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CONSTRUCTION LOAN AGREEMENT

Construction Loan Agreement

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KEYBANK NATIONAL ASSOCIATION | REPUBLIC 20TH STREET LLC

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Title: CONSTRUCTION LOAN AGREEMENT
Date: 3/14/2007
Industry: REOPER     Law Firm: McKenna Long     Sector: SERVIC

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exv10w62

 

Exhibit 10.62

CONSTRUCTION LOAN AGREEMENT

for a loan in the amount of

$74,000,000

MADE BY AND BETWEEN

REPUBLIC 20TH STREET LLC,
a Delaware limited liability company,

As Borrower

AND

KEYBANK NATIONAL ASSOCIATION,
a national banking association,
127 Public Square,
Cleveland, Ohio 44114

as a Lender and as Administrative Agent

AND

KEYBANC CAPITAL MARKETS
as sole lead arranger and book manager

Dated as of February 16, 2007

 

 

 

TABLE OF CONTENTS

 

 

 

 

 

 

 

 

 

 

 

Page

 

ARTICLE 1

 

     INCORPORATION OF RECITALS AND EXHIBITS

 

 

1

 

1.1

 

Incorporation of Recitals

 

 

1

 

1.2

 

Incorporation of Exhibits

 

 

1

 

ARTICLE 2

 

     DEFINITIONS

 

 

1

 

2.1

 

Defined Terms

 

 

1

 

2.2

 

Other Definitional Provisions

 

 

18

 

ARTICLE 3

 

     BORROWER’S REPRESENTATIONS AND WARRANTIES

 

 

18

 

3.1

 

Representations and Warranties

 

 

18

 

3.2

 

Survival of Representations and Warranties

 

 

23

 

ARTICLE 4

 

     LOAN AND LOAN DOCUMENTS

 

 

24

 

4.1

 

Agreement to Borrow and Lend; Lenders’ Obligation to Disburse

 

 

24

 

4.2

 

Loan Documents

 

 

25

 

4.3

 

Term of the Loan

 

 

26

 

4.4

 

Prepayments

 

 

27

 

4.5

 

Required Principal Payments

 

 

27

 

4.6

 

Late Charge

 

 

27

 

4.7

 

Funds for Payment

 

 

27

 

4.8

 

Notes

 

 

27

 

4.9

 

No Setoff

 

 

28

 

ARTICLE 5

 

     INTEREST

 

 

28

 

5.1

 

Interest Rate

 

 

28

 

5.2

 

[Intentionally Omitted.]

 

 

30

 

ARTICLE 6

 

     COSTS OF MAINTAINING LOAN

 

 

30

 

6.1

 

Increased Costs and Capital Adequacy

 

 

30

 

6.2

 

Borrower Withholding

 

 

32

 

ARTICLE 7

 

     LOAN EXPENSE AND ADVANCES

 

 

32

 

7.1

 

Loan and Administration Expenses

 

 

32

 

7.2

 

Fees

 

 

32

 

7.3

 

[Intentionally Omitted.]

 

 

33

 

7.4

 

Agent’s Attorneys’ Fees and Disbursements

 

 

33

 

7.5

 

Time of Payment of Fees and Expenses

 

 

33

 

7.6

 

Expenses and Advances Secured by Loan Documents

 

 

33

 

7.7

 

Right of Lenders to Make Advances to Cure Borrower’s Defaults

 

 

33

 

ARTICLE 8

 

     NON CONSTRUCTION REQUIREMENTS PRECEDENT TO THE OPENING OF THE LOAN

 

 

33

 

-i-

 

 

TABLE OF CONTENTS
(continued)

 

 

 

 

 

 

 

 

 

 

 

Page

 

8.1

 

Non-Construction Conditions Precedent

 

 

33

 

ARTICLE 9

 

     CONSTRUCTION REQUIREMENTS PRECEDENT TO THE OPENING OF THE LOAN

 

 

36

 

9.1

 

Required Construction and Other Documents

 

 

36

 

ARTICLE 10

 

     BUDGET AND CONTINGENCY FUND

 

 

38

 

10.1

 

Budget

 

 

38

 

10.2

 

Budget Line Items

 

 

38

 

10.3

 

Contingency Fund

 

 

39

 

10.4

 

Optional Method for Payment of Interest

 

 

39

 

ARTICLE 11

 

     SUFFICIENCY OF LOAN

 

 

39

 

11.1

 

Loan In Balance

 

 

39

 

ARTICLE 12

 

     CONSTRUCTION PAYOUT REQUIREMENTS

 

 

40

 

12.1

 

Applicability of Sections

 

 

40

 

12.2

 

Monthly Payouts

 

 

40

 

12.3

 

Documents to be Furnished for Each Disbursement

 

 

40

 

12.4

 

Retainages

 

 

42

 

12.5

 

Disbursements for Materials Stored On Site

 

 

42

 

12.6

 

Disbursements for Offsite Materials

 

 

42

 

12.7

 

Disbursements For Tenant Work and Allowances and Leasing Commissions

 

 

42

 

12.8

 

[Intentionally omitted.]

 

 

43

 

ARTICLE 13

 

     FINAL DISBURSEMENT FOR CONSTRUCTION

 

 

44

 

13.1

 

Final Disbursement for Construction

 

 

44

 

ARTICLE 14

 

     [reserved]

 

 

45

 

ARTICLE 15

 

     OTHER COVENANTS

 

 

45

 

15.1

 

Additional Covenants

 

 

45

 

15.2

 

Authorized Representative

 

 

52

 

ARTICLE 16

 

     CASUALTIES AND CONDEMNATION

 

 

53

 

16.1

 

Agent’s Election to Apply Proceeds on Indebtedness

 

 

53

 

16.2

 

Borrower’s Obligation to Rebuild and Use of Proceeds Therefor

 

 

53

 

ARTICLE 17

 

     ASSIGNMENTS BY LENDERS AND BORROWER

 

 

54

 

17.1

 

Prohibition of Assignments and Transfers by Borrower

 

 

54

 

17.2

 

Prohibition of Transfers in Violation of ERISA

 

 

54

 

17.3

 

Successors and Assigns

 

 

55

 

ARTICLE 18

 

     TIME OF THE ESSENCE

 

 

55

 

18.1

 

Time is of the Essence

 

 

55

 

-ii-

 

 

TABLE OF CONTENTS
(continued)

 

 

 

 

 

 

 

 

 

 

 

Page

 

ARTICLE 19

 

     EVENTS OF DEFAULT

 

 

55

 

ARTICLE 20

 

     LENDERS’ REMEDIES IN EVENT OF DEFAULT

 

 

57

 

20.1

 

Remedies Conferred Upon Lenders

 

 

57

 

ARTICLE 21

 

     GENERAL PROVISIONS

 

 

58

 

21.1

 

Captions

 

 

58

 

21.2

 

Modification; Waiver

 

 

58

 

21.3

 

Governing Law

 

 

59

 

21.4

 

Acquiescence Not to Constitute Waiver of Lenders’ Requirements

 

 

59

 

21.5

 

Disclaimer by Lenders

 

 

59

 

21.6

 

Partial Invalidity; Severability

 

 

60

 

21.7

 

Definitions Include Amendments

 

 

60

 

21.8

 

Execution in Counterparts

 

 

60

 

21.9

 

Entire Agreement

 

 

60

 

21.10

 

Waiver of Damages

 

 

60

 

21.11

 

Claims Against Agent or Lenders

 

 

61

 

21.12

 

Jurisdiction

 

 

61

 

21.13

 

Set-Offs

 

 

61

 

21.14

 

Distribution of Collateral Proceeds

 

 

62

 

ARTICLE 22

 

     NOTICES

 

 

62

 

ARTICLE 23

 

     WAIVER OF JURY TRIAL

 

 

64

 

ARTICLE 24

 

     ASSIGNMENTS AND PARTICIPATIONS

 

 

64

 

24.1

 

Assignments and Participations

 

 

64

 

24.2

 

Several Liability

 

 

67

 

ARTICLE 25

 

     AGENT

 

 

68

 

25.1

 

Appointment

 

 

68

 

25.2

 

Reliance on Agent

 

 

68

 

25.3

 

Powers

 

 

68

 

25.4

 

Disbursements

 

 

69

 

25.5

 

Distribution and Apportionment of Payments

 

 

70

 

25.6

 

Consents and Approvals

 

 

72

 

25.7

 

Agency Provisions Relating to Collateral

 

 

73

 

25.8

 

Lender Actions Against Borrower or the Collateral

 

 

74

 

25.9

 

Assignment and Participation

 

 

75

 

25.10

 

Ratable Sharing

 

 

75

 

-iii-

 

 

TABLE OF CONTENTS
(continued)

 

 

 

 

 

 

 

 

 

 

 

Page

 

25.11

 

General Immunity

 

 

75

 

25.12

 

No Responsibility for Loan, Recitals, etc

 

 

76

 

25.13

 

Action on Instructions of Lenders

 

 

76

 

25.14

 

Employment of Agents and Counsel

 

 

77

 

25.15

 

Reliance on Documents; Counsel

 

 

77

 

25.16

 

Agent’s Reimbursement and Indemnification

 

 

77

 

25.17

 

Rights as a Lender

 

 

77

 

25.18

 

Lenders’ Credit Decisions

 

 

78

 

25.19

 

Notice of Events of Default

 

 

78

 

25.20

 

Successor Agent

 

 

78

 

25.21

 

Disclosure

 

 

79

 

-iv-

 

 

LIST OF EXHIBITS TO LOAN AGREEMENT

 

 

 

Exhibit A

 

Legal Description of Land

Exhibit B

 

Permitted Exceptions

Exhibit C

 

Form of Note

Exhibit D

 

Intentionally Omitted

Exhibit E

 

LIBOR Notice Election

Exhibit F

 

Insurance Requirements

Exhibit G

 

Architect’s Certificate

Exhibit H

 

Initial Budget

Exhibit I

 

Borrower’s Certificate

Exhibit J

 

Soft and Hard Cost Requisition Form

Exhibit K

 

Borrower’s Certificate of Compliance

Exhibit L

 

Assignment and Assumption Agreement

Exhibit M

 

Patriot Act and OFAC Transferee and Assignee Identifying Information Form

 

 

 

CONSTRUCTION LOAN AGREEMENT
Project Commonly Known as
"1129 20
th Street"

     THIS CONSTRUCTION LOAN AGREEMENT ("Agreement") is made as of February 16, 2007, by and among REPUBLIC 20TH STREET LLC, a Delaware limited liability company ("Borrower"), and KEYBANK NATIONAL ASSOCIATION, a national banking association ("KeyBank"), its successors and assigns, individually and as a lender and administrative agent (referred to in such capacity as "Agent" in this Agreement), and each of the undersigned lending institutions (KeyBank, as a lender, and each such lending institution, and their respective successors and assigns, referred to individually as "Lender" or collectively as the "Lenders").

W I T N E S S E T H:

RECITALS

     A. Borrower is the owner of a fee simple interest in the land located at 1129 20th Street in Washington, D.C., and which is legally described in Exhibit A attached hereto (the "Land"). Borrower proposes to expand and renovate such building.

     B. Borrower has applied to Lenders for a loan in the amount of up to Seventy-Four Million and No/100 Dollars ($74,000,000.00) (the "Loan") to reimburse Borrower for and to pay for the acquisition and development of the Project, and Lenders are willing to make the Loan on the terms and conditions hereinafter set forth.

     NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto agree as follows:

ARTICLE 1

INCORPORATION OF RECITALS AND EXHIBITS

1.1 Incorporation of Recitals.

     The foregoing preambles and all other recitals set forth herein are made a part hereof by this reference.

1.2 Incorporation of Exhibits.

     Exhibits A through M, to this Agreement, attached hereto are incorporated in this Agreement and expressly made a part hereof by this reference.

ARTICLE 2

DEFINITIONS

2.1 Defined Terms.

     The following terms as used herein shall have the following meanings:

     Adjusted LIBOR Rate: For any LIBOR Rate Interest Period, an interest rate per annum equal to the sum of (A) the rate obtained by dividing (x) the LIBOR Rate for such LIBOR Rate Interest Period by (y) a percentage equal to one hundred percent (100%) minus the Reserve Percentage for such LIBOR Rate Interest Period and (B) the LIBOR Rate Margin.

     Adjusted Base Rate: A rate per annum equal to the sum of (a) the Prime Rate Margin and (b) the greater of (i) the Prime Rate or (ii) one percent (1%) in excess of the Federal Funds Effective Rate. Any change in the Adjusted Base Rate shall be effective immediately from and after a change in the Adjusted Base Rate (or the Federal Funds Effective Rate, as applicable).

 

 

 

     Affiliate: An Affiliate, as applied to any Person, shall mean any other Person directly or indirectly Controlling, Controlled by, or under common Control with, that Person.

     Agent’s Head Office: The Agent’s head office located at 127 Public Square, Cleveland, Ohio 44114-1306, or at such other location as the Agent may designate from time to time by notice to the Borrower and the Lenders.

     Agent’s Special Counsel: McKenna Long & Aldridge LLP or such other counsel as selected by Agent.

     Agreement: This Construction Loan Agreement.

     Applicable Margin. On any date, the Applicable Margin set forth below based on the percentage of the Net Rentable Area of the Project (based upon the Net Rentable Area to be in the Project after completion of Construction) that is subject to Qualified Leases:

 

 

 

 

 

 

 

 

 

 

 

 

 

Percentage of Net Rentable Area

 

LIBOR Rate

 

Prime Rate

Pricing Level

 

Subject to Qualified Leases

 

Margin

 

Margin

Pricing Level 1

 

Greater than or equal to 90%

 

 

1.25

%

 

 

0.00

%

 

 

 

 

 

 

 

 

 

 

 

Pricing Level 2

 

Greater than or equal to 40% but less than 90%

 

 

1.45

%

 

 

0.25

%

 

 

 

 

 

 

 

 

 

 

 

Pricing Level 3

 

Less than 40%

 

 

1.65

%

 

 

0.50

%

The initial Applicable Margin shall be at Pricing Level 3. The Applicable Margin shall not be adjusted based upon such percentage, if at all, until the first (1st) day of the first (1st) month following the delivery by Borrower to the Agent of the Rent Roll at the end of a calendar month. In the event that Borrower shall fail to deliver to the Agent a monthly Rent Roll on or before the date required by Section 15.1(o), then without limiting any other rights of the Agent and the Lenders under this Agreement, the Applicable Margin shall be at Pricing Level 3 until such failure is cured within any applicable cure period, in which event the Applicable Margin shall adjust, if necessary, on the first (1st) day of the first (1st) month following receipt of such Rent Roll.

     Applicable Rate: As such term is defined in Section 5.1(a).

     Appraisal: An MAI appraisal of the value of the Project performed by an independent appraiser selected by the Agent who is not an employee of the Borrower, the Guarantors or any of their Affiliates, the Agent or a Lender, the form and substance of such appraisal and the identity of the appraiser to be in compliance with FIRREA, the rules and regulations adopted pursuant thereto and all other regulatory laws and policies (both regulatory and internal) applicable to the Lenders and otherwise acceptable to the Agent.

     Appraised Value: The stabilized market value of the Project as reflected in the then-most recent Appraisal of the Project, obtained pursuant to this Agreement; subject, however, to such reasonable adjustments to the value determined thereby as may be required by the appraisal department of the Agent in its good faith business judgment based on criteria and factors then generally used and considered by the Agent in determining the value of similar properties, which review shall be conducted prior to acceptance of such Appraisal by the Agent.

     Architect: FOX Architects, LLC.

     Architect’s Certificate: A certificate in the form of Exhibit G attached hereto executed by the Architect in favor of Lenders.

     Assignment and Assumption: An Assignment and Assumption Agreement in the form of Exhibit L attached hereto and made a part hereof.

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     Assignment of Rents: An assignment of leases and rents made by Borrower in favor of Agent assigning all leases, subleases and other agreements relating to the use and occupancy of all or any portion of the Project, and all present and future leases, rents, issues and profits therefrom.

     Authorized Representative: Gary R. Siegel, Michael Green or Mark Keller.

     Bankruptcy Code: Title 11 of the United States Code entitled "Bankruptcy" as now or hereafter in effect, or any successor thereto or any other present or future bankruptcy or insolvency statute.

     Board. As such term is defined in Change of Control.

     Bond: A Performance Bond and Labor and Material Payment Bond in a form approved by Agent, with each Major Subcontractor as principal, with a surety company acceptable to Agent and licensed to do business in the State, as surety, with a dual obligee rider in favor of Agent.

     Breakage Costs: The cost to any Lender of re employing funds bearing interest at an Adjusted LIBOR Rate (calculated based on a change in the LIBOR Rate), incurred (or reasonably expected to be incurred) in connection with (i) any payment of any portion of the Loan bearing interest at an Adjusted LIBOR Rate prior to the termination of any applicable LIBOR Rate Interest Period, (ii) the conversion of an Adjusted LIBOR Rate to any other applicable interest rate on a date other than the last day of the relevant LIBOR Rate Interest Period, or (iii) the failure of Borrower to draw down, on the first day of the applicable LIBOR Rate Interest Period, any amount as to which Borrower has elected a LIBOR Rate Option.

     Budget: The budget for the Project specifying all costs and expenses of every kind and nature whatever to be incurred by Borrower in connection with the Project prior to the Maturity Date.

     Budget Line Item: As such term is defined in Section 10.2.

     Business Day: A day of the year on which banks are not required or authorized to close in Cleveland, Ohio.

     Capitalized Lease: A lease under which the discounted future rental payment obligations of the lessee or the obligor are required to be capitalized on the balance sheet of such Person in accordance with generally accepted accounting principles.

     Change of Control: A Change of Control shall exist upon the occurrence of any of the following:

          (a) any Person (including a Person’s Affiliates and associates) or group (as that term is understood under Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and the rules and regulations thereunder) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of a percentage (based on voting power, in the event different classes of stock shall have different voting powers) of the voting stock of Parent Guarantor equal to at least twenty percent (20%) (or with respect to Richard Kramer and Steven Grigg and their Affiliates, an aggregate of at least forty percent (40%));

          (b) as of any date a majority of the Board of Directors or Trustees (the "Board") of Parent Guarantor consists of individuals who were not either (i) directors or trustees of Parent Guarantor as of the corresponding date of the previous year, or (ii) selected or nominated to become directors or trustees by the Corporate Governance and Nominating Committee of Parent Guarantor, which is comprised solely of independent directors, as required by the New York Stock Exchange, and approved by a majority of the Board of Parent Guarantor, which majority consisted of individuals described in clause (b)(i) above, or (iii) selected or nominated to become directors or trustees by the Corporate Governance and Nominating Committee of Parent Guarantor and approved by a majority of the Board of Parent Guarantor, which majority consisted of individuals described in clause (b)(i) above and individuals described in clause (b)(ii), above (excluding, in the case of both clause (ii) and (iii) above, any individual whose initial nomination for, or assumption of office as, a member of the Board occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more

3

 

 

directors or trustees by any Person or group other than a solicitation for the election of one or more directors or trustees by or on behalf of the Board); or

          (c) the OP Guarantor or Parent Guarantor consolidates with, is acquired by, or merges into or with any Person (other than a merger permitted by Section 22 of the Guaranty); or

          (d) Parent Guarantor fails to own, directly, at least fifty-one percent (51%) of the economic, voting and beneficial interests in OP Guarantor; or

          (e) Parent Guarantor shall fail to be the sole general partner of OP Guarantor, shall fail to own such general partnership interest in OP Guarantor free of any lien, encumbrance or other adverse claim, or shall fail to control the management and policies of OP Guarantor; or

          (f) Mark R. Keller shall cease to be the Chief Executive Officer of Parent Guarantor and a competent and experienced successor Chief Executive Officer shall not be reasonably approved by the Required Lenders within six (6) months of such event; or

          (g) OP Guarantor ceases to control the management of the Borrower and to be the legal and beneficial owner of at least 51% of the membership interests in Borrower; or

          (h) OP Guarantor or any other owner of Equity Interests in Borrower shall create, incur, assume or suffer to exist any Lien on the Equity Interests in Borrower owned by it.

     Change Order: Any request for changes in the Plans and Specifications (other than minor field changes involving no extra cost).

     Code: The Internal Revenue Code of 1986, as amended.

     Collateral: All of (a) the property, rights and interests of the Borrower that are or are intended to be subject to the security interests, assignments, and mortgage liens created by the Security Documents, including, without limitation, the Project, and (b) the Guaranty.

     Commitment: The maximum amount each Lender has agreed to lend to Borrower as part of the Loan (which amounts are set forth below the signature line of each Lender), subject to modification by each Assignment and Assumption.

     Completion Conditions: Delivery to Agent of the following items in form satisfactory to the Agent:

               (A) Required Permits. Evidence that the Borrower has obtained all Required Permits from such Governmental Authority as may be required under applicable laws and requirements for the permanent use and occupancy of the Improvements for their intended uses, together with copies of all such Required Permits (it being acknowledged that with respect to any portion of the Project to be occupied by a Tenant which has not been leased, Borrower shall deliver a shell certificate of occupancy);

               (B) Approval by Lender’s Consultant. Notification from the Lender’s Consultant to the effect that the Improvements have been completed in a good and workmanlike manner in accordance with the Plans and Specifications;

               (C) Certificate of the Borrower’s Architect. Certificate of the Borrower’s architect that the Improvements have been completed in accordance with the Plans and Specifications and that the Improvements comply with all applicable laws and requirements and Governmental Approvals and are in all respects ready for use and occupancy;

               (D) Payment of Costs. Evidence satisfactory to Agent that all sums due in connection with the construction of the Improvements have been paid or discharged in full (whether by bonding or

4

 

 

otherwise) and that no party claims or has a right to claim any statutory or common law lien arising out of the construction of the Improvements for the supplying of labor, material, equipment and/or services in connection therewith;

               (E) Final Lien Waivers. Final lien waivers in such form as may be permitted by applicable law to remove or dissolve any unfiled lien claims, or such other form satisfactory to the Agent from the General Contractor, and such laborers, suppliers, subcontractors and materialmen as may be requested by the Agent, duly executed and notarized (or with respect to any lien claims for which final lien waivers are not provided, evidence satisfactory to Agent that such lien claims have been discharged in full (whether by bonding or otherwise));

               (F) Acceptance by Tenants. Evidence satisfactory to Agent that any Tenants of the Project for which Tenant Work has been completed have accepted their leased premises in accordance with their Lease;

               (G) Debt Service Coverage. The Debt Service Coverage for the most recently completed calendar quarter shall be not less than 1.25 to 1, and Agent shall have received a duly executed Certificate of Compliance in the form of Exhibit K attached hereto; and

               (H) Title Endorsement. An endorsement to the Title Policy fully removing any exception for mechanics and materialman’s liens, whether filed or unfiled.

     Completion Date: The first to occur of (i) the date that is eighteen (18) months from the Construction Commencement Date and (ii) November 16, 2008, subject to extension pursuant to Section 15.1(b).

     Construction or construction: The construction and equipping of the Improvements in accordance with the Plans and Specifications, and all Tenant Work and related improvements required to be performed by Borrower under Leases and the installation of all personal property, fixtures and equipment required for the operation of the Project.

     Construction Commencement Date: The first to occur of (i) May 16, 2007 and (ii) the date that is 30 days from the Loan Opening Date.

     Construction Schedule: A schedule satisfactory to Agent and Lender’s Consultant, establishing a timetable for completion of the Construction, showing, on a monthly basis, the anticipated progress of the Construction and also showing that the Improvements can be completed on or before the Completion Date.

     Contingency Fund: A Budget Line Item which shall represent an amount necessary to provide reasonable assurances to Lenders that additional funds are available to be used if additional costs and expenses are incurred or additional interest accrues on the Loan, or unanticipated events or problems occur.

     Control: For purposes of this definition, "Control" (including, with correlative meanings, the terms "controlling", "controlled by" and "under common control with"), as applied to any Person, means (a) the possession, directly or indirectly, of the power to vote twenty percent (20%) or more of the stock, shares, voting trust certificates, beneficial interests, partnership interests, member interests or other interests having voting power for the election of directors of such Person or otherwise to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise, or (b) the ownership of (i) a general partnership interest, (ii) a managing member’s or manager’s interest in a limited liability company or (iii) a limited partnership interest or preferred stock (or other ownership interest) representing twenty percent (20%) or more of the outstanding limited partnership interests, preferred stock or other ownership interests of such Person.

     Debt Service Coverage: With respect to a particular period, the ratio of (a) the Net Operating Income of the Project for the most recently completed calendar quarter, annualized to (b) the Total Annual Debt Service.

5

 

 

     Deed of Trust: A deed of trust, assignment of leases and rents, security agreement and fixture filing, executed by Borrower for the benefit of Agent and the Lenders securing this Agreement, the Notes, and all obligations of Borrower in connection with the Loan, granting a first priority lien on Borrower’s fee simple interest in the Project, subject only to the Permitted Exceptions.

     Default or default: Any event, circumstance or condition, which, if it were to continue uncured, would, with notice or lapse of time or both, constitute an Event of Default hereunder.

     Default Rate: A rate per annum equal to three percentage points (300 basis points) in excess of the Adjusted Base Rate, but not at any time in excess of the highest rate permitted by law.

     Defaulting Lender: As such term is defined in Section 25.5(b).

     Deficiency Deposit: As such term is defined in Section 11.1.

     Derivatives Contract: Any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement. Not in limitation of the foregoing, the term "Derivatives Contract" includes any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement, including any such obligations or liabilities under any such master agreement.

     Derivatives Termination Value: In respect of any one or more Derivatives Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Derivatives Contracts, (a) for any date on or after the date such Derivatives Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a) the amount(s) determined as the mark-to-market value(s) for such Derivatives Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Derivatives Contracts (which may include the Agent or any Lender).

     Eligible Assignee: (i) Any Lender; (ii) any commercial bank, savings bank, savings and loan association or similar financial institution which (A) has total assets of Five Billion Dollars ($5,000,000,000) or more, (B) is "well capitalized" within the meaning of such term under the regulations promulgated under the auspices of the Federal Deposit Insurance Corporation Improvement Act of 1991, (C) in the reasonable judgment of the Agent, is engaged in the business of lending money and extending credit, and buying loans or participations in loans under credit facilities substantially similar to those extended under this Agreement, and (D) in the reasonable judgment of the Agent, is operationally and procedurally able to meet the obligations of a Lender hereunder to the same degree as a commercial bank; (iii) any insurance company in the business of writing insurance which (A) has total assets of Five Billion Dollars ($5,000,000,000) or more (B) is "best capitalized" within the meaning of such term under the applicable regulations of the National Association of Insurance Commissioners, and (C) meets the requirements set forth in subclauses (C) and (D) of clause (ii) above; and (iv) any other financial institution having total assets of Five Billion Dollars ($5,000,000,000) (including a mutual fund or other fund under management of any investment manager having under its management total assets of Five Billion Dollars ($5,000,000,000) or more) which meets the requirement set forth in subclauses (C) and (D) of clause (ii) above; provided that each Eligible Assignee must (w) be organized under the Laws of the United States of America, any state thereof or the District of Columbia, or, if a commercial bank, be organized under the Laws of the United States of America, any state thereof or the District of Columbia, the Cayman Islands or any country which is a member of the Organization for Economic Cooperation and Development, or a political subdivision of such a country, (x) act under the Loan Documents through a branch, agency or funding office located in the United States of America, (y) be exempt from withholding of tax on interest

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and deliver the documents related thereto pursuant to the Internal Revenue Code as in effect from time to time and (z) not be the Borrower or an Affiliate of the Borrower.

     Engineering Report: An engineering report prepared by licensed engineer satisfactory to Agent to the satisfaction of Agent that the existing improvements at the Project will support the new improvements contemplated by the Plans and Specifications.

     Environmental Indemnity: An environmental indemnity from the Borrower and Guarantors, jointly and severally, indemnifying Agent and the Lenders with regard to all matters related to Hazardous Material and other environmental matters.

     Environmental Proceedings: Any environmental proceedings, whether civil (including actions by private parties), criminal, or administrative proceedings, relating to the Project.

     Environmental Report: An environmental report prepared at Borrower’s expense by a qualified environmental consultant approved by Agent, dated not more than three (3) months prior to the date of this Agreement and addressed to Agent (or subject to separate letter agreement permitting Agent to rely on such environmental report).

     Equity Interests: With respect to any Person, shares of capital stock of (or other ownership or profit interests in) such Person, warrants, options or other rights for the purchase or other acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or other acquisition from such Person of such shares (or such other interests), and other ownership or profit interests in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are authorized or otherwise existing as of any date of determination.

     ERISA: The Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder from time to time.

     Event of Default: As such term is defined in Article 19.

     Extended Maturity Date: As such term is defined in Section 4.3.

     Extension Option: As such term is defined in Section 4.3.

     Extension Term: The period of time commencing on the day after the Initial Maturity Date and ending on the Extended Maturity Date.

     Federal Funds Effective Rate: Shall mean, for any day, the rate per annum (rounded upward to the nearest on one-hundredth of one percent (1/100 of 1%)) announced by the Federal Reserve Bank of Cleveland on such day as being the weighted average of the rates on overnight federal funds transactions arranged by federal funds brokers on the previous trading day, as computed and announced by such Federal Reserve Bank in substantially the same manner as such Federal Reserve Bank computes and announces the weighted average it refers to as the "Federal Funds Effective Rate."

     FIRREA: The Financial Institutions Reform, Recovery And Enforcement Act of 1989, as amended from time to time.

     General Contract: The general contract between Borrower and General Contractor, pertaining to the construction of all onsite and offsite improvements for the Project.

     General Contractor: Jones Lang LaSalle Construction, Limited Partnership.

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     Governmental Approvals: Collectively, all consents, licenses, and permits and all other authorizations or approvals required from any Governmental Authority for the Construction in accordance with the Plans and Specifications.

     Governmental Authority: Any federal, state, county or municipal government, or political subdivision thereof, any governmental or quasi governmental agency, authority, board, bureau, commission, department, instrumentality, or public body, or any court, administrative tribunal, or public utility.

     Guarantor(s): Parent Guarantor and the OP Guarantor, individually or collectively, as the context shall imply.

     Guaranty: That certain Guaranty dated of even date herewith, executed by each Guarantor in favor of Agent and Lenders, as the same may be modified, amended or ratified.

     Hazardous Material: Means and includes gasoline, petroleum, asbestos containing materials, explosives, radioactive materials or any hazardous or toxic material, substance or waste which is defined by those or similar terms or is regulated as such under any Law of any Governmental Authority having jurisdiction over the Project or any portion thereof or its use, including: (i) any "hazardous substance" defined as such in (or for purposes of) the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. § 9601(14) as may be amended from time to time, or any so called "superfund" or "superlien" Law, including the judicial interpretation thereof; (ii) any "pollutant or contaminant" as defined in 42 U.S.C.A. § 9601(33); (iii) any material now defined as "hazardous waste" pursuant to 40 C.F.R. Part 260; (iv) any petroleum, including crude oil or any fraction thereof; (v) natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel; (vi) any "hazardous chemical" as defined pursuant to 29 C.F.R. Part 1910; (vii) any other toxic substance or contaminant that is subject to any other Law or other past or present requirement of any Governmental Authority; and (viii) any Mold or Mold Condition. Any reference above to a Law, includes the same as it may be amended from time to time, including the judicial interpretation thereof.

     Improvements: The improvements more particularly described in the Plans and Specifications, and offsite improvements and together with any existing improvements not to be demolished.

     In Balance or in balance: As such term is defined in Article 11.

     Including or including: Including but not limited to.

     Indebtedness: With respect to a Person, at the time of computation thereof, all of the following (without duplication): (a) all obligations of such Person in respect of money borrowed (other than trade debt incurred in the ordinary course of business which is not more than sixty (60) days past due); (b) all obligations of such Person, whether or not for money borrowed (i) represented by notes payable, or drafts accepted, in each case representing extensions of credit, (ii) evidenced by bonds, debentures, notes or similar instruments, or (iii) constituting purchase money indebtedness, conditional sales contracts, title retention debt instruments or other similar instruments, upon which interest charges are customarily paid or that are issued or assumed as full or partial payment for property or services rendered; (c) obligation of such Person as a lessee or obligor under a Capitalized Lease; (d) all reimbursement obligations of such Person under any letters of credit or acceptances (whether or not the same have been presented for payment); (e) all Off-Balance Sheet Obligations of such Person; (f) all obligations of such Person in respect of any purchase obligation, repurchase obligation, takeout commitment or forward equity commitment, in each case evidenced by a binding agreement (excluding any suc