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Exhibit 10.215
LOAN PROCEEDS HOLDBACK AGREEMENT
This Loan Proceeds Holdback Agreement (the "Agreement") is dated as of June
30, 2004, by and between NEWMAN DEVELOPMENT GROUP OF GILROY, L.L.C., a
California limited liability company ("Borrower") and IWEST GILROY, L.L.C., a
Delaware limited liability company ("Lender").
W I T N E S S E T H:
WHEREAS, Lender issued a loan commitment to Borrower dated June 30, 2004
(the "Commitment"), relating to a loan for $22,000,000.00 (the "Loan") to
Borrower, which Commitment was accepted by Borrower; and
WHEREAS, Borrower has executed and delivered to Lender, among other
documents and things, an Installment Note of even date herewith in the principal
sum of $22,000,000.00 (the "Note") which is secured by, among other things, a
First Deed of Trust and Security Agreement (the "Mortgage") on certain real
property and improvements located in Gilroy, California, and more particularly
described on Exhibit A, attached hereto, and incorporated herein by reference
(the "Project"); and
WHEREAS, pursuant to the terms of the Commitment, Lender shall hold back
the amount of $6,667,094 ("Holdback") from the proceeds of the Loan and which
shall be disbursed as the Project is leased as more particularly described
herein.
NOW, THEREFORE, for $10.00 and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and to further induce
Lender to make and disburse the proceeds of the Loan to Borrower, Borrower and
Lender agree as follows:
1. INCORPORATION OF RECITALS. The Recitals hereinabove set forth are by
this reference incorporated herein.
2. CONDITIONS FOR RELEASE AND USE OF HOLDBACK.
A. So long as there is no default under the Note or under the
Mortgage or Other Loan Documents, as defined in the Note, and no
material adverse change has occurred in the financial condition
of the Borrower or any guarantor of the Loan, as reasonably
determined by Lender, the Holdback will be disbursed on the terms
stated herein. Portions of the Holdback will be disbursed by
Lender no sooner than ten (10) business days after the date on
which Lender has received all items required to be delivered to
it pursuant to this Agreement.
B. Each request for a draw, except for final draw, shall be in the
minimum amount of TEN THOUSAND AND 00/100 Dollars ($10,000.00).
Lender shall not be obligated to advance funds pursuant to a draw
request more than once per calendar month. Draw requests will be
for one (1) of three
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(3) categories, as set forth below, and will be funded if the
loan is not in default and Lender has received, in form and
content reasonably acceptable to Lender, an endorsement to
Lender's Title Policy extending the date thereof through and
inclusive of the date of disbursement, without change to the
condition of or exceptions to title, and further insuring the
continued priority of Lender's Mortgage as an encumbrance
superior in continued priority to all lien claims for labor,
services or materials related to the work at the Project and
Lender has received the following (depending on the category of
the draw request):
1. LNT INITIAL DISBURSEMENT. Lender shall make an initial
disbursement of $3,000,000.00 with respect to the tenancy of
Linens N Things ("LNT Initial Disbursement"). The LNT
Initial Disbursement shall be subject to the conditions set
forth in this Agreement and shall be disbursed after (i) the
commencement of the payment of rent, operating expenses and
other applicable pass throughs, by LNT pursuant to the terms
of the lease between Borrower and LNT as previously approved
by Lender in writing, and (ii) LNT shall have executed and
delivered to Lender an estoppel certificate and
subordination, non-disturbance and attornment agreement each
in form and substance acceptable to Lender in Lender's sole
discretion.
2. LNT FINAL DISBURSEMENT. Lender shall make a final
disbursement of $1,911,069.00 with respect to the LNT
premises. The LNT Final Disbursement shall be disbursed
after each of the Occupancy Conditions (as defined below)
have been satisfied with respect to the LNT premises.
3. PERIODIC DISBURSEMENTS. Lender shall make periodic
disbursements ("Periodic Disbursements") in amounts equal to
ninety percent (90%) of the quotient obtained by dividing
the annual base rent payable by tenants under applicable
leases which have satisfied each of the Occupancy Conditions
(as of the date of the request for such Periodic
Disbursement) by the Base Rent Divider.
As used herein, "Occupancy Conditions" are as follows: (i) a fully executed
lease with a tenant in form and substance acceptable to Lender in Lender's sole
discretion, and (ii) the tenant is open for business to the public with a
fully-stocked store, and (iii) the tenant is paying full rent and
reimbursements, and (iv) all the leasing commissions and tenant improvement
allowances have been paid, and (v) a certificate of occupancy or its equivalent
has been issued by the local governmental authorities for such tenant's
premises, and (vi) the tenant has executed and delivered an estoppel certificate
and subordination, non-disturbance and attornment agreement to Lender, each in
form and substance acceptable to Lender in Lender's sole discretion. As used
herein, "Base Rent Divider" shall mean 7.6925%.
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C. Borrower is obligated to pay the cost of any third party
consultants deemed necessary by Lender to review any of the
foregoing.
3. NO WAIVER. No delay or leniency of Lender in requiring strict
performance of the terms and conditions hereof shall constitute a
waiver of its rights hereunder.
4. NO FURTHER PLEDGE OR ENCUMBRANCE. Borrower shall not, pledge, assign
or grant any security interest in the Holdback or permit any lien or
encumbrance to attach thereto or any UCC-1 Financing Statements,
except those naming Lender as secured party, to be filed with respect
thereto.
5. INDEMNIFICATION. Borrower indemnifies and holds Lender harmless from
and against any and all actions, suits, claims, demands, liabilities,
losses, damages, obligations and costs or expenses; including
litigation costs and attorneys fees, arising from or in any way
connected with this Agreement, other than the gross negligence or
willful misconduct of Lender.
6. FEES AND EXPENSES. All costs and expenses incurred by Lender in
connection with collecting and disbursing the Holdback pursuant to
this Agreement, including attorney's fees and disbursements, shall be
paid by Borrower.
7. MISCELLANEOUS.
(a) AMENDMENTS. No amendment, modification or cancellation of this
Agreement shall be valid unless in writing and signed by the
party against whom enforcement is sought.
(b) HEADINGS. The Paragraph and Subparagraph headings hereof are
inserted for convenience and reference only and shall not alter,
define or be used in construing the text of such Paragraphs or
Subparagraphs.
(c) MEANING OF PARTICULAR TERMS. Whenever used, the singular number
shall include the plural and the plural the singular, and
pronouns of one gender shall include all genders; and the words
"Borrower" and "Lender" shall include their respective heirs,
personal representatives, successors and assigns.
(d) GOVERNING LAW. JURISDICTION AND VENUE. This Agreement shall be
governed by and construed and enforced in accordance with the
substantive laws of the State of Illinois without regard to
conflict of laws principles.
(e) INVALIDITY OF PARTICULAR PROVISIONS. If any term or provision of
this Agreement shall be determined to be illegal or
unenforceable, all other terms and provisions hereof shall never
the less remain effective and shall be enforced to the fullest
extent permitted by applicable law, and in lieu such illegal or
unenforceable provisions there shall be added automatically
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as part of this Agreement a provision as similar in terms to such
invalid, illegal or unenforceable provision as may be possible
and be valid, legal and enforceable.
(f) NO DELAY OR WAIVER. No delay on the part of the Lender in
exercising any right hereunder or any failure to exercise the
same shall operate as a waiver of such right; nor in any event
shall any modification or waiver of the provisions hereof be
effective unless in writing; nor shall any such waiver be
applicable except in the specific instance for which given.
(g) NOTICES. All notices or demands required or permitted under this
Agreement shall be in writing and addressed as provided in the
Mortgage.
(h) BINDING EFFECT. This Agreement and all the covenants, promises
and agreements contained herein shall be binding upon and inure
to the benefit of the respective legal representatives, personal
representatives, devisees, heirs, successors and assigns of the
Borrower and Lender.
(i) ENTIRE AGREEMENT. No oral understandings or agreements exist
between the parties, all of which oral understandings or
agreement are merged herein and of no further force and effect.
(j) EXECUTION IN COUNTERPARTS. This Agreement may be executed,
acknowledged and delivered in any number of counterparts and each
such counterpart shall constitute an original, but together such
counterparts shall constitute only one instrument.
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IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement as of
the day and year first above written.
NEWMAN DEVELOPMENT GROUP OF
GILROY, L.L.C., a California limited
liability company
By: /s/ Marc Newman
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Name: Marc Newman
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Its: Member
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IWEST GILROY, L.L.C., a Delaware
limited liability company
By: /s/ Valerie Medina
--------------------------------------
Name: Valerie Medina
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Its: Asst. Secretary
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STATE OF New York )
) SS
COUNTY OF Broome )
On June 29, 2004, before me, Howard M. Rittberg
(NAME, TITLE OF OFFICER. E.G., "JANE DOE, NOTARY PUBIC")
personally appeared Marc Newman
(NAME(S) OF SIGNER(S))
/X/ personally known to me -OR-
/ / proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity/ies, and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which person(s) acted,
executed the instrument.
Witness my hand and official seal.
/s/ Howard M. Rittberg
---------------------------
(Signature of Notary)
(SEAL)
My Commission expires:
HOWARD M. RITTBERG
- ----------------------------------------
Notary Public, State of New York
No, 4623413
Residing In Broome County
My Commission Expires Aug. 31, 2007
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STATE OF Illinois )
) SS
COUNTY OF Cook )
On June 29, 2004, before me, Elizabeth Ann Irving
(NAME, TITLE OF OFFICER. E.G., "JANE DOE, NOTARY PUBIC")
personally appeared Valerie Medina
(NAME(S) OF SIGNER(S))
/X/ personally known to me -OR-
/ / proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity/ies, and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which person(s) acted,
executed the instrument.
Witness my hand and official seal.
/s/ Elizabeth Ann Irving
------------------------
(Signature of Notary)
(SEAL)
My Commission expires:
11-14-2004
- -------------
"OFFICIAL SEAL"
ELIZABETH ANN IRVING
NOTARY PUBLIC STATE OF ILLINOIS
My Commission Expires 11/14/2004
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EXHIBIT A
LEGAL DESCRIPTION OF PREMISES
The land refereed to herein is situated in the City of Gilroy, County of Santa
Clara, State of California, and is described as follows:
Parcel A:
Lots 2, 4, and 5, as shown on that certain map entitled "Tract No. 9401, Highway
152 Retail Center, Gilroy, California" filed for record in the office of the
Recorder for the County of Santa Clara, State of California on August 16, 2002
in Book 751 of Maps, pages 10, 11, 12, 13, 14, and 15, Santa Clara County
Records.
Parcel B:
A non-exclusive easement for ingress and egress over Lots 1 and 3 as shown on
that certain map entitled "Tract No. 9401, Highway 152 Retail Center, Gilroy,
California" filed for record in the office of the Recorder for the County of
Santa Clara, State of California on August 16, 2002 in Book 751 of Maps, pages
10, 11, 12, 13, 14, and 15, Santa Clara County Records.
Parcel C:
A non-exclusive non-buildable structure easement over Lot 1 as shown on that
certain map entitled "Tract No, 9401, Highway 152 Retail Center, Gilroy,
California" filed for record in the office of the Recorder for the County of
Santa Clara, State of California on August 16, 2002 in Book 751 of Maps, pages
10, 11, 12, 13, 14 and 15, Santa Clara County Records.
Parcel D:
Easements granted in that certain document entitled "Declaration of Covenants,
Conditions and Restrictions and Grant of Reciprocal Easements" recorded August
16, 2002 as Instrument No. 16425383 of Official Records.
Parcel E:
Parcels 1, 2, and 3 as shown on that certain Parcel map entitled "PARCEL MAP,
Southwest quadrant of the Pacheco Pass retail center, City of Gilroy...", filed
for record in the office of the Recorder for the County of Santa Clara, State of
California on June 25, 2002 in Book 761 of Maps, pages 52 and 53, Santa Clara
County Records.
APN: 841-10-060; 841-18-059; 841-18-061; 841-18-062; 841-18-063; 841-18-064;
841-18-065; & 841-18-066