Exhibit 10.2
LOAN AGREEMENT
Dated as of August 4, 2005
Between
YASKY LLC,
as Borrower
And
LASALLE BANK NATIONAL ASSOCIATION,
as Lender
TABLE OF CONTENTS
Page
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ARTICLE 1 - DEFINITIONS; PRINCIPLES OF CONSTRUCTION...................... 1
SECTION 1.1 Definitions........................................... 1
SECTION 1.2 Principles of Construction............................ 19
ARTICLE 2 - GENERAL TERMS................................................ 19
SECTION 2.1 Loan Commitment; Disbursement to Borrower............. 19
SECTION 2.2 Interest; Loan Payments; Late Payment Charge.......... 20
SECTION 2.3 Prepayments........................................... 22
SECTION 2.4 Defeasance............................................ 23
SECTION 2.5 Release of Property................................... 25
SECTION 2.6 Manner of Making Payments; Cash Management............ 27
SECTION 2.7 Substitute Property................................... 28
ARTICLE 3 - CONDITIONS PRECEDENT......................................... 33
SECTION 3.1 Conditions Precedent to Closing....................... 33
SECTION 3.2 Loan Agreement and Note............................... 34
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES............................... 37
SECTION 4.1 Borrower Representations.............................. 37
SECTION 4.2 Survival of Representations........................... 49
ARTICLE 5 - BORROWER COVENANTS........................................... 49
SECTION 5.1 Affirmative Covenants................................. 49
SECTION 5.2 Negative Covenants.................................... 58
SECTION 5.3 Traded Shares......................................... 63
ARTICLE 6 - INSURANCE; CASUALTY; CONDEMNATION; REQUIRED REPAIRS.......... 64
SECTION 6.1 Insurance............................................. 68
SECTION 6.2 Casualty.............................................. 68
SECTION 6.3 Condemnation.......................................... 68
SECTION 6.4 Restoration........................................... 68
ARTICLE 7 - RESERVE FUNDS................................................ 73
SECTION 7.1 Required Repair Funds................................. 73
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SECTION 7.2 Tax and Insurance Escrow Fund......................... 74
SECTION 7.3 Replacements and Replacement Reserve.................. 75
SECTION 7.4 Intentionally Deleted................................. 79
SECTION 7.5 Intentionally Deleted................................. 80
SECTION 7.6 Reserve Funds, Generally.............................. 80
ARTICLE 8 - DEFAULTS..................................................... 81
SECTION 8.1 Event of Default...................................... 81
SECTION 8.2 Remedies.............................................. 84
SECTION 8.3 Remedies Cumulative; Waivers.......................... 85
ARTICLE 9 - SPECIAL PROVISIONS........................................... 85
SECTION 9.1 Sale of Notes and Securitization...................... 85
SECTION 9.2 Securitization Indemnification........................ 87
SECTION 9.3 Intentionally Deleted................................. 89
SECTION 9.4 Exculpation........................................... 89
SECTION 9.5 Management Agreement.................................. 91
SECTION 9.6 Servicer.............................................. 92
SECTION 9.7 Restructuring of Mortgage and/or Mezzanine Loan....... 92
ARTICLE 10 - MISCELLANEOUS............................................... 94
SECTION 10.1 Survival.............................................. 94
SECTION 10.2 Lender's Discretion................................... 95
SECTION 10.3 Governing Law......................................... 95
SECTION 10.4 Modification, Waiver in Writing....................... 96
SECTION 10.5 Delay Not a Waiver.................................... 96
SECTION 10.6 Notices............................................... 97
SECTION 10.7 Trial by Jury......................................... 98
SECTION 10.8 Headings.............................................. 98
SECTION 10.9 Severability.......................................... 98
SECTION 10.10 Preferences........................................... 98
SECTION 10.11 Waiver of Notice...................................... 98
SECTION 10.12 Remedies of Borrower.................................. 99
SECTION 10.13 Expenses; Indemnity................................... 99
SECTION 10.14 Schedules Incorporated................................ 100
SECTION 10.15 SeOffsets, Counterclaims and Defenses................. 100
SECTION 10.16 No Joint Venture or Partnership; No Third Party
Beneficiaries......................................... 101
SECTION 10.17 Publicity............................................. 101
SECTION 10.18 Cross-Default; Cross-Collateralization; Waiver of
Marshalling of Assets................................. 101
SECTION 10.19 Waiver of Counterclaim................................ 102
SECTION 10.20 Conflict; Construction of Documents; Reliance......... 102
SECTION 10.21 Brokers and Financial Advisors........................ 103
SECTION 10.22 Prior Agreements...................................... 103
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SCHEDULES
Schedule I - Properties - Allocated Loan Amounts
Schedule II - O&M Program Properties
Schedule 4.1.1 - Organizational Chart
Schedule 4.1.4 - Litigation
Schedule 4.1.5 - Material Agreements
Schedule 4.1.26 - Major Leases
Schedule 4.1.30 - Non-Consolidation Opinion
Schedule 4.1.31 - Properties Not Operated as a U-Store-It Facility
Schedule 7.1.1 - Required Repairs
Schedule 7.3.2 - Replacement Reserves
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LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of August 4, 2005 (as amended, restated,
replaced, supplemented or otherwise modified from time to time, this
"AGREEMENT"), between LASALLE BANK NATIONAL ASSOCIATION, a national banking
association having an address at 135 South LaSalle Street, Suite 1225, Chicago,
Illinois 60603 ("LENDER") and YASKY LLC, a Delaware limited liability company,
having an address at 6745 Engle Road, Suite 300, Middleburg Heights, Ohio 44130
("BORROWER").
WITNESSETH:
WHEREAS, Borrower desires to obtain the Loan (as hereinafter defined) from
Lender; and
WHEREAS, Lender is willing to make the Loan to Borrower, subject to and in
accordance with the terms of this Agreement and the other Loan Documents (as
hereinafter defined).
NOW, THEREFORE, in consideration of the making of the Loan by Lender and
the covenants, agreements, representations and warranties set forth in this
Agreement, the parties hereto hereby covenant, agree, represent and warrant as
follows:
ARTICLE 1 - DEFINITIONS; PRINCIPLES OF CONSTRUCTION
SECTION 1.1 DEFINITIONS.
For all purposes of this Agreement, except as otherwise expressly required
or unless the context clearly indicates a contrary intent:
"ACCEPTABLE ACCOUNTANT" shall mean a "Big Four" accounting firm or other
independent certified public accountant acceptable to Lender.
"ACCOUNTS" shall have the meaning set forth in the Cash Management
Agreement.
"AFFILIATE" shall mean, as to any Person, any other Person that, directly
or indirectly, is in control of, is controlled by or is under common control
with such Person or is a director or officer of such Person or of an Affiliate
of such Person.
"AGENT" shall have the meaning set forth in the Cash Management Agreement.
"ALLOCATED LOAN AMOUNT" shall mean, for an Individual Property, the amount
set forth on Schedule I attached hereto.
"ALTA" shall mean American Land Title Association or any successor thereto.
"ANNUAL BUDGET" shall mean the operating budget, including all planned
capital expenditures, for the Properties prepared by Borrower for the applicable
Fiscal Year or other period.
"APPLICABLE INTEREST RATE" shall mean 4.960% per annum.
"APPROVED APPRAISAL" shall mean, with respect to an Individual Property, an
appraisal of such Individual Property (i) executed and delivered to Lender by a
qualified MAI appraiser having no direct or indirect interest in such Individual
Property or any loan secured in whole or in part thereby and whose compensation
is not affected by the approval or disapproval of such appraisal by Lender; (ii)
addressed to Lender and its successors and assigns; (iii) satisfying the
requirements of the Federal National Mortgage Association or the Federal Home
Loan Mortgage Corporation and Title XI of the Federal Institutions Reform,
Recovery and Enforcement Act of 1989 and the regulations promulgated thereunder,
all as in effect on the date of such calculation, with respect to such appraisal
and the appraiser making such appraisal and (iv) otherwise satisfactory to
Lender in all respects in Lender's sole discretion.
"ASSIGNMENT OF LEASES" shall mean, with respect to each Individual
Property, that certain first priority Assignment of Leases and Rents, dated as
of the date hereof, from Borrower, as assignor, to Lender, as assignee,
assigning to Lender all of Borrower's interest in and to the Leases and Rents of
such Individual Property as security for the Loan, as the same may be amended,
restated, replaced, supplemented or otherwise modified from time to time.
"ASSIGNMENT OF MANAGEMENT AGREEMENT" shall mean that certain Assignment of
Management Agreement and Subordination of Management Fees dated as of the date
hereof among Lender, Borrower and Manager, as the same may be amended, restated,
replaced, supplemented or otherwise modified from time to time.
"AWARD" shall mean any compensation paid by any Governmental Authority in
connection with a Condemnation in respect of all or any part of any Individual
Property.
"BANKRUPTCY CODE" shall mean Title 11 U.S.C. Section 101 et seq., and the
regulations adopted and promulgated pursuant thereto (as the same may be amended
from time to time).
"BASIC CARRYING COSTS" shall mean, with respect to each Individual
Property, the sum of the following costs associated with such Individual
Property for the relevant Fiscal Year or payment period: (i) Taxes and (ii)
Insurance Premiums.
"BORROWER" shall mean YASKY LLC, a Delaware limited liability company,
together with its successors and permitted assigns.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or any
other day on which national banks in New York, New York are not open for
business.
"CAPITAL EXPENDITURES" shall mean, for any period, the amount expended for
items capitalized under GAAP (including expenditures for building improvements
or major repairs, leasing commissions and tenant improvements).
"CASH MANAGEMENT AGREEMENT" shall mean that certain Cash Management
Agreement by and among Borrower, Manager, Agent and Lender dated the date
hereof, as the same may be amended, restated, replaced, supplemented or
otherwise modified from time to time.
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"CASUALTY" shall have the meaning specified in Section 6.2 hereof.
"CASUALTY CONSULTANT" shall have the meaning set forth in Section
6.4(b)(iii) hereof.
"CASUALTY RETAINAGE" shall have the meaning set forth in Section 6.4(b)(iv)
hereof.
"CLOSING DATE" shall mean the date of the funding of the Loan.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, as it may
be further amended from time to time, and any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
"CONDEMNATION" shall mean a temporary or permanent taking by any
Governmental Authority as the result or in lieu or in anticipation of the
exercise of the right of condemnation or eminent domain, of all or any part of
any Individual Property, or any interest therein or right accruing thereto,
including any right of access thereto or any change of grade affecting such
Individual Property or any part thereof.
"CONDEMNATION PROCEEDS" shall have the meaning set forth in Section 6.4(b).
"CREDITORS RIGHTS LAWS" shall mean with respect to any Person, any existing
or future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, conservatorship, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to its debts or debtors.
"DEBT" shall mean the outstanding principal amount set forth in, and
evidenced by, this Agreement and the Note together with all interest accrued and
unpaid thereon and all other sums (including the Yield Maintenance Premium) due
to Lender in respect of the Loan under the Note, this Agreement, the Security
Instruments or any other Loan Document.
"DEBT SERVICE" shall mean, with respect to any particular period of time,
all principal and/or interest payments under the Note.
"DEBT SERVICE COVERAGE RATIO" shall mean a ratio for the applicable period
in which:
(a) the numerator is the Net Operating Income (excluding interest on
credit accounts) for such period as set forth in the statements
required hereunder, without deduction for (i) actual management
fees incurred in connection with the operation of the Properties,
or (ii) amounts paid to the Reserve Funds, less (A) management
fees equal to the greater of (1) assumed management fees of four
percent (4%) of Gross Income from Operations or (2) the actual
management fees incurred, and (B) actual Replacement Reserve Fund
contributions equal to an annual amount of $0.15 per square foot
of gross leaseable area at the Properties; and
(b) the denominator is the aggregate amount of principal and interest
due and payable on the Note or, in the event a Defeasance Event
has occurred, the Undefeased Note, for such period.
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"DEFAULT" shall mean the occurrence of any event hereunder or under any
other Loan Document which, but for the giving of notice or passage of time, or
both, would be an Event of Default.
"DEFAULT RATE" shall mean, with respect to the Loan, a rate per annum equal
to the lesser of (a) the Maximum Legal Rate or (b) three percent (3%) above the
Applicable Interest Rate.
"DEFEASANCE DATE" shall have the meaning set forth in Section 2.4.1(a)(i)
hereof.
"DEFEASANCE DEPOSIT" shall mean an amount equal to the remaining principal
amount of the Note or the Defeased Note, as applicable, the Yield Maintenance
Premium, any costs and expenses incurred or to be incurred in the purchase of
U.S. Obligations necessary to meet the Scheduled Defeasance Payments and any
revenue, documentary stamp or intangible taxes or any other tax or charge due in
connection with the transfer of the Note or the Defeased Note, as applicable,
the creation of the Defeased Note and the Undefeased Note, if applicable, or
otherwise required to accomplish the agreements of Sections 2.3 and 2.4 hereof.
"DEFEASANCE EVENT" shall have the meaning set forth in Section 2.4.1(a)
hereof.
"DEFEASED NOTE" shall have the meaning set forth in Section 2.4.1(a)(v)
hereof.
"DISCLOSURE DOCUMENT" shall have the meaning set forth in Section 9.2(a)
hereof.
"ELIGIBLE ACCOUNT" shall mean a separate and identifiable account from all
other funds held by the holding institution that is either (a) an account or
accounts maintained with a Federal or State-chartered depository institution or
trust company which complies with the definition of Eligible Institution or (b)
a segregated trust account or accounts maintained with a Federal or
State-chartered depository institution or trust company acting in its fiduciary
capacity which, in the case of a State-chartered depository institution or trust
company, is subject to regulations substantially similar to 12 C.F.R. Section
9.10(b), having in either case a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal and State
authority. An Eligible Account will not be evidenced by a certificate of
deposit, passbook or other instrument.
"ELIGIBLE INSTITUTION" shall mean a depository institution or trust company
insured by the Federal Deposit Insurance Corporation, the short term unsecured
debt obligations or commercial paper of which are rated at least A-1 by S&P, P-1
by Moody's and F-1+ by Fitch in the case of accounts in which funds are held for
30 days or less (or, in the case of accounts in which funds are held for more
than 30 days, the long term unsecured debt obligations of which are rated at
least "AA" by Fitch and S&P and "Aa2" by Moody's).
"EMBARGOED PERSON" shall have the meaning set forth in Section 4.1.44
hereof.
"ENVIRONMENTAL INDEMNITY" shall mean that certain Environmental Indemnity
Agreement executed by Borrower and Guarantor in connection with the Loan for the
benefit of Lender, as the same may be amended, restated, replaced, supplemented
or otherwise modified from time to time.
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"ENVIRONMENTAL LAWS" shall have the meaning set forth in the Environmental
Indemnity.
"ENVIRONMENTAL LIENS" shall have the meaning set forth in Section 5.1.22
hereof.
"ENVIRONMENTAL REPORT" shall have the meaning set forth in Section 4.1.40
hereof.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"EVENT OF DEFAULT" shall have the meaning set forth in Section 8.1(a)
hereof.
"EXCHANGE ACT" shall have the meaning set forth in Section 9.2(a) hereof.
"FISCAL YEAR" shall mean each twelve (12) month period commencing on
January 1 and ending on December 31 during each year of the term of the
Loan.
"FITCH" shall mean Fitch IBCA, Inc.
"GAAP" shall mean generally accepted accounting principles in the United
States of America as of the date of the applicable financial report consistently
applied.
"GOVERNMENTAL AUTHORITY" shall mean any court, board, agency, commission,
office or other authority of any nature whatsoever for any governmental unit
(Federal, State, county, district, municipal, city or otherwise) whether now or
hereafter in existence.
"GROSS INCOME FROM OPERATIONS" shall mean all income, computed in
accordance with GAAP, derived from the ownership and operation of the Properties
from whatever source, including, but not limited to, Rents, utility charges,
escalations, forfeited security deposits, interest on credit accounts, service
fees or charges, license fees, parking fees, rent concessions or credits, and
other required pass-throughs but excluding sales, use and occupancy or other
taxes on receipts required to be accounted for by Borrower to any Governmental
Authority, refunds and uncollectible accounts, sales of furniture, fixtures and
equipment, Insurance Proceeds (other than business interruption or other loss of
income insurance), Awards, unforfeited security deposits, utility and other
similar deposits and any disbursements to Borrower from the Reserve Funds, all
as approved by Lender. Gross income shall not be diminished as a result of the
Security Instrument or the creation of any intervening estate or interest in the
Properties or any part thereof.
"GUARANTOR" shall mean U-Store-It, L.P., a Delaware limited partnership.
"GUARANTY" shall mean that certain Guaranty executed by Guarantor, dated
the date hereof, as the same may be amended, restated, replaced, supplemented,
or otherwise modified from time to time.
"HAZARDOUS SUBSTANCES" shall have the meaning set forth in the
Environmental Indemnity.
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"IMPROVEMENTS" shall have the meaning set forth in the granting clause of
the related Security Instrument with respect to each Individual Property.
"INDEBTEDNESS" of a Person, at a particular date, means the sum (without
duplication) at such date of (a) indebtedness or liability for borrowed money;
(b) obligations evidenced by bonds, debentures, notes, or other similar
instruments; (c) obligations for the deferred purchase price of property or
services (including trade obligations); (d) obligations under letters of credit;
(e) obligations under acceptance facilities; (f) all guaranties, endorsements
(other than for collection or deposit in the ordinary course of business) and
other contingent obligations to purchase, to provide funds for payment, to
supply funds, to invest in any Person or entity, or otherwise to assure a
creditor against loss; and (g) obligations secured by any Liens, whether or not
the obligations have been assumed.
"INDEMNIFIED PARTIES" shall mean Lender, any Person who is or will have
been involved in the origination of the Loan, any Person who is or will have
been involved with the servicing of the Loan, any Person in whose name the
encumbrance created by the Security Instrument is or will have been recorded,
Persons and entities who may hold or acquire or will have held a full or partial
interest in the Loan (including, but not limited to, Investors or prospective
Investors in the Securities, as well as custodians, trustees and other
fiduciaries who hold or have held a full or partial interest in the Loan for the
benefit of third parties) as well as the respective directors, officers,
shareholders, partners, employees, agents, servants, representatives,
contractors, subcontractors, affiliates, subsidiaries, participants, successors
and assigns of any and all of the foregoing (including but not limited to any
other Person who holds or acquires or will have held a participation or other
full or partial interest in the Loan or the Properties, whether during the term
of the Loan or as a part of or following a foreclosure of the Loan and
including, but not limited to, any successors by merger, consolidation or
acquisition of all or a substantial portion of Indemnitee's assets and
business).
"INDEMNIFIED TAXES" shall mean any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority.
"INDEPENDENT DIRECTOR" shall have the meaning set forth in Section
4.1.30(p) hereof.
"INDIVIDUAL LTV RATIO" shall mean, with respect to an Individual Property,
the ratio of (a) the Allocated Loan Amount for such Individual Property to (b)
fair market value of such Individual Property set forth in an Approved
Appraisal.
"INDIVIDUAL PROPERTY" shall mean each parcel of real property, the
Improvements thereon and all personal property owned by Borrower and encumbered
by a Security Instrument, together with all rights pertaining to such property
and Improvements, as more particularly described in the granting clauses of each
Security Instrument and referred to therein as the "Property"; a list of all
Individual Properties on the date hereof appears on Schedule I attached hereto.
"INSOLVENCY OPINION" shall mean that certain opinion letter dated the date
hereof delivered by Hogan & Hartson L.L.P. in connection with the Loan.
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"INSURANCE PREMIUMS" shall have the meaning set forth in Section 6.1(b)
hereof.
"INSURANCE PROCEEDS" shall have the meaning set forth in Section 6.4(b)
hereof.
"INTELLECTUAL PROPERTY" shall mean patents, licenses, franchises,
trademarks, trademark rights, trade names, trade name rights, trade secrets and
copyrights.
"INTEREST PERIOD" shall mean, with respect to the application of the
Monthly Debt Service Payment Amount paid by Borrower on a Payment Date, the
period commencing on the first day of the prior calendar month to and including
the last day of the prior calendar month.
"INVESTOR" shall mean each purchaser, transferee, assignee, servicer,
participant or investor in such Securities or any credit rating agency rating
such Securities.
"LEASE" shall mean any lease, sublease or subsublease, letting, license,
concession or other agreement (whether written or oral and whether now or
hereafter in effect) pursuant to which any Person is granted a possessory
interest in, or right to use or occupy all or any portion of any space in any
Individual Property and every modification, amendment or other agreement
relating to such lease, sublease, subsublease, or other agreement entered into
in connection with such lease, sublease, subsublease, or other agreement and
every guarantee of the performance and observance of the covenants, conditions
and agreements to be performed and observed by the other party thereto.
"LEASING RESERVE ACCOUNT" shall have the meaning set forth in the Cash
Management Agreement.
"LEASING RESERVE FUND" shall have the meaning set forth in Section 7.5.1
hereof.
"LEASE TERMINATION PAYMENTS" shall mean all payments made to Borrower in
connection with any termination, cancellation, surrender, sale or other
disposition of any Lease.
"LEGAL REQUIREMENTS" shall mean, with respect to each Individual Property,
all Federal, State, county, municipal and other governmental statutes, laws,
rules, orders, regulations, ordinances, judgments, decrees and injunctions of
Governmental Authorities affecting such Individual Property or any part thereof,
or the construction, use, alteration or operation thereof, or any part thereof,
whether now or hereafter enacted and in force, and all permits, licenses and
authorizations and regulations relating thereto, and all covenants, agreements,
restrictions and encumbrances contained in any instruments, either of record or
known to Borrower, at any time in force affecting such Individual Property or
any part thereof, including, without limitation, any which may (a) require
repairs, modifications or alterations in or to such Individual Property or any
part thereof, or (b) in any way limit the use and enjoyment thereof.
"LASALLE" shall have the meaning set forth in Section 9.2(b) hereof.
"LASALLE GROUP" shall have the meaning set forth in Section 9.2(b) hereof.
"LENDER" shall mean LaSalle Bank National Association, a national banking
association, together with its successors and assigns.
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"LIABILITIES" shall have the meaning set forth in Section 9.2(b) hereof.
"LICENSES" shall have the meaning set forth in Section 4.1.22 hereof.
"LIEN" shall mean, with respect to an Individual Property, any mortgage,
deed of trust, lien, pledge, hypothecation, assignment, security interest, or
any other encumbrance (but excluding any easements permitted by Section 5.2.13
hereof), charge or transfer of, on or affecting Borrower, the related Individual
Property, any portion thereof or any interest therein, including, without
limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing, the filing of any financing statement, and mechanic's, materialmen's
and other similar liens and encumbrances.
"LOAN" shall mean the loan made by Lender to Borrower pursuant to this
Agreement.
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the Note, the
Security Instrument, the Assignment of Leases, the Environmental Indemnity, the
Assignment of Management Agreement, the Cash Management Agreement and all other
documents executed and/or delivered in connection with the Loan.
"LOAN TO VALUE RATIO" shall mean, as of the date of its calculation, the
ratio of (i) the sum of the outstanding principal amount of the Loan as of the
date of such calculation to (ii) the most recent appraised value of the
Properties (according to the most recent Approved Appraisal available to
Lender).
"LOCKBOX ACCOUNT" shall mean the account, if any, specified in the Cash
Management Agreement for deposit of Rents and other receipts from the
Properties.
"MAJOR LEASE" shall mean any Lease which together with all other Leases to
the same tenant and to all Affiliates of such tenant, (i) provides for rental
income representing ten percent (10%) or more of the total rental income for the
applicable Individual Property; or (ii) covers (A) ten percent (10%) or more, or
(B) 4,000 square feet or more, of the total leaseable area of the related
Individual Property.
"MANAGEMENT AGREEMENT" shall mean, with respect to any Individual Property,
the management agreement entered into by and between Borrower and the Manager,
pursuant to which the Manager is to provide management and other services with
respect to such Individual Property.
"MANAGER" shall mean YSI Management LLC, a Delaware limited liability
company, or, if the context requires, a Qualifying Manager who is managing the
Properties or any Individual Property in accordance with the terms and
provisions of this Agreement.
"MATERIAL ADVERSE EFFECT" shall mean any condition which causes or
continues the occurrence of an Event of Default or has a material adverse effect
upon (i) the business, operations, properties, assets, prospects, corporate
structure or condition (financial or otherwise) of Borrower or any Guarantor,
individually or taken as a whole, (ii) the ability of Borrower or
8
any Guarantor to perform, or of Lender to enforce, any of their obligations
under the Loan Documents or (iii) the value of the Properties, individually or
taken as a whole.
"MATURITY DATE" shall mean September 1, 2012, or such other date on which
the final payment of principal of the Note becomes due and payable as therein or
herein provided, whether at such stated maturity date, by declaration of
acceleration, or otherwise.
"MAXIMUM LEGAL RATE" shall mean the maximum nonusurious interest rate, if
any, that at any time or from time to time may be contracted for, taken,
reserved, charged or received on the indebtedness evidenced by the Note and as
provided for herein or the other Loan Documents, under the laws of such State or
States whose laws are held by any court of competent jurisdiction to govern the
interest rate provisions of the Loan.
"MONTHLY DEBT SERVICE PAYMENT AMOUNT" shall mean a monthly payment interest
on the principal amount of the Loan.
"MOODY'S" shall mean Moody's Investors Service, Inc.
"NET CASH FLOW" for any period shall mean the amount obtained by
subtracting Operating Expenses and Capital Expenditures for such period from
Gross Income from Operations for such period.
"NET CASH FLOW SCHEDULE" shall have the meaning set forth in Section
5.1.11(b) hereof.
"NET OPERATING INCOME" shall mean the amount obtained by subtracting
Operating Expenses from Gross Income from Operations.
"NET PROCEEDS" shall have the meaning set forth in Section 6.4(b) hereof.
"NET PROCEEDS DEFICIENCY" shall have the meaning set forth in Section
6.4(b)(vi) hereof.
"NONDISQUALIFICATION OPINION" shall mean an opinion of tax counsel, which
shall be independent outside counsel, to the effect that a contemplated action
would not materially adversely affect the Federal income tax status as a REMIC,
trust or other vehicle of any REMIC, trust or other vehicle in which the Loan
may be included at the time such opinion is required.
"NON-U.S. ENTITY" shall have the meaning set forth in Section 2.2.10(b)
hereof.
"NOTE" shall mean that certain note of even date herewith in the principal
amount of EIGHTY MILLION AND 00/100 DOLLARS ($80,000,000.00), made by Borrower
in favor of Lender, as the same may be amended, restated, replaced, supplemented
or otherwise modified from time to time, including any Defeased Note and
Undefeased Note that may exist from time to time.
"O&M PROGRAM" shall mean, with respect to each Individual Property listed
on Schedule II attached hereto, the asbestos operations and maintenance program
developed by Borrower and approved by Lender, as the same may be amended,
replaced, supplemented or otherwise modified from time to time.
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"OFFICER'S CERTIFICATE" shall mean a certificate delivered to Lender by
Borrower which is signed by an authorized senior officer of the general partner
of the sole member Borrower.
"OPERATING EXPENSES" shall mean the total of all expenditures, computed in
accordance with GAAP, of whatever kind relating to the operation, maintenance
and management of the Properties that are incurred on a regular monthly or other
periodic basis, including without limitation, utilities, ordinary repairs and
maintenance, insurance, license fees, property taxes and assessments,
advertising expenses, management fees, payroll and related taxes, computer
processing charges, operational equipment or other lease payments, all as
approved by Lender, and other similar costs, but excluding depreciation, Debt
Service, Capital Expenditures and contributions to the Reserve Funds.
"OTHER CHARGES" shall mean all maintenance charges, impositions other than
Taxes, and any other charges, including, without limitation, vault charges and
license fees for the use of vaults, chutes and similar areas adjoining any
Individual Property, now or hereafter levied or assessed or imposed against such
Individual Property or any part thereof.
"PAYMENT DATE" shall mean the first day of each calendar month during the
term of the Loan or, if such day is not a Business Day, the immediately
succeeding Business Day.
"PERMITTED ENCUMBRANCES" shall mean, with respect to an Individual
Property, collectively, (a) the Liens and security interests created by the Loan
Documents, (b) all Liens, encumbrances and other matters disclosed in the Title
Insurance Policies relating to such Individual Property or any part thereof, (c)
Liens, if any, for Taxes imposed by any Governmental Authority not yet due or
delinquent, and (d) such other title and survey exceptions as Lender has
approved or may approve in writing in Lender's sole discretion, which Permitted
Encumbrances in the aggregate do not materially adversely affect the value or
use of such Individual Property or Borrower's ability to repay the Loan.
"PERMITTED INVESTMENTS" shall mean any one or more of the following
obligations or securities acquired at a purchase price of not greater than par,
including those issued by Servicer, the trustee under any Securitization or any
of their respective Affiliates, payable on demand or having a maturity date not
later than the Business Day immediately prior to the first Monthly Payment Date
following the date of acquiring such investment and meeting one of the
appropriate standards set forth below:
(i) obligations of, or obligations fully guaranteed as to payment of
principal and interest by, the United States or any agency or
instrumentality thereof provided such obligations are backed by the full
faith and credit of the United States of America including, without
limitation, obligations of: the U.S. Treasury (all direct or fully
guaranteed obligations), the Farmers Home Administration (certificates of
beneficial ownership), the General Services Administration (participation
certificates), the U.S. Maritime Administration (guaranteed Title XI
financing), the Small Business Administration (guaranteed participation
certificates and guaranteed pool certificates), the U.S. Department of
Housing and Urban Development (local authority bonds) and the Washington
Metropolitan Area Transit Authority (guaranteed transit bonds); provided,
however, that the investments described in this clause must (A) have a
predetermined
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fixed dollar of principal due at maturity that cannot vary or change, (B)
if rated by S&P, must not have an "r" highlighter affixed to their rating,
(C) if such investments have a variable rate of interest, such interest
rate must be tied to a single interest rate index plus a fixed spread (if
any) and must move proportionately with that index, and (D) such
investments must not be subject to liquidation prior to their maturity;
(ii) Federal Housing Administration debentures;
(iii) obligations of the following United States government sponsored
agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm
Credit System (consolidated systemwide bonds and notes), the Federal Home
Loan Banks (consolidated debt obligations), the Federal National Mortgage
Association (debt obligations), the Student Loan Marketing Association
(debt obligations), the Financing Corp. (debt obligations), and the
Resolution Funding Corp. (debt obligations); provided, however, that the
investments described in this clause must (A) have a predetermined fixed
dollar of principal due at maturity that cannot vary or change, (B) if
rated by S&P, must not have an "r" highlighter affixed to their rating, (C)
if such investments have a variable rate of interest, such interest rate
must be tied to a single interest rate index plus a fixed spread (if any)
and must move proportionately with that index, and (D) such investments
must not be subject to liquidation prior to their maturity;
(iv) Federal funds, unsecured certificates of deposit, time deposits,
bankers' acceptances and repurchase agreements with maturities of not more
than 365 days of any bank, the short term obligations of which at all times
are rated in the highest short term rating category by each Rating Agency
(or, if not rated by all Rating Agencies, rated by at least one Rating
Agency in the highest short term rating category and otherwise acceptable
to each other Rating Agency, as confirmed in writing that such investment
would not, in and of itself, result in a downgrade, qualification or
withdrawal of the initial, or, if higher, then current ratings assigned to
the Securities); provided, however, that the investments described in this
clause must (A) have a predetermined fixed dollar of principal due at
maturity that cannot vary or change, (B) if rated by S&P, must not have an
"r" highlighter affixed to their rating, (C) if such investments have a
variable rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (D) such investments must not be
subject to liquidation prior to their maturity;
(v) fully Federal Deposit Insurance Corporation-insured demand and
time deposits in, or certificates of deposit of, or bankers' acceptances
issued by, any bank or trust company, savings and loan association or
savings bank, the short term obligations of which at all times are rated in
the highest short term rating category by each Rating Agency (or, if not
rated by all Rating Agencies, rated by at least one Rating Agency in the
highest short term rating category and otherwise acceptable to each other
Rating Agency, as confirmed in writing that such investment would not, in
and of itself, result in a downgrade, qualification or withdrawal of the
initial, or, if higher, then current ratings assigned to the Securities);
provided, however, that the investments described in this clause must (A)
have a predetermined fixed dollar of principal due at maturity that cannot
vary or change, (B) if rated by S&P, must not have an "r" highlighter
affixed to their
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rating, (C) if such investments have a variable rate of interest, such
interest rate must be tied to a single interest rate index plus a fixed
spread (if any) and must move proportionately with that index, and (D) such
investments must not be subject to liquidation prior to their maturity;
(vi) debt obligations with maturities of not more than 365 days and at
all times rated by each Rating Agency (or, if not rated by all Rating
Agencies, rated by at least one Rating Agency and otherwise acceptable to
each other Rating Agency, as confirmed in writing that such investment
would not, in and of itself, result in a downgrade, qualification or
withdrawal of the initial, or, if higher, then current ratings assigned to
the Securities) in its highest long-term unsecured rating category;
provided, however, that the investments described in this clause must (A)
have a predetermined fixed dollar of principal due at maturity that cannot
vary or change, (B) if rated by S&P, must not have an "r" highlighter
affixed to their rating, (C) if such investments have a variable rate of
interest, such interest rate must be tied to a single interest rate index
plus a fixed spread (if any) and must move proportionately with that index,
and (D) such investments must not be subject to liquidation prior to their
maturity;
(vii) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance thereof)
with maturities of not more than 365 days and that at all times is rated by
each Rating Agency (or, if not rated by all Rating Agencies, rated by at
least one Rating Agency and otherwise acceptable to each other Rating
Agency, as confirmed in writing that such investment would not, in and of
itself, result in a downgrade, qualification or withdrawal of the initial,
or, if higher, then current ratings assigned to the Securities) in its
highest short-term unsecured debt rating; provided, however, that the
investments described in this clause must (A) have a predetermined fixed
dollar of principal due at maturity that cannot vary or change, (B) if
rated by S&P, must not have an "r" highlighter affixed to their rating, (C)
if such investments have a variable rate of interest, such interest rate
must be tied to a single interest rate index plus a fixed spread (if any)
and must move proportionately with that index, and (D) such investments
must not be subject to liquidation prior to their maturity;
(viii) units of taxable money market funds or mutual funds, which
funds are regulated investment companies, seek to maintain a constant net
asset value per share and invest solely in obligations backed by the full
faith and credit of the United States, which funds have the highest rating
available from each Rating Agency (or, if not rated by all Rating Agencies,
rated by at least one Rating Agency and otherwise acceptable to each other
Rating Agency, as confirmed in writing that such investment would not, in
and of itself, result in a downgrade, qualification or withdrawal of the
initial, or, if higher, then current ratings assigned to the Securities)
for money market funds or mutual funds; and
(ix) any other security, obligation or investment which has been
approved as a Permitted Investment in writing by (a) Lender and (b) each
Rating Agency, as evidenced by a written confirmation that the designation
of such security, obligation or investment as a Permitted Investment will
not, in and of itself, result in a downgrade, qualification or
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withdrawal of the initial, or, if higher, then current ratings assigned to
the Securities by such Rating Agency;
provided, however, that no obligation or security shall be a Permitted
Investment if (A) such obligation or security evidences a right to receive only
interest payments or (B) the right to receive principal and interest payments on
such obligation or security are derived from an underlying investment that
provides a yield to maturity in excess of 120% of the yield to maturity at par
of such underlying investment.
"PERMITTED OWNER" shall mean a Person who satisfies (i), (ii) or (iii)
below:
(i) a Qualified Transferee;
(ii) a Sponsor; or
(iii) any Person, prior to a Securitization, approved by Lender (such
approval not to be unreasonably withheld) or, regarding which, after a
Securitization, Lender has received confirmation from the Rating Agencies
that such transfer shall not result in a downgrade, qualification or
withdrawal of the then-current ratings assigned to the Securities.
"PERMITTED PREPAYMENT DATE" shall have the meaning set forth in Section
2.3.1 hereof.
"PERMITTED RELEASE DATE" shall mean the date that is the earlier of (a)
three (3) years from the Closing Date or (b) two (2) years from the "startup
day" within the meaning of Section 860G(a)(9) of the Code of the REMIC Trust.
"PERSON" shall mean any individual, corporation, partnership, joint
venture, limited liability company, estate, trust, unincorporated association,
any Federal, State, county or municipal government or any bureau, department or
agency thereof and any fiduciary acting in such capacity on behalf of any of the
foregoing.
"PERSONAL PROPERTY" shall have the meaning set forth in the granting clause
of the Security Instrument with respect to each Individual Property.
"PHYSICAL CONDITIONS REPORT" shall mean, with respect to each Individual
Property, a report prepared by a company satisfactory to Lender regarding the
physical condition of such Individual Property, satisfactory in form and
substance to Lender in its sole discretion, which report shall, among other
things, (a) confirm that such Individual Property and its use complies, in all
material respects, with all applicable Legal Requirements (including, without
limitation, zoning, subdivision and building laws) and (b) to the extent
available, include a copy of a final certificate of occupancy with respect to
all Improvements on such Individual Property.
"PLAN" shall mean an employee benefit plan (as defined in section 3(3) of
ERISA) whether or not subject to ERISA or a plan or other arrangement within the
meaning of Section 4975 of the Code.
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"PLAN ASSETS" shall mean assets of a Plan within the meaning of section 29
C.F.R. Section 2510.3-101 or similar law.
"POLICIES" shall have the meaning specified in Section 6.1(b) hereof.
"PROHIBITED PERSON" shall mean any Person:
(a) listed in the Annex to, or otherwise subject to the provisions
of, the Executive Order No. 13224 on Terrorist Financing,
effective September 24, 2001, and relating to Blocking Property
and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism (the "EXECUTIVE ORDER");
(b) that is owned or controlled by, or acting for or on behalf of,
any person or entity that is listed to the Annex to, or is
otherwise subject to the provisions of, the Executive Order;
(c) with whom Lender is prohibited from dealing or otherwise engaging
in any transaction by any terrorism or money laundering law,
including the Executive Order;
(d) who commits, threatens or conspires to commit or supports
"terrorism" as defined in the Executive Order;
(e) that is named as a "specially designated national and blocked
person" on the most current list published by the U.S. Treasury
Department Office of Foreign Assets Control at its official
website, http://www.treas.gov.ofac/t11sdn.pdf or at any
replacement website or other replacement official publication of
such list; or
(f) who is an Affiliate of or affiliated with a Person listed above.
"PROPERTIES" shall mean, collectively, each and every Individual Property
which is subject to the terms of this Agreement.
"PROVIDED INFORMATION" shall have the meaning set forth in Section 9.1(a)
hereof.
"QUALIFIED TRANSFEREE" shall mean any one of the following Persons:
(i) a pension fund, pension trust or pension account that (a) has
total real estate assets of at least $1 Billion and (b) is
managed by a Person who controls at least $1 Billion of real
estate equity assets; or
(ii) a pension fund advisor who (a) immediately prior to such
transfer, controls at least $1 Billion of real estate equity
assets and (b) is acting on behalf of one or more pension funds
that, in the aggregate, satisfy the requirements of clause (i) of
this definition; or
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(iii) an insurance company which is subject to supervision by the
insurance commissioner, or a similar official or agency, of a
State or territory of the United States (including the District
of Columbia) (a) with a net worth, as of a date no more than six
(6) months prior to the date of the transfer of at least $500
Million and (b) who, immediately prior to such transfer, controls
real estate equity assets of at least $1 Billion; or
(iv) a corporation organized under the banking laws of the United
States or any State or territory of the United States (including
the District of Columbia) (a) with a combined capital and surplus
of at least $500 Million and (b) who, immediately prior to such
transfer, controls real estate equity assets of at least $1
Billion; or
(v) any Person (a) with a long-term unsecured debt rating from each
of the Rating Agencies of at least investment grade or (b) who
(i) owns or operates at least one hundred (100) self-service
storage facilities totaling at least 5 million square feet of
gross leasable area, (ii) has a net worth, as of a date no more
than six (6) months prior to the date of such transfer, of at
least $500 Million and (iii) immediately prior to such transfer,
controls real estate equity assets of at least $1 Billion.
"QUALIFYING MANAGER" shall mean (i) YSI Management LLC, a Delaware limited
liability company or (ii) a reputable and experienced management organization
possessing experience in managing properties similar in size, scope and value to
the Property, provided that (a) prior to a Securitization, Borrower shall have
obtained the prior written consent of Lender for such entity which consent shall
not be unreasonably withheld and (b) after a Securitization, Borrower shall have
obtained prior written confirmation from the Rating Agencies that management of
the Property by such entity will not, in and of itself, cause a downgrade,
withdrawal or qualification of the then current ratings of the Securities issued
pursuant to the Securitization.
"RATING AGENCIES" shall mean each of S&P, Moody's and Fitch, or any other
nationally-recognized statistical rating agency which has been approved by
Lender.
"REGISTRATION STATEMENT" shall have the meaning set forth in Section 9.2(b)
hereof.
"RELEASE" shall have the meaning set forth in the Environmental Indemnity.
"RELEASE AMOUNT" shall mean, for an Individual Property, the product of the
Allocated Loan Amount for such Individual Property and one hundred twenty-five
percent (125%).
"RELEASED INDIVIDUAL PROPERTY" shall have the meaning set forth in Section
2.5.2 hereof.
"REMIC TRUST" shall mean a "real estate mortgage investment conduit" within
the meaning of Section 860D of the Code that holds the Note.
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"RENTS" shall mean, with respect to each Individual Property, all rents,
rent equivalents, moneys payable as damages or in lieu of rent or rent
equivalents, royalties (including, without limitation, all oil and gas or other
mineral royalties and bonuses), income, receivables, receipts, revenues,
deposits (including, without limitation, forfeited security deposits, utility
and other deposits), accounts, cash, issues, profits, charges for services
rendered, and other consideration of whatever form or nature received by or paid
to or for the account of or benefit of Borrower or its agents or employees from
any and all sources arising from or attributable to the Individual Property, and
proceeds, if any, from business interruption or other loss of income insurance.
"REPLACED PROPERTY" shall have the meaning set forth in Section 2.7(a)
hereof.
"REPLACEMENT MANAGEMENT AGREEMENT" shall mean, collectively, (a) either (i)
a management agreement with a Qualifying Manager substantially in the same form
and substance as the Management Agreement, or (ii) a management agreement with a
Qualifying Manager, which management agreement shall be acceptable to Lender in
form and substance, provided, with respect to this subclause (ii), Lender, at
its option, may require that Borrower obtain confirmation from the applicable
Rating Agencies that such management agreement will not result in a downgrade,
withdrawal or qualification of the initial, or if higher, then current rating of
the Securities or any class thereof; and (b) a conditional assignment of
management agreement substantially in the form of the Assignment of Management
Agreement (or such other form acceptable to Lender), executed and delivered to
Lender by Borrower and such Qualifying Manager at Borrower's expense.
"REPLACEMENT RESERVE ACCOUNT" shall have the meaning set forth in Section
7.3.1 hereof.
"REPLACEMENT RESERVE FUND" shall have the meaning set forth in Section
7.3.1 hereof.
"REPLACEMENT RESERVE MONTHLY DEPOSIT" shall mean an amount equal to (A) the
aggregate square footage of all Improvements at the Properties after giving
effect to such release or substitution times (B) $0.15, divided by 12. The
Replacement Reserve Monthly Deposit shall be adjusted following the release of
an Individual Property from the lien of its related Security Instrument pursuant
to Section 2.5 hereof or following the release and substitution of an Individual
Property pursuant to Section 2.7 hereof.
"REPLACEMENT RESERVE TRIGGER EVENT" shall mean the failure of Borrower to
satisfy each of the following conditions:
(i) The owner of the Properties is Borrower or a transferee permitted under
the terms of this Loan Agreement and for which Lender has approved in writing
the suspension of the Replacement Reserve Monthly Deposit;
(ii) Borrower furnishes to Lender evidence (in the form of schedules
listing the type and costs of replacements, together with copies of paid
invoices and other appropriate supporting documentation) demonstrating to the
satisfaction of Lender and its servicer that Borrower is on a regular basis
expending the amounts set forth in the Annual Budget approved by Lender;
16
(iii) The Properties are, in the judgment of Lender or its servicer, being
properly maintained by Borrower in accordance with the terms of this Agreement;
(iv) The Debt Service Coverage Ratio for all of the Properties for the
twelve (12) full calendar months immediately preceding the determination date is
less than 1.15:1.00; and
(v) no Event of Default has occurred and ids continuing.
"REPLACEMENTS" shall have the meaning set forth in Section 7.3.1 hereof.
"REQUIRED REPAIR ACCOUNT" shall have the meaning set forth in the Cash
Management Agreement.
"REQUIRED REPAIR FUND" shall have the meaning set forth in Section 7.1.1
hereof.
"REQUIRED REPAIRS" shall have the meaning set forth in Section 7.1.1
hereof.
"RESERVE FUNDS" shall mean the Required Repair Fund, the Tax and Insurance
Escrow Fund, the Replacement Reserve Fund, the Excess Cash Reserve Fund or any
other escrow fund established or required by the Loan Documents.
"RESTORATION" shall have the meaning set forth in Section 6.2 hereof.
"RESTRICTED PARTY" shall mean Borrower, SPC Party, Guarantor, Sponsor or
any affiliated Manager or any shareholder, partner, member or non-member
manager, or any direct or indirect legal or beneficial owner of, Borrower, SPC
Party, Guarantor, Sponsor, any affiliated Manager or any non-member manager.
"SCHEDULED DEFEASANCE PAYMENTS" shall have the meaning set forth in Section
2.4.1(b) hereof.
"SECURITIES" shall have the meaning set forth in Section 9.1 hereof.
"SECURITIES ACT" shall have the meaning set forth in Section 9.2(a) hereof.
"SECURITIZATION" shall have the meaning set forth in Section 9.1 hereof.
"SECURITY AGREEMENT" shall have the meaning set forth in Section
2.4.1(a)(vi) hereof.
"SECURITY INSTRUMENT" shall mean, with respect to each Individual Property,
that certain first priority Mortgage (or Deed of Trust or Deed to Secure Debt,
as applicable) and Security Agreement, executed and delivered by Borrower as
security for the Loan and encumbering such Individual Property, as the same may
be amended, restated, replaced, supplemented or otherwise modified from time to
time.
"SERVICER" shall have the meaning set forth in Section 9.6 hereof.
"SERVICING AGREEMENT" shall have the meaning set forth in Section 9.6
hereof.
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"SEVERED LOAN DOCUMENTS" shall have the meaning set forth in Section 8.2(c)
hereof.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies.
"SPC PARTY" shall have the meaning set forth in Section 4.1.30(o) hereof.
"SPECIAL PURPOSE ENTITY" shall mean a Person which satisfies the
requirements of Section 4.1.30 hereof.
"SPONSOR" shall mean U-Store-It Trust, a Maryland real estate investment
trust.
"STATE" shall mean, with respect to an Individual Property, the State or
Commonwealth in which such Individual Property or any part thereof is located.
"SUBSTITUTE PROPERTY" shall have the meaning set forth in Section 2.7(a)
hereof.
"SUBSTITUTE SECURITY INSTRUMENT" shall have the meaning set forth in
Section 2.7(a) hereof.
"SUBSTITUTION" shall have the meaning set forth in Section 2.7(a) hereof.
"SUBSTITUTION DATE" shall have the meaning set forth in Section 2.7(c)(iv)
hereof.
"SUCCESSOR BORROWER" shall have the meaning set forth in Section 2.4.2
hereof.
"SURVEY" shall mean a survey of the Individual Property in question
delivered to Lender and which survey has been prepared by a surveyor licensed in
the State and satisfactory to Lender and the company or companies issuing the
Title Insurance Policies, and containing a certification of such surveyor
satisfactory to Lender.
"TAX AND INSURANCE ESCROW FUND" shall have the meaning set forth in Section
7.2 hereof.
"TAXES" shall mean all real estate and personal property taxes,
assessments, water rates or sewer rents, now or hereafter levied or assessed or
imposed against any Individual Property or part thereof.
"TAX OPINION" shall mean an opinion of competent counsel to the effect that
a contemplated action (a) will not result in any deemed exchange pursuant to
Section 1001 of the Code of the Note; and (b) will not adversely affect the Note
status as indebtedness for Federal income tax purposes.
"TITLE INSURANCE POLICY" shall mean, with respect to each Individual
Property, an ALTA mortgagee title insurance policy in the form (acceptable to
Lender) (or, if an Individual Property is in a State which does not permit the
issuance of such ALTA policy, such form as shall be permitted in such State and
acceptable to Lender) issued with respect to such Individual Property and
insuring the lien of the Security Instrument encumbering such Individual
Property.
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"TRADED ENTITY" shall have the meaning set forth in Section 5.2.13(h)
hereof.
"UCC" or "UNIFORM COMMERCIAL CODE" shall mean the Uniform Commercial Code
as in effect in the applicable State in which an Individual Property is located.
"UNDEFEASED NOTE" shall have the meaning set forth in Section 2.4.1(a)(v)
hereof.
"UNDERWRITER GROUP" shall have the meaning set forth in Section 9.2(b)
hereof.
"U.S. OBLIGATIONS" shall mean direct non-callable obligations of the United
States of America.
"YIELD MAINTENANCE PREMIUM" shall mean the amount (if any) which, when
added to the remaining principal amount of the Note or the principal amount of a
Defeased Note, as applicable, will be sufficient to purchase U.S. Obligations
providing the required Scheduled Defeasance Payments.
SECTION 1.2 PRINCIPLES OF CONSTRUCTION.
All references to sections and schedules are to sections and schedules in
or to this Agreement unless otherwise specified. All uses of the word
"including" shall mean "including, without limitation" unless the context shall
indicate otherwise. Unless otherwise specified, the words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement. Unless otherwise specified, all meanings attributed to defined terms
herein shall be equally applicable to both the singular and plural forms of the
terms so defined.
ARTICLE 2 - GENERAL TERMS
SECTION 2.1 LOAN COMMITMENT; DISBURSEMENT TO BORROWER.
2.1.1 THE LOAN. Subject to and upon the terms and conditions set forth
herein, Lender hereby agrees to make and Borrower hereby agrees to accept the
Loan on the Closing Date.
2.1.2 DISBURSEMENT TO BORROWER. Borrower may request and receive only one
borrowing hereunder in respect of the Loan and any amount borrowed and repaid
hereunder in respect of the Loan may not be reborrowed.
2.1.3 THE NOTE, SECURITY INSTRUMENTS AND LOAN DOCUMENTS. The Loan shall be
evidenced by the Note and secured by the Security Instrument, the Assignment of
Leases and the other Loan Documents.
2.1.4 USE OF PROCEEDS. Borrower shall use the proceeds of the Loan to (a)
pay the cost of the acquisition of the Properties, (b) repay and discharge any
existing loans relating to the Properties, (c) pay all past-due Basic Carrying
Costs, if any, in respect of the Properties, (d) make deposits into the Reserve
Funds on the Closing Date in the amounts provided herein, (e) pay costs and
expenses incurred in connection with the Closing of the Loan, as approved by
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Lender, (f) fund any working capital requirements of the Properties, and (g)
distribute the balance, if any, to Borrower.
SECTION 2.2 INTEREST; LOAN PAYMENTS; LATE PAYMENT CHARGE.
2.2.1 INTEREST GENERALLY. Interest on the outstanding principal balance of
the Loan shall accrue from the Closing Date to but excluding the Maturity Date
at the Applicable Interest Rate.
2.2.2 INTEREST CALCULATION. Interest on the outstanding principal balance
of the Loan shall be calculated by multiplying (a) the actual number of days
elapsed in the period for which the calculation is being made by (b) a daily
rate based on a three hundred sixty (360) day year by (c) the outstanding
principal balance.
2.2.3 PAYMENTS. Borrower shall pay to Lender (a) on the Closing Date, an
amount equal to interest only on the outstanding principal balance of the Loan
from the Closing Date up to but not including the first day of the next
succeeding calendar month, and (b) on October 1, 2005 and on each Payment Date
thereafter up to and through and including the Payment Date occurring on August
1, 2012, interest only on the outstanding principal balance of the Loan.
2.2.4 INTENTIONALLY DELETED.
2.2.5 PAYMENT ON MATURITY DATE. Borrower shall pay to Lender on the
Maturity Date, the outstanding principal balance of the Loan, all accrued and
unpaid interest and all other amounts due hereunder and under the Note, the
Security Instruments and the other Loan Documents.
2.2.6 PAYMENTS AFTER DEFAULT. Upon the occurrence and during the
continuance of an Event of Default, interest on the outstanding principal
balance of the Loan and, to the extent permitted by law, overdue interest and
other amounts due in respect of the Loan, shall accrue at the Default Rate,
calculated from the date such payment was due without regard to any grace or
cure periods contained herein. Interest at the Default Rate shall be computed
from the occurrence of the Event of Default until the actual receipt and
collection of the Debt (or that portion thereof that is then due). To the extent
permitted by applicable law, interest at the Default Rate shall be added to the
Debt, shall itself accrue interest at the same rate as the Loan and shall be
secured by the Security Instruments. This paragraph shall not be construed as an
agreement or privilege to extend the date of the payment of the Debt, nor as a
waiver of any other right or remedy accruing to Lender by reason of the
occurrence of any Event of Default; and Lender retains its rights under this
Note to accelerate and to continue to demand payment of the Debt upon the
happening of any Event of Default.
2.2.7 LATE PAYMENT CHARGE. If any principal, interest or any other sums due
under the Loan Documents is not paid by Borrower on or prior to the date on
which it is due, Borrower shall pay to Lender upon demand an amount equal to the
lesser of five percent (5%) of such unpaid sum or the maximum amount permitted
by applicable law in order to defray the expense incurred by Lender in handling
and processing such delinquent payment and to compensate Lender for the loss of
the use of such delinquent payment. Any such amount shall be secured by
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the Security Instruments and the other Loan Documents to the extent permitted by
applicable law.
2.2.8 USURY SAVINGS. This Agreement and the Note are subject to the express
condition that at no time shall Borrower be obligated or required to pay
interest on the principal balance of the Loan at a rate which could subject
Lender to either civil or criminal liability as a result of being in excess of
the Maximum Legal Rate. If, by the terms of this Agreement or the other Loan
Documents, Borrower is at any time required or obligated to pay interest on the
principal balance due hereunder at a rate in excess of the Maximum Legal Rate,
the Applicable Interest Rate or the Default Rate, as the case may be, shall be
deemed to be immediately reduced to the Maximum Legal Rate and all previous
payments in excess of the Maximum Legal Rate shall be deemed to have been
payments in reduction of principal and not on account of the interest due
hereunder. All sums paid or agreed to be paid to Lender for the use,
forbearance, or detention of the sums due under the Loan, shall, to the extent
permitted by applicable law, be amortized, prorated, allocated, and spread
throughout the full stated term of the Loan until payment in full so that the
rate or amount of interest on account of the Loan does not exceed the Maximum
Legal Rate of interest from time to time in effect and applicable to the Loan
for so long as the Loan is outstanding.
2.2.9 MAKING OF PAYMENTS. Each payment by Borrower hereunder or under the
Note shall be made in funds settled through the New York Clearing House
Interbank Payments System or other funds immediately available to Lender by
noon, New York City time, on the date such payment is due, to Lender by deposit
to such account as Lender may designate by written notice to Borrower. Whenever
any payment hereunder or under the Note shall be stated to be due on a day which
is not a Business Day, such payment shall be made on the immediately preceding
Business Day.
2.2.10 INDEMNIFIED TAXES.
(a) All payments made by Borrower hereunder shall be made free and clear
of, and without reduction for or on account of, Indemnified Taxes, excluding (i)
Indemnified Taxes measured by Lender's net income, and franchise taxes imposed
on it, by the jurisdiction under the laws of which Lender is resident or
organized, or any political subdivision thereof, (ii) taxes measured by Lender's
overall net income, and franchise taxes imposed on it, by the jurisdiction of
Lender's applicable lending office or any political subdivision thereof or in
which Lender is resident or engaged in business, and (iii) withholding taxes
imposed by the United States of America, any State, commonwealth, protectorate
territory or any political subdivision or taxing authority thereof or therein as
a result of the failure of Lender which is a Non-U.S. Entity to comply with the
terms of paragraph (b) below. If any non excluded Indemnified Taxes are required
to be withheld from any amounts payable to Lender hereunder, the amounts so
payable to Lender shall be increased to the extent necessary to yield to Lender
(after payment of all non excluded Indemnified Taxes) interest or any such other
amounts payable hereunder at the rate or in the amounts specified hereunder.
Whenever any non excluded Indemnified Tax is payable pursuant to applicable law
by Borrower, Borrower shall send to Lender an original official receipt showing
payment of such non excluded Indemnified Tax or other evidence of payment
reasonably satisfactory to Lender. Borrower hereby indemnifies Lender for any
incremental taxes, interest or penalties that may become payable by Lender which
may result from any
21
failure by Borrower to pay any such non excluded Indemnified Tax when due to the
appropriate taxing authority or any failure by Borrower to remit to Lender ender
the required receipts or other required documentary evidence.
(b) In the event that Lender or any successor and/or assign of Lender is
not incorporated under the laws of the United States of America or a State
thereof (a "NON-U.S. ENTITY") Lender agrees that, prior to the first date on
which any payment is due such entity hereunder, it will deliver to Borrower two
duly completed copies of United States Internal Revenue Service Form W-8BEN or
W-8ECI or successor applicable form, as the case may be, certifying in each case
that such entity is entitled to receive payments under the Note, without
deduction or withholding of any United States Federal income taxes. Each entity
required to deliver to Borrower a Form W-8BEN or W-8ECI pursuant to the
preceding sentence further undertakes to deliver to Borrower two further copies
of such forms, or successor applicable forms, or other manner of certification,
as the case may be, on or before the date that any such form expires (which, in
the case of the Form W-8ECI, is the last day of each U.S. taxable year of the
Non-U.S. Entity) or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form previously delivered by it to
Borrower, and such other extensions or renewals thereof as may reasonably be
requested by Borrower, certifying in the case of a Form W-8BEN or W-8ECI that
such entity is entitled to receive payments under the Note without deduction or
withholding of any United States Federal income taxes, unless in any such case
an event (including, without limitation, any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such entity from duly completing and delivering any such form with
respect to it and such entity advises Borrower that it is not capable of
receiving payments without any deduction or withholding of United States Federal
income tax.
SECTION 2.3 PREPAYMENTS.
2.3.1 VOLUNTARY PREPAYMENTS. Except as otherwise provided herein, Borrower
shall not have the right to prepay the Loan in whole or in part prior to the
Maturity Date. On June 1, 2012 (the "PERMITTED PREPAYMENT DATE") or on date
thereafter, Borrower may, at its option and upon thirty (30) days prior written
notice to Lender, prepay the Debt in whole without payment of the Yield
Maintenance Premium, provided, Borrower pays to Lender (a) all accrued and
unpaid interest on the principal amount of the Loan and (b) all other amounts
due and owing under the Loan Documents. If for any reason Borrower prepays the
Loan on a date other than a Payment Date, Borrower shall pay Lender, in addition
to the Debt, all interest which would have accrued on the amount of the Loan
through and including the Payment Date next occurring following the date of such
prepayment.
2.3.2 MANDATORY PREPAYMENTS. On each date on which Borrower actually
receives any Net Proceeds, if Lender is not obligated to make such Net Proceeds
available to Borrower for the restoration of any Individual Property, Borrower
shall prepay the outstanding principal balance of the Note in an amount equal to
one hundred percent (100%) of such Net Proceeds. No Yield Maintenance Premium
shall be due in connection with any prepayment made pursuant to this Section
2.3.2.
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2.3.3 PREPAYMENTS AFTER DEFAULT. If, following an Event of Default, payment
of all or any part of the Debt is tendered by Borrower or otherwise recovered by
Lender, such tender or recovery shall be deemed a voluntary prepayment by
Borrower in violation of the prohibition against prepayment set forth in Section
2.3.1 hereof and, if such payment is made prior to the Permitted Prepayment
Date, Borrower shall pay, in addition to the Debt, (i) an amount equal to the
greater of (a) one percent (1%) of the outstanding principal amount of the Loan
to be prepaid or satisfied, or (b) the Yield Maintenance Premium that would be
required if a Defeasance Event had occurred in an amount equal to the
outstanding principal amount of the Loan to be satisfied or prepaid and (ii) all
accrued and unpaid interest on the amount of principal being prepaid through and
including the date of prepayment.
SECTION 2.4 DEFEASANCE.
2.4.1 VOLUNTARY DEFEASANCE. (a) Provided no Event of Default shall then
exist, Borrower shall have the right at any time after the Permitted Release
Date to voluntarily defease all or any portion of the Loan by and upon
satisfaction of the following conditions (such event being a "DEFEASANCE
EVENT"):
(i) Borrower shall provide not less than thirty (30) days prior
written notice to Lender specifying the Payment Date (the "DEFEASANCE
DATE") on which the Defeasance Event will occur and the principal amount of
the Loan to be defeased;
(ii) Borrower shall pay to Lender all accrued and unpaid interest on
the principal balance of the Note to and including the Defeasance Date;
(iii) Borrower shall pay to Lender all other sums, not including
scheduled interest or principal payments, then due under the Note, this
Agreement, the Security Instruments, and the other Loan Documents;
(iv) Borrower shall deliver to Lender the Defeasance Deposit
applicable to the Defeasance Event;
(v) In the event only a portion of the Loan is the subject of the
Defeasance Event, Borrower shall prepare all necessary documents to modify
this Agreement and to amend and restate the Note and issue two substitute
notes for the Note, one note having a principal balance equal to the
defeased portion of the original Note and a maturity date equal to the
Permitted Prepayment Date (the "DEFEASED NOTE") and the other note having a
principal balance equal to the undefeased portion of the original Note and
a maturity date equal to the Maturity Date (the "UNDEFEASED NOTE"). The
Defeased Note and the Undefeased Note shall otherwise have terms identical
to the original Note, except that a Defeased Note cannot be the subject of
any further Defeasance Event. The Undefeased Note may be the subject of a
further Defeasance Event in accordance with the terms and provisions of
this Section 2.4 (the term "Note", as used in this clause (v) for such
purpose, being deemed to refer to the Undefeased Note that is the subject
of further defeasance), provided, however, that no such partial defeasance
shall take place unless the conditions outlined in Section 2.5 are
satisfied;
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(vi) Borrower shall execute and deliver a security agreement, in a
form and substance that would be reasonably satisfactory to a prudent
institutional lender, creating a first priority lien on the Defeasance
Deposit and the U.S. Obligations purchased with the Defeasance Deposit in
accordance with the provisions of this Section 2.4 (the "SECURITY
AGREEMENT");
(vii) Borrower shall deliver an opinion of counsel for Borrower in a
form and substance that would be reasonably satisfactory to a prudent
institutional lender stating, among other things, that Borrower has legally
and validly transferred and assigned the U.S. Obligations and all
obligations, rights and duties under and to the Note or the Defeased Note
(as applicable) to the Successor Borrower, that Lender has a perfected
first priority security interest in the Defeasance Deposit and the U.S.
Obligations delivered by Borrower and that any REMIC Trust formed pursuant
to a Securitization will not fail to maintain its status as a "real estate
mortgage investment conduit" within the meaning of Section 860D of the Code
as a result of such Defeasance Event;
(viii) Borrower shall deliver confirmation in writing from the
applicable Rating Agencies to the effect that such defeasance and release
will not result in a downgrading, withdrawal or qualification of the
respective ratings in effect immediately prior to such Defeasance Event for
the Securities issued in connection with the Securitization which are then
outstanding. If required by the applicable Rating Agencies, Borrower shall
also deliver or cause to be delivered a non-consolidation opinion with
respect to the Successor Borrower in form and substance satisfactory to
Lender and the applicable Rating Agencies;
(ix) Borrower shall deliver an Officer's Certificate certifying that
the requirements set forth in this Section 2.4.1(a) have been satisfied;
(x) Borrower shall deliver a certificate of an Acceptable Accountant
certifying that the U.S. Obligations purchased with the Defeasance Deposit
generate monthly amounts equal to or greater than the Scheduled Defeasance
Payments;
(xi) Borrower shall deliver such other certificates, documents or
instruments as Lender may reasonably request; and
(xii) Borrower shall pay all costs and expenses of Lender incurred in
connection with the Defeasance Event, including, without limitation, (A)
any costs and expenses associated with a release of the Lien of the related
Security Instrument as provided in Section 2.5 hereof, (B) Lender's
reasonable attorneys' fees and expenses, (C) the costs and expenses of the
Rating Agencies, (D) any revenue, documentary stamp or intangible taxes or
any other tax or charge due in connection with the transfer of the Note, or
otherwise required to accomplish the defeasance and (E) the reasonable
costs and expenses actually incurred by Servicer and any trustee, including
reasonable attorneys' fees.
(b) In connection with each Defeasance Event, Borrower hereby appoints
Lender as its agent and attorney-in-fact for the purpose of using the Defeasance
Deposit to purchase U.S.
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Obligations which provide payments on or prior to, but as close as possible to,
all successive scheduled payment dates after the Defeasance Date upon which
interest and principal payments are required under the Note, in the case of a
Defeasance Event for the entire outstanding principal balance of the Loan, or
the Defeased Note, in the case of a Defeasance Event for only a portion of the
outstanding principal balance of the Loan, as applicable, and in amounts equal
to the scheduled payments due on such dates under this Agreement and the Note or
the Defeased Note, as applicable, (including without limitation scheduled
payments of principal, interest, servicing fees (if any), the Rating
Surveillance Charge and any other amounts due under the Loan Documents on such
dates) and assuming such Note or Defeased Note, as applicable, is prepaid in
full on the Permitted Prepayment Date (the "SCHEDULED DEFEASANCE PAYMENTS").
Borrower, pursuant to the Security Agreement or other appropriate document,
shall authorize and direct that the payments received from the U.S. Obligations
may be made directly to the Lockbox Account (unless otherwise directed by
Lender) and applied to satisfy the obligations of Borrower under the Note or the
Defeased Note, as applicable. Any portion of the Defeasance Deposit in excess of
the amount necessary to purchase the U.S. Obligations required by this Section
2.4 and satisfy Borrower's other obligations under this Section 2.4 and Section
2.5 hereof shall be remitted to Borrower.
2.4.2 SUCCESSOR BORROWER. In connection with any Defeasance Event, Borrower
shall establish or designate a successor entity (the "SUCCESSOR BORROWER") which
shall be a single purpose bankruptcy remote entity with two (2) Independent
Directors approved by Lender, and Borrower shall transfer and assign all
obligations, rights and duties under and to the Note or the Defeased Note, as
applicable, together with the pledged U.S. Obligations to such Successor
Borrower. Such Successor Borrower shall assume the obligations under the Note or
the Defeased Note, as applicable, and the Security Agreement and Borrower shall
be relieved of its obligations under such documents and the other Loan
Documents, except with respect to those obligations which are expressly stated
to survive. Borrower shall pay $1,000 to any such Successor Borrower as
consideration for assuming the obligations under the Note or the Defeased Note,
as applicable, and the Security Agreement. Notwithstanding anything in this
Agreement to the contrary, no other assumption fee shall be payable upon a
transfer of the Note or the Defeased Note, as applicable, in accordance with
this Section 2.4.2, but Borrower shall pay all costs and expenses incurred by
Lender, including Lender's attorneys' fees and expenses, incurred in connection
therewith.
SECTION 2.5 RELEASE OF PROPERTY.
Except as set forth in Section 2.4 hereof and this Section 2.5, no
repayment, prepayment or defeasance of all or any portion of the Note shall
cause, give rise to a right to require, or otherwise result in, the release of
any Lien of any Security Instrument on any Individual Property.
2.5.1 RELEASE OF ALL PROPERTIES.
(a) After the Permitted Release Date, if Borrower has elected to defease
the entire Loan and the applicable requirements of Section 2.4 hereof and this
Section 2.5 have been satisfied, all of the Properties shall be released from
the Liens of their respective Security
25
Instruments and the U.S. Obligations, pledged pursuant to the Security
Agreement, shall be the sole source of collateral securing the Note.
(b) In connection with the release of the Security Instruments, Borrower
shall submit to Lender, not less than thirty (30) days prior to the Defeasance
Date, a release of Lien (and related Loan Documents) for each Individual
Property for execution by Lender. Such release shall be in a form appropriate in
each jurisdiction in which an Individual Property is located and that would be
satisfactory to a prudent institutional lender. In addition, Borrower shall
provide all other documentation Lender reasonably requires to be delivered by
Borrower in connection with such release, together with an Officer's Certificate
certifying that such documentation (i) is in compliance with all applicable
Legal Requirements, and (ii) will, following execution by Lender and recordation
thereof, effect such releases in accordance with the terms of this Agreement.
2.5.2 RELEASE OF INDIVIDUAL PROPERTY. After the Permitted Release Date, if
Borrower has elected to defease a portion of the Loan and the applicable
requirements of Section 2.4 hereof and this Section 2.5 have been satisfied,
Borrower may obtain the release of an Individual Property from the Lien of the
Security Instrument thereon (and related Loan Documents) and the release of
Borrower's obligations under the Loan Documents with respect to such Individual
Property (other than those expressly stated to survive), upon the satisfaction
of each of the following conditions:
(a) The principal balance of the Defeased Note shall equal or exceed the
Release Amount for the applicable Individual Property; provided, however, if the
undefeased portion of the Loan at the time a release is requested is less than
the Release Amount, the Defeased Note shall equal the remaining undefeased
portion of the Loan at the time of release;
(b) Borrower shall provide Lender with at least thirty (30) days but no
more than ninety (90) days prior written notice of its request to obtain a
release of the Individual Property;
(c) Borrower shall defease the portion of the Note equal to the Release
Amount of the Individual Property being released (together with all accrued and
unpaid interest on the principal amount being defeased) in accordance with the
terms and conditions of Sections 2.4.1 and 2.4.2 hereof;
(d) Borrower shall submit to Lender, not less than thirty (30) days prior
to the date of such release, a release of Lien (and related Loan Documents) for
such Individual Property for execution by Lender. Such release shall be in a
form appropriate in each jurisdiction in which the Individual Property is
located and that would be satisfactory to a prudent institutional lender. In
addition, Borrower shall provide all other documentation Lender reasonably
requires to be delivered by Borrower in connection with such release, together
with an Officer's Certificate certifying that such documentation (i) is in
compliance with all applicable Legal Requirements, (ii) will, following
execution by Lender and recordation thereof, effect such release in accordance
with the terms of this Agreement, and (iii) will not impair or otherwise
adversely affect the Liens, security interests and other rights of Lender under
the Loan Documents not being released (or as to the parties to the Loan
Documents and Properties subject to the Loan Documents not being released);
26
(e) After giving effect to such release, the Debt Service Coverage Ratio
for the Properties then remaining subject to the Lien of the Security Instrument
shall be at least equal to the Debt Service Coverage Ratio for all of the
Properties (including the Individual Property to be released) for the twelve
(12) full calendar months immediately preceding the release of such Individual
Property.
(f) Intentionally Deleted;
(g) Lender shall have received evidence that the Individual Property to be
released shall be conveyed to a Person other than Borrower or SPC Party;
(h) Lender shall have received payment of all Lender's costs and expenses,
including due diligence review costs and reasonable counsel fees and
disbursements incurred in connection with the release of the Individual Property
from the lien of the related Security Instrument and the review and approval of
the documents and information required to be delivered in connection therewith;
and
(i) Immediately following such release, the Allocated Loan Amount of the
Individual Property released (the "RELEASED INDIVIDUAL PROPERTY") shall be
reduced to zero and the Allocated Loan Amounts of the Individual Properties
remaining subject to the Lien of a Security Instrument immediately following
such release shall be reduced pro rata by the difference between the Release
Amount of the Released Individual Property and the original Allocated Loan
Amount of the Released Individual Property.
2.5.3 RELEASE ON PAYMENT IN FULL. Lender shall, upon the written request
and at the expense of Borrower, upon payment in full of all principal and
interest on the Loan and all other amounts due and payable under the Loan
Documents in accordance with the terms and provisions of the Note and this
Agreement, release the Lien of the Security Instrument on each Individual
Property not theretofore released.
SECTION 2.6 MANNER OF MAKING PAYMENTS; CASH MANAGEMENT.
2.6.1 DEPOSITS INTO LOCKBOX ACCOUNT. Borrower shall cause all Rents from
the Properties to be deposited into the Lockbox Account in accordance with the
Cash Management Agreement. Without limitation of the foregoing, Borrower shall,
and shall cause Manager to, (a) cause or direct all tenants under Leases to
deliver all Rents payable thereunder either directly to the Lockbox Account or
to Manager for deposit into the Lockbox Account, and (b) deposit all amounts
received by Borrower or Manager constituting Rents or other revenue of any kind
from the Properties into the Lockbox Account within one (1) Business Day of
receipt thereof. Disbursements from the Lockbox Account will be made in
accordance with the terms and conditions of this Agreement and the Cash
Management Agreement. Lender shall have sole dominion and control over the
Lockbox Account and, except as set forth in the Cash Management Agreement,
Borrower shall have no rights to make withdrawals therefrom.
2.6.2 PAYMENTS RECEIVED IN THE LOCKBOX ACCOUNT. Notwithstanding anything to
the contrary contained in this Agreement or the other Loan Documents and
provided no Event of Default then exists, Borrower's obligations with respect to
the Monthly Debt Service Payment Amount and amounts due for the Reserve Funds
shall be deemed satisfied to the extent sufficient
27
amounts are deposited in the Lockbox Account to satisfy such obligations on the
dates each such payment is required, regardless of whether any of such amounts
are so applied by Lender.
2.6.3 NO DEDUCTIONS, ETC. All payments made by Borrower hereunder or under
the Note or the other Loan Documents shall be made irrespective of, and without
any deduction for, any setoff, defense or counterclaims.
SECTION 2.7 SUBSTITUTE PROPERTY.
2.7.1 GENERALLY. Subject to the conditions in this Section 2.7, at any time
and from time to time, Borrower may substitute (each such act is hereafter
referred to as a "SUBSTITUTION") a property (a "SUBSTITUTE PROPERTY") for an
Individual Property (a "REPLACED PROPERTY"). From and after the substitution of
a Substitute Property in accordance herewith, such Substitute Property shall
thereafter be deemed an Individual Property under this Agreement and the
Security Instrument, and the Allocated Loan Amount of such Substitute Property
shall be the same as the Allocated Loan Amount of the Replaced Property, except
that in the event that two (2) or more Substitute Properties replace a single
Replaced Property, then in that event, the Allocated Loan Amount of the Replaced
Property shall be apportioned between or amongst the Substitute Properties as
Lender in its sole discretion decides. In the event of a substitution, the Note
shall remain in full force and effect and a new Security Instrument encumbering
the Substitute Property (the "SUBSTITUTE SECURITY INSTRUMENT") shall be executed
and delivered by Borrower to Lender to encumber the Substitute Property.
Concurrently with the completion of all steps necessary to substitute a
Substitute Property as provided herein, Lender shall execute or cause to be
executed all such documents as are necessary or appropriate (i) to release all
Liens granted to Lender and affecting the Replaced Property, and (ii) to cause
the Substitute Security Instrument to be cross-collateralized and
cross-defaulted with the Security Instrument. Notwithstanding anything to the
contrary hereinbefore contained, Borrower's right to substitute a Property as
herein provided shall be subject to the additional limitation that at any time
the Allocated Loan Amount of such Substitute Property, individually or when
aggregated with the Allocated Loan Amounts of all other Properties which are or
were a Substitute Property shall not constitute more than 33 1/3 % of the
original outstanding principal amount of the Loan.
2.7.2 SUBSTITUTE PROPERTY REQUIREMENTS. To qualify as a Substitute
Property, the property nominated to be a Substitute Property must, at the time
of substitution:
(a) be a property as to which Borrower will hold indefeasible fee title
free and clear of any lien or other encumbrance except for Permitted
Encumbrances;
(b) be free and clear of Hazardous Substance except for nominal amounts of
any such substances commonly incorporated in or used in the operation of
properties similar to the Properties (in either case in compliance with all
Environmental Laws), all as set forth in an environmental report delivered to
Lender;
(c) be in substantially the same repair and condition, which shall be
certified by an Officer's Certificate of Borrower, as the Replaced Property was
on the Closing Date or, in the event that the Replaced Property was itself a
Substitute Property, on the date that such Property became a Property hereunder
all as set forth in a Physical Conditions Report delivered to Lender;
28
(d) be in compliance, in all material respects, with Legal Requirements
which shall be certified in an Officer's Certificate;
(e) as evidenced by an Approved Appraisal performed at Borrower's expense
and delivered to Lender, have a fair market value no less than the greater of
(y) the fair market value of the Replaced Property on the Closing Date or (z)
the fair market value of the Replaced Property immediately prior to the
Substitution;
(f) be used primarily for self-service storage and related uses; and
(g) after giving effect to the Substitution, the Debt Service Coverage
Ratio for all of the Properties (including the Substitute Property, but
excluding the Replaced Property) shall be at least equal to the Debt Service
Coverage Ratio for all of the Properties (including the Replaced Property) for
the twelve (12) full calendar months immediately preceding the release and
substitution of such Individual Property.
2.7.3 CONDITIONS TO SUBSTITUTION. In addition to the requirements in
Section 2.7(b) above, substitution of any Property pursuant to this Section 2.7
shall be subject to the satisfaction of the following, all of which shall be
prepared or obtained at Borrower's expense:
(a) simultaneously with the Substitution, Borrower shall convey fee simple
title to the Replaced Property to a Person other than Borrower;
(b) Intentionally Deleted;
(c) Intentionally Deleted;
(d) receipt by Lender and the Rating Agencies of written notice thereof
from Borrower at least thirty (30) days before the date of the proposed
Substitution (the "SUBSTITUTION DATE"), together with (1) written evidence that
the property proposed to be a Substitute Property complies with Section 2.7(b)
above and (2) such other information, including financial information, as Lender
or the Rating Agencies may request;
(e) Lender's receipt of written affirmation from the Rating Agencies that
the ratings of the Securities immediately prior to such Substitution will not be
qualified, downgraded or withdrawn as a result of such Substitution, which
affirmation may be granted or withheld in the Rating Agencies' sole and absolute
discretion;
(f) delivery to Lender of an opinion of counsel opining as to the
enforceability of the Substitute Security Instrument with respect to the
Substitute Property in substantially the same form and substance as the opinion
of counsel concerning enforceability originally delivered at the Closing Date in
connection with the Replaced Property, with reasonable allowance for variations
in applicable State law, and a Nondisqualification Opinion and a Tax Opinion;
(g) no Event of Default shall have occurred and be continuing;
(h) the representations and warranties set forth in this Agreement, in the
Security Instrument and the Loan Documents applicable to the Replaced Property
shall be true and correct
29
(except as to title exceptions) as to the Substitute Property on the
Substitution Date in all material respects;
(i) delivery to Lender of a copy of the organizational documents of
Borrower and all amendments thereto, certified as true, complete and correct as
of the date of delivery by an Officer's Certificate; a certificate from the
secretary of the State or other applicable State official or officer in
Borrower's State of formation certifying that it is duly formed and in good
standing (with tax clearance, if applicable), if available, and certificates
from the Secretary of State of the State in which the Substitute Property is
located (if such certificates are issued), certifying as to Borrower's good
standing as a limited liability company in such State (with tax clearance, if
applicable); delivery of an Officer's Certificate, dated the Substitution Date
and signed on behalf of its Secretary or Assistant Secretary, certifying the
names of the officers of the general partner of the sole member of Borrower
authorized to execute and deliver, in the name and on behalf of Borrower, the
Security Instrument, Assignment of Leases, UCC Financing Statements, and the
other Loan Documents pertaining to such Substitute Property to which Borrower is
a party, together with the original (not photocopied) signatures of such
officers;
(j) delivery to Lender of an Officer's Certificate certifying to the
veracity of the statements in Subsections 2.7(b)(ii), 2.7(b)(iii), 2.7(b)(iv),
2.7(b)(vii), 2.7(c)(viii), and 2.7(c)(ix) hereof;
(k) delivery to Lender of originals of the following:
(i) Borrower shall have executed, acknowledged and delivered to Lender
a Security Instrument, an Assignment of Leases and two UCC Financing
Statements (to the extent execution and acknowledgment are required) with
respect to the Substitute Property, together with a letter from Borrower
countersigned by a title insurance company acknowledging receipt of such
Security Instrument, Assignment of Leases and UCC-1 Financing Statements
and agreeing to record or file, as applicable, such Security Instrument,
Assignment of Leases and Rents and, with regard to the UCC-1 Financing
Statements, if recordation or a system of filing is accepted or established
in the applicable jurisdiction, one of the UCC-1 Financing Statements in
the real estate records for the county in which the Substitute Property is
located and, subject to local law, rule or custom, to file one of the UCC-1
Financing Statements in the office of the Secretary of State of the State
in which Borrower has been formed, so as to effectively create upon such
recording and filing valid and enforceable Liens upon the Substitute
Property, of the requisite priority, in favor of Lender (or such other
trustee as may be desired under local law), subject only to the Permitted
Encumbrances and such other Liens as are permitted pursuant to the Loan
Documents. The Security Instrument, Assignment of Leases and UCC-1
Financing Statements shall be the same in form and substance as the
counterparts of such documents executed and delivered with respect to the
related Replaced Property subject to modifications reflecting the
Substitute Property as the Property that is the subject of such documents
and such modifications reflecting the laws of the State in which the
Substitute Property is located as shall be recommended by the counsel
admitted to practice in such State and delivering the opinion of counsel as
to the enforceability of such documents required pursuant to this Section.
The Security Instrument encumbering the Substitute Property shall secure
all amounts evidenced by
30
the Note, provided that in the event that the jurisdiction in which the
Substitute Property is located imposes a mortgage recording, intangibles or
similar tax and does not permit the allocation of indebtedness for the
purpose of determining the amount of such tax payable, the principal amount
secured by such Security Instrument shall be equal to one hundred fifty
percent (150%) of the amount of the Loan allocated to the Substitute
Property;
(ii) Lender shall have received (A) any "tie-in" or similar
endorsement to each Title Insurance Policy insuring the Lien of the
Security Instrument as of the date of the substitution available with
respect to the Title Insurance Policy insuring the Lien of the Security
Instrument with respect to the Substitute Property and (B) a Title
Insurance Policy (or a marked, signed and redated commitment to issue such
Title Insurance Policy) insuring the Lien of the Security Instrument
encumbering the Substitute Property, issued by the title company that
issued the Title Insurance Policies insuring the Lien of the Security
Instrument and dated as of the date of the substitution, with reinsurance
and direct access agreements that replace such agreements issued in
connection with the Title Insurance Policy insuring the Lien of the
Security Instrument encumbering the Replaced Property. The Title Insurance
Policy issued with respect to the Substitute Property shall (1) provide
coverage in the amount of the Release Amount applicable to the Substitute
Property if the "tie-in" or similar endorsement described above is
available or, if such endorsement is not available, in an amount equal to
one hundred fifty percent (150%) of the Release Amount applicable for the
Substitute Property, (2) insure Lender that the relevant Security
Instrument creates a valid first lien on the Substitute Property encumbered
thereby, free and clear of all exceptions from coverage other than
Permitted Encumbrances and standard exceptions and exclusions from coverage
(as modified by the terms of any endorsements), (3) contain such legally
available endorsements and affirmative coverages as are contained in the
Title Insurance Policies insuring the Liens of the existing Security
Instrument, and (4) name Lender as the insured. Lender also shall have
received copies of paid receipts showing that all costs of or premiums for
such endorsements and Title Insurance Policies have been paid;
(iii) a current as-built land title Survey and a certificate from a
professional licensed land surveyor with respect to such Substitute
Property, certified to the Title Company and Lender, and prepared in
accordance with the 1999 Minimum Standard Detail Requirements for ALTA/ACSM
Land Title Surveys meeting the classification of an "Urban Survey" and the
following additional items from the list of "Optional Survey
Responsibilities and Specifications" (Table A) shall be added to each
survey 2, 3, 4, 6, 8, 9, 10, 11(a) (as to utilities, surface matters only)
and 13, and showing the location, dimensions and area of each parcel of the
Substitute Property, including all existing buildings and improvements,
utilities, parking areas and spaces, internal streets, if any, external
streets, rights-of-way, as well as any easements, setback violations or
encroachments on such Substitute Property and identifying each item with
its corresponding exception, if any, in the title policy relating thereto.
Each survey shall contain the original signature and seal of the surveyor
and any additional matter required by the Title Company. In addition,
Borrower shall provide with respect to each Substitute Property a
certificate of a professional land surveyor to the effect that the
Improvements located upon such Substitute Property are not located in a
flood plain area,
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or, if such Substitute Property is in a flood plain area, Borrower shall
deliver on the Closing Date evidence of flood insurance;
(iv) a certified copy of a deed conveying to Borrower all right, title
and interest in and to the Replaced Property and a letter from a title
insurance company acknowledging receipt of such deed and agreeing to record
such deed in the real estate records for the county in which the Replaced
Property is located;
(v) insurance certificates issued by insurance companies evidencing
the insurance coverage required under Section 6.1 hereof;
(vi) a Phase I environmental report issued by a qualified
environmental consultant at Borrower's expense, and, if recommended by the
Phase I environmental report, a Phase II environmental report, which
conclude that the Substitute Property does not contain any Hazardous
Substance except for nominal amounts of such substances commonly
incorporated in or used in the operation of properties similar to the
Substitute Property (in either case in compliance with all Environmental
Laws). If any such report discloses the presence of any Hazardous
Substance, such report shall include an estimate of the cost of any related
remediation and Borrower shall deposit with Lender an amount equal to one
hundred fifty percent (150%) of such estimated cost, which deposit shall
constitute additional security for the Loan and shall be released to
Borrower upon the delivery to Lender of (A) an update to such report
indicating that there is no longer any Hazardous Substance on the
Substitute Property except for nominal amounts of such substances commonly
incorporated in or used in the operation of properties similar to the
Substitute Property (in either case in compliance with all Environmental
Laws) and (B) paid receipts indicating that the costs of all such
remediation work have been paid;
(vii) payments of or reimbursement for (A) all costs and expenses
incurred by Lender (including, without limitation, reasonable attorneys'
fees and disbursements) in connection with the substitution, (B) a
substitution fee to Lender of $5,000 for each Substitute Property, (c) all
recording charges, filing fees, taxes or other expenses (including, without
limitation, mortgage and intangibles taxes and documentary stamp taxes)
payable in connection with the substitution, and (D) all costs and expenses
of the Rating Agencies incurred in connection with the substitution;
(viii) an endorsement to the Title Insurance Policy insuring the Lien
of the Security Instrument encumbering the Substitute Property insuring
that the Substitute Property constitutes a separate tax lot or, if such an
endorsement is not available in the State in which the Substitute Property
is located, a letter from the title insurance company issuing such Title
Insurance Policy or of an opinion of competent counsel in the State where
such Substitute Property is located, stating that the Substitute Property
constitutes a separate tax lot or a letter from the appropriate authority
stating that the Substitute Property constitutes a separate tax lot;
(ix) a Physical Conditions Report with respect to the Substitute
Property stating that the Substitute Property and its use comply in all
material respects with all applicable Legal Requirements (including,
without limitation, zoning, subdivision and
32
building laws) and that the Substitute Property is in good condition and
repair and free of damage or waste. If compliance with any Legal
Requirements are not addressed by the Physical Conditions Report, such
compliance shall be confirmed by delivery to Lender of a certificate of an
architect licensed in the State in which the Substitute Property is
located, a letter from the municipality in which such Property is located,
a certificate of a surveyor that is licensed in the State in which the
Substitute Property is located (with respect to zoning and subdivision
laws), an ALTA 3.1 zoning endorsement to the Title Insurance Policy
delivered pursuant to clause (2) above (with respect to zoning laws) or a
subdivision endorsement to the Title Insurance Policy delivered pursuant to
clause (2) above (with respect to subdivision laws). If the Physical
Conditions Report recommends that any repairs be made with respect to the
Substitute Property, such Physical Conditions Report shall include an
estimate of the cost of such recommended repairs and Borrower shall deposit
with Lender an amount equal to one hundred twenty-five percent (125%) of
such estimated cost, which deposit shall constitute additional security for
the Loan and shall be released to Borrower upon the delivery to Lender of
(A) an update to such Physical Conditions Report or a letter from engineer
that prepared such Physical Conditions Report indicating that the
recommended repairs were completed in good manner and (B) paid receipts
indicating that the costs of all such repairs have been paid;
(x) annual operating statements and occupancy statements for the
Substitute Property for the most current completed fiscal year and a
current operating statement for the Replaced Property, each certified to
Lender as being true and correct, and a certificate from Borrower
certifying that there has been no adverse change in the financial condition
of the Substitute Property since the date of such operating statements;
(xi) a release of Lien (and related Loan Documents) for the Replaced
Property for execution by Lender. Such release shall be in a form
appropriate for the jurisdiction in which the Replaced Property is located;
and
(xii) Lender shall have received such other and further approvals,
opinions, documents and information in connection with the substitution as
the Rating Agencies may have requested.
ARTICLE 3 - CONDITIONS PRECEDENT
SECTION 3.1 CONDITIONS PRECEDENT TO CLOSING.
The obligation of Lender to make the Loan hereunder is subject to the
fulfillment by Borrower or waiver by Lender of the following conditions
precedent no later than the Closing Date:
3.1.1 REPRESENTATIONS AND WARRANTIES; COMPLIANCE WITH CONDITIONS. The
representations and warranties of Borrower contained in this Agreement and the
other Loan Documents shall be true and correct in all material respects on and
as of the Closing Date with the same effect as if made on and as of such date,
and no Default or an Event of Default shall have occurred and be continuing; and
Borrower shall be in compliance in all material respects
33
with all terms and conditions set forth in this Agreement and in each other Loan
Document on its part to be observed or performed.
SECTION 3.2 LOAN AGREEMENT AND NOTE.
Lender shall have received a copy of this Agreement and the Note, in each
case, duly executed and delivered on behalf of Borrower.
3.2.1 DELIVERY OF LOAN DOCUMENTS; TITLE INSURANCE; REPORTS; LEASES.
(a) SECURITY INSTRUMENT, ASSIGNMENT OF LEASES AND OTHER LOAN DOCUMENTS.
Lender shall have received from Borrower fully executed and acknowledged
counterparts of the Security Instrument and the Assignment of Leases and
evidence that counterparts of the Security Instrument and Assignment of Leases
have been delivered to the title company for recording, in the reasonable
judgment of Lender, so as to effectively create upon such recording valid and
enforceable liens upon each Individual Property, of the requisite priority, in
favor of Lender (or such other trustee as may be required or desired under local
law), subject only to the Permitted Encumbrances and such other Liens as are
permitted pursuant to the Loan Documents. Lender shall have also received from
(i) Borrower fully executed counterparts of the Environmental Indemnity, Cash
Management Agreement and Assignment of Management Agreement and (ii) Guarantor,
a fully executed counterpart of the Guaranty.
(b) TITLE INSURANCE. Lender shall have received Title Insurance Policies
issued by a title company acceptable to Lender and dated as of the Closing Date,
with reinsurance and direct access agreements acceptable to Lender. Such Title
Insurance Policies shall (i) provide coverage in amounts satisfactory to Lender,
(ii) insure Lender that the applicable Security Instrument creates a valid lien
on the Individual Property encumbered thereby of the requisite priority, free
and clear of all exceptions from coverage other than Permitted Encumbrances and
standard exceptions and exclusions from coverage (as modified by the terms of
any endorsements), (iii) contain such endorsements and affirmative coverages as
Lender may reasonably request, and (iv) name Lender as the insured. The Title
Insurance Policies shall be assignable. Lender also shall have received evidence
that all premiums in respect of such Title Insurance Policies have been paid.
(c) SURVEY. Lender shall have received a current title Survey for each
Individual Property, certified to the title company and Lender and their
successors and assigns, in form and content satisfactory to Lender and prepared
by a professional and properly licensed land surveyor satisfactory to Lender in
accordance with the 1999 Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Surveys. The Surveys shall show the following additional items from the
list of "Optional Survey Responsibilities and Specifications" (Table A) should
be added to each survey: 2, 3, 4, 6, 7(a), 7(b)(1), 8, 9, 10, 11(a) (as to
utilities, surface matters only) and 13. Each such Survey shall reflect the same
legal description contained in the Title Insurance Policy relating to such
Individual Property referred to in clause (ii) above and shall include, among
other things, a metes and bounds description of the real property comprising
part of such Individual Property reasonably satisfactory to Lender. The
surveyor's seal shall be affixed to each Survey and the surveyor shall provide a
certification for each Survey
34
in accordance with the 1999 Minimum Standard Detail Requirements for ALTA/ACSM
Land Title Surveys in form and substance acceptable to Lender.
(d) INSURANCE. Lender shall have received valid certificates of insurance
for the policies of insurance required hereunder, satisfactory to Lender in its
sole discretion, and evidence of the payment of all premiums payable for the
existing policy period.
(e) ENVIRONMENTAL REPORTS. Lender shall have received an environmental
report in respect of each Individual Property, in each case satisfactory to
Lender.
(f) ZONING. With respect to each Individual Property, Lender shall have
received, at Lender's option, (i) letters or other evidence with respect to each
Individual Property from the appropriate municipal authorities (or other
Persons) concerning applicable zoning and building laws, (ii) an ALTA 3.1 zoning
endorsement for the applicable Title Insurance Policy or (iii) a zoning opinion
letter, in each case in substance reasonably satisfactory to Lender.
(g) ENCUMBRANCES. Borrower shall have taken or caused to be taken such
actions in such a manner so that Lender has a valid and perfected first lien as
of the Closing Date with respect to each Security Instrument on the applicable
Individual Property, subject only to applicable Permitted Encumbrances and such
other Liens as are permitted pursuant to the Loan Documents, and Lender shall
have received satisfactory evidence thereof.
3.2.2 RELATED DOCUMENTS. Each additional document not specifically
referenced herein, but relating to the transactions contemplated herein, shall
have been duly authorized, executed and delivered by all parties thereto and
Lender shall have received and approved certified copies thereof.
3.2.3 DELIVERY OF ORGANIZATIONAL DOCUMENTS. On or before the Closing Date,
Borrower shall deliver or cause to be delivered to Lender copies certified by
Borrower of all organizational documentation related to Borrower and/or the
formation, structure, existence, good standing and/or qualification to do
business, as Lender may request in its sole discretion, including, without
limitation, good standing certificates, qualifications to do business in the
appropriate jurisdictions, resolutions authorizing the entering into of the Loan
and incumbency certificates as may be requested by Lender.
3.2.4 OPINIONS OF BORROWER'S COUNSEL. Lender shall have received opinions
of Borrower's counsel (a) with respect to non-consolidation issues, and (b) with
respect to due execution, authority, enforceability of the Loan Documents and
such other matters as Lender may require, all such opinions in form, scope and
substance satisfactory to Lender and Lender's counsel in their sole discretion.
3.2.5 BUDGETS. Borrower shall have delivered to Lender the Annual Budget
for the current Fiscal Year.
3.2.6 BASIC CARRYING COSTS. Borrower shall have paid all Basic Carrying
Costs relating to the Properties which are in arrears, including without
limitation, (a) accrued but unpaid insurance premiums relating to the
Properties, (b) currently due Taxes (including any in
35
arrears) relating to the Properties, and (c) currently due Other Charges
relating to the Properties, which amounts shall be funded with proceeds of the
Loan.
3.2.7 COMPLETION OF PROCEEDINGS. All corporate and other organizational
proceedings taken or to be taken in connection with the transactions
contemplated by this Agreement and other Loan Documents and all documents
incidental thereto shall be satisfactory in form and substance to Lender, and
Lender shall have received all such counterpart originals or certified copies of
such documents as Lender may reasonably request.
3.2.8 PAYMENTS. All payments, deposits or escrows required to be made or
established by Borrower under this Agreement, the Note and the other Loan
Documents on or before the Closing Date shall have been paid.
3.2.9 TENANT ESTOPPELS. Lender shall have received an executed tenant
estoppel letter, which shall be in form and substance satisfactory to Lender,
from each tenant under a Major Lease.
3.2.10 TRANSACTION COSTS. Borrower shall have paid or reimbursed Lender for
all title insurance premiums, recording and filing fees, costs of environmental
reports, Physical Conditions Reports, appraisals and other reports, the fees and
costs of Lender's counsel and all other third party out-of-pocket expenses
incurred in connection with the origination of the Loan.
3.2.11 MATERIAL ADVERSE EFFECT. There shall have been no Material Adverse
Effect on the financial condition or business condition of Borrower or the
Properties since the date of the most recent financial statements delivered to
Lender. The income and expenses of the Properties, the occupancy and Leases
thereof, and all other features of the transaction shall be as represented to
Lender without material adverse change. Neither Borrower nor any of its
constituent Persons shall be the subject of any bankruptcy, reorganization, or
insolvency proceeding.
3.2.12 LEASES AND RENT ROLL. Lender shall have received copies of all
tenant leases, certified copies of any tenant leases as requested by Lender and
certified copies of all ground leases affecting the Properties. Lender shall
have received a current certified rent roll of the Properties, reasonably
satisfactory in form and substance to Lender.
3.2.13 TAX LOT. Lender shall have received evidence that each Individual
Property constitutes one (1) or more separate tax lots, which evidence shall be
reasonably satisfactory in form and substance to Lender.
3.2.14 PHYSICAL CONDITIONS REPORTS. Lender shall have received Physical
Conditions Reports with respect to each Individual Property, which reports shall
be reasonably satisfactory in form and substance to Lender.
3.2.15 MANAGEMENT AGREEMENT. Lender shall have received a certified copy of
the Management Agreement with respect to the Properties which shall be
satisfactory in form and substance to Lender.
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3.2.16 APPRAISAL. Lender shall have received an appraisal of each
Individual Property, which shall be satisfactory in form and substance to
Lender.
3.2.17 FINANCIAL STATEMENTS. Lender shall have received a balance sheet
with respect to each Individual Property for the two most recent Fiscal Years
and statements of income and statements of cash flows with respect to each
Individual Property for the three most recent Fiscal Years, each in form and
substance satisfactory to Lender.
3.2.18 FURTHER DOCUMENTS. Lender or its counsel shall have received such
other and further approvals, opinions, documents and information as Lender or
its counsel may have reasonably requested including the Loan Documents in form
and substance satisfactory to Lender and its counsel.
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES
SECTION 4.1 BORROWER REPRESENTATIONS.
Borrower represents and warrants as of the date hereof and as of the
Closing Date that:
4.1.1 ORGANIZATION. Borrower has been duly organized and is validly
existing and in good standing with requisite power and authority to own its
properties and to transact the businesses in which it is now engaged. Borrower
is duly qualified to do business and is in good standing in each jurisdiction
where it is required to be so qualified in connection with its properties,
businesses and operations. Borrower possesses all rights, licenses, permits and
authorizations, governmental or otherwise, necessary to entitle it to own its
properties and to transact the businesses in which it is now engaged, and the
sole business of Borrower is the ownership, management and operation of the
Properties. Schedule 4.1.1 attached hereto accurately depicts the organizational
structure of Borrower.
4.1.2 PROCEEDINGS. Borrower has taken all necessary action to authorize the
execution, delivery and performance of this Agreement and the other Loan
Documents. This Agreement and such other Loan Documents have been duly executed
and delivered by or on behalf of Borrower and constitute legal, valid and
binding obligations of Borrower enforceable against Borrower in accordance with
their respective terms, subject only to applicable bankruptcy, insolvency and
similar laws affecting rights of creditors generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
4.1.3 NO CONFLICTS. The execution, delivery and performance of this
Agreement and the other Loan Documents by Borrower will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance (other than pursuant to the Loan Documents) upon any of the property
or assets of Borrower pursuant to the terms of any indenture, mortgage, deed of
trust, loan agreement, partnership agreement or other agreement or instrument to
which Borrower is a party or by which any of Borrower's property or assets is
subject, nor will such action result in any violation of the provisions of any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over Borrower or any of Borrower's properties or
assets, and any consent, approval, authorization, order, registration or
qualification of or with
37
any court or any such regulatory authority or other governmental agency or body
required for the execution, delivery and performance by Borrower of this
Agreement or any other Loan Documents has been obtained and is in full force and
effect.
4.1.4 LITIGATION. Except as set forth on Schedule 4.1.4 attached hereto and
made a part hereof there are no actions, suits or proceedings at law or in
equity by or before any Governmental Authority or other agency now pending or
threatened against or affecting Borrower or any Individual Property, which
actions, suits or proceedings, if determined against Borrower or any Individual
Property, might materially adversely affect the condition (financial or
otherwise) or business of Borrower or the condition or ownership of any
Individual Property.
4.1.5 AGREEMENTS. Borrower is not a party to any agreement or instrument or
subject to any restriction which might materially and adversely affect Borrower
or any Individual Property, or Borrower's business, properties or assets,
operations or condition, financial or otherwise. Borrower is not in default in
any material respect in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any agreement or instrument to
which it is a party or by which Borrower or any of the Properties are bound.
Borrower has no material financial obligation under any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which Borrower
is a party or by which Borrower or the Properties is otherwise bound, other than
(a) obligations incurred in the ordinary course of the operation of the
Properties and specifically permitted under this Agreement and (b) obligations
under the Loan Documents. Set forth on Schedule 4.1.5 attached hereto are the
material agreements to which Borrower is a party or by which Borrower or any of
the Properties are bound. Each such material agreement is cancellable without
penalty or premium on no more than thirty (30) days notice unless otherwise
specifically set forth on such Schedule 4.1.5.
4.1.6 TITLE. Borrower has good, marketable and insurable fee simple title
to the real property comprising part of each Individual Property and good title
to the balance of such Individual Property, free and clear of all Liens
whatsoever except the Permitted Encumbrances, such other Liens as are permitted
pursuant to the Loan Documents and the Liens created by the Loan Documents. Each
Security Instrument, when properly recorded in the appropriate records, together
with any Uniform Commercial Code financing statements required to be filed in
connection therewith, will create (a) a valid, perfected lien on the applicable
Individual Property, subject only to Permitted Encumbrances and the Liens
created by the Loan Documents and (b) perfected security interests in and to,
and perfected collateral assignments of, all personalty (including the Leases),
all in accordance with the terms thereof, in each case subject only to any
applicable Permitted Encumbrances, such other Liens as are permitted pursuant to
the Loan Documents and the Liens created by the Loan Documents. There are no
claims for payment for work, labor or materials affecting the Properties which
are or may become a lien prior to, or of equal priority with, the Liens created
by the Loan Documents.
4.1.7 SOLVENCY / NO BANKRUPTCY FILING. Borrower (a) has not entered into
the transaction or executed the Note, this Agreement or any other Loan Documents
with the actual intent to hinder, delay or defraud any creditor and (b) has
received reasonably equivalent value in exchange for its obligations under the
Loan Documents. Giving effect to the Loan, the fair saleable value of Borrower's
assets exceeds and will, immediately following the making of the Loan, exceed
Borrower's total liabilities, including, without limitation, subordinated,
38
unliquidated, disputed and contingent liabilities. The fair saleable value of
Borrower's assets is and will, immediately following the making of the Loan, be
greater than Borrower's probable liabilities, including the maximum amount of
its contingent liabilities on its debts as such debts become absolute and
matured. Borrower's assets do not and, immediately following the making of the
Loan will not, constitute unreasonably small capital to carry out its business
as conducted or as proposed to be conducted. Borrower does not intend to incur
debt and liabilities (including contingent liabilities and other commitments)
beyond its ability to pay such debt and liabilities as they mature (taking into
account the timing and amounts of cash to be received by Borrower and the
amounts to be payable on or in respect of obligations of Borrower). No petition
under the Bankruptcy Code or similar State bankruptcy or insolvency law has been
filed against Borrower or any constituent Person in the last seven (7) years,
and neither Borrower nor any constituent Person in the last seven (7) years has
ever made an assignment for the benefit of creditors or taken advantage of any
insolvency act for the benefit of debtors. Neither Borrower nor any of its
constituent Persons are contemplating either the filing of a petition by it
under the Bankruptcy Code or similar State bankruptcy or insolvency law or the
liquidation of all or a major portion of Borrower's assets or property, and
Borrower has no knowledge of any Person contemplating the filing of any such
petition against it or such constituent Persons.
4.1.8 FULL AND ACCURATE DISCLOSURE. No statement of fact made by Borrower
in this Agreement or in any of the other Loan Documents contains any untrue
statement of a material fact or omits to state any material fact necessary to
make statements contained herein or therein not misleading. There is no material
fact presently known to Borrower which has not been disclosed to Lender which
adversely affects, nor as far as Borrower can foresee, might adversely affect,
any Individual Property or the business, operations or condition (financial or
otherwise) of Borrower.
4.1.9 NO PLAN ASSETS. Borrower is not a Plan and none of the assets of
Borrower constitute or will constitute "Plan Assets" of one or more Plans. In
addition, (a) Borrower is not a "governmental plan" within the meaning of
Section 3(32) of ERISA and (b) transactions by or with Borrower are not subject
to State statutes regulating investment of, and fiduciary obligations with
respect to, governmental plans similar to the provisions of Section 406 of ERISA
or Section 4975 of the Code currently in effect, which prohibit or otherwise
restrict the transactions contemplated by this Agreement.
4.1.10 COMPLIANCE. Borrower and the Properties and the use thereof comply
in all material respects with all applicable Legal Requirements, including,
without limitation, Environmental Laws, building and zoning ordinances and
codes. Borrower is not in default or violation of any order, writ, injunction,
decree or demand of any Governmental Authority. There has not been committed by
Borrower or, to Borrower's actual knowledge, any other Person in occupancy of or
involved with the operation or use of the Properties any act or omission
affording the Federal government or any other Governmental Authority the right
of forfeiture as against any Individual Property or any part thereof or any
monies paid in performance of Borrower's obligations under any of the Loan
Documents. Borrower hereby covenants and agrees not to commit, permit or suffer
to exist any act or omission affording such right of forfeiture.
39
4.1.11 FINANCIAL INFORMATION. All financial data, including, without
limitation, the statements of cash flow and income and operating expense, that
have been delivered to Lender in respect of Borrower and the Properties (i) are
true, complete and correct in all material respects, (ii) accurately represent
the financial condition of Borrower and the Properties, as applicable, as of the
date of such reports, and (iii) to the extent prepared or audited by an
Acceptable Accountant, have been prepared in accordance with GAAP throughout the
periods covered, except as disclosed therein. Borrower does not have any
contingent liabilities, liabilities for taxes, unusual forward or long-term
commitments or unrealized or anticipated losses from any unfavorable commitments
that are known to Borrower and reasonably likely to have a Material Adverse
Effect on any Individual Property or the operation thereof in the manner
currently operated, except as referred to or reflected in said financial
statements. Since the date of such financial statements, there has been no
Material Adverse Effect on the financial condition, operations or business of
Borrower from that set forth in said financial statements.
4.1.12 CONDEMNATION. No Condemnation or other similar proceeding has been
commenced or, to the best of Borrower's knowledge, is contemplated with respect
to all or any portion of any Individual Property or for the relocation of
roadways providing access to any Individual Property.
4.1.13 FEDERAL RESERVE REGULATIONS. No part of the proceeds of the Loan
will be used for the purpose of purchasing or acquiring any "margin stock"
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System or for any other purpose which would be inconsistent with such
Regulation U or any other Regulations of such Board of Governors, or for any
purposes prohibited by Legal Requirements or by the terms and conditions of this
Agreement or the other Loan Documents.
4.1.14 UTILITIES AND PUBLIC ACCESS. Each Individual Property has rights of
access to public ways and is served by public water, sewer, sanitary sewer and
storm drain facilities adequate to service such Individual Property for its
respective intended uses. All public utilities necessary or convenient to the
full use and enjoyment of each Individual Property are located either in the
public right-of-way abutting such Individual Property (which are connected so as
to serve such Individual Property without passing over other property) or in
recorded easements serving such Individual Property and such easements are set
forth in and insured by the Title Insurance Policies. All roads necessary for
the use of each Individual Property for their current respective purposes have
been completed, are physically open and are dedicated to public use and have
been accepted by all Governmental Authorities.
4.1.15 NOT A FOREIGN PERSON. Borrower is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Code.
4.1.16 SEPARATE LOTS. Each Individual Property is comprised of one (1) or
more parcels which constitute a separate tax lot or lots and does not constitute
a portion of any other tax lot not a part of such Individual Property.
4.1.17 ASSESSMENTS. There are no pending or proposed special or other
assessments for public improvements or otherwise affecting any Individual
Property, nor, has Borrower received
40
any notice of any contemplated improvements to any Individual Property that may
result in such special or other assessments.
4.1.18 ENFORCEABILITY. The Loan Documents are not subject to any right of
rescission, set-off, counterclaim or defense by Borrower, including the defense
of usury, nor would the operation of any of the terms of the Loan Documents, or
the exercise of any right thereunder, render the Loan Documents unenforceable,
and Borrower has not asserted any right of rescission, set-off, counterclaim or
defense with respect thereto.
4.1.19 NO PRIOR ASSIGNMENT. There are no prior assignments of the Leases or
any portion of the Rents due and payable or to become due and payable which are
presently outstanding.
4.1.20 INSURANCE. Borrower has obtained and has delivered to Lender
certified copies of all insurance policies reflecting the insurance coverages,
amounts and other requirements set forth in this Agreement. No claims have been
made under any such policy, and no Person, including Borrower, has done, by act
or omission, anything which would impair the coverage of any such policy.
4.1.21 USE OF PROPERTY. Each Individual Property is used exclusively for
self-service storage facility purposes and other appurtenant and related uses.
4.1.22 CERTIFICATE OF OCCUPANCY; LICENSES. All certifications, permits,
licenses and approvals, including without limitation, certificates of completion
and occupancy permits required for the legal use, occupancy and operation of
each Individual Property as currently operated (collectively, the "LICENSES"),
have been obtained and are in full force and effect. Borrower shall keep and
maintain all licenses necessary for the operation of each Individual Property as
currently operated. The use being made of each Individual Property is in
conformity with the certificate of occupancy issued for such Individual
Property.
4.1.23 FLOOD ZONE. Except as shown on the Surveys, none of the Improvements
on any Individual Property are located in an area as identified by the Federal
Emergency Management Agency as an area having special flood hazards and, if so
located, the flood insurance required hereunder is in full force and effect with
respect to each such Individual Property.
4.1.24 PHYSICAL CONDITION. Each Individual Property, including, without
limitation, all buildings, improvements, parking facilities, sidewalks, storm
drainage systems, roofs, plumbing systems, HVAC systems, fire protection
systems, electrical systems, equipment, elevators, exterior sidings and doors,
landscaping, irrigation systems and all structural components, are in good
condition, order and repair in all material respects; there exists no structural
or other material defects or damages in any Individual Property, whether latent
or otherwise, and Borrower has not received notice from any insurance company or
bonding company of any defects or inadequacies in any Individual Property, or
any part thereof, which would adversely affect the insurability of the same or
cause the imposition of extraordinary premiums or charges thereon or of any
termination or threatened termination of any policy of insurance or bond. Each
Individual Property is free from damage covered by fire or other casualty. All
liquid and solid
41
waste disposal, septic and sewer systems located on each Individual Property are
in a good and safe condition and repair and in compliance with all Legal
Requirements.
4.1.25 BOUNDARIES. Except as otherwise as shown on the Survey, all of the
Improvements which were included in determining the appraised value of each
Individual Property lie wholly within the boundaries and building restriction
lines of such Individual Property, and no improvements on adjoining properties
encroach upon such Individual Property, and no easements or other encumbrances
upon the applicable Individual Property encroach upon any of the Improvements,
so as to affect the value or marketability of the applicable Individual Property
except those which are insured against by title insurance; provided, however, to
the extent that any of the foregoing are not satisfied, such encroachments do
not have a Material Adverse Effect.
4.1.26 LEASES.
(a) The Properties are not subject to any Leases other than the Leases
disclosed to Lender in writing or set forth in the occupancy and/or rental
reports delivered to Lender on or prior to the Closing Date. Except as set forth
on Schedule 4.1.26 attached hereto, there are no Major Leases on any Individual
Property. Borrower is the owner and lessor of landlord's interest in the Leases.
No Person has any possessory interest in any Individual Property or right to
occupy the same except under and pursuant to the provisions of the Leases. The
current Leases are in full force and effect and there are no defaults by
Borrower or, to the best of Borrower's knowledge, any tenant under any Lease
which have a Material Adverse Effect and, to the best of Borrower's knowledge,
there are no conditions that, with the passage of time or the giving of notice,
or both, would constitute defaults under any Lease which would have a Material
Adverse Effect. Except as disclosed to Lender in writing or set forth in the
Rent Rolls delivered to Lender on or prior to the Closing Date, no Rent
(including security deposits) has been paid more than one (1) month in advance
of its due date. There are no offsets or defenses to the payment of any portion
of the Rents. All work to be performed by Borrower under each Lease has been
performed as required and has been accepted by the applicable tenant, and,
except as disclosed to Lender in writing or set forth in the Rent Rolls, any
payments, free rent, partial rent, rebate of rent or other payments, credits,
allowances or abatements required to be given by Borrower to any tenant has
already been received by such tenant. There has been no prior sale, transfer or
assignment, hypothecation or pledge of any Lease or of the Rents received
therein which is still in effect. Except as disclosed to Lender in writing or
set forth in the Rent Rolls, to the best of Borrower's knowledge, no tenant has
assigned its Lease or sublet all or any portion of the premises demised thereby,
no such tenant holds its leased premises under assignment or sublease, nor does
anyone except such tenant and its employees occupy such leased premises. No
tenant under any Lease has a right or option pursuant to such Lease or otherwise
to purchase all or any part of the leased premises or the building of which the
leased premises are a part. No tenant under any Lease has any right or option
for additional space in the Improvements. To Borrower's knowledge, no hazardous
wastes or toxic substances, as defined by applicable Federal, State or local
statutes, rules and regulations, have been disposed, stored or treated by any
tenant under any Lease on or about the leased premises nor does Borrower have
any knowledge of any tenant's intention to use its leased premises for any
activity which, directly or indirectly, involves the use, generation, treatment,
storage, disposal or transportation of any petroleum product or any toxic or
hazardous chemical, material, substance or waste.
42
(b) With respect to any Individual Property located within the State of New
York, Lender shall have all of the rights against lessees of each Individual
Property located in the State of New York set forth in Section 291-f of the Real
Property Law of New York.
4.1.27 SURVEY. The Survey for each Individual Property delivered to Lender
in connection with this Agreement has been prepared in accordance with the
provisions of Section 3.1.3(c) hereof, and does not fail to reflect any material
matter affecting such Individual Property or the title thereto.
4.1.28 LOAN TO VALUE. The maximum principal amount of the Loan does not
exceed one hundred twenty-five percent (125%) of the fair market value of the
Properties.
4.1.29 FILING AND RECORDING TAXES. All transfer taxes, deed stamps,
intangible taxes or other amounts in the nature of transfer taxes required to be
paid by any Person under applicable Legal Requirements currently in effect in
connection with the transfer of the Properties to Borrower have been paid. All
mortgage, mortgage recording, stamp, intangible or other similar tax required to
be paid by any Person under applicable Legal Requirements currently in effect in
connection with the execution, delivery, recordation, filing, registration,
perfection or enforcement of any of the Loan Documents, including, without
limitation, the Security Instrument, been paid, and, under current Legal
Requirements, each Security Instrument is enforceable in accordance with their
respective terms by Lender (or any subsequent holder thereof).
4.1.30 SINGLE PURPOSE ENTITY/SEPARATENESS. Borrower represents, warrants
and covenants as follows:
(a) The purpose for which Borrower is organized is and shall be limited
solely to (i) owning, holding, selling, leasing, transferring, exchanging,
operating and managing the Properties, (ii) entering into this Agreement with
Lender, (iii) refinancing the Properties in connection with a permitted
repayment of the Loan and (iv) transacting any and all lawful business for which
a Borrower may be organized under its constitutive law that is incident,
necessary and appropriate to accomplish the foregoing.
(b) Borrower does not own and will not own any asset or property other than
(i) the Properties, and (ii) incidental personal property necessary for and used
or to be used in connection with the ownership or operation of the Properties.
(c) Borrower will not engage in any business other than the ownership,
management and operation of the Properties.
(d) Borrower will not enter into any contract or agreement with any
Affiliate of Borrower, any constituent party of Borrower, any guarantors of the
obligations of Borrower or any Affiliate of any constituent party, owner or
guarantor (collectively, the "RELATED PARTIES"), except upon terms and
conditions that are intrinsically fair, commercially reasonable and
substantially similar to those that would be available on an arms-length basis
with third parties not so affiliated with Borrower or such Related Parties.
Borrower will maintain an arm's length relationship with such Related Parties or
any other Person.
43
(e) Borrower has not incurred and will not incur any Indebtedness other
than (i) the Loan and (ii) trade payables in the ordinary course of business
with trade creditors in amounts as are normal and reasonable under the
circumstances, provided such debt is not evidenced by a note, does not exceed
$3,500,000.00 in the aggregate, and is not in excess of sixty (60) days past
due. No Indebtedness other than the Debt may be secured (senior, subordinate or
pari passu) by the Properties.
(f) Borrower has not made and will not make any loans or advances to any
Person and shall not acquire obligations or securities of any Related Party.
Borrower will not form, acquire or hold any subsidiaries, or own or acquire any
stock or equity interest in any Related Parties or any other Person (except that
Borrower may invest in those investments permitted under the Loan Documents).
(g) Borrower is and will remain solvent and Borrower will pay its debts and
liabilities (including, as applicable, shared personnel and overhead expenses)
from its own assets only, and as the same shall become due.
(h) Borrower has done or caused to be done and will do all things necessary
to observe organizational formalities and preserve its existence, and Borrower
will not, nor will Borrower permit any Related Party to, amend, modify or
otherwise change the partnership certificate, partnership agreement, articles of
incorporation and bylaws, operating agreement, trust or other organizational
documents of Borrower or such Related Party without the prior written consent of
Lender.
(i) Borrower will maintain all of its books, records, financial statements
and bank accounts separate from those of any other Person and Borrower's assets
will not be listed as assets on the financial statement of any other Person
except as otherwise required in accordance with GAAP. Borrower will file its own
tax returns to the extent required by applicable law; provided, however, that
Borrower's assets and income may be included in a consolidated tax return of its
parent companies if inclusion on such a consolidated tax return is required to
comply with the requirements of applicable law or by reason of Borrower's being
treated as a disregarded entity for Federal income tax purposes.
(j) Borrower will be, and at all times will hold itself out to the public
as, a legal entity separate and distinct from any other Person (including any
Affiliate or other Related Party), shall correct any known misunderstanding
regarding its status as a separate entity, shall conduct business in its own
name, shall not identify itself or any of its Affiliates as a division or part
of the other and shall maintain and utilize separate stationery, invoices and
checks.
(k) Borrower will maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and in light of
its contemplated business operations, except that no constituent party of
Borrower shall be required to make any additional capital contributions to
Borrower.
(l) Neither Borrower nor any Related Party will seek the dissolution,
winding up, liquidation, consolidation or merger in whole or in part, or the
sale of material assets of Borrower.
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(m) Borrower will not commingle its assets with those of any other Person
and will hold all of its assets in its own name. Borrower will deposit all of
its funds in checking accounts, savings accounts, time deposits or certificate
deposits in its own name or invest such funds in its own name.
(n) Borrower will not guarantee or become obligated for the debts of any
other Person and does not and will not hold itself out as being responsible for
the debts or obligations of any other Person.
(o) Unless Borrower is a single member limited liability company formed
under the laws of the State of Delaware, Borrower shall require that a Person
holding an interest in Borrower be a corporation or limited liability company
(the "SPC PARTY") which will at all times comply, and will cause Borrower to
comply, with each of the representations, warranties, and covenants contained in
this Section 4.1.30 as if such representation, warranty or covenant was made
directly by such Person. The structure of Borrower and the interest of the SPC
Party shall be reasonably acceptable to Lender and shall satisfy the
requirements of the Rating Agencies for "single purpose, bankruptcy remote
entities". Notwithstanding the foregoing so long as Borrower is a single member
limited liability company formed under the laws of the State of Delaware and the
organizational documents of Borrower as delivered to Lender in connection with
the Closing are not modified, Borrower shall not be required to have an SPC
Party and all provisions of this Agreement and the other Loan Documents
pertaining to SPC Party shall be disregarded.
(p) Borrower shall at all times cause there to be at least two (2) duly
appointed members of the board of directors of the SPC Party or if Borrower is a
single member Delaware limited liability company, its board of managers (each an
"INDEPENDENT DIRECTOR") reasonably satisfactory to Lender who shall not have
been at the time of each such individual's respective appointment, and shall not
be at any time while serving as a Independent Director and may not have been at
any time during the preceding five years (i) a shareholder of, or an officer,
director, partner or employee of, Borrower or any of its or their shareholders,
subsidiaries or Affiliates, (ii) a customer of, or supplier to, or who derives
any of its purchases or revenues from its activities with Borrower or SPC Party
(if applicable) or any Affiliate of either of them any of its or their
shareholders, subsidiaries or Affiliates, (iii) a Person controlling or under
common control with any such shareholder, partner supplier or customer, or (iv)
a member of the immediate family of any such shareholder, officer, director,
partner, employee, supplier or customer of any other director of Borrower or the
SPC Party (if applicable). Notwithstanding the foregoing, an individual that
otherwise satisfies the foregoing shall not be disqualified from serving as an
Independent Director if such individual is at the time of initial appointment,
or at any time while serving as an Independent Director, an independent director
of a "special purpose entity" affiliated with Borrower. As used in this clause
(p), the term "special purpose entity" shall mean an entity whose organizational
documents contain restrictions on its activities and impose requirements
intended to preserve separateness that are substantially similar to those of
Borrower and provide, inter alia, that it: (a) is organized for a limited
purpose; (b) has restrictions on its ability to incur indebtedness, dissolve,
liquidate, consolidate, merge and/or sell assets; (c) may not file voluntarily a
bankruptcy petition without the consent of independent managers or independent
directors and (d) shall conduct itself in accordance with certain "separateness
45
covenants", including, but not limited to, the maintenance of its books,
records, bank accounts and assets separate from those of any other Person.
(q) Borrower shall not cause or permit the board of directors of the SPC
Party to take any action which, under the terms of any certificate of
incorporation, by-laws or any voting trust agreement with respect to any common
stock, requires a vote of the board of directors of the SPC Party of Borrower
unless at the time of such action there shall be at least one member who is an
Independent Director.
(r) Borrower shall allocate fairly and reasonably any overhead expenses
that are shared with an Affiliate, including paying for office space and
services performed by any employee of an Affiliate or Related Party.
(s) Borrower shall not pledge its assets for the benefit of any other
Person other than with respect to the Loan.
(t) Borrower shall maintain a sufficient number of employees in light of
its contemplated business operations and pay the salaries of its own employees
from its own funds.
(u) Borrower shall conduct its business so that the assumptions made with
respect to Borrower in the Insolvency Opinion, a true copy of which is attached
as Schedule 4.1.30 attached hereto, shall be and remain true and correct in all
respects.
4.1.31 MANAGEMENT AGREEMENT. The Management Agreement is in full force and
effect and there is no default thereunder by any party thereto and no event has
occurred that, with the passage of time and/or the giving of notice would
constitute a default thereunder. Except with respect to the Properties set forth
on Schedule 4.1.31 attached hereto, the Properties are managed and operated as
"U-Store-It" self-service storage facilities.
4.1.32 ILLEGAL ACTIVITY. No portion of any Individual Property has been or
will be purchased with proceeds of any illegal activity and to the best of
Borrower's knowledge, there are no illegal activities or activities relating to
any controlled substances at any Individual Property.
4.1.33 NO CHANGE IN FACTS OR CIRCUMSTANCES; DISCLOSURE. All information
submitted by Borrower to Lender and in all financial statements, rent rolls,
reports, certificates and other documents submitted in connection with the Loan
or in satisfaction of the terms thereof and all statements of fact made by
Borrower in this Agreement or in any other Loan Document, are accurate, complete
and correct in all material respects. There has been no material adverse change
in any condition, fact, circumstance or event that would make any such
information inaccurate, incomplete or otherwise misleading in any material
respect or that otherwise materially and adversely affects or might materially
and adversely affect the Properties or the business operations or the financial
condition of Borrower. Borrower has disclosed to Lender all material facts and
has not failed to disclose any material fact that could cause any Provided
Information or representation or warranty made herein to be materially
misleading.
4.1.34 INTELLECTUAL PROPERTY. Borrower owns or has the right to use, under
valid license agreements or otherwise, all Intellectual Property necessary to or
used in the conduct of its
46
businesses as now conducted and as contemplated by this Agreement or the other
Loan Documents, without known conflict with any patent, license, franchise,
trademark, trade secret, trade name, copyright, or other proprietary right of
any other Person, provided, however, Borrower may not be able to use the
"U-Store-It" name with respect to the Properties set forth on Schedule 4.1.31
attached hereto. All such Intellectual Property is fully protected and/or duly
and properly registered, filed or issued in the appropriate office and
jurisdictions for such registrations, filings or issuances. No material claim
has been asserted by any Person with respect to the use of any Intellectual
Property, or challenging or questioning the validity or effectiveness of any
Intellectual Property. The use of such Intellectual Property by Borrower does
not infringe on the rights of any Person, subject to such claims and
infringements as do not, in the aggregate, give rise to any liabilities on the
part of Borrower that could reasonably be expected to have a Material Adverse
Effect.
4.1.35 INVESTMENT COMPANY ACT. Borrower is not (a) an "investment company"
or a company "controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended; (b) a "holding company" or a
"subsidiary company" of a "holding company" or an "affiliate" of either a
"holding company" or a "subsidiary company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended; or (c) subject to any other
Federal or State law or regulation which purports to restrict or regulate its
ability to borrow money.
4.1.36 PRINCIPAL PLACE OF BUSINESS; STATE OF ORGANIZATION. Borrower's
principal place of business as of the date hereof is the address set forth in
the introductory paragraph of this Agreement. Borrower is organized under the
laws of the State of Delaware and its organizational identification number is
3997266.
4.1.37 BUSINESS PURPOSES. The Loan is solely for the business purpose of
Borrower, and is not for personal, family, household, or agricultural purposes.
4.1.38 TAXES. Borrower has filed all Federal, State, county, municipal, and
city income and other tax returns required to have been filed by it and has paid
all taxes and related liabilities which have become due pursuant to such returns
or pursuant to any assessments received by it. Borrower knows of no basis for
any additional assessment in respect of any such taxes and related liabilities
for prior years.
4.1.39 FORFEITURE. Neither Borrower nor, to Borrower's actual knowledge,
any other Person in occupancy of or involved with the operation or use any of
the Properties has committed any act or omission affording the Federal
government or any State or local government the right of forfeiture as against
any of the Properties or any part thereof or any monies paid in performance of
Borrower's obligations under the Note, this Agreement or the other Loan
Documents. Borrower hereby covenants and agrees not to commit, permit or suffer
to exist any act or omission affording such right of forfeiture.
4.1.40 ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES. Borrower represents
and warrants, except as disclosed in the written reports resulting from the
environmental site assessments of the Properties delivered to and approved by
Lender prior to the Closing Date (the "ENVIRONMENTAL REPORT") and to the best of
Borrower's knowledge: (a) there are no Hazardous
47
Substances or underground storage tanks in, on, or under any of the Properties,
except those that are both (i) in compliance with current Environmental Laws and
with permits issued pursuant thereto (if such permits are required), and (ii) in
amounts not in excess of that necessary to operate, clean, repair and maintain
the applicable Individual Property or each tenant's respective business at such
Individual Property as set forth in their respective Leases; (b) there are no
past, present or threatened Releases of Hazardous Substances in violation of any
Environmental Law in, on, under or from any of the Properties and which would
require remediation by a Governmental Authority; (c) there is no threat of any
Release of Hazardous Substances migrating to any of the Properties which would
require remediation by a Governmental Authority; (d) there is no past or present
non-compliance with current Environmental Laws, or with permits issued pursuant
thereto, in connection with any of the Properties except as described in the
Environmental Reports; (e) Borrower does not know of, and has not received, any
written or oral notice or other communication from any Person (including but not
limited to a Governmental Authority) relating to Hazardous Substances in, on,
under or from any of the Properties; and (f) Borrower has truthfully and fully
provided to Lender, in writing, any and all information relating to
environmental conditions in, on, under or from any of the Properties known to
Borrower or contained in Borrower's files and records, including but not limited
to any reports relating to Hazardous Substances in, on, under or migrating to or
from any of the Properties and/or to the environmental condition of the
Properties.
4.1.41 TAXPAYER IDENTIFICATION NUMBER. Borrower's United States taxpayer
identification number is 55-0900641.
4.1.42 OFAC. Borrower represents and warrants that none of Borrower or any
Guarantor or any of their respective Affiliates is a Prohibited Person, and
Borrower and each Guarantor and their respective Affiliates are in full
compliance with all applicable orders, rules, regulations and recommendations of
The Office of Foreign Assets Control of the U.S. Department of the Treasury.
4.1.43 INTENTIONALLY DELETED.
4.1.44 EMBARGOED PERSON. As of the date hereof and at all times throughout
the term of the Loan, including after giving effect to any transfers permitted
pursuant to the Loan Documents, (a) none of the funds or other assets of
Borrower, SPC Party or any Guarantor constitutes property of, or are
beneficially owned, directly or indirectly, by any person, entity or government
subject to trade restrictions under U.S. law, including but not limited to, the
International Emergency Economic Powers Act, 50 U.S.C. Sections 1701 et seq.,
The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive
Orders or regulations promulgated thereunder with the result that the investment
in Borrower, SPC Party or any Guarantor (whether directly or indirectly), is
prohibited by law or the Loan made by the Lender is in violation of law
("EMBARGOED PERSON"); (b) no Embargoed Person has any interest of any nature
whatsoever in Borrower, SPC Party or any Guarantor with the result that the
investment in Borrower, SPC Party or any Guarantor (whether directly or
indirectly), is prohibited by law or the Loan is in violation of law; and (c)
none of the funds of Borrower, SPC Party or any Guarantor (whether directly or
indirectly), has been derived from any unlawful activity with the result that
the investment in Borrower, SPC Party or any Guarantor (whether directly or
indirectly), is prohibited by law or the Loan is in violation of law.
48
SECTION 4.2 SURVIVAL OF REPRESENTATIONS.
Borrower agrees that all of the representations and warranties of Borrower
set forth in Section 4.1 and elsewhere in this Agreement and in the other Loan
Documents shall survive for so long as any amount remains owing to Lender under
this Agreement or any of the other Loan Documents by Borrower. All
representations, warranties, covenants and agreements made in this Agreement or
in the other Loan Documents by Borrower shall be deemed to have been relied upon
by Lender notwithstanding any investigation heretofore or hereafter made by
Lender or on its behalf.
ARTICLE 5 - BORROWER COVENANTS
SECTION 5.1 AFFIRMATIVE COVENANTS.
From the date hereof and until payment and performance in full of all
obligations of Borrower under the Loan Documents or the earlier release of the
Liens of all Security Instruments encumbering the Properties (and all related
obligations) in accordance with the terms of this Agreement and the other Loan
Documents, Borrower hereby covenants and agrees with Lender that:
5.1.1 EXISTENCE; COMPLIANCE WITH LEGAL REQUIREMENTS; INSURANCE.
(a) Borrower shall do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its existence, rights, licenses, permits
and franchises, and comply, in all material respects, with all Legal
Requirements applicable to it and the Properties. There shall never be committed
by Borrower, nor shall Borrower suffer or permit any other Person in occupancy
of or involved with the operation or use of the Properties to do, any act or
omission affording the Federal government or any State or local government the
right of forfeiture as against any Individual Property or any part thereof or
any monies paid in performance of Borrower's obligations under any of the Loan
Documents. Borrower hereby covenants and agrees not to commit, permit or suffer
to exist any act or omission affording such right of forfeiture. Borrower shall,
at all times, maintain, preserve and protect all franchises and trade names and
preserve all the remainder of its property used or useful in the conduct of its
business and shall keep the Properties in good working order and repair, and
from time to time make, or cause to be made, all reasonably necessary repairs,
renewals, replacements, betterments and improvements thereto, all as more fully
provided in this Agreement and the Security Instruments. Borrower shall keep the
Properties insured at all times by financially sound and reputable insurers, to
such extent and against such risks, and maintain liability and such other
insurance, as is more fully provided in this Agreement. Borrower shall operate
any Individual Property that is the subject of any O&M Program in accordance
with the terms and provisions thereof in all material respects.
(b) After prior written notice to Lender, Borrower, at its own expense, may
contest by appropriate legal proceeding promptly initiated and conducted in good
faith and with due diligence, the validity of any Legal Requirement, the
applicability of any Legal Requirement to Borrower or any Individual Property or
any alleged violation of any Legal Requirement, provided that (i) no Default or
Event of Default has occurred and remains uncured; (ii) such
49
proceeding shall be permitted under and be conducted in accordance with the
provisions of any instrument to which Borrower is subject and shall not
constitute a default thereunder and such proceeding shall be conducted in
accordance with all applicable laws; (iii) no Individual Property nor any part
thereof or interest therein will be in danger of being sold, forfeited,
terminated, cancelled or lost; (iv) Borrower shall promptly upon final
determination thereof comply with any such Legal Requirement determined to be
valid or applicable or cure any violation of any Legal Requirement; (v) such
proceeding shall suspend the enforcement of the contested Legal Requirement
against Borrower or any Individual Property; and (vi) Borrower shall furnish
such security as may be required in the proceeding, or as may be requested by
Lender, to insure compliance with such Legal Requirement, together with all
interest and penalties payable in connection therewith. Lender may apply any
such security or part thereof, as necessary to cause compliance with such Legal
Requirement at any time when, in the judgment of Lender, the validity,
applicability or violation of such Legal Requirement is finally established or
any Individual Property (or any part thereof or interest therein) shall be in
danger of being sold, forfeited, terminated, cancelled or lost.
5.1.2 TAXES AND OTHER CHARGES. Borrower shall pay all Taxes and Other
Charges now or hereafter levied or assessed or imposed against the Properties or
any part thereof as the same become due and payable; provided, however,
Borrower's obligation to directly pay Taxes and comply with the following
sentence shall be suspended for so long as Borrower complies with the terms and
provisions of Section 7.2 hereof. Borrower will deliver to Lender receipts for
payment or other evidence satisfactory to Lender that the Taxes and Other
Charges have been so paid or are not then delinquent no later than ten (10) days
prior to the date on which the Taxes and/or Other Charges would otherwise be
delinquent if not paid. Borrower shall not suffer and shall promptly cause to be
paid and discharged any Lien or charge whatsoever which may be or become a Lien
or charge against the Properties, and shall promptly pay for all utility
services provided to the Properties. After prior written notice to Lender,
Borrower, at its own expense, may contest by appropriate legal proceeding,
promptly initiated and conducted in good faith and with due diligence, the
amount or validity or application in whole or in part of any Taxes or Other
Charges, provided that (i) no Default or Event of Default has occurred and
remains uncured; (ii) such proceeding shall be permitted under and be conducted
in accordance with the provisions of any other instrument to which Borrower is
subject and shall not constitute a default thereunder and such proceeding shall
be conducted in accordance with all applicable statutes, laws and ordinances;
(iii) no Individual Property nor any part thereof or interest therein will be in
danger of being sold, forfeited, terminated, cancelled or lost; (iv) Borrower
shall promptly upon final determination thereof pay the amount of any such Taxes
or Other Charges, together with all costs, interest and penalties which may be
payable in connection therewith; (v) such proceeding shall suspend the
collection of such contested Taxes or Other Charges from the applicable
Individual Property; and (vi) Borrower shall furnish such security as may be
required in the proceeding, or as may be requested by Lender, to insure the
payment of any such Taxes or Other Charges, together with all interest and
penalties thereon. Lender may pay over any such cash deposit or part thereof
held by Lender to the claimant entitled thereto at any time when, in the
judgment of Lender, the entitlement of such claimant is established or any
Individual Property (or part thereof or interest therein) shall be in danger of
being sold, forfeited, terminated, cancelled or lost or there shall be any
danger of the Lien of any Security Instrument being primed by any related Lien.
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5.1.3 LITIGATION. Borrower shall give prompt written notice to Lender of
any litigation or governmental proceedings pending or threatened against
Borrower which might materially adversely affect Borrower's condition (financial
or otherwise) or business or any Individual Property.
5.1.4 ACCESS TO PROPERTIES. Borrower shall permit agents, representatives
and employees of Lender to inspect the Properties or any part thereof at
reasonable hours upon reasonable advance notice.
5.1.5 NOTICE OF DEFAULT. Borrower shall promptly advise Lender of any
Material Adverse Effect on Borrower's condition, financial or otherwise, or of
the occurrence of any Default or Event of Default of which Borrower has
knowledge.
5.1.6 COOPERATE IN LEGAL PROCEEDINGS. Borrower shall cooperate fully with
Lender with respect to any proceedings before any court, board or other
Governmental Authority which may in any way adversely affect the rights of
Lender hereunder or any rights obtained by Lender under any of the other Loan
Documents and, in connection therewith, permit Lender, at its election, to
participate in any such proceedings.
5.1.7 PERFORM LOAN DOCUMENTS. Borrower shall observe, perform and satisfy
all the terms, provisions, covenants and conditions of, and shall pay when due
all costs, fees and expenses to the extent required under the Loan Documents
executed and delivered by, or applicable to, Borrower.
5.1.8 AWARDS OR INSURANCE BENEFITS. Borrower shall cooperate with Lender in
obtaining for Lender the benefits of any Awards or Insurance Proceeds lawfully
or equitably payable in connection with any Individual Property, and Lender
shall be reimbursed for any expenses incurred in connection therewith (including
attorneys' fees and disbursements, and the payment by Borrower of the expense of
an appraisal on behalf of Lender in case of a Casualty or Condemnation affecting
any Individual Property or any part thereof) out of such Award or Insurance
Proceeds.
5.1.9 FURTHER ASSURANCES. Borrower shall, at Borrower's sole cost and
expense:
(a) furnish to Lender all instruments, documents, boundary surveys, footing
or foundation surveys, certificates, plans and specifications, appraisals, title
and other insurance reports and agreements, and each and every other document,
certificate, agreement and instrument required to be furnished by Borrower
pursuant to the terms of the Loan Documents or reasonably requested by Lender in
connection therewith;
(b) execute and deliver to Lender such documents, instruments,
certificates, assignments and other writings, and do such other acts necessary
or desirable, to evidence, preserve and/or protect the collateral at any time
securing or intended to secure the obligations of Borrower under the Loan
Documents, as Lender may reasonably require, including, without limitation, the
authorization of Lender to execute and/or the execution by Borrower of UCC
financing statements; and
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(c) do and execute all and such further lawful and reasonable acts,
conveyances and assurances for the better and more effective carrying out of the
intents and purposes of this Agreement and the other Loan Documents, as Lender
shall reasonably require from time to time.
5.1.10 SUPPLEMENTAL SECURITY INSTRUMENT AFFIDAVITS. As of the date hereof,
Borrower represents that it has paid all State, county and municipal recording
and all other taxes imposed upon the execution and recordation of the Security
Instruments. If at any time Lender determines, based on applicable law, that
Lender is not being afforded the maximum amount of security available from any
one or more of the Properties as a direct or indirect result of applicable taxes
not having been paid with respect to any Individual Property, Borrower agrees
that Borrower will execute, acknowledge and deliver to Lender, immediately upon
Lender's request, supplemental affidavits increasing the amount of the Debt
attributable to any such Individual Property (as set forth as the Release Amount
on Schedule I attached hereto) for which all applicable taxes have been paid to
an amount determined by Lender to be equal to the lesser of (a) the greater of
the fair market value of the applicable Individual Property (i) as of the date
hereof and (ii) as of the date such supplemental affidavits are to be delivered
to Lender, and (b) the amount of the Debt attributable to any such Individual
Property (as set forth as the Release Amount on Schedule I attached hereto), and
Borrower shall, on demand, pay any additional taxes.
5.1.11 FINANCIAL REPORTING.
(a) Borrower will keep and maintain or will cause to be kept and maintained
on a Fiscal Year basis, in accordance with GAAP (or such other accounting basis
acceptable to Lender), proper and accurate books, records and accounts
reflecting all of the financial affairs of Borrower and all items of income and
expense in connection with the operation on an individual basis of the
Properties. Lender shall have the right from time to time at all times during
normal business hours upon reasonable notice to examine such books, records and
accounts at the office of Borrower or other Person maintaining such books,
records and accounts and to make such copies or extracts thereof as Lender shall
desire. After the occurrence of an Event of Default, Borrower shall pay any
costs and expenses incurred by Lender to examine Borrower's accounting records
with respect to the Properties, as Lender shall determine to be necessary or
appropriate in the protection of Lender's interest.
(b) Borrower will furnish to Lender annually, within ninety (90) days
following the end of each Fiscal Year of Borrower, a complete copy of Borrower's
annual financial statements audited by an Acceptable Accountant in accordance
with GAAP (or such other accounting basis acceptable to Lender) covering the
Properties on a combined basis as well as each Individual Property for such
Fiscal Year and containing statements of profit and loss for Borrower and the
Properties and a balance sheet for Borrower. Such statements shall set forth the
financial condition and the results of operations for the Properties for such
Fiscal Year, and shall include, but not be limited to, amounts representing
annual Net Cash Flow, Net Operating Income, Gross Income from Operations and
Operating Expenses. Borrower's annual financial statements shall be accompanied
by (i) a comparison of the budgeted income and expenses and the actual income
and expenses for the prior Fiscal Year; (ii) an Officer's Certificate stating
that each such annual financial statement presents fairly the financial
condition and the results of operations of Borrower and the Properties being
reported upon and has been prepared in accordance with
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GAAP; (iii) an unqualified opinion of an Acceptable Accountant; (iv) a list of
tenants under Major Leases; (v) a breakdown showing the year in which each Major
Lease then in effect expires and the percentage of total floor area of the
Improvements and the percentage of base rent with respect to which Major Leases
shall expire in each such year, each such percentage to be expressed on both a
per year and cumulative basis; (vi) if requested by Lender, an annual occupancy
report for such year; and (vii) a schedule audited by such Acceptable Accountant
reconciling Net Operating Income to Net Cash Flow (the "NET CASH FLOW
SCHEDULE"), which shall itemize all adjustments made to Net Operating Income to
arrive at Net Cash Flow deemed material by such Acceptable Accountant. Together
with Borrower's annual financial statements, Borrower shall furnish to Lender an
Officer's Certificate certifying as of the date thereof whether there exists an
event or circumstance which constitutes a Default or Event of Default under the
Loan Documents executed and delivered by, or applicable to, Borrower, and if
such Default or Event of Default exists, the nature thereof, the period of time
it has existed and the action then being taken to remedy the same.
(c) Borrower will furnish, or cause to be furnished, to Lender on or before
twenty (20) days after the end of each calendar month the following items,
accompanied by an Officer's Certificate stating that such items are true,
correct, accurate, and complete and fairly present the financial condition and
results of the operations of Borrower and the Properties on a combined basis as
well as each Individual Property (subject to normal year-end adjustments) as
applicable: (i) a rent roll or other record of leasing for the subject month
accompanied by an Officer's Certificate with respect thereto; (ii) monthly and
year-to-date operating statements (including Capital Expenditures) prepared for
each calendar month, noting Net Operating Income, Gross Income from Operations,
and Operating Expenses (not including any contributions to the Replacement
Reserve Fund), and other information necessary and sufficient to fairly
represent the financial position and results of operation of the Properties
during such calendar month (on a combined basis as well as each Individual
Property), and containing a comparison of budgeted income and expenses and the
actual income and expenses; (iii) a calculation reflecting the annual Debt
Service Coverage Ratio for the immediately preceding twelve (12) month period as
of the last day of such month accompanied by an Officer's Certificate with
respect thereto; and (iv) a Net Cash Flow Schedule. In addition, such
certificate shall also state that the representations and warranties of Borrower
set forth in Section 4.1.30 are true and correct as of the date of such
certificate and that there are no trade payables outstanding for more than sixty
(60) days.
(d) For the partial year period commencing on the date hereof, and for each
Fiscal Year thereafter, Borrower shall submit to Lender an Annual Budget not
later than sixty (60) days prior to the commencement of such period or Fiscal
Year in form reasonably satisfactory to Lender.
(e) Intentionally Deleted.
(f) Borrower shall furnish to Lender, within ten (10) Business Days after
request (or as soon thereafter as may be reasonably possible), such further
detailed information with respect to the operation of any Individual Property
and the financial affairs of Borrower as may be reasonably requested by Lender.
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(g) Any reports, statements or other information required to be delivered
under this Agreement shall be delivered (i) in paper form, (ii) on a diskette,
and (iii) if requested by Lender in electronic form and prepared using a
Microsoft Word for Windows or Microsoft Excel for Windows program.
(h) Borrower agrees that Lender may forward to each purchaser, transferee,
assignee, servicer, participant, or investor in all or any portion of the Loan
or any Securities or any Rating Agency rating such participations and/or
Securities and each prospective investor, and any organization maintaining
databases on the underwriting and performance of commercial mortgage loans, all
documents and information which Lender now has or may hereafter acquire relating
to the Debt and to Borrower, any Guarantor and the Properties, whether furnished
by Borrower, any Guarantor or otherwise, as Lender determines necessary or
desirable. Borrower irrevocably waives any and all rights it may have under any
applicable laws to prohibit such disclosure, including, but not limited, to any
right of privacy.
5.1.12 BUSINESS AND OPERATIONS. Borrower will continue to engage in the
businesses presently conducted by it as and to the extent the same are necessary
for the ownership, maintenance, management and operation of the Properties.
Borrower will qualify to do business and will remain in good standing under the
laws of each jurisdiction as and to the extent the same are required for the
ownership, maintenance, management and operation of the Properties.
5.1.13 TITLE TO THE PROPERTIES. Borrower will warrant and defend (a) the
title to each Individual Property and every part thereof, subject only to Liens
permitted hereunder (including Permitted Encumbrances) and (b) the validity and
priority of the Liens of the Security Instruments and the Assignments of Leases
on the Properties, subject only to Liens permitted hereunder (including
Permitted Encumbrances), in each case against the claims of all Persons
whomsoever. Borrower shall reimburse Lender for any losses, costs, damages or
expenses (including reasonable attorneys' fees and court costs) incurred by
Lender if an interest in any Individual Property, other than as permitted
hereunder, is claimed by another Person.
5.1.14 COSTS OF ENFORCEMENT. In the event (a) that any Security Instrument
encumbering any Individual Property is foreclosed in whole or in part or that
any such Security Instrument is put into the hands of an attorney for
collection, suit, action or foreclosure, (b) of the foreclosure of any mortgage
prior to or subsequent to any Security Instrument encumbering any Individual
Property in which proceeding Lender is made a party, or (c) of the bankruptcy,
insolvency, rehabilitation or other similar proceeding in respect of Borrower or
any of its constituent Persons or an assignment by Borrower or any of its
constituent Persons for the benefit of its creditors, Borrower, its successors
or assigns, shall be chargeable with and agrees to pay all costs of collection
and defense, including attorneys' fees and costs, incurred by Lender or Borrower
in connection therewith and in connection with any appellate proceeding or
post-judgment action involved therein, together with all required service or use
taxes.
5.1.15 ESTOPPEL STATEMENT. (a) After request by Lender, Borrower shall
within ten (10) days furnish Lender with a statement, duly acknowledged and
certified, setting forth (i) the amount of the original principal amount of the
Note, (ii) the unpaid principal amount of the Note, (iii) the Applicable
Interest Rate of the Note, (iv) the date installments of interest and/or
principal were last paid, (v) any offsets or defenses to the payment of the
Debt, if any, and (vi) that the
54
Note, this Agreement, the Security Instruments and the other Loan Documents are
valid, legal and binding obligations and have not been modified or if modified,
giving particulars of such modification.
(b) After request by Lender, Borrower shall use its commercially reasonable
efforts to deliver to Lender, tenant estoppel certificates from each commercial
tenant leasing space at the Properties pursuant to a Major Lease in form and
substance reasonably satisfactory to Lender provided that Borrower shall not be
required to deliver such certificates more frequently than two (2) times in any
calendar year.
5.1.16 LOAN PROCEEDS. Borrower shall use the proceeds of the Loan received
by it on the Closing Date only for the purposes set forth in Section 2.1.4
hereof.
5.1.17 PERFORMANCE BY BORROWER. Borrower shall in a timely manner observe,
perform and fulfill each and every covenant, term and provision of each Loan
Document executed and delivered by, or applicable to, Borrower, and shall not
enter into or otherwise suffer or permit any amendment, waiver, supplement,
termination or other modification of any Loan Document executed and delivered
by, or applicable to, Borrower without the prior written consent of Lender.
5.1.18 CONFIRMATION OF REPRESENTATIONS. Borrower shall deliver, in
connection with any Securitization, (a) one or more Officer's Certificates
certifying as to the accuracy of all representations made by Borrower in the
Loan Documents as of the date of the closing of such Securitization in all
relevant jurisdictions, and (b) certificates of the relevant Governmental
Authorities in all relevant jurisdictions indicating the good standing and
qualification of Borrower and SPC Party as of the date of the Securitization.
5.1.19 NO JOINT ASSESSMENT. Borrower shall not suffer, permit or initiate
the joint assessment of any Individual Property (a) with any other real property
constituting a tax lot separate from such Individual Property, and (b) which
constitutes real property with any portion of such Individual Property which may
be deemed to constitute personal property, or any other procedure whereby the
lien of any taxes which may be levied against such personal property shall be
assessed or levied or charged to such real property portion of the Individual
Property.
5.1.20 LEASING MATTERS.
(a) Except as otherwise consented to by Lender in writing, all Leases shall
be written on the standard form of lease which shall have been approved by
Lender. Upon reasonable request (not to be made more than once in any
consecutive twelve (12) month period), Borrower shall furnish Lender with
executed copies of a sample of the Leases as requested by Lender. No material
changes may be made to the Lender-approved standard form of lease without the
prior written consent of Lender. In addition, all renewals of Leases and all
proposed leases shall provide for rental rates and terms comparable to existing
local market rates and terms and shall be arm's-length transactions with bona
fide, independent third party tenants. All Major Leases shall provide that they
are subordinate to the applicable Security Instrument and that the tenant agrees
to attorn to Lender.
55
(b) Borrower (i) shall observe and perform all the obligations imposed upon
the landlord under the Leases and shall not do or permit to be done anything to
impair the value of the Leases as security for the Debt; (ii) shall enforce all
of the terms, covenants and conditions contained in the Leases upon the part of
the tenant thereunder to be observed or performed (except for termination of a
Major Lease which shall require Lender's prior written approval); (iii) shall
not collect any of the Rents more than two (2) months in advance (other than
security deposits); (iv) shall not execute any other assignment of the
landlord's interest in the Leases or the Rents; and (v) shall not consent to any
assignment of or subletting under the Leases not in accordance with their terms,
without the prior written consent of Lender.
(c) All proposed Leases, renewals of Leases or amendments or terminations
of Leases shall be subject to the prior approval of Lender, which approval shall
not be unreasonably withheld, conditioned or delayed; provided, however,
Borrower may, without the consent of Lender, terminate any Lease (other than a
Major Lease) if the tenant thereunder is in default beyond applicable notice and
grace periods under such Lease. Notwithstanding the provisions of the preceding
sentence, renewals of Leases and proposed Leases shall not be subject to the
prior approval of Lender, provided all of the following conditions are
satisfied: (i) the Lease is not a Major Lease; (ii) the term is on a
month-to-month basis; (iii) the renewal or proposed Lease is on the standard
form of lease approved by Lender and provides for a term of less than one (1)
year; (iv) the renewal or proposed Lease does not contain any option, offer,
right of first refusal, or other similar right to acquire all or any portion of
the applicable Individual Property; and (v) the renewal or proposed Lease
provides for rental rates and terms (including credits or concessions)
comparable to existing market rates and terms and is an arm's-length transaction
with a bona fide, independent third party tenant. Upon Lender's reasonable
request, Borrower shall deliver to Lender, (i) within thirty (30) days after the
execution of any renewal or proposed Major Lease, copies of all such Major
Leases, and (ii) within thirty days of such request, Borrower's certification
that it has satisfied all of the conditions of this Section 5.1.20(c) with
respect to all renewal or new Leases (which are not Major Leases) which were
entered into pursuant to this Section 5.1.20(c) since the date of Lender's last
request.
5.1.21 ALTERATIONS. Borrower shall obtain Lender's prior written consent to
any alterations to any Improvements, which consent shall not be unreasonably
withheld or delayed except with respect to alterations that may have a Material
Adverse Effect. Notwithstanding the foregoing, Lender's consent shall not be
required in connection with any alterations that will not have a Material
Adverse Effect, provided that such alterations are made in connection with (a)
tenant improvement work performed pursuant to the terms of any Lease executed on
or before the date hereof, (b) tenant improvement work performed pursuant to the
terms and provisions of a Lease and not adversely affecting any structural
component of any Improvements, any utility or HVAC system contained in any
Improvements or the exterior of any building constituting a part of any
Improvements, or (c) alterations performed in connection with the restoration of
an Individual Property after the occurrence of a casualty in accordance with the
terms and provisions of this Agreement. If the total unpaid amounts with respect
to alterations to the Improvements at any Individual Property (other than such
amounts to be paid or reimbursed by tenants under the Leases), together with any
other alterations undertaken at the same time at any of the other Properties,
shall at any time exceed Four Million and 00/100 Dollars ($4,000,000.00) (the
"THRESHOLD AMOUNT"), Borrower shall promptly deliver to Lender as security for
the payment of such amounts and as additional security for Borrower's
obligations under the Loan
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Documents any of the following: (A) cash, (B) U.S. Obligations, (C) other
securities having a rating acceptable to Lender and that the applicable Rating
Agencies have confirmed in writing will not, in and of itself, result in a
downgrade, withdrawal or qualification of the initial, or, if higher, then
current ratings assigned in connection with any Securitization, or (D) a
completion bond or letter of credit issued by a financial institution having a
rating by S&P of not less than A-1+ if the term of such bond or letter of credit
is no longer than three (3) months or, if such term is in excess of three (3)
months, issued by a financial institution having a rating that is acceptable to
Lender and that the applicable Rating Agencies have confirmed in writing will
not, in and of itself, result in a downgrade, withdrawal or qualification of the
initial, or, if higher, then current ratings assigned in connection with any
Securitization. Such security shall be in an amount equal to the excess of the
total unpaid amounts with respect to alterations to the Improvements on the
applicable Individual Property (other than such amounts to be paid or reimbursed
by tenants under the Leases), together with any other alterations undertaken at
the same time at any of the other Properties over the Threshold Amount and
applied from time to time at the option of Lender to pay for such alterations or
to terminate any of the alterations and restore the applicable Properties to the
extent necessary to prevent any Material Adverse Effect.
5.1.22 ENVIRONMENTAl COVENANTS.
(a) Borrower covenants and agrees that so long as the Loan is outstanding
(i) all uses and operations on or of the Properties, whether by Borrower or any
other Person, shall be in compliance in all material respects with all
Environmental Laws and permits issued pursuant thereto; (ii) Borrower shall not
cause or permit any Releases of Hazardous Substances in, on, under or from any
of the Properties; (iii) there shall be no Hazardous Substances in, on, or under
any of the Properties, except those that are both (A) in compliance with all
Environmental Laws and with permits issued pursuant thereto, if and to the
extent required, and (B) (1) in amounts not in excess of that necessary to
operate the applicable Individual Property or (2) fully disclosed to and
approved by Lender in writing; (iv) Borrower shall keep the Properties free and
clear of all liens and other encumbrances imposed pursuant to any Environmental
Law, whether due to any act or omission of Borrower or any other Person (the
"ENVIRONMENTAL LIENS"); (v) Borrower shall, at its sole cost and expense, fully
and expeditiously cooperate in all activities pursuant to paragraph (b) below,
including but not limited to providing all relevant information and making
knowledgeable persons available for interviews; (vi) Borrower shall, at its sole
cost and expense, perform any environmental site assessment or other
investigation of environmental conditions in connection with any of the
Properties, pursuant to any reasonable written request of Lender, upon Lender's
reasonable belief that an Individual Property is not in full compliance with all
Environmental Laws, and share with Lender the reports and other results thereof,
and Lender and other Indemnified Parties shall be entitled to rely on such
reports and other results thereof; (vii) Borrower shall, at its sole cost and
expense, comply with all reasonable written requests of Lender to (A) reasonably
effectuate remediation of any Hazardous Substances in, on, under or from any
Individual Property to the extent required by Environmental Laws; and (B) comply
with any Environmental Law; (viii) Borrower shall not allow any tenant or other
user of any of the Properties to violate any Environmental Law; and (ix)
Borrower shall immediately notify Lender in writing after it has become aware
of: (A) any presence or Release or threatened Releases of Hazardous Substances
in, on, under, from or migrating towards any of the Properties if it would
reasonably be expected to result in a Material Adverse Effect; (B) any non
compliance with any Environmental Laws related in any way to any of the
Properties if it would
57
reasonably be expected to result in a Material Adverse Effect; (C) any actual or
potential Environmental Lien; (D) any required or proposed remediation of
environmental conditions relating to any of the Properties; and (E) any written
or oral notice or other communication of which Borrower becomes aware from any
source whatsoever (including but not limited to a Governmental Authority)
relating in any way to Hazardous Substances.
(b) Lender and any other Person designated by Lender, including but not
limited to any representative of a Governmental Authority, and any environmental
consultant, and any receiver appointed by any court of competent jurisdiction,
shall have the right, but not the obligation, to enter upon any Individual
Property at all reasonable times upon reasonable notice to Borrower to assess
any and all aspects of the environmental condition of any Individual Property
and its use, including but not limited to conducting any environmental
assessment or audit (the scope and need of which shall be determined in Lender's
reasonable discretion based upon its good-faith belief that any Individual
Property is not in full compliance with all Environmental Laws) and taking
samples of soil, groundwater or other water, air, or building materials, and
conducting other invasive testing reasonably necessary to assess the
environmental condition of such Individual Property. Borrower shall cooperate
with and provide access to Lender and any such Person or entity designated by
Lender and Lender shall take reasonable steps to minimize any disruption to
Borrower's use and operation of such Individual Property.
5.1.23 OFAC. At all times throughout the term of the Loan, Borrower, each
Guarantor and their respective Affiliates shall be in full compliance with all
applicable orders, rules, regulations and recommendations of The Office of
Foreign Assets Control of the U.S. Department of the Treasury.
5.1.24 O&M PROGRAM. Borrower covenants and agrees to implement and follow
the terms and conditions of the O&M Program for each applicable Property during
the term of the Loan, including any extension or renewal thereof. Lender's
requirement that Borrower comply with the O&M Program shall not be deemed to
constitute a waiver or modification of any of Borrower's covenants and
agreements with respect to Hazardous Substances or Environmental Laws.
SECTION 5.2 NEGATIVE COVENANTS.
From the date hereof until payment and performance in full of all
obligations of Borrower under the Loan Documents or the earlier release of the
Liens of all Security Instruments encumbering the Properties (and all related
obligations) in accordance with the terms of this Agreement and the other Loan
Documents, Borrower covenants and agrees with Lender that it will not do,
directly or indirectly, any of the following:
5.2.1 OPERATION OF PROPERTY. Borrower shall not, without the prior consent
of Lender (which consent shall not be unreasonably withheld), amend, modify,
cancel or terminate the Management Agreement or otherwise replace the Manager or
enter into any other management agreement with respect to any Individual
Property.
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5.2.2 LIENS. Borrower shall not, without the prior written consent of
Lender, create, incur, assume or suffer to exist any Lien on any portion of any
Individual Property or permit any such action to be taken, except:
(i) Permitted Encumbrances;
(ii) Liens created by or permitted pursuant to the Loan Documents; and
(iii) Liens for Taxes or Other Charges not yet due.
5.2.3 DISSOLUTION. Borrower shall not (a) engage in any dissolution,
liquidation or consolidation or merger with or into any other business entity,
(b) engage in any business activity not related to the ownership and operation
of the Properties, (c) transfer, lease or sell, in one transaction or any
combination of transactions, the assets or all or substantially all of the
properties or assets of Borrower except to the extent permitted by the Loan
Documents, (d) except as expressly permitted under the Loan Documents, modify,
amend, waive or terminate its organizational documents or its qualification and
good standing in any jurisdiction or (e) cause the SPC Party to (i) dissolve,
wind up or liquidate or take any action, or omit to take an action, as a result
of which the SPC Party would be dissolved, wound up or liquidated in whole or in
part, or (ii) except as expressly permitted under the Loan Documents, amend,
modify, waive or terminate the certificate of incorporation, bylaws or similar
organizational documents of the SPC Party, in each case, without obtaining the
prior written consent of Lender or Lender's designee.
5.2.4 CHANGE IN BUSINESS. Borrower shall not enter into any line of
business other than the ownership, acquisition, development, operation, leasing
and management of the Properties (including providing services in connection
therewith), or make any material change in the scope or nature of its business
objectives, purposes or operations, or undertake or participate in activities
other than the continuance of its present business.
5.2.5 DEBT CANCELLATION. Borrower shall not cancel or otherwise forgive or
release any material claim or debt (other than termination of Leases in
accordance herewith) owed to Borrower by any Person, except for adequate
consideration and in the ordinary course of Borrower's business.
5.2.6 AFFILIATE TRANSACTIONS. Borrower shall not enter into, or be a party
to, any transaction with an Affiliate of Borrower or any of the Affiliates of
Borrower except in the ordinary course of business and on terms which are no
less favorable to Borrower or such Affiliate than would be obtained in a
comparable arm's-length transaction with an unrelated third party.
5.2.7 ZONING. Borrower shall not initiate or consent to any zoning
reclassification of any portion of any Individual Property or seek any variance
under any existing zoning ordinance or use or permit the use of any portion of
any Individual Property in any manner that could result in such use becoming a
non-conforming use under any zoning ordinance or any other applicable land use
law, rule or regulation, without the prior consent of Lender.
5.2.8 ASSETS. Borrower shall not purchase or own any property other than
the Properties.
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5.2.9 DEBT. Borrower shall not create, incur or assume any Indebtedness
other than the Debt except to the extent expressly permitted hereby.
5.2.10 NO JOINT ASSESSMENT. Borrower shall not suffer, permit or initiate
the joint assessment of any Individual Property with (a) any other real property
constituting a tax lot separate from such Individual Property, or (b) any
portion of such Individual Property which may be deemed to constitute personal
property, or any other procedure whereby the Lien of any taxes which may be
levied against such personal property shall be assessed or levied or charged to
such Individual Property.
5.2.11 PRINCIPAL PLACE OF BUSINESS. Borrower shall not change its principal
place of business set forth on the first page of this Agreement without first
giving Lender thirty (30) days prior written notice.
5.2.12 ERISA. (a) During the term of the Loan or of any obligation or right
hereunder, Borrower shall not be a Plan and none of the assets of Borrower shall
constitute Plan Assets.
(b) Borrower further covenants and agrees to deliver to Lender such
certifications or other evidence from time to time throughout the term of the
Loan, as requested by Lender in its sole discretion, and represents and
covenants that (A) Borrower is not and does not maintain an "employee benefit
plan" as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA,
or a "governmental plan" within the meaning of Section 3(32) of ERISA; (B)
Borrower is not subject to State statutes regulating investments and fiduciary
obligations with respect to governmental plans; and (C) one or more of the
following circumstances is true:
(i) Equity interests in Borrower are publicly offered securities,
within the meaning of 29 C.F.R. Section 2510.3-101(b)(2);
(ii) Less than twenty-five percent (25%) of each outstanding class of
equity interests in Borrower are held by "benefit plan investors" within
the meaning of 29 C.F.R. Section 2510.3-101(f)(2); or
(iii) Borrower qualifies as an "operating company" or a "real estate
operating company" within the meaning of 29 C.F.R. Section 2510.3-101(c) or
(e).
5.2.13 TRANSFERS. (a) Except as otherwise permitted by the provisions of
this Section 5.2.13 or except to the extent permitted elsewhere in the Loan
Documents, Borrower will not (i) permit or suffer (by operation of law or
otherwise) any sale, assignment, conveyance, transfer or other disposition of
legal or equitable interest in all or any part of any Individual Property, (ii)
permit or suffer (by operation of law or otherwise) any sale, assignment,
conveyance, transfer or other disposition of any direct or indirect interest in
Borrower, (iii) permit or suffer (by operation of law or otherwise) any
mortgage, lien or other encumbrance of all or any part of any Individual
Property, (iv) permit or suffer (by operation of law or otherwise) any pledge,
hypothecation, creation of a security interest in or other encumbrance of any
direct or indirect interests in Borrower, or (v) file a declaration of
condominium with respect to any Individual Property.
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(b) A sale or conveyance by Borrower of any Individual Property (but not a
mortgage, lien or other encumbrance) is permitted provided that each of the
following conditions have been satisfied:
(i) no Event of Default shall have occurred and be continuing;
(ii) the Person to whom such Individual Property is sold or conveyed
satisfies the requirements of a Special Purpose Entity and not less than
50% of the direct or indirect interests are owned and controlled by a
Permitted Owner;
(iii) Lender has received a non-consolidation opinion which may be
relied upon by Lender, the Rating Agencies and their respective counsel,
successors and assigns, with respect to the sale or conveyance, which
opinion shall be reasonably acceptable to Lender and, after a
Securitization, the Rating Agencies;
(iv) if a Securitization has occurred, Borrower shall deliver
confirmation in writing from the applicable Rating Agencies to the effect
that such transfer or sale will not result in a downgrading, withdrawal or
qualification of the respective ratings in effect immediately prior to such
transfer or sale for the Securities issued in connection with the
Securitization which are then outstanding;
(v) the transferee of such Individual Property shall execute an
assumption of all of the obligations of the Borrower under the Loan
Agreement, the applicable Security Instrument and the other Loan Documents,
subject, however, to the provisions of Section 9.4 of this Agreement and
the proposed replacement guarantor shall assume all of the obligations of
Guarantor under the Guaranty, in a manner satisfactory to Lender in all
respects, including, without limitation, by entering into an assumption
agreement in form and substance satisfactory to Lender, and, in each case,
delivering such legal opinions as Lender may reasonably require;
(vi) Borrower shall give written notice to Lender of the proposed sale
or conveyance not later than fifteen (15) days prior thereto, which notice
shall set forth the name of the proposed transferee, identify the owners of
such direct and indirect interests of the proposed transferee and set forth
the date the sale or conveyance is expected to be effective.
(c) A transfer or sale (but not a pledge, hypothecation, creation of a
security interest in or other encumbrance) of an indirect ownership interest in
Borrower (other than those expressly permitted pursuant to Section 5.2.13(d)
hereof) is permitted provided the following conditions have been satisfied:
(i) such transfer or sale is to a Permitted Owner;
(ii) prior to any such transfer or sale of direct or indirect
ownership interests in Borrower, as a result of which (and after giving
effect to such transfer or sale), more than 49% of the direct or indirect
ownership interests in Borrower shall have been transferred to a Person or
entity not owning at least 49% of the direct or indirect ownership
interests in Borrower on the date of closing, Borrower shall deliver to
Lender a non-consolidation
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opinion which may be relied upon by Lender, the Rating Agencies and their
respective counsel, successors and assigns, with respect to the proposed
transfer or sale, which opinion shall be reasonably acceptable to Lender
and, after a Securitization, the Rating Agencies;
(iii) immediately prior to such transfer or sale no Event of Default
has occurred and is continuing;
(iv) Borrower shall deliver confirmation in writing from the
applicable Rating Agencies to the effect that such transfer or sale will
not result in a downgrading, withdrawal or qualification of the respective
ratings in effect immediately prior to such transfer or sale for the
Securities issued in connection with the Securitization which are then
outstanding; and
(v) Borrower shall give or cause to be given written notice to Lender
of the proposed transfer or sale not later than fifteen (15) days prior
thereto, which notice shall set forth the name of the Person to which the
interest in Borrower is to be transferred or sold, identify the proposed
transferee and set forth the date the transfer or sale is expected to be
effective.
(d) Notwithstanding the provisions of Sections 5.2.13(a) and (c) hereof,
the following transfers or sales shall not be deemed to be a transfer or sale in
violation of the provisions of this Section 5.2.13: (i) a transfer by devise or
descent or by operation of law upon the death of a member, partner or
shareholder of a Restricted Party or a Restricted Party itself; (ii) the
transfer or sale, in one or a series of transactions, of not more than
forty-nine percent (49%) of the stock in a Restricted Party (other than
Guarantor); provided, however, no such transfer or sale shall result in the
change of voting control in such Restricted Party; (iii) the transfer or sale,
in one or a series of transactions, of not more than forty-nine percent (49%) of
the limited partnership interests or non-managing membership interests (as the
case may be) in a Restricted Party (other than Guarantor); provided, however, no
such transfer or sale shall result in the change of voting control in such
Restricted Party; (iv) the transfer or sale by Sponsor, in one or a series of
transactions, of not more than twenty-five percent (25%) of the general
partnership interests in Guarantor; provided, however, no such transfer or sale
shall result in the change of voting control in Guarantor; and (v) the transfer
or sale by any limited partner of Guarantor, in one or a series of transactions,
of not more than forty-nine percent (49%) of the limited partnership interests
in Guarantor; provided, however, no such transfer or sale shall result in the
change of voting control in Guarantor. In connection with any such transfer or
sale pursuant to clauses (ii) through (v) above, and as a condition to each such
transfer or sale, Lender shall receive not less than ten (10) days prior written
notice of such proposed transfer or sale.
(e) Borrower agrees to bear and shall reimburse Lender on demand all
reasonable expenses incurred by Lender in connection with any transaction
described in this Section 5.2.13.
(f) Lender shall not be required to demonstrate any actual impairment of
its security or any increased risk of default hereunder in order to declare the
Debt immediately due and payable upon any violation of this Section 5.2.13.
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(g) The provisions of this Section 5.2.13 shall not be modified or amended
by Borrower and Lender unless the Rating Agencies have confirmed that such
amendment or modification will not result in a downgrade, qualification or
withdrawal of the then current ratings assigned to the Securities.
(h) Nothing contained in this Section 5.2.13 or in any other provision of
this Agreement or in any of the other Loan Documents shall limit or prohibit
transfers, sales, pledges or issuance of direct interests in Sponsor (the
"TRADED ENTITY"); provided the Traded Entity complies with the provisions of
Section 5.3 hereof.
(i) Notwithstanding the preceding provisions of this Section 5.2.13,
Borrower upon prior consent of Lender (which shall not be unreasonably withheld
upon receipt of such information pertaining to such transfer as Lender may
request) may (i) make transfers of immaterial portions of the Property to
Governmental Authorities in connection with a Condemnation of such immaterial
portions of the Property for dedication or public use, and (ii) grant easements,
restrictions, covenants, reservations and rights of way in the ordinary course
of business for water and sewer lines, telephone and telegraph lines, electric
lines and other utilities or for other similar purposes, provided that no such
transfer, described in the foregoing clauses (i) and (ii) shall materially
impair the utility and operation of the Property or materially adversely affect
the value of the Property or materially adversely affect Borrower's ability to
pay the Debt, the Monthly Debt Service Payment Amount. Lender shall approve or
disapprove such transfers or easements within thirty (30) days after receipt of
all information pertaining thereto by Borrower.
(j) Notwithstanding anything to the contrary contained in this Section
5.2.13 and except with respect to the Person to whom an Individual Property is
sold or conveyed pursuant to Section 5.2.13(b) hereof, Sponsor must continue to
control Borrower and Guarantor and own, directly or indirectly, at least a 51%
interest in Borrower and in Guarantor.
Lender shall not be required to demonstrate any actual impairment of its
security or any increased risk of default hereunder in order to declare the Debt
immediately due and payable upon a transfer in violation of this Section 5.2.13.
This provision shall apply to every transfer regardless of whether voluntary or
not, or whether or not Lender has consented to any previous transfer.
Notwithstanding anything to the contrary contained in this Section 5.2.13, (a)
no transfer shall be made to any Prohibited Person and (b) in the event any
transfer results in any Person owning in excess of forty-nine percent (49%) of
the ownership interest in any direct or indirect owner of Borrower or Guarantor
and a Securitization has occurred, Borrower shall, prior to such transfer,
deliver an updated Insolvency Opinion to Lender, which opinion shall be in form,
scope and substance acceptable in all respects to Lender and the Rating
Agencies.
SECTION 5.3 TRADED SHARES.
The Traded Entity shall cause its issued and outstanding shares of stock or
other ownership units to be listed for trading on the New York Stock Exchange or
such other nationally recognized stock exchange throughout the term of the Loan.
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ARTICLE 6 - INSURANCE; CASUALTY; CONDEMNATION; REQUIRED REPAIRS
SECTION 6.1 INSURANCE.
(a) Borrower shall obtain and maintain, or cause to be maintained,
insurance for Borrower and the Properties providing at least the following
coverages:
(i) comprehensive all risk insurance on the Improvements and the
Personal Property, including contingent liability from Operation of
Building Laws, Demolition Costs and Increased Cost of Construction
Endorsements, in each case (A) in an amount equal to one hundred percent
(100%) of the "Full Replacement Cost," which for purposes of this Agreement
shall mean actual replacement value (exclusive of costs of excavations,
foundations, underground utilities and footings) with a waiver of
depreciation, but the amount shall in no event be less than the Release
Amount applicable to the Individual Property; (B) containing an agreed
amount endorsement with respect to the Improvements and Personal Property
waiving all co-insurance provisions; (C) providing for no deductible in
excess of $25,000; (D) containing an "Ordinance or Law Coverage" or
"Enforcement" endorsement if any of the Improvements or the use of the
Individual Property shall at any time constitute legal non-conforming
structures or uses; (E) providing coverage for the peril of Sprinkler
Leakage; and (F) providing Comprehensive Plate Glass Insurance. In
addition, Borrower shall obtain: (y) if any portion of the Improvements is
currently or at any time in the future located in a federally designated
"special flood hazard area", flood hazard insurance in an amount equal to
the lesser of (1) the Release Amount applicable to the Individual Property
or (2) the maximum amount of such insurance available under the National
Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or
the National Flood Insurance Reform Act of 1994, as each may be amended or
such greater amount as Lender shall require; and (z) earthquake insurance
in amounts and in form and substance satisfactory to Lender in the event
the Individual Property is located in an area with a high degree of seismic
activity, provided that the insurance pursuant to clauses (y) and (z)
hereof shall be on terms consistent with the comprehensive all risk
insurance policy required under this subsection (i);
(ii) commercial general liability insurance against claims for
personal injury, bodily injury, death or property damage occurring upon, in
or about the Individual Property, such insurance (A) to be on the so-called
"occurrence" form with a limit, per occurrence, of not less than One
Million and No/100 Dollars ($1,000,000) and an aggregate limit of Two
Million and No/100 Dollars ($2,000,000); (B) to continue at not less than
the aforesaid limit until required to be changed by Lender in writing by
reason of changed economic conditions making such protection inadequate;
and (C) to cover at least the following hazards: (1) premises and
operations; (2) products and completed operations on an "if any" basis; (3)
independent contractors; (4) blanket contractual liability for all legal
contracts; and (5) contractual liability covering the indemnities contained
in Article 10 of the Security Instruments to the extent the same is
available;
(iii) business interruption/loss of rents insurance (A) with loss
payable to Lender; (B) covering all risks required to be covered by the
insurance provided for in subsection (i) above; (C) in an amount equal to
100% of the projected gross income from
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each Individual Property (on an actual loss sustained basis) for a period
of twelve (12) months; the amount of such business interruption/loss of
rents insurance shall be determined prior to the Closing Date and at least
once each year thereafter based on the greatest of: (x) Borrower's
reasonable estimate of the gross income from each Individual Property and
(y) the highest gross income received during the term of the Note for any
full calendar year prior to the date the amount of such insurance is being
determined, in each case for the succeeding twelve (12) month period and
(D) containing an extended period of indemnity endorsement which provides
that after the physical loss to the Improvements and the Personal Property
has been repaired, the continued loss of income will be insured until such
income either returns to the same level it was at prior to the loss, or the
expiration of twelve (12) months from the date that the applicable
Individual Property is repaired or replaced and operations are resumed,
whichever first occurs, and notwithstanding that the policy may expire
prior to the end of such period; All insurance proceeds payable to Lender
pursuant to this subsection shall be held by Lender and shall be applied to
the obligations secured hereunder from time to time due and payable
hereunder and under the Note and this Agreement; provided, however, that
nothing herein contained shall be deemed to relieve Borrower of its
obligations to pay the obligations secured hereunder on the respective
dates of payment provided for in the Note and this Agreement except to the
extent such amounts are actually paid out of the proceeds of such business
interruption/loss of rents insurance;
(iv) at all times during which structural construction, repairs or
alterations are being made with respect to the Improvements, and only if
the Individual Property coverage form does not otherwise apply, (A) owner's
contingent or protective liability insurance covering claims not covered by
or under the terms or provisions of the above mentioned commercial general
liability insurance policy; and (B) the insurance provided for in
subsection (i) above written in a so-called builder's risk completed value
form (1) on a non-reporting basis, (2) against all risks insured against
pursuant to subsection (i) above, (3) including permission to occupy the
Individual Property, and (4) with an agreed amount endorsement waiving
co-insurance provisions;
(v) workers' compensation, subject to the statutory limits of the
State in which each Individual Property is located, and employer's
liability insurance with a limit of at least $1,000,000 per accident and
per disease per employee, and $1,000,000 for disease aggregate in respect
of any work or operations on or about the Individual Property, or in
connection with the Individual Property or its operation (if applicable);
(vi) comprehensive boiler and machinery insurance, if applicable, in
amounts as shall be reasonably required by Lender on terms consistent with
the commercial property insurance policy required under subsection (i)
above;
(vii) umbrella liability insurance in an amount not less than
$25,000,000 per occurrence and $25,000,000 in the aggregate on terms
consistent with the commercial general liability insurance policy required
under subsection (ii) above;
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(viii) motor vehicle liability coverage for all owned and non-owned
vehicles, including rented and leased vehicles containing minimum limits
per occurrence, including umbrella coverage, of not less than $1,000,000;
(ix) [intentionally deleted];
(x) [intentionally deleted];
(xi) [intentionally deleted]; and
(xii) upon sixty (60) days' written notice, such other reasonable
insurance and in such reasonable amounts as Lender from time to time may
reasonably request against such other insurable hazards which at the time
are commonly insured against for property similar to the Individual
Property located in or around the region in which the Individual Property
is located.
(b) No Policy shall contain an exclusion from coverage under such Policy
for loss or damage incurred as a result of an act of terrorism (including
bio-terrorism) or similar acts of sabotage. If a Policy contains such exclusion,
Borrower shall obtain a separate Policy providing coverage for loss or damage
incurred as a result of an act of terrorism (including bio-terrorism) or similar
acts of sabotage if such coverage is commercially available at commercially
reasonable rates.
(c) All insurance provided for in Section 6.1(a) hereof shall be obtained
under valid and enforceable policies (collectively, the "POLICIES" or in the
singular, the "POLICY"), and shall be subject to the approval of Lender as to
insurance companies, amounts, deductibles, loss payees and insureds. The
Policies shall be issued by financially sound and responsible insurance
companies authorized to do business in the State in which each Individual
Property is located and approved by Lender. The insurance companies must have a
claims paying ability/financial strength rating of "A" (or its equivalent) or
better by at least two (2) of the Rating Agencies (one of which shall be S&P).
The Policies described in Section 6.1 (other than those strictly limited to
liability protection) shall designate Lender as loss payee. Not less than thirty
(30) days prior to the expiration dates of the Policies theretofore furnished to
Lender, certificates of insurance evidencing the Policies accompanied by
evidence satisfactory to Lender of payment of the premiums due thereunder (the
"INSURANCE PREMIUMS"), shall be delivered by Borrower to Lender.
(d) Borrower shall not obtain (i) any umbrella or blanket liability or
casualty Policy unless, in each case, such Policy is approved in advance in
writing by Lender and Lender's interest is included therein as provided in this
Agreement and such Policy is issued by a Qualified Insurer, or (ii) separate
insurance concurrent in form or contributing in the event of loss with that
required in Section 6.1(a) hereof to be furnished by, or which may be reasonably
required to be furnished by, Borrower. In the event Borrower obtains separate
insurance or an umbrella or a blanket policy, Borrower shall notify Lender of
the same and shall cause certified copies of each Policy to be delivered as
required in Section 6.1(a) hereof. Any blanket insurance Policy shall
specifically allocate to the Individual Property the amount of coverage from
time to time required hereunder and shall otherwise provide the same protection
as would a separate
66
Policy insuring only the Individual Property in compliance with the provisions
of Section 6.1(a) hereof. Notwithstanding Lender's approval of any umbrella or
blanket liability or casualty Policy hereunder, Lender reserves the right, in
its sole discretion, to require Borrower to obtain a separate Policy in
compliance with this Section 6.1.
(e) All Policies provided for or contemplated by Section 6.1(a) hereof,
except for the Policy referenced in Section 6.1(a)(v), shall name Borrower and
Lender as the insured or additional insured, as their respective interests may
appear, and in the case of property damage, boiler and machinery, flood and
earthquake insurance, shall contain a so-called New York standard
non-contributing mortgagee clause in favor of Lender providing that the loss
thereunder shall be payable to Lender.
(f) All Policies provided for in Section 6.1(a)(v) hereof shall contain
clauses or endorsements to the effect that:
(i) no act or negligence of Borrower, or anyone acting for Borrower,
or of any tenant or other occupant, or failure to comply with the
provisions of any Policy, which might otherwise result in a forfeiture of
the insurance or any part thereof, shall in any way affect the validity or
enforceability of the insurance insofar as Lender is concerned;
(ii) the Policy shall not be materially changed (other than to
increase the coverage provided thereby) or canceled without at least thirty
(30) days' written notice to Lender and any other party named therein as an
additional insured;
(iii) each Policy shall provide that the issuers thereof shall give
written notice to Lender if the Policy has not been renewed thirty (30)
days prior to its expiration; and
(iv) Lender shall not be liable for any Insurance Premiums thereon or
subject to any assessments thereunder.
(g) If at any time Lender is not in receipt of written evidence that all
insurance required hereunder is in full force and effect, Lender shall have the
right, without notice to Borrower, to take such action as Lender deems necessary
to protect its interest in the Properties, including, without limitation, the
obtaining of such insurance coverage as Lender in its sole discretion deems
appropriate. All premiums incurred by Lender in connection with such action or
in obtaining such insurance and keeping it in effect shall be paid by Borrower
to Lender upon demand and, until paid, shall be secured by the Security
Instruments and shall bear interest at the Default Rate.
(h) Borrower shall furnish to Lender, on or before thirty (30) days after
the close of each of Borrower's fiscal years, a statement certified by Borrower
or a duly authorized officer of Borrower of the amounts of insurance maintained
in compliance herewith, of the risks covered by such insurance and of the
insurance company or companies which carry such insurance and, if requested by
Lender, verification of the adequacy of such insurance by an independent
insurance broker or appraiser acceptable to Lender.
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SECTION 6.2 CASUALTY.
If the Individual Property shall be damaged or destroyed, in whole or in
part, by fire or other casualty (a "CASUALTY"), Borrower shall give prompt
notice of such damage to Lender and shall promptly commence and diligently
prosecute the completion of the repair and restoration of the Individual
Property as nearly as possible to the condition the Individual Property was in
immediately prior to such Casualty, with such alterations as may be reasonably
approved by Lender (a "RESTORATION") and otherwise in accordance with Section
6.4 hereof. Borrower shall pay all costs of such Restoration whether or not such
costs are covered by insurance. Lender may, but shall not be obligated to make
proof of loss if not made promptly by Borrower.
SECTION 6.3 CONDEMNATION.
Borrower shall promptly give Lender notice of the actual or threatened
commencement of any proceeding for the Condemnation of all or any part of any
Individual Property and shall deliver to Lender copies of any and all papers
served in connection with such proceedings. Lender may participate in any such
proceedings, and Borrower shall from time to time deliver to Lender all
instruments requested by it to permit such participation. Borrower shall, at its
expense, diligently prosecute any such proceedings, and shall consult with
Lender, its attorneys and experts, and cooperate with them in the carrying on or
defense of any such proceedings. Notwithstanding any taking by any public or
quasi-public authority through Condemnation or otherwise (including, but not
limited to, any transfer made in lieu of or in anticipation of the exercise of
such taking), Borrower shall continue to pay the Debt at the time and in the
manner provided for its payment in the Note and in this Agreement and the Debt
shall not be reduced until any Award shall have been actually received and
applied by Lender, after the deduction of expenses of collection, to the
reduction or discharge of the Debt. Lender shall not be limited to the interest
paid on the Award by the condemning authority but shall be entitled to receive
out of the Award interest at the rate or rates provided herein or in the Note.
If any Individual Property or any portion thereof is taken by a condemning
authority, Borrower shall promptly commence and diligently prosecute the
Restoration of the applicable Individual Property and otherwise comply with the
provisions of Section 6.4 hereof. If any Individual Property is sold, through
foreclosure or otherwise, prior to the receipt by Lender of the Award, Lender
shall have the right, whether or not a deficiency judgment on the Note shall
have been sought, recovered or denied, to receive the Award, or a portion
thereof sufficient to pay the Debt.
SECTION 6.4 RESTORATION.
The following provisions shall apply in connection with the Restoration of
the Properties:
(a) If the Net Proceeds shall be less than Four Million and 00/100 Dollars
($4,000,000) (on an aggregate basis for all of the Properties affected by a
Casualty or Condemnation) and the costs of completing the Restoration shall be
less than Four Million and 00/100 Dollars ($4,000,000) (on an aggregate basis
for all of the Properties affected by a Casualty or Condemnation), the Net
Proceeds will be disbursed by Lender to Borrower upon receipt, provided that all
of the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers
to Lender a written undertaking to expeditiously commence and to satisfactorily
complete with due diligence the Restoration in accordance with the terms of this
Agreement.
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(b) If the Net Proceeds are equal to or greater than Four Million and
00/100 Dollars ($4,000,000) (on an aggregate basis for all of the Properties
affected by a Casualty or Condemnation) or the costs of completing the
Restoration is equal to or greater than Four Million and 00/100 Dollars
($4,000,000) (on an aggregate basis for all of the Properties affected by a
Casualty or Condemnation), Lender shall make the Net Proceeds available for the
Restoration in accordance with the provisions of this Section 6.4. The term "NET
PROCEEDS" shall mean: (i) the net amount of all insurance proceeds received by
Lender pursuant to Section 6.1 (a)(i), (iv), (vi) and (vii) as a result of such
damage or destruction, after deduction of its reasonable costs and expenses
(including, but not limited to, reasonable counsel fees), if any, in collecting
same ("INSURANCE PROCEEDS"), or (ii) the net amount of the Award, after
deduction of its reasonable costs and expenses (including, but not limited to,
reasonable counsel fees), if any, in collecting same ("CONDEMNATION PROCEEDS"),
whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for
Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be continuing;
(B) (1) in the event the Net Proceeds are Insurance Proceeds,
less than twenty-five percent (25%) of the total aggregate
floor area of the Improvements on the Properties has been
damaged, destroyed or rendered unusable as a result of such
Casualty or (2) in the event the Net Proceeds are
Condemnation Proceeds, less than ten percent (10%) of the
land constituting the Properties is taken, and such land is
located along the perimeter or periphery of the Properties
affected by such Condemnation, and no portion of the
Improvements is located on such land;
(C) Intentionally Deleted;
(D) Borrower shall commence the Restoration as soon as
reasonably practicable (but in no event later than sixty
(60) days after such Casualty or Condemnation, whichever the
case may be, occurs) and shall diligently pursue the same to
satisfactory completion in accordance with all applicable
laws, including, without limitation, all applicable
Environmental Laws;
(E) Lender shall be satisfied that any operating deficits,
including all scheduled payments of principal and interest
under the Note, which will be incurred with respect to the
Properties as a result of the occurrence of any such
Casualty or Condemnation, whichever the case may be, will be
covered out of (1) the Net Proceeds, (2) the insurance
coverage referred to in Section 6.1(a)(iii) hereof, if
applicable, or (3) by other funds of Borrower;
(F) Lender shall be satisfied that the Restoration will be
completed on or before the earliest to occur of (1) six (6)
months prior to the
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Maturity Date, (2) six (6) months after the occurrence of
such Casualty or Condemnation, (3) the earliest date
required for such completion under the terms of any Leases,
if any, which are required in accordance with the provisions
of this Section 6.4(b) to remain in effect subsequent to the
occurrence of such Casualty or Condemnation and the
completion of the Restoration, (4) such time as may be
required under applicable zoning law, ordinance, rule or
regulation, in order to repair and restore the Properties
affected by such Casualty or Condemnation to the condition
they were in immediately prior to such Casualty or
Condemnation or (5) the expiration of the insurance coverage
referred to in Section 6.1(a)(iii) hereof;
(G) the Properties affected by such Casualty or Condemnation and
the use thereof after the Restoration will be in compliance
with and permitted under all applicable zoning laws,
ordinances, rules and regulations;
(H) the Restoration shall be done and completed by Borrower in
an expeditious and diligent fashion and in compliance with
all applicable governmental laws, rules and regulations
(including, without limitation, all applicable Environmental
Laws); and
(I) such Casualty or Condemnation, as applicable, does not
result in the total loss of access to the Properties
affected by such Casualty or Condemnation or the related
Improvements.
(J) Borrower shall deliver, or cause to be delivered, to Lender
a signed detailed budget approved in writing by Borrower's
architect or engineer stating the entire cost of completing
the Restoration, which budget shall be acceptable to Lender;
(K) the Net Proceeds together with any cash or cash equivalent
deposited by Borrower with Lender are sufficient in Lender's
discretion to cover the cost of the Restoration, or, if not
sufficient, Borrower shall deposit the deficiency with
Lender; and
(L) the Management Agreement in effect as of the date of the
occurrence of such Casualty or Condemnation, whichever the
case may be, shall (1) remain in full force and effect
during the Restoration and shall not otherwise terminate as
a result of the Casualty or Condemnation or the Restoration
or (2) if terminated, shall have been replaced with a
Replacement Management Agreement with a Qualifying Manager,
prior to the opening or reopening of the Properties affected
by such Casualty or Condemnation or any portion thereof for
business with the public.
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(ii) The Net Proceeds shall be held by Lender in an interest-bearing
account and, until disbursed in accordance with the provisions of this
Section 6.4(b), shall constitute additional security for the Debt and other
obligations under the Loan Documents. The Net Proceeds shall be disbursed
by Lender to, or as directed by, Borrower from time to time during the
course of the Restoration, upon receipt of evidence satisfactory to Lender
that (A) all materials installed and work and labor performed (except to
the extent that they are to be paid for out of the requested disbursement)
in connection with the Restoration have been paid for in full, and (B)
there exist no notices of pendency, stop orders, mechanic's or
materialman's liens or notices of intention to file same, or any other
liens or encumbrances of any nature whatsoever on the Individual Property
which have not either been fully bonded to the satisfaction of Lender and
discharged of record or in the alternative fully insured to the
satisfaction of Lender by the title company issuing the Title Insurance
Policy.
(iii) All plans and specifications required in connection with the
Restoration, the cost of which is greater than $100,000, shall be subject
to prior review and acceptance in all respects by Lender and by an
independent consulting engineer selected by Lender (the "CASUALTY
CONSULTANT"). Lender shall have the use of the plans and specifications and
all permits, licenses and approvals required or obtained in connection with
the Restoration. The identity of the contractors, subcontractors and
materialmen engaged in the Restoration, the cost of which is greater than
$100,000, as well as the contracts under which they have been engaged,
shall be subject to prior review and acceptance by Lender and the Casualty
Consultant. All costs and expenses incurred by Lender in connection with
making the Net Proceeds available for the Restoration including, without
limitation, reasonable counsel fees and disbursements and the Casualty
Consultant's fees, shall be paid by Borrower.
(iv) In no event shall Lender be obligated to make disbursements of
the Net Proceeds in excess of an amount equal to the costs actually
incurred from time to time for work in place as part of the Restoration, as
certified by the Casualty Consultant, minus the Casualty Retainage. The
term "CASUALTY RETAINAGE" shall mean an amount equal to ten percent (10%)
of the costs actually incurred for work in place as part of the
Restoration, as certified by the Casualty Consultant, until the Restoration
has been completed. The Casualty Retainage shall in no event, and
notwithstanding anything to the contrary set forth above in this Section
6.4(b), be less than the amount actually held back by Borrower from
contractors, subcontractors and materialmen engaged in the Restoration. The
Casualty Retainage shall not be released until the Casualty Consultant
certifies to Lender that the Restoration has been completed in accordance
with the provisions of this Section 6.4(b) and that all approvals necessary
for the re-occupancy and use of the Individual Property have been obtained
from all appropriate Governmental Authorities, and Lender receives evidence
satisfactory to Lender that the costs of the Restoration have been paid in
full or will be paid in full out of the Casualty Retainage; provided,
however, that Lender will release the portion of the Casualty Retainage
being held with respect to any contractor, subcontractor or materialman
engaged in the Restoration as of the date upon which the Casualty
Consultant certifies to Lender that the contractor, subcontractor or
materialman has satisfactorily completed all work and has supplied all
materials in accordance with the provisions of the contractor's,
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subcontractor's or materialman's contract, the contractor, subcontractor or
materialman delivers the lien waivers and evidence of payment in full of
all sums due to the contractor, subcontractor or materialman as may be
reasonably requested by Lender or by the title company issuing the Title
Insurance Policy for the related Individual Property, and Lender receives
an endorsement to such Title Insurance Policy insuring the continued
priority of the lien of the related Security Instrument and evidence of
payment of any premium payable for such endorsement. If required by Lender,
the release of any such portion of the Casualty Retainage shall be approved
by the surety company, if any, which has issued a payment or performance
bond with respect to the contractor, subcontractor or materialman.
(v) Lender shall not be obligated to make disbursements of the Net
Proceeds more frequently than once every calendar month.
(vi) If at any time the Net Proceeds or the undisbursed balance
thereof shall not, in the opinion of Lender in consultation with the
Casualty Consultant, if any, be sufficient to pay in full the balance of
the costs which are estimated by the Casualty Consultant to be incurred in
connection with the completion of the Restoration, Borrower shall deposit
the deficiency (the "NET PROCEEDS DEFICIENCY") with Lender before any
further disbursement of the Net Proceeds shall be made. The Net Proceeds
Deficiency deposited with Lender shall be held by Lender and shall be
disbursed for costs actually incurred in connection with the Restoration on
the same conditions applicable to the disbursement of the Net Proceeds, and
until so disbursed pursuant to this Section 6.4(b) shall constitute
additional security for the Debt and other obligations under the Loan
Documents.
(vii) The excess, if any, of the Net Proceeds and the remaining
balance, if any, of the Net Proceeds Deficiency deposited with Lender after
the Casualty Consultant certifies to Lender that the Restoration has been
completed in accordance with the provisions of this Section 6.4(b), and the
receipt by Lender of evidence satisfactory to Lender that all costs
incurred in connection with the Restoration have been paid in full, shall
be remitted by Lender to Borrower, provided no Event of Default shall have
occurred and shall be continuing under the Note, this Agreement or any of
the other Loan Documents.
(c) All Net Proceeds not required (i) to be made available for the
Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant
to Section 6.4(b)(vii) may be retained and applied by Lender toward the payment
of the Debt whether or not then due and payable in such order, priority and
proportions as Lender in its sole discretion shall deem proper, or, at the
discretion of Lender, the same may be paid, either in whole or in part, to
Borrower for such purposes as Lender shall designate, in its discretion. If
Lender shall receive and retain Net Proceeds, the Lien of the Security
Instruments shall be reduced only by the amount thereof received and retained by
Lender and actually applied by Lender in reduction of the Debt.
(d) In the event of foreclosure of the Security Instrument with respect to
the Individual Property, or other transfer of title to the Individual Property
in extinguishment in whole or in part of the Debt all right, title and interest
of Borrower in and to the Policies that are
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not blanket Policies then in force concerning the Individual Property and all
proceeds payable thereunder shall thereupon vest in the purchaser at such
foreclosure or Lender or other transferee in the event of such other transfer of
title.
(e) The provisions of subsection 4 of Section 254 of the New York Real
Property Law covering the insurance of buildings against loss by fire shall not
apply to this Agreement. In the event of any conflict, inconsistency or
ambiguity between the provisions of Section 6.4 hereof and the provisions of
subsection 4 of Section 254 of the New York Real Property Law covering the
insurance of buildings against loss by fire, the provisions of Section 6.4
hereof shall control.
ARTICLE 7 - RESERVE FUNDS
SECTION 7.1 REQUIRED REPAIR FUNDS.
7.1.1 DEPOSITS. On the Closing Date, Borrower shall deposit with Lender the
amount for each Individual Property set forth on Schedule 7.1.1 attached hereto
to perform the Required Repairs for such Individual Property. Amounts so
deposited with Lender shall be held by Lender in accordance with Section 7.6
hereof. Amounts so deposited shall hereinafter be referred to as Borrower's
"Required Repair Fund." Borrower shall perform the repairs at the Properties, as
more particularly set forth on Schedule 7.1.1 attached hereto (such repairs
hereinafter referred to as "REQUIRED REPAIRS"). Borrower shall complete the
Required Repairs on or before the required deadline for each repair as set forth
on Schedule 7.1.1 attached hereto. It shall be an Event of Default under this
Agreement if (a) Borrower does not complete the Required Repairs at each
Individual Property by the required deadline for each repair as set forth on
Schedule 7.1.1 attached hereto, or (b) Borrower does not satisfy each condition
contained in Section 7.1.2 hereof. Upon the occurrence of an Event of Default,
Lender, at its option, may withdraw all Required Repair Funds from the Required
Repair Account and Lender may apply such funds either to completion of the
Required Repairs at one or more of the Properties or toward payment of the Debt
in such order, proportion and priority as Lender may determine in its sole
discretion. Lender's right to withdraw and apply Required Repair Funds shall be
in addition to all other rights and remedies provided to Lender under this
Agreement and the other Loan Documents.
7.1.2 RELEASE OF REQUIRED REPAIR FUNDS. Lender shall disburse to Borrower
the Required Repair Funds from the Required Repair Account from time to time
upon satisfaction by Borrower of each of the following conditions: (a) Borrower
shall submit a written request for payment to Lender at least thirty (30) days
prior to the date on which Borrower requests such payment be made and specifies
the Required Repairs to be paid, (b) on the date such request is received by
Lender and on the date such payment is to be made, no Default or Event of
Default shall exist and remain uncured, (c) Lender shall have received an
Officer's Certificate (i) stating that all Required Repairs at the applicable
Individual Property to be funded by the requested disbursement have been
completed in good and workmanlike manner and, to the best of Borrower's
knowledge, in accordance with all Legal Requirements and Environmental Laws,
such certificate to be accompanied by a copy of any license, permit or other
approval by any Governmental Authority required to commence and/or complete the
Required Repairs, (ii) identifying each Person that supplied materials or labor
in connection with the Required Repairs performed at such Individual Property
with respect to the reimbursement to be funded by the
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requested disbursement, and (iii) stating that each such Person has been paid in
full upon such disbursement, such Officer's Certificate to be accompanied by
lien waivers or other evidence of payment satisfactory to Lender, (d) at
Lender's option, a title search for such Individual Property indicating that
such Individual Property is free from all Liens, claims and other encumbrances
not previously approved by Lender, and (e) Lender shall have received such other
evidence as Lender shall reasonably request that the Required Repairs at such
Individual Property to be funded by the requested disbursement have been
completed and are paid for upon such disbursement to Borrower. Lender shall not
be required to make disbursements from the Required Repair Account with respect
to any Individual Property unless such requested disbursement is in an amount
greater than $25,000 (or a lesser amount if the total amount in the Required
Repair Account is less than $25,000, in which case only one disbursement of the
amount remaining in the account shall be made). Lender shall not be obligated to
make disbursements from the Required Repair Account with respect to an
Individual Property in excess of the amount allocated for such Individual
Property as set forth on Schedule 7.1.1 attached hereto. Upon the earlier of (1)
Borrower's completion of all Required Repairs to the satisfaction of Lender
(provided Borrower has supplied Lender with evidence satisfactory to Lender of
payment of all Required Repairs applicable to such Individual Property and, if
requested by Lender, waivers of liens and/or, in the case of Required Repairs
greater than $100,000.00, a title search of the Property or an endorsement to
the mortgagee's title insurance policy), (2) payment in full by Borrower of all
sums evidenced by the Note and secured by the Security Instruments and release
by Lender of the lien of the Security Instruments, or (3) release of such
Individual Property in accordance with the provisions of Section 2.5 hereof,
Lender shall disburse to Borrower all remaining Required Repair Funds allocated
to such Individual Property as set forth on Schedule 7.1.1 attached hereto.
SECTION 7.2 TAX AND INSURANCE ESCROW FUND.
Borrower shall pay to Lender on each Payment Date (a) one-twelfth of the
Taxes that Lender estimates will be payable during the next ensuing twelve (12)
months in order to accumulate with Lender sufficient funds to pay all such Taxes
at least thirty (30) days prior to their respective due dates, and (b) at the
option of Lender, if the liability or casualty Policy maintained by Borrower
covering the Properties shall not constitute an approved blanket or umbrella
Policy pursuant to Section 6.1(c) hereof, or Lender shall require Borrower to
obtain a separate Policy pursuant to Section 6.1(c) hereof, an amount equal to
one-twelfth of the Insurance Premiums that Lender estimates will be payable for
the renewal of the coverage afforded by the Policies upon the expiration thereof
in order to accumulate with Lender sufficient funds to pay all such Insurance
Premiums at least thirty (30) days prior to the expiration of the Policies (said
amounts in (a) and (b) above hereinafter called the "TAX AND INSURANCE ESCROW
FUND"). In the event Lender shall elect to collect payments in escrow for
Insurance Premiums pursuant to clause (b) above, Borrower shall pay to Lender an
initial deposit to be determined by Lender, in its sole discretion, to increase
the amounts in the Tax and Insurance Escrow Fund to an amount which, together
with anticipated monthly deposits for the payment of Insurance Premiums, shall
be sufficient to pay all Insurance Premiums as they become due. The Tax and
Insurance Escrow Fund and the payments of interest or principal or both, payable
pursuant to the Note, shall be added together and shall be paid as an aggregate
sum by Borrower to Lender. Lender will apply the Tax and Insurance Escrow Fund
to payments of Taxes and Insurance Premiums required to be made by Borrower
pursuant to Sections 5.1.2 and 6.1 hereof,
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respectively. In making any payment relating to the Tax and Insurance Escrow
Fund, Lender may do so according to any bill, statement or estimate procured
from the appropriate public office (with respect to Taxes) or insurer or agent
(with respect to Insurance Premiums), without inquiry into the accuracy of such
bill, statement or estimate or into the validity of any tax, assessment, sale,
forfeiture, tax lien or title or claim thereof. If the amount of the Tax and
Insurance Escrow Fund shall exceed the amounts due for Taxes and Insurance
Premiums pursuant to Sections 5.1.2 and 6.1 hereof, respectively, Lender shall,
in its sole discretion, return any excess to Borrower or credit such excess
against future payments to be made to the Tax and Insurance Escrow Fund. Any
amount remaining in the Tax and Insurance Escrow Fund after the Debt has been
paid in full shall be returned to Borrower. In allocating such excess, Lender
may deal with the Person shown on the records of Lender to be the owner of the
Properties. If at any time Lender reasonably determines that the Tax and
Insurance Escrow Fund is not or will not be sufficient to pay Taxes and
Insurance Premiums by the dates set forth in (a) and (b) above, Lender shall
notify Borrower of such determination and Borrower shall increase its monthly
payments to Lender by the amount that Lender estimates is sufficient to make up
the deficiency at least thirty (30) days prior to delinquency of the Taxes
and/or thirty (30) days prior to expiration of the Policies, as the case may be.
Any amount held in the Tax and Insurance Escrow Fund and allocated for an
Individual Property shall be retained by Lender and credited toward the future
payments of Taxes and Insurance Premiums required by Lender hereunder in the
event such Individual Property is released from the Lien of its related Security
Instrument in accordance with Section 2.5 hereof.
SECTION 7.3 REPLACEMENTS AND REPLACEMENT RESERVE.
7.3.1 REPLACEMENT RESERVE FUND. Following a Replacement Reserve Trigger
Event, Borrower shall pay to Lender on each Payment Date the Replacement Reserve
Monthly Deposit for replacements and repairs required to be made to the
Properties during the calendar year (collectively, the "REPLACEMENTS"). Amounts
so deposited shall hereinafter be referred to as Borrower's "REPLACEMENT RESERVE
FUND" and the account in which such amounts are held shall hereinafter be
referred to as Borrower's "REPLACEMENT RESERVE ACCOUNT". Lender may reassess its
estimate of the amount necessary for the Replacement Reserve Fund from time to
time, and may increase the monthly amounts required to be deposited into the
Replacement Reserve Fund upon thirty (30) days notice to Borrower if Lender
determines in its reasonable discretion that an increase is necessary to
maintain the proper maintenance and operation of the Properties. Any amount held
in the Replacement Reserve Account and allocated for an Individual Property
shall be retained by Lender and credited toward the future Replacement Reserve
Monthly Deposits required by Lender hereunder in the event such Individual
Property is released from the Lien of its related Security Instrument in
accordance with Section 2.5 hereof.
7.3.2 DISBURSEMENTS FROM REPLACEMENT RESERVE ACCOUNT. (a) Lender shall make
disbursements from the Replacement Reserve Account to pay Borrower only for the
costs of the Replacements. Lender shall not be obligated to make disbursements
from the Replacement Reserve Account to reimburse Borrower for the costs of
routine maintenance to an Individual Property or for costs which are to be
reimbursed from the Required Repair Fund. Lender shall not be obligated to make
disbursements from the Replacement Reserve Account with respect to an Individual
Property in excess of the amount allocated for such Individual Property as set
forth on Schedule 7.3.2 attached hereto.
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(b) Lender shall, upon written request from Borrower and satisfaction of
the requirements set forth in this Section 7.3.2, disburse to Borrower amounts
from the Replacement Reserve Account necessary to pay for the actual approved
costs of Replacements or to reimburse Borrower therefor, upon completion of such
Replacements (or, upon partial completion in the case of Replacements made
pursuant to Section 7.3.2(e)) as determined by Lender. In no event shall Lender
be obligated to disburse funds from the Replacement Reserve Account if a Default
or an Event of Default exists.
(c) Each request for disbursement from the Replacement Reserve Account
shall be in a form specified or approved by Lender and shall specify (i) the
specific Replacements for which the disbursement is requested, (ii) the quantity
and price of each item purchased, if the Replacement includes the purchase or
replacement of specific items, (iii) the price of all materials (grouped by type
or category) used in any Replacement other than the purchase or replacement of
specific items, and (iv) the cost of all contracted labor or other services
applicable to each Replacement for which such request for disbursement is made.
With each request Borrower shall certify that, to the best of Borrower's
knowledge, all Replacements have been made in accordance with all applicable
Legal Requirements of any Governmental Authority having jurisdiction over the
applicable Individual Property to which the Replacements are being provided.
Each request for disbursement shall include copies of invoices for all items or
materials purchased and all contracted labor or services provided and, unless
Lender has agreed to issue joint checks as described below in connection with a
particular Replacement, each request shall include evidence satisfactory to
Lender of payment of all such amounts. Except as provided in Section 7.3.2(e)
hereof, each request for disbursement from the Replacement Reserve Account shall
be made only after completion of the Replacement for which disbursement is
requested. Borrower shall provide Lender evidence of completion satisfactory to
Lender in its reasonable judgment.
(d) Borrower shall pay all invoices in connection with the Replacements
with respect to which a disbursement is requested prior to submitting such
request for disbursement from the Replacement Reserve Account or, at the request
of Borrower, Lender will issue joint checks, payable to Borrower and the
contractor, supplier, materialman, mechanic, subcontractor or other party to
whom payment is due in connection with a Replacement. In the case of payments
made by joint check, Lender may require a waiver of lien from each Person
receiving payment prior to Lender's disbursement from the Replacement Reserve
Account. In addition, as a condition to any disbursement, Lender may require
Borrower to obtain lien waivers from each contractor, supplier, materialman,
mechanic or subcontractor who receives payment in an amount equal to or greater
than $25,000 for completion of its work or delivery of its materials. Any lien
waiver delivered hereunder shall conform to the requirements of applicable law
and shall cover all work performed and materials supplied (including equipment
and fixtures) for the applicable Individual Property by that contractor,
supplier, subcontractor, mechanic or materialman through the date covered by the
current reimbursement request (or, in the event that payment to such contractor,
supplier, subcontractor, mechanic or materialmen is to be made by a joint check,
the release of lien shall be effective through the date covered by the previous
release of funds request).
(e) If (i) the cost of a Replacement exceeds $50,000, (ii) the contractor
performing such Replacement requires periodic payments pursuant to terms of a
written contract, and (iii)
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Lender has approved in writing in advance such periodic payments, a request for
reimbursement from the Replacement Reserve Account may be made after completion
of a portion of the work under such contract, provided (A) such contract
requires payment upon completion of such portion of the work, (B) the materials
for which the request is made are on site at the applicable Individual Property
and are properly secured or have been installed in such Individual Property, (C)
all other conditions in this Section 7.3 for disbursement have been satisfied,
(D) funds remaining in the Replacement Reserve Account are, in Lender's
judgment, sufficient to complete such Replacement and other Replacements when
required, and (E) if required by Lender, each contractor or subcontractor
receiving payments under such contract shall provide a waiver of lien with
respect to amounts which have been paid to that contractor or subcontractor.
(f) Borrower shall not make a request for disbursement from the Replacement
Reserve Account more frequently than once in any calendar month and (except in
connection with the final disbursement) the total cost of all Replacements in
any request shall not be less than $50,000.
7.3.3 PERFORMANCE OF REPLACEMENTS. (a) Borrower shall make Replacements
when required in order to keep each Individual Property in condition and repair
consistent with other properties in the same market segment in the metropolitan
area in which the respective Individual Property is located (but at all times
consistent with the standards of other "U-Store-It" properties, irrespective of
whether such Individual Property is currently operated as a "U-Store-It"
self-service storage facility), and to keep each Individual Property or any
portion thereof from deteriorating. Borrower shall complete all Replacements in
a good and workmanlike manner as soon as practicable following the commencement
of making each such Replacement.
(b) Lender reserves the right, at its option, to approve all contracts or
work orders with materialmen, mechanics, suppliers, subcontractors, contractors
or other parties providing labor or materials in connection with the
Replacements costing, in the aggregate, in excess of $50,000 with respect to
each Individual Property. Upon Lender's request, Borrower shall assign any
contract or subcontract to Lender.
(c) In the event Lender determines in its reasonable discretion that any
Replacement is not being performed in a workmanlike or timely manner or that any
Replacement has not been completed in a workmanlike or timely manner, Lender
shall have the option to withhold disbursement for such unsatisfactory
Replacement and to proceed under existing contracts or to contract with third
parties to complete such Replacement and to apply the Replacement Reserve Fund
toward the labor and materials necessary to complete such Replacement, without
providing any prior notice to Borrower and to exercise any and all other
remedies available to Lender upon an Event of Default hereunder.
(d) In order to facilitate Lender's completion or making of the
Replacements pursuant to Section 7.3.3(c) above, Borrower grants Lender the
right to enter onto any Individual Property and perform any and all work and
labor necessary to complete or make the Replacements and/or employ watchmen to
protect such Individual Property from damage. All sums so expended by Lender, to
the extent not from the Replacement Reserve Fund, shall be deemed to have been
advanced under the Loan to Borrower and secured by the Security Instruments. For
this purpose, Borrower constitutes and appoints Lender its true and lawful
attorney-in-fact with full power of
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substitution to complete or undertake the Replacements in the name of Borrower.
Such power of attorney shall be deemed to be a power coupled with an interest
and cannot be revoked. Borrower empowers said attorney-in-fact as follows: (i)
to use any funds in the Replacement Reserve Account for the purpose of making or
completing the Replacements; (ii) to make such additions, changes and
corrections to the Replacements as shall be necessary or desirable to complete
the Replacements; (iii) to employ such contractors, subcontractors, agents,
architects and inspectors as shall be required for such purposes; (iv) to pay,
settle or compromise all existing bills and claims which are or may become Liens
against any Individual Property, or as may be necessary or desirable for the
completion of the Replacements, or for clearance of title; (v) to execute all
applications and certificates in the name of Borrower which may be required by
any of the contract documents; (vi) to prosecute and defend all actions or
proceedings in connection with any Individual Property or the rehabilitation and
repair of any Individual Property; and (vii) to do any and every act which
Borrower might do in its own behalf to fulfill the terms of this Agreement.
(e) Nothing in this Section 7.3.3 shall: (i) make Lender responsible for
making or completing the Replacements; (ii) require Lender to expend funds in
addition to the Replacement Reserve Fund to make or complete any Replacement;
(iii) obligate Lender to proceed with the Replacements; or (iv) obligate Lender
to demand from Borrower additional sums to make or complete any Replacement.
(f) Borrower shall permit Lender and Lender's agents and representatives
(including, without limitation, Lender's engineer, architect, or inspector) or
third parties making Replacements pursuant to this Section 7.3.3 to enter onto
each Individual Property during normal business hours (subject to the rights of
tenants under their Leases) to inspect the progress of any Replacements and all
materials being used in connection therewith, to examine all plans and shop
drawings relating to such Replacements which are or may be kept at each
Individual Property, and to complete any Replacements made pursuant to this
Section 7.3.3. Borrower shall cause all contractors and subcontractors to
cooperate with Lender or Lender's representatives or such other persons
described above in connection with inspections described in this Section
7.3.3(f) or the completion of Replacements pursuant to this Section 7.3.3.
(g) Lender may require an inspection of the Individual Property at
Borrower's expense prior to making a monthly disbursement from the Replacement
Reserve Account in order to verify completion of the Replacements for which
reimbursement in excess of $10,000 is sought. Lender may require that such
inspection be conducted by an appropriate independent qualified professional
selected by Lender and/or may require a copy of a certificate of completion by
an independent qualified professional acceptable to Lender prior to the
disbursement of any amounts from the Replacement Reserve Account. Borrower shall
pay the reasonable expense of the inspection as required hereunder, whether such
inspection is conducted by Lender or by an independent qualified professional.
(h) The Replacements and all materials, equipment, fixtures, or any other
item comprising a part of any Replacement shall be constructed, installed or
completed, as applicable, free and clear of all mechanic's, materialman's or
other liens (except for those Liens existing on the date of this Agreement which
have been approved in writing by Lender).
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(i) Before each disbursement from the Replacement Reserve Account, Lender
may require Borrower to provide Lender with a search of title to the applicable
Individual Property effective to the date of the disbursement, which search
shows that no mechanic's or materialmen's liens or other liens of any nature
have been placed against the applicable Individual Property since the date of
recordation of the related Security Instrument and that title to such Individual
Property is free and clear of all Liens (other than the lien of the related
Security Instrument and any other Liens previously approved in writing by
Lender, if any).
(j) All Replacements shall comply with all applicable Legal Requirements of
all Governmental Authorities having jurisdiction over the applicable Individual
Property and applicable insurance requirements including, without limitation,
applicable building codes, special use permits, environmental regulations, and
requirements of insurance underwriters.
(k) In addition to any insurance required under the Loan Documents,
Borrower shall provide or cause to be provided workmen's compensation insurance,
builder's risk, and public liability insurance and other insurance to the extent
required under applicable law in connection with a particular Replacement. All
such policies shall be in form and amount reasonably satisfactory to Lender. All
such policies which can be endorsed with standard mortgagee clauses making loss
payable to Lender or its assigns shall be so endorsed. Certified copies of such
policies shall be delivered to Lender.
7.3.4 FAILURE TO MAKE REPLACEMENTS. (a) It shall be an Event of Default
under this Agreement if Borrower fails to comply with any provision of this
Section 7.3 and such failure is not cured within thirty (30) days after notice
from Lender. Upon the occurrence of such an Event of Default, Lender may use the
Replacement Reserve Fund (or any portion thereof) for any purpose, including but
not limited to completion of the Replacements as provided in Section 7.3.3, or
for any other repair or replacement to any Individual Property or toward payment
of the Debt in such order, proportion and priority as Lender may determine in
its sole discretion. Lender's right to withdraw and apply the Replacement
Reserve Funds shall be in addition to all other rights and remedies provided to
Lender under this Agreement and the other Loan Documents.
(b) Nothing in this Agreement shall obligate Lender to apply all or any
portion of the Replacement Reserve Fund on account of an Event of Default to
payment of the Debt or in any specific order or priority.
7.3.5 BALANCE IN THE REPLACEMENT RESERVE ACCOUNT. The insufficiency of any
balance in the Replacement Reserve Account shall not relieve Borrower from its
obligation to fulfill all preservation and maintenance covenants in the Loan
Documents.
SECTION 7.4 EXCESS CASH RESERVE.
During a Cash Management Period (as defined in the Cash Management
Agreement), on each Payment Date all Excess Cash Flow (as defined in the Cash
Management Agreement) remaining in the Lockbox Account following the required
transfers of sums to various subaccounts pursuant to Section 4.1(c)(i)-(vii) of
the Cash Management Agreement shall be deposited with Lender (amounts so
deposited shall hereinafter be referred to as the "EXCESS CASH
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RESERVE FUND" and the account to which such amounts are held shall hereinafter
be referred to as the "EXCESS CASH RESERVE ACCOUNT"). Subject to the terms of
this Agreement, sums from the Excess Cash Reserve Fund shall be disbursed to
Borrower upon payment in full of the Debt. Upon the expiration of the Cash
Management Period following the occurrence of all relevant Cash Management Cure
Events(as defined in the Cash Management Agreement), Lender shall disburse all
amounts in the Excess Cash Reserve Account to Borrower and Borrower shall no
longer be obligated to pay Excess Cash Flow to Lender on each Payment Date.
SECTION 7.5 INTENTIONALLY DELETED.
SECTION 7.6 RESERVE FUNDS, GENERALLY.
(a) Borrower grants to Lender a first-priority perfected security interest
in each of the Reserve Funds and any and all monies now or hereafter deposited
in each Reserve Fund as additional security for payment of the Debt. Until
expended or applied in accordance herewith, the Reserve Funds shall constitute
additional security for the Debt.
(b) Upon the occurrence of an Event of Default, Lender may, in addition to
any and all other rights and remedies available to Lender, apply any sums then
present in any or all of the Reserve Funds to the payment of the Debt in any
order in its sole discretion.
(c) The Reserve Funds shall not constitute trust funds and may be
commingled with other monies held by Lender.
(d) The Reserve Funds shall be held in interest bearing accounts and all
earnings or interest on a Reserve Fund shall be added to and become a part of
such Reserve Fund and shall be disbursed in the same manner as other monies
deposited in such Reserve Fund.
(e) Borrower shall not, without obtaining the prior written consent of
Lender, further pledge, assign or grant any security interest in any Reserve
Fund or the monies deposited therein or permit any lien or encumbrance to attach
thereto, or any levy to be made thereon, or any UCC-1 Financing Statements,
except those naming Lender as the secured party, to be filed with respect
thereto.
(f) Lender shall not be liable for any loss sustained on the investment of
any funds constituting the Replacement Reserve Fund.
(g) Borrower shall indemnify Lender and hold Lender harmless from and
against any and all actions, suits, claims, demands, liabilities, losses,
damages, obligations and costs and expenses (including litigation costs and
reasonable attorneys fees and expenses) arising from or in any way connected
with the Reserve Funds or the related Accounts or the performance of the
obligations for which the Reserve Funds or the related Accounts were
established, except to the extent arising from the gross negligence or willful
misconduct of Lender, its agents or employees or arising from the failure of
Lender to disburse funds from the Reserve Funds or related Accounts when
required to do so hereunder. Borrower shall assign to Lender all rights and
claims Borrower may have against all Persons supplying labor, materials or other
services which are to be paid from or secured by the Reserve Funds or the
related Accounts; provided, however,
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that Lender may not pursue any such right or claim unless an Event of Default
has occurred and remains uncured.
ARTICLE 8 - DEFAULTS
SECTION 8.1 EVENT OF DEFAULT.
(a) Each of the following events shall constitute an event of default
hereunder (an "EVENT OF DEFAULT"):
(i) if (A) any monthly installment of principal and/or interest due
under the Note is not paid within five (5) days when due or (B) if the
entire amount of the Debt is not paid on the Maturity Date;
(ii) if any of the Taxes or Other Charges are not paid on or prior to
the date when the same are due and payable;
(iii) if the Policies are not kept in full force and effect, or if
certified copies of the Policies are not delivered to Lender upon request;
(iv) if Borrower transfers or encumbers any portion of the Properties
without Lender's prior written consent or otherwise violates the provisions
of Section 5.2.13 hereof or Article 7 of any Security Instrument;
(v) if any representation or warranty made by Borrower, the SPC Party
or Guarantor herein or in any other Loan Document, or in any report,
certificate, financial statement or other instrument, agreement or document
furnished to Lender shall have been false or misleading in any material
respect as of the date the representation or warranty was made;
(vi) if Borrower, the SPC Party, Guarantor or any other guarantor
under any guaranty issued in connection with the Loan shall make an
assignment for the benefit of creditors;
(vii) if a receiver, liquidator or trustee shall be appointed for
Borrower, the SPC Party, Guarantor or any other guarantor under any
guaranty issued in connection with the Loan or if Borrower, the SPC Party,
Guarantor or such other guarantor shall be adjudicated a bankrupt or
insolvent, or if any petition for bankruptcy, reorganization or arrangement
pursuant to the Bankruptcy Code, or any similar Federal or State law, shall
be filed by or against, consented to, or acquiesced in by, Borrower, the
SPC Party, Guarantor or such other guarantor, or if any proceeding for the
dissolution or liquidation of Borrower, the SPC Party, Guarantor or such
other guarantor shall be instituted; provided, however, if such
appointment, adjudication, petition or proceeding was involuntary and not
consented to by Borrower, the SPC Party, Guarantor or such other guarantor,
upon the same not being discharged, stayed or dismissed within sixty (60)
days;
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(viii) if Borrower attempts to assign its rights under this Agreement
or any of the other Loan Documents or any interest herein or therein in
contravention of the Loan Documents;
(ix) if Borrower breaches any of its respective negative covenants
contained in Section 5.2 or any covenant contained in Section 4.1.30
hereof;
(x) with respect to any term, covenant or provision set forth herein
which specifically contains a notice requirement or grace period, if
Borrower shall be in default under such term, covenant or condition after
the giving of such notice or the expiration of such grace period;
(xi) if any of the assumptions contained in the Insolvency Opinion, or
in any other "non-consolidation" opinion delivered to Lender in connection
with the Loan, or in any other "non-consolidation" delivered subsequent to
the closing of the Loan, is or shall become untrue in any material respect;
(xii) if Borrower violates or does not comply with any of the
provisions of Section 5.1.20 hereof;
(xiii) if a default has occurred and continues beyond any applicable
cure period under the Management Agreement (or any Replacement Management
Agreement) if such default permits the Manager thereunder to terminate or
cancel the Management Agreement (or any Replacement Management Agreement)
unless in such case Borrower shall enter into a Replacement Management
Agreement in accordance with the terms hereof;
(xiv) if any Individual Property becomes subject to any mechanic's,
materialman's or other Lien other than a Lien for local real estate taxes
and assessments not then due and payable and the Lien shall remain
undischarged of record (by payment, bonding or otherwise) for a period of
thirty (30) days;
(xv) if any Federal tax Lien or State or local income tax Lien is
filed against Borrower, SPC Party, any Guarantor or any Individual Property
and same is not discharged of record within thirty (30) days after same is
filed;
(xvi) (A) Borrower fails to timely provide Lender with the written
certification and evidence referred to in Section 5.2.12 hereof, (B)
Borrower is a Plan or its assets constitute Plan Asset; or (C) Borrower
consummates a transaction which would cause the Security Instruments or
Lender's exercise of its rights under the Security Instruments, the Note,
this Agreement or the other Loan Documents to constitute a nonexempt
prohibited transaction under ERISA or result in a violation of a State
statute regulating governmental plans, subjecting Lender to liability for a
violation of ERISA, the Code, a State statute or other similar law;
(xvii) if Borrower shall fail to deliver to Lender, within ten (10)
days after request by Lender, the estoppel certificates required pursuant
to the terms of Section 5.1.15(a) hereof;
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(xviii) if any default occurs under any guaranty or indemnity executed
in connection herewith (including, without limitation, the Guaranty and the
Environmental Indemnity) and such default continues after the expiration of
applicable grace periods, if any;
(xix) if Borrower shall be in default beyond applicable notice and
grace periods under any other mortgage, deed of trust, deed to secure debt
or other security agreement covering any part of any Individual Property
whether it be superior or junior in lien to the related Security
Instrument;
(xx) if Borrower operates any Individual Property (other than the
Properties set forth on Schedule 4.1.31 attached hereto) under the name
other than "U-Store-It", without Lender's prior written consent;
(xxi) [intentionally deleted];
(xxii) [intentionally deleted];
(xxiii) if there shall be a default under any of the other Loan
Documents beyond any applicable cure periods contained in such documents,
whether as to Borrower or any Individual Property, or if any other such
event shall occur or condition shall exist, if the effect of such event or
condition is to accelerate the maturity of any portion of the Debt or to
permit Lender to accelerate the maturity of all or any portion of the Debt;
or
(xxiv) if Borrower shall continue to be in Default under any of the
other terms, covenants or conditions of this Agreement not specified in
subsections (i) to (xxiii) above, for ten (10) days after notice to
Borrower from Lender, in the case of any Default which can be cured by the
payment of a sum of money, or for thirty (30) days after notice from Lender
in the case of any other Default; provided, however, that if such
non-monetary Default is susceptible of cure but cannot reasonably be cured
within such thirty (30) day period and provided further that Borrower shall
have commenced to cure such Default within such thirty (30) day period and
thereafter diligently and expeditiously proceeds to cure the same, such
thirty (30) day period shall be extended for such time as is reasonably
necessary for Borrower in the exercise of due diligence to cure such
Default, such additional period not to exceed sixty (60) days.
(b) Upon the occurrence of an Event of Default (other than an Event of
Default described in clauses (vi), (vii) or (viii) above) and at any time
thereafter, in addition to any other rights or remedies available to it pursuant
to this Agreement and the other Loan Documents or at law or in equity, Lender
may take such action, without notice or demand, that Lender deems advisable to
protect and enforce its rights against Borrower and in and to all or any
Individual Property, including, without limitation, declaring the Debt to be
immediately due and payable, and Lender may enforce or avail itself of any or
all rights or remedies provided in the Loan Documents against Borrower and any
or all of the Properties, including, without limitation, all rights or remedies
available at law or in equity; and upon any Event of Default described in
clauses (vi), (vii) or (viii) above, the Debt and all other obligations of
Borrower hereunder and under the other Loan Documents shall immediately and
automatically become due and payable,
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without notice or demand, and Borrower hereby expressly waives any such notice
or demand, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
SECTION 8.2 REMEDIES.
(a) Upon the occurrence of an Event of Default, all or any one or more of
the rights, powers, privileges and other remedies available to Lender against
Borrower under this Agreement or any of the other Loan Documents executed and
delivered by, or applicable to, Borrower or at law or in equity may be exercised
by Lender at any time and from time to time, whether or not all or any of the
Debt shall be declared due and payable, and whether or not Lender shall have
commenced any foreclosure proceeding or other action for the enforcement of its
rights and remedies under any of the Loan Documents with respect to all or any
Individual Property. Any such actions taken by Lender shall be cumulative and
concurrent and may be pursued independently, singly, successively, together or
otherwise, at such time and in such order as Lender may determine in its sole
discretion, to the fullest extent permitted by law, without impairing or
otherwise affecting the other rights and remedies of Lender permitted by law,
equity or contract or as set forth herein or in the other Loan Documents.
Without limiting the generality of the foregoing, Borrower agrees that if an
Event of Default is continuing (i) Lender is not subject to any "one action" or
"election of remedies" law or rule, and (ii) all liens and other rights,
remedies or privileges provided to Lender shall remain in full force and effect
until Lender has exhausted all of its remedies against the Properties and each
Security Instrument has been foreclosed, sold and/or otherwise realized upon in
satisfaction of the Debt or the Debt has been paid in full.
(b) With respect to Borrower and the Properties, nothing contained herein
or in any other Loan Document shall be construed as requiring Lender to resort
to any Individual Property for the satisfaction of any of the Debt in preference
or priority to any other Individual Property, and Lender may seek satisfaction
out of all of the Properties or any part thereof, in its absolute discretion in
respect of the Debt. In addition, Lender shall have the right from time to time
to partially foreclose the Security Instruments in any manner and for any
amounts secured by the Security Instruments then due and payable as determined
by Lender in its sole discretion including, without limitation, the following
circumstances: (i) in the event Borrower defaults beyond any applicable grace
period in the payment of one or more scheduled payments of principal and
interest, Lender may foreclose one or more of the Security Instruments to
recover such delinquent payments, or (ii) in the event Lender elects to
accelerate less than the entire outstanding principal balance of the Loan,
Lender may foreclose one or more of the Security Instruments to recover so much
of the principal balance of the Loan as Lender may accelerate and such other
sums secured by one or more of the Security Instruments as Lender may elect.
Notwithstanding one or more partial foreclosures, the Properties shall remain
subject to the Security Instruments to secure payment of the Debt and not
previously recovered.
(c) Lender shall have the right, from time to time, to sever the Note and
the other Loan Documents into one or more separate notes, mortgages and other
security documents (the "SEVERED LOAN DOCUMENTS") in such denominations as
Lender shall determine in its sole discretion for purposes of evidencing and
enforcing its rights and remedies provided hereunder. Borrower shall execute and
deliver to Lender from time to time, promptly after the request of Lender, a
severance agreement and such other documents as Lender shall request in order to
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effect the severance described in the preceding sentence, all in form and
substance reasonably satisfactory to Lender. Borrower hereby absolutely and
irrevocably appoints Lender as its true and lawful attorney, coupled with an
interest, in its name and stead to make and execute all documents necessary or
desirable to effect the aforesaid severance, Borrower ratifying all that its
said attorney shall do by virtue thereof; provided, however, Lender shall not
make or execute any such documents under such power until three (3) days after
notice has been given to Borrower by Lender of Lender's intent to exercise its
rights under such power. Except as may be required in connection with a
Securitization pursuant to Section 9.1 hereof, (i) Borrower shall not be
obligated to pay any costs or expenses incurred in connection with the
preparation, execution, recording or filing of the Severed Loan Documents, and
(ii) the Severed Loan Documents shall not contain any representations,
warranties or covenants not contained in the Loan Documents and any such
representations and warranties contained in the Severed Loan Documents will be
given by Borrower only as of the Closing Date.
SECTION 8.3 REMEDIES CUMULATIVE; WAIVERS.
The rights, powers and remedies of Lender under this Agreement shall be
cumulative and not exclusive of any other right, power or remedy which Lender
may have against Borrower pursuant to this Agreement or the other Loan
Documents, or existing at law or in equity or otherwise. Lender's rights, powers
and remedies may be pursued singularly, concurrently or otherwise, at such time
and in such order as Lender may determine in Lender's sole discretion. No delay
or omission to exercise any remedy, right or power accruing upon an Event of
Default shall impair any such remedy, right or power or shall be construed as a
waiver thereof, but any such remedy, right or power may be exercised from time
to time and as often as may be deemed expedient. A waiver of one Default or
Event of Default with respect to Borrower shall not be construed to be a waiver
of any subsequent Default or Event of Default by Borrower or to impair any
remedy, right or power consequent thereon.
ARTICLE 9 - SPECIAL PROVISIONS
SECTION 9.1 SALE OF NOTES AND SECURITIZATION.
At the request of the holder of the Note and, to the extent not already
required to be provided by Borrower under this Agreement, Borrower shall use
reasonable efforts to satisfy the market standards to which the holder of the
Note customarily adheres or which may be reasonably required in the marketplace
or by the Rating Agencies in connection with the sale of the Note or
participations therein or the first successful securitization (such sale and/or
securitization, the "SECURITIZATION") of rated single or multi-class securities
(the "SECURITIES") secured by or evidencing ownership interests in the Note and
the Security Instruments, including, without limitation, to:
(a) (i) provide such financial and other information with respect to the
Properties, Borrower, Guarantor and the Manager, (ii) provide budgets relating
to the Properties and (iii) at Lender's cost, to perform or permit or cause to
be performed or permitted such site inspection, appraisals, market studies,
environmental reviews and reports (Phase I's and, if appropriate, Phase II's),
engineering reports and other due diligence investigations of the Properties, as
may be reasonably requested by the holder of the Note or the Rating Agencies or
85
as may be necessary or appropriate in connection with the Securitization (the
"PROVIDED INFORMATION"), together, if customary, with appropriate verification
and/or consents of the Provided Information through letters of auditors or
opinions of counsel of independent attorneys acceptable to Lender and the Rating
Agencies;
(b) if required by the Rating Agencies, deliver (i) a revised Insolvency
Opinion, (ii) revised or additional opinions of counsel as to due execution and
enforceability with respect to the Properties, Borrower, any Guarantor and
Manager and their respective Affiliates and the Loan Documents, and (iii)
revised organizational documents for Borrower, any Guarantor and Manager and
their respective Affiliates (including without limitation, such revisions as are
necessary to comply with the provisions of Section 4.1.30 hereof), which
counsel, opinions, and organizational documents shall be satisfactory to Lender
and the Rating Agencies;
(c) make such representations and warranties as of the closing date of the
Securitization with respect to the Properties, Borrower, Guarantor, Manager and
the Loan Documents as are customarily provided in securitization transactions
and as may be reasonably requested by the holder of the Note or the Rating
Agencies and consistent with the facts covered by such representations and
warranties as they exist on the date thereof, including the representations and
warranties made in the Loan Documents;
(d) execute such amendments to the Loan Documents and Borrower's
organizational documents as may be requested by the holder of the Note or the
Rating Agencies or otherwise to effect the Securitization including (i)
bifurcating the Note into two or more notes and splitting the Security
Instrument into two mortgages, including a first priority mortgage or otherwise
as determined by and acceptable to Lender or (ii) dividing the Note into
multiple components corresponding to tranches of certificates to be issued in a
Securitization each having a notional balance and an interest rate determined by
Lender; provided, however, that Borrower shall not be required to modify or
amend any Loan Document if the overall effect of such modification or amendment
would (i) change the interest rate, the stated maturity (as the same may be
extended pursuant to this Agreement) or the amortization of principal set forth
in the Note, or (ii) modify or amend any other material economic term of the
Loan;
(e) if Lender elects, in its sole discretion, prior to or upon a
Securitization, to split the Loan into two or more parts, or the Note into
multiple component notes or tranches which may have different interest rates,
amortization payments, principal amounts and maturities, Borrower agrees to
cooperate with Lender in connection with the foregoing and to execute the
required modifications and amendments to the Note, this Agreement and the Loan
Documents and to provide opinions necessary to effectuate the same. Such Notes
or components may be assigned different interest rates, so long as the initial
weighted average of such interest rates does not exceed the Applicable Interest
Rate ;and
(f) supply to Lender such documentation, financial statements and reports
in form and substance required for Lender to comply with the Federal securities
law, if applicable.
All reasonable third party costs and expenses incurred by Lender or
Borrower in connection with Borrower's complying with requests made under this
Section 9.1 shall be paid by Lender (other than the fees and expenses of
Borrower's counsel).
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SECTION 9.2 SECURITIZATION INDEMNIFICATION.
(a) Borrower understands that certain of the Provided Information may be
included in disclosure documents in connection with the Securitization,
including, without limitation, a prospectus, prospectus supplement, private
placement memorandum, offering circular or other offering document (each, a
"DISCLOSURE DOCUMENT") and may also be included in filings with the Securities
and Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"SECURITIES ACT"), or the Securities and Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), or provided or made available to investors or prospective
investors in the Securities, the Rating Agencies, and service providers relating
to the Securitization. In the event that the Disclosure Document is required to
be revised prior to the sale of all Securities, Borrower will cooperate with the
holder of the Note in updating the Disclosure Document by providing all current
information necessary to keep the Disclosure Document accurate and complete in
all material respects.
(b) Borrower agrees to provide in connection with each of (i) a preliminary
and a final private placement memorandum, (ii) a preliminary and final
prospectus or prospectus supplement, as applicable, or (iii) collateral and
structured term sheets or similar materials, an indemnification certificate (A)
certifying that Borrower has carefully examined such memorandum, prospectus or
term sheets, as applicable, including without limitation, the sections entitled
"Special Considerations," "Description of the Mortgages," "Description of the
Mortgage Loans and Mortgaged Property," "The Manager," "The Borrower" and
"Certain Legal Aspects of the Mortgage Loan," and such sections (and any other
sections reasonably requested) do not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
made, in the light of the circumstances under which they were made, not
misleading, (B) indemnifying Lender (and for purposes of this Section 9.2,
Lender hereunder shall include its officers and directors), the Affiliate of
LaSalle Bank National Association ("LASALLE") that has filed the registration
statement relating to the Securitization (the "REGISTRATION STATEMENT"), each of
its directors, each of its officers who have signed the Registration Statement
and each Person or entity who controls the Affiliate within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
(collectively, the "LASALLE GROUP"), and LaSalle, each of its directors and each
Person who controls LaSalle within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act (collectively, the "UNDERWRITER GROUP")
for any losses, claims, damages or liabilities (collectively, the "LIABILITIES")
to which Lender, the LaSalle Group or the Underwriter Group may become subject
insofar as the Liabilities arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in such sections
described in clause (A) above, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated in such
sections or necessary in order to make the statements in such sections or in
light of the circumstances under which they were made, not misleading and (C)
agreeing to reimburse Lender, the LaSalle Group and the Underwriter Group for
any legal or other expenses reasonably incurred by Lender and LaSalle in
connection with investigating or defending the Liabilities; provided, however,
that Borrower will be liable in any such case under clauses (B) or (C) above
only to the extent that any such Liability arises out of or is based upon any
such untrue statement or omission made therein in reliance upon and in
conformity with information furnished to Lender by or on behalf of Borrower in
connection with the preparation of the memorandum or prospectus or in connection
with the underwriting of the debt, including,
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without limitation, financial statements of Borrower, operating statements, rent
rolls, environmental site assessment reports and property condition reports with
respect to the Properties. This indemnification will be in addition to any
liability which Borrower may otherwise have. Moreover, the indemnification
provided for in clauses (B) and (C) above shall be effective whether or not an
indemnification certificate described in (A) above is provided and shall be
applicable based on information previously provided by Borrower or its
Affiliates if Borrower does not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act, Borrower agrees to
indemnify (i) Lender, the LaSalle Group and the Underwriter Group for
Liabilities to which Lender, the LaSalle Group or the Underwriter Group may
become subject insofar as the Liabilities arise out of or are based upon the
omission or alleged omission to state in the Provided Information a material
fact required to be stated in the Provided Information in order to make the
statements in the Provided Information, in light of the circumstances under
which they were made not misleading and (ii) reimburse Lender, the LaSalle Group
or the Underwriter Group for any legal or other expenses reasonably incurred by
Lender, the LaSalle Group or the Underwriter Group in connection with defending
or investigating the Liabilities.
(d) Promptly after receipt by an indemnified party under this Section 9.2
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9.2, notify the indemnifying party in writing of the commencement
thereof, but the omission to so notify the indemnifying party will not relieve
the indemnifying party from any liability which the indemnifying party may have
to any indemnified party hereunder except to the extent that failure to notify
causes prejudice to the indemnifying party. In the event that any action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled, jointly with
any other indemnifying party, to participate therein and, to the extent that it
(or they) may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel satisfactory to such indemnified party.
After notice from the indemnifying party to such indemnified party under this
Section 9.2 the indemnifying party shall not be responsible for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided,
however, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there are any legal defenses available to it and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. The indemnifying party shall not be liable for the expenses of more
than one such separate counsel unless an indemnified party shall have reasonably
concluded that there may be legal defenses available to it that are different
from or additional to those available to another indemnified party.
(e) In order to provide for just and equitable contribution in
circumstances in which the indemnifications provided for in Section 9.2(b) or
(c) is or are for any reason held to be unenforceable by an indemnified party in
respect of any Liabilities (or action in respect thereof) referred to therein
which would otherwise be indemnifiable under Section 9.2(b) or (c), the
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indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such Liabilities (or action in respect
thereof); provided, however, that no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. In determining the amount of contribution to which
the respective parties are entitled, the following factors shall be considered:
(i) LaSalle's and Borrower's relative knowledge and access to information
concerning the matter with respect to which claim was asserted; (ii) the
opportunity to correct and prevent any statement or omission; and (iii) any
other equitable considerations appropriate in the circumstances. Lender and
Borrower hereby agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation.
(f) The liabilities and obligations of both Borrower and Lender under this
Section 9.2 shall survive the termination of this Agreement and the satisfaction
and discharge of the Debt.
SECTION 9.3 INTENTIONALLY DELETED.
SECTION 9.4 EXCULPATION.
Subject to the qualifications below, Lender shall not enforce the liability
and obligation of Borrower to perform and observe the obligations contained in
the Note, this Agreement, the Security Instruments or the other Loan Documents
by any action or proceeding wherein a money judgment shall be sought against
Borrower or any of its partners or members except that Lender may bring a
foreclosure action, an action for specific performance or any other appropriate
action or proceeding to enable Lender to enforce and realize upon its interest
under the Note, this Agreement, the Security Instruments and the other Loan
Documents, or in the Properties, the Rents, or any other collateral given to
Lender pursuant to the Loan Documents; provided, however, that, except as
specifically provided herein, any judgment in any such action or proceeding
shall be enforceable against Borrower only to the extent of Borrower's interest
in the Properties, in the Rents and in any other collateral given to Lender, and
Lender, by accepting the Note, this Agreement, the Security Instruments and the
other Loan Documents, agrees that it shall not sue for, seek or demand any
deficiency judgment against Borrower in any such action or proceeding under or
by reason of or under or in connection with the Note, this Agreement, the
Security Instruments or the other Loan Documents. The provisions of this Section
shall not, however, (a) constitute a waiver, release or impairment of any
obligation evidenced or secured by any of the Loan Documents; (b) impair the
right of Lender to name Borrower as a party defendant in any action or suit for
foreclosure and sale under any of the Security Instruments; (c) affect the
validity or enforceability of any indemnity (including, without limitation, the
Environmental Indemnity), guaranty (including, without limitation, the
Guaranty), master lease or similar instrument made in connection with the Loan
Documents; (d) impair the right of Lender to obtain the appointment of a
receiver; (e) impair the enforcement of any of the Assignments of Leases; (f)
constitute a prohibition against Lender to seek a deficiency judgment against
Borrower in order to fully realize the security granted by each of the Security
Instruments or to commence any other appropriate action or proceeding in order
for Lender to exercise its remedies against all of the Properties; or (g)
constitute a waiver of the right of Lender to enforce the liability and
obligation of Borrower, by money judgment or otherwise, to the extent of any
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loss, damage, cost, expense, liability, claim or other obligation incurred by
Lender (including attorneys' fees and costs reasonably incurred) arising out of
or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower, Guarantor or
any other guarantor in connection with the Loan;
(ii) the gross negligence or willful misconduct of Borrower or
Guarantor;
(iii) the breach of any representation, warranty, covenant or
indemnification provision in the Environmental Indemnity or in the Security
Instruments concerning Environmental Laws, hazardous substances and
asbestos and any indemnification of Lender with respect thereto in either
document;
(iv) the removal or disposal of any portion of the Properties after an
Event of Default;
(v) the misapplication or conversion by Borrower (but only to the
extent of such misapplication or conversion) of (A) any Insurance Proceeds
paid by reason of any loss, damage or destruction to the Properties, (B)
any Awards or other amounts received in connection with the condemnation of
all or a portion of the Properties, or (C) any Rents following an Event of
Default;
(vi) failure to pay Taxes, charges for labor or materials or Other
Charges that can create liens on any portion of the Properties;
(vii) any security deposits, advance deposits or any other deposits
collected with respect to the Properties which are not delivered to Lender
upon a foreclosure of the Properties or action in lieu thereof, except to
the extent any such security deposits were applied in accordance with the
terms and conditions of any of the Leases prior to the occurrence of the
Event of Default that gave rise to such foreclosure or action in lieu
thereof; or
(viii) Borrower fails to permit on-site inspections of the Properties,
fails to provide financial information, fails to maintain its status as a
single purpose entity or fails to appoint a new property manager upon the
request of Lender after an Event of Default, each as required by, and in
accordance with the terms and provisions of, this Agreement and the
Security Instruments;
Notwithstanding anything to the contrary in this Agreement, the Note or any
of the Loan Documents, (A) Lender shall not be deemed to have waived any right
which Lender may have under Section 506(a), 506(b), 1111(b) or any other
provisions of the Bankruptcy Code to file a claim for the full amount of the
Debt secured by the Security Instruments or to require that all collateral shall
continue to secure all of the Debt owing to Lender in accordance with the Loan
Documents, and (B) the Debt shall be fully recourse to Borrower in the event
that: (i) Borrower fails to obtain Lender's prior written consent to any
subordinate financing or other voluntary lien encumbering any Individual
Property; (ii) Borrower fails to obtain Lender's prior written consent to any
assignment, transfer, or conveyance of any Individual Property or any interest
therein as required by the Security Instrument or hereunder; (iii) or if any
Individual Property becomes an
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asset in a bankruptcy or insolvency proceeding as a result of any petition for
bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or
any similar federal or state law, filed by, or collusively arranged by, Borrower
or any Affiliates of Borrower.
SECTION 9.5 MANAGEMENT AGREEMENT.
(a) The Improvements on the Properties are operated and managed as
"U-Store-It" self-service storage facilities (other than the Properties set
forth on Schedule 4.1.31 attached hereto) under the terms and conditions of the
Management Agreement, which have been approved by Lender including the
management fees and any other items set forth therein. The Properties (other
than the Properties set forth on Schedule 4.1.31 attached hereto) shall at all
times continue to be operated as "U-Store-It" self-service storage facilities or
under such other tradename or trademark as may be approved by Lender. In no
event shall the management fees under the Management Agreement exceed four
percent (4%) of the gross income derived from the applicable Individual
Property. Borrower shall, (i) diligently perform and observe all of the terms,
covenants and conditions of the Management Agreement, on the part of Borrower to
be performed and observed to the end that all things shall be done which are
necessary to keep unimpaired the rights of Borrower under the Management
Agreement and (ii) promptly notify Lender of the giving of any notice by Manager
to Borrower of any default by Borrower in the performance or observance of any
of the terms, covenants or conditions of the Management Agreement on the part of
Borrower to be performed and observed and deliver to Lender a true copy of each
such notice. Borrower shall not surrender the Management Agreement, consent to
the assignment by the Manager of its interest under the Management Agreement, or
terminate or cancel the Management Agreement, or modify, change, supplement,
alter or amend the Management Agreement, in any respect, either orally or in
writing. Borrower hereby assigns to Lender as further security for the payment
of the Debt and for the performance and observance of the terms, covenants and
conditions of this Agreement, all the rights, privileges and prerogatives of
Borrower to surrender the Management Agreement, or to terminate, cancel, modify,
change, supplement, alter or amend the Management Agreement, in any respect, and
any such surrender of the Management Agreement, or termination, cancellation,
modification, change, supplement, alteration or amendment of the Management
Agreement, without the prior consent of Lender shall be void and of no force and
effect. If Borrower shall default in the performance or observance of any
material term, covenant or condition of the Management Agreement on the part of
Borrower to be performed or observed, then, without limiting the generality of
the other provisions of this Agreement, and without waiving or releasing
Borrower from any of its obligations hereunder, Lender shall have the right, but
shall be under no obligation, to pay any sums and to perform any act or take any
action as may be appropriate to cause all the terms, covenants and conditions of
the Management Agreement on the part of Borrower to be performed or observed to
be promptly performed or observed on behalf of Borrower, to the end that the
rights of Borrower in, to and under the Management Agreement shall be kept
unimpaired and free from default. Lender and any Person designated by Lender
shall have, and are hereby granted, the right to enter upon the applicable
Individual Property at any time and from time to time for the purpose of taking
any such action. If the Manager shall deliver to Lender a copy of any notice
sent to Borrower of default under the Management Agreement, such notice shall
constitute full protection to Lender for any action taken or omitted to be taken
by Lender in good faith, in reliance thereon. Borrower shall not, and shall not
permit the Manager to, sub-contract any or all of its management
responsibilities under the Management
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Agreement to a third-party without the prior written consent of Lender, which
consent shall not be unreasonably withheld. Borrower shall, from time to time,
obtain from the Manager such certificates of estoppel with respect to compliance
by Borrower with the terms of the Management Agreement as may be requested by
Lender. Borrower shall exercise each individual option, if any, to extend or
renew the term of the Management Agreement upon demand by Lender made at any
time within one (1) year of the last day upon which any such option may be
exercised, and Borrower hereby expressly authorizes and appoints Lender its
attorney-in-fact to exercise any such option in the name of and upon behalf of
Borrower, which power of attorney shall be irrevocable and shall be deemed to be
coupled with an interest. Any sums expended by Lender pursuant to this paragraph
(i) shall bear interest at the Default Rate from the date such cost is incurred
to the date of payment to Lender, (ii) shall be deemed to constitute a portion
of the Debt, (iii) shall be secured by the lien of the Security Instruments and
the other Loan Documents and (iv) shall be immediately due and payable upon
demand by Lender therefor.
(b) Without limitation of the foregoing, Borrower, upon the request of
Lender, shall terminate the Management Agreement and replace Manager, without
penalty or fee, if at any time during the Loan: (i) Manager shall become
insolvent or a debtor in any bankruptcy or insolvency proceeding, (ii) there
exists an Event of Default, (iii) there exists a default by Manager under the
Management Agreement that continues beyond the expiration of any applicable
notice and cure periods, (iv) Lender determines in its reasonable discretion
that the Properties are not being managed in accordance with generally accepted
management practices for properties similar to the Properties, or (v) the Debt
Service Ratio Coverage for all of the Properties for the twelve (12) full
calendar months immediately preceding the determination date is less than
1.15:1.00. At such time as the Manager may be removed, a Qualifying Manager
shall assume management of the applicable Individual Property pursuant to a
Replacement Management Agreement.
SECTION 9.6 SERVICER.
At the option of Lender, the Loan may be serviced by a servicer/trustee
(the "SERVICER") selected by Lender and Lender may delegate all or any portion
of its responsibilities under this Agreement and the other Loan Documents to the
Servicer pursuant to a servicing agreement (the "SERVICING AGREEMENT") between
Lender and Servicer. Borrower shall not be responsible for (i) any set-up fees
or any other initial costs relating to or arising under the Servicing Agreement,
and (ii) the monthly servicing fee due to the Servicer under the Servicing
Agreement.
SECTION 9.7 RESTRUCTURING OF MORTGAGE AND/OR MEZZANINE LOAN.
Lender shall have the right at any time to divide the Loan and/or the
Mezzanine Loan into two or more parts (the "RESTRUCTURING OPTION"): one or more
mortgage loans (the "MORTGAGE LOAN(S)") and/or one or more mezzanine loans (the
"MEZZANINE LOAN(S)"). The principal amount of the Mortgage Loan(s) plus the
principal amount of the Mezzanine Loan(s) shall equal the outstanding principal
balance of the Loan and the Mezzanine Loan immediately prior to the creation of
the Mortgage Loan(s) and the Mezzanine Loan(s). In effectuating the foregoing,
Mezzanine Lender will make a loan to Mezzanine Borrower(s); Mezzanine
Borrower(s) will contribute the amount of the Mezzanine Loan(s) to Borrower (in
its capacity as Borrower under
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the Mortgage Loan(s), "MORTGAGE BORROWER") and Mortgage Borrower will apply the
contribution to pay down the Loan, without the payment of the Yield Maintenance
Premium or other premium. The Mortgage Loan(s) and the Mezzanine Loan(s) will be
on the same terms and subject to the same conditions set forth in this
Agreement, the Note, the Security Instrument and the other Loan Documents except
as follows:
(a) Lender (in its capacity as the lender under the Mortgage Loan(s), the
"MORTGAGE LENDER") shall have the right to establish different interest rates
and debt service payments for the Mortgage Loan(s) and the Mezzanine Loan(s) and
to require the payment of the Mortgage Loan(s) and the Mezzanine Loan(s) in such
order of priority as may be designated by Lender; provided, that (i) the total
loan amounts for the Mortgage Loan(s) and the Mezzanine Loan(s) shall equal the
amount of the Loan and the Mezzanine Loan immediately prior to the creation of
the Mortgage Loan(s) and the Mezzanine Loan(s); (ii) the initial weighted
average interest rate of the Mortgage Loan(s) and the Mezzanine Loan(s) shall
initially on the date created equal the interest rate which was applicable to
the Loan immediately prior to creation of the Mortgage Loan(s) and the Mezzanine
Loan(s); and (iii) the initial debt service payments on the Mortgage Loan(s) and
the Mezzanine Loan(s) shall initially on the date created equal the debt service
payment which was due under the Loan and the Mezzanine Loan immediately prior to
creation of the Mortgage Loan(s) and the Mezzanine Loan(s). The Mortgage Loan(s)
and the Mezzanine Loan(s) will be made pursuant to Lender's standard loan
documents; provided, however, in the case of the Mortgage Loan(s), the Mortgage
Loan(s) shall be made pursuant to loan documents substantially similar to the
Loan Documents. The Mezzanine Loan(s) will be subordinate to the Mortgage
Loan(s) and will be governed by the terms of an intercreditor agreement between
the holders of the Mortgage Loan(s) and the Mezzanine Loan(s).
(b) Mezzanine Borrower(s) shall be a special purpose, bankruptcy remote
entity pursuant to applicable Rating Agency criteria and shall own directly or
indirectly one hundred percent (100%) of Mortgage Borrower. The direct equity
holder(s) of Mezzanine Borrower(s) (such holder(s), the "SECOND LEVEL SPE(S)")
shall be a special purpose, bankruptcy remote entity pursuant to applicable
Rating Agency criteria and shall own directly or indirectly one hundred percent
(100%) of Mezzanine Borrower(s). The security for the Mezzanine Loan(s) shall be
a pledge of one hundred percent (100%) of the direct and indirect ownership
interests held by such Mezzanine Borrower(s).
(c) Mezzanine Borrower(s), Second Level SPE(s) and Mortgage Borrower shall
cooperate with all reasonable requests of Lender in order to divide the Loan
and/or the Mezzanine Loan into one or more Mortgage Loan(s) and one or more
Mezzanine Loan(s) and shall execute and deliver such documents as shall
reasonably be required by Lender and any Rating Agency in connection therewith,
including, without limitation, (i) the delivery of non-consolidation opinions,
(ii) the modification of organizational documents and loan documents, including,
without limitation, this Agreement, (iii) authorize Lender to file any UCC-1
Financing Statements reasonably required by Lender to perfect its security
interest in the collateral pledged as security for the Mortgage Loan(s) and/or
the Mezzanine Loan(s), (iv) execute such other documents reasonably required by
Lender in connection with the creation of the Mortgage Loan(s) and/or the
Mezzanine Loan(s), including, without limitation, a guaranty substantially
similar in form and substance to the Guaranty delivered on the date hereof, an
environmental indemnity substantially similar in form and substance to the
Environmental
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Indemnity delivered on the date hereof and a conditional assignment of
management agreement substantially similar in form and substance to the
Assignment of Management Agreement delivered on the date hereof, (v) deliver
appropriate authorization, execution and enforceability opinions with respect to
the Mezzanine Loan(s) and the Mortgage Loan(s), and (vi) deliver such title
insurance policies, "Eagle 9" or equivalent UCC title insurance policies,
satisfactory to Lender, insuring the perfection and priority of the lien on the
collateral pledged as security for the Mortgage Loan(s) and/or the Mezzanine
Loan(s).
It shall be an Event of Default hereunder if Borrower, Mezzanine
Borrower(s), Second Level SPE(s) or Sponsor fails to comply with any of the
terms, covenants or conditions of this Section 9.7 after expiration of ten (10)
Business Days after notice thereof.
Solely for the purposes of this Section 9.7, Lender shall reimburse
Borrower for all of its actual out-of-pocket costs and expenses (other than the
fees and expenses of Borrower's counsel) that Borrower incurs in connection with
complying with a request made by Lender under this Section 9.7. Notwithstanding
the foregoing, the provisions of this paragraph shall in no way limit or affect
any Borrower obligation to pay any costs expressly required to be paid by
Borrower pursuant to any other Sections of this Agreement. Lender, without in
any way limiting its other rights hereunder, in its sole and absolute
discretion, shall have the right, at any time prior to a Securitization, to
reallocate the amount of the Loan and the Mezzanine Loan and/or adjust the
interest rate rates thereon provided that (i) the aggregate principal amount of
the Loan and the Mezzanine Loan immediately following such reallocation shall
equal the outstanding principal balance of the Loan and the Mezzanine Loan
immediately prior to such reallocation and (ii) the weighted average interest
rate of the Note and the Mezzanine Note immediately following such reallocation
shall equal the weighted average interest rate which was applicable to the Note
and the Mezzanine Note immediately prior to such reallocation. Borrower shall
cooperate with all reasonable requests of Lender in order to reallocate the
amount of the Loan and the Mezzanine Loan and shall execute and deliver such
documents as shall reasonably be required by Lender in connection therewith, all
in form and substance reasonably satisfactory to Lender.
ARTICLE 10 - MISCELLANEOUS
SECTION 10.1 SURVIVAL.
This Agreement and all covenants, agreements, representations and
warranties made herein and in the certificates delivered pursuant hereto shall
survive the making by Lender of the Loan and the execution and delivery to
Lender of the Note, and shall continue in full force and effect so long as all
or any of the Debt is outstanding and unpaid unless a longer period is expressly
set forth herein or in the other Loan Documents. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the legal representatives, successors and assigns of such party. All covenants,
promises and agreements in this Agreement, by or on behalf of Borrower, shall
inure to the benefit of the legal representatives, successors and assigns of
Lender.
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SECTION 10.2 LENDER'S DISCRETION.
Whenever pursuant to this Agreement, Lender exercises any right given to it
to approve or disapprove, or any arrangement or term is to be satisfactory to
Lender, the decision of Lender to approve or disapprove or to decide whether
arrangements or terms are satisfactory or not satisfactory shall (except as is
otherwise specifically herein provided) be in the sole discretion of Lender and
shall be final and conclusive.
SECTION 10.3 GOVERNING LAW.
(a) THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, THE LOAN WAS
MADE BY LENDER AND ACCEPTED BY BORROWER IN THE STATE OF NEW YORK, AND THE
PROCEEDS OF THE NOTE DELIVERED PURSUANT HERETO WERE DISBURSED FROM THE STATE OF
NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE
PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS,
INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH
STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW
OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE
CREATION, PERFECTION, AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS
CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN DOCUMENTS AND THE
DETERMINATION OF DEFICIENCY JUDGMENTS, SHALL BE GOVERNED BY AND CONSTRUED
ACCORDING TO THE LAW OF THE STATE IN WHICH THE APPLICABLE INDIVIDUAL PROPERTY IS
LOCATED, IT BEING UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED BY THE LAW OF
SUCH STATE, THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE CONSTRUCTION,
VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS AND ALL OF THE OBLIGATIONS
ARISING HEREUNDER OR THEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW,
BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT
THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT AND THE NOTE, AND THIS
AGREEMENT AND THE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER ARISING
OUT OF OR RELATING TO THIS AGREEMENT MAY AT LENDER'S OPTION BE INSTITUTED IN ANY
FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO
SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND BORROWER WAIVES ANY
OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON
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VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY
SUIT, ACTION OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:
CT CORPORATION SYSTEM
111 EIGHTH AVENUE - 13TH FLOOR
NEW YORK, NEW YORK 10011
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY
AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN
EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT
NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II)
MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT
WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL
PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN
OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
SECTION 10.4 MODIFICATION, WAIVER IN WRITING.
No modification, amendment, extension, discharge, termination or waiver of
any provision of this Agreement, or of the Note, or of any other Loan Document,
nor consent to any departure by Borrower therefrom, shall in any event be
effective unless the same shall be in a writing signed by the party against whom
enforcement is sought, and then such waiver or consent shall be effective only
in the specific instance, and for the purpose, for which given. Except as
otherwise expressly provided herein, no notice to, or demand on Borrower, shall
entitle Borrower to any other or future notice or demand in the same, similar or
other circumstances.
SECTION 10.5 DELAY NOT A WAIVER.
Neither any failure nor any delay on the part of Lender in insisting upon
strict performance of any term, condition, covenant or agreement, or exercising
any right, power, remedy or privilege hereunder, or under the Note or under any
other Loan Document, or any other instrument given as security therefor, shall
operate as or constitute a waiver thereof, nor shall a single or partial
exercise thereof preclude any other future exercise, or the exercise of any
other right, power, remedy or privilege. In particular, and not by way of
limitation, by accepting payment after the due date of any amount payable under
this Agreement, the Note or any other
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Loan Document, Lender shall not be deemed to have waived any right either to
require prompt payment when due of all other amounts due under this Agreement,
the Note or the other Loan Documents, or to declare a default for failure to
effect prompt payment of any such other amount.
SECTION 10.6 NOTICES.
All notices, consents, approvals and requests required or permitted
hereunder or under any other Loan Document shall be given in writing and shall
be effective for all purposes if hand delivered or sent by (a) certified or
registered United States mail, postage prepaid, return receipt requested or (b)
expedited prepaid delivery service, either commercial or United States Postal
Service, with proof of attempted delivery, and by telecopier (with answer back
acknowledged), addressed as follows (or at such other address and Person as
shall be designated from time to time by any party hereto, as the case may be,
in a written notice to the other parties hereto in the manner provided for in
this Section):
If to Lender: LaSalle Bank National Association
135 South LaSalle Street, Suite 1225
Chicago, Illinois 60603
Attention: Real Estate Capital Markets
Facsimile No. (312) 904-0900
with a copy to: Thacher Proffitt & Wood LLP
2 World Financial Center
New York, New York 10281
Attention: Donald F. Simone, Esq.
Facsimile No.: (212) 912-7751
If to Borrower: YASKY LLC
6745 Engle Road, Suite 300
Middleburg Heights, Ohio 44130
Attention: Steven Osgood
Facsimile No.: (440) 234-8776
With a copy to: Hogan & Hartson L.L.P.
8300 Greensboro Drive, Suite 1100
McLean, Virginia 22101
Attention: Lee E. Berner, Esq.
Facsimile No.: (703) 610-6200
A notice shall be deemed to have been given: in the case of hand delivery, at
the time of delivery; in the case of registered or certified mail, when
delivered or the first attempted delivery on a Business Day; or in the case of
expedited prepaid delivery and telecopy, upon the first attempted delivery on a
Business Day.
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SECTION 10.7 TRIAL BY JURY.
EACH OF BORROWER AND LENDER HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF
ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY
TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO
THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN
CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY
AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. EACH PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF
THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY THE
OTHER PARTY.
SECTION 10.8 HEADINGS.
The Article and/or Section headings and the Table of Contents in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
SECTION 10.9 SEVERABILITY.
Wherever possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
SECTION 10.10 PREFERENCES.
Lender shall have the continuing and exclusive right to apply or reverse
and reapply any and all payments by Borrower to any portion of the obligations
of Borrower hereunder. To the extent Borrower makes a payment or payments to
Lender, which payment or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid to a trustee, receiver or any other party under any bankruptcy law,
State or Federal law, common law or equitable cause, then, to the extent of such
payment or proceeds received, the obligations hereunder or part thereof intended
to be satisfied shall be revived and continue in full force and effect, as if
such payment or proceeds had not been received by Lender.
SECTION 10.11 WAIVER OF NOTICE.
Borrower shall not be entitled to any notices of any nature whatsoever from
Lender except with respect to matters for which this Agreement or the other Loan
Documents specifically and expressly provide for the giving of notice by Lender
to Borrower and except with respect to matters for which Borrower is not,
pursuant to applicable Legal Requirements, permitted to waive the giving of
notice. Borrower hereby expressly waives the right to receive
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any notice from Lender with respect to any matter for which this Agreement or
the other Loan Documents do not specifically and expressly provide for the
giving of notice by Lender to Borrower.
SECTION 10.12 REMEDIES OF BORROWER.
In the event that a claim or adjudication is made that Lender or its agents
have acted unreasonably or unreasonably delayed acting in any case where by law
or under this Agreement or the other Loan Documents, Lender or such agent, as
the case may be, has an obligation to act reasonably or promptly, Borrower
agrees that neither Lender nor its agents shall be liable for any monetary
damages, and Borrower's sole remedies shall be limited to commencing an action
seeking injunctive relief or declaratory judgment. The parties hereto agree that
any action or proceeding to determine whether Lender has acted reasonably shall
be determined by an action seeking declaratory judgment.
SECTION 10.13 EXPENSES; INDEMNITY.
(a) Borrower covenants and agrees to pay or, if Borrower fails to pay, to
reimburse, Lender within five (5) days of receipt of written notice from Lender
for all reasonable costs and expenses (including reasonable attorneys' fees and
disbursements) incurred by Lender in connection with (i) the preparation,
negotiation, execution and delivery of this Agreement and the other Loan
Documents and the consummation of the transactions contemplated hereby and
thereby and all the costs of furnishing all opinions by counsel for Borrower
(including without limitation any opinions requested by Lender as to any legal
matters arising under this Agreement or the other Loan Documents with respect to
the Properties); (ii) Borrower's ongoing performance of and compliance with
Borrower's respective agreements and covenants contained in this Agreement and
the other Loan Documents on its part to be performed or complied with after the
Closing Date, including, without limitation, confirming compliance with
environmental and insurance requirements; (iii) Lender's ongoing performance and
compliance with all agreements and conditions contained in this Agreement and
the other Loan Documents on its part to be performed or complied with after the
Closing Date; (iv) the negotiation, preparation, execution, delivery and
administration of any consents, amendments, waivers or other modifications to
this Agreement and the other Loan Documents and any other documents or matters
requested by Lender; (v) securing Borrower's compliance with any requests made
pursuant to the provisions of this Agreement; (vi) the filing and recording fees
and expenses, title insurance and reasonable fees and expenses of counsel for
providing to Lender all required legal opinions, and other similar expenses
incurred in creating and perfecting the Liens in favor of Lender pursuant to
this Agreement and the other Loan Documents; (vii) enforcing or preserving any
rights, in response to third party claims or the prosecuting or defending of any
action or proceeding or other litigation, in each case against, under or
affecting Borrower, this Agreement, the other Loan Documents, the Properties, or
any other security given for the Loan; and (viii) enforcing any obligations of
or collecting any payments due from Borrower under this Agreement, the other
Loan Documents or with respect to the Properties or in connection with any
refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or of any insolvency or bankruptcy
proceedings; provided, however, that Borrower shall not be liable for the
payment of any such costs and expenses to the extent the same arise by reason of
the gross negligence, illegal acts, fraud or willful misconduct of Lender.
99
Any cost and expenses due and payable to Lender may be paid from any amounts in
the Lockbox Account.
(b) Borrower shall indemnify, defend and hold harmless Lender from and
against any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and disbursements of any kind
or nature whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel for Lender in connection with any investigative,
administrative or judicial proceeding commenced or threatened, whether or not
Lender shall be designated a party thereto), that may be imposed on, incurred
by, or asserted against Lender in any manner relating to or arising out of (i)
any breach by Borrower of its obligations under, or any material
misrepresentation by Borrower contained in, this Agreement or the other Loan
Documents, or (ii) the use or intended use of the proceeds of the Loan
(collectively, the "INDEMNIFIED LIABILITIES"); provided, however, that Borrower
shall not have any obligation to Lender hereunder to the extent that such
Indemnified Liabilities arise from the gross negligence, illegal acts, fraud or
willful misconduct of Lender. To the extent that the undertaking to indemnify,
defend and hold harmless set forth in the preceding sentence may be
unenforceable because it violates any law or public policy, Borrower shall pay
the maximum portion that it is permitted to pay and satisfy under applicable law
to the payment and satisfaction of all Indemnified Liabilities incurred by
Lender.
(c) Borrower shall, at its sole cost and expense, protect, defend,
indemnify, release and hold harmless Lender and the Indemnified Parties from and
against any and all losses (including, without limitation, reasonable attorneys'
fees and costs incurred in the investigation, defense, and settlement of losses
incurred in correcting any prohibited transaction or in the sale of a prohibited
loan, and in obtaining any individual prohibited transaction exemption under
ERISA, the Code, any State statute or other similar law that may be required, in
Lender's sole discretion) that Lender may incur, directly or indirectly, as a
result of a default under Sections 4.1.9 or 5.2.12 hereof.
(d) Borrower covenants and agrees to pay for or, if Borrower fails to pay,
to reimburse Lender for, (i) any fees and expenses incurred by any Rating Agency
in connection with any Rating Agency review of the Loan, the Loan Documents or
any transaction contemplated thereby or (ii) any consent, approval, waiver or
confirmation obtained from such Rating Agency pursuant to the terms and
conditions of this Agreement or any other Loan Document and Lender shall be
entitled to require payment of such fees and expenses as a condition precedent
to the obtaining of any such consent, approval, waiver or confirmation.
SECTION 10.14 SCHEDULES INCORPORATED.
The Schedules and Exhibits attached hereto are hereby incorporated herein
as a part of this Agreement with the same effect as if set forth in the body
hereof.
SECTION 10.15 SEOFFSETS, COUNTERCLAIMS AND DEFENSES.
Any assignee of Lender's interest in and to this Agreement, the Note and
the other Loan Documents shall take the same free and clear of all offsets,
counterclaims or defenses which are unrelated to such documents which Borrower
may otherwise have against any assignor of such
100
documents, and no such unrelated counterclaim or defense shall be interposed or
asserted by Borrower in any action or proceeding brought by any such assignee
upon such documents and any such right to interpose or assert any such unrelated
offset, counterclaim or defense in any such action or proceeding is hereby
expressly waived by Borrower.
SECTION 10.16 NO JOINT VENTURE OR PARTNERSHIP; NO THIRD PARTY
BENEFICIARIES.
(a) Borrower and Lender intend that the relationships created hereunder and
under the other Loan Documents be solely that of borrower and lender. Nothing
herein or therein is intended to create a joint venture, partnership,
tenancy-in-common, or joint tenancy relationship between Borrower and Lender nor
to grant Lender any interest in the Properties other than that of mortgagee,
beneficiary or lender.
(b) This Agreement and the other Loan Documents are solely for the benefit
of Lender and Borrower and nothing contained in this Agreement or the other Loan
Documents shall be deemed to confer upon anyone other than Lender and Borrower
any right to insist upon or to enforce the performance or observance of any of
the obligations contained herein or therein. All conditions to the obligations
of Lender to make the Loan hereunder are imposed solely and exclusively for the
benefit of Lender and no other Person shall have standing to require
satisfaction of such conditions in accordance with their terms or be entitled to
assume that Lender will refuse to make the Loan in the absence of strict
compliance with any or all thereof and no other Person shall under any
circumstances be deemed to be a beneficiary of such conditions, any or all of
which may be freely waived in whole or in part by Lender if, in Lender's sole
discretion, Lender deems it advisable or desirable to do so.
SECTION 10.17 PUBLICITY.
All news releases, publicity or advertising by Borrower or their Affiliates
through any media intended to reach the general public which refers to the Loan
Documents or the financing evidenced by the Loan Documents, to Lender, Lehman,
or any of their Affiliates shall be subject to the prior written approval of
Lender, which shall not be unreasonably withheld. Notwithstanding the foregoing,
disclosure required by any Federal or State securities laws, rules or
regulations, as determined by Borrower's counsel, shall not be subject to the
prior written approval of Lender.
SECTION 10.18 CROSS-DEFAULT; CROSS-COLLATERALIZATION; WAIVER OF MARSHALLING
OF ASSETS.
(a) Borrower acknowledges that Lender has made the Loan to Borrower upon
the security of its collective interest in the Properties and in reliance upon
the aggregate of the Properties taken together being of greater value as
collateral security than the sum of each Individual Property taken separately.
Borrower agrees that the Security Instruments are and will be
cross-collateralized and cross-defaulted with each other so that (i) an Event of
Default under any of the Security Instruments shall constitute an Event of
Default under each of the other Security Instruments which secure the Note; (ii)
an Event of Default under the Note or this Agreement shall constitute an Event
of Default under each Security Instrument; and (iii) each
101
Security Instrument shall constitute security for the Note as if a single
blanket lien were placed on all of the Properties as security for the Note.
(b) To the fullest extent permitted by law, Borrower, for itself and its
successors and assigns, waives all rights to a marshalling of the assets of
Borrower, Borrower's partners and others with interests in Borrower, Guarantor
and of the Properties, or to a sale in inverse order of alienation in the event
of foreclosure of all or any of the Security Instruments, and agrees not to
assert any right under any laws pertaining to the marshalling of assets, the
sale in inverse order of alienation, homestead exemption, the administration of
estates of decedents, or any other matters whatsoever to defeat, reduce or
affect the right of Lender under the Loan Documents to a sale of the Properties
or any other assets of Borrower or Guarantor for the collection of the Debt
without any prior or different resort for collection or of the right of Lender
to the payment of the Debt out of the net proceeds of the Properties or any
other assets of Borrower or Guarantor in preference to every other claimant
whatsoever. In addition, Borrower, for itself and its successors and assigns,
waives in the event of foreclosure of any or all of the Security Instruments,
any equitable right otherwise available to Borrower which would require the
separate sale of the Properties or any other assets of Borrower or Guarantor or
require Lender to exhaust its remedies against any Individual Property or any
combination of the Properties or any other assets of Borrower or Guarantor
before proceeding against any other Individual Property or combination of
Properties or any other assets of Borrower or Guarantor; and further in the
event of such foreclosure Borrower does hereby expressly consents to and
authorizes, at the option of Lender, the foreclosure and sale either separately
or together of any combination of the Properties or any other assets of Borrower
or Guarantor.
SECTION 10.19 WAIVER OF COUNTERCLAIM.
Borrower hereby waives the right to assert a counterclaim, other than a
compulsory counterclaim, in any action or proceeding brought against it by
Lender or its agents.
SECTION 10.20 CONFLICT; CONSTRUCTION OF DOCUMENTS; RELIANCE.
In the event of any conflict between the provisions of this Agreement and
any of the other Loan Documents, the provisions of this Agreement shall control.
The parties hereto acknowledge that they were represented by competent counsel
in connection with the negotiation, drafting and execution of the Loan Documents
and that such Loan Documents shall not be subject to the principle of construing
their meaning against the party which drafted same. Borrower acknowledges that,
with respect to the Loan, Borrower shall rely solely on its own judgment and
advisors in entering into the Loan without relying in any manner on any
statements, representations or recommendations of Lender or any parent,
subsidiary or Affiliate of Lender. Lender shall not be subject to any limitation
whatsoever in the exercise of any rights or remedies available to it under any
of the Loan Documents or any other agreements or instruments which govern the
Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of
Lender of any equity interest any of them may acquire in Borrower, and Borrower
hereby irrevocably waives the right to raise any defense or take any action on
the basis of the foregoing with respect to Lender's exercise of any such rights
or remedies. Borrower acknowledges that Lender engages in the business of real
estate financings and other real estate
102
transactions and investments which may be viewed as adverse to or competitive
with the business of Borrower or its Affiliates.
SECTION 10.21 BROKERS AND FINANCIAL ADVISORS.
Borrower hereby represents that it has dealt with no financial advisors,
brokers, underwriters, placement agents, agents or finders in connection with
the transactions contemplated by this Agreement. Borrower hereby agrees to
indemnify, defend and hold Lender harmless from and against any and all claims,
liabilities, costs and expenses of any kind (including Lender's attorneys' fees
and expenses) in any way relating to or arising from a claim by any Person that
such Person acted on behalf of Borrower or Lender in connection with the
transactions contemplated herein. The provisions of this Section 10.21 shall
survive the expiration and termination of this Agreement and the payment of the
Debt.
SECTION 10.22 PRIOR AGREEMENTS.
This Agreement and the other Loan Documents contain the entire agreement of
the parties hereto and thereto in respect of the transactions contemplated
hereby and thereby, and all prior agreements among or between such parties,
whether oral or written, between Borrower and/or its Affiliates and Lender are
superseded by the terms of this Agreement and the other Loan Documents.
[NO FURTHER TEXT ON THIS PAGE]
103
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized representatives, all as of the day and
year first above written.
BORROWER:
YASKY LLC, a Delaware limited liability
company
By:
------------------------------------
Name: Steven G. Osgood
Title: President
LENDER:
LASALLE BANK NATIONAL ASSOCIATION,
a national banking association
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE I
PROPERTIES - ALLOCATED LOAN AMOUNTS
SCHEDULE II
O&M PROGRAM PROPERTIES
1004 S. Milwaukee Avenue, Wheeling, IL
23 S. Main Street, East Windsor, CT
30 W. 330 Butterfield Road, Warrenville, IL
SCHEDULE 4.1.1
ORGANIZATIONAL CHART (SEE FOLLOWING PAGES)
SCHEDULE 4.1.4
LITIGATION
NONE
SCHEDULE 4.1.5
MATERIAL AGREEMENTS
1. Property Management Agreement, dated August 4, 2005, between YSI Management
LLC, a Delaware limited liability company and YASKY LLC, a Delaware limited
liability company
2. Marketing and Ancillary Services Agreement, dated August 4, 2005, between
U-Store-It Mini Warehouse Co., an Ohio corporation and YASKY LLC, a
Delaware limited liability company
3. Trademark License Agreement, dated August 4, 2005, between U-Store-It Mini
Warehouse Co., an Ohio corporation and YASKY LLC, a Delaware limited
liability company
SCHEDULE 4.1.26
MAJOR LEASES
NONE
SCHEDULE 4.1.30
NON-CONSOLIDATION OPINION (SEE FOLLOWING PAGES)
SCHEDULE 4.1.31
PROPERTIES NOT OPERATED AS A U-STORE-IT FACILITY
NONE
SCHEDULE 7.1.1
REQUIRED REPAIRS (SEE FOLLOWING PAGES)
SCHEDULE 7.3.2
REPLACEMENT RESERVES (SEE FOLLOWING PAGES)
NOT APPLICABLE