Exhibit 10.09
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT ("Agreement") dated
(for identification purposes) as of the 7th day of June 2002, is
made by and between CFCD 2002A LLC, a Delaware limited liability
company ("Borrower"), and JDI STERLING, L.L.C., an Illinois
limited liability company ("Lender").
R E C I T A L S
A. Borrower has requested that Lender make a loan (the
"Loan") to Borrower in the maximum principal amount of Twenty
Five Million Eight Hundred and Twenty-Eight Thousand No/100
Dollars ($25,828,000.00), of which amount the sum of Eight
Million Eight Hundred Eighty-Three Thousand and No/100 Dollars
($18,883,000.00) was disbursed from escrow on June 10, 2002 (the
funding of such portion of the Loan is sometimes referred to as
the "First Funding"), and the remainder on or about June ____,
2002 (the funding of such portion of the Loan is sometimes
referred to as the "Second Funding"). The Loan is made to
Borrower for acquisition of the properties identified by common
addresses and legally described on Exhibit A attached hereto
(collectively, the "Property"). The Property, the foregoing
improvements and all other improvements now or hereafter located
on the Property (collectively referred to as the "Improvements"),
and all tangible and intangible property of the Borrower now or
hereafter owned or leased by Borrower in connection with the
Property or the Improvements are collectively referred to as the
"Project".
B. The First Funding was made pursuant to the terms and
conditions of a Loan Agreement dated as of June 7, 2002, which
the parties desire to amend and restate in its entirety, to
include provisions related to the Second Funding effective upon
the Second Funding. This Agreement shall not be effective until
and unless the Second Funding occurs. The Loan Agreement
delivered for the First Funding shall remain in full force and
effect until and unless the Second Funding occurs.
C. All capitalized terms used but not defined herein shall
have the respective meanings ascribed to them in the Mortgage (as
hereinafter defined).
NOW, THEREFORE, in consideration of the foregoing and the
mutual conditions and agreements contained herein the parties
agree as follows:
ARTICLE 1.
The Loan
1.1. Funding. On June 10, 2002 (the "Closing Date" for the
First Funding), Lender lent to Borrower the sum of Eighteen
Million Eight Hundred Eighty-Three Thousand and No/100 Dollars
($18,883,000.00), which sum was disbursed and immediately used by
Borrower solely for the acquisition of the Property that is the
subject of the First Funding and the payment of costs and fees
associated therewith, together with the funding of the Tax
Reserve Account in accordance with Section 1.6 hereof with
respect to the Property that is the subject of the First Funding.
On or about the "Closing Date" for the Second Funding, Lender
loaned to Borrower the sum of Six Million Nine Hundred Forty-Five
Thousand and No/100 Dollars ($6,945,000.00), which sum shall be
disbursed and immediately used by Borrower solely for the
acquisition of the Property that is the subject of the Second
Funding and the payment of costs and fees associated therewith,
together with the funding of the Tax Reserve Account in
accordance with Section 1.6 hereof with respect to the Property
that is the subject of the Second Funding.
1.2. Loan Term. Unless otherwise accelerated pursuant to the
Loan Documents (as hereinafter defined), the Loan shall mature
the date on June 10, 2005 (the "Maturity Date").
1.3. Interest Rate. Borrower shall pay interest monthly in
arrears on the outstanding principal balance of the Loan at a per
annum rate equal to Thirteen Percent (13%); provided, however,
that in the event that any amount is not paid when due (whether
by acceleration or otherwise) or upon the occurrence of any other
Event of Default, the Loan shall bear interest after the due date
or such default until cured at a rate equal to the lesser of
Twenty Percent (20%) per annum or the maximum rate permitted by
law (the "Default Rate"). Interest shall be calculated based on
a 30-day month and 360-day year and shall be charged for the
actual number of days elapsed.
1.4. Interest Payments. On the date of the first disbursement
of the Loan, Borrower shall pay Lender an amount of interest
equal to the interest that would be earned from said date until
and including the last day of the calendar month in which the
first disbursement takes place. Thereafter, Borrower shall make
interest payments, in arrears, on the first (1st) day of each
month commencing with the first day of the second calendar month
after the month in which the first disbursement of the Loan is
made, with a final payment on the Maturity Date.
1.5. Prepayment. Provided there is no Event of Default
hereunder or under the Loan Documents, Borrower may prepay all or
any portion of the Loan without premium or penalty.
1.6. Reserves. On the Closing Date for the First Funding,
Lender disbursed from the Loan a sum of $540,000.00 for the
Property that is the subject of the First Funding, to be
deposited in a money market account (the "Tax Reserve Account")
at The PrivateBank and Trust Company, or any other financial
institution selected by Lender (the "Bank"), in the name of
Lender, with interest accruing for the benefit of Lender. On the
Closing Date for the Second Funding, Lender shall disburse from
the Loan a sum of $__________ for the Property that is the
subject of the Second Funding, which amount shall be deposited in
the Tax Reserve Account at Bank. For the purposes of the Loan,
any amounts deposited by Lender into the Tax Reserve Account
pursuant to this Agreement shall be deemed a disbursement of the
Loan and shall accrue interest at the rate set forth in the Note.
If there is no Event of Default then occurring, Lender shall make
disbursements from the Tax Reserve Account for the payment of
real estate taxes with respect to the Project. In the event of
any uncured Event of Default by Borrower under the Loan, Borrower
authorizes Lender to withdraw and apply any of the funds in the
Tax Reserve Account to cure such Event of Default after
delivering five (5) days written notice to Borrower, which
Borrower agrees to be commercially reasonable notice thereof.
Borrower grants Lender a security interest in the Tax Reserve
Account.
ARTICLE 2.
Security
2.1. General. The Loan and all other indebtedness, obligations
and amounts due under the Loan Documents (the "Indebtedness")
shall be secured by the following:
(a) an Amended and Restated Mortgage Note from Borrower to
Lender in the principal amount of $25,828,000.00 (the "Note");
(b) a first priority lien on the Project pursuant to various
Mortgages, Deeds of Trust and Deed to Secure Debt of even date
herewith from the Borrower to Lender, including (inter alia)
certain supplemental indentures delivered at the Second Funding
as to each Project that was in the First Funding to reference (i)
the additional Loan amount funded at the Second Funding as part
of the "Loan," and (ii) the additional Loan Documents (as defined
herein) delivered at the Second Funding as part of the "Loan
Documents" (collectively, the "Mortgage");
(c) a first absolute assignment of rents and leases generated by
the Project pursuant to various Assignments of Rents and Lessor's
Interest in Leases of even date herewith from Borrower to Lender,
including (inter alia) certain supplemental and/or amended and
restated indentures delivered at the Second Funding as to each
Project that was in the First Funding to reference (i) the
additional Loan amount funded at the Second Funding as part of
the "Loan," and (ii) the additional Loan Documents (as defined
below) delivered at the Second Funding as part of the "Loan
Documents" (collectively, the "Assignment of Rents");
(d) a first priority security interest in all personal property
of Borrower now owned and hereafter acquired pursuant to an
Amended and Restated Security Agreement of even date herewith
from Borrower to Lender (the "Security Agreement");
(e) the Amended and Restated Continuing Guaranty of even date
herewith by Consolidated Freightways Corporation, a Delaware
corporation ("Guarantor") in favor of Lender, which amends and
restates the prior Continuing Guaranty (the "Guaranty");
(f) the Amended and Restated Environmental Indemnity Agreement
of even date herewith from Borrower and Guarantor in favor of
Lender, which includes each Project that was in the First Funding
and each Project in the Second Funding (the "Environmental
Indemnity");
(g) the initial Solvency and Business Purpose Affidavit, with
respect to the First Funding together with the Second Funding
Solvency and Business Purpose Affidavit, from Borrower and
Guarantor (collectively, the "Solvency and Business Purpose
Affidavits");
(h) the Amended and Restated Assignment of Membership Interests
from all of the members of Borrower to Lender, which applies to
both each Project in the First Funding and each Project in the
Second Funding (the "Assignment of Membership Interests");
(i) any other collateral or security described in this Agreement
or in any of the other Loan Documents.
ARTICLE 3.
Conditions Precedent
3.1. Conditions Precedent. Lender's obligation to close the
Loan is subject to satisfaction of all of the following
conditions, all in form and substance satisfactory to Lender in
its sole discretion:
(a) No Default. (i) No Event of Default or unmatured Event
of Default shall have occurred and be continuing or will result
from the making of the Loan, (ii) Borrower's representations and
warranties shall be true and correct as of the date of such Loan,
(iii) there shall have been no material adverse change with
respect to any of Borrower's, any Guarantor's or the Project's
business, credit, operations, financial condition or prospects
since the date hereof or notice of any prospective material
adverse change with respect to any insurance maintained by
Borrower, and (iv) Borrower, at Borrower's expense, shall have
fulfilled all conditions set forth in this Article 3.
(b) Loan Documents. Lender shall have received the
following documentation (collectively with this Agreement,
referred to as the "Loan Documents"), all in form and substance
satisfactory to Lender:
(i) the Note;
(ii) the Mortgage;
(iii) the Assignment of Rents;
(iv) the Security Agreement;
(v) the Guarantee;
(vi) the Environmental Indemnity;
(vii) the Solvency and Business Purpose Affidavits;
(viii) the Assignment of Membership Interests;
(ix) such other documents as Lender may reasonably require.
(c) Opinions of Counsel. Lender shall have received
opinions of counsel for Borrower and Guarantors as of the Closing
Date for the First Funding and Second Funding, respectively,
that:
(i) Borrower is a duly formed limited liability
company under the laws of the State of Delaware, validly
existing, in good standing and fully qualified to do
business in Delaware and each state in which Property is
situated and has the authority to enter into the
obligations contemplated by this Agreement and the Loan
Documents and to carry out the obligations contemplated
hereby and thereby. Guarantor is a duly formed corporation
under the laws of the State of Delaware, validly existing in
good standing and fully qualified to do business in the
State of Delaware and each state in which Property is
situated, and has the authority to enter into the
obligations contemplated in this Agreement and the Loan
Documents and to carry out the obligations herein and
thereunder;
(ii) This Agreement and the Loan Documents have been
duly authorized, executed and delivered by Borrower and the
Guarantor, as the case may be, and constitute legal valid
and binding obligations of such parties, enforceable in
accordance with their respective terms, are in proper form
under the laws of the states in which the Property is
situated for the creation, perfection and enforcement of the
liens contemplated thereby, subject only to applicable
bankruptcy, insolvency, and other laws affecting creditors'
rights and other qualifications that may be provided by
counsel and acceptable to Lender in its discretion;
(iii) The various security agreements are in proper
form under the laws of the States in which the Property is
situated for the creation and perfection of the liens
contemplated thereby against the interest of Borrower in the
applicable collateral described in such agreements;
(iv) The transaction in question is not usurious under
the laws of the States of Illinois, Delaware, Washington and
the states in which any Property is situated;
(v) The execution and delivery of the Loan Documents,
and the carrying out of the transactions contemplated
thereby will not, to such counsel's knowledge, violate,
conflict with or constitute a default under any agreement to
which Borrower or the Guarantor are a party or by which it
or they may be bound;
(vi) There are no known actions, suits or proceedings
pending, or, to said counsel's knowledge, threatened against
Borrower or the Project, either at law or in equity or
before or by any governmental authority. There are no known
actions, suits or proceedings pending, or to said counsel's
knowledge threatened against Consolidated Freightways
Corporation, Consolidated Freightways Corporation of
Delaware or CFCD 2002A Member LLC, which could affect the
validity or enforceability of the Loan Documents,
substantially impair the ability of any such party to
perform their respective obligations under the Loan
Documents, or otherwise materially and adversely impact the
use, value or operation of the Property;
(vii) In the event of a bankruptcy of Borrower,
Guarantor or the members of Borrower, the other entities
will not be consolidated into such bankruptcy; and
(viii) Such other things as Lender or its counsel
may reasonably request. Such opinions may be provided
through a combination of opinions given by corporate
counsel, lead counsel and local counsel to Borrower and
Guarantor as may be approved by Lender. In addition, lead
counsel for Borrower and Guarantor will provide an opinion
concerning the "bankruptcy remote" status of Borrower, in
form to be prepared by such counsel and subject to Lender's
approval. Any opinion from in-house counsel will not be
acceptable in any event unless Borrower and Guarantor both
certify that there is insurance coverage for any claims made
on the basis of such opinion as to which Lender is satisfied
prior to closing and which coverage shall remain in effect
and subject to insurance certificates and related insurance
notice and other requirements similar to other required
coverages to the extent otherwise applicable.
(d) Leases/Estoppels/SNDA(s). Borrower shall deliver to
Lender true, correct and complete copies of all of the leases and
other occupancy agreements affecting the Project, including
amendments thereto (the "Leases"), together with a certified rent
roll describing all Leases in such detail as Lender may require.
At Lender's request, Borrower also shall deliver to Lender
estoppel certificates and subordination, non-disturbance and
attornment agreements from each tenant at the Project, in form
and substance acceptable to Lender.
(e) Title. Lender shall have received a lender's title
insurance policy or policies (collectively, the "Policy"), in the
face amount of the Loan from a title company that is an affiliate
of Land America National Escrow Service (the "Title Company"),
insuring Borrower's fee ownership of the Property, the
marketability of title and that each Mortgage, Deed of Trust and
Deed to Secure Debt is a valid first lien on the applicable
portion of the Property, free and clear of liens and encumbrances
other than as set forth on Exhibit B attached hereto (the
"Permitted Exceptions") and exceptions to title approved in
writing by Lender. The title policy shall also contain any
endorsements required by Lender.
(f) Environmental Report. Lender shall have received a
Phase I Environmental Audit of the Property from a consultant
acceptable to Lender in its sole discretion. The audit shall (i)
be addressed to Lender; (ii) state that Lender may rely thereon;
and (iii) be acceptable to Lender in its sole discretion.
(g) Survey. At least five (5) days prior to the Closing
Date, Lender shall have received five (5) copies of a current
plat of survey of the Property. The surveyor shall certify that
the Property is not in a flood hazard area as identified by the
Secretary of Housing and Urban Development. The survey shall be
certified to Lender and the Title Company as made in accordance
with the Minimum Standard Detail Requirements for Land Title
Surveys of the American Land Title Association and the American
Congress on Surveying and Mapping promulgated in 1999, including
such Table A additional survey requirements and in accordance
with such other standards as may be acceptable to Lender, in its
sole discretion, and sufficient for the Title Company to remove
the general survey exceptions.
(h) Credit Reports. Lender shall have received credit
reports with respect to Borrower and the Guarantor, which may be
"investigative consumer reports", and which may include
information as to character, general reputation, mode of living
and credit history. The results of all credit reports shall be
acceptable to Lender, in its sole discretion, and such reports
shall not be disclosed by Lender to any third party except: a) as
required by law, or b) in connection with the sale of all or any
portion of the Loan. Upon written request, Lender shall furnish
to Borrower and the Guarantor a disclosure pursuant to the Equal
Credit Opportunity Act. Lender shall also have received and
approved UCC searches and financial statements relating to
Borrower and the Guarantor. In addition, Lender shall have the
right to request and receive credit reports on Borrower and any
Guarantor during the term of the Loan, at such times as Lender
may reasonably deem proper, and the cost and expense of such
reports shall be paid by Borrower.
(i) Property and Liability Insurance. Borrower (or its
corporate parents) shall insure the Project for such amounts,
upon such terms, with such mortgagee clauses and written by such
insurers as Lender shall reasonably require. All policies shall
be endorsed to provide Lender at least thirty (30) days written
notice of any material change, cancellation or non-renewal.
Lender shall receive confirmation of paid-up policies evidencing
the required coverage, together with paid receipts therefor,
prior to the Closing Date. Borrower will be responsible for
insuring the Project notwithstanding any other parties'
obligation to insure same.
(j) Organizational Documents. Lender shall have received and
approved all articles of organization, operating agreements,
resolutions, authorizations, consents, certificates and other
documentation required by Lender regarding Borrower, Borrower's
members and the Guarantors as Lender deems appropriate in
connection herewith.
(k) Certificate of Occupancy; Code; Permits. To the extent
available from the governmental authorities, Lender shall have
received a final certificate of occupancy (or equivalent), an
acceptable building code violation search report if available,
and copies of all applicable permits and licenses necessary for
the operation of the Property.
(l) Loan Fee. Borrower paid to Lender, or Lender advanced out
of the proceeds of the Loan, a loan fee of $944,150.00
($115,000.00 of which had been previously received by Lender) on
the Closing Date for the First Funding and an additional loan fee
of $_______ to be advanced out of the proceeds of the Second
Funding ($_______ of which has been previously received by
Lender) on the Closing Date for the Second Funding.
(m) Expenses. Borrower shall deliver to Lender evidence of the
payment of all fees and charges as required under this Article 3
and Section 8.1, including legal fees, closing costs, recording
and notary fees and any other similar matters pertinent thereto.
(n) Additional Items. Lender shall have received such other
items as Lender may reasonably require.
ARTICLE 4.
Representations and Warranties
As an inducement to Lender to disburse the Loan, Borrower
hereby represents and warrants as follows, which representations
and warranties shall be true as of the date hereof and shall
remain true throughout the term of the Loan:
4.1. Borrower Existence. Borrower is a limited liability
company duly formed, validly existing and in good standing under
the laws of the State of Delaware and qualified to do business in
the states in which any of the Property is situated. Guarantor
is a corporation, duly formed, validly existing and in good
standing under the laws of the State of Delaware, qualified to do
business in each state in which Property is situated. The
principal residence or place of business of each of the members
of Borrower and Guarantor are set forth on Schedule 4.1 attached
hereto. Borrower and Guarantor have full right, power and
authority to execute the Loan Documents on its own behalf and no
consents of any third parties are required. Borrower is a single
purpose entity, whose sole purpose is the ownership and operation
of the Project. The execution, delivery and compliance with the
terms and provisions of this Agreement and the Loan Documents
will not (i) violate any provisions of law or any applicable
regulation, order or other decree of any court or governmental
entity, or (ii) require any consent of any third party not
previously obtained.
4.2. Binding Obligation. This Agreement and the Loan Documents
have each been duly authorized, executed and delivered and each
constitutes the legally binding obligation of Borrower and the
Guarantor, as the case may be, enforceable against Borrower and
the Guarantor and any other signatories (other than Lender), as
the case may be, in accordance with each of their respective
terms.
4.3. Borrower's Corporate Documents. A true and complete copy
of the Articles of Organization and the Operating Agreement of
Borrower and all other documents creating and governing Borrower
(collectively, the "Borrower Incorporation Documents") have been
furnished to Lender. There are no other agreements, oral or
written, among any of the members of Borrower relating to
Borrower. The Borrower Incorporation Documents were duly
executed and delivered, are in full force and effect, and are
binding upon and enforceable in accordance with their terms. The
Borrower Incorporation Documents constitute the entire
understanding among the members of Borrower. No breach exists
under the Borrower Incorporation Documents and no act has
occurred and no condition exists which, with the giving of notice
or the passage of time would constitute a breach under the
Borrower Incorporation Documents.
4.4. Operating Agreements. Borrower has delivered to Lender
true, complete and correct copies of any agreements (including
the Leases) between Borrower and any affiliate related in any way
to the Project and any other agreements materially affecting the
use and operation of the Project. Borrower is not in default
under any contract, agreement or commitment to which it is a
party or is otherwise bound (collectively, the "Operating
Agreements"). Borrower is not in default under any provision of
any of the Operating Agreements and no event has occurred which,
with the passage of time or the giving of notice or both, would
constitute an event of default under any of the Operating
Agreements. The execution, delivery and compliance with the
terms of this Agreement and the Loan Documents will not conflict
or be inconsistent with, or result in any default under, the
Operating Agreements. There are no property management or
property leasing agreements in effect with respect to the
Project.
4.5. Improvements. The Improvements are presently in good
condition and working order. Except as disclosed to Lender in
writing, the present use of the Project complies, and the future
use of the Project will comply, in all respects, with all: (a)
applicable legal and contractual requirements with regard to the
use, occupancy, construction and operation thereof, including,
without limitation, all zoning, subdivision, environmental,
concurrency, flood hazard, fire safety, health, handicapped
facilities, building and other laws, ordinances, codes,
regulations, orders and requirements of any governmental agency;
(b) building, occupancy and other permits, licenses and
approvals; and (c) declarations, easements, rights-of-way,
covenants, conditions and restrictions of record. All of the
Improvements are located on the Property.
4.6. Property. At the time of funding of the Loan and at all
times thereafter until full and final payment of the Loan has
been made to Lender, fee simple title to the Property is owned by
Borrower free and clear of all liens, claims, encumbrances,
covenants, conditions and restrictions, security interests and
claims of others, except for the Permitted Exceptions. The
zoning of the Project and the right and ability to construct, use
or operate the Improvements are not in any way dependent on or
related to any real estate other than the Project. There are no
asserted or, to the best of Borrower's knowledge, alleged
violations of law, regulations, ordinances, codes, declarations,
covenants, conditions, or restrictions of record, or other
agreements relating to the Project, or any part thereof. No
person or entity has any option to acquire ownership of the
Project or any portion thereof. The Project does not and the
use, occupancy and operation thereof, as a truck terminal, and
other related facilities, will not, violate any laws, statutes,
ordinances, rules, orders or regulations of any kind whatsoever
(including, without limitation, those relating to environmental
protection, public highways, water use, zoning, building, fire,
health or safety), any contractual arrangements with third
parties or any covenants, conditions, easements, rights of way or
restrictions of record, and neither Borrower nor any member or
agent thereof has received any notice, written or otherwise,
alleging any such violation. The Project is permitted under
current applicable zoning requirements, including, without
limitation, those relating to set-backs, height, parking, floor
area ratio, loading area, fire lanes and percentage of land
coverage, and will not be a non-conforming or special use, and
Borrower shall promptly obtain and deliver to Lender a copy of
the certificate of occupancy for the Project issued by the
appropriate agency having jurisdiction over the Property, or, if
Borrower shall be unable to obtain such a certificate of
occupancy, Borrower shall promptly obtain and deliver to Lender a
statement from such agency certifying such full compliance or a
zoning endorsement issued by the Title Company, or written
opinion satisfactory to lender from Borrower's counsel approved
by Lender from counsel as to zoning. All building, zoning,
safety, health, fire, water district, sewage and environmental
protection agency permits and other licenses or permits which are
required by any governmental authority for the use, occupancy and
operation of the Project, as a truck terminal, and related
facilities, have been obtained by or furnished to Borrower and
are in full force and effect, will be maintained in full force
and effect by Borrower and as required by any governmental
authority, and evidence of all such permits and other licenses or
permits have been, or when obtained will be, furnished to Lender.
4.7. Property Access. The Project is accessible through all
current access points, each of which connects directly to a fully
improved and dedicated road accepted for maintenance and public
use by the public authority having jurisdiction or a recorded
easement, as applicable, as shown on the surveys being provided
by Borrower.
4.8. Utilities. All utility services necessary and sufficient
for the construction, use or operation of the Project are
currently connected at the boundary of the Property directly to
lines owned by the applicable utility and lying in dedicated
roads, including water, storm, sanitary sewer, gas, electric and
telephone facilities.
4.9. Flood Hazards/Wetlands. To the extent that it could be
material to the operation of the Project as a trucking facility
by Borrower or its tenants or the value or utility of the
Property and in addition to the best of Borrower's knowledge, the
Property is not situated in an area designated as wetlands by any
governmental entity having jurisdiction over the Property. If
any portion of the Property is in a flood hazard zone, Borrower
will satisfy Lender's requirements with respect to obtaining
flood insurance prior to closing and continue to satisfy Lender's
requirements until the Loan is fully and finally repaid. Except
as shown on the survey provided to Lender in conjunction with
closing and funding of the Loan, none of the Property is
designated as having special flood hazards or being in a 100 year
flood zone as defined by the Flood Disaster Protection Act of
1973, as amended.
4.10. Taxes/Assessments. There are no delinquent real estate
or other taxes or assessments on or against the Project or any
part thereof. The tax bills affecting the Property cover the
entire Property and do not cover or apply to any other property.
Borrower has not received any written notice of any supplemental
taxes which may be owing or otherwise assessed.
4.11. Eminent Domain. There is no known or anticipated
eminent domain or condemnation proceeding pending or, to the best
of Borrower's knowledge threatened, relating to the Property or
any part thereof.
4.12. Litigation. There is no litigation, arbitration or
other proceedings or governmental investigation pending or
threatened against Borrower. There is no known litigation,
arbitration or other proceeding or governmental investigation
pending or, to the best of Borrower's knowledge, threatened
against or relating to Borrower, the Project, any member of
Borrower, any Guarantor or any of their property, assets, or
business, including the Project, which, if decided adversely,
would be expected to materially affect the business, affairs,
assets or financial condition of Borrower, any Guarantor, the
Project, or the prospects for repayment of the Loan.
4.13. Compliance. Except as disclosed to Lender on Schedule
4.14 attached hereto, there are no known or anticipated alleged
or asserted violations of law, municipal ordinances, public or
private contracts, declarations, covenants, conditions, or
restrictions of record, or other requirements with respect to the
Project. All licenses, permits and approvals, if any, needed in
connection with the construction, use, operation and occupancy of
the Improvements have been duly issued, paid for and are in full
force and effect. True and complete copies of each of the
foregoing have been delivered to Lender.
4.14. Employee Benefit Plans. Borrower does not sponsor any
pension plan, as defined in the Employee Retirement Income
Security Act of 1974, as amended ("ERISA").
4.15. Labor Controversies. There are no known labor
controversies pending or threatened against Borrower which, if
adversely determined, would materially and adversely affect
Borrower's business, credit, operations, financial condition or
prospects.
4.16. Tax Status. Borrower has made or filed all income and
other tax returns, reports and declarations required by any
jurisdiction to which it is subject, has paid all taxes,
assessments and other charges shown or determined to be due on
such returns, reports and declarations, and has set aside
adequate reserves against liability for taxes, assessments and
charges applicable to periods subsequent to those covered by such
returns, reports and declarations.
4.17. Accuracy. Neither this Agreement nor any document,
financial statement, credit information, certificate or statement
furnished to Lender by Borrower or any Guarantor contains any
untrue statement of a material fact or omits to state a material
fact which could affect Lender's decision to make the Loan.
4.18. Foreign Ownership. Neither Borrower nor any member of
Borrower nor any Guarantor is or will be, and no legal or
beneficial interest of a member in Borrower is or will be held,
directly or indirectly, by a "foreign corporation", "foreign
partnership," "foreign trust," "foreign estate, "foreign person,"
"affiliate" of a "foreign person" or a "United States
intermediary" of a "foreign person" within the meaning of
Internal Revenue Code of 1986, as amended, Sections 897 and 1445,
the Foreign Investments in Real Property Tax Act of 1980, the
International Foreign Investment Survey Act of 1976, the
Agricultural Foreign Investment Disclosure Act of 1978, or the
regulations promulgated pursuant to such Acts or any amendments
to such Acts.
4.19. Solvency. Neither Borrower nor any Guarantor are
insolvent and no: (i) assignment for the benefit of the creditors
of any of them; (ii) appointment of a receiver for any of them or
for the property of any of them; or (iii) bankruptcy,
reorganization, or liquidation proceeding, is pending or
threatened (whether voluntary or involuntary) instituted by or
against any of them.
4.20. Lawful Interest. The amounts to be received by Lender
which are or may be deemed to be interest under the terms of the
Note, this Agreement, or otherwise in connection with the
transactions contemplated herein constitute lawful interest and
are not usurious or illegal.
4.21. Financial Statements/No Change. Borrower has
heretofore delivered to Lender copies of the most current
financial statements of Borrower and each Guarantor. Said
financial statements were prepared on a basis consistent with
that of preceding years, unless otherwise noted therein, and all
of such financial statements present fairly the financial
condition of said Borrower and each Guarantor as of the dates in
question and the results of operations for the periods indicated.
Since the dates of such statements, there has been no material
adverse change in the business or financial condition of Borrower
and each Guarantor. Neither Borrower nor any Guarantor has any
material contingent liabilities not provided for or disclosed in
said financial statements. There has been no material adverse
change in the structure, business operations, credit, prospects
or financial condition of Borrower, any Guarantor or the Project.
4.22. Casualty. As of the date hereof, there is no damage or
destruction to any part of the Project by fire or other casualty
that has not been repaired. As of the date hereof, there are
presently no existing defects in the Project and no repairs or
alterations thereof are reasonably necessary or appropriate
except for routine maintenance.
4.23. No Material Misstatements or Omissions. Neither the
Loan Documents nor any statement, list, certificate or other
information furnished or to be furnished by Borrower to Lender in
connection with the Loan contains any untrue statement of a
material fact, or omits to state a material fact necessary to
make the statements therein not misleading. Borrower has
disclosed in writing to Lender everything to which it has
knowledge regarding the business, operations, property, financial
condition, or business prospects of itself, and the Project which
would have a material adverse effect on such entities or the
Project or the collectability of the Loan.
4.24. Survival of Representations. All representations and
warranties in this Agreement, the Loan Documents and all
representations and warranties in any certificate delivered by
Borrower pursuant hereto and thereto, shall survive execution of
the Loan Documents and the making of the Loan, and may be relied
upon by Lender as being true and correct until the Loan is fully
and irrevocably paid.
ARTICLE 5.
Affirmative Covenants
5.1. Payment of Indebtedness; Performance of Obligations.
Borrower shall promptly pay when due all payment obligations of
Borrower to Lender and shall promptly perform all other
obligations of Borrower to Lender as set forth herein or in the
Loan Documents.
5.2. Books and Records/Audits. Borrower shall keep and
maintain (and provide Lender with reasonable access and copies of
same if so requested by Lender) at all times at Borrower's
address stated below or at the Property, or such other place as
Lender may approve in writing, complete and accurate books of
accounts and records adequate to reflect the results of the
operation of the Project, the financial statements required to be
provided to Lender pursuant to the Mortgage, and copies of all
written contracts, correspondence, and other documents affecting
the Project. Borrower shall prepare and furnish (or cause to be
so prepared and furnished) to Lender: (i) thirty (30) days after
the end of each month, an income statement and a balance sheet
for the Project for the preceding month, and all expenditures
made with respect to the Project from funds from any source for
the preceding month, and such other documentation as Lender may
request from time to time certified as true, correct and complete
by Borrower; (ii) within ninety (90) days before the end of the
calendar year, a complete and detailed revision and update of the
operating budget for the Project [for Lender's review and
approval (which approval shall not be unreasonably withheld, and
shall be deemed granted if approval has not been refused by
Lender in writing by thirty (30) days after Lender's receipt of
Borrower's written request for such approval),], setting forth
the projected net income relating to the operation and management
of the Project for the ensuing year; and (iii) within ninety (90)
days after the end of the calendar year, a copy of the annual
financial statements for the year just ended fairly presenting
the financial condition of the Property, and the results of the
operations of the Property, including, without limitation, a
balance sheet, an income statement and such additional
information as Lender may request from time to time, all of which
shall be prepared and certified by an officer of Borrower. If
requested by Lender or its representatives, Borrower will provide
supporting documentation for all receipts and expenditures,
including, but not limited to, bank statements, contracts,
invoices, copies of checks and general ledgers. Borrower shall
provide Lender and any professional retained by Lender, with
reasonable, immediate and continuing access to any and all books,
records, documents and information relevant to Borrower's
operations, the status of the Property and appraisals or other
documents relating to the value of the Property prepared by third
parties. Lender may audit the accuracy of Borrower's records and
computations at any time and the reasonable costs and expenses of
any such audit shall be paid by Borrower. Reporting requirements
will be subject to the additional agreements of the parties
contained in the Rider attached to the Mortgage, as described in
Section 8.22 below.
5.3. Use of Proceeds. Borrower shall use the proceeds of the
Loan only as authorized in Section 1.1 hereof (including
distributions to Borrower's member in connection with the
acquisition of the Property, after payment of other amounts
referenced in Section 1.1) and subject to the terms and
provisions of the Loan Documents and for no other purpose,
without Lender's prior written consent, in Lender's sole
discretion. No portion of the proceeds of the Loan shall be used
by Borrower to pay any amounts to Borrower or any affiliate of
either of them or in any manner that might cause the borrowing or
the application of such proceeds to violate Regulation G,
Regulation U, Regulation T or Regulation X or any other
regulation of the Board of Governors of the Federal Reserve
System or to violate the Exchange Act.
5.4. Notice of Default. Borrower shall provide Lender with a
copy of all written notices, correspondences and reports received
or delivered by Borrower or any members of Borrower (including
any and all notices of default) under any of the Borrower
Incorporation Documents, Leases and any and all notices of
violations of laws, regulations, codes, ordinances and the like
received by Borrower or any Guarantor relating to the Project.
5.5. Taxes and Liabilities. Borrower shall promptly pay when
due in accordance with Section 5.13 below all taxes, duties,
assessments and other liabilities, except such taxes, duties,
assessments and other liabilities as Borrower is diligently
contesting in good faith and by appropriate proceedings; provided
that Borrower has provided for and is maintaining adequate
reserves with respect thereto.
5.6. Compliance with Applicable Law. Borrower shall comply
with the requirements of all applicable laws, rules, regulations,
and orders of all governmental authorities (Federal, state, local
or foreign, and including, without limitation, environmental
laws, rules, regulations and orders), a breach of which would
materially and adversely affect Borrower's business, credit,
operations, financial condition or prospects, except where
Borrower is contesting an alleged breach in good faith and by
proper proceedings and for which Borrower is maintaining adequate
reserves.
5.7. Maintenance of Project. Borrower shall keep the Project,
including all buildings and improvements now or hereafter
situated thereon, in good condition, not commit or permit any
waste thereof, make all repairs, replacements and improvements
and complete and restore promptly and in good workmanlike manner
any building, improvements or other items of the Project which
may be damaged, or destroyed, and pay when due all costs incurred
therefor.
5.8. Operating Deficits. Borrower shall fund any and all
operating deficits respecting the Project.
5.9. Business and Existence. Borrower shall perform all things
necessary to preserve and keep in full force and effect the
existence and rights of Borrower; comply with all laws applicable
to Borrower; conduct and operate its business in the normal
course and keep in full force and effect any permit or approval
issued with respect to the operation of the Property.
5.10. Notification of Attachment or Other Action. Borrower
shall immediately notify Lender in writing of any attachment or
other legal process levied or threatened against the Project, or
the institution of any action, suit or proceeding by or against
Borrower, any Guarantor or the Project, or any information
received by Borrower relative to any Guarantor or the Project,
which may adversely affect (i) Borrower's ability to pay the
Indebtedness, (ii) the value of the Project or the value,
validity or priority of Lender's security interests granted
pursuant to the Mortgage or any of the other Loan Documents,
(iii) any Guarantor's ability to perform under the Guarantee, or
(iv) any other rights and remedies of Lender granted and
continued pursuant to the Loan Documents.
5.11. Defense of Collateral. Borrower shall pay when due all
obligations, lawful claims or demands with respect to the Project
which, if unpaid, might result in, or permit the creation of, any
lien or encumbrance on the Project, including but not limited to
all lawful claims for labor, materials and supplies; provided
that Borrower shall have the right to contest any such claim so
long as Borrower provides such assurances or security as may be
reasonably acceptable to Lender or posts a bond acceptable to
Lender to protect Lender's interest in the Project, and, in
general, do or cause to be done everything necessary to fully
preserve the rights and interests of Lender under this Agreement
and the other Loan Documents. Borrower shall at all times defend
Lender's interest in and to the Project, and the first priority
position of said interest, against any and all claims of any
person adverse to Lender. Borrower shall take all actions
reasonably deemed necessary or appropriate by Lender to give
effect to Lender's priority of interests contemplated by this
Agreement and the other Loan Documents.
5.12. Insurance. Borrower shall keep the Project, including
all buildings and improvements now or hereafter situated thereon,
insured against loss or damage by fire, with extended coverage
endorsement, in an amount not less than the full replacement cost
thereof and against other hazards as may be reasonably required
by Lender, including, without limitation, rent loss or business
interruption insurance for at least twelve (12) months acceptable
to Lender, flood (if the Property is in a special flood hazard
zone), tornado, hurricane and earthquake insurance (if available
at commercially reasonable rates), and liability insurance for
personal injury, death and property damage. All policies of
insurance will be in forms and amounts reasonably satisfactory to
Lender, and with companies reasonably satisfactory to Lender,
with standard mortgagee clauses attached to all policies in favor
of and in form reasonably satisfactory to Lender. The insurance
shall contain a provision requiring that the coverage will not be
terminated, canceled, amended or materially modified without at
least 30 days' prior written notice, including additional and
renewal policies, to Lender. Borrower shall deliver certified
copies of all policies to Lender, and, in the case of insurance
about to expire, such additional documentation as Lender may
require concerning such coverages and policies not less than 15
days prior to their respective expiration dates.
5.13. Tax Deposits. In addition to the requirements of
Section 1.6 above, Borrower shall deposit with Lender commencing
with the first interest payment due under the Loan and on the
first day of each month thereafter until the Indebtedness is
fully paid, a sum equal to one-twelfth (1/12) of the total annual
taxes and assessments (general and special) respecting the
Project, based upon Lender's reasonable estimate as to the amount
of taxes and assessments to be levied and assessed. Borrower's
initial deposit shall be increased by an amount equal to Lender's
reasonable estimate of the amount of such taxes to become owing
on the due dates for the payment of such taxes less the monthly
payments to be deposited hereunder prior to such due dates. If
any such taxes levied and assessed upon the Project are also a
levy and assessment upon any other premises, the amount of any
deposit hereunder shall be based upon the entire amount of such
taxes or assessments, and Borrower shall not apportion the total
amount of the taxes or assessments levied or assessed as between
such other premises and the Project for the purposes of computing
the amount of any deposit hereunder. Such deposits shall be held
without any allowance of interest. Such deposits shall be used
for the payment of such taxes and assessments on the Project on
the earliest possible date when such payments become due. If the
funds so deposited are insufficient to pay any such taxes or
assessments for any year when the same shall become due and
payable, Borrower shall, within 10 business days after receipt of
demand therefor from Lender, deposit such additional funds as may
be necessary to pay such taxes and assessments in full. If the
funds so deposited exceed the amount required to pay such taxes
and assessments for the year, the excess shall be applied on a
subsequent deposit or deposits. Said deposits need not be kept
separate and apart from other funds of Lender. Upon the
occurrence of an Event of Default, Lender may, at its option,
without being required to do so, apply any monies at the time on
deposit pursuant to this Section 5.13 on any of the Indebtedness,
in such order and manner as Lender may elect. When the
Indebtedness has been fully paid, any remaining deposits shall be
paid to Borrower or to the then owner or owners of the Project.
A security interest within the meaning of the Uniform Commercial
Code of the state in which the Borrower is organized as a legal
entity, or Illinois, as applicable, is hereby granted to Lender
in and to any monies at any time on deposit pursuant to this
Section 5.13, as additional security for the Indebtedness. Such
funds shall be applied by Lender for the purposes made hereunder
and shall not be subject to the direction or control of Borrower.
Lender shall not be liable for any failure to apply the funds so
deposited hereunder to the payment of any particular taxes or
assessments unless Borrower, while not in default hereunder,
shall have requested Lender in writing to make application of
such funds to the payment of the particular taxes or assessments
for payment of which they were deposited, accompanied by the
bills for such taxes or assessments. Lender shall not be liable
for any act or omission taken in good faith or pursuant to the
instruction of any party, but shall be liable only for gross
negligence or willful misconduct.
5.14. Payment of Obligations. Borrower shall pay and
discharge, or cause to be paid and discharged, all indebtedness
and obligations of Borrower to other persons promptly in
accordance with normal terms and practices of its businesses,
before they shall become in default, as well as all lawful claims
for labor, materials and supplies which otherwise, if unpaid,
might become a lien or charge upon its properties or any part
thereof.
5.15. Notice of Event of Default. Borrower shall furnish, or
cause to be furnished, to Lender, immediately upon becoming aware
of the existence of an Event of Default or any condition which,
with the giving of notice or lapse of time, or both, would
constitute an Event of Default, written notice of the existence
of any such event or the existence of any such condition.
5.16. Hold Disbursements in Trust. Other than the proceeds
of the Loan which will be used for the acquisition of the
Property and for the payment of costs associated therewith,
Borrower will receive and hold in trust all advances made
hereunder directly to Borrower and Borrower will not apply the
same for any other purposes, until the closing of the advances of
Loan funds and payment of expenses at closing for the particular
Lender advance (whether such payment is made by Borrower or
CFCD).
5.17. Single Purpose Entity. The Borrower has not and shall
not:
(a) engage in any business or activity other than the
ownership, operation and maintenance of the Project, and
activities incidental thereto;
(b) acquire or own any material assets other than (i) the
Project, and (ii) such incidental personal property as may be
necessary for the operation of the Project;
(c) merge into or consolidate with any person or entity or
dissolve, terminate or liquidate in whole or in part, transfer or
otherwise dispose of all or substantially all of its assets or
change its legal structure, without in each case Lender's
consent;
(d) fail to preserve its existence as an entity duly
organized, validly existing and in good standing (if applicable)
under the laws of the jurisdiction of its organization or
formation, and qualification to do business in the state where
the Project is located, if applicable, or without the prior
written consent of Lender or its successors or assigns materially
amend, modify, terminate or fail to comply with the provisions of
this Agreement or Borrower Incorporation Documents;
(e) own any subsidiary or make any investment in, any
person or entity without the consent of Lender;
(f) commingle its assets with the assets of any of its
shareholders, members, partners, principals, affiliates or of any
other person or entity;
(g) incur any debt, secured or unsecured, direct or
contingent (including guaranteeing any obligation), other than
indebtedness to Lender, except for trade payables in the ordinary
course of its business of owning and operating the Project,
provided that such debt is not evidenced by a note and is paid
when due;
(h) become insolvent and fail to pay its debts and
liabilities from its assets as the same shall become due;
(i) fail to maintain its records, books of account and bank
accounts separate and apart from those of the shareholders,
members principals and affiliates of Borrower, the affiliates of
a shareholder or principal of Borrower, and any other person or
entity;
(j) enter into any contract or agreement with any
shareholder, member, partner, principal or affiliate of Borrower,
or any shareholders, member, partner, principal or affiliate
thereof, except upon terms and conditions that are intrinsically
fair and substantially similar to those that would be available
on an arms-length basis with third parties other than any
shareholder, member, partner, principal or affiliate of Borrower,
or any shareholder, member, partner, principal or affiliate
thereof; provided, however, that the provisions hereof shall not
affect any other limitations on payments to affiliates set forth
in this Agreement;
(k) seek the dissolution or winding up in whole, or in
part, of Borrower;
(l) fail to correct any known misunderstandings regarding
the separate identity of Borrower;
(m) hold itself out to be responsible for the debts of
another entity or person;
(n) make any loans or advances to any third party,
including any shareholder, member, partner, principal or
affiliate of Borrower, or any shareholder, member, partner,
principal or affiliate thereof;
(o) fail to file its own tax returns;
(p) fail either to hold itself out to the public as a legal
entity separate and distinct from any other entity or person or
to conduct its business solely in its own name in order not (i)
to mislead others as to the identity of the party with which such
other party is transacting business, or (ii) to suggest that
Borrower is responsible for the debts of any third party
(including any shareholder, member, partner, principal or
affiliate to Borrower, or any shareholder, member, partner,
principal or affiliate thereof);
(q) fail to 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;
(r) file or consent to the filing of any petition, either
voluntary or involuntary, to take advantage of any applicable
insolvency, bankruptcy, liquidation or organization statute, or
make an assignment for the benefit of creditors; or
(s) share any common logo with or hold itself out as or be
considered as a department or division of (i) any shareholder,
member, partner, principal or affiliate of Borrower, (ii) any
affiliate of a shareholder, member, partner, principal or
affiliate of Borrower, or (iii) any other person or entity.
5.18. Further Assurances. Upon written notice from Lender,
Borrower shall provide Lender with such further assurances,
information and/or documentation as Lender may reasonably require
from time to time.
ARTICLE 6.
Negative Covenants
6.1. No Amendments. Without Lender's prior written consent in
each instance, Borrower shall not:
(a) suffer or permit any material amendment or modification
or rejection of the Borrower Incorporation Documents;
(b) suffer or permit the amendment, modification or
rejection of any of the Operating Agreements.
6.2. Leases. Borrower shall not, without the prior written
consent of Lender, enter into any lease or other rental or
occupancy arrangement or concession agreement for any space at
the Project or suffer or permit the amendment, modification or
termination of any Leases or such lease or leases.
6.3. Lienable Work. Borrower shall not, without Lender's prior
written approval, exercisable in Lender's sole discretion, permit
any mechanic's lienable work to be done to or for the benefit of
the Project except a) as disclosed in the Leases approved by
Lender, b) for normal repair and maintenance (excluding any
capital improvements or replacements) in the ordinary course of
business or c) emergency repairs. No capital improvements or
replacements of any capital items in the Project that would cost
more than the lesser of 10% of the Loan amount attributed to any
Premises location or 10% of the Loan amount outstanding in the
aggregate at any time shall be commenced without Lender's prior
written approval of the scope of work the plans and
specifications, the contractor, the construction contract, the
costs (including the costs of installation, labor and materials),
the timing and manner of payment and the sources of funding
thereof.
6.4. Use. Without Lender's prior written consent in each
instance, Borrower shall not use the Project for any purposes
other than as a truck terminal and related incidental or
ancillary uses which are permitted under the applicable legal
requirements. . Borrower shall not permit the Project or any
portion thereof to be converted or take any preliminary actions
which could lead to a conversion to condominium or cooperative
form of ownership until such time as the Loan is paid in full,
together with all interest thereon.
6.5. Property Manager. Borrower shall not enter into any
property management agreement without Lender's prior written
consent. Borrower shall not change any property manager or amend
or terminate any management agreement or permit the property
manager, if any, to reduce substantially the staffing of the
Project without Lender's prior written consent. No fee for the
management of the Project shall be payable to Borrower or any
affiliate of Borrower, without Lender's prior express written
consent.
6.6. No Commingling Funds. Borrower shall not commingle any
funds related to the Project with funds from any other property.
6.7. No Change in Nature of Business. Borrower shall not make
any material change in the nature of its business carried on as
of the date hereof.
6.8. No Mergers, Consolidations, Sales. Borrower shall not be
a party to any merger, consolidation or exchange of ownership
interests, or purchase or otherwise acquire all or substantially
all of the assets or stock of any class of, or any membership,
partnership or joint venture interest in, any other person or
entity, or sell, transfer, convey or lease all or any substantial
part of its assets, or sell or assign, with or without recourse,
any receivables.
6.9. No Change in Ownership/Management. Borrower shall not
permit any person or entity to become a member or manager of
Borrower or permit any member to assign, transfer, pledge,
hypothecate or sell any interest in Borrower or permit and change
of the managers of Borrower. Borrower shall provide Lender with a
sworn statement at reasonable intervals as requested by Lender
that no such change of ownership or the managers of Borrower has
occurred during the preceding period. In the event of any
transfer permitted under this Section, such new member shall
execute an Assignment of Membership Interest in form and
substance acceptable to Lender.
6.10. Other Agreements. Borrower shall not enter into any
agreement containing any provision which would be violated or
breached by the performance of its obligations hereunder or under
any instrument or document delivered or to be delivered by it
hereunder or in connection herewith or which would violate or
breach any provision hereof or of any such instrument or
document.
6.11. Debt. Borrower shall not, directly or indirectly,
incur any debt or enter into any guarantees, hypothecation,
contracts or other agreements which would make Borrower liable
for any debt or expense outside the ordinary course of Borrower's
operations.
6.12. Application of Loan Proceeds. Borrower shall not use
or apply any portion of any funds provided by Lender pursuant to
the Loan Documents for any purpose other than as set forth in
Section 1.1 of this Agreement.
6.13. Other Encumbrances. Borrower shall not hereafter grant
or allow to be sustained a security interest, lien, mortgage or
encumbrance upon the Project or any portion thereof other than
the Permitted Encumbrances.
6.14. Sale or Refinancing. Borrower shall not sell, assign,
transfer, convey, mortgage, pledge, lease or otherwise alienate
or encumber the Project or any interest therein, whether legal or
equitable, except in the event of full payment of the Loan or a
partial repayment that fully releases the Property in question
from the Loan (such partial release shall require a principal
payment reducing principal by the amount established for the
Property to be released, as shown on Schedule 6.14 hereto, and
Borrower satisfaction of the terms and provisions in the attached
Schedule 8.23).
6.15. Assertion of Certain Claims and Defenses. To the
extent permitted by applicable law, neither Borrower nor any
Guarantor shall assert in any judicial proceeding any lender
liability claim or counterclaim, the defense of lack of
consideration or violation of any applicable usury laws or any
similar legal or equitable defense to the validity or
enforceability of this Agreement or any other Loan Document.
6.16. Compensation and Fees. Borrower shall not pay to
Borrower or any affiliates of Borrower or any Guarantor any
compensation or fees for services rendered. Notwithstanding any
other provision of the Loan Documents, there are no express or
implied limitations on repayment of capital contributions or
distributions by Borrower that Borrower may make to its Member,
or that its Member may make to CFCD, except as follows: (i)
Borrower will in any event comply with provisions of the Loan
Documents concerning handling of proceeds from insurance
condemnation, rents and proceeds from the Property in accordance
with the Loan Documents, (ii) Borrower not violate the express
provisions of Section 5.17, (iii) Borrower will not make such
repayments or distributions during the continuance of an Event of
Default or if it would render Borrower insolvent or unable to
meet its obligations under the Loan Documents; and (iv) Member
will not make such repayments or distributions to its member
during the continuance of an Event of Default known to it or as
to which it has received notice from Lender.
6.17. Loans, Advances, Guaranties. Borrower shall not lend
or advance money or credit to any person or entity or purchase or
repurchase (or agree, contingently or otherwise, to do so) the
indebtedness of, or assume, guarantee (directly or indirectly or
by an instrument having the effect of assuming another's payment
or performance of any obligation or capability of so doing, or
otherwise), or endorse or otherwise become liable, directly or
indirectly, with respect to the obligations, stock or dividends
of any person or entity.
6.18. Non-Competition. Neither Borrower, any Guarantor nor
any of their members shall, during the term of the Loan become
directly or indirectly interested in any business competitive
with the business of Borrower, whether as proprietor,
stockholder, member, director, manager, partner, employee,
trustee, beneficiary or in any other capacity.
6.19. Other Business. Borrower shall not engage in any trade
or business other than the ownership and the operations of the
Project.
ARTICLE 7.
Events of Default; Acceleration of Indebtedness
7.1. Events of Default. The occurrence of any one or more of
the following events, automatically and without notice (except as
expressly provided below) shall constitute an "Event of Default"
under this Agreement:
(a) failure of Borrower to pay punctually when due any of
the Indebtedness, including any payment due under the Note, this
Agreement, or the Loan Documents, if such failure is not cured
within any notice and/or grace period provided therein (however,
during any twelve (12) month period, if Borrower's monthly
payment is late once, Lender will send a notice, and if the
payment is received by Lender within five (5) days of such
notice, then such default shall not be treated as an Event of
Default);
(b) failure of Borrower to pay monthly when due any of the
deposits to the Tax Reserve Accounts;
(c) default or breach of any agreement, covenant,
representation or warranty other than as set forth in any
subsection hereof which is not cured within thirty (30) days
after written notice thereof from Lender;
(d) default and the expiration of any cure period
applicable thereto under any other Loan Document;
(e) default and the expiration of any cure period
applicable thereto under any of the Operating Agreements;
(f) Borrower or any Guarantor shall make application for or
seek relief or protection of itself or for the benefit of their
creditors under any of the sections, chapters or provisions of
Title 11 of the United States Code, 11 U.S.C. 101 et. seq.
(the "Bankruptcy Code"), or (ii) any other Federal, state of
local insolvency or debtor relief law, or any involuntary
petition (which is not dismissed within sixty (60) days after
filing) is filed against Borrower or any Guarantor or under any
section, chapter or provision of the Bankruptcy Code;
(g) any material statement, report, or certificate made or
delivered by Borrower, any Guarantor, or any of their partners,
members, shareholders, officers, employees, or agents, to Lender
is not true and correct;
(h) payroll tax deposits are not made by Borrower when due,
which failure is not cured within three (3) days after written
notice thereof from Lender;
(i) any of the collateral intended to be secured by the
Loan Documents or any other of Borrower's or any Guarantor's
assets are attached, seized, subjected to a writ or distress
warrant, or are levied upon, or come within the possession of any
receiver, trustee, custodian or assignee for the benefit of
creditors and such warrant or levy is not dismissed or reversed
within sixty (60) days;
(j) Borrower or any Guarantor is enjoined, restrained or in
any way prevented by court order from conducting all or any
material part of its business affairs and such order is not
dismissed or reversed within thirty (30) days;
(k) the bankruptcy, liquidation, dissolution or merger of
Borrower, Tenant, its sole member, or any Guarantor, or if any
Guarantor attempts to revoke or disclaim its Guarantee;
(l) an application is made by Borrower or any Guarantor
for, or a court of competent jurisdiction orders, the appointment
of a receiver, trustee, examiner or custodian for Borrower, any
Guarantor or for any of the collateral or any other of Borrower's
or any Guarantor's assets which in the case of a court order is
not stayed or vacated within fifteen (15) days;
(m) there is a monetary variance in any financial
information or computation submitted by Borrower (or on
Borrower's behalf) in excess of five percent (5%); or
(n) for any reason, other than failure of Lender to take
any action available to it to maintain perfection of the liens
created in favor of Lender pursuant to the Loan Documents, any
Loan Document ceases to be in full force and effect or any lien
with regard to any of the collateral intended to be secured by
the Loan Documents ceases to be, or is not valid, perfected and
prior to all other liens, other than the Permitted Exceptions, or
is terminated, revoked or declared void or invalid.
(o) Any material adverse change occurs with respect to (i)
the Property, (ii) an individual line item contained in the
Budget without Lender's prior written consent o (iii) the
financial condition or credit standing of Borrower or Guarantor
(or if Borrower or Guarantor is a partnership, joint venture,
trust or other business association, in any of the joint
ventures, partners, beneficiaries or other beneficial owners of
such entity) which causes Lender to reasonably deem itself
insecure.
7.2. Acceleration; Remedies. Upon the occurrence of an Event
of Default, unless Lender elects to waive such default in its
sole and absolute discretion, all amounts due Lender under the
Loan Documents shall become immediately due and payable without
notice to Borrower and Lender shall be entitled to all of the
rights and remedies provided in the Loan Documents or at law or
in equity. Each remedy provided in the Loan Documents is distinct
and cumulative of all other rights or remedies under the Loan
Documents or afforded by law or equity, and may be exercised
concurrently, independently, or successively, in any order
whatsoever. Upon the occurrence of an Event of Default, and
notwithstanding the automatic stay set forth in section 362(a) of
the Bankruptcy Code, (a) Lender shall thereupon be entitled to
immediate relief from any automatic stay imposed by Section 362
of the Bankruptcy Code, or otherwise, on or against the exercise
of the rights and remedies otherwise available to Lender as
provided herein, in the Note, or in the Loan Documents, or as
otherwise provided at law or in equity; (b) Borrower shall
consent and does hereby consent to Lender's relief from any
aforementioned stay and to Lender's exercise of the rights
otherwise available to Lender herein, in the Note or Loan
Documents; (c) Borrower shall not seek or apply for any expansion
of the provisions of Section 362 of the Bankruptcy Code or any
injunction against Lender's exercise of its rights herein, in the
Note or Loan Documents; (d) Lender shall be entitled to remain in
possession of the Project or any other collateral pledged to
secure any obligation of Borrower to Lender, and to collect the
rents therefrom and Borrower shall and hereby consents thereto;
(e) Borrower shall consent to a cash collateral order in a form
acceptable to the Lender, in Lender's sole and absolute
discretion, if requested by Lender; and (f) Borrower shall not,
without Lender's prior consent (exercisable in Lender's sole
discretion), seek any extension of any time period within which
to file or obtain confirmation of any plan of reorganization.
7.3. Waiver of Certain Rights.
(a) Borrower expressly and irrevocably waives and releases
any right to claim, in a bankruptcy court or in any other Federal
court or state court, that any stay, injunction, or other
restraint or prohibition of any kind should be issued, imposed,
or reimposed with respect to the terms of this Agreement, which
waiver and release includes (but is not limited to) any and all
proceedings for injunctive relief of any kind filed by or on
behalf of Borrower pursuant to Bankruptcy Code 105 or 362,
Bankruptcy Rule 7065, Rule of the Federal Rules of Civil
Procedure, or any other or similar substantive or procedural
provisions of Federal law, state law, or Federal or state rules
of procedure.
(b) Until the Agreement is performed in its entirety,
Borrower will not petition for, agree to, support, or permit the
filing of a bankruptcy case under any chapter of the Bankruptcy
Code, whether voluntary or involuntary, by or against it.
Borrower will oppose the filing of any such bankruptcy case; and
Borrower will make all reasonable efforts to cause any such
bankruptcy case to be dismissed if it is filed.
(c) Borrower knows and understands that there are rights
and remedies provided under the Bankruptcy Code, the Federal
Rules of Civil Procedure, and the Bankruptcy Rules, pursuant to
which parties otherwise bound by a previously entered order can
attempt to obtain relief from such an order by alleging
circumstances which may warrant a change or modification in the
order, or circumstances such as fraud, mistake, inadvertence,
excusable neglect, newly discovered evidence, or similar matters
which may justify vacating the order entirely, or otherwise
changing or modifying it (collectively "Changed Circumstances").
With full knowledge and understanding of what are, or may be, its
present or future rights and remedies based on allegations of
Changed Circumstances, Borrower: (i) expressly disavows that
there are any matters which constitute any kind of Changed
Circumstances as of the date hereof; and (ii) in all events,
expressly waives any and all rights and remedies which it has, or
may have, now or in the future, based on any Changed
Circumstances, and Borrower voluntarily assumes the risk of any
Changed Circumstances.
ARTICLE 8.
Miscellaneous
8.1. Expenditures and Expenses. Borrower agrees to promptly
pay all reasonable Costs incurred by Lender in connection with
the underwriting, approval, documentation, modification, workout,
collection or enforcement of the Loan or any of the Loan
Documents (as applicable) and all such Costs shall be included as
additional indebtedness bearing interest at the Default Rate set
forth in the Note until paid. For the purposes hereof "Costs"
shall mean all expenditures and expenses which may be paid or
incurred by or on behalf of Lender including repair costs,
payments to remove or protect against liens, attorneys' (primary
and local) and legal fees and costs (including, but not limited
to, all appellate level and post-judgment proceedings),
receivers' fees, appraisers' fees, engineers' fees, accountants'
fees, independent consultants' fees (including environmental
consultants), all costs and expenses incurred in connection with
any of the foregoing, Lender's out-of-pocket costs and expenses
related to any audit or inspection of the Property, outlays for
documentary and expert evidence, stenographers' charges,
documentary transfer and stamp taxes, escrow fees, publication
costs, and costs (which may be estimates as to items to be
expended after entry of an order or judgment) for procuring all
such abstracts of title, title searches and examination, title
insurance policies, and similar data and assurances with respect
to title as Lender may deem reasonably necessary either to
prosecute any action or to evidence to bidders at any sale of any
collateral the true condition of the title to, or the value of,
such collateral.
8.2. Right to Cure. Lender may from time to time, in its sole
and absolute discretion (but shall have no obligation to do so),
for Borrower's account and at Borrower's expense, pay any amount
or do any act required of Borrower hereunder or required under
the Loan Documents or requested by Lender to preserve, protect,
maintain or enforce the Loan, the Project or any other
collateral, and which Borrower fails to pay or do or cause to be
paid or done, including, without limitation, payment of insurance
premiums, taxes or assessments, warehouse charge, finishing or
processing charge, landlord's claim, and any other lien upon or
with respect to the Properties or any other collateral. All
payments that Lender makes pursuant to this Section and all out-
of-pocket costs and expenses that Lender pays or incurs in
connection with any action taken by it hereunder shall be deemed
Costs. Any payment made or other action taken by Lender pursuant
to this Section shall be without prejudice to any right to assert
an Event of Default hereunder and to pursue Lender's other rights
and remedies with respect thereto.
8.3. Disclosure of Information. Borrower agrees that Lender
shall have the right (but shall be under no obligation) to make
available to any party for the purpose of granting participations
in or selling, transferring, assigning or conveying all or any
part of the Loan (including any governmental agency or authority
and any prospective bidder at any sale of the Project) any and
all information which Lender may have with respect to the Project
and Borrower, whether provided by Borrower, any Guarantor or any
third party or obtained as a result of any environmental
assessments. Borrower and Guarantor agree that Lender shall have
no liability whatsoever as a result of delivering any such
information to any third party, and Borrower and Guarantor, on
behalf of themselves and their successors and assigns, hereby
release and discharge Lender from any and all liability, claims,
damages, or causes of action, arising out of, connected with or
incidental to the delivery of any such information to any third
party.
8.4. Sale of Loan. Lender, at any time and without the consent
of Borrower or any Guarantor, may grant participations in or
sell, transfer, assign and convey all or any portion of its
right, title and interest in and to the Loan, this Agreement and
the other Loan Documents, any guaranties given in connection with
the Loan and any collateral given to secure the Loan. In
addition, notwithstanding anything herein to the contrary,
Borrower agrees that Lender may assign, pledge or transfer this
Agreement and its rights hereunder and the assignee shall be
entitled to the performance of all of Borrower's agreements and
obligations under this Agreement and shall be entitle to enforce
all the rights and remedies of Lender under this Agreement, for
the benefit of assignee, as fully as if assignee were herein by
name specifically given such rights and remedies. Borrower
expressly agrees that it will assert no claims or defenses that
it may have against Lender against the assignee, except those
specifically available under this Agreement.
8.5. Forbearance by Lender Not a Waiver. Any forbearance by
Lender in exercising any right or remedy under any of the Loan
Documents, or otherwise afforded by applicable law, shall not be
a waiver of or preclude the exercise of any right or remedy.
Lender's acceptance of payment of any sum secured by any of the
Loan Documents after the due date of such payment shall not be a
waiver of Lender's right to either require prompt payment when
due of all other sums so secured or to declare a default for
failure to make prompt payment. The procurement of insurance or
the payment of taxes or other liens or charges by Lender shall
not be a waiver of Lender's right to accelerate the maturity of
the Loan, nor shall Lender's receipt of any awards, proceeds or
damages operate to cure or waive Borrower's or any Guarantor's
default in payment or sums secured by any of the Loan Documents.
With respect to all Loan Documents, only waivers made in writing
by Lender shall be effective against Lender.
8.6. Waiver of Statute of Limitations and Other Defenses.
Borrower and Guarantors hereby waive the right to assert any
statute of limitations or any other defense as a bar to the
enforcement of the lien created by any of the Loan Documents or
to any action brought to enforce the Note or any other obligation
secured by any of the Loan Documents.
8.7. Governing Law; Severability. This Agreement and the Loan
Documents shall be governed by and construed in accordance with
the internal laws of the State of Illinois. The invalidity,
illegality or unenforceability of any provision of this Agreement
shall not affect or impair the validity, legality or
enforceability of the remainder of this Agreement, and to this
end, the provisions of this Agreement are declared to be
severable.
8.8. Relationship and Indemnity.
(a) The relationship between Lender and Borrower shall
be that of creditor-debtor only. No term in this Agreement
or in the other Loan Documents and no course of dealing
between the parties shall be deemed to create any
relationship of agency, partnership or joint venture or any
fiduciary duty by Lender to any other party.
(b) To the fullest extent permitted by law, Borrower
hereby agrees to indemnify, protect, hold harmless and
defend Lender, its successors, assigns and members,
shareholders, directors, officers, employees, and agents
from and against any and all losses, damages, costs,
expenses (including reasonable attorneys' fees [including,
but not limited to, all appellate level and post-judgment
proceedings]), claims, proceedings, penalties, fines and
other sanctions in connection with (a) the Project, the
collateral or any act or omission of Borrower, any
Guarantor, or their respective employees or agents, whether
actual or alleged, and (b) any and all brokers' commissions
or other costs of similar type by any party in connection
with the Loan. Upon written request by an indemnitee,
Borrower will undertake, at its own costs and expense, on
behalf of such indemnitee, using counsel satisfactory to the
indemnitee in such indemnitee's reasonable discretion, the
defense of any legal action or proceeding whether or not
such indemnitee shall be a party and for which such
indemnitee is entitled to be indemnified pursuant to this
Section. At Lender's option, Lender may, at Borrower's
expense, prosecute or defend any action involving the
priority, validity or enforceability of the Mortgage.
8.9. Notice. Any notice or other communication required or
permitted to be given shall be in writing addressed to the
respective party as set forth below and may be personally served,
telecopied or sent by overnight courier or U.S. Mail and shall be
deemed given: (a) if served in person, when served; (b) if
telecopied, on the date of transmission if before 3:00 p.m.
(Chicago time) on a business day; provided that a hard copy of
such notice is also sent pursuant to (c) or (d) below; (c) if by
overnight courier, on the first business day after delivery to
the courier; or (d) if by U.S. Mail, certified or registered
mail, return receipt requested on the fifth (5th) day after
deposit in the mail postage prepaid.
Notices to Borrower: CFCD 2002A LLC
c/o Consolidated Freightways
Corporation of Delaware
16400 SE CF Way
Vancouver, WA 98683
Attention: Kerry Morgan
Fax No.: (360) 448-4303
With a copy to: Consolidated Freightways Corporation
16400 SE CF Way
Vancouver, WA 98683
Attention: Corporate Counsel
Fax No.: (360) 448-4329
With a copy to: Stoel Rives LLP
900 SW Fifth Avenue
Suite 2600
Portland, OR 97204-1268
Attention: David W. Green
Fax No.: (503) 220-2480
Notice to Lender: JDI STERLING, L.L.C.
c/o JDI Realty, L.L.C.
150 S. Wacker Drive
Suite 2660
Chicago, IL 60606
Attention: Jeffrey I. Aeder and
Kevin C. Connor
Fax: (312) 782-4563
With a copy to: Levenfeld Pearlstein
33 W. Monroe Street
21st Floor
Chicago, IL 60603
Attention: Marc S. Joseph
Fax: (312) 346-8434
8.10. Successors and Assigns Bound; Joint and Several
Liability; Agents; and Captions. The covenants and agreements
contained in the Loan Documents shall bind, and the rights
thereunder shall inure to, the respective successors and assigns
of Lender, Borrower and the Guarantor, subject to the provisions
of this Agreement. All covenants and agreements of Borrower and
the Guarantor shall be joint and several. In exercising any
rights under the Loan Documents or taking any actions provided
for therein, Lender may act through its employees, agents or
independent contractors as authorized by Lender.
8.11. Headings. The captions and headings of the paragraphs
of this Agreement are for convenience only and are not to be used
to interpret or define the provisions hereof.
8.12. Terms and Usage. As used in the Loan Documents
"business day" means any day, other than a Saturday or a Sunday,
when banks in Chicago, Illinois are not required or authorized to
be closed.
8.13. Loss of Note. Upon notice from Lender of the loss,
theft, or destruction of the Note and upon receipt of an
indemnity reasonably satisfactory to Borrower from Lender, or in
the case of mutilation of the Note, upon surrender of the
mutilated Note, Borrower shall make and deliver a new note of
like tenor in lieu of the then to be superseded Note.
8.14. Time of Essence. Time is of the essence of this
Agreement and the performance of each of the covenants and
agreement contained herein.
8.15. Service of Process/Venue. Borrower hereby consents to
service of process, and to be sued, in the State of Illinois and
consents to the jurisdiction of the courts of the State of
Illinois, Cook County and the United States District Court for
the Northern District of Illinois as well as the jurisdiction of
all courts from which an appeal may be taken from such courts,
for the purpose of any suit, or other proceeding arising out of
any of their obligations hereunder, and expressly waive any and
all objections they may have as to venue in any such courts and
consents that all such services of process may be made by
certified mail return receipt requested, directed to Borrower at
the address indicated herein and service so made shall be
complete five (5) days after the same has been deposited in the
U.S. mails as aforesaid. Further, in Lender's sole and absolute
discretion, suits to enforce this Agreement or in any way
relating to the subject matter of this Agreement may be brought
by Lender in any court located within the State or County where
any portion of the real property included in the Project is
located or in the United States District Court having
jurisdiction over all or any portion of the real property
included in the Project.
8.16. Jury Trial Waiver. BORROWER AND LENDER HEREBY WAIVE
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS
AGREEMENT AND THE BUSINESS RELATIONSHIP THAT IS BEING
ESTABLISHED. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY MADE BY BORROWER AND LENDER, AND BORROWER
ACKNOWLEDGES THAT NEITHER LENDER NOR ANY PERSON ACTING ON BEHALF
OF LENDER HAS MADE ANY REPRESENTATIONS OF FACT TO INCLUDE THIS
WAIVER OF TRIAL BY JURY OR HAS TAKEN ANY ACTIONS WHICH IN ANY WAY
MODIFY OR NULLIFY ITS EFFECT. BORROWER AND LENDER ACKNOWLEDGE
THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A
BUSINESS RELATIONSHIP, THAT EACH OF THEM HAS ALREADY RELIED ON
THIS WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH OF THEM
WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE
DEALINGS. BORROWER AND LENDER FURTHER ACKNOWLEDGE THAT THEY HAVE
BEEN REPRESENTED (OR HAVE HAD THE OPPORTUNITY TO BE REPRESENTED)
IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER
BY INDEPENDENT LEGAL COUNSEL.
8.17. Counterparts. This Agreement may be executed in
counterparts, contain more than one counterpart of the signature
page, and be executed by the affixing of the signatures of each
of the parties to one or more of such counterpart signature
pages. All of such counterpart signature pages shall be read as
though one, and they shall have the same force and effect as
though all of the signers had signed a single signature page.
8.18. Final Agreement/Modification. This Agreement, together
with the other Loan Documents, is intended as the final
expression of the agreement between Borrower and Lender. All
prior discussions, negotiations and agreements are of no further
force and effect. This Agreement can be modified only in writing
executed by all parties.
8.19. Continuing Agreement. This Agreement shall in all
respects be a continuing agreement and shall remain in full force
and effect (notwithstanding, without limitation, the death,
incompetency or dissolution of any of Borrower or any Guarantor).
8.20. No Third Party Beneficiaries. This Agreement, the
Mortgage, the Note and the other Loan Documents are made for the
sole benefit of Lender and Borrower, and no other party shall
have any legal interest of any kind under or by reason of any of
the foregoing. Whether or not Lender elects to employ any or all
the rights, powers or remedies available to it under any of the
foregoing, Lender shall have no obligation or liability of any
kind to any third party by reason of any of the foregoing or any
of the Lender's actions or omissions pursuant thereto or
otherwise in connection with this transaction.
8.21. ACKNOWLEDGMENT. BORROWER ACKNOWLEDGES THAT IT HAS
THOROUGHLY READ AND REVIEWED THE TERMS AND PROVISIONS OF THIS
AGREEMENT, THE ATTACHED SCHEDULES AND THE LOAN DOCUMENTS AND IS
FAMILIAR WITH THE TERMS OF SAME; THAT THE TERMS AND PROVISIONS
CONTAINED IN THIS AGREEMENT HAVE BEEN THOROUGHLY READ BY BORROWER
AND ARE CLEARLY UNDERSTOOD AND FULLY AND UNCONDITIONALLY
CONSENTED TO BY BORROWER. BORROWER HAS HAD FULL BENEFIT AND
ADVICE OF COUNSEL OF ITS SELECTION, IN REGARD TO UNDERSTANDING
THE TERMS, MEANING, AND EFFECTS OF THIS AGREEMENT. BORROWER
FURTHER ACKNOWLEDGES THAT ITS EXECUTION OF THIS AGREEMENT AND THE
LOAN DOCUMENTS IS DONE FREELY, VOLUNTARILY AND WITH FULL
KNOWLEDGE, AND WITHOUT DURESS, AND THAT IN EXECUTING THIS
AGREEMENT AND THE LOAN DOCUMENTS, BORROWER HAS RELIED ON NO OTHER
REPRESENTATIONS, EITHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, MADE
TO IT BY ANY OTHER PARTY TO THE AGREEMENT; AND THAT THE
CONSIDERATION RECEIVED BY BORROWER UNDER THIS AGREEMENT AND THE
LOAN DOCUMENTS AND HAS BEEN ACTUAL AND ADEQUATE.
8.22. Additional Terms. The parties have approved, for
attachment to each Mortgage, a Rider which includes certain
clarifications and modifications to the Mortgage and other Loan
Documents (the "Rider"), which is incorporated therein and herein
by this reference.
8.23. Conditions for Partial Release. Unless an Event of
Default has occurred and is then continuing or circumstances then
exist which with the passage of time and/or giving of notice
would constitute an Event of Default, and provided that no
amounts under the Loan are then due and owing, Borrower will be
entitled to obtain a release of one or more of the Properties
from the Loan Documents and all lien and security interests
created pursuant to this Agreement, provided that Borrower
satisfies each of the conditions for such release stated in
Schedule 8.23 attached hereto and makes the payments described in
such Schedule.
8.24. Release. The obligations of Borrower and Guarantor,
and their successors and assigns, on the Loan Documents and the
covenants and restrictions contained in this Loan Agreement and
the Loan Documents shall terminate as of the date of repayment of
the Loan or Lender's acquisition (by foreclosure, deed in lieu of
foreclosure or otherwise) of the Project, and as to any Project,
upon release of the Project from the lien of the Mortgage (except
as to matters, such as indemnification, which by their terms are
to survive such events as to matters which occurred or accrued
prior to such termination).
8.25. Announcements and Advertisements. The parties will
reasonably cooperate with each other in connection with any
issuance of any public announcement by Lender concerning this
transaction. Lender will not make public announcements or place
advertisements or issue publicity which identifies Borrower or
Guarantor or their affiliates by name as the borrower of the
Loan, but may publicize the amount of the Loan and the nature
generally of the type of properties that are included as the
Property in the ordinary course of their businesses. This
section will not affect Lender's right to provide information
about the Loan to any actual or prospective purchaser in
connection with any transaction pursuant to Section 8.4 or to any
regulatory body, court or third party having a right to obtain
information about the Loan.
8.26. Sale of Loan. No portion of or interest in the Loan
will be sold, assigned or conveyed by Lender to any third party
known or reasonably believed by Lender to be engaged in the
business of providing freight transportation, air freight
forwarding, third party logistics, and carrier services for
products being transported in the United States, Canada and
Mexico.
8.27. Amended and Restated Instrument. This Agreement is an
amended and restated instrument, which amends and restates in its
entirety the previously signed Loan Agreement of even date
herewith which was signed in connection with the First Funding.
Notwithstanding the date of this Agreement and/or the date on
which this Agreement may be signed or delivered by the parties,
this Agreement will not take effect unless and until all
conditions for funding of the Second Funding are met to Lender's
satisfaction and Lender advances to Borrower the Second Funding
portion of the Loan. If the Second Funding does not occur for
any reason, this Agreement shall be null and void and of no
effect and the Loan Agreement delivered in conjunction with the
First Funding shall remain in full force and effect.
8.28 Addition of Projects at Second Funding. Effective at,
and as of, the Closing Date of the Second Funding, each Project
that is included in the Second Funding is also added to, and made
a part of, each reference in the Loan Documents that were
executed at the First Closing that refer to the real and personal
property, assignment of rents and leases, and other collateral
for the Loan, as though specifically listed in each such Loan
Document. In furtherance thereof, the parties have executed a
supplemental indenture as to each Mortgage included in the First
Funding in order to specifically reference (i) the additional
Loan amount funded at the Second Funding as part of the "Loan,"
and (ii) the additional Loan Documents (as defined below)
delivered at the Second Funding as part of the "Loan Documents."
Borrower hereby ratifies, affirms, reaffirms, acknowledges,
confirms and agrees that from the First Funding until the Second
Funding the original Loan Documents and from and after the Second
Funding the Loan Documents (as supplemented hereby and including,
but not limited to, original, additional and amended
instruments): (i) represent the legal, valid, binding and
enforceable obligations of such parties (as applicable); (ii)
there are no existing claims, defenses, personal or otherwise, or
rights of setoff whatsoever available to such parties with
respect to any of such instruments; and (iii) no event has
occurred and no condition exists which would constitute a default
under such instruments or this Agreement, either with or without
notice or lapse of time, or both. Except as specifically
modified pursuant to this Agreement, all the terms and provisions
of the Loan Documents are hereby ratified and reaffirmed.
8.29 No Relinquishment or Novation of Existing Liens. This
Agreement, the Loan Documents as defined herein, and the
supplemental indentures referenced in Section 8.28 shall in no
way act as a release or relinquishment of the original liens,
security interests and rights including, but not limited to, the
priority thereof (collectively called the "Liens") securing
payment of the indebtedness secured thereby or a novation of any
of the Loan Documents delivered at the First Funding (as
supplemented or amended hereby and by any supplemental
indenture), including without limitation the Liens created by the
Mortgages. The Liens are hereby confirmed, continued, ratified
and reconfirmed in all respects.
8.30 Additional Certificates, Representations and
Warranties. In addition to the certifications, representations
and warranties set forth in the Note, the Amended and Restated
Note together with all Loan Documents (including those relating
to the First Funding, the Second Funding, or both), and the Loan
Documents, Borrower hereby certifies, represents and warrants to
Lender that:
(a) The Loan Documents have been duly authorized,
executed and delivered by Borrower and constitute valid and
legally binding obligations enforceable against each party
thereto in accordance with their terms. The execution and
delivery of this instrument and compliance with the
provisions hereof and thereof under the circumstances
contemplated herein and therein do not and will not
conflict with or constitute a breach or violation of or
default under the agreement creating Borrower or any
agreement or other instrument to which Borrower, Guarantor,
CFCD (as hereinafter defined) or any of them, is a party,
or by which any one of them is bound, or to which any of
their properties are subject, or any existing law,
administrative regulation, court order or consent decree to
which any one of them is subject.
(b) There is no litigation or administrative
proceeding pending or threatened to restrain or enjoin the
transactions contemplated by this instrument or that certain
"Master Unitary Commercial Lease" ("Unitary Lease") between
Borrower and Consolidated Freightways Corporation of
Delaware ("CFCD") and guaranteed by Consolidated Freightways
Corporation ("Guarantor"), or questioning the validity
hereof or thereof, or in any way contesting the existence or
powers of Borrower.
(c) There is no known litigation or administrative
proceeding pending or, to the best of Borrower's knowledge,
threatened against CFCD or Guarantor which, if adversely
decided, would be expected to materially adversely affect
the transactions contemplated by this instrument or the Loan
Documents.
(d) Borrower, CFCD and Guarantor are in full
compliance with all of the terms and conditions of this
instrument, the Unitary Lease, Guarantor's obligations
relating to its guaranty of the Unitary Lease and the Loan
Documents, no event of default has occurred and is
continuing with respect to any of the foregoing and no event
has occurred and is continuing which with the lapse of time
or the giving of notice or both would constitute such a
default or Event of Default, and Borrower hereby releases
and waives any and all (i) defenses to payment of
obligations under the Loan Documents which Borrower may have
as of the date hereof; and (ii) claims or causes of action
which Borrower may have against Lender or its agents as of
the date hereof.
(e) As of the date hereof, the following is true: (i)
there has been no Event of Default as defined in any of the
Loan Documents; and (ii) all expenditures of the Loan
proceeds that have been made or that will be made by
Borrower are solely for the purposes set forth in the Loan
Documents.
8.31 Conditions Precedent. Borrower acknowledges and agrees
that this instrument shall be of no force or effect unless and
until this instrument has been executed by Borrower and delivered
to and accepted and executed by Lender.
8.32 Additional Documents. Borrower agrees to execute,
cause to be executed and deliver such other and further documents
that may be commercially reasonable, that are within Borrower's
authorization and ability to do so, and that are reasonably
requested by Lender or its counsel to perfect the secured
interests that Borrower is granting in the collateral for the
Loan and to carry out the intent of this Agreement.
[BALANCE OF PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement or have caused the same to be executed by their duly
authorized representatives as of the date first above written.
BORROWER:
CFCD 2002A LLC, a Delaware limited
liability company
By:
Kerry K. Morgan, Vice President
and
Treasurer
By:
Stephen D. Richards, Senior Vice
President and
General Counsel
LENDER:
JDI STERLING, L.L.C., an Illinois
limited liability company
By:________________________________
__________
EXHIBIT A
Legal Description
See attached.
EXHIBIT A-1
Schedule of Properties and Location
See attached, for the schedule that shows each Property, the
terminal name and address and county in which it is located.
..
EXHIBIT B
Permitted Exceptions
The "Permitted Exceptions" are the exceptions to title that
Lender approves and appear in the mortgagee's policies of title
insurance issued to Lender in connection with the closing of the
funding of the Loan as to the Properties involved in the First
Funding and Second Funding, respectively.
Schedule 4.1
Principal Place of Business of Members and Guarantors
BORROWER MEMBER/GUARANTOR PLACE OF BUSINESS
CFCD 2002A LLC, a CFCD 2002A MEMBER Borrower and Member
Delaware limited LLC, a Delaware organized in
liability company limited liability Delaware each with
company (the sole their principal
member of Borrower) place of business in
Washington State at
address shown in
Notice provision.
Filed as a foreign
limited liability
company in each
State in which any
Property is
situated.
CONSOLIDATED Incorporated in
FREIGHTWAYS Delaware with its
CORPORATION, a principal place of
Delaware corporation business in
as "Guarantor" Washington State at
address shown in
notice provision.
Schedule 6.14
Partial Release Amounts
PROPERTY LOCATION ALLOCATED LOAN AMOUNT LOCATION RELEASE
AMOUNT
Sacramento, CA $4,795,000.00 $5,514,250.00
Mira Loma, CA $7,788,000.00 $7,788,000.00
Bridgeview, IL $6,300,000.00 $6,930,000.00
Jackson, MS $ 875,000.00 $1,006,250.00
Atlanta, GA $1,500,000.00 $1,725,000.00
Indianapolis, IN $2,070,000.00 $2,380,500.00
Carlisle, PA $2,500,000.00 $2,875,000.00
Schedule 8.23
Terms and Conditions for Partial Release (Mortgaged
Property)
The following terms and conditions must be satisfied in order for
Borrower to obtain, upon request to Lender from time to time
during the term of this Agreement, a release of one or more
mortgaged Properties from the Loan Documents and all liens and
security interests created pursuant to this Agreement:
(a) No Event of Default has occurred and is then continuing
and no circumstances exist which with the passage of time and/or
giving of notice would constitute an Event of Default, and the
effect of such release will not cause Borrower to be in violation
of any of the other covenants, terms or conditions of the Loan
Agreement.
(b) Not less than thirty (30) days' prior written notice
will be given to Lender as to the requested release.
(c) The effective date of the release will be the regular
monthly interest payment date on the Note, and interest that is
accrued through (and payable on) such date pursuant to the Loan
will be paid by Borrower as a condition to the release (or, if
the effective date of the release is other than on such interest
payment date, Borrower will pay in full, upon request by Lender,
all interest which has accrued on the Loan through the effective
date of the release).
(d) The release will be evidenced by satisfaction of
mortgage or request for reconveyance of deed of trust, releases
of financing statements filed under the Uniform Commercial Code,
and/or other instruments necessary to release the mortgage liens
and security interests created in favor of Lender pursuant to
this Agreement as it relates to the released property only.
Borrower will be responsible for preparing the release
instruments, for review by Lender. The form of release
instruments must be acceptable to Lender. The reasonable out-of-
pocket costs incurred by Lender (including attorneys' fees) in
connection with the release will by paid by Borrower and at
Lender's discretion added to the amount to be paid as a
prerequisite to the release or to the extent not required by
Lender to be paid at the time of release added to the
indebtedness and be paid by Borrower thirty days after invoiced
to Borrower.
(e) Borrower shall have paid to Lender, as a condition to
such release, on or before the effective date of the release, a
principal reduction payment in an amount as shown on Schedule
6.14.
(f) Borrower will reimburse Lender for all out-of-pocket
expenses (including, without limitation, attorneys' fees) in
reviewing the request for release and the documentation required
to be submitted by Borrower to obtain the release, whether or not
Lender determines that the above conditions are satisfied. In
addition, all third-party costs and expenses related to the
release shall be paid by Borrower, including (but not limited to)
reconveyance fees of the trustee, title insurance fees, recording
fees and other expenses. To the extent required by Lender, any
and all such items shall be added to the amounts to be prepaid in
conjunction with the requested release or added to the
indebtedness and billed in accordance with subpart (d) above.