credit" within the meaning of Regulations
T, U or X of the Federal Reserve Board. Borrower will not take or permit any
agent acting on its behalf to take any action which might cause this Agreement
or any document or instrument delivered pursuant hereto to violate any
regulation of the Federal Reserve Board.
Section 6.15 TAXES. To Borrower's knowledge, (1) all federal, state,
local and foreign tax returns, reports and statements required to be filed by
Borrower have been filed with the appropriate Governmental Authority and all
Charges and other impositions shown thereon to be due and payable have been paid
prior to the date on which any fine, penalty, interest or late charge may
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be added thereto for nonpayment thereof, or any such fine, penalty, interest,
late charge or loss has been paid; (2) Borrower has paid when due and payable
all Charges required to be paid by it; (3) Proper and accurate amounts have been
withheld by Borrower from their respective employees for all periods in full and
complete compliance with the tax, social security and unemployment withholding
provisions of applicable Law and such withholdings have been timely paid to the
respective Governmental Authorities; (4) Borrower has not executed or filed with
the IRS or any other Governmental Authority any agreement or other document
extending, or having the effect of extending, the period for assessment or
collection of any Charges; (5) Borrower has not agreed or been requested to make
any adjustment under IRC Section 481(a) by reason of a change in accounting
method or otherwise; and (6) Borrower has no obligation under any written tax
sharing agreement. If, at any time after the Closing Date, Borrower has
knowledge that any of the statements made in clauses (1) through (6) of the
immediately preceding sentence is untrue or incorrect, and failure to remedy the
condition that gave rise to the untrue or incorrect statement would have a
Material Adverse Effect, then notwithstanding that Borrower had no knowledge of
the incorrect or untrue nature of such statement as of the Closing Date,
Borrower shall diligently cure such condition to a sufficient extent that such
condition would no longer have a Material Adverse Effect.
Section 6.16 ERISA. There are no Plans maintained or contributed to by
Borrower.
Section 6.17 NO LITIGATION. To Borrower's knowledge, except as set
forth in Schedule 6.17 hereof, no action, claim or proceeding is now pending or,
to the knowledge of Borrower, threatened against Borrower, at law, in equity or
otherwise, before any court, board, commission, agency or instrumentality of any
federal, state, or local government or of any agency or subdivision thereof, or
before any arbitrator or panel of arbitrators, which, if determined adversely,
could have a Material Adverse Effect. No such claim, action or proceeding
questions the validity of any of the Loan Documents or any action taken or to be
taken pursuant thereto, or would have either individually or in the aggregate a
Material Adverse Effect. Lender acknowledges that Borrower has provided Lender
with the "Seller Disclosure Letter" (as defined in the Purchase Agreement),
including Schedule 4.7 thereto regarding litigation matters.
Section 6.18 BROKERS. No broker or finder acting on behalf of Borrower
(other than Goldman, Sachs & Co.) brought about the obtaining, making or closing
of the loans made pursuant to this Agreement and Borrower has no obligation to
any Person (other than Goldman, Sachs & Co.) in respect of any finder's or
brokerage fees in connection with the loan contemplated by this Agreement.
Section 6.19 PURCHASE AGREEMENT. A true and complete copy of the
Purchase Agreement (including all exhibits, schedules and amendments thereto)
has been delivered to Lender, and a true and complete copy of each document
delivered at the closing under the Purchase Agreement has been delivered to
Lender. Neither Borrower nor, to the best of Borrower's knowledge, any other
party is in default under the Purchase Agreement or under any instrument or
document to be delivered in connection therewith. Except as disclosed in
Schedule 6.19 hereof, Borrower (including any predecessor-in-interest to
Borrower) has not claimed any breach of a representation or warranty by the
Seller under the Purchase Agreement.
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Section 6.20 EMPLOYMENT AND LABOR AGREEMENTS. There are no employment,
consulting or management agreements covering management of Borrower and there
are no collective bargaining agreements or other labor agreements covering any
employees of Borrower.
Section 6.21 LIENS. The Liens granted to Lender pursuant to the
Collateral Documents are first priority Liens in and to the Collateral described
therein, subject to Permitted Encumbrances, and upon completion of any necessary
filings and recordings, will be fully perfected.
Section 6.22 FULL DISCLOSURE. To Borrower's knowledge, no information
contained in this Agreement, the other Loan Documents, or any written statement
furnished by or on behalf of Borrower pursuant to the terms of this Agreement
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements contained herein or therein not misleading
in light of the circumstances under which made and in light of the written
disclosures made by Borrower to Lender.
Section 6.23 PROPERTY DOCUMENTS. Borrower has delivered to Lender true
and correct copies of all material documents related to the Properties in
Whitehall's possession or in the possession of any agent or Affiliate of
Whitehall immediately prior to the Closing Date (collectively, "PROPERTY
DOCUMENTS") prior to the Closing Date (other than confidential internal Borrower
or Whitehall memoranda and privileged communications between Borrower or
Whitehall and their respective attorneys), and there are no other material
documents, reports (including, without limitation, environmental and engineering
reports), files, correspondence, surveys and other material information of any
kind whatsoever which are in Whitehall's possession or in the possession of any
agent or Affiliate of Whitehall immediately prior to the Closing Date and which
have not been delivered to Lender.
Section 6.24 RENT ROLL. The rent roll previously delivered by Borrower
to Lender for each Property is a true and accurate copy of the rent roll for
such Property as of the date of such rent roll; provided that if Whitehall has
owned a direct or indirect interest Borrower for less than two (2) months prior
to the Closing Date, the foregoing representation is made to Borrower's
knowledge.
Section 6.25 GROUND LEASE REPRESENTATIONS. There are no ground leases
affecting any of the Properties, other than the Fidelity Federal Ground Leases.
Section 6.26 PROPERTY INFORMATION. The information in Schedule 1.1(A)
hereof with respect to each Property is correct except to the extent that the
actual square footage, acreage or number of units is not less than 95% of the
square footage, acreage or number of units set forth on said Schedule 1.1(A) for
each Property.
Section 6.27 ACQUISITION COST AND EQUITY INVESTMENT. The information in
Schedule 6.27 hereof sets forth the portion of the total purchase price, total
cash equity, Whitehall cash equity, McNeil cash equity and closing costs for all
assets acquired by Holding Company or its Affiliates pursuant to the Purchase
Agreement, allocated by Holding Company to each of the
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Initial Properties (and will be allocated to each of the Additional Properties,
if acquired) and to all Initial Properties and Additional Properties in the
aggregate. As of the Closing Date, the capital accounts for Whitehall and McNeil
in the Holding Company will reflect their respective equity amounts as set forth
at the bottom of Schedule 6.27. The total Whitehall equity amount set forth at
the bottom of Schedule 6.27 represents cash equity allocated to the Initial
Properties and Additional Properties.
ARTICLE 7
FINANCIAL REPORTING AND INFORMATION
Section 7.1 FINANCIAL STATEMENTS AND NOTICES. Borrower covenants and
agrees that from and after the Closing Date it shall deliver, or cause to be
delivered, to Lender:
(1) MONTHLY REPORTS. Monthly, all written statements, reports and
financial information delivered to Holding Company by the Asset Manager
pursuant to Sections 4.4.1, 4.4.2, 5.2.1(a) and (b), and 7.2 (and any other
provision) of the Asset Management Agreement including monthly property
operating statements, monthly rent rolls, aged tenant delinquency reports,
and monthly accounting and bank statements of all escrow and segregated
accounts maintained by Borrower pursuant to this Agreement.
(2) QUARTERLY REPORTS. Within 45 days after the end of each fiscal
quarter, commencing with the quarter ending March 31, 2000, a copy of the
unaudited balance sheet of Borrower as of the close of such quarter and the
related statement of income and cash flows for that portion of the Fiscal
Year ending as of the close of such quarter, all prepared by the general
partner of Borrower and Asset Manager in accordance with GAAP (subject to
the terms set forth herein and to normal year-end adjustments and excluding
footnotes and supporting schedules, if same are not available (provided
that such footnotes and supporting schedules are promptly delivered to
Lender when same become available)) and accompanied by the certification on
behalf of Borrower of the general partner of Borrower that all such
financial statements are complete and correct and present fairly in
accordance with GAAP (subject to normal year-end adjustments) the financial
position, the results of operations and the cash flows of Borrower as at
the end of such quarter and for the period then ended, and that there was
no Event of Default in existence as of such time.
(3) ANNUAL REPORTS. Within ninety (90) days after the close of each
Fiscal Year, commencing with the Fiscal Year ending December 31, 2000, a
copy of the annual audited financial statements of Borrower, consisting of
balance sheets and statements of income and capital accounts and cash flows
(setting forth beginning with the reports for the Fiscal Year ending
December 31, 2001 in comparative form in each case the figures for the
previous Fiscal Year), which financial statements shall be prepared in
accordance with GAAP, certified (only with respect to the financial
statements) without qualification by the independent certified public
accountants regularly retained by Borrower, or any other firm of
independent certified public accountants of recognized national standing
selected by Borrower, and acceptable to Lender, and accompanied by (a) a
report from such accountants
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to the effect that in connection with their audit examination, nothing has
come to their attention to cause them to believe that a Potential Default
or Event of Default had occurred and (b) a certification of the general
partner of Borrower that (i) all such financial statements are complete and
correct and present fairly in accordance with GAAP the financial position,
the results of operations and the cash flows of Borrower as at the end of
such year and for the period then ended, (ii) all Operating Cash Flow and
Net Capital Proceeds have been applied in accordance with the provisions of
this Agreement and (iii) that there was no Event of Default in existence as
of such time.
(4) BUDGETS. Within six (6) months after the Closing Date, Borrower
shall submit to Lender for Lender's review and approval (not to be
unreasonably withheld) a detailed, 3-year capital budget for each Property.
Such capital budgets shall include, where applicable, any then-remaining
capital repair work identified in paragraph 1 on Schedule 8.19. Thereafter,
within thirty (30) days prior to the beginning of each Fiscal Year,
Borrower shall submit to Lender for Lender's review a detailed capital
budget for each Property for such Fiscal Year.
(5) EVENTS OF DEFAULT; MATERIAL EVENTS. As soon as practicable, but in
any event within two (2) Business Days after Borrower becomes aware of the
existence of any Event of Default, or any development or other information
which would have a Material Adverse Effect, telephonic or facsimile notice
specifying the nature of such Event of Default or development or
information, including the anticipated effect thereof, which notice shall
be promptly confirmed in writing within five (5) days.
(6) PAYMENT OF CHARGES. Periodic accounting of payments made in
respect of Charges imposed upon each Property and amounts available in the
Charges Account in respect of the Property and, at Lender's request, copies
of tax bills marked "paid" in respect of each Property or canceled checks
evidencing payment of such tax bills.
Section 7.2 OTHER INFORMATION. Borrower shall deliver to Lender such
additional information regarding Borrower, its subsidiaries, its business, and
any Property within 30 days after Lender's reasonable request therefor, provided
that Borrower has reasonable access to such information at reasonable cost.
Section 7.3 AUDITS. At Lender's request, Lender may audit the
determination of Gross Receipts, Operating Expenses, Operating Cash Flow,
Capital Expenditures, Net Capital Proceeds and all escrow or segregated accounts
maintained by Borrower including escrow or segregated accounts for Security
Deposits, Charges, Lease Buy Out Consideration, and Operating Cash Flow required
to be maintained by Borrower pursuant to the terms hereof, which audit may be
conducted by Lender or its representatives reviewing Borrower's books and
records (at Lender's expense except as provided below). Borrower shall pay to
Lender, travel expenses and reasonable out-of-pocket costs incurred by Lender in
performing any single audit in any calendar year and, in addition to such audit,
any audit performed by Lender or its agent in connection with (1) Working
Capital Advances or Acquisition Advances, (2) a request from Borrower to release
any Property from the Lien of the Loan Documents, or (3) an extension of the
Term. If any audit performed by,
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or on behalf of, Lender discloses that Borrower's statement of Gross Receipts,
Operating Expenses, Operating Cash Flow, Capital Expenditures, escrow or
segregated accounts (for Security Deposits, Charges, Lease Buy Out Consideration
or Operating Cash Flow), Net Capital Proceeds or similar financial information
is misstated or is otherwise incorrect by greater than 5% of Borrower's reported
amount, then Borrower shall pay to Lender the full cost of Lender's audit.
Notwithstanding the foregoing, during any period that an Event of Default has
occurred and is continuing, Borrower shall be responsible for the full cost and
expense of any Lender investigation or audit conducted by Lender.
Section 7.4 COMMUNICATION WITH ACCOUNTANTS. Borrower authorizes Lender
to communicate directly with Borrower's independent certified public accountants
and authorizes those accountants to disclose to Lender any and all financial
statements and other supporting financial documents and schedules including
copies of any management letter with respect to the business, financial
condition and other affairs of Borrower.
ARTICLE 8
AFFIRMATIVE COVENANTS
Borrower covenants and agrees that, unless Lender shall otherwise
consent in writing, from and after the Closing Date and until the Maturity Date:
Section 8.1 MAINTENANCE OF EXISTENCE AND CONDUCT OF BUSINESS. Borrower
shall (1) do or cause to be done all things necessary to preserve and keep in
full force and effect its existence as a limited partnership, and, unless the
loss of same shall not have a Material Adverse Effect, its rights, licenses,
privileges and franchises; (2) continue to conduct its business only as
permitted hereunder; (3) not make any changes in its business objectives,
purposes or operations in any way that would have a Material Adverse Effect; and
(4) transact business only in the name of WXI/MCN Commercial Real Estate Limited
Partnership or in each case such other names as Borrower shall specify to Lender
in writing not less than thirty (30) days prior to the first date such name is
used by Borrower.
Section 8.2 PAYMENT OF INDEBTEDNESS.
(1) Borrower shall, using Gross Receipts from all of the Properties,
(a) pay and discharge or cause to be paid and discharged all Obligations,
as and when due and payable (subject to any notice or grace periods
provided in the Loan Documents), (b) pay and discharge or cause to be paid
and discharged (i) prior to the day that any interest or penalty can be
imposed thereon, all Charges imposed upon Borrower, its income and profits,
or any of its property (real, personal or mixed), and (ii) lawful claims
for labor, materials, supplies and services used by or supplied to Borrower
before any thereof shall become in default (subject to any applicable
notice or grace periods) and (c) to the extent not paid from Loan proceeds,
pay all Capital Expenditures and other Indebtedness related to any of the
Properties as and when such amounts come due.
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(2) Borrower may in good faith contest, by proper legal actions or
proceedings, the validity or amount of any Charges or claims arising under
clause (b) of paragraph (1) above, provided that at the time of
commencement of any such action or proceeding, and during the pendency
thereof (a) no Event of Default shall be continuing; (b) adequate Reserves
with respect thereto are maintained on the books of Borrower, in accordance
with GAAP; (c) such contest operates to suspend collection of the contested
Charges or claims and is maintained and prosecuted continuously with
diligence; (d) none of the Properties would be subject to forfeiture or
loss or any Lien by reason of the institution or prosecution of such
contest; (e) Borrower shall promptly pay or discharge such contested
Charges and all additional charges, interest, penalties and expenses, if
any, and shall deliver to Lender evidence acceptable to Lender of such
compliance, payment or discharge, if such contest is terminated or
discontinued adversely to Borrower; and (f) Lender has not advised Borrower
in writing that Lender reasonably believes that nonpayment or nondischarge
thereof would have a Material Adverse Effect. Notwithstanding the
foregoing, Borrower shall have the right to pay the Charges or claims
arising under clause (b) of paragraph (1) above and in good faith contest
by proper legal action or proceedings, the validity or amount of such
Charges or claims.
(3) If Borrower shall be in default of its obligations to pay and
discharge any Charges as provided in paragraph (1) above and provided no
contest as described in and as permitted under paragraph (2) above is in
process, Lender, at its option and without notice, may pay such Charges
and, in such event, the amount of such Charges so paid by Lender (a) shall
be added to the Obligations, (b) shall be secured by the Collateral, and
(c) shall be immediately due and payable, on demand, together with interest
thereon at the Default Rate from the date of any such payment by Lender to
the date of any repayment to Lender.
Section 8.3 BOOKS AND RECORDS. Borrower shall keep adequate records and
books of account with respect to its business activities, in which proper
entries, reflecting all of its financial transactions, are made in accordance
with GAAP.
Section 8.4 LITIGATION. Borrower shall notify Lender in writing,
promptly upon learning thereof, of any litigation commenced against Borrower,
and of the institution against Borrower of any uninsured suit or administrative
proceeding that, in either case, if determined adversely would have a Material
Adverse Effect. Any such notification shall be deemed to automatically update
Schedule 6.17 hereto to reflect the matters contained in such notification.
Section 8.5 COMPLIANCE WITH LAW. Subject to Borrower's right to contest
Charges to the extent and in the manner expressly permitted elsewhere in this
Agreement, Borrower shall comply with all Laws applicable to Borrower, and each
Property, including, with respect to Borrower only, ERISA, those regarding the
collection, payment and deposit of employees' income, unemployment and social
security taxes, except in each case where the failure to so comply will not have
a Material Adverse Effect.
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Section 8.6 MAINTENANCE OF PROPERTY.
(1) Borrower shall, with respect to each Property, (a) maintain the
Property and the improvements located thereon in good repair, order and
condition; (b) make all necessary repairs, renewals, replacements,
additions and improvements to the Property; (c) not abandon the Property;
(d) not permit or suffer any waste to occur in respect of the Property; (e)
refrain from impairing or diminishing the value or integrity of the
Property or the priority and security of the Lien of Lender on the
Property; (f) not remove, demolish or materially alter any of the Property
without the prior written consent of Lender in each instance, except that,
Borrower shall have the right to remove and dispose of, free of the Lien of
Lender, such fixtures as may, from time to time, become worn out or
obsolete, provided that, simultaneously with such removal, any such
fixtures shall be replaced with other fixtures that shall have the value
and utility equal to that of the replaced fixtures and which shall be free
of any security agreement or other Liens of any kind or nature whatsoever,
and by such removal and replacement, Borrower shall be deemed to have
subjected such replacement fixtures to the Lien of the Deed of Trust
encumbering such Property; (g) not execute any conditional bill of sale,
chattel mortgage or other security instrument covering any of the equipment
located at any Property or purchase any equipment unless ownership of the
same will vest unconditionally in Borrower, free from encumbrances on
delivery to the Property; (h) not make or permit to be made or installed,
any alterations or additions to the Property if doing so would, in the
opinion of Lender, impair to any extent the value of the Property; and (i)
not make, suffer or permit any nuisance to exist on the Property or any
portions thereof, except as to each of the covenants (a) through (i), to
the extent that the failure to do so (or to refrain from doing so, as
applicable) would not have a Material Adverse Effect.
(2) Borrower shall not permit, by any act or omission, any building or
any other improvement located on any property which is not subject to the
Lien of a Deed of Trust to rely upon any Property or any portion thereof or
any interest therein to fulfill any legal requirements. Borrower shall not
impair or permit the impairment of, by any act or omission, the integrity
of any Property as one or more lots separate and apart from all other
premises owned by any other Person. Except as reflected in or otherwise
contemplated by an Asset Business Plan, Borrower shall not initiate, or
permit the initiation of, or join in, any zoning change, easement or other
modification of zoning regulations in respect of any Property that would
result in a Material Adverse Effect. Except as otherwise permitted herein,
Borrower shall not (i) impose any restrictions, covenant or encumbrance
upon any Property, execute or file any subdivision plot affecting any
Property or consent to the annexation of any Property to any municipality
that would result in a Material Adverse Effect, or (ii) permit or suffer
the Property to be used by the public or any Person in such manner as might
make possible a claim of adverse usage or possession or of any implied
right or easement.
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Section 8.7 AGREEMENTS. Borrower shall notify Lender of any Material
Agreements entered into after the Closing Date. Borrower shall perform, within
all required time periods (after giving effect to any applicable notice or grace
periods), all of its obligations and enforce all of its rights under each
Material Agreement to which it is a party if the failure to perform such
obligations or enforce such rights would have a Material Adverse Effect.
Section 8.8 EMPLOYEE PLANS. Borrower shall not adopt any Plan without
the consent of Lender.
Section 8.9 ACCESS. Lender and any of its officers, employees and/or
agents shall have the right, exercisable as frequently as Lender (or any
representative of Lender) reasonably determines to be appropriate, during normal
business hours (or at such other times as may reasonably be requested by Lender
or any representative of Lender) to inspect any Property. Lender and any of its
officers, employees and/or agents shall have the right, exercisable as
frequently as Lender (or any representative of Lender) reasonably determines to
be appropriate, during normal business hours (or at such other times as may
reasonably be requested by Lender or any representative of Lender), to inspect,
audit and make extracts from all of Borrower's records, files and books of
account at Lender's cost except in those instances in which Lender's audit costs
are to be paid by Borrower, as provided for elsewhere in this Agreement.
Borrower shall deliver any document or instrument reasonably necessary for
Lender (or any representative of Lender), as any of them may request, to obtain
records from any service bureau maintaining records for Borrower. Borrower shall
instruct its banking and other financial institutions and its Asset Manager to
make available to Lender such information and records as Lender (or any
representative of Lender) may reasonably request.
Section 8.10 TAXES ON PAYMENTS OR SECURITY.
(1) To the extent permitted by applicable Law and subject to the last
sentence of this paragraph, any and all payments by Borrower hereunder or
under the Note shall be made free and clear of and without deduction for
any and all present or future taxes, levies, mortgage recording taxes,
imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding franchise taxes or taxes imposed on or measured
by the net or gross income, capital or gross receipts of Lender (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "TAXES"). If Borrower shall be
required by Law to deduct any Taxes from or in respect of any sum payable
hereunder or under the Note (for which Lender will not be able to obtain a
refund or credit against taxes other than with respect to the receipt of
payments pursuant to the Note), (a) the sum payable to Lender shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section), Lender receives an amount equal to the sum it would have received
had no such deductions been made (but only to the extent that Lender is not
able to obtain a refund or credit of such amounts deducted), (b) Borrower
shall make such deductions, and (c) Borrower shall pay the full amount
deducted to the relevant taxing or other authority in accordance with
applicable Law. Borrower will not be required to pay any amounts pursuant
to this paragraph (1) for Taxes to a subsequent holder of the Note to the
extent that GECC would not have been required to pay such Taxes.
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(2) To the extent permitted by applicable Law and subject to the last
sentence of this paragraph, Borrower agrees to pay any present or future
stamp or documentary taxes or any other sales, transfer, excise or property
taxes, charges or similar levies that arise from any payment made hereunder
or under the Note or from the execution, sale, transfer, delivery or
registration of, or otherwise with respect to, this Agreement or the Note,
the Loan Documents and any other agreements and instruments contemplated
thereby (hereinafter referred to as "OTHER TAXES") except for excluded
taxes described in paragraph (1) above. Borrower will not be required to
pay any amounts to a subsequent holder of the Note as provided in this
paragraph (2) to the extent that Other Taxes would not have been payable
had GECC continued to hold the Note.
(3) To the extent permitted by applicable Law, Borrower shall
indemnify Lender for the full amount of Taxes or Other Taxes (including any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under
this Section), but not excluded taxes described in paragraph (1) above or
Taxes or Other Taxes imposed due to any action of Lender, paid by Lender
and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted. This indemnification shall be made
within ninety (90) days from the date Lender makes written demand therefor.
(4) Within ninety (90) days after the date of any payment of Taxes,
Borrower shall furnish to Lender, at the address to which notices to Lender
are to be sent under this Agreement, the original or a certified copy of a
receipt evidencing payment thereof.
(5) Without prejudice to the survival of any other agreement of
Borrower, the agreements and obligations of Borrower and Lender contained
in this Section shall survive the payment in full of principal and interest
hereunder and under the Note and the termination of this Agreement.
(6) Lender shall promptly notify Borrower in writing upon receipt by
Lender of notice of any pending or threatened federal, state or local tax
audits or assessments for which Borrower would be required to indemnify
Lender pursuant to this Section. Borrower shall be entitled to participate
at its own expense in the defense of any tax claim which may be subject to
indemnification by Borrower pursuant to this Section. Lender shall not
settle any such tax claim without the prior written consent of Borrower.
(7) If Lender is entitled to a refund or credit relating to amounts
which Borrower has paid Lender pursuant to this Section, Lender shall
promptly pay to Borrower the amount of such refund or credit together with
any interest thereon upon receipt thereof. Upon reliance of an opinion of
counsel that provides that there is a reasonable basis for such claim,
Borrower can require Lender to file all necessary or appropriate tax forms
to obtain a refund or credit of an amount for which Borrower has
indemnified Lender.
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Section 8.11 ENFORCEMENT. At Borrower's sole cost and expense, Borrower
will appear in and defend any action growing out of or in any manner connected
with the Collateral Documents, or the obligations or liabilities of Borrower or
any other party thereunder, or any guarantee thereof, and Lender, if made a
party to any such action, may employ counsel and incur and pay the necessary
costs and expenses and reasonable attorneys' fees, and all such sums, together
with interest thereon at the Default Rate, shall immediately be due from
Borrower, shall be added to the Obligations and secured by the Collateral.
Section 8.12 [Intentionally Deleted.].
Section 8.13 [Intentionally Deleted.].
Section 8.14 MAINTENANCE OF REPRESENTATIONS; SUPPLEMENTAL DISCLOSURE.
Borrower shall cause the representations set forth in Article 6 hereof (other
than with respect to the representations that are given to the knowledge of
Borrower, as to which no further representation shall be deemed given) to remain
true as of the date of the funding of any Advance (i.e., the representations
shall be updated and made as of such later dates rather than restated at such
later dates as of the Closing Date, except that no such update shall be required
if the matter to be disclosed would not have a Material Adverse Effect).
Lender's remedies for a breach of any such updated representation regarding any
Property shall be the same as for a breach of a representation, as described in
Section 8.18. From time to time as may be necessary (in the event that such
information is not otherwise delivered by Borrower to Lender pursuant to this
Agreement), so long as there are Obligations outstanding hereunder, Borrower
will supplement or amend each Schedule or representation herein with respect to
any matter hereafter arising which, if existing or occurring at the date of this
Agreement, would have been required to be set forth or described in such
Schedule or as an exception to such representation or which is necessary to
correct any information in such Schedule or representation which has been
rendered inaccurate thereby, provided, however, that any notice delivered to
Lender hereunder in respect of any information that relates to a representation
shall be deemed to constitute an exception to such representation whether or not
such information would otherwise appear on a Schedule.
Section 8.15 PROPERTY DOCUMENTS; ASSET BUSINESS PLANS. Borrower shall
promptly deliver to Lender true and correct copies of any and all Property
Documents (other than internal Borrower memoranda and communications between
Borrower and its counsel) received by Borrower at any time during the term of
the Loan. Borrower shall deliver to Lender copies of all Asset Business Plans
(including annual budgets) within the time periods set forth for delivery of
such Asset Business Plans (including annual budgets) to Borrower pursuant to the
Asset Management Agreement, subject to reasonable extensions.
Section 8.16 INTEREST RATE CAP AGREEMENT. Within ninety (90) days after
the Closing Date, Borrower agrees to enter into an interest rate cap agreement
or other hedging device in connection with the Loan, which agreement or hedging
device shall be submitted to Lender for Lender's approval, which approval shall
not be unreasonably delayed or withheld. Borrower shall, upon execution of such
agreement, deliver to Lender the Collateral Assignment of Interest Rate Cap
Agreement, duly executed and delivered by Borrower in favor of Lender, together
with the consent
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of the counterparty thereunder to such collateral assignment. The original
interest rate cap agreement shall at all times cover the outstanding Loan
balance, plus the then undisbused Working Capital Allocation. Thereafter, within
thirty (30) days after any Acquisition Advance for an Additional Property,
Borrower shall amend the original interest rate cap agreement, or obtain a
separate interest rate cap agreement, covering such Advance and all prior
Advances not then covered by an interest rate cap agreement, which amendment or
separate agreement shall be subject to Lender's prior approval (which shall not
be unreasonably delayed or withheld). Upon execution of any such amendment or
new agreement, Borrower shall deliver to Lender an amendment to the existing
Collateral Assignment of Interest Rate Cap Agreement, or an additional
Collateral Assignment of Interest Rate Cap Agreement, covering such amendment or
new agreement, together with the consent of the counterparty thereunder to such
collateral assignment, in each case in form and substance reasonably
satisfactory to Lender.
Section 8.17 INDEMNIFICATION. Subject to the provisions of Section 12.1
hereof, Borrower shall indemnify and hold Lender harmless from and against any
and all suits, actions, proceedings, claims, damages, losses, liabilities and
expenses (including reasonable attorneys' fees and disbursements, including
those incurred upon any appeal) which may be instituted or asserted against or
incurred by Lender as the result of its having entered into any of the Loan
Documents or extended credit hereunder, including any suits, actions,
proceedings, claims, damages, losses, liabilities or expenses arising in
connection with any brokerage, finders' or other commissions or fees which any
broker or other Person claims is owing in connection with Borrower's acquisition
of the Properties or in connection with the Loan or the transactions
contemplated by the Loan Documents (except to the extent such Person claims that
such commissions or fees are owing solely by virtue of its dealings with
Lender).
Section 8.18 IMPAIRED PROPERTY. Notwithstanding anything herein to the
contrary, if any representation or covenant herein, or in any other Loan
Document, with respect to any Property has been breached and, in Lender's
reasonable opinion, such breach impairs the value of such Property (any such
Property being referred to herein as an "IMPAIRED PROPERTY") by at least five
percent (5%) of its Property Basis or $250,000, whichever is less, then (unless
Borrower proves to Lender's reasonable satisfaction that such breach was
appropriately considered in the determination of the initial Property Basis of
the Impaired Property, or Borrower establishes a cash Reserve which is
sufficient in Lender's reasonable judgment to cure such breach and is deposited
into a segregated account pledged to Lender such that Lender shall have a first
priority perfected lien upon such Reserve, in either which case, no default
shall be deemed to exist) Borrower shall either (1) cure such breach to Lender's
reasonable satisfaction, or (2) at Borrower's option (a) pay to Lender the
Adjusted Loan Basis for the Impaired Property and the other sums payable to
Lender hereunder in connection with a release of such Property (at which time
Lender shall release such Property from the Lien of the Loan Documents), or (b)
pay to Lender such sum as will, in Lender's reasonable opinion, reduce the
Adjusted Loan Basis of such Impaired Property to an amount equal to not more
than eighty-five percent (85%) of the fair market value of such Property, as
determined by Lender in its reasonable discretion; provided, however, that the
option described in clause (b) shall not be available if such breach impairs the
value of the Impaired Property by at least twenty-five percent (25%) of its
Property Basis. At Borrower's option, and without prepayment premium or penalty,
Borrower can pay the amount described in clauses (a) or (b) either in a lump sum
payment or
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through payment to Lender of one hundred percent (100%) of Operating Cash Flow,
after payment of (1) debt service on the Loan and (2) the Asset Management Fee
(except to the extent deducted as an Operating Expense in determining Operating
Cash Flow), until such sum has been paid in full. In the event Borrower has
elected to make such payments from Operating Cash Flow and such Operating Cash
Flow is not sufficient to complete the payments required by said clauses (a) or
(b) within 180 days after the date Lender asserted the respective breach in
question, then upon the expiration of said 180 day period, Borrower shall be
required to pay an amount which, together with all such prior payments received
by Lender from Operating Cash Flow, shall be sufficient to make such payment as
described in clauses (a) or (b) above. Lender's remedies as set forth in this
Section shall be exercisable by Lender at any time and from time to time during
the term of the Loan.
Section 8.19 PROPERTY-SPECIFIC COVENANTS. Borrower shall perform the
covenants (if any) set forth in Schedule 8.19 hereof applicable to one or more
specific Properties.
ARTICLE 9
NEGATIVE COVENANTS
Borrower covenants and agrees that, without Lender's prior written
consent, from and after the Closing Date:
Section 9.1 MERGERS, ETC. Borrower shall not directly or indirectly, by
operation of law or otherwise, merge with, consolidate with, acquire all or
substantially all of the assets or capital stock of, or otherwise combine with,
any Person.
Section 9.2 INVESTMENTS; LOANS AND ADVANCES. Except as otherwise
permitted by Sections 9.3 or 9.5 hereof, Borrower shall not make any investment
in, or make or accrue loans or advances of money to, any Person through the
direct or indirect holding of securities or otherwise, except (1) direct
obligations of the United States, or obligations unconditionally guaranteed by
the United States, (2) commercial paper rated in the highest grade by Standard &
Poor's or Moody's Investors Service, Inc., and (3) time deposits with, including
certificates of deposit issued by, bankers acceptances issued by, and repurchase
agreements with respect to investments described in clauses (1) and (2) with,
any office located in the United States of any bank, trust company or savings
association which is organized under the Laws of the United States or any state
thereof and has total assets aggregating at least $500,000,000, provided in each
case that such investment matures within one year from the date of acquisition
thereof by Borrower.
Section 9.3 INDEBTEDNESS.
(1) Borrower shall not create, incur, assume or permit to exist any
Indebtedness, except (a) Indebtedness secured by Liens permitted under
Section 9.7 hereof, (b) the Loan, (c) Indebtedness specifically approved in
writing by Lender, (d) Guaranteed Indebtedness incurred solely by
endorsement of instruments or items of payment for deposit to the general
account of Borrower except for surety bonds and performance guarantees
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entered into in the ordinary course of Borrower's business, and (e)
Indebtedness incurred in connection with the indemnifications given to the
Title Company in connection with the issuance of the Title Policies and
endorsements required pursuant hereto which Indebtedness shall be
subordinate in all respects to the Obligations (it being specifically
agreed, however, that payments made under the indemnifications prior to an
Event of Default for the purpose of paying delinquent real estate taxes
shall not be a default hereunder).
(2) Borrower shall not engage in any sale-leaseback or similar
transaction involving any of the Collateral.
Section 9.4 STRUCTURE; TRANSFERS.
(1) Borrower shall not amend the Partnership Agreement in any way that
would have a Material Adverse Effect.
(2) No general or limited partner of Borrower shall assign, transfer,
sell, convey, encumber, pledge or hypothecate, whether directly or
indirectly, by operation of law or otherwise, any of the partnership
interests in Borrower or permit any change in its ownership.
Notwithstanding anything to the contrary contained in this Agreement or in
any other Loan Document, so long as Whitehall directly or indirectly
retains ultimate decision making authority over the management and
operations of Borrower, the foregoing shall not prohibit (a) transfers of
interests between entities which are directly or indirectly wholly owned by
Whitehall or Holding Company provided that no cash is distributed to the
transferor in connection with such a transfer, (b) sales, transfers and
conveyances of limited partnership interests in Whitehall, (c) the
encumbrance, pledge or hypothecation of limited partnership interests in
Whitehall and (d) any assignment, transfer, sale, conveyance, encumbrance,
pledge or hypothecation by McNeil of all or any portion of its interest in
Holding Company, but only to the extent (i) permitted without Board of
Manager approval under Section 9.1(b) of the First Amended and Restated
Limited Liability Company Operating Agreement of WXI/McN Realty L.L.C.
dated as of January 31, 2000 (as in effect as of the Closing Date) (the
"HOLDING COMPANY OPERATING AGREEMENT"), or (ii) approved in advance in
writing by Lender, which approval shall not be unreasonably withheld or
delayed; provided, however, that in any case under this clause (d), the
approval, voting, appointment and other rights under the Holding Company
Operating Agreement of any subsequent holder of any of McNeil's interest in
the Holding Company shall not be any greater than the approval, voting,
appointment and other rights of McNeil under the Holding Company Operating
Agreement as of the Closing Date. In addition, Holding Company may transfer
its interest in the Borrower and in Borrower's general partner to a new
entity ("NEW HOLDING COMPANY"), upon satisfaction of all of the following
conditions: (A) Borrower or Holding Company provides Lender written notice
of Holding Company's election to transfer such interest at least forty five
(45) days prior to the proposed effective date of such transfer, (B) no
Event of Default has occurred and is continuing on the date on which Lender
receives Borrower's or Holding Company's notice or on the effective date of
such transfer, (C) the ownership of New Holding Company shall be identical
to the ownership of Holding Company, (D) Borrower shall have delivered to
Lender, legal opinions of Sullivan &
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Cromwell, counsel to Borrower and Whitehall, addressing the same matters
regarding the New Holding Company as are addressed with respect to Holding
Company in the original legal opinion provided by Sullivan & Cromwell as of
the Closing Date, and confirming (in light of such transfer) such matters
covered in such original opinion as Lender reasonably requires, (E) the
Asset Management Agreement shall have been terminated with respect to the
Properties and concurrently replaced with a new asset management agreement
between Borrower and the Asset Manager covering only the Properties (on the
same terms and conditions as the Asset Management Agreement), and Borrower
and the Asset Manager shall have executed and delivered to Lender, along
with the new asset management agreement, a collateral assignment of such
asset management agreement in form and substance satisfactory to Lender,
and (F) Borrower and New Holding Company shall have delivered to Lender
such other documents or items as Lender reasonably requires.
(3) Borrower shall not take any action or forbear from taking any
action (including, without limitation, the granting of consents to actions
taken or proposed to be taken by others) that would cause Borrower to be
taxable as a corporation for federal income tax purposes.
Section 9.5 MAINTENANCE OF BUSINESS. Borrower shall not engage in any
business other than the business currently contemplated by its Partnership
Agreement.
Section 9.6 AFFILIATE TRANSACTIONS.
(1) Borrower shall not enter into or be a party to any transaction
with any Affiliate of Borrower, except for (a) transactions contemplated by
this Agreement with respect to the refinancing of a Property, (b) the Asset
Management Agreement, and (c) any other arrangement, provided that the
terms are (i) commercially reasonable and competitive with amounts that
would be paid to or received from third parties on an "arm's-length" basis
and (ii) reduced to a writing covering all material aspects of such
arrangement.
(2) Borrower shall not enter into any agreement or transaction to pay
to any Person any management or similar fee based on or related to
Borrower's operating performance or income or any percentage thereof, nor
pay any management or similar fee to an Affiliate.
Section 9.7 LIENS. Borrower shall not create or permit any Lien (unless
Borrower proves to Lender's reasonable satisfaction that any such Lien was
appropriately considered in the determination of the initial Property Basis of
such Property) on any of its properties or assets except:
(1) presently existing or hereinafter created Liens in favor of
Lender;
(2) Permitted Encumbrances (provided that Borrower also may permit a
Lien on each Property for current but not delinquent property taxes,
assessments or other governmental charges or levies against such Property);
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(3) Liens securing Indebtedness specifically approved by Lender in
writing;
(4) non-monetary Liens which individually or in the aggregate would
not have a Material Adverse Effect; and
(5) monetary Liens which individually or in the aggregate would not
have a Material Adverse Effect and for which Borrower has established a
reserve with Lender necessary for the removal of such Lien, and Borrower is
diligently pursuing cure and/or contesting the Lien in accordance with
Section 8.2(2) hereof.
Section 9.8 EVENTS OF DEFAULT. Borrower shall not take or omit to take
any action, which act or omission would constitute (1) a Potential Default or an
Event of Default pursuant to, or noncompliance with any of, the terms of any of
the Loan Documents or the Ancillary Agreements, or (2) a material default or an
event of default (after notice and applicable grace periods set forth in such
other contract or instrument) pursuant to, or noncompliance with, any other
contract or instrument to which it is a party or by which it or any of its
property is bound, or any document creating a Lien, unless such default, event
of default or non-compliance would not have a Material Adverse Effect; provided,
however, that for purposes of this clause (2), no Material Adverse Effect shall
be deemed to have occurred as a result of a material adverse effect on any
Property individually unless such material adverse effect shall also result in a
Material Adverse Effect on Borrower or the Properties as a whole.
Section 9.9 GROUND LEASES. Except for the Fidelity Federal Ground
Leases, Borrower will not directly or indirectly become or remain liable as
lessee or as guarantor or other surety with respect to any ground leases.
Section 9.10 MATERIAL AGREEMENTS. Borrower shall not enter into any
Material Agreements.
ARTICLE 10
EVENTS OF DEFAULT; RIGHTS AND REMEDIES
Section 10.1 EVENTS OF DEFAULT. The occurrence of any one or more of
the following events (regardless of the reason therefor) shall constitute an
"EVENT OF DEFAULT" hereunder:
(1) Borrower shall fail to make any payment of principal of, or
interest on or any other amount owing in respect of, the Loan, or any of
the other Obligations when due and payable or declared due and payable, and
such failure shall have remained unremedied for a period of five (5)
Business Days after such failure, except that with respect to expenses
payable under this Agreement, or other Obligations owing under any Loan
Document other than this Agreement, such failure shall have remained
unremedied for a
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period of five (5) Business Days after Borrower has received notice of such
failure from Lender.
(2) Borrower shall fail or neglect to perform, keep or observe any
other provision of this Agreement or of any of the other Loan Documents, or
Borrower shall fail or neglect to perform, keep or observe any of the
provisions of any other Loan Document and the same shall remain unremedied
for a period of thirty (30) days after Borrower shall receive written
notice of any such failure from Lender; provided, however, if such failure
or neglect is of the type which is curable but which cannot be cured within
such 30-day period, such failure or neglect shall not be an Event of
Default if Borrower, within such 30-day period, has commenced and
thereafter is diligently pursuing such cure, in which event Borrower shall
have such additional time as is reasonably required to effect such cure,
but in no event in excess of 180 days; and provided further that a breach
of a covenant with respect to one or more Properties shall not constitute
an Event of Default hereunder if such breach gives rise to Lender's
remedies with respect to an Impaired Property, so long as Borrower is
performing its obligations under the provisions hereof concerning Impaired
Properties.
(3) Any representation or warranty herein, or in any other Loan
Document, or in any written statement pursuant thereto or hereto, report,
financial statement, or certificate made or delivered to Lender by Borrower
shall be untrue or incorrect in any material respect, as of the date when
made or deemed made (including those made or deemed made in connection with
each Advance) and such representation or warranty, if made by Borrower
after the Closing Date, shall, if the condition that gave rise to the
breach of representation or warranty is capable of being cured, remain
untrue or incorrect for a period ending on the first to occur of (a) thirty
(30) days after Borrower has received written notice of the falsity or
inaccuracy of such representation or warranty from Lender, or (b) thirty
(30) days after Borrower shall become aware of such falsity or inaccuracy;
provided, however, that if the breach of the representation or warranty is
of a nature which is curable but which cannot be cured within such 30-day
period such failure shall not be an Event of Default if Borrower, within
such 30-day period, shall have commenced to cure the condition that gave
rise to the breach of representation or warranty and thereafter diligently
pursues such cure, in which event Borrower shall have such additional time
as is reasonably required to effect such cure, but in no event in excess of
one hundred eighty (180) days; and provided further that a breach of a
representation or warranty shall not constitute an Event of Default
hereunder if such breach gives rise to Lender's remedies with respect to an
Impaired Property, so long as Borrower is performing its obligations under
the provisions hereof concerning Impaired Properties.
(4) Any of the assets of Borrower to which in excess of $100,000 in
aggregate Adjusted Loan Basis has been allocated shall be attached, seized,
levied upon or subjected to a writ or distress warrant, or come within the
possession of any receiver, trustee, custodian or assignee for the benefit
of creditors of Borrower and shall remain unstayed or undismissed for
thirty (30) consecutive days; or any Person other than Borrower shall apply
for the appointment of a receiver, trustee or custodian for any of the
assets of Borrower and
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such application shall remain unstayed or undismissed for thirty (30)
consecutive days; or Borrower shall have concealed, removed or permitted to
be concealed or removed, any part of its property, with intent to hinder,
delay or defraud its creditors or any of them or made or suffered a
transfer of any of its property or the incurring of an obligation which may
be fraudulent under any bankruptcy, fraudulent conveyance or other similar
Law.
(5) A case or proceeding shall have been commenced against Borrower in
a court having competent jurisdiction seeking a decree or order in respect
of such Borrower (a) under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other applicable federal, state or
foreign bankruptcy or other similar Law, (b) appointing a custodian,
receiver, liquidator, assignee, trustee or sequestrator (or similar
official) of such Borrower or of any substantial part of its properties, or
(c) ordering the winding-up or liquidation of the affairs of Borrower, and
such case or proceeding shall remain undismissed or unstayed for thirty
(30) consecutive days or such court shall enter a decree or order granting
the relief sought in such case or proceeding.
(6) Borrower shall (a) file a petition seeking relief under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other applicable federal, state or foreign bankruptcy or other similar Law,
(b) consent to the institution of proceedings thereunder or to the filing
of any such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or
similar official) of Borrower or of any substantial part of its properties,
(c) admit in writing its inability to pay its debts generally as such debts
become due, or (d) take any action in furtherance of any such action.
(7) Final judgment or judgments (after the expiration of all times to
appeal therefrom) for the payment of money in excess of $250,000 in the
aggregate shall be rendered against Borrower and the same shall not be (i)
fully covered (taking into account the deductible) by insurance maintained
by Borrower in accordance with the requirements of this Agreement, or (ii)
vacated, stayed, bonded, paid or discharged for a period of thirty (30)
days.
(8) Any provision of any Collateral Document, after delivery thereof
shall for any reason (other than being contrary to applicable Law or public
policy, and other than by Lender's acts) cease to be valid or enforceable
in accordance with its terms, or any security interest created under any
Collateral Document shall cease to be a valid and perfected first priority
security interest or Lien (subject to Permitted Encumbrances and except as
otherwise stated therein and other than being contrary to applicable Law or
public policy, and other than by Lender's acts) in any of the Collateral
purported to be covered thereby.
(9) Asset Manager defaults under the Asset Management Agreement beyond
applicable grace periods or ceases to act as manager under the Asset
Management Agreement (unless Lender has failed to approve an extension of
the Asset Management Agreement upon its expiration) unless in each case
Borrower has replaced Asset Manager
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as manager with a manager satisfactory to Lender in its reasonable
discretion within thirty (30) days.
(10) The occurrence of any "Event of Default" under the Whitehall
Indemnity.
(11) The occurrence of any breach or default under any Fidelity
Federal Ground Lease beyond any applicable grace or cure period, or the
occurrence of any other event which would entitle the landlord under any
Fidelity Federal Ground Lease to terminate the Fidelity Federal Ground
Lease to which it is a party.
Notwithstanding anything to the contrary herein or in the other Loan Documents,
if an Event of Default (which arises from the occurrence of a breach, default,
failure of condition or other event for which no cure period is provided herein)
or a Potential Default occurs hereunder or under another Loan Document because a
representation or warranty or a covenant is breached as it affects a particular
Property (a "DEFAULT PROPERTY"), such Event of Default or Potential Default may
be cured by paying to Lender, as the Release Payment for such Default Property,
the Adjusted Loan Basis for the Default Property (together with all other sums
payable to Lender in connection with a release of such Property) within ten (10)
days of written notice from Lender (as to any such Event of Default), or within
the applicable cure period provided in this Section 10.1 (as to any such
Potential Default), in which event Lender shall release all of its Liens on the
Default Property and all of the personal property Collateral related solely
thereto. Lender agrees that an Event of Default arising under Section 10.1(11)
shall cause the Fidelity Federal Property to be a Default Property, and that
such an Event of Default is curable under this paragraph.
Section 10.2 REMEDIES.
(1) If any Event of Default (other than an Event of Default which is
curable under the last paragraph of Section 10.1 and as to which the
ten-day cure period has not yet expired) shall have occurred and be
continuing, (a) Lender may, without notice, terminate this facility with
respect to funding further Advances, whereupon no additional Loan proceeds
shall be funded hereunder, and/or (b) Lender may: (i) without notice,
declare all Obligations to be forthwith due and payable, whereupon all such
Obligations shall become and be due and payable, without presentment,
demand, protest or further notice of any kind, all of which are expressly
waived by Borrower; provided, however, that upon the occurrence of an Event
of Default specified in Sections 10.1(4), (5) or (6) hereof, such
Obligations shall become due and payable without declaration, notice or
demand by Lender; and (ii) exercise all remedies available to Lender in the
Loan Documents, at law, in equity or otherwise.
(2) Upon the occurrence of an Event of Default Lender shall have the
right to request Borrower to, and Borrower shall, execute new promissory
notes (and appropriate amendments to the other Loan Documents) aggregating
the then outstanding balance due on the Loan. Borrower hereby designates
Lender as its attorney-in-fact to
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execute any such documents on behalf of Borrower, such appointment being
coupled with interest, and such designation shall be irrevocable.
Section 10.3 WAIVERS BY BORROWER Except as otherwise provided for in
this Agreement and applicable Law, Borrower waives (1) presentment, demand and
protest and notice of presentment, dishonor, notice of intent to accelerate and
notice of acceleration, (2) all rights to notice and a hearing prior to Lender's
taking possession or control of, or to Lender's replevy, attachment or levy
upon, the Properties or any bond or security which might be required by any
court prior to allowing Lender to exercise any of its remedies, and (3) the
benefit of all valuation, appraisal and exemption Laws. Borrower acknowledges
that it has been advised by counsel of its choice with respect to this
Agreement, the other Loan Documents and the transactions evidenced by this
Agreement and the other Loan Documents.
Section 10.4 RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Event of Default, Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by Law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held (other than deposits held by Borrower in trust for other
persons, such as Security Deposits, and other such deposits) and other
indebtedness at any time owing by Lender to or for the credit or the account of
Borrower against any and all of the Obligations of Borrower now or hereafter
existing under this Agreement and the Note held by Lender, irrespective of
whether or not Lender shall have made any demand under this Agreement or any
such Note and although such obligations may be unmatured. Lender agrees promptly
to notify Borrower after any such set-off and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of Lender under this
Section are in addition to other rights and remedies (including other rights of
set-off) which Lender may have.
ARTICLE 11
MISCELLANEOUS
Section 11.1 NOTICES. Except as otherwise provided herein, whenever it
is provided herein that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon any
of the parties by another, or whenever any of the parties desires to give or
serve upon another any communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and either shall be delivered in person with receipt
acknowledged, by a nationally recognized overnight delivery service (such as
Federal Express), or by registered or certified mail, return receipt requested,
postage prepaid, or telecopied and confirmed by telecopy answerback, addressed
as follows:
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(a) If to Lender, at:
General Electric Capital Corporation
c/o GE Capital Realty Group, Inc.
16479 Dallas Parkway, Suite 400
Addison, Texas 75001-2512
Attention: Asset Manager (Whitehall/McNeil Portfolio)
Telecopy Number: (972) 447-2660
with copies to:
General Electric Capital Corporation
292 Long Ridge Road
Stamford, Connecticut 06927
Attention: Kevin L. Korsh, Esq. (Whitehall/McNeil Portfolio)
Telecopy Number: (203) 357-6768
(b) If to Borrower, at:
WXI/MCN Commercial Real Estate Limited Partnership
100 Crescent Court, Suite 1000
Dallas, Texas 75201
Attention: Todd Williams
Telecopy Number: (214) 855-6305
with copies to:
Whitehall Street Real Estate Limited Partnership XI
85 Broad Street, 10th Floor
New York, New York 10004
Attention: Chief Financial Officer
Telecopy Number: (212) 357-5505
and to:
Archon Group, L.P.
600 E. Las Colinas Boulevard, Suite 400
Irving, Texas 75039
Attention: Elizabeth W. Lambert
Telecopy Number: (972) 368-3699
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and to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Gary Israel, Esq.
Telecopy Number: (212) 558-3588
(c) If to Whitehall, at:
Whitehall Street Real Estate Limited Partnership XI
85 Broad Street, 10th Floor
New York, New York 10004
Attention: Chief Financial Officer
Telecopy Number: (212) 357-5505
and to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Gary Israel, Esq.
Telecopy Number: (212) 558-3588
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, telecopied and confirmed by telecopy answerback, or
the next Business Day if sent by a nationally recognized courier service, or
three (3) Business Days after the same shall have been deposited in the United
States mail. Failure or delay in delivering copies of any notice, demand,
request, consent, approval, declaration or other communication to the persons
designated above to receive copies shall in no way adversely affect the
effectiveness of such notice, demand, request, consent, approval, declaration or
other communication.
Section 11.2 AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of the Loan Documents shall be effective unless in writing and signed
by the party against whom enforcement is sought.
Section 11.3 LIMITATION ON INTEREST. It is the intention of the parties
hereto to conform strictly to applicable usury Laws. Accordingly, all agreements
between Borrower and Lender with respect to the Loan are hereby expressly
limited so that in no event, whether by reason of acceleration of maturity or
otherwise, shall the amount paid or agreed to be paid to Lender or charged by
Lender for the use, forbearance or detention of the money to be lent hereunder
or otherwise, exceed the maximum amount allowed by Law. If the Loan would be
usurious under
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applicable Law (including the Laws of the State and the Laws of the United
States of America), then, notwithstanding anything to the contrary in the Loan
Documents: (1) the aggregate of all consideration which constitutes interest
under applicable Law that is contracted for, taken, reserved, charged or
received under the Loan Documents shall under no circumstances exceed the
maximum amount of interest allowed by applicable Law, and any excess shall be
credited on the Note by the holder thereof (or, if the Note has been paid in
full, refunded to Borrower); and (2) if maturity is accelerated by reason of an
election by Lender, or in the event of any prepayment, then any consideration
which constitutes interest may never include more than the maximum amount
allowed by applicable Law. In such case, excess interest, if any, provided for
in the Loan Documents or otherwise, to the extent permitted by applicable Law,
shall be amortized, prorated, allocated and spread from the date of advance
until payment in full so that the actual rate of interest is uniform through the
term hereof. If such amortization, proration, allocation and spreading is not
permitted under applicable Law, then such excess interest shall be canceled
automatically as of the date of such acceleration or prepayment and, if
theretofore paid, shall be credited on the Note (or, if the Note has been paid
in full, refunded to Borrower). The terms and provisions of this Section shall
control and supersede every other provision of the Loan Documents. The Loan
Documents are contracts made under and shall be construed in accordance with and
governed by the Laws of the State, except that if at any time the Laws of the
United States of America permit Lender to contract for, take, reserve, charge or
receive a higher rate of interest than is allowed by the Laws of the State
(whether such federal laws directly so provide or refer to the Law of any
state), then such federal Laws shall to such extent govern as to the rate of
interest which Lender may contract for, take, reserve, charge or receive under
the Loan Documents.
Section 11.4 INVALID PROVISIONS. If any provision of any Loan Document
is held to be illegal, invalid or unenforceable, such provision shall be fully
severable; the Loan Documents shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part thereof;
the remaining provisions thereof shall remain in full effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its severance
therefrom; and in lieu of such illegal, invalid or unenforceable provision there
shall be added automatically as a part of such Loan Document a provision as
similar in terms to such illegal, invalid or unenforceable provision as may be
possible to be legal, valid and enforceable.
Section 11.5 REIMBURSEMENT OF EXPENSES. Borrower shall pay all
reasonable out-of-pocket expenses of Lender in connection with underwriting this
Loan and the preparation of the Loan Documents (including all environmental
appraisals, structural appraisals and travel expenses (whether or not such
travel expense is incurred by third parties or in-house staff)) and the closing
and administration of the Loan made pursuant hereto (including the reasonable
fees and expenses of all of its counsel and advisors retained in connection with
the Loan Documents and the transactions contemplated thereby and advice in
connection therewith) and all fees and expenses of Lender. If, at any time or
times, regardless of the existence of an Event of Default (except with respect
to paragraphs (3) and (4) below, which shall be subject to an Event of Default
having occurred and be continuing), Lender shall employ counsel or other
advisors for advice or other representation or shall incur reasonable legal or
other costs and expenses in connection with:
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(1) any amendment, modification or waiver of, or consent with respect
to, any of the Loan Documents or advice in connection with the
administration of the Loan made pursuant hereto or its rights hereunder or
thereunder;
(2) any litigation, contest, dispute, suit, proceeding or action,
whether instituted by Lender, Borrower or any other Person, in any way
relating to the Properties, any of the Loan Documents or any other
agreements to be executed or delivered in connection herewith (including
any lenders' liability claim, contest, dispute, suit, proceeding or
action);
(3) any attempt to enforce any rights of Lender against Borrower or
any other Person, that may be obligated to Lender by virtue of any of the
Loan Documents;
(4) any attempt to verify, protect, collect, sell, liquidate or
otherwise dispose of the Properties;
then, and in any such event, the attorneys' and other parties' fees arising from
such services, including those of any appellate proceedings, and all reasonable
expenses, costs, charges and other fees incurred by such counsel and others in
any way or respect arising in connection with or relating to any of the events
or actions described in this Section shall be payable, on demand, by Borrower to
Lender and shall be additional Obligations secured under this Agreement and the
other Loan Documents. Without limiting the generality of the foregoing, such
expenses, costs, charges and fees may include: reasonable paralegal fees, costs
and expenses; accountants' and investment bankers' fees, costs and expenses;
court costs and expenses; photocopying and duplicating expenses; court reporter
fees, costs and expenses; long distance telephone charges; air express charges;
telegram charges; secretarial overtime charges; and expenses for travel, lodging
and food paid or incurred in connection with the performance of such legal
services.
Section 11.6 APPROVALS; THIRD PARTIES; CONDITIONS. All approval rights
retained or exercised by Lender with respect to leases, contracts, plans,
studies and other matters are solely to facilitate Lender's credit underwriting,
and shall not be deemed or construed as a determination that Lender has passed
on the adequacy thereof for any other purpose and may not be relied upon by
Borrower or any other Person. This Agreement is for the sole and exclusive use
of Lender and Borrower and may not be enforced, nor relied upon, by any Person
other than Lender and Borrower. All conditions of the obligations of Lender
hereunder, including the obligation to make Advances, are imposed solely and
exclusively for the benefit of Lender, its successors and assigns, and no other
Person shall have standing to require satisfaction of such conditions or be
entitled to assume that Lender will refuse to make Advances in the absence of
strict compliance with any or all of such conditions, and no other Person shall,
under any circumstances, be deemed to be a beneficiary of such conditions, any
and all of which may be freely waived in whole or in part by Lender at any time
in Lender's sole discretion.
Section 11.7 LENDER NOT IN CONTROL; NO PARTNERSHIP/MEMBERSHIP. None of
the covenants or other provisions contained in this Agreement shall, or shall be
deemed to, give Lender the right or power to exercise control over the affairs
or management of Borrower, the power of Lender being limited to the rights to
exercise the remedies referred to in the Loan Documents. The
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relationship between Borrower and Lender is, and at all times shall remain,
solely that of debtor and creditor. No covenant or provision of the Loan
Documents is intended, nor shall it be deemed or construed, to create a
partnership, joint venture, agency or common interest in profits or income
between Lender and Borrower or to create an equity in any Property in Lender.
Lender neither undertakes nor assumes any responsibility or duty to Borrower or
to any other person with respect to any Property or the Loan, except as
expressly provided in the Loan Documents; and notwithstanding any other
provision of the Loan Documents: (1) Lender is not, and shall not be construed
as, a partner, joint venturer, alter ego, manager, controlling person or other
business associate or participant of any kind of Borrower or its stockholders,
members, or partners and Lender does not intend to ever assume such status; (2)
Lender shall in no event be liable for any Indebtedness, expenses or losses
incurred or sustained by Borrower; and (3) Lender shall not be deemed
responsible for or a participant in any acts, omissions or decisions of Borrower
or its stockholders, members, or partners. Lender and Borrower disclaim any
intention to create any partnership, joint venture, agency or common interest in
profits or income between Lender and Borrower, or to create an equity in any
Property in Lender, or any sharing of liabilities, losses, costs or expenses.
Section 11.8 TIME OF THE ESSENCE. Time is of the essence with respect
to this Agreement.
Section 11.9 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of Lender and Borrower and the respective
successors and assigns of Lender and Borrower, provided that neither Borrower
nor any other Borrower Party shall, without the prior written consent of Lender,
assign any rights, duties or obligations hereunder. Lender may sell, assign,
transfer or negotiate to one or more other lenders, commercial banks, insurance
companies, other financial institutions or any other Person acceptable to Lender
all or a portion of its rights and obligations under the Loan Documents,
provided, however, that (1) each such sale, assignment, transfer or negotiation
shall be of a constant, and not a varying, percentage of all of the assigning
Lender's rights and obligations under the Loan Documents, (2) any such sale,
assignment, transfer or negotiation shall not require Borrower to file a
registration statement with the Securities and Exchange Commission or apply to
qualify the Note under the blue sky laws of any state, or otherwise participate
in the selling process in a manner which could give rise to liability of
Borrower under Sections 11 or 12 of the Securities Act of 1933 or other federal
or state securities Laws, (3) acceptance of such assignment by any assignee
shall constitute the agreement of such assignee to be bound by the terms of this
Agreement applicable to Lender, (4) GECC shall have the exclusive right to
control all decisions by Lender under the Loan Documents, and (5) such sale,
assignment or other transfer shall not result in any increased cost to Borrower.
From and after the effective date of such an assignment, (a) the assignee
thereunder shall, in addition to the rights and obligations hereunder held by it
immediately prior to such effective date, have the rights and obligations
hereunder that have been assigned to it pursuant to such assignment and (b) the
assignor Lender thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such assignment, relinquish its
rights and be released from its obligations under this Agreement (and, in the
case of an assignment and acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto). Borrower agrees that it will use its best
efforts to assist and cooperate, at Lender's cost and
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expense, with Lender in any manner reasonably requested by Lender to effect the
sale of any participation in, or any assignment of, any of the Loan Documents or
of any portion thereof or interest therein, including assistance in the
preparation of appropriate disclosure documents or placement memoranda. In the
event Lender assigns or otherwise transfers all or any part of the Note in
accordance with the provisions of this Section, Borrower shall, upon the request
of Lender, issue a new Note to effectuate such assignment or transfer, provided
that the total principal amount of all of the Notes does not exceed the
outstanding Loan balance plus the amount of undisbursed Loan funds then
available for disbursement, and the total amounts payable under the Notes are
not greater than the amounts payable prior to such assignment or transfer.
Section 11.10 RENEWAL, EXTENSION OR REARRANGEMENT. All provisions of
the Loan Documents shall apply with equal effect to each and all promissory
notes and amendments thereof hereinafter executed which in whole or in part
represent a renewal, extension, increase or rearrangement of the Loan. For
portfolio management purposes, during the Term Lender may elect to divide the
Loan into two or more separate loans evidenced by separate promissory notes so
long as the payment and other obligations of Borrower are not effectively
increased or otherwise modified. Borrower agrees to cooperate with Lender and to
execute such documents as Lender reasonably may request to effect such division
of the Loan.
Section 11.11 WAIVERS. No course of dealing on the part of Lender, its
officers, employees, consultants or agents, nor any failure or delay by Lender
with respect to exercising any right, power or privilege of Lender under any of
the Loan Documents, shall operate as a waiver thereof, it being understood that
any waivers must be in writing and executed by the party giving such waiver.
Section 11.12 CUMULATIVE RIGHTS. Rights and remedies of Lender under
the Loan Documents shall be cumulative, and the exercise or partial exercise of
any such right or remedy shall not preclude the exercise of any other right or
remedy.
Section 11.13 CONSTRUCTION. Words used in this Agreement and the other
Loan Documents in the singular, where the context so permits, shall be deemed to
include the plural and vice versa. The definitions of words in the singular in
this Agreement and the other Loan Documents shall apply to such words when used
in the plural where the context so permits and vice versa. Any reference to a
Loan Document or Ancillary Agreement shall be deemed to be a reference to such
Loan Document or Ancillary Agreement as it may hereafter from time to time be
amended, modified, supplemented or restated in accordance with the terms hereof.
Any accounting term used in this Agreement shall have, unless otherwise
specifically provided herein, the meaning customarily given such term in
accordance with GAAP, and all financial computations hereunder shall be
computed, unless otherwise specifically provided herein, in accordance with GAAP
consistently applied. That certain terms or computations are explicitly modified
by the phrase "in accordance with GAAP" shall in no way be construed to limit
the foregoing.
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Section 11.14 PHRASES. When used in this Agreement and the other Loan
Documents, the word "include(s)" means "include(s), without limitation," the
word "including" means "including, but not limited to," the phrase "satisfactory
to Lender" means "in form and substance satisfactory to Lender in all respects,"
the phrase "with Lender's consent" or "with Lender's approval" means such
consent or approval at Lender's discretion, the phrase "acceptable to Lender"
means "acceptable to Lender at Lender's sole discretion." The words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole, including the Exhibits and Schedules hereto, as the same
may from time to time be amended, modified or supplemented and not to any
particular section, subsection or clause contained in this Agreement.
Section 11.15 EXHIBITS AND SCHEDULES. The exhibits and schedules
attached to this Agreement are incorporated herein and shall be considered a
part of this Agreement for the purposes stated herein.
Section 11.16 TITLES OF ARTICLES, SECTIONS AND SUBSECTIONS. All titles
or headings to articles, sections, subsections or other divisions of this
Agreement and the other Loan Documents or the exhibits hereto and thereto are
only for the convenience of the parties and shall not be construed to have any
effect or meaning with respect to the other content of such articles, sections,
subsections or other divisions, such other content being controlling as to the
agreement between the parties hereto.
Section 11.17 PUBLICITY. Lender and Borrower will cooperate with
respect to an agreed-upon press release and any other official public statements
to be released by either of them with respect to the making of the Loan. Neither
Lender nor Borrower shall issue or shall permit any of its Affiliates to issue
any other press release or other official public statement with respect to the
making of the Loan except with the consent of the other, provided that nothing
contained herein shall restrict either Lender or Borrower or any Affiliate
thereof from making any public disclosure it reasonably believes is required by
Law or any oral response to any press inquiry.
Section 11.18 SURVIVAL. Except as otherwise expressly provided for in
the Loan Documents, no termination or cancellation (regardless of cause or
procedure) of any financing arrangement under this Agreement shall in any way
affect or impair the powers, obligations, duties, rights and liabilities of
Borrower or the rights of Lender relating to any transaction or event occurring
prior to such termination. Except as otherwise expressly provided herein or in
any other Loan Document, all undertakings, agreements, covenants, warranties and
representations contained in the Loan Documents shall survive such termination
or cancellation and shall continue in full force and effect until such time as
all of the Obligations have been paid in full in accordance with the terms of
the agreements creating such Obligations, at which time the same shall
terminate. Notwithstanding anything to the contrary set forth herein or in the
Hazardous Substances Indemnity Agreement, Lender, Borrower and Whitehall (by
separately executing this Agreement) specifically agree that the indemnities set
forth in Article 4 hereof and in the Hazardous Substances Indemnity Agreement
shall survive the full repayment of the Obligations only with respect to any
claim or demand pending or threatened for Environmental Liabilities and Costs
that is actually known to Borrower as of the date all Obligations are satisfied.
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Section 11.19 GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
ANY OF THE LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING
CONFLICT OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
LENDER AND BORROWER AGREE TO SUBMIT TO PERSONAL JURISDICTION AND TO WAIVE ANY
OBJECTION AS TO VENUE IN THE COUNTY OF NEW YORK, STATE OF NEW YORK. NOTHING
HEREIN SHALL PRECLUDE LENDER OR BORROWER FROM BRINGING SUIT OR TAKING OTHER
LEGAL ACTION IN ANY OTHER JURISDICTION.
Section 11.20 ENTIRE AGREEMENT. This Agreement and the other Loan
Documents embody the entire agreement and understanding between Lender and
Borrower and supersede all prior agreements and understandings between such
parties relating to the subject matter hereof and thereof. Accordingly, the Loan
Documents may not be contradicted by evidence of prior, contemporaneous, or
subsequent oral agreements of the parties. There are no unwritten oral
agreements between the parties with respect to the Loan Documents or the
transactions contemplated thereby. Except as otherwise provided in this
Agreement or any of the other Loan Documents by specific reference to the
applicable provisions of this Agreement, if any provision contained in this
Agreement is in conflict with, or inconsistent with, any provision in any of the
other Loan Documents, the provision contained in this Agreement shall govern and
control.
Section 11.21 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, but all of which shall
constitute one document.
Section 11.22 WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY
LAW, BORROWER, LENDER AND WHITEHALL HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT
(WHETHER VERBAL OR WRITTEN) OR ACTION OF ANY PARTY OR ANY EXERCISE BY ANY PARTY
OF THEIR RESPECTIVE RIGHTS UNDER THE LOAN DOCUMENTS OR IN ANY WAY RELATING TO
THE LOAN OR ANY PROPERTY (INCLUDING ANY ACTION TO RESCIND OR CANCEL THIS
AGREEMENT, AND ANY CLAIM OR DEFENSE ASSERTING THAT THIS AGREEMENT WAS
FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS WAIVER IS A
MATERIAL INDUCEMENT FOR LENDER TO ENTER THIS AGREEMENT.
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Section 11.23 AUTHORIZED SIGNATURE. Until Lender shall be notified by
Borrower to the contrary, the signature upon any document or instrument
delivered pursuant hereto of any one (1) of the officers of the general partner
of Borrower listed in Schedule 11.23 hereto (as the same may be amended by
notice given hereunder) shall bind Borrower and be deemed to be the act of
Borrower, affixed pursuant to and in accordance with the Partnership Agreement
of Borrower and the approval of the partners of Borrower.
Section 11.24 POWER OF ATTORNEY. Notwithstanding anything contained
herein or in any other Loan Document to the contrary, in the exercise of any
remedy pursuant to any of the Loan Documents, Lender shall act as a prudent
lender would act in similar circumstances in creating liabilities for, or
settling liabilities against Borrower pursuant to any power of attorney granted
under any of the Loan Documents.
Section 11.25 ACKNOWLEDGMENT BY WHITEHALL. BY SEPARATELY EXECUTING THIS
AGREEMENT IN THE SPACE PROVIDED BELOW, WHITEHALL HEREBY ACKNOWLEDGES THAT IT
SHALL BE PERSONALLY LIABLE, JOINTLY AND SEVERALLY, FOR THE MATTERS SPECIFIED IN
CLAUSES (1), (2), (3), (4) AND (5) OF SECTION 12.1 HEREOF (SUBJECT TO THE
LIMITATIONS SET FORTH IN SECTION 12.1). IN CONNECTION WITH THE ASSUMPTION OF
SUCH LIABILITY, WHITEHALL HEREBY MAKES, IN FAVOR OF LENDER, THE WAIVERS,
AGREEMENTS AND UNDERSTANDINGS AS ARE SET FORTH IN SCHEDULE 11.25, WHICH
WAIVERS, AGREEMENTS AND UNDERSTANDINGS ARE INCORPORATED IN THIS SECTION BY THIS
REFERENCE AS THOUGH SET FORTH IN FULL HEREIN.
ARTICLE 12
LIMITATIONS ON LIABILITY
Section 12.1 LIMITATION ON LIABILITY. Except as otherwise provided
below, Lender's recourse shall be limited to the Collateral and no partners of
Borrower or any of their Affiliates or their affiliated companies, officers,
directors, shareholders, members or any other Person, disclosed or undisclosed,
shall be personally liable for the repayment of any of the Obligations, except
that the Borrower, Whitehall and the general and limited partners (subject to
the last sentence of this Section) in the Borrower (but not The Goldman Sachs
Group, Inc. and not any direct or indirect general or limited partners or
shareholders, members, officers, directors or employees of the general or
limited partners in Whitehall) shall be personally liable (1) for the Borrower's
fraud (but only to the extent of actual damages suffered by Lender caused by
such fraud), (2) whether prior to or after an Event of Default for the
Borrower's misappropriation (i.e., application in violation of the terms of this
Agreement) of insurance proceeds, condemnation awards, Operating Cash Flow, Net
Capital Proceeds, Lease Buy Out Consideration, Security Deposits and any other
amounts required to be held by Borrower in escrow or segregated accounts
pursuant to the terms hereof and any other escrow deposits, but only to the
extent of the amounts so misapplied and received by such partner, (3) for all
Environmental Liabilities and Costs to the extent indemnifiable under Article 4
hereof or under the Hazardous Substances Indemnity Agreements, (4) for failure
to
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maintain any insurance coverage required under this Agreement or any other Loan
Document, (5) a breach of the representations and warranties set forth in
Section 6.18, and (6) for all matters for which Whitehall is indemnifying Lender
pursuant to the Whitehall Indemnity. By separately executing this Agreement and
as further consideration for the making of the Loan by Lender, Whitehall agrees
that it shall be jointly and severally (except as otherwise expressly stated in
this Section) liable and responsible for the liabilities referenced in (1)
through (5) above, but Whitehall shall be liable only to the extent of: (a)
until such time as all of the Obligations have been paid in full, an amount
equal to the greater of (the "MAXIMUM LIABILITY"): (i) Twelve Million Dollars
($12,000,000); and (ii) fifty percent (50%) of the outstanding principal balance
of the Loan, calculated as of the date Lender delivers written notice to
Borrower and/or Whitehall of the existence of a claim, and (b) from and after
such time as all of the Obligations have been paid in full, Ten Million Dollars
($10,000,000), and in all cases the Maximum Liability shall be reduced by any
amounts theretofore paid by Whitehall pursuant to this Section. Lender agrees to
look first to the assets of Borrower in connection with the satisfaction of any
claim or liability arising from Section 8.17 or this Section but Lender shall
have the right to proceed against Whitehall and any of Borrower's partners as
stated above (subject to the last sentence of this Section) with respect to the
liabilities referenced in (1) through (5) above in the event Borrower disputes
or denies such liability or otherwise fails to hold Lender harmless in
accordance with the terms of Section 8.17. Nothing contained in this Section
12.1 (or in any other provision of this Agreement) shall in any way limit
Whitehall's liability under the Whitehall Indemnity. Notwithstanding anything
set forth herein to the contrary, it is specifically agreed and understood that
the liability of the limited partners (other than Whitehall) of the Borrower
under this Section shall be limited to fraud committed by a limited partner (but
only to the extent committed by such limited partner) and the matters set forth
in clause (2) above of this Section with respect to each such limited partner.
Section 12.2 LIMITATION ON LIABILITY OF LENDER'S OFFICERS, EMPLOYEES,
ETC. Any obligation or liability whatsoever of Lender which may arise at any
time under this Agreement or any other Loan Document shall be satisfied, if at
all, out of the Lender's assets only. No such obligation or liability shall be
personally binding upon, nor shall resort for the enforcement thereof be had to,
the property of any of Lender's shareholders, directors, officers, employees or
agents, regardless of whether such obligation or liability is in the nature of
contract, tort or otherwise.
EXECUTED as of the date first written above.
"LENDER":
GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation
By:
--------------------------------------
Paul St. Arnauld, Authorized Signatory
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"BORROWER":
WXI/MCN COMMERCIAL REAL
ESTATE LIMITED PARTNERSHIP, a Delaware
limited partnership
By: WXI/MCN Commercial Gen-Par, L.L.C.,
a Delaware limited liability
company, its General Partner
By: WXI/McN Realty L.L.C., a
Delaware limited liability
company, its Managing Member
By:
---------------------------
---------------------------
[Printed Name and Title]
"WHITEHALL":
WHITEHALL STREET REAL ESTATE LIMITED
PARTNERSHIP XI, a Delaware limited
partnership
By: WH Advisors, L.L.C. XI, a Delaware
limited liability company, its
General Partner
By:
---------------------------------
---------------------------------
[Printed Name and Title]
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SCHEDULE 1.1(A)
PROPERTY INFORMATION
UNITS/NRSF/
NAME ADDRESS CITY STATE ASSETS PROPERTY TYPE
- ---- ------- ---- ----- ------ -------------
Century Park 1771 E. Flamingo Road Las Vegas NV 113,837 Office
Kellogg Office 26 W. Dry Creek Circle Littleton CO 112,736 Office
One Corp. Ctr. I 7401 Metro Blvd. Edina MN 110,837 Office
Westwood Office Tampa FL 121,714 Office
One Corp. Ctr. III 7300 Metro Blvd. Edina MN 110,788 Office
La Plaza Center 4220 S. Maryland Pkwy Las Vegas NV 108,375 Office
Continental Plaza Scottsdale AZ 54,537 Office
Fidelity Federal 555 E. Ocean Blvd. Long Beach CA 124,485 Office
Northwest Plaza 3181 W. Siebenthaler Avenue Dayton OH 443,114 Retail
River Bay Plaza Hwy 301 S. & Gibsonton Road Riverview FL 79,298 Retail
Redwood Plaza 700 N. Redwood Road Salt Lake City UT 104,211 Retail
Towne Center Greenway & K-15 Highway Derby KS 93,522 Retail
Springwood Plaza 10160B W. Florissant Dellwood MO 88,189 Retail
Kendall Sunset 8890 SW 72nd Street Miami FL 85,437 Self Storage
Burbank Self Storage 175 W. Verdugo Avenue Burbank CA 79,636 Self Storage
Fountainbleau 8900 NW 12th Street Miami FL 74,629 Self Storage
AAA Century 3846 W. Century Blvd. Inglewood CA 54,325 Self Storage
Airport
AAA Sentry 2048 S. State Road 7 N. Lauderdale FL 79,386 Self Storage
Forest Hill 3455 Forest Hills Blvd. West Palm Beach FL 52,822 Self Storage
Margate Self Storage 1880 N. State Road 7 Margate FL 50,984 Self Storage
Military Trail 2300 N. Military Trail West Palm Beach FL 54,267 Self Storage
SCHEDULE 1.1(A)
SCHEDULE 1.1(B)
BASIS ALLOCATIONS
PROPERTY PROPERTY BASIS LOAN BASIS
-------- -------------- ----------
Century Park $ 9,291,480 $ 7,899,688
Kellogg Office $ 10,541,179 $ 8,962,192
One Corp. Ctr. I $ 9,556,065 $ 8,124,640
One Corp. Ctr. III $ 9,419,698 $ 8,008,700
Westwood Office * $ 9,939,577 $ 8,450,705
La Plaza Center $ 7,297,688 $ 6,204,551
Continental Plaza * $ 4,524,470 $ 3,846,739
Fidelity Federal $ 3,727,582 $ 3,169,219
Northwest Plaza $ 5,738,280 $ 4,878,730
River Bay Plaza $ 4,856,996 $ 4,129,456
Redwood Plaza $ 3,460,088 $ 2,941,794
Towne Center $ 2,568,542 $ 2,183,794
Springwood Plaza $ 2,185,075 $ 1,857,768
Kendall Sunset $ 6,876,958 $ 5,846,843
Burbank Self Storage $ 6,341,459 $ 5,391,558
Fountainbleau $ 4,253,302 $ 3,616,190
AAA Sentry $ 3,446,282 $ 2,930,056
AAA Century Airport $ 3,191,947 $ 2,713,818
Forest Hill $ 3,474,702 $ 2,954,219
Military Trail $ 3,012,739 $ 2,561,454
Margate Self Storage $ 2,956,470 $ 2,513,614
TOTAL $116,660,579 $ 99,185,728
============ ============
* Additional Properties
SCHEDULE 1.1(B)
SCHEDULE 2.1
ADVANCE CONDITIONS
Part A - Initial Advance
Part B - General Conditions to Subsequent Advances
Part C - Working Capital Advances
PART A - INITIAL ADVANCE
Lender shall not be obligated to make any portion of the Initial
Advance available to Borrower unless and until Borrower shall have delivered to
Lender, in form and substance satisfactory to Lender and, as to any documents
(unless otherwise indicated), dated the Closing Date:
1. This Agreement, the Note and the Collateral Documents, the Hazardous
Substances Indemnity Agreement(s), the Whitehall Indemnity, and all other
Ancillary Agreements reasonably requested by Lender, in each case executed by
Borrower and, as applicable, each Borrower Party (and any other party thereto
other than Lender).
2. The payment to Lender of a commitment fee of $1,030,255 (less any
portion of Borrower's $300,000 good faith deposit applied thereto).
3. A Borrowing Date Certificate, duly executed and delivered by
Borrower.
4. Opinions of Sullivan & Cromwell, counsel to Borrower in respect of
the Loan Documents governed by New York law and formation and authority matters
regarding Borrower and the Borrower Parties; opinions of O'Melveny & Myers LLP,
counsel to Borrower in respect of the Collateral Documents governed by
California law; opinions of Greenberg Traurig, counsel to Borrower in respect of
the Collateral Documents governed by Florida law; and opinions of local counsel
of Lender in each jurisdiction in which one or more Properties are located; in
each case addressing such matters regarding the Borrower, each Borrower Party,
the Loan, the Loan Documents and/or the Properties as Lender may reasonably
specify.
5. A copy of the Partnership Agreement, and all amendments thereto,
certified as true and correct as of the Closing Date by the general partner of
Borrower.
6. A copy of Borrower's certificate of limited partnership from
Delaware certified as of a recent date by the appropriate Governmental
Authority.
7. Resolutions of the board of directors or board of managers (as
applicable) of the sole member of the general partner of Borrower, certified by
an authorized officer or manager of such member within a recent date prior to
the Closing Date, to be duly adopted and in full force and effect on such date,
authorizing (a) the consummation of each of the transactions contemplated
SCHEDULE 2.1 -- Page 1
by this Agreement and the Loan Documents and Ancillary Agreements to which
Borrower is a party and (b) specific managers or officers to execute and deliver
this Agreement, the other Loan Documents and the Ancillary Agreements to which
Borrower is a party.
8. Certificates of an authorized officer or manager of the sole member
of general partner of Borrower, dated within a recent date prior to the Closing
Date, as to the incumbency of the officers or representatives of such member
authorized by the company resolutions delivered to Lender (pursuant to paragraph
(7) above) to execute and deliver this Agreement, the other Loan Documents and
other Ancillary Agreements, and any other certificate or other document to be
delivered pursuant hereto or thereto, together with a certification of the
incumbency of such authorized officer or manager, as the case may be.
9. Governmental certificates, dated the most recent practicable date
prior to the Closing Date, with telecopy updates where available, showing that
Borrower and the general partner of Borrower are each organized and in good
standing in the jurisdiction of their organization and showing that Borrower is
qualified as a foreign limited partnership in good standing in all states in
which any of the Properties are located (except to the extent that the local
counsel opinions delivered pursuant to paragraph (4) above provide that
qualification in a particular state is not required in order to own, operate,
lease, finance or otherwise deal with the Properties located in such state).
10. A copy of the organizational charter and all amendments thereto of
the general partner of Borrower and of the Holding Company, in each case
certified as of a recent date by the Secretary of State of the jurisdiction of
its organization, and a copy of the operating agreement of such general partner
and the Holding Company, certified by an authorized officer or manager of the
Holding Company as true and correct as of a recent date.
11. A partnership certificate of Whitehall and a consent of manager of
Whitehall's general partner certified by the Secretary or an Assistant Secretary
of such general partner, in each case within a recent date prior to the Closing
Date, to be duly adopted and in force and effect on such date, authorizing (a)
the consummation of the transactions contemplated by this Agreement and the Loan
Documents and Ancillary Agreements to which Whitehall is a party, and (b)
specific officers to execute and deliver this Agreement and the other Loan
Documents and Ancillary Agreements to which Whitehall is a party.
12. Certificates of the Secretary, an Assistant Secretary or a Vice
President of the general partner of Whitehall, dated within a recent date prior
to the Closing Date, as to the incumbency of the officers or representatives of
such general partner authorized by the company consent delivered to Lender (as
required herein) to execute and deliver this Agreement and the other Loan
Documents and Ancillary Agreements to which Whitehall is a party, and any other
certificate or other document to be delivered by Whitehall pursuant hereto or
thereto, together with a certification of the incumbency of such Secretary or
Assistant Secretary, as the case may be.
13. Financing Statements (Form UCC-1) in form sufficient to be duly
filed under the Uniform Commercial Code of each jurisdiction as may be necessary
or, in the reasonable opinion of Lender, desirable to perfect the security
interests created by the Deeds of Trust and the other
SCHEDULE 2.1 -- Page 2
Collateral Documents pertaining to the Properties in the personal property and
fixtures described therein.
14. Certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports in respect of Borrower in the jurisdictions for
which UCC-1 Financing Statements are required, together with copies of financing
statements referenced therein (none of which shall cover property to be covered
by the Deeds of Trust or other Collateral Documents pertaining to the
Properties).
15. Evidence that all other actions necessary or, in the opinion of
Lender, desirable to perfect and protect the security interests created by the
Deeds of Trust and the other Collateral Documents pertaining to the Properties,
have been or will be taken.
16. An ALTA 1970 mortgagee policy of title insurance issued by the
Title Company for each of the Deeds of Trust, naming Lender as the insured, with
reinsurance and endorsements as Lender may require (including variable rate,
survey, creditors' rights (if applicable), comprehensive coverage, first loss,
tie-in, last dollar, future advances, access, zoning (with parking),
subdivision, doing business, usury, separate tax lot and contiguity
endorsements), containing no exceptions or exclusions other than Permitted
Encumbrances or as may be approved by Lender in writing, insuring that the
insured Deed of Trust is a valid, first-priority Lien on the Property encumbered
thereby and related collateral, and in an insured amount as required by Lender.
17. A certified and complete copy of the Purchase Agreement together
with such consents to sale, waivers of rights and remedies, and releases of
interest as Lender or its counsel may determine to be necessary or prudent to be
obtained from any Person who may be entitled to claim an interest in any of the
Properties or a right arising from the sale, conveyance or transfer of any of
the Properties to Borrower.
18. Current title, municipal violation, tax and bankruptcy searches
(and any other searches which Lender may require) for Borrower, any Borrower
Party and such other parties as Lender shall require in its sole discretion.
19. Evidence of insurance as required by this Agreement.
20. A current "as-built" survey of each of the Properties, dated or
updated to a date not earlier than thirty (30) days prior to the Closing Date,
certified to Lender and the Title Company, prepared by a licensed surveyor
reasonably acceptable to Lender and the Title Company, and conforming to
Lender's current standard survey requirements.
21. A current engineering report with respect to each Property,
covering, among other matters, inspection of heating and cooling systems, roof
and structural details and showing no failure of compliance with building plans
and specifications, applicable legal requirements (including requirements of the
Americans with Disabilities Act) and fire, safety and health standards. As
requested by Lender, such report shall also include an assessment of such
Property's tolerance for earthquake and seismic activity. Borrower shall also
provide Lender with copies of utility letters
SCHEDULE 2.1 -- Page 3
from applicable service providers evidencing that each Property has adequate and
sufficient utility service for the use and purposes intended by Borrower.
22. A current Environment Site Assessment for each of the Properties.
23. If required by Lender, a current MAI appraisal for each Property.
24. A current rent roll for each Property, certified by Borrower
(provided that any rent roll delivered for a Property owned directly or
indirectly by Whitehall or an Affiliate of Whitehall for less than two (2)
months prior to the Closing Date shall be certified by Borrower to its
knowledge), together with all Non-Storage Leases not previously delivered to
Lender. Such rent roll shall include the following information: (a) tenant
names; (b) unit/suite numbers; (c) area of each demised premises and total area
of the related Property (stated in net rentable square feet); (d) rental rate
(including escalations), stated in gross amount and in amount per net rentable
square foot per year; (e) lease term (commencement, expiration and renewal
options); (f) expense passthroughs; (g) cancellation/termination provisions; (h)
security deposit; and (i) material operating covenants and co-tenancy clauses.
25. Copies of the Asset Management Agreement and the property
management agreements for the Properties, certified by Borrower as being true,
correct and complete.
26. Copies of all Material Agreements, which Material Agreements must
be approved in advance by Lender and, if required by Lender, must be
subordinated, in all respects, to the Loan Documents.
27. Borrower shall establish all accounts and escrows as required by
the terms of this Agreement and deliver to Lender satisfactory evidence thereof.
28. Evidence that the Properties and the operation thereof comply with
all legal requirements, including that all requisite certificates of occupancy,
building permits, and other licenses, certificates, approvals or consents
required of any Governmental Authority have been issued without variance or
condition and that there is no litigation, action, citation, injunctive
proceedings, or like matter pending or threatened with respect to the validity
of such matters. Borrower shall provide Lender with copies of all certificates
of occupancy and, if required by Lender, shall deliver letters from applicable
zoning, building and municipal agencies evidencing the foregoing.
29. No change shall have occurred in the financial condition of
Borrower or any Borrower Party or in the Operating Cash Flow of any of the
Properties, or in the financial condition of any major or anchor tenant, which
would have, in Lender's reasonable judgment, a Material Adverse Effect.
30. No condemnation or adverse zoning or usage change proceeding shall
have occurred or shall have been threatened against any of the Properties; none
of the Properties shall have suffered any significant damage by fire or other
casualty which has not been repaired; no Law,
SCHEDULE 2.1 -- Page 4
moratorium, injunctive proceeding, restriction, litigation, action, citation or
similar proceeding or matter shall have been enacted, adopted, or threatened by
any Governmental Authority, which would have, in Lender's judgment, a Material
Adverse Effect.
31. All fees and commissions payable to real estate brokers, mortgage
brokers, or any other brokers or agents in connection with the Loan or the
acquisition of the Properties have been paid.
32. The representations and warranties contained in this Loan Agreement
and in all other Loan Documents are true and correct as of the date of the
disbursement of the Initial Advance.
33. No Potential Default or Event of Default has occurred and is
continuing.
34. A letter, executed by Borrower, addressed to its independent
certified public accountants instructing them to comply with the provisions of
Section 7.4 hereof.
35. To the extent invoices have been submitted to Borrower and
evidenced to Lender, payment of all reasonable fees and expenses of (a) Lender's
outside counsel, Sheppard, Mullin, Richter & Hampton LLP, (b) all special local
counsel retained by Lender in connection with any of the Loan Documents and the
transactions contemplated hereby and (c) all third party costs and expenses
incurred by Lender in connection with the transaction contemplated by this
Agreement, including costs of environmental appraisals, structural reports and
travel expenses.
36. Estoppel certificates and, where required by Lender, subordination,
nondisturbance and attornment agreements from Tenants under Leases as shall be
satisfactory to Lender.
37. Lender shall have verified, based upon Lender's audit, a Cash On
Cash Return of at least 10.75% and a Debt Service Coverage Ratio of at least
1.15 to 1.00.
38. Lender shall have verified that the amount of the Initial Advance
does not exceed eighty percent (80%) of the aggregate acquisition costs for all
Properties.
39. Lender shall have verified that the amount of the Initial Advance
does not exceed 85.021% of Lender's determination of the aggregate value of the
Properties, as set forth in the "Property Basis" column of Schedule 1.1(B).
40. Lender shall have determined that no developments have occurred
with respect to any pending Shareholder Litigation since the date Lender
obtained credit approval for the Loan (October 21, 1999) (the "CREDIT APPROVAL
DATE") which have a reasonable possibility of resulting in a Material Adverse
Effect, and no new or additional information regarding any pending Shareholder
Litigation shall have become known to Lender since the Credit Approval Date of
such on account of which Lender determines that such pending Shareholder
Litigation has a reasonable possibility of resulting in a Material Adverse
Effect or a material adverse effect on the Holding
SCHEDULE 2.1 -- Page 5
Company. Without limiting the foregoing, none of the Properties shall be subject
to any lis pendens or other notice of pending action with respect to any
Shareholder Litigation. In addition, Lender shall have determined that there is
no other pending or threatened Shareholder Litigation (not disclosed in writing
by Borrower to Lender prior to the Credit Approval Date) which has a reasonable
possibility of resulting in a Material Adverse Effect or a material adverse
effect on the Holding Company.
41. The transactions contemplated by the Purchase Agreement, as they
relate to the Properties, shall have been consummated in all material respects
(including consideration paid and conditions precedent) in accordance with the
terms and conditions set forth in the final "Proxy Statements" (as defined in
the Purchase Agreement) dated December 14, 1999, and none of the material terms
of the proposed transactions described in such Proxy Statements shall have been
waived, modified, amended or supplemented in any material respect.
42. Such other documents or items as Lender reasonably may require. All
material documents related to the Properties and other Property Documents, if
any, in Borrower's possession (other than internal Borrower memoranda and
communications between Borrower and its counsel) prior to Closing Date shall
have been delivered to Lender.
Lender agrees that upon funding the Initial Advance, the conditions set
forth in this Part A shall be deemed satisfied (other than those conditions
waived as a requirement of the initial funding but reserved in writing by Lender
as a condition to subsequent Advances).
PART B - GENERAL CONDITIONS TO SUBSEQUENT ADVANCES
In addition to the specific conditions set forth elsewhere in this
Agreement for the particular type of Advance requested, each Advance following
the Initial Advance shall be subject to Lender's receipt, review, approval
and/or confirmation of the following, each in form and content satisfactory to
Lender in its reasonable discretion:
1. Borrower shall have delivered to Lender a Notice of Additional
Advance for the requested Advance.
2. Borrower shall have satisfied any conditions waived by Lender as a
requirement to funding the Initial Advance but reserved in writing by Lender as
a condition for subsequent Advances.
3. There shall exist no Potential Default and no Event of Default
(currently and after giving effect to the requested Advance); provided that (a)
if the Advance is a Working Capital Advance, then the foregoing requirement
regarding Potential Defaults shall apply only to monetary Potential Defaults,
and (b) if the Advance is an Acquisition Advance, then the foregoing requirement
regarding potential defaults shall apply only to monetary Potential Defaults and
those nonmonetary
SCHEDULE 2.1 -- Page 6
Potential Defaults for which Lender has delivered notice to Borrower under
Section 10.1(2) and which Lender reasonably determined would have a Material
Adverse Effect.
4. The representations and warranties contained in this Loan Agreement
and in all other Loan Documents are true and correct (other than with respect to
the representations that are given to the knowledge of Borrower, as to which no
further representation shall be deemed given) on and as of the Closing Date and
as of the date of the requested Advance (i.e., the representations shall be
updated as of such dates rather than restated at such time as of the Closing
Date, except that no such update shall be required if the matter to be disclosed
would not have a Material Adverse Effect), other than breaches of
representations or warranties for which Lender has remedies under Section 8.18
so long as Borrower is performing its obligations thereunder.
5. The requested Advance shall be secured by the Loan Documents,
subject only to Permitted Encumbrances and to those exceptions to title approved
by Lender at the time of Loan closing, provided that if the Title Policies and
the endorsements originally issued thereto do not insure the priority of the
requested Advance as required herein, such priority shall be evidenced by such
additional endorsements to each Title Policy as are satisfactory to Lender.
6. Borrower shall have paid Lender's reasonable out-of-pocket costs and
expenses in connection with such advance (including title and recording charges,
taxes and filing fees and costs and expenses of Lender's inspecting engineer and
attorneys).
7. A certification from a duly authorized officer of the general
partner of Borrower, certifying that there have been no changes, alterations or
improvements to any Property which would cause the survey, or any notes or
certifications thereon with respect to such Property, to be inaccurate or in
need of modification.
8. If the Adjusted Loan Basis for any Property is being adjusted to
reflect the Advance, Borrower shall have amended any applicable Collateral
Document that contains a maximum indebtedness provision that is based upon such
Adjusted Loan Basis to increase such maximum indebtedness, if it is not already
equal, to 120% of the Adjusted Loan Basis calculated after such Advance, and
Borrower shall have paid all additional mortgage recording taxes which may be
due on account of such reallocation and all recording charges and filing fees
incurred in connection with recording any amended Collateral Documents.
The acceptance by Borrower of the proceeds of any Advance shall be
deemed to constitute, as of the date of such acceptance, a confirmation by
Borrower of the granting and continuance of Lender's Liens pursuant to the
Collateral Documents.
PART C - WORKING CAPITAL ADVANCES
In addition to the applicable terms and conditions set forth in Section
2.1 hereof, and the general conditions set forth in Part B above, each Working
Capital Advance shall also be subject
SCHEDULE 2.1 -- Page 7
to Lender's receipt, review, approval and/or confirmation of the following, at
Borrower's cost and expense, each in form and substance reasonably satisfactory
to Lender:
1. Lender shall have approved the Working Capital Budget for the
Property for which the Working Capital Advance is requested.
2. Copies of any invoices to be paid with such Working Capital Advance
and, to the extent not previously delivered to Lender, evidence of the payment
of any invoice submitted with the immediately preceding request for a Working
Capital Advance.
3. Borrower shall have executed and delivered to Lender copies of all
documents, agreements, certificates, affidavits, searches or other instruments
which Lender and its counsel determine are necessary to comply with state Laws
applicable to building and construction loans.
4. Borrower shall not use any portion of any Working Capital Advance
for payment of any costs or expenses other than those for which such Advance was
requested and approved.
5. A certificate of the Architect stating that, in the professional
opinion of the Architect (or such other professional as may be reasonably
satisfactory to Lender), if an architect customarily would be retained for such
Capital Expenditures and Tenant Improvements, or a certificate of an officer of
the general partner of Borrower stating that:
(a) all of such Capital Expenditures and Tenant Improvements completed
have been done in a good and workmanlike manner and in material compliance
with the approved plans and specifications, if any, and in accordance with
all applicable provisions of Law;
(b) the sum requested is justly required to reimburse Borrower for
payments by Borrower to, or is justly due to, the contractor,
subcontractors, materialmen, laborers, engineers, architects or other
persons rendering services or supplying materials in connection with such
Capital Expenditures and Tenant Improvements (giving a brief description of
such services and materials), and that when added to all sums previously
paid out by Lender, if any, the resulting sum does not exceed the value of
the such Capital Expenditures and Tenant Improvements done to the date of
such certificate; and
(c) with respect to the certificate of the general partner of Borrower
only, the amount of the requested Working Capital Advance (as allocated to
such Property) will be sufficient (together with other funds otherwise
available to Borrower) on completion of such Capital Expenditures and
Tenant Improvements to pay for the same in full (giving in such reasonable
detail as Lender may require an estimate of the cost of such completion and
if such other funds are required as to the sources of such funds).
SCHEDULE 2.1 -- Page 8
6. With respect to Capital Expenditures or Tenant Improvements the cost
of which (in the aggregate with respect to the completion of the entire project)
is or is estimated to equal or exceed $150,000:
(a) waivers or releases of liens, reasonably satisfactory to Lender,
covering that part of such Capital Expenditures and Tenant Improvements
previously paid for, if any;
(b) the request for any payment after such Capital Expenditures and
Tenant Improvements have been completed shall be accompanied by a copy of
any certificate or certificates required by Law to render occupancy and
operation of the Property legal;
(c) a construction consultant retained by Lender shall have inspected
and approved such Capital Expenditures or Tenant Improvements (as
applicable), at Borrower's cost and expense;
(d) evidence satisfactory to Lender (including compliance letters from
applicable Governmental Authorities) that the Property in connection with
which the Working Capital Advance is being made is not in violation of any
zoning, building, health, fire, traffic, environmental, wetlands, coastal
or other rules, regulations, ordinances, statutes and requirements
applicable thereto;
(e) Lender shall retain an amount equal to 10% of the cost to perform
such Capital Expenditures, until delivery of acceptable final lien waivers
or releases from all contractors performing such Capital Expenditures; and
(f) Lender shall retain an amount equal to 10% of the cost to perform
such Tenant Improvements until Lender receives delivery of acceptable final
lien waivers or releases from all contractors performing such Tenant
Improvements.
7. As to Tenant Improvements in which the cost in the aggregate for the
completion of the entire project equals or exceeds $50,000, an estoppel
certificate, from the Tenant for which such Tenant Improvements are being
performed, in form and content reasonably acceptable to Lender.
8. Proof reasonably satisfactory to Lender that the respective expenses
for which any prior Working Capital Advance was funded have been paid in full.
9. With respect to any Tenant Improvement or Leasing Cost to be paid
with such Working Capital Advance, copies of the applicable Leases in the form
required in this Agreement and, with respect to Leasing Costs, a copy of the
commission agreement (or other evidence reasonably satisfactory to Lender)
indicating that no more than one-half of the commission is payable on the date
the applicable Lease is executed and the balance is payable on the date the
Tenant occupies the premises which are being leased to the Tenant. In no event
shall any Working
SCHEDULE 2.1 -- Page 9
Capital Advance with respect to a Leasing Cost exceed the portion of the Leasing
Cost then due and payable as provided in the immediately preceding sentence.
10. With respect to any Tenant Allowance, such supporting documentation
and information as may reasonably be required by Lender.
11. With respect to any funding to be advanced for Tenant Improvements
and Leasing Costs: (a) the aggregate amount of all Working Capital Advances for
any Lease shall not exceed $20.00 per square foot for Tenant Improvements; (b)
the aggregate amount of Working Capital Advances for any Leasing Costs shall not
exceed 7.5% of the total rent payable under the respective Lease during the
initial term of the Lease, or as to any renewal, 4.5% of the total rent payable
under the respective Lease during the renewal term; (c) in the event the amount
of Working Capital Advances for Tenant Improvements and Leasing Commissions for
any single Lease exceeds $400,000.00, Lender shall have the right to approve
such Lease prior to making any such advance; (d) any remaining balance of the
Lease Buy Out Consideration with respect to the space for which the Tenant
Improvement will be constructed, shall be used by Borrower for such Tenant
Improvement prior to using or requesting any Working Capital Advance therefor.
Notwithstanding the foregoing, the limitations for Tenant Improvements and
Leasing Costs set forth in the immediately preceding clauses (a) and (b)
respectively may be reasonably increased to such amount as may be requested by
Borrower, provided that Borrower is able to demonstrate to Lender's reasonable
satisfaction that the increased amount requested by Borrower is consistent with
the market in the relevant geographic market.
12. The Lease, with respect to which a Working Capital Advance is being
made for Tenant Improvements, Leasing Costs or Capital Expenditures, shall (a)
have been entered into on or after the Closing Date (or the renewal thereof
shall have been entered into on or after the Closing Date); (b) be in a lease
form reasonably acceptable to Lender; (c) contain standard subordination and
attornment provisions and shall otherwise contain terms and provisions which are
consistent with market terms for similar properties in the area, including the
terms regarding rents, concessions, tenant improvements, term (which shall not
in any event be less than three (3) years in order for such Lease to qualify for
a Working Capital Advance), renewals and leasing costs; (d) provide for a rental
rate in any one year of not less than eighty percent of the annual average
rental for the entire term thereof; (e) provide with respect to Leases which are
not triple net, for base year operating expense stops for purposes of
calculating each Tenant's operating expense escalation for each Property which
are, in the aggregate, equal to then current operating expenses for such
Property plus or minus ten percent (10%); and (f) provide that if the Tenant has
the right or option to terminate the Lease prior to its stated expiration date,
such Tenant shall reimburse Borrower for the unamortized cost of Tenant
Improvements and Leasing Costs paid for by Borrower.
13. With respect to any funding to be advanced for Capital
Expenditures, in no event shall the Working Capital Advances with respect to any
single Property exceed (in the aggregate for all Capital Expenditures made in
respect of such Property) the total amount of Loan funds allocated to Capital
Expenditures in the approved Working Capital Budget for such Property. In no
event shall a Working Capital Advance for Capital Expenditures, Tenant
Improvements or
SCHEDULE 2.1 -- Page 10
Leasing Costs be available for Work or Major Work required in connection with
any casualty or condemnation.
14. With respect to Capital Expenditures and Tenant Improvements,
Borrower shall have delivered to Lender, to the extent not previously delivered
to Lender:
(a) if the cost thereof is equal to or greater than $100,000, complete
plans and specifications for such Capital Expenditures and Tenant
Improvements (approved by all Governmental Authorities whose approval is
required at such time), for Lender's approval, which approval shall not be
unreasonably withheld or delayed, which plans and specifications shall bear
the signed approval thereof by an Architect and shall be accompanied by the
Architect's signed estimate, bearing the Architect's seal, of the entire
cost of completing such Capital Expenditures and Tenant Improvements;
(b) certified or photostatic copies of all permits and approvals
required by Law in connection with the commencement and conduct such
Capital Expenditures and Tenant Improvements; and
(c) if the cost thereof is equal to or greater than $250,000, and if
required by Lender, a payment and performance bond for and/or guaranty of
the payment for and completion of such Capital Expenditures and Tenant
Improvements, which bond or guaranty shall be in form reasonably
satisfactory to Lender, and shall be signed by a surety or sureties, or
guarantor or guarantors, as the case may be, who are reasonably acceptable
to Lender, and shall be in an amount of not less than one hundred ten
percent (110%) of the Architect's estimate of the entire cost of completing
such Capital Expenditures and Tenant Improvements; provided, however, that
no such performance bond or guaranty shall be required if Borrower has
completed and paid for such Capital Expenditures or Tenant Improvements and
is seeking a Loan disbursement to reimburse Borrower for such costs.
SCHEDULE 2.1 -- Page 11
SCHEDULE 2.1(5)
WORKING CAPITAL BUDGETS FOR PROPERTIES
TENANT LEASING CAPITAL
PROPERTY IMPROVEMENTS COSTS EXPENDITURES TOTAL
-------- ------------ ----- ------------ -----
Century Park $ 625,000 $ 302,000 $ 372,000 $ 1,299,000
Kellogg Office $ 463,000 $ 174,000 $ 200,000 $ 837,000
One Corp. Ctr. I $ 386,000 $ 139,000 $ 200,000 $ 725,000
Westwood Office $ 329,000 $ 170,000 $ 299,000 $ 798,000
One Corp. Ctr. III $ 519,000 $ 213,000 $ 153,000 $ 885,000
La Plaza Center $ 943,000 $ 414,000 $ 316,000 $ 1,672,000
Continental Plaza $ 284,000 $ 130,000 $ 193,000 $ 608,000
Fidelity Federal $ 594,000 $ 178,000 $ 639,000 $ 1,411,000
Northwest Plaza $ 276,000 $ 137,000 $ 333,000 $ 745,000
River Bay Plaza $ 64,000 $ 23,000 $ 33,000 $ 120,000
Redwood Plaza $ 30,000 $ 16,000 $ 40,000 $ 86,000
Towne Center $ 90,000 $ 50,000 $ 47,000 $ 187,000
Springwood Plaza $ 52,000 $ 27,000 $ 31,000 $ 111,000
Kendall Sunset $ -- $ -- $ 24,000 $ 24,000
Burbank Self Storage $ -- $ -- $ 10,000 $ 10,000
Fountainbleau $ -- $ -- $ 118,000 $ 118,000
AAA Century Airport $ -- $ -- $ 221,000 $ 221,000
AAA Sentry $ -- $ -- $ 45,000 $ 45,000
Forest Hill $ -- $ -- $ 39,000 $ 39,000
Margate Self Storage $ -- $ -- $ 29,000 $ 29,000
Military Trail $ -- $ -- $ 32,000 $ 32,000
TOTAL $ 4,655,000 $ 1,973,000 $ 3,372,000 $10,000,000
=========== =========== =========== ===========
SCHEDULE 2.1(5)
SCHEDULE 4.2
ENVIRONMENTAL REPORTS
PROPERTY NAME REPORT TITLE CONSULTANT DATE
===========================================================================================================================
Continental Plaza Office Building Phase I ESA ERM 6-21-91
Phase I ESA PSI 1-15-98
Phase I ESA Update PSI 5-1-99
- ---------------------------------------------------------------------------------------------------------------------------
Fidelity Federal Plaza Phase I ESA ERM 7-10-91
Comprehensive Asbestos Bulk Survey ATEC 6-7-93
Operations & Maintenance Program ATEC 6-15-93
Phase I ESA PSI 1-29-98
Asbestos O&M Program McNeil -
Asbestos Containing Material Removal PSI 10-6-98
Confirmation
Phase I ESA Update PSI 5-1-99
- ---------------------------------------------------------------------------------------------------------------------------
Kellogg Office Building Phase I ESA ERM 7-10-91
Phase I ESA PSI Jan -98
Secondary Containment GTG (PSI) 1-7-98
Phase I ESA Update PSI 5-1-99
- ---------------------------------------------------------------------------------------------------------------------------
Westwood Office Building Phase I ESA ERM 6-21-91
Phase I ESA, Engineering Property RERC 8-19-93
Condition Survey and ADA Survey
Phase I ESA PSI 1-23-98
Phase II ESA PSI 9-30-98
Phase I ESA Update PSI 5-1-99
City of Tampa letter City of Tampa 12-17-99
- ---------------------------------------------------------------------------------------------------------------------------
One Corporate Center I Office Bldg. Phase I ESA ERM 6-21-91
Phase I ESA Law 3-21-95
Phase I ESA PSI Jan -98
Asbestos O&M Program PSI 4-29-98
Radon Testing Results PSI 10-6-98
Phase I ESA Update PSI 5-1-99
- ---------------------------------------------------------------------------------------------------------------------------
One Corporate Center III Office Bldg. Phase I ESA ERM 6-21-91
Phase I ESA Law 3-21-95
Phase I ESA PSI Jan -98
Asbestos O&M Program PSI 4-29-98
Phase I ESA Update PSI 5-1-99
- ---------------------------------------------------------------------------------------------------------------------------
La Plaza Center Level I Environmental Assessment and Dressler 1-10-92
Asbestos Screening
Phase I ESA PSI 1-14-98
Asbestos O&M Program PSI 4-29-98
Phase I ESA Update PSI 5-1-99
- ---------------------------------------------------------------------------------------------------------------------------
Century Park Phase I ESA ERM 7-10-91
Phase I ESA PSI 1-14-98
Phase I ESA Update PSI 5-1-99
- ---------------------------------------------------------------------------------------------------------------------------
SCHEDULE 4.2 -- Page 1
PROPERTY NAME REPORT TITLE CONSULTANT DATE
===========================================================================================================================
River Bay Plaza Phase I ESA ERM 7-9-91
Phase I Environmental Assessment ECT Jan -92
Phase I ESA Update ECT 4-28-97
Phase I ESA PSI 1-23-98
Phase II ESA PSI 9-30-98
Phase I ESA Update PSI 5-1-99
Limited Phase II ESA PSI 6-17-99
- ---------------------------------------------------------------------------------------------------------------------------
Towne Center Shopping Center Phase I ESA ERM 7-9-91
Phase I ESA PSI 1-26-98
Lead in the Domestic Water Testing PSI 3-2-98
Asbestos O&M Program PSI 4-29-98
Asbestos Containing Material Removal PSI 10-6-98
Confirmation
Phase I ESA Update PSI 5-1-99
- ---------------------------------------------------------------------------------------------------------------------------
Springwood Plaza Shopping Center Phase I ESA ERM 7-9-91
Phase I ESA PSI 1-15-98
Asbestos O&M Program PSI 4-29-98
Phase I ESA Update PSI 5-1-99
- ---------------------------------------------------------------------------------------------------------------------------
Northwest Plaza Phase I ESA ERM 7-9-91
Asbestos Bulk Sampling Survey Helix Env. 12-22-93
Phase I ESA PSI 1-23-98
Lead-based Paint O&M Program PSI 6-24-98
Asbestos O&M Program PSI 6-24-98
Phase II ESA PSI 9-25-98
Phase I ESA Update PSI 5-1-99
Phase II ESA PSI 6-1-99
- ---------------------------------------------------------------------------------------------------------------------------
Redwood Plaza Phase I ESA PSI 1-23-98
Asbestos O&M Program McNeil -
Subsurface Environmental Investigation PSI 10-01-98
Limited Soil and Groundwater PSI 3-26-99
Investigation
Voluntary Cleanup Program Application PSI 3-26-99
Phase I ESA Update PSI 5-1-99
Voluntary Cleanup Program Response State of Utah 6-1-99
Assessment of Potential Impact to Off-Site PSI 12-2-99
Wells
PSI 12-7-99
PSI 12-21-99
- ---------------------------------------------------------------------------------------------------------------------------
Burbank Self Storage Phase I ESA ERM 6-21-91
Phase I ESA PSI 1-23-98
Phase I ESA Update PSI 5-1-99
Phase II ESA PSI 6-1-99
- ---------------------------------------------------------------------------------------------------------------------------
AAA Century Airport Self Storage Phase I ESA ERM 6-21-91
Phase I ESA PSI 1-23-98
Phase I ESA Update PSI 5-1-99
- ---------------------------------------------------------------------------------------------------------------------------
Margate Self Storage Phase I ESA ERM 6-21-91
Phase I ESA PSI 1-23-98
Lead in the Domestic Water Testing PSI 6-23-98
Phase I ESA Update PSI 5-1-99
- ---------------------------------------------------------------------------------------------------------------------------
Fountainbleau Self Storage Phase I ESA
Phase I ESA Update
- ---------------------------------------------------------------------------------------------------------------------------
SCHEDULE 4.2 -- Page 2
PROPERTY NAME REPORT TITLE CONSULTANT 5-17-99E
===========================================================================================================================
Kendall Sunset Self Storage Phase I ESA ERM 6-21-91
Phase I ESA Law 3-21-95
Phase I ESA PSI 1-23-98
Lead in the Domestic Water Testing PSI 3-2-98
Phase I ESA Update PSI 4-26-99
- ---------------------------------------------------------------------------------------------------------------------------
AAA Sentry Self Storage Phase I ESA ERM 6-4-91
Phase I ESA PSI 1-23-98
Phase II ESA PSI 10-5-98
Phase I ESA Update PSI 5-1-99
- ---------------------------------------------------------------------------------------------------------------------------
Forest Hill Self Storage Phase I ESA ERM 6-21-91
Phase I ESA PSI 1-23-98
Lead in the Domestic Water Testing PSI 6-23-98
Phase I ESA Update PSI 5-1-99
- ---------------------------------------------------------------------------------------------------------------------------
Military Trail Self Storage Phase I ESA ERM 6-21-91
Phase I ESA PSI 1-23-98
Lead in the Domestic Water Testing PSI 3-2-98
Phase I ESA Update PSI 5-1-99
Phase II ESA PSI 6-1-99
- ---------------------------------------------------------------------------------------------------------------------------
SCHEDULE 4.2 -- Page 3
SCHEDULE 5.1(A)
TENANT DELINQUENCIES
ASSET NAME SECTION COMMENT
======================================================================================================================
Century Park 5.1(4) Rockwell Mortgage has vacated, but still paying rent.
- ----------------------------------------------------------------------------------------------------------------------
La Plaza 5.1(4) Universal Accounting has vacated, but still paying
rent.
- ----------------------------------------------------------------------------------------------------------------------
Springwood Plaza 5.1(4) Hub Cleaners, tenant went dark in October 1999.
Lease expires 1/31/00. Tenant owes $7,105.05.
- ----------------------------------------------------------------------------------------------------------------------
Springwood Plaza 5.1(4) Grace Home Health Care, tenant went dark in
November 1999. Lease expires 10/31/31. Tenant
owes $9,631.84. Tenant offered to settle for $1,500
cash.
- ----------------------------------------------------------------------------------------------------------------------
Towne Center 5.1(4) South Kansas Title went dark. Landlord received a
letter from tenant that they were vacating effective
12/31/99, and paid through 12/31/99. Their lease does
not expire until August 31, 2000.
- ----------------------------------------------------------------------------------------------------------------------
Towne Center 5.1(4) Genco Mortgage has moved out and paid rent through
their lease dated January 18, 2000.
- ----------------------------------------------------------------------------------------------------------------------
SCHEDULE 5.1(A)
SCHEDULE 5.1(B)
NOTICES OF TERMINATION OR DEFAULT
ASSET NAME SECTION COMMENT
======================================================================================================================
555 E. Ocean 5.1(5) SPCL Shipping Agency, Inc. (697/sf) recently went
dark, but still paying rent. Landlord received a letter
from the tenant dated January 21, 2000 asking to
terminate their lease effective March 31, 2000 with a
termination fee of keeping tenant's security deposit of
$3,897.60. Tenant's termination date is October 31,
2000 and has no right to terminate. Landlord to
negotiate.
- ----------------------------------------------------------------------------------------------------------------------
555 E. Ocean 5.1(5) Gulf & Atlantic Maritime Services (1,678/sf) recently
went dark. Landlord negotiated and has received a
termination fee of $20,000 that Tenant. The
agreement and check are in route to Landlord.
Existing tenant, Canada Maritime Agencies will
absorb the premises with tenant improvements.
- ----------------------------------------------------------------------------------------------------------------------
SCHEDULE 5.1(B)
SCHEDULE 5.1(C)
PURCHASE OPTIONS
ASSET NAME SECTION COMMENT
======================================================================================================================
Springwood Plaza 5.1(7) Schnuck Market, Inc. Tenant has right of first refusal
to purchase shopping center. Tenant has 20 days after
actual physical receipt of such notice and other data to
elect to purchase or decline.
- ----------------------------------------------------------------------------------------------------------------------
SCHEDULE 5.1(C)
SCHEDULE 5.1(D)
LEASE TERMINATION RIGHTS
ASSET NAME SECTION COMMENT
======================================================================================================================
Century Park 5.1(8) Department of Business and Industry are a State
agency funded on an annual basis. Should the
Department not be funded for the upcoming year,
Tenant has a right to terminate.
- ----------------------------------------------------------------------------------------------------------------------
La Plaza 5.1(8) State of Nevada, Department of Human Resources/
Division of Child and Family Services is a State
agency funded on an annual basis. Should this
Department not be funded in the upcoming year,
Tenant has a right to terminate.
- ----------------------------------------------------------------------------------------------------------------------
La Plaza 5.1(8) State of Nevada, Department of Human Resources/
Health Division/Bureau of Licensure and Certification
is a State agency funded on an annual basis. Should
this Department not be funded in the upcoming year,
Tenant has a right to terminate.
- ----------------------------------------------------------------------------------------------------------------------
La Plaza 5.1(8) State of Nevada/Board of Pharmacy is a State agency
funded on an annual basis. Should this Department
not be funded in the upcoming year, Tenant has a
right to terminate.
- ----------------------------------------------------------------------------------------------------------------------
La Plaza 5.1(8) State of Nevada/State Contractors Board is an agency
funded on an annual basis. Should this Department
not be funded in the upcoming year, Tenant has a
right to terminate.
- ----------------------------------------------------------------------------------------------------------------------
Northwest Plaza 5.1(8) $100 Store may terminate of competing store causes
10% decrease in sales. 90 days notice required.
- ----------------------------------------------------------------------------------------------------------------------
Northwest Plaza 5.1(8) Check Into Cash may terminate if Kroger is dark for
12 months or if new laws cause cancellation of lease
or reduced fee income. 60 days notice and 20% fee of
remaining base rent.
- ----------------------------------------------------------------------------------------------------------------------
Northwest Plaza 5.1(8) Fashion Cents may terminate if Kroger or Elder
Beerman vacate or abandon their space.
- ----------------------------------------------------------------------------------------------------------------------
SCHEDULE 5.1(D) -- Page 1
ASSET NAME SECTION COMMENT
======================================================================================================================
Northwest Plaza 5.1(8) Fiesta Salons my terminate if 2 spaces on either side
of tenant are used for adult
entertainment, massage
parlor, game room, bar,
lounge, restaurant, or pizza
delivery.
- ----------------------------------------------------------------------------------------------------------------------
Northwest Plaza 5.1(8) Katie's Hallmark my terminate if landlord leases to
another tenant who's business is primarily is selling
party supplies, greeting cards, or gift wrap and
occupying 8,000 sq. ft. or less. If Kroger or Elder
Beerman vacate tenant goes to lesser of base rent or
7% percentage rent. If replacement is not found
tenant may terminate with 3 months notice.
- ----------------------------------------------------------------------------------------------------------------------
Northwest Plaza 5.1(8) Kay-Bee Toy Works may terminate after 36th month
if sales between months 25 and 36 do not equal
$850,629.60, 90 days notice required.
- ----------------------------------------------------------------------------------------------------------------------
Northwest Plaza 5.1(8) Radio Shack may terminate if one year sales are under
$350,000 or the center is under 60% leased or if an
anchor tenant vacates and no replacement found
within 9 months. 60 days notice required.
- ----------------------------------------------------------------------------------------------------------------------
Plaza Westlake 5.1(8) Check 'N Go, with 6 months notice to Landlord, has
right to terminate lease last day of 3rd year. Last day
of 3rd year is August 31, 2001.
- ----------------------------------------------------------------------------------------------------------------------
Redwood Plaza 5.1(8) Under schedule B section 10 of the Lease with Drivers
License Division/Motor Vehicle Division. They have
the right to terminate their lease if space requirements
of the lease are altered by a Federal Act or an act of
the Utah State Legislature upon sixty (60) days notice.
- ----------------------------------------------------------------------------------------------------------------------
River Bay Plaza 5.1(8) Walgreens has the right and option to terminate their
lease as of the last day of each of the following full
calendar months: 180th, 240th, 360th & the 420th by
providing Landlord 12 months prior written notice.
Page 5, Section 3(c).
- ----------------------------------------------------------------------------------------------------------------------
Springwood Plaza 5.1(8) Countrywide Home Loans, Inc. Anytime after
12th month, tenant can buyout lease for a lump sum
payment of $7,000.00. Tenant must give 90 days
notice.
- ----------------------------------------------------------------------------------------------------------------------
SCHEDULE 5.1(D) -- Page 2
ASSET NAME SECTION COMMENT
======================================================================================================================
Springwood Plaza 5.1(8) Ombudsman Educational Services may terminate
lease if Riverview school
district cancels contract. 90
days notice required. Tenant
to reimburse Landlord for
unamortized tenant
improvements and leasing
commission up to $25,000.
Tenant my also cancel lease
with 60 days written notice
each year.
- ----------------------------------------------------------------------------------------------------------------------
Springwood Plaza 5.1(8) Priamerica
Financial Services my
terminate lease with 60 days
notice if grocery is not
opened for 9 months.
- ----------------------------------------------------------------------------------------------------------------------
Springwood Plaza 5.1(8) Great Clips may terminate with 30 days notice if
grocery ceases operation.
- ----------------------------------------------------------------------------------------------------------------------
Westwood Center 5.1(8) The State of Florida (Office of the Attorney General)
has an option to terminate, without penalty, in the
event a State owned building becomes available to the
Lessee for occupancy by providing Six months
advance written notice. (Please note that the State of
Florida pays in arrears!)
- ----------------------------------------------------------------------------------------------------------------------
SCHEDULE 5.1(D) -- Page 3
SCHEDULE 5.1(E)
LEASING COMMISSIONS OWING
ASSET NAME SECTION COMMENT
======================================================================================================================
555 E. Ocean 5.1(9) A leasing commission is due McNeil Real Estate
Mgmt., Inc. employee, Centa Branca for William H.
Burford (1,723/sf) in the amount of $325.65 for a
renewal of a 36 month lease.
- ----------------------------------------------------------------------------------------------------------------------
555 E. Ocean 5.1(9) A leasing commission is due McNeil Real Estate
Mgmt., Inc. employee, Centa Branca for Canada
Maritime Agencies (3,789/sf) in the amount of
$1,648.22 for a renewal and relocation 60 month
lease.
- ----------------------------------------------------------------------------------------------------------------------
Century Park 5.1(9) Neal Lewis CPA
has executed a 36 month lease
extension. New expiration
date is 11/30/02.
- ----------------------------------------------------------------------------------------------------------------------
Century Park 5.1(9) Lease document out to Rogers Benefit for execution
for a 36 month lease extension. New expiration date
is 02/28/03. No outside Brokers were involved in the
renewal.
- ----------------------------------------------------------------------------------------------------------------------
One Corporate Center I 5.1(9) In-house commission of $1,088.85 for U.S. Aviation
renewal.
- ----------------------------------------------------------------------------------------------------------------------
One Corporate Center I 5.1(9) In-house commission of $444.47 for RBMG, Inc.
expansion.
- ----------------------------------------------------------------------------------------------------------------------
La Plaza 5.1(9) Carol Kuhlow has
executed a 13 month lease
extension. New expiration
date is 12/31/00.
- ----------------------------------------------------------------------------------------------------------------------
Plaza Westlake 5.1(9) Outside broker commission due CB Richard Ellis for
$6,400 for Heartland Luxury Bath.
- ----------------------------------------------------------------------------------------------------------------------
Westwood Center 5.1(9) In-house commission of $472.49, Office of the
Attorney General expansion into Ste. 650.
- ----------------------------------------------------------------------------------------------------------------------
Westwood Center 5.1(9) In-house commission of $353.40, Staffing Now, Inc.
1,240 sf. (expansion/renewal).
- ----------------------------------------------------------------------------------------------------------------------
SCHEDULE 5.1(E)
SCHEDULE 5.1(F)
PREPAID RENTS
ASSET NAME SECTION COMMENT
======================================================================================================================
555 E. Ocean 5.1(10) SPCL Shipping Agency, Inc. (697/sf) has given
Landlord a check of $1,611.30 for payment of rent for
February and March, 2000. Check has not been
deposited and is being held for the borrower at the
close of escrow.
- ----------------------------------------------------------------------------------------------------------------------
Century Park 5.1(10) Kenrich has a new subtenant, holding 3 months
security deposit.
- ----------------------------------------------------------------------------------------------------------------------
SCHEDULE 5.1(F)
SCHEDULE 6.4
CONDEMNATION PROCEEDINGS
None.
SCHEDULE 6.4
SCHEDULE 6.5
CASUALTIES AND FLOOD ZONE PROPERTIES
None.
SCHEDULE 6.5
SCHEDULE 6.6
MATERIAL AGREEMENTS
None.
SCHEDULE 6.6
SCHEDULE 6.7
PROPERTY COMPLIANCE
None.
SCHEDULE 6.7
SCHEDULE 6.17
LITIGATION
None.
SCHEDULE 6.17
SCHEDULE 6.19
CLAIMS UNDER PURCHASE AGREEMENT
None.
SCHEDULE 6.19
SCHEDULE 6.27
ACQUISITION COST AND EQUITY INVESTMENT
GE ALLOCATIONS
BID NEW LOAN CLOSING FINANCING
PROCEEDS COSTS COSTS ALL-IN COST
MCNEIL REAL ESTATE FUND X, LTD. 1,719,722 2,643,351
66 LA PLAZA Business Center $7,705,186 $6,204,551 $108,893 $167,377 7,981,456
MCNEIL REAL ESTATE FUND XIV, LTD.
79 Redwood $3,038,110 $2,941,794 $42,936 $65,996 3,147,042
MCNEIL REAL ESTATE FUND XXIV, LTD.
71 River Bay $4,400,593 $4,129,456 $62,191 $95,593 4,558,377
75 Springwood Plaza $2,073,795 $1,857,768 $29,308 $45,048 2,148,151
73 Towne Center $2,376,569 $2,183,794 $33,587 $51,625 2,461,781
MCNEIL REAL ESTATE FUND XXV, LTD.
67 Century Park $11,223,379 $7,899,688 $158,614 $243,802 11,625,795
61 Fidelity Federal Plaza $3,515,083 $3,169,219 $49,677 $76,357 3,641,116
62 Kellogg Office Building $11,166,350 $8,962,192 $157,808 $242,563 11,566,721
76 Northwest Plaza $8,567,884 $4,878,730 $121,085 $186,118 8,875,087
MCNEIL REAL ESTATE FUND XXVI, LTD.
60 Continental Plaza $4,763,507 $3,846,739 $67,320 $103,476 4,934,304
63 Westwood Office Bldg $9,448,210 $8,450,705 $133,526 $205,241 9,786,977
MCNEIL REAL ESTATE FUND XXVII, LTD.
82 AAA Century Airport Self Storage $3,722,462 $2,713,818 $52,607 $80,862 3,855,932
86 AAA Sentry Self Storage $3,567,964 $2,930,056 $50,424 $77,506 3,695,894
81 Burbank Personal Storage $6,436,023 $5,391,558 $90,957 $139,808 6,666,788
87 Forest Hill Self Storage $3,392,729 $2,954,219 $47,948 $73,699 3,514,376
84 Fountainbleau Self Storage $4,360,154 $3,616,190 $61,620 $94,714 4,516,488
85 Kendall Sunset Self Storage $7,113,117 $5,846,843 $100,526 $154,516 7,368,159
83 Margate Self Storage $3,048,479 $2,513,614 $43,082 $66,221 3,157,782
88 Military Trail Self Storage $2,979,007 $2,561,454 $42,101 $64,712 3,085,819
64 One Corporate Center I $9,700,177 $8,124,640 $137,087 $210,714 10,047,978
65 One Corporate Center III $9,087,370 $8,008,700 $128,427 $197,402 9,413,199
121,686,148 99,185,728 1,719,722 2,643,351 126,049,222
All in $126,049,222
Debt 99,185,728.0
Equity $26,863,493.64 106,441,971
WH 13,589,275.121
MC Neil 13,274,218.515
GE ALLOCATIONS (cont.)
49.414% 10.497% 89.503%
MCNEIL TOTAL CASH
TOTAL EQUITY EQUITY EQUITY IMPLIED EQUITY
MCNEIL REAL ESTATE FUND X, LTD.
66 LA PLAZA Business Center 1,776,905 878,033 92,167 785,866
MCNEIL REAL ESTATE FUND XIV, LTD.
79 Redwood 205,248 101,420 10,646 90,774
MCNEIL REAL ESTATE FUND XXIV, LTD.
71 River Bay 428,921 211,945 22,248 189,697
75 Springwood Plaza 290,383 143,489 15,062 128,427
73 Towne Center 277,987 137,364 14,419 122,945
MCNEIL REAL ESTATE FUND XXV, LTD.
67 Century Park 3,726,107 1,841,203 193,271 1,647,932
61 Fidelity Federal Plaza 471,897 233,182 24,477 208,704
62 Kellogg Office Building 2,604,529 1,286,991 135,095 1,151,896
76 Northwest Plaza 3,996,357 1,974,744 207,289 1,767,455
MCNEIL REAL ESTATE FUND XXVI, LTD.
60 Continental Plaza 1,087,565 537,405 56,411 480,993
63 Westwood Office Bldg 1,336,272 660,300 69,312 590,988
MCNEIL REAL ESTATE FUND XXVII, LTD.
82 AAA Century Airport Self Storage 1,142,114 564,359 59,241 505,119
86 AAA Sentry Self Storage 765,838 378,428 39,724 338,705
81 Burbank Personal Storage 1,275,230 630,137 66,145 563,991
87 Forest Hill Self Storage 560,157 276,793 29,055 247,738
84 Fountainbleau Self Storage 900,298 444,870 46,698 398,172
85 Kendall Sunset Self Storage 1,521,316 751,737 78,910 672,827
83 Margate Self Storage 644,168 318,307 33,413 284,894
88 Military Trail Self Storage 524,365 259,108 27,199 231,909
64 One Corporate Center I 1,923,338 950,390 99,762 850,628
65 One Corporate Center III 1,404,499 694,013 72,851 621,163
26,863,494 13,274,219 1,393,395 11,880,824
SCHEDULE 8.19
PROPERTY-SPECIFIC COVENANTS
1. EXERCISE OF PURCHASE OPTION. On or before December 5, 2000, Borrower shall
have delivered to Lender evidence that Borrower has exercised its purchase
option under the Fidelity Federal Ground Lease described in paragraph 2 of
Exhibit "E". Thereafter, Borrower shall diligently and in accordance with
the provisions of such Fidelity Federal Ground Lease proceed to close its
acquisition of the fee estate in the portion of the Property covered by
such Fidelity Federal Ground Lease. Borrower and Lender intend that the
Deed of Trust which encumbers such Fidelity Federal Ground Lease shall
automatically encumber the fee estate, and any other estate in the
applicable Property, upon Borrower's acquisition thereof, without further
amendment or modification to such Deed of Trust. However, if required by
Lender, Borrower shall execute such amendments to such Deed of Trust and
the other Loan Documents, and Borrower shall obtain such endorsements to
the applicable Title Policy, as reasonably required by Lender to confirm
the validity and first position lien priority of such Deed of Trust on the
fee interest (and/or such other interest) acquired by Borrower.
Notwithstanding the foregoing, Borrower shall have no obligations under
this paragraph 1 if Borrower has obtained the release of the Property
subjected to the Fidelity Federal Ground Leases from the Lien of the Loan
Documents in accordance with Section 2.4.
2. POST CLOSING STRUCTURAL REPAIRS. Within twelve (12) months after the
Closing Date, Borrower shall have completed, Lien-free and in accordance
with applicable Laws, at least $1,000,000 of the repairs described in the
table set forth below for the designated Properties (as such work is more
particularly described in the engineering reports for such Properties
prepared by Lender's consultant(s) in connection with the Loan closing).
For purposes of determining Borrower's satisfaction of the $1,000,000
requirement in the preceding sentence, any amounts spent for any structural
repair item in excess of the "Estimated Cost" of such item (as set forth in
the table below) shall be excluded from such calculation. Within twelve
(12) months after the Closing Date Borrower and Lender shall discuss and
agree upon a work plan (including a completion schedule) for the repairs
described below which, as of such time, have yet to be completed. Unless
Lender has agreed to a revised work plan which provides to the contrary,
all such repair work shall be completed by or before the initial Maturity
Date.
PROPERTY STRUCTURAL REPAIRS ESTIMATED
COST
==============================================================================================================
AAA Century Airport EXTERIORS
- painting, exterior entrance doors 3,450
- painting, exterior stucco and T 1-11 29,250
---------------------------------------------------------------------------
ROOFING
- roofing, built-up, rip-off & replace, 4-plies 45,500
- downspouts, aluminum, 2" x 3", .020" gauge 1,530
- replace missing faux mansard roof tiles 1,500
- replace faux mansard roof tiles 41,600
- --------------------------------------------------------------------------------------------------------------
SCHEDULE 8.19 -- Page 1
PROPERTY STRUCTURAL REPAIRS ESTIMATED
COST
==============================================================================================================
INTERIORS
- painting, interior walls, floors and ceilings 10,400
---------------------------------------------------------------------------
ELECTRICAL SYSTEM
- exit signs, add additional exit signs 3,000
- emergency lighting, add 3,000
---------------------------------------------------------------------------
GARAGES/CARPORTS/SELF STORAGE
BUILDINGS
- leasing office carpeting/VCT 15,000
---------------------------------------------------------------------------
VERTICAL TRANSPORTATION
- full load testing, elevators 5,000
---------------------------------------------------------------------------
ADA
- upgrade, elevator cab 1,200
- upgrade toilet room, office 1,000
- --------------------------------------------------------------------------------------------------------------
$161,430
- --------------------------------------------------------------------------------------------------------------
AAA Sentry SITE
- asphalt pavement crack repair 225
- repair settlement at septic tank 66
- repair asphalt low area at main gate 250
- replace concrete sidewalk sections 180
- chain link fence repairs/replacements 2,400
- wood fence repairs/replacements 600
- replace lawn irrigation pump 1,900
---------------------------------------------------------------------------
EXTERIORS
- repair step cracking in exterior walls 150
- repair punched-in section of exterior wall 55
- repair cracking in balcony floor 50
---------------------------------------------------------------------------
ROOFING
- correct ponding deficiencies 1,500
- correct alligatoring 187.50
---------------------------------------------------------------------------
INTERIORS
- concrete floor crack repair 2,500
- provide new office furniture 2,500
---------------------------------------------------------------------------
HEATING, VENTILATION AND
AIR-CONDITIONING
- replace Rheem rooftop unit (RTU) - 2.5 ton 6,850
- replace HVAC package unit at grade 1,100
- replace ductwork in office closet 100
- install passive ventilation at storage units 10,000
---------------------------------------------------------------------------
Y2K ISSUES
- security system upgrade 1,500
$32,113.50
- --------------------------------------------------------------------------------------------------------------
Burbank ROOFING
- replace asphalt shingle roofing 1,500
---------------------------------------------------------------------------
HEATING, VENTILATION & AIR
CONDITIONING
- A/C, individual, DX air cooled condenser 2 ton 2,200
- --------------------------------------------------------------------------------------------------------------
SCHEDULE 8.19 -- Page 2
PROPERTY STRUCTURAL REPAIRS ESTIMATED
COST
==============================================================================================================
FIRE PROTECTION &
LIFE SAFETY
- emergency lighting, add 3,000
---------------------------------------------------------------------------
ADA
- correct misc ADA toilet deficiencies 1,000
- --------------------------------------------------------------------------------------------------------------
$7,700
- --------------------------------------------------------------------------------------------------------------
Century Park SITE
- repair/replace damaged framing at interior 6,000
courtyard pergolas
- rebuild drive aisle to the south of Building B 4,000
---------------------------------------------------------------------------
STRUCTURE
- repair damaged fireproofing at structure in garage 3,500
---------------------------------------------------------------------------
EXTERIOR
- deteriorated vision glass and gasket need 10,000
replacement at both buildings for aesthetic
purposes
---------------------------------------------------------------------------
ROOF
- continual maintenance at building connections and 2,000
roof
---------------------------------------------------------------------------
VERTICAL TRANSPORTATION
- normal maintenance due to age of equipment 5,000
---------------------------------------------------------------------------
HVAC
- replace two cooling towers and rebuild enclosure 55,000
- replace boilers 17,500
- replace 10%/year of tenant heat pumps 24,000
---------------------------------------------------------------------------
LIFE SAFETY/FIRE
- install gypsum board at mechanical/electrical 2,000
rooms and fire caulk
---------------------------------------------------------------------------
ADA
- stripe pavement for parking and graphics 600
- rebuild all bathrooms 60,000
- install appropriate elevator controls 12,000
- --------------------------------------------------------------------------------------------------------------
$201,600
- --------------------------------------------------------------------------------------------------------------
Continental Plaza SITE
- repair damaged masonry wall fence on north and 2,500
west property elevations, repaint as necessary
---------------------------------------------------------------------------
STRUCTURE
- second-level balcony concrete is cracked and 25,000
allows moisture to migrate to lower surface. M/O
recommends consideration of concrete
replacement.
---------------------------------------------------------------------------
EXTERIOR
- patch/repair minor stucco cracking at perimeter 38,000
walls and repaint building
- --------------------------------------------------------------------------------------------------------------
SCHEDULE 8.19 -- Page 3
PROPERTY STRUCTURAL REPAIRS ESTIMATED
COST
==============================================================================================================
ROOF
- replace remaining roof areas with new mineral 20,000
impregnated modified roof
---------------------------------------------------------------------------
VERTICAL TRANSPORTATION
- provide maintenance 2,000
---------------------------------------------------------------------------
LIFE SAFETY/FIRE
- install fire caulk/safe at all electrical rooms 2,000
---------------------------------------------------------------------------
ADA
- rebuild restroom entries and interiors 16,000
- --------------------------------------------------------------------------------------------------------------
$105,500
- --------------------------------------------------------------------------------------------------------------
Fidelity Federal Plaza Office SITE
Building - Recaulk plaza and building perimeter 14,350
- Reseal parking ramp 7,200
---------------------------------------------------------------------------
STRUCTURE
- Detailed non-linear structural analysis 20,000
---------------------------------------------------------------------------
ROOF
- Perform annual roof maintenance and repairs 1,500
- Properly flash exhaust fan penetrations at east 2,400
wing low roof
- Install roof drains at low roof 9,000
- Reinstall loose reglets around columns and tower 1,000
walls
---------------------------------------------------------------------------
VERTICAL TRANSPORTATION
- Install skirt switch brushes 16,000
- Annual maintenance budget 35,000
---------------------------------------------------------------------------
HVAC
- Replace boilers with low Nox boilers as required 50,000
by SCAQMD
- Replace chiller which has exceeded the normal 140,000
service life
---------------------------------------------------------------------------
ELECTRICAL
- Replace architectural lighting for tower 9,600
---------------------------------------------------------------------------
LIFE SAFETY/FIRE
- Provide exit corridor at tenth floor fitness club 9,900
---------------------------------------------------------------------------
Y2K
- Building/parking security system 5,000
- --------------------------------------------------------------------------------------------------------------
$320,950
- --------------------------------------------------------------------------------------------------------------
Forest Hill SITE
- chain link fence repairs/replacements as needed 1,000
- seal coat parking lot and restripe 7,463
---------------------------------------------------------------------------
HEATING, VENTILATION & AIR
CONDITIONING
- replace air condenser - 2 ton 3,600
- replace air handler - 2 ton 5,400
- replace air condenser - 3 ton 1,000
- replace DX air handler - 3 ton 1,200
- --------------------------------------------------------------------------------------------------------------
SCHEDULE 8.19 -- Page 4
PROPERTY STRUCTURAL REPAIRS ESTIMATED
COST
==============================================================================================================
- --------------------------------------------------------------------------------------------------------------
$19,663
- --------------------------------------------------------------------------------------------------------------
Fountainbleau INTERIORS
- concrete floor crack repair 1,250
---------------------------------------------------------------------------
FIRE PROTECTION
- install smoke detectors in interior corridors 1,430
---------------------------------------------------------------------------
Y2K ISSUES
- security system upgrade 1,500
---------------------------------------------------------------------------
ADA
- change toilet sink to allow wheelchair use 1,000
- --------------------------------------------------------------------------------------------------------------
$5,180
- --------------------------------------------------------------------------------------------------------------
Kellogg Executive Suites SITE
- replace broken concrete sidewalk and revise 2,275
drainage at southwest corner of building
- parking area repairs 7,000
- rout and seal joint at top of concrete retaining wall, 600
lower level parking area, east side
---------------------------------------------------------------------------
EXTERIOR
- replacing sealant at all exterior caulk joints, brick 7,000
control joints, and brick window joints
- repair damaged soffit areas 1,000
- masonry crack repairs at exterior stairs 1,000
---------------------------------------------------------------------------
ROOF
- coping parapet and counterflashing 1,500
---------------------------------------------------------------------------
HVAC
- replace missing refrigerant pipe insulation and 1,000
install filter/dryer on one stage that does not
already have this equipment.
- provide complete calibration and review of 1,500
operation and pneumatic and digital controls.
---------------------------------------------------------------------------
ELECTRICAL
- complete infrared scan of the electrical system 1,000
---------------------------------------------------------------------------
ADA
- provide six additional accessible spaces including 1,200
one van accessible space
- provide visual alarms to meet ADA requirements 19,800
- provide accessible toilet partition hardware 2,000
- provide accessible door hardware at corridors 5,000
- --------------------------------------------------------------------------------------------------------------
$51,875
- --------------------------------------------------------------------------------------------------------------
Kendall Sunset SITE
- apply emulsified sealcoat (2 coats) and silica sand 5,772
to asphalt pavement
- asphalt pavement crack repair 1,050
- repair concrete sidewalk sections 6,000
---------------------------------------------------------------------------
EXTERIORS
- exterior site painting 1,036
- --------------------------------------------------------------------------------------------------------------
SCHEDULE 8.19 -- Page 5
PROPERTY STRUCTURAL REPAIRS ESTIMATED
COST
==============================================================================================================
INTERIORS
- concrete floor crack repair 1,250
---------------------------------------------------------------------------
HEATING, VENTILATION & AIR
CONDITIONING 1,100
- Replace HVAC package unit at grade
---------------------------------------------------------------------------
Y2K ISSUES
- security system upgrade 1,500
---------------------------------------------------------------------------
ADA
- change toilet sink to allow wheelchair use 1,000
- --------------------------------------------------------------------------------------------------------------
$18,708
- --------------------------------------------------------------------------------------------------------------
La Plaza Business Center SITE
- repair/replace masonry wall along north side of 7,500
property. Repair masonry trash enclosure.
- replacement of building entryway slabs 3,000
---------------------------------------------------------------------------
EXTERIOR
- replace deteriorated reflective glass 6,000
- remove animal nesting from eaves/clear ventilation 2,000
path
---------------------------------------------------------------------------
INTERIOR
- install fire-rate material for ceilings of 1,500
mechanical/utility rooms
---------------------------------------------------------------------------
VERTICAL TRANSPORTATION
- replace elevator in Building C due to reaching end 50,000
of useful life
---------------------------------------------------------------------------
HVAC
- Replace HVAC package and split systems 26,000
---------------------------------------------------------------------------
ADA
- add vertical signage to accessible parking spaces 300
- recreate parking spot at Building D, south side, for 1,000
ADA space width requirements
- --------------------------------------------------------------------------------------------------------------
$97,300
- --------------------------------------------------------------------------------------------------------------
Margate SITE
- chain link fence repairs/replacements 1,000
- landscaping upgrades 5,000
---------------------------------------------------------------------------
STRUCTURAL SYSTEM
- continued monitoring of rear slab at Building D 1,000
---------------------------------------------------------------------------
EXTERIORS
- repair spalling in grade level slabs 1,100
---------------------------------------------------------------------------
ROOFING
- repair seams in aluminum coated built-up roof 1,000
---------------------------------------------------------------------------
INTERIORS
- concrete floor crack repair 2,500
---------------------------------------------------------------------------
FIRE PROTECTION
- install smoke detectors in interior corridors 1,287
- --------------------------------------------------------------------------------------------------------------
SCHEDULE 8.19 -- Page 6
PROPERTY STRUCTURAL REPAIRS ESTIMATED
COST
==============================================================================================================
Y2K ISSUES
- security system upgrade 5,000
- --------------------------------------------------------------------------------------------------------------
$17,887
- --------------------------------------------------------------------------------------------------------------
Military Trail SITE
- chain link fence repairs/replacements as needed 1,000
- seal coat parking lot and restripe 3,914
---------------------------------------------------------------------------
HEATING, VENTILATION & AIR
CONDITIONING 3,600
- replace air condenser - 2 ton 5,400
- replace air handler - 2 ton 1,000
- replace air condenser - 3 ton 1,200
- replace DX air handler - 3 ton 1,600
- replace mini warehouse ventilation fan
- --------------------------------------------------------------------------------------------------------------
$17,714
- --------------------------------------------------------------------------------------------------------------
Northwest SITE
- concrete flatwork repairs 2,000
- install sump pump 2,000
- install wood planter 1,000
- concrete wheelstops and splashblocks, install 1,500
---------------------------------------------------------------------------
ROOFING
- roofs, maintenance & repair 26,600
---------------------------------------------------------------------------
ADA 1,750
- signage, install at retail entries
- --------------------------------------------------------------------------------------------------------------
$34,850
- --------------------------------------------------------------------------------------------------------------
One Corporate Center I SITE
- restripe parking spaces after reseal is complete 1,500
- repair and replace failed landscape timber retaining 8,000
wall to the east of the structure
---------------------------------------------------------------------------
STRUCTURE
- provide vertical caulk joint at cracked walls in stair 1,000
towers
---------------------------------------------------------------------------
EXTERIOR
- replace mechanically fastened EPDM membrane 32,400
with adhered membrane at westernmost roof area
---------------------------------------------------------------------------
VERTICAL TRANSPORTATION
- locate Phase I and II Fire Service instruction signs 200
to be near the key switches in each car station
- --------------------------------------------------------------------------------------------------------------
$43,100
- --------------------------------------------------------------------------------------------------------------
One Corporate Center III SITE
- restripe parking spaces after reseal is complete 1,500
- repair ponding areas in asphalt paving 1,000
- repair damaged concrete precast planter at south 2,500
entrance to structure
---------------------------------------------------------------------------
STRUCTURE
- provide vertical caulk joint at cracked walls in stair 1,000
towers
- --------------------------------------------------------------------------------------------------------------
SCHEDULE 8.19 -- Page 7
PROPERTY STRUCTURAL REPAIRS ESTIMATED
COST
==============================================================================================================
EXTERIOR
- repair damaged concrete curbs around the site. 500
---------------------------------------------------------------------------
VERTICAL TRANSPORTATION
- locate Phase I and II fire S+A3 service instruction 200
signs to be near the key switches in each car
station
- --------------------------------------------------------------------------------------------------------------
$6,700
- --------------------------------------------------------------------------------------------------------------
Redwood SITE
- parking lot striping - 4" wide 1,084
- chain link fence repairs/replacements 1,000
- concrete curb replacement 1,050
- replace defective sight light luminaries 2,400
---------------------------------------------------------------------------
EXTERIORS
- reseal concrete tilt-up wall panel joints 5,000
---------------------------------------------------------------------------
ROOFING
- perform annual roofing maintenance & repairs 4,000
---------------------------------------------------------------------------
ADA
- renovate toilet rooms to comply with ADA 12,500
- --------------------------------------------------------------------------------------------------------------
$27,034
- --------------------------------------------------------------------------------------------------------------
River Bay SITE
- chain link fence repairs/replacements as needed 1,000
- lift canopies on trees for site visibility 1,800
---------------------------------------------------------------------------
ROOFING
- transfer EPDM roof warranty 1,000
- infrared/moisture survey of BUR and EPDM roofs 1,970
- remedial repairs at grease conditions 1,000
- replace rotted and rusted gutters 1,000
---------------------------------------------------------------------------
PLUMBING SYSTEMS
- annual backflow prevention device inspection 3,800
---------------------------------------------------------------------------
HEATING, VENTILATION & AIR
CONDITIONING
- replace RTU, 5 ton average size 2,600
- --------------------------------------------------------------------------------------------------------------
$14,170
- --------------------------------------------------------------------------------------------------------------
Springwood SITE
- repair sections of asphalt pavement 6,500
---------------------------------------------------------------------------
EXTERIORS
- repair damaged brick corners of building 1,750
---------------------------------------------------------------------------
ROOFING
- roofing, shingle, rip-off and replace 5,011
- repair roof flashings at various locations of 3,500
building
---------------------------------------------------------------------------
MECHANICAL SYSTEMS
- replace three (3) RTU's 7,500
- --------------------------------------------------------------------------------------------------------------
$24,261
- --------------------------------------------------------------------------------------------------------------
SCHEDULE 8.19 -- Page 8
PROPERTY STRUCTURAL REPAIRS ESTIMATED
COST
==============================================================================================================
Towne SITE
- concrete pavement, sidewalk & ramp repairs 2,400
---------------------------------------------------------------------------
EXTERIORS
- install replacement hollow metal doors 1,500
---------------------------------------------------------------------------
ROOFING
- repair roof edge at Suite 1 building 750
- repair roof flashings at rear of building 25,135
---------------------------------------------------------------------------
MECHANICAL SYSTEMS
- replace three (3) RTU's 7,500
- --------------------------------------------------------------------------------------------------------------
$37,285
- --------------------------------------------------------------------------------------------------------------
Westwood Office Building SITE
- repair front and side parking area asphalt paving, 5,000
sealcoat and restripe
---------------------------------------------------------------------------
STRUCTURE
- repair spalled concrete at embeds along exposed 5,000
edges of the double tees in the parking garage and
seal exposed mesh reinforcement at upper deck
topping
---------------------------------------------------------------------------
EXTERIOR
- repair/repoint cracks in CMU walls at the parking 1,500
garage
- remove rust and repaint exterior stairs and embeds 3,500
at the parking garage
- paint exterior soffits and CMU at parking structure 5,000
---------------------------------------------------------------------------
INTERIOR
- complete installation of lever-style hardware on 2,500
doors
---------------------------------------------------------------------------
HVAC
- replace condensing unit for split system in elevator 3,500
equipment room
---------------------------------------------------------------------------
ELECTRICAL
- infrared scan of electrical systems 1,000
---------------------------------------------------------------------------
ADA
- complete renovations of public restrooms on floors 21,000
2-8 for adaptable ADA compliance.
- renovate first floor restrooms for adaptable ADA 17,500
compliance
- install additional audible/visual alarms to comply 9,000
with ADA and NFPA 72 requirements
- --------------------------------------------------------------------------------------------------------------
$74,500
- --------------------------------------------------------------------------------------------------------------
3. POST CLOSING REMEDIAL ACTION. Borrower shall complete the Remedial Action
described in the table set forth below for the designated Properties, which
Remedial Action shall be completed Lien-free, in accordance with all
applicable Environmental Laws, and within the applicable time period set
forth below. Such Remedial Action is more particularly described in the
environmental reports for such Properties prepared by [Lender's]
[Borrower's]
SCHEDULE 8.19 -- Page 9
consultants in connection with the Loan closing. Completion of the Remedial
Action for each Property shall including obtaining a "closure" or "no
further action" letter from the lead Governmental Authority having
jurisdiction over the Remedial Action and the Property. If Borrower has
completed all Remedial Action at a Property within the applicable time
period set forth in the table below but is waiting for the appropriate
Governmental Authority to issue a "closure" or "no further action" letter
with respect to such Remedial Action, then Borrower shall have an
additional twelve (12) months beyond the designated completion date to
obtain such letter.
PROPERTY REMEDIAL ACTION COMPLETION
DATE
===========================================================================
River Bay Plaza Borrower to undertake a site 01-31-02
characterization and remediate to applicable standards,
if necessary. No further action letter required from
State of Florida.
---------------------------------------------------------------------------
Military Trail Borrower to undertake a site 01-31-02
characterization and remediate to applicable standards,
if necessary. No further action letter required from
State of Florida.
---------------------------------------------------------------------------
Redwood Plaza Borrower to undertake a site 01-31-02
characterization and remediate to applicable standards,
if necessary. No further action letter required from
State of Utah.
---------------------------------------------------------------------------
4. ZONING LETTERS FOR FLORIDA PROPERTIES. Borrower shall use commercially
reasonable efforts to obtain, as soon as reasonably practical after the
Closing Date, from the applicable local Governmental Authorities, zoning
letters addressed to Lender which are otherwise substantially identical to
the zoning letters for such Properties delivered to Lender prior to the
Closing Date. Borrower shall endeavor to obtain such revised zoning letters
within thirty (30) days after the Closing Date.
5. EVIDENCE OF QUALIFICATION TO DO BUSINESS AND GOOD STANDING. Within thirty
(30) days after the Closing Date, Borrower shall provide certified copies
of governmental certificates, dated on or after the Closing Date, showing
that Borrower is qualified as a foreign limited partnership in good
standing in all states in which any of the Properties are located.
6. TENANT ESTOPPEL CERTIFICATES AND/OR SNDA'S. Borrower shall use commercially
reasonable efforts to obtain, as soon as reasonably practical after the
Closing Date, a tenant estoppel certificate or a subordination,
nondisturbance and attornment agreement (in either case substantially in
the form previously provided to Borrower by Lender) for the following
Tenants: (a) Safeway at Redwood Plaza, (b) Kroger's at Northwest Plaza, and
(c) Elder Beerman's at Northwest Plaza.
SCHEDULE 8.19 -- Page 10
7. CHARGES ACCOUNT. Within ten (10) days after the Closing Date, Borrower
shall have established the Charges Account and shall have delivered to
Lender a Depository Account Agreement executed by Borrower and the
depository institution at which the Charges Account is maintained, which
Depository Account Agreement shall be substantially in the form previously
approved by Lender. Until such time Borrower has satisfied the requirements
of the immediately preceding sentence, the Loan funds which would have been
funded into the Charges Account to satisfy Borrower's deposit obligation on
the Closing Date (as set forth in Section 3.4(1)) shall be held by Lender
in an account maintained by Lender
8. UCC TERMINATION. Within thirty (30) days after the Closing Date, Borrower
shall have delivered to Lender evidence that Borrower has obtained and
filed a UCC termination statement (executed by the appropriate secured
party) to eliminate the fixture filing currently recorded in favor of PNC
Bank in the Hennepin County, MN records against the One Corporate Center I
and One Corporate Center II Properties.
9. REVISED MILITARY TRAIL SURVEY. Within ten (10) days after the Closing Date,
Borrower shall have delivered to Lender and its counsel a revised ALTA
survey for the Military Trail Property, which revised survey shall plot
both the fee parcel(s) and easement parcel(s) which are included within the
legal description for that Property.
10. REVISED TOWNE CENTER SURVEY. Within ten (10) days after the Closing Date,
Borrower shall have delivered to Lender and its counsel a revised ALTA
survey for the Towne Center Property, which revised survey shall include
the legal description for that Property shown in the Title Company's pro
forma policy delivered to Lender on or before the Closing Date.
SCHEDULE 8.19 -- Page 11
SCHEDULE 11.23
AUTHORIZED SIGNATORIES
1. Officers of Holding Company (the sole member of WXI/MCN Commercial Gen-Par,
L.L.C.)
Name Title
- -------------------- -------------------------
Stuart M. Rothenberg Director & Vice President
Daniel M. Neidich President
Michael K. Klingher Vice President
Kevin D. Naughton Vice President, Secretary & Treasurer
Ralph F. Rosenberg Vice President & Assistant Secretary
Edward Siskind Vice President & Assistant Treasurer
Todd A. Williams Vice President, Assistant Secretary & Assistant Treasurer
Elizabeth A. O'Brien Vice President & Assistant Secretary
Angie Madison Vice President & Assistant Secretary
G. Douglas Gunn Vice President & Assistant Secretary
Steven M. Feldman Vice President
Alan S. Kava Vice President
Brian J. Lahey Vice President & Assistant Treasurer
Mitchell S. Weiss Assistant Treasurer & Assistant Secretary
Elizabeth M. Burban Vice President & Assistant Secretary
Susan L. Sack Vice President
Brahm S. Cramer Vice President & Assistant Secretary
Zubin P. Irani Vice President & Assistant Secretary
Paul R. Milosevich Vice President & Assistant Secretary
Josephine Mortelliti Vice President
Richard Powers Vice President & Assistant Secretary
Jonathan A. Langer Vice President & Assistant Secretary
Ronald L. Bernstein Vice President & Assistant Secretary
Jerome S. Karr Vice President & Assistant Secretary
Daniel H. Klebes Vice President
Kim C. Bradley Vice President
Phillippe Camu Vice President
Jean de Pourtales Vice President
James R. Garman Vice President
Thomas Heslip Vice President
Douglas A. Kessler Vice President
Lahlou A. Khelifi Vice President
Steve S. Lin Vice President
Eli Muraidekh Vice President
Takenori Takahashi Vice President
Paul R. Vogel Vice President
Larry Goodwin Vice President
SCHEDULE 11.23
SCHEDULE 11.25
SURETYSHIP PROVISIONS
1. THIRD PARTY OBLIGATIONS. Except as expressly provided herein,
Whitehall (referred to herein as a "THIRD PARTY OBLIGOR") waives notice of
default, presentment, demand for payment, protest, notice of protest, notice of
nonpayment or dishonor, and all other notices and demands of any kind
whatsoever; and Third Party Obligor consents and agrees that Lender may, from
time to time, without notice or demand and without affecting the enforceability
of Sections 12.1 and 11.25: (a) supplement, modify, amend, extend, renew,
accelerate or otherwise change the time for payment or the terms of the
Obligations or any part thereof, including any increase or decrease of the
rate(s) of interest thereon; (b) supplement, modify, amend, or waive, or enter
into or give any agreement, approval or consent with respect to, the Obligations
or any part thereof, or any security or guaranties, or any condition, covenant,
default, remedy, right, representation or term thereof or thereunder; (c) accept
new or additional instruments, documents or agreements in exchange for or
relative to the Obligations or any part thereof; (d) accept partial payments on
the Obligations; (e) receive and hold additional security or guaranties for the
Obligations or any part thereof; (f) release, reconvey, terminate, waive,
abandon, fail to perfect, subordinate, exchange, substitute, transfer and/or
enforce any security or guaranties, and apply any security and direct the order
or manner of sale thereof as Lender in its sole and absolute discretion may
determine; (g) release any Person from any personal liability with respect to
the Obligations or any part thereof; (h) settle, release on terms satisfactory
to Lender or by operation of applicable Laws, or otherwise liquidate or enforce
any Obligations, including any Obligations arising under Section 12.1 of the
Loan Agreement (the "NONRECOURSE CARVE-OUTS") and any security or guaranty in
any manner, consent to the transfer of any security, and bid and purchase at any
sale; (i) amend, modify, waive, supplement or terminate the Loan Agreement, the
Note or any of the other Loan Documents; and (j) consent to the merger, change
or any other restructuring or termination of the existence of Borrower or any
other Person, and correspondingly restructure the Obligations, and any such
merger, change, restructuring or termination shall not affect the enforceability
or security hereof.
2. RIGHTS INDEPENDENT. Third Party Obligor's obligations with respect
to the Nonrecourse Carve-Outs are independent of those of any other Person, and
upon the occurrence and during the continuance of an Event of Default (subject
to the limitations set forth in Section 12.1), Lender may proceed in the
enforcement of Third Party Obligor's obligations independently of any other
right or remedy that Lender may at any time hold with respect to the Nonrecourse
Carve-Outs or any security therefor (except as expressly set forth in Section
12.1). Except as set forth in Section 12.1, Third Party Obligor waives any right
to require Lender to: (a) proceed against Borrower or any guarantor or other
Person; (b) proceed against or exhaust any security for the Nonrecourse
Carve-Outs; (c) give notice of the terms, time and place of any public or
private sale of any real or personal property security for the Nonrecourse
Carve-Outs; or (d) pursue any other remedy in Lender's power whatsoever.
SCHEDULE 11.25 -- Page 1
3.4. DEFERRAL OF RIGHTS OF SUBROGATION. Notwithstanding anything to the
contrary elsewhere contained herein or in any other document to which Third
Party Obligor is a party, Third Party Obligor hereby expressly agrees that,
until payment and performance in full of all Obligations, Third Party Obligor
shall not assert, with respect to Borrower and its successors and assigns
(including any surety) and any other Person, any and all rights at law or in
equity to subrogation, to reimbursement, to exoneration, to contribution, to
setoff or to any other rights that could accrue to a surety against a principal,
to a guarantor against a maker or obligor, to an accommodation party against the
party accommodated, or to a holder or transferee against a maker, and which
Third Party Obligor may have or hereafter acquire against Borrower or any other
Person in connection with or as a result of Third Party Obligor's execution,
delivery and/or performance of Sections 12.1 and 11.25 of the Loan Agreement or
any other document relating to the Nonrecourse Carve-Outs to which Third Party
Obligor is a party. Third Party Obligor agrees that, until payment and
performance in full of all Obligations, it shall not have or assert any such
rights against Borrower or its successors and assigns or any other Person
(including any surety), either directly or as an attempted setoff to any action
commenced against Third Party Obligor by Borrower (as borrower or in any other
capacity), Lender or any other Person. Third Party Obligor hereby acknowledges
and agrees that this waiver is intended to benefit Borrower and Lender and shall
not limit or otherwise affect Third Party Obligor's liability hereunder, under
any other document to which Third Party Obligor is a party, or the
enforceability hereof or thereof.
4. CONDITION OF BORROWER. Third Party Obligor represents and warrants
to Lender that: (a) the Loan Agreement is being separately executed by Third
Party Obligor at Borrower's request; and (b) Third Party Obligor has established
adequate means of obtaining from Borrower on a continuing basis financial and
other information pertaining to Borrower's businesses. Third Party Obligor
hereby waives and relinquishes any duty on the part of Lender to disclose to any
matter, fact or thing relating to the business, operation or condition of
Borrower and its assets now known or hereafter known by Lender during the life
of the Loan Agreement. With respect to any Obligations, Lender need not inquire
into the power of Borrower or the officers, partners or agents acting or
purporting to act on its behalf.
5. DEED OF TRUST ON REAL PROPERTY. Third Party Obligor acknowledges
that all or a portion of the Nonrecourse Carve-Outs is or may be secured by one
or more deed(s) of trust covering certain interests in real property. Third
Party Obligor authorizes Lender, at its sole option, without notice or demand
and without affecting the liability of Third Party Obligor for the Nonrecourse
Carve-Outs, to foreclose any or all of the deed(s) of trust and the interests in
real property secured thereby by nonjudicial sale, or to exercise any other
right or remedy with respect to the deed(s) of trust or the property covered
thereby. No such action by Lender shall release or limit the liability of Third
Party Obligor for the Nonrecourse Carve-Outs, even if the effect of that action
is to deprive Third Party Obligor of the right to reimbursement from Borrower
for any sums paid by Third Party Obligor to Lender with respect to the
Nonrecourse Carve-outs. Third Party Obligor waives any right to receive notice
of any judicial or nonjudicial sale or foreclosure of any real property subject
to any deed of trust securing the Nonrecourse Carve-Outs and the failure of
Third Party Obligor to receive any such notice shall not impair or affect Third
Party Obligor's liability hereunder.
SCHEDULE 11.25 -- Page 2
6. LIMITATION. Notwithstanding anything to the contrary contained in
this Schedule 11.25, Third Party Obligor does not waive, and shall retain the
right to raise, defenses or rights of setoff that would have been available to
Third Party Obligor had it been named as a "Borrower" under the Loan Agreement,
other than any defenses available to the Borrower based upon any applicable
anti-deficiency laws or "one form of action" or "security first" laws (the
benefits and protections of which are waived by Third Party Obligor).
7. EFFECT OF WAIVERS. Third Party Obligor warrants and agrees that each
of the waivers set forth herein is made with Third Party Obligor's full
knowledge of its significance and consequences, and that under the
circumstances, the waivers are reasonable and not contrary to public policy or
Law. If any waivers are determined to be contrary to any applicable Law or
public policy, such waivers shall be effective only to the maximum extent
permitted by Law.
SCHEDULE 11.25 -- Page 3
EXHIBIT "A"
FORM OF
NOTICE OF ADDITIONAL ADVANCE
Date: ________________________
General Electric Capital Corporation
- ------------------------------------
- ------------------------------------
Attention: Region Operations Manager
Gentlemen:
The undersigned, WXI/MCN Commercial Real Estate Limited Partnership,
refers to the Loan Agreement, dated as of January 31, 2000 (the "Loan
Agreement", the terms defined therein being used herein as therein defined),
between the undersigned and GENERAL ELECTRIC CAPITAL CORPORATION, and hereby
gives you notice, irrevocably, pursuant to the Loan Agreement, that the
undersigned hereby requests an Advance under the Loan Agreement, and in that
connection sets forth below the information relating to such Advance as required
by the Loan Agreement:
The date of the requested Advance shall be __________, 200__.
The aggregate amount of the requested Advance is $__________.
The Advance shall be a ["WORKING CAPITAL"] ["ACQUISITION"] Advance, and
shall be used for the following purposes: ______________________________________
- -------------------------------------------------------------------------------.
The undersigned hereby certifies that the statements contained in
paragraph 4 of Part B of Schedule 2.1 of the Loan Agreement are true on the date
hereof, and will be true on the date of the requested Advance, before and after
giving effect thereto and to the application of the proceeds therefrom. Attached
are all invoices and documents required by the applicable
EXHIBIT "A" -- Page 1
provisions of Schedule 2.1 to the Loan Agreement and the amended Collateral
Documents referred to in Part B of Schedule 2.1 of the Loan Agreement.
Very truly yours,
WXI/MCN COMMERCIAL REAL
ESTATE LIMITED PARTNERSHIP, a Delaware
limited partnership
By: WXI/MCN Commercial Gen-Par, L.L.C., a
Delaware limited liability company,
its General Partner
By: WXI/McN Realty L.L.C., a Delaware
limited liability company, its
Managing Member
By:
------------------------------
------------------------------
[Printed Name and Title]
EXHIBIT "A" -- Page 2
EXHIBIT "B"
FORM OF
NOTICE TO DEPOSITORY
(Borrower's Letterhead)
________________, 2000
CERTIFIED MAIL -- RETURN
RECEIPT REQUESTED
- ----------------------------------
- ----------------------------------
- ----------------------------------
- ----------------------------------
Attn:
-----------------------------
Re: WXI/MCN Commercial Real Estate Limited Partnership ("BORROWER")
and General Electric Capital Corporation ("LENDER")
Deposit Account No. (the "ACCOUNT")
----------------------------------------------
Ladies and Gentlemen:
You are hereby notified that Borrower has granted to Lender a security
interest in, and has pledged to Lender as security, all monies at any time
deposited into or otherwise held in the Account (including without limitation
any interest earned on and added to the funds in the Account). The security
interest has been granted, and the pledge made, to secure the payment and
performance of obligations of Borrower to Lender.
The Account is an account of Borrower maintained by you at your address
given above. Borrower represents and warrants that its tax identification number
for tax reporting purposes is 75-2780394, and Borrower shall treat all income,
gains and losses from amounts in the Account as its income or loss for Federal
and State income tax purposes. It is our understanding that (1) the Account has
been established and will be maintained to allow withdrawals by Borrower alone
until you have received notice from Lender that an Event of Default has occurred
with respect to the obligations secured by the Account, after which withdrawals
may be made only by Lender (either alone or, at Lender's option, by Lender and
Borrower jointly), (2) you have not been previously advised of any security
interest or liens on the Account, and (3) you are not aware of any claims
against the Account other than claims of Lender. If you are unable to confirm
any of this information, please immediately notify Mr. Paul St. Arnauld of
Lender at 1528 Walnut Street, 9th Floor, Philadelphia, Pennsylvania 19102
(telephone: 215-772-2903).
EXHIBIT "B" -- Page 1
The security interest of Lender in the Account shall continue in full
force and effect until you are notified to the contrary in writing by Lender. In
addition, this notice may not be revoked or modified except by Lender in
writing.
Please acknowledge your receipt of this notice by signing the enclosed
copy of this letter and returning it to Mr. Paul St. Arnauld at the address
given above (it being understood that your failure to do so shall in no way be
deemed to ineffectuate this notice, or be deemed non-receipt of this notice by
you).
Very truly yours,
WXI/MCN COMMERCIAL REAL
ESTATE LIMITED PARTNERSHIP, a Delaware
limited partnership
By: WXI/MCN Commercial Gen-Par, L.L.C., a
Delaware limited liability company, its General
Partner
By: WXI/McN Realty L.L.C., a Delaware
limited liability company, its Managing
Member
By:
-------------------------------------
-------------------------------------
[Printed Name and Title]
GENERAL ELECTRIC CAPITAL CORPORATION,
a New York corporation
By:
-------------------------------------------------
-------------------------------------------------
[Printed Name and Title]
EXHIBIT "B" -- Page 2
RECEIPT ACKNOWLEDGED:
- ------------------------------------------
By:
--------------------------------------
--------------------------------------
[Printed Name and Title]
EXHIBIT "B" -- Page 3
EXHIBIT "C"
FORM OF
COLLATERAL ASSIGNMENT OF INTEREST RATE CAP AGREEMENT
[Attached]
EXHIBIT "C"
EXHIBIT "D-1"
PROPERTY DESCRIPTION
(Century Park)
That certain real property situated in the City of Las Vegas and County
of Clark, State of Nevada, described as follows:
Government Lot Nine (9), being situated in the Northeast Quarter
(NEl/4) of the Northwest Quarter (NWl/4) of Section 23, Township 21 South, Range
61 East, M.D.M.
EXCEPTING THEREFROM the interest in and to the Northerly 50.00 feet and the
Easterly 40.00 feet of said land as conveyed to Clark County for road and
incidental purposes by Deed recorded April 23, 1963 as Document No. 353944 in
Official Records; and by Deed recorded December 6, 1967 as Document No. 674402,
in the Official Records of Clark County, Nevada.
ALSO EXCEPTING THEREFROM that certain spandrel area situate within the Northeast
(NE) corner of the East Half (El/2) of the Northeast Quarter (NEl/4) of the
Northeast Quarter (NEl/4) of the Northwest Quarter (NWl/4) of Section 23,
Township 21 South, Range 61 East, M.D.M., Nevada; also being the Southwest (SW)
corner of the intersection of Flamingo Road and Spencer Street, bounded as
follows: on the North by the South line of the North 50.00 feet thereof; on the
East by the West line of the East 40.00 feet thereof; on the Southwest (SW) by
the arc of a curve concave Southwesterly, having a radius of 25.00 feet and
being tangent to the South line of said North 50.00 feet and the West line of
said East 40.00 feet as conveyed to Clark County, by Deed recorded October 14,
1980 as Document No. 1255253, Official Records.
and further described as:
Beginning at a point that is South 50.43 feet and West 62.64 feet from the
Northeast corner of Lot 9, in the East Half (El/2) of the Northeast Quarter
(NEl/4) of the Northwest Quarter (NWl/4) of Section 23, Township 21 South, Range
61 East, M.D.M., said point also being South 62.00 feet and West 61.14 feet from
a Department of Transportation Monument in the intersection of Flamingo Road and
Spencer Avenue; THENCE around a curve to the right 34.87 feet, said curve having
a radius of 25 feet with a cord bearing South 46(degree)10'l2" East 34.87 feet;
THENCE South 1(degree)56'59" East 568.01 feet; THENCE North 89(degree)5l'36"
West 302.67 feet; THENCE North 25(degree)06'46" West 589.59 feet; THENCE North
89(degree)36'35" East 279.93 feet POINT OF BEGINNING.
EXHIBIT "D-1"
EXHIBIT "D-2"
PROPERTY DESCRIPTION
(Kellogg Office)
That certain real property situated in the City of Littleton and County
of Arapahoe, State of Colorado, described as follows:
A parcel of land being all of Lot 11, and the Southeasterly 59.00 feet of Lot
12, Block 3, Highline Professional Center and a portion of Lot 1, Block 2,
Highline Professional Center South, said parcel being more particularly
described as follows:
A tract of land located in the Northwest one-quarter of Section 34 and the
Southwest one-quarter of Section 27, Township 5 South, Range 68 West of the
Sixth Principal Meridian, County of Arapahoe, State of Colorado, described as
follows:
Commencing at the Northeast corner of the Northwest one-quarter of said Section
34; thence S89(degree)49'50"W and along the North line of the Northwest
one-quarter of said Section 34 a distance of 525.49 feet to a point on the
Southwesterly right-of-way line of Dry Creek Circle, said point being a point on
curve, also being the Point of Beginning; thence along said Southwesterly
right-of-way line of Dry Creek Circle and along the arc of a curve to the left
whose center bears N30(degree)08'52"E having a delta of 2l(degree)36'44", a
radius of 255.93 feet, a distance of 96.54 feet; thence S40(degree)49'0l"E a
distance of 38.43 feet to a point on the Westerly right-of-way line of West Dry
Creek Court; thence Southerly along the Westerly right-of-way line of West Dry
Creek Court the following 3 courses:
(l) S00(degree)10'10"E, 33.79 feet to a point of curve.
(2) Along the arc of a curve left having a delta of ll(degree)l7'52", a radius
of 275.33 feet, a distance of 54.29 feet measured along the arc to a point of
tangent.
(3) S11(degree)28'02"E, 5.41 feet;
Thence S49(degree)53'll"W, 243.11 feet to a point on curve, said point being on
the Easterly right-of-way line of the Denver Water Board's Highline Canal;
thence Northwesterly along said Easterly right-of-way line the following 6
courses:
1) Along the arc of a curve left whose center bears S54(degree)40'14"W having a
delta of 25(degree)27'07", A radius of 152.97 feet, a distance of 67.95 feet
measured along the arc to a point of tangent.
2) N60(degree)46'53"W, 192.40 feet to point of curve.
3) Along the arc of a curve right having a delta of l7(degree)06'00", a radius
of 930.37 feet, distance oF 277.67 feet measured along the arc to a point of
tangent.
EXHIBIT "D-2" -- Page 1 of 2
4) N43(degree)40'53"W, 0.88 feet.
5) N89(degree)43'14"E, 0.39 feet.
6) N43(degree)33'21"W a distance of 100.31 feet;
Thence N49(degree)53'll"E a distance of 400.89 feet to a point on the
Southwesterly right-of-way line of Dry Creek Circle; thence S35(degree)30'30"E
and along said Southwesterly right-of-way line a distance of 315.52 feet to a
point of curve, thence along the arc of a curve left having a delta of
24(degree)20'38", a radius of 255.93 feet, a distance of 108.74 feet to the
Point of Beginning, County of Arapahoe, State of Colorado.
EXHIBIT "D-2" -- Page 2 of 2
EXHIBIT "D-3"
PROPERTY DESCRIPTION
(One Corporate Center I)
That certain real property situated in the City of Edina and County of
Hennepin, State of Minnesota, described as follows:
PARCEL 1:
Lot 1, Block 1, One Corporate Center, together with the benefits and appurtenant
easements created pursuant to that Mutual Parking and Easement Agreement filed
as Document No. 4472140, according to the recorded plat thereof, Hennepin
County, Minnesota.
PARCEL 2:
Lot 1, Block 1, One Corporate Center Phase 3, according to the recorded plat
thereof, Hennepin County, Minnesota.
EXHIBIT "D-3"
EXHIBIT "D-4"
PROPERTY DESCRIPTION
(Westwood Office)
That certain real property situated in the City of Tampa and County of
Hillsborough, State of Florida, described as follows:
For a point of reference, commence at the Southeast corner of the Southwest 1/4
of the Northwest 1/4 of Section 16, Township 29 South, Range 18 East,
Hillsborough County, Florida; run thence North 50.00 feet along the East
boundary thereof and the centerline of Lois Avenue; thence South
89(degree)52'00" West, 42.00 feet to the intersection of the North right of way
line of West Spruce Street and the West right of way line of Lois Avenue for the
POINT OF BEGINNING of the herein described parcel; thence continue South
89(degree)52'00" West, 358.00 feet along the North right of way line of said
West Spruce Street; thence North 380.00 feet; thence North 89(degree)52'00"
East, 358.00 feet to a point on the West right of way line of Lois Avenue;
thence South 380.00 feet along the said West right of way line to the POINT OF
BEGINNING.
EXHIBIT "D-4"
EXHIBIT "D-5"
PROPERTY DESCRIPTION
(One Corporate Center III)
That certain real property situated in the City of Edina and County of
Hennepin, State of Minnesota, described as follows:
PARCEL 1:
Lot 1, Block 1, One Corporate Center, together with the benefits and appurtenant
easements created pursuant to that Mutual Parking and Easement Agreement filed
as Document No. 4472140, according to the recorded plat thereof, Hennepin
County, Minnesota.
PARCEL 2:
Lot 1, Block 1, One Corporate Center Phase 3, according to the recorded plat
thereof, Hennepin County, Minnesota.
EXHIBIT "D-5"
EXHIBIT "D-6"
PROPERTY DESCRIPTION
(La Plaza Center)
That certain real property situated in the City of Las Vegas and County
of Clark, State of Nevada, described as follows:
PARCEL I:
That portion of the Northwest Quarter (NW 1/4) of the Northwest Quarter (NW 1/4)
of Section 23, Township 21 South, Range 61 East, M.D.B.&M., more particularly
described as Parcel 1, as shown by Parcel map in File 7, Page 61 of Parcel Maps,
recorded November 14, 1975 as Document No. 529370 of Official Records, Clark
County, Nevada.
PARCEL II:
That portion of the Northwest Quarter (NW 1/4) of the Northwest Quarter (NW 1/4)
of Section 23, Township 21 South, Range 61 East, M.D.B.&M., more particularly
described as Parcel 2, as shown by Parcel map in File 7, Page 61 of Parcel Maps,
recorded November 14, 1975 as Document No. 529370 of Official Records, Clark
County, Nevada.
PARCEL III:
Government Lot Eighteen (18) in Section 23, Township 21 South, Range 61 East,
M.D.B.&M.
EXCEPTING THEREFROM the North 340 feet thereof as replatted into Lot 2 and a
portion of Lot 1 as shown by Parcel Map filed in File 7, Page 61 of Parcel Maps,
recorded November 14, 1975 as Document No. 529370 of Official Records, Clark
County, Nevada.
FURTHER EXCEPTING THEREFROM the East thirty feet (30'), the South thirty feet
(30') and the "spandrel area" in the Southeast corner thereof, as dedicated to
the County of Clark for road purposes by Deed recorded April 8, 1977 in Book 726
as Document No. 685029 in the Office of the County Recorder of Clark County,
Nevada.
Said Parcels I, II and III being more particularly described by metes and bounds
as follows:
That portion of the Northwest Quarter (NW1/4) of the Northwest Quarter (NW1/4)
of Section 23, Township 21 South, Range 61 East, M.D.B.&M., more particularly
described as follows:
COMMENCING at the Southwest Corner of the Northwest Quarter (NW1/4) of the
Northwest Quarter (NW1/4) of said Section 23; thence North 03(degree)15'00" West
along the West line thereof a distance of 277.21 feet; thence South
89(degree)50'30" East a distance of 50.09 feet to a point on the Easterly
right-of-way line of Maryland Parkway (100.00 feet wide), said point being the
TRUE POINT OF BEGINNING; thence continuing South 89(degree)50'30" East a
distance of 291.61 feet; thence South 03(degree)06'33" East a distance of 250.31
feet to a point on the Northerly right-of-way line of
EXHIBIT "D-6" -- Page 1 of 2
Rochelle Avenue (60.00 feet wide); thence South 89(degree)18'15" East along said
Northerly right-of-way line a distance of 295.24 feet to a point on a tangent
curve concave to the Northwest having a radius of 15.00 feet; thence
Northeasterly along the arc of said curve through a central angle of
93(degree)39'5l" an arc length of 24.52 feet to a point on the Westerly
right-of-way line of Escondido Street (60.00 feet wide); thence North
02(degree)58'06" West along said Westerly right-of-way line a distance of 577.71
feet; thence North 89(degree)50'30" West a distance of 604.96 feet to a point on
the Easterly right-of-way line of the aforementioned Maryland Parkway; thence
South 03(degree)15'00" East along said Easterly right-of-way line a distance of
340.60 feet to the TRUE POINT OF BEGINNING.
EXHIBIT "D-6" -- Page 2 of 2
EXHIBIT "D-7"
PROPERTY DESCRIPTION
(Continental Plaza)
That certain real property situated in the City of Scottsdale and
County of Maricopa, State of Arizona, described as follows:
The North half of the Southeast quarter of the Northeast quarter of the
Southeast quarter of Section 22, Township 3 North, Range 4 East of the Gila and
Salt River Base and Meridian, Maricopa County, Arizona.
EXHIBIT "D-7"
EXHIBIT "D-8"
PROPERTY DESCRIPTION
(Fidelity Federal)
That certain real property situated in the City of Long Beach and
County of Los Angeles, State of California, described as follows:
EXHIBIT "D-8"
EXHIBIT "D-9"
PROPERTY DESCRIPTION
(Northwest Plaza)
That certain real property situated in the City of Dayton and County of
Montgomery, State of Ohio, described as follows:
PARCEL 1:
Located in the City of Dayton, County of Montgomery, State of Ohio and being all
of Lots 79601 and 79602 and part of Lot 79603, all of the revised and
consecutive numbers of lots on the Plat of said City of Dayton, Ohio and being a
tract of land described as follows:
Beginning at the northeast corner of Lot 79601, said point being in the west
line of Philadelphia Drive, said west line being forty-five and 00/100 (45.00)
feet west of and measured at right angles to the centerline of said Philadelphia
Drive; thence with the west line of said Philadelphia Drive, South one degree
five minutes (0l(degree) 05'), West for six hundred forty-five and 25/100
(645.25) feet to the northeast corner of Lot 79600 of the revised and
consecutive numbers of lots on the Plat of said City of Dayton, Ohio; thence
with the north line of said Lot 79600, South eighty-eight degrees five minutes
(88(degree) 05') West for one hundred forty-five and 54/100 (145.54) feet to the
northwest corner of said Lot 79600; thence with the west line of said Lot 79600,
and with its southward extension, South one degree fifty-five minutes
(01(degree) 55') East for three hundred ten and 00/100 (310.00) feet to the
southeast corner of said Lot 79601, said point being in the north line of
Siebenthaler Avenue, said north line of Siebenthaler Avenue being forty-five and
00/100 (45.00) feet north of and measured at right angles to the centerline of
said Siebenthaler Avenue; thence with the north line of said Siebenthaler
Avenue, South eighty-eight degrees five minutes (88(degree) 5') West for six
hundred ninety-three and 22/100 (693.22) feet; thence North one degree
fifty-five minutes (01(degree) 55') West for five hundred forty-nine and 00/100
(549.00) feet; thence South eighty-eight degrees five minutes (88(degree) 05')
West for one hundred and 50/100 (100.50) feet; thence South one degree
fifty-five minutes (01(degree) 55') East for forty-four and 00/100 (44.00) feet;
thence North eighty-eight degrees five minutes (88(degree) 05') East for two
hundred twenty-one and 20/100 (221.20) feet; thence North one degree fifty-five
minutes (01(degree) 55') West for four hundred forty and 68/100 (440.68) feet to
a point in the north line of said Lot 79603; thence with the north lines of said
Lots 79603, 79602 and 79601, North eighty-seven degrees forty minutes
(87(degree) 40') East for one thousand one hundred ninety-four and 26/100
(1194.26) feet to the point of beginning, containing 20.689 acres more or less,
according to a survey of said premises by A. Bodenstein, Registered Surveyor,
State of Ohio.
PARCEL II:
EXHIBIT "D-9" -- Page 1 of 2
Located in the City of Dayton, County of Montgomery, State of Ohio, and being
part of Lot 79603 of the revised and consecutive numbers of lots on the Plat of
said City of Dayton, Ohio, and being a tract of land described as follows:
Beginning at the southwest corner of said Lot 79603, said point being in the
north line of Siebenthaler Avenue, said north line being forty-five and 00/100
(45.00) feet north of the centerline of said Siebenthaler Avenue; thence with
the west line of said Lot 79603, North one degree fifty-five minutes (01(degree)
55') West for nine hundred forty and 62/100 (940.62) feet to a point in the
north line of said Lot 79603; thence with the north line of said Lot 79603,
North eighty-seven degrees forty minutes (87(degree) 40') East for six hundred
ninety-five and 41/100 (695.41) feet; thence South one degree fifty-five minutes
(01(degree) 55') East for four hundred forty and 68/100 (440.68) feet; thence
North eighty-eight degrees five minutes (88(degree) 05') East for two hundred
twenty-one and 20/100 (221.20) feet; thence North one degree fifty-five minutes
(01(degree) 55') West for forty-four and 00/100 (44.00) feet; thence North
eighty-eight degrees five minutes (88(degree) 05') East for one hundred and
50/100 (100.50) feet; thence South one degree fifty-five minutes (01(degree)
55') East for five hundred forty-nine and 00/100 (549.00) feet to a point in the
south line of said Lot 79603, and in the north line of said Siebenthaler Avenue;
thence with the south line of said Lot 79603 and with the north line of said
Siebenthaler Avenue, South eighty-eight degrees five minutes (88(degree) 05')
West for one thousand seventeen and 09/100 (1017.09) feet to the point of
beginning, containing 18.887 acres more or less, according to a survey of said
premises by A. Bodenstein, Registered Surveyor, State of Ohio, dated August 14,
1980.
EXHIBIT "D-9" -- Page 2 of 2
EXHIBIT "D-10"
PROPERTY DESCRIPTION
(River Bay Plaza)
That certain real property situated in the City of Riverview and County
of Hillsborough, State of Florida, described as follows:
Commence at the Northwest corner of the Southeast 1/4 of Section 20, Township 30
South, Range 20 East, Hillsborough County, Florida and run thence North
89(degree) 08' 28" East along the North boundary of said Southeast 1/4, a
distance of 132.22 feet to the East right of way line of U.S. Highway No. 301
(S.R. No. 43); run thence South 0(degree) 01' 41" West along said right of way
line, 253.50 feet to the POINT OF BEGINNING; continue thence South 0(degree) 01'
41" West along said right of way line, 239.21 feet; run thence North 89(degree)
20' 11" East, 150.00 feet; thence run South 0(degree) 0l' 41" West, 150.00 feet
to the North right of way line of Uncle Tom Road; run thence North 89(degree)
20' 11" East along said right of way line, a distance of 616.25 feet; thence run
South 0(degree) 07' 58" West 10.00 feet; thence run North 89(degree) 20' 11"
East, 40.00 feet; thence run North 0(degree) 07' 58" East, a distance of 551.97
feet; thence South 89(degree) 08' 28" West, 657.31 feet; run thence South
0(degree) 01' 41" West, 150.00 feet; run thence South 89(degree) 08' 28" West,
150.00 feet to the POINT OF BEGINNING.
AND
Commence at the Northwest corner of the Southeast 1/4 of Section 20, Township 30
South, Range 20 East, Hillsborough County, Florida and run thence North
89(degree) 08' 28" East along the North boundary of said Southeast 1/4, a
distance of 132.22 feet to the East right of way line of U.S. Highway No. 301
(S.R. No. 43) for the POINT OF BEGINNING; continue thence North 89(degree) 08'
28" East, 807.47 feet; thence run South 0(degree) 07' 58" West, 103.50 feet; run
thence South 89(degree) 08' 28" West, 807.31 feet to said East right of way line
of U.S. Highway 301 (S.R. No. 43); run thence North 0(degree) 01' 41" East along
said right of way line, 103.50 feet to the POINT OF BEGINNING.
LESS AND EXCEPT that part of the hereinabove described lands for additional road
right of way for Gibsonton Drive Extension as set forth in Order of Taking
recorded in O.R. Book 5222, Page 636, Public Records of Hillsborough County,
Florida.
EXHIBIT "D-10"
EXHIBIT "D-11"
PROPERTY DESCRIPTION
(Redwood Plaza)
That certain real property situated in the City of Salt Lake City and
County of Salt Lake, State of Utah, described as follows:
Beginning at a point that is North 47.68 feet and West 66.84 feet from a
monument at the intersection of Redwood Road and 700 North, said monument is
located South 89 deg. 51'52" East 1173.55 feet from a monument at the
intersection of Starcrest Drive and 700 North, said monument is also located
North 288.51 feet and West 89.35 feet from the South quarter corner of Section
27, Township 1 North, Range 1 West, Salt Lake Base and Meridian; thence North 44
deg. 12'39" East 12.89 feet; thence North 0 deg. 15'07" East 710.74 feet; thence
North 89 deg. 51'50" West 534.20 feet; thence South 0 deg. 15'07" West 382.04
feet; thence South 89 deg. 51'50" East 4.28 feet; thence South 0 deg. 42'24"
West 337.98 feet; thence South 89 deg. 51'50" East 523.66 feet to the point of
beginning.
EXHIBIT "D-11"
EXHIBIT "D-12"
PROPERTY DESCRIPTION
(Towne Center)
That certain real property situated in the City of Derby and County of
Sedgwick, State of Kansas, described as follows:
Lot 1, Block 1, K-15 Plaza Second Addition, Derby, Sedgwick County, Kansas.
EXHIBIT "D-12"
EXHIBIT "D-13"
PROPERTY DESCRIPTION
(Springwood Plaza)
That certain real property situated in the City of Dellwood and County
of St. Louis, State of Missouri, described as follows:
A parcel of ground in the Southwestern 1/4 of Section 6, Township 46 North,
Range 7 East, St. Louis County, Missouri, said parcel being more particularly
described as follows:
Beginning at the point of intersection of the Eastern line of Florissant Avenue
with the Northern line of property described in deed to John B. Parnello and
wife recorded in Book 4402 page 112, St. Louis County Recorder's Office; thence
along the Eastern line of Florissant Avenue the following courses and distances:
North 01 degrees 16 minutes East, 202.30 feet, North 06 degrees 58-1/2 minutes
East, 115.57 feet and North 01 degree 16 minutes East, 201.78 feet; thence
Southeastwardly 67.70 feet along a curve to the left having a radius of 75.00
feet to a point of tangency; thence South 82 degrees 36-1/4 minutes East, 64.92
feet; thence South 89 degrees 41 minutes East, 162.44 feet; thence North 01
degrees 16 minutes East, 200.00 feet; thence South 89 degrees 41 minutes East,
351.13 feet to the Western line of Dellwood Hills Plat No. 2; thence South 01
degree 16 minutes West, 675.30 feet along the Western line of Dellwood Hills
Plat No. 2 and along the Western line of Dellwood Hills to the Northern line of
said John B. Parnello property; thence North 89 degrees 41 minutes West, 645.13
feet along the Northern line of said John B. Parnello property to the Eastern
line of Florissant Avenue and the point of beginning.
EXHIBIT "D-13"
EXHIBIT "D-14"
PROPERTY DESCRIPTION
(Kendall Sunset)
That certain real property situated in the City of Miami and County of
Dade, State of Florida, described as follows:
Tract A, of NATIONAL SELF STORAGE, according to the Plat thereof, recorded in
Plat Book 128, Page 64, of the Public Records of Miami-Dade County, Florida.
Tax Folio Number: 30-4033-035-0010
EXHIBIT "D-14"
EXHIBIT "D-15"
PROPERTY DESCRIPTION
(Burbank Self Storage)
That certain real property situated in the City of Burbank and County of
Los Angeles, State of California, described as follows:
PARCEL 3, IN THE CITY OF BURBANK, IN THE COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS SHOWN ON PARCEL MAP 15782, FILED IN BOOK 165 PAGES 19 AND 20 OF
PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
SAID LAND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHERLY CORNER OF SAID PARCEL 3; THENCE SOUTH
48(degree)46'16" EAST A DISTANCE OF 327.25 FEET TO A POINT ON THE NORTHWESTERLY
RIGHT OF WAY LINE OF VERDUGO AVENUE; THENCE, ALONG SAID RIGHT OF WAY, SOUTH
41(degree)13'44" WEST, A DISTANCE OF 206.84 FEET TO THE BEGINNING OF A TANGENT
CURVE, CONCAVE NORTHERLY AND HAVING A RADIUS OF 150.00 FEET; THENCE ALONG SAID
CURVE, THROUGH A CENTRAL ANGLE OF 89(degree)59'06", A DISTANCE OF 23.56 FEET TO
A POINT ON THE NORTHEASTERLY RIGHT OF WAY LINE OF LAKE STREET; THENCE, ALONG
SAID RIGHT OF WAY, NORTH 48(degree)47'10" WEST, A DISTANCE OF 289.36 FEET;
THENCE, LEAVING SAID RIGHT OF WAY, NORTH 35(degree)20'11" EAST, A DISTANCE OF
223.09 FEET TO THE POINT OF BEGINNING.
EXHIBIT "D-15"
EXHIBIT "D-16"
PROPERTY DESCRIPTION
(Fountainbleau)
That certain real property situated in the City of Miami and County of
Dade, State of Florida, described as follows:
Tract D, of SECOND ADDITION TO EXPRESSWAY INDUSTRIAL PARK, according to the Plat
thereof, recorded in Plat Book 118, Page 25, of the Public Records of Miami-Dade
County, Florida.
Tax Folio No. 30-3033-014-00201
EXHIBIT "D-16"
EXHIBIT "D-17"
PROPERTY DESCRIPTION
(AAA Century Airport)
That certain real property situated in the City of Inglewood and County
of Los Angeles, State of California, described as follows:
LOTS 8, 9 AND THE WEST 50 FEET OF LOT 10 OF THE LOCKHAVEN TRACT, IN THE CITY OF
INGLEWOOD, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 17, PAGE(S) 87 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
THE ABOVE DESCRIBED PARCEL OF LAND IS MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF LOT 8 OF THE LOCKHAVEN TRACT, IN THE CITY
OF INGLEWOOD, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 17, PAGE 87 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY; THENCE ALONG THE NORTH LINE OF SAID LOT 8, SOUTH 89(degree) 57' 50"
EAST 250.00 FEET TO THE NORTHEAST CORNER OF THE WEST 50.00 FEET OF LOT 10 OF
SAID TRACT; THENCE ALONG THE EASTERLY LINE OF SAID WEST 50.00 FEET, SOUTH
00(degree) 00' 00" EAST 304.08 FEET THENCE NORTH 89(degree) 57' 50" WEST 250.00
FEET TO THE SOUTHWEST CORNER OF SAID LOT 8; THENCE ALONG THE WEST LINE OF SAID
LOT 8, NORTH 00(degree) 00' 00" WEST 304.08 FEET TO THE POINT OF BEGINNING.
EXHIBIT "D-17"
EXHIBIT "D-18"
PROPERTY DESCRIPTION
(AAA Sentry)
That certain real property situated in the City of North Lauderdale and
County of Broward, State of Florida, described as follows:
All that part of Tract 7 in Block 96 of PALM BEACH FARMS COMPANY PLAT NO. THREE,
according to the Plat thereof, as recorded in Plat Book 2, at Pages 45 through
54, inclusive, of the Public Records of Palm Beach County, Florida, described as
follows:
Beginning at the intersection of the North line of said Tract 7, and the West
right-of-way line of Sunshine State Parkway (300 feet right-of-way) thence North
89(degree) 08' 44" West, along the North line of said Tract 7, a distance of
352.84 feet to a point 237.78 feet East of (as measured along the North line) of
the Northwest corner of said Tract 7; thence South 0(degree) 51' 16" West a
distance of 300 feet; thence North 89(degree) 08' 44" West, along a line 300
feet South of (as measured at right angles) and parallel with the North line of
said Tract 7, a distance of 200 feet to a point on the proposed Easterly
non-vehicular access right-of-way line of State Road No. 7 (U.S. #441) and a
point on a curve; thence Southerly along said proposed Easterly non-vehicular
access right-of-way line and along a curve to the right whose tangent bears
South 01(degree) 00' 09" West; with a radius of 17,288.73 feet and a central
angle of 01(degree) 08' 55" an arc distance of 95.12 feet to a point; thence
South 80(degree) 52' 54" East, a distance of 225.98 feet to a point on the said
West right-of-way line of Sunshine State Parkway; thence North 38(degree) 30'
33" East along West right-of-way line a distance of 540.09 feet to the Point oF
Beginning.
N/K/A as a portion of Tract A, THE CUMMINGS PLAT NO. 1, according to the Plat
thereof, recorded in Plat Book 126, Page 35, of the Public Records of Broward
County, Florida.
Tax Folio NO. 49-42-07-09-0011.
EXHIBIT "D-18"
EXHIBIT "D-19"
PROPERTY DESCRIPTION
(Forest Hill)
That certain real property situated in the City of West Palm Beach and
County of Palm Beach, State of Florida, described as follows:
The South one-half (S 1/2) of the West one-half (W 1/2) of Lot 4, Block 4, LESS
the East 100 feet of the South 260 feet of the East one-half (E 1/2) of the West
one-half (W 1/2) of Lot 4, Block 4, all of the sub-division of Section 7,
Township 44 South, Range 43 East, according to the Palm Beach Plantations
Company Plat thereof on file in the Office of the Clerk of the Circuit Court, in
and for Palm Beach County, Florida, in Plat Book 10, Page 20, TOGETHER WITH the
West 12 feet of the South 600 feet of the East one-half (E 1/2) of the said Lot
4, Block 4, of Section 7, Township 44 South, Range 43 East, according to the
said Plat in Plat Book 10, Page 20, less and excepting therefrom the
rights-of-way of Davis Road and Forest Hill Boulevard as now laid out and in use
on the West 40 feet and the South 60 feet thereof; being more particularly
described as follows:
COMMENCE at the Southwest corner of Lot 4, Block 4, all of the Sub-Division of
SECTION 7, TOWNSHIP 44 SOUTH, RANGE 43 EAST, according to the PALM BEACH
PLANTATIONS COMPANY PLAT, thereof on file in the Office of the Clerk of the
Circuit Court, in and for Palm Beach County, Florida, in Plat Book 10, Page 20;
thence N 00(degree) 31' 45" W along the West boundary of said Lot 4, a distance
of 81.39 feet; thence N 89(degree) 28' 15" E, a distance of 40.04 feet to the
POINT OF BEGINNING; thence N 00(degree) 31' 45" W along the East Right-of-Way
line of Davis Road, a distance of 586.39 feet; thence S 87(degree) 25' 21" E, a
distance of 291.15 feet; thence S 00(degree) 09' 25" W along the East line of
the West 1/2 of said Lot 4, a distance of 70.08 feet; thence S 88(degree) 05'
30" E, a distance of 12.57 feet; thence S 00(degree) 30' 21" E, a distance of
540.78 feet to a point on the Northerly Right-of-Way line of Forest Hills
Boulevard; thence N 87(degree) 34' 29" W, along said North Right-of-Way line, a
distance of 11.99 feet; thence N 00(degree) 31' 35" W, a distance of 200.30
feet; thence N 87(degree) 20' 26" W, a distance of 100.72 feet; thence S
00(degree) 41' 29" E, a distance of 200.15 feet to a point on the aforementioned
Right-of-Way line of Forest Hills Boulevard; thence N 87(degree) 16' 01" W,
along said Right-of-Way line, a distance of 167.00 feet; thence continuing along
said Right-of-Way line, N 43(degree) 53' 32" W, a distance of 34.26 feet to the
POINT OF BEGINNING.
Tax Folio No. 00-43-44-07-00-000-52
EXHIBIT "D-19"
EXHIBIT "D-20"
PROPERTY DESCRIPTION
(Margate Self Storage)
That certain real property situated in the City of Margate and County
of Broward, State of Florida, described as follows:
Lot 6 of MEARS COMMERCIAL PARK, according to the Plat thereof, recorded in Plat
Book 107, Page 12, of the Public Records of Broward County, Florida; said lands
situate, lying and being in Broward County, Florida.
Tax Folio No. 8230-09-0060
EXHIBIT "D-20"
EXHIBIT "D-21"
PROPERTY DESCRIPTION
(Military Trail)
That certain real property situated in the City of West Palm Beach and
County of Palm Beach, State of Florida, described as follows:
A parcel of land lying in the SW 1/4 of the NW 1/4 of the SE 1/4 of Section 24,
Township 43 South, Range 42 East, Palm Beach County, Florida, being more
particularly described as follows:
COMMENCING at the Southwest corner of the said SW 1/4; thence North 01(degree)
23' 24" East, along the West line of said SW 1/4, a distance of 170.00 feet;
thence South 89(degree) 08' 36" East, along the North line of the South 170.0
feet of said SW 1/4, a distance of 60.00 feet to the East Right-of-Way line of
Military Trail and the POINT OF BEGINNING; thence continue South 89(degree) 08'
36" East, along the said North line of the South 170.00 feet, a distance of
210.00 feet; thence South 01(degree) 23' 24" West, along the East line of the
West 270.00 feet of said SW 1/4, a distance of 170.00 feet; thence South
89(degree) 08' 36" East, along the South line of said SW 1/4, a distance of
403.72 feet; thence North 01(degree) 21' 13" East, along the East line of said
SW 1/4, a distance of 490.02 feet; thence North 89(degree) 01' 48" West, along
the South line of the North 170.00 feet of said SW 1/4, a distance of 218.40
feet; thence South 00(degree) 51' 24" West, a distance of 220.45 feet; thence
North 89(degree) 08' 36" West, a distance of 397.05 feet to the said East
Right-of-Way of Military Trail; thence South 01(degree) 23' 24" West, along said
East right-of-way line, a distance of 100.00 feet to the POINT OF BEGINNING.
PARCEL 2 - EASEMENT ESTATE:
TOGETHER WITH a Non Exclusive Mutual Driveway Easement for pedestrian and
vehicular ingress and egress along part of a common property line as recorded in
Official Records Book 5087, Page 831 and as modified in Official Records Book
5126, Page 14, of the Public Records of Palm Beach County, Florida, more
particularly described as follows:
BEING a parcel of land lying in the Southeast one-quarter (SE 1/4) of Section
24, Township 43 South, Range 42 East, Palm Beach County, Florida, and being more
particularly described as follows:
COMMENCING at the South quarter corner of said Section 24; thence North
01(degree) 23' 24" East along the West line of said Southeast one-quarter (SE
1/4) of Section 24, a distance of 1493.28 feet; thence departing said West line,
South 88(degree) 36' 36" East, a distance of 60.00 feet to a point on the East
right-of-way line of Military Trail (S.R. 809), as now laid out and in use;
thence North 01(degree) 23' 24" East along said East right-of-way line, a
distance of 100.00 feet to the POINT OF BEGINNING of an Access Easement; thence
continue North 01(degree) 23' 24" East, a distance of 15.00 feet; thence South
89(degree) 08' 36" East, a distance of 13.63 feet to the beginning of a curve
concave to the Southwest
EXHIBIT "D-21" -- Page 1 of 2
having a radius of 46.00 feet and a central angle of 47(degree) 37' 49"; thence
Southeasterly along the arc of said curve, a distance of 38.24 feet; thence
North 89(degree) 08' 36" West, a distance of 47.76 feet to the POINT OF
BEGINNING.
The bearings shown herein are relative to an assumed meridian; the North/South
Mid-Section line of Section 24-43-42 is assumed to bear North 01(degree) 23' 24"
West.
EXHIBIT "D-21" -- Page 2 of 2
EXHIBIT "E"
DESCRIPTION OF FIDELITY FEDERAL GROUND LEASES
1. The leasehold estate and interest in the real property described as
Parcels 3, 4 and 5 on Exhibit "B" attached hereto, which leasehold estate and
interest was created by that certain Lease of Real Property dated May 12, 1965,
by and between Mitchell Land and Improvement Co., as lessor, and Fidelity
Federal Savings and Loan Association, as lessee, a short form of which was
recorded in Book M-2285, Page 23, Official Records of Los Angeles County,
California, as amended by an instrument entitled Amendment of Lease Description
recorded in Book M-2445, Page 583, said Official Records.
2. The leasehold estate and interest of Tenant (including an option to
purchase) in the real property described as Parcel 1 and 2 on Exhibit "B"
attached hereto, which leasehold estate and interest was created by that certain
Lease of Real Property dated August 1, 1965, by and between Clare D. Hamman, AKA
Clare Hamman and Helen S. Hamman, as lessor, and Fidelity Federal Savings and
Loan Association, as lessee, a short form of which was recorded in Book M-2341,
Page 3, Official Records of Los Angeles County, California, as amended by an
instrument entitled Amendment of Lease Description recorded in Book M-2447, Page
519, said Official Records.
3. The sub-leasehold estate and interest (including a right of first
refusal) in the real property described as Parcel 6 on Exhibit "B" attached
hereto, which sub-leasehold estate and interest was created by that certain
Sub-lease of Real Property dated February 28, 1975, between Fidelity Federal
Savings and Loan Association, as sub-lessor, and Wilshire Woods, Inc., as
sub-lessee, a short form of which was recorded in Book M-4934, Page 771,
Official Records of Los Angeles County, California.
4. The sub-leasehold estate and interest (including a right of first
refusal) in the real property described as Parcel 7 on Exhibit "B" attached
hereto, which sub-leasehold estate and interest was created by that certain
Sub-lease of Real Property dated February 28, 1975, between Fidelity Federal
Savings and Loan Association, as sub-lessor, and Wilshire Woods, Inc., as
sub-lessee, a short form of which was recorded in Book M-4934, Page 776,
Official Records of Los Angeles County, California.
EXHIBIT "E"
TABLE OF CONTENTS
Page
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ARTICLE 1 CERTAIN DEFINITIONS..........................................................................1
Section 1.1 Certain Definitions....................................................................1
ARTICLE 2 LOAN TERMS..................................................................................15
Section 2.1 The Loan Advances.....................................................................15
Section 2.2 Interest Rate; Late Charge............................................................18
Section 2.3 Terms of Payment......................................................................19
Section 2.4 Collateral; Releases of Collateral....................................................22
Section 2.5 Adjustments to Adjusted Loan Basis....................................................24
Section 2.6 Capital Adequacy; Increased Costs; Illegality.........................................24
ARTICLE 3 INSURANCE, CONDEMNATION, DEPOSITS AND RESERVES..............................................25
Section 3.1 Insurance.............................................................................25
Section 3.2 Casualty; Use and Application of Insurance Proceeds...................................27
Section 3.3 Condemnation..........................................................................30
Section 3.4 Deposits..............................................................................31
ARTICLE 4 ENVIRONMENTAL MATTERS.......................................................................32
Section 4.1 Certain Definitions...................................................................32
Section 4.2 Representations and Warranties on Environmental Matters...............................33
Section 4.3 Covenants on Environmental Matters....................................................34
Section 4.4 No Waiver.............................................................................36
ARTICLE 5 LEASING MATTERS.............................................................................36
Section 5.1 Representations and Warranties on Leases..............................................36
Section 5.2 General Lease Requirements............................................................37
Section 5.3 Covenants.............................................................................37
Section 5.4 Additional Covenants Regarding Material Leases........................................38
Section 5.5 Lender's Consent to Deviations........................................................38
Section 5.6 Security Deposits; Lease Buy Out Consideration........................................38
Section 5.7 Subordination Agreements; Tenant Estoppels............................................39
ARTICLE 6 REPRESENTATIONS AND WARRANTIES..............................................................39
Section 6.1 Partnership and Organizational Existence; Compliance with Law.........................40
Section 6.2 Partnership or Organizational Power; Authorization; Enforceable
Obligations...........................................................................40
Section 6.3 Ownership of Collateral; Liens........................................................40
Section 6.4 Condemnation..........................................................................41
Section 6.5 Casualty..............................................................................41
Section 6.6 Material Agreements...................................................................41
Section 6.7 Property Compliance...................................................................41
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Section 6.8 Access................................................................................41
Section 6.9 Utility Services......................................................................41
Section 6.10 Permits...............................................................................41
Section 6.11 No Default............................................................................41
Section 6.12 Other Ventures/Single Purpose Entity..................................................41
Section 6.13 Investment Company Act................................................................42
Section 6.14 Margin Regulations....................................................................42
Section 6.15 Taxes.................................................................................42
Section 6.16 ERISA.................................................................................42
Section 6.17 No Litigation.........................................................................43
Section 6.18 Brokers...............................................................................43
Section 6.19 Purchase Agreement....................................................................43
Section 6.20 Employment and Labor Agreements.......................................................43
Section 6.21 Liens.................................................................................43
Section 6.22 Full Disclosure.......................................................................43
Section 6.23 Property Documents....................................................................43
Section 6.24 Rent Roll.............................................................................44
Section 6.25 Ground Lease Representations..........................................................44
Section 6.26 Property Information..................................................................44
Section 6.27 Acquisition Cost and Equity Investment................................................44
ARTICLE 7 FINANCIAL REPORTING AND INFORMATION.........................................................44
Section 7.1 Financial Statements and Notices......................................................44
Section 7.2 Other Information.....................................................................46
Section 7.3 Audits................................................................................46
Section 7.4 Communication with Accountants........................................................46
ARTICLE 8 AFFIRMATIVE COVENANTS.......................................................................46
Section 8.1 Maintenance of Existence and Conduct of Business......................................47
Section 8.2 Payment of Indebtedness...............................................................47
Section 8.3 Books and Records.....................................................................48
Section 8.4 Litigation............................................................................48
Section 8.5 Compliance with Law...................................................................48
Section 8.6 Maintenance of Property...............................................................48
Section 8.7 Agreements............................................................................49
Section 8.8 Employee Plans........................................................................49
Section 8.9 Access................................................................................49
Section 8.10 Taxes on Payments or Security.........................................................49
Section 8.11 Enforcement...........................................................................51
Section 8.12 Intentionally Deleted.................................................................51
Section 8.13 Intentionally Deleted.................................................................51
Section 8.14 Maintenance of Representations; Supplemental Disclosure...............................51
Section 8.15 Property Documents; Asset Business Plans..............................................52
Section 8.16 Interest Rate Cap Agreement...........................................................52
Section 8.17 Indemnification.......................................................................52
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Section 8.18 Impaired Property.....................................................................52
Section 8.19 Property-Specific Covenants...........................................................53
ARTICLE 9 NEGATIVE COVENANTS..........................................................................53
Section 9.1 Mergers, Etc..........................................................................53
Section 9.2 Investments; Loans and Advances.......................................................53
Section 9.3 Indebtedness..........................................................................54
Section 9.4 Structure; Transfers..................................................................54
Section 9.5 Maintenance of Business...............................................................55
Section 9.6 Affiliate Transactions................................................................55
Section 9.7 Liens.................................................................................56
Section 9.8 Events of Default.....................................................................56
Section 9.9 Ground Leases.........................................................................56
Section 9.10 Material Agreements...................................................................56
ARTICLE 10 EVENTS OF DEFAULT; RIGHTS AND REMEDIES......................................................57
Section 10.1 Events of Default.....................................................................57
Section 10.2 Remedies..............................................................................59
Section 10.3 Waivers by Borrower...................................................................60
Section 10.4 Right of Set-Off......................................................................60
ARTICLE 11 MISCELLANEOUS...............................................................................60
Section 11.1 Notices...............................................................................60
Section 11.2 Amendments and Waivers................................................................62
Section 11.3 Limitation on Interest................................................................62
Section 11.4 Invalid Provisions....................................................................63
Section 11.5 Reimbursement of Expenses.............................................................63
Section 11.6 Approvals; Third Parties; Conditions..................................................64
Section 11.7 Lender Not in Control; No Partnership/Membership......................................64
Section 11.8 Time of the Essence...................................................................65
Section 11.9 Successors and Assigns................................................................65
Section 11.10 Renewal, Extension or Rearrangement...................................................66
Section 11.11 Waivers...............................................................................66
Section 11.12 Cumulative Rights.....................................................................66
Section 11.13 Construction..........................................................................66
Section 11.14 Phrases...............................................................................66
Section 11.15 Exhibits and Schedules................................................................67
Section 11.16 Titles of Articles, Sections and Subsections..........................................67
Section 11.17 Publicity.............................................................................67
Section 11.18 Survival..............................................................................67
Section 11.19 GOVERNING LAW.........................................................................67
Section 11.20 Entire Agreement......................................................................68
Section 11.21 Counterparts..........................................................................68
Section 11.22 WAIVER OF JURY TRIAL..................................................................68
Section 11.23 Authorized Signature..................................................................68
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Section 11.24 Power of Attorney.....................................................................68
Section 11.25 ACKNOWLEDGMENT BY WHITEHALL...........................................................69
ARTICLE 12 LIMITATIONS ON LIABILITY....................................................................69
Section 12.1 Limitation on Liability...............................................................69
Section 12.2 Limitation on Liability of Lender's Officers, Employees, Etc..........................70
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SCHEDULES
SCHEDULE 1.1(A) - PROPERTY INFORMATION
SCHEDULE 1.1(B) - BASIS ALLOCATIONS
SCHEDULE 2.1 - ADVANCE CONDITIONS
SCHEDULE 2.1(5) - WORKING CAPITAL BUDGETS FOR PROPERTIES
SCHEDULE 4.2 - ENVIRONMENTAL REPORTS
SCHEDULE 5.1(A) - TENANT DELINQUENCIES
SCHEDULE 5.1(B) - NOTICES OF TERMINATION OR DEFAULT
SCHEDULE 5.1(C) - PURCHASE OPTIONS
SCHEDULE 5.1(D) - LEASE TERMINATION RIGHTS
SCHEDULE 5.1(E) - LEASING COMMISSIONS OWING
SCHEDULE 5.1(F) - PREPAID RENTS
SCHEDULE 6.4 - CONDEMNATION PROCEEDINGS
SCHEDULE 6.5 - CASUALTIES AND FLOOD ZONE PROPERTIES
SCHEDULE 6.6 - MATERIAL AGREEMENTS
SCHEDULE 6.7 - PROPERTY COMPLIANCE
SCHEDULE 6.17 - LITIGATION
SCHEDULE 6.19 - CLAIMS UNDER PURCHASE AGREEMENT
SCHEDULE 6.27 - ACQUISITION COST AND EQUITY INVESTMENT
SCHEDULE 8.19 - PROPERTY-SPECIFIC COVENANTS
SCHEDULE 11.23 - AUTHORIZED SIGNATORIES
SCHEDULE 11.25 - SURETYSHIP PROVISIONS
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EXHIBITS
EXHIBIT "A" - FORM OF NOTICE OF ADDITIONAL ADVANCE
EXHIBIT "B" - FORM OF NOTICE TO DEPOSITORY
EXHIBIT "C" - FORM OF COLLATERAL ASSIGNMENT OF INTEREST RATE CAP
AGREEMENT
EXHIBIT "D-1" - PROPERTY DESCRIPTION (Century Park)
EXHIBIT "D-2" - PROPERTY DESCRIPTION (Kellogg Office)
EXHIBIT "D-3" - PROPERTY DESCRIPTION (One Corporate Center I)
EXHIBIT "D-4" - PROPERTY DESCRIPTION (Westwood Office)
EXHIBIT "D-5" - PROPERTY DESCRIPTION (One Corporate Center III)
EXHIBIT "D-6" - PROPERTY DESCRIPTION (La Plaza Center)
EXHIBIT "D-7" - PROPERTY DESCRIPTION (Continental Plaza)
EXHIBIT "D-8" - PROPERTY DESCRIPTION (Fidelity Federal)
EXHIBIT "D-9" - PROPERTY DESCRIPTION (Northwest Plaza)
EXHIBIT "D-10" - PROPERTY DESCRIPTION (River Bay Plaza)
EXHIBIT "D-11" - PROPERTY DESCRIPTION (Redwood Plaza)
EXHIBIT "D-12" - PROPERTY DESCRIPTION (Towne Center)
EXHIBIT "D-13" - PROPERTY DESCRIPTION (Springwood Plaza)
EXHIBIT "D-14" - PROPERTY DESCRIPTION (Kendall Sunset)
EXHIBIT "D-15" - PROPERTY DESCRIPTION (Burbank Self Storage)
EXHIBIT "D-16" - PROPERTY DESCRIPTION (Fountainbleau)
EXHIBIT "D-17" - PROPERTY DESCRIPTION (AAA Century Airport)
EXHIBIT "D-18" - PROPERTY DESCRIPTION (AAA Sentry)
EXHIBIT "D-19" - PROPERTY DESCRIPTION (Forest Hill)
EXHIBIT "D-20" - PROPERTY DESCRIPTION (Margate Self Storage)
EXHIBIT "D-21" - PROPERTY DESCRIPTION (Military Trail)
EXHIBIT "E" - DESCRIPTION OF FIDELITY FEDERAL GROUND LEASES
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LIST OF DEFINED TERMS
Acquisition Advance............................................................1
Acquisition Advance Termination Date...........................................1
Additional Properties..........................................................1
Adjusted Annual Debt Service...................................................1
Adjusted Loan Basis............................................................2
Adjusted Operating Cash Flow...................................................2
Advance ......................................................................2
Affiliate......................................................................3
Agreement......................................................................3
Agreement Regarding Management Agreement.......................................3
Ancillary Agreements...........................................................3
Applicable Rate................................................................2
Approved Plans.................................................................3
Architect......................................................................3
Asset Business Plan............................................................3
Asset Management Agreement.....................................................3
Asset Management Fee...........................................................3
Asset Manager..................................................................3
Assignment of Leases...........................................................3
Borrower ......................................................................1
Borrower Party.................................................................3
Borrowing Date Certificate.....................................................3
British Banker Association Interest Settlement Rates...........................9
Business Day...................................................................4
Capital Expenditures...........................................................4
Capital Lease..................................................................4
Capital Lease Obligation.......................................................4
Capital Transaction............................................................4
Cash On Cash Limit.............................................................4
Cash On Cash Return............................................................4
Charges ......................................................................5
Charges Account................................................................5
Closing Date...................................................................5
Code ......................................................................5
Collateral.....................................................................5
Collateral Assignment of Contracts.............................................5
Collateral Assignment of Interest Rate Cap Agreement...........................5
Collateral Documents...........................................................5
Complete Taking................................................................5
Contract Rate..................................................................5
Debt Service Coverage Ratio....................................................6
Debt Service Coverage Ratio Limit..............................................6
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Deed of Trust..................................................................6
Default Property...............................................................6
Default Rate...................................................................6
Discounted Funding Amount.....................................................23
Discounted Release Amount.....................................................22
Early Termination Date.........................................................6
Environmental Laws.............................................................6
Environmental Liabilities and Costs............................................6
Environmental Site Assessment..................................................6
ERISA ......................................................................6
Eurodollar Business Day........................................................9
Event of Default...............................................................7
Extension Notice...............................................................7
Extension Period..............................................................19
Federal Reserve Board..........................................................7
Fidelity Federal Ground Leases.................................................7
Fidelity Federal Property......................................................7
Fiscal Year....................................................................7
GAAP ......................................................................7
GECC ......................................................................7
Governmental Authority.........................................................7
Gross Receipts.................................................................7
Guaranteed Indebtedness........................................................8
Hazardous Materials............................................................8
Hazardous Substances Indemnity Agreement.......................................8
Holding Company................................................................8
Holding Company Operating Agreement...........................................54
Impaired Property..............................................................8
Indebtedness...................................................................8
Initial Advance................................................................8
Initial Properties.............................................................9
Interest Payment Date..........................................................9
IRC ......................................................................9
IRS ......................................................................9
Laws ......................................................................9
Lease Buy Out Consideration....................................................9
Leases ......................................................................9
Leasing Costs..................................................................9
Lender ......................................................................9
LIBOR Rate.....................................................................9
Lien ......................................................................9
Loan .....................................................................10
Loan Documents................................................................10
Major Work....................................................................10
Material Adverse Effect.......................................................10
-viii-
Material Agreement............................................................10
Material Lease................................................................10
Material Leases...............................................................38
Maturity Date.................................................................10
Maximum Liability.............................................................10
Maximum Loan Amount...........................................................10
McNeil .....................................................................10
Net Capital Proceeds..........................................................11
New Holding Company...........................................................55
Non-Storage Leases............................................................11
Note .....................................................................11
Notice of Additional Advance..................................................11
Obligations...................................................................11
Operating Cash Flow...........................................................11
Operating Expenses............................................................11
Other Taxes...................................................................12
Partial Release Notice........................................................12
Partnership Agreement.........................................................12
Permitted Encumbrances........................................................12
Person .....................................................................12
Plan .....................................................................13
Potential Default.............................................................13
Properties....................................................................13
Property Basis................................................................13
Property Documents............................................................13
Purchase Agreement............................................................13
Release .....................................................................13
Release Payment...............................................................13
Remedial Action...............................................................13
Reserves .....................................................................13
Security Deposits.............................................................13
Seller .....................................................................13
Shareholder Litigation........................................................14
State .....................................................................14
Storage Properties............................................................14
Taxes .....................................................................14
Tenant .....................................................................14
Tenant Allowances.............................................................14
Tenant Improvements...........................................................14
Term .....................................................................14
Title Company.................................................................14
Title Policy..................................................................14
To Borrower's Knowledge.......................................................14
Whitehall.....................................................................15
Whitehall XII.................................................................15
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Whitehall Indemnity...........................................................15
Whitehall Net Worth...........................................................15
Work..........................................................................15
Working Capital Advance.......................................................15
Working Capital Advance Allocation............................................15
Working Capital Budget........................................................15
SCHEDULE 2.1
Credit Approval Date...........................................................1
SCHEDULE 11.25
Nonrecourse Carve-Outs.........................................................1
Third Party Obligor............................................................1
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