Exhibit 10.55
LOAN AGREEMENT
by and between
ALEXANDER’S REGO SHOPPING CENTER, INC. ,
a Delaware
corporation,
as Borrower
and
U.S. BANK NATIONAL
ASSOCIATION,
a national banking
association,
as Bank
Dated as of March 10,
2009
TABLE OF CONTENTS
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ARTICLE I
LOAN
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6
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Section 1.1 Principal
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6
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Section 1.2 Interest
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6
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Section 1.3 Prepayment
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7
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Section 1.4 Bank Losses
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8
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Section 1.5 Payments
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8
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Section 1.6 Application of Payments
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8
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ARTICLE II
CONDITIONS OF BORROWING
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8
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Section 2.1 Pre Closing Requirements
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8
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Section 2.2 Loan Documents
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9
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Section 2.3 Opinion of Borrower’s
Attorneys
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10
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Section 2.4 Evidence of Recording
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10
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Section 2.5 Satisfaction of Closing
Conditions
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10
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ARTICLE III
ADVANCES OF LOAN PROCEEDS
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10
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Section 3.1 General
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10
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Section 3.2 Inspections
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11
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
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11
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Section 4.1 Borrower’s Formation and
Powers
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11
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Section 4.2 Authority
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11
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Section 4.3 No Approvals
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11
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Section 4.4 Legal and Valid Obligations
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12
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Section 4.5 Litigation
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12
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Section 4.6 Title to Land
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12
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Section 4.7 Payment of Taxes
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12
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Section 4.8 Federal Reserve Regulations
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12
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Section 4.9 Investment Company Act
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13
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Section 4.10 Unregistered Securities
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13
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Section 4.11 Accuracy of Information
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13
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Section 4.12 Compliance
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13
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Section 4.13 Anti-Terrorism Regulations
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13
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Section 4.14 Subsidiaries
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14
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Section 4.15 Rent Roll
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14
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Section 4.16 Ownership and Control of
Borrower
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14
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ARTICLE V
COVENANTS OF BORROWER
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14
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Section 5.1 Using Loan Proceeds
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14
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Section 5.2 Keeping of Records
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15
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Section 5.3 Maintaining Insurance
Coverage
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15
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Section 5.4 Transferring, Conveying or
Encumbering the Project
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15
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Section 5.5 Reporting Requirements
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15
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Section 5.6 Maintain Existence
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16
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Section 5.7 Notice
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16
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Section 5.8 Merger and Consolidation
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16
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Section 5.9 Patriot Act
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16
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ARTICLE VI
DEFAULTS
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16
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Section 6.1 Events of Default
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16
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Section 6.2 Rights and Remedies
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17
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ARTICLE VII
INTEREST, FEES AND EXPENSES
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18
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Section 7.1 Authorization to Make Loan Advances
to Cure Borrower’s Defaults
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18
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ARTICLE VIII
DEPOSIT ACCOUNT
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19
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Section 8.1 Interest Yield
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19
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Section 8.2 Offset Against Mortgage Debt
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19
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ARTICLE IX
MISCELLANEOUS
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19
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Section 9.1 Waiver and Amendment
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19
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Section 9.2 Expenses and Indemnities
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19
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Section 9.3 Binding Effect; Waivers; Cumulative
Rights and Remedies
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21
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Section 9.4 Incorporation By Reference
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21
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Section 9.5 Survival
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22
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Section 9.6 Governing Law; Waiver of Jury Trial;
Jurisdiction
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22
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Section 9.7 Counterparts
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22
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Section 9.8 Notices
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22
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Section 9.9 No Third Party Reliance
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23
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Section 9.10 Time of the Essence
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23
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Section 9.11 No Oral Modifications
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23
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Section 9.12 Captions
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23
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Section 9.13 Borrower-Bank Relationship
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23
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EXHIBITS
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EXHIBIT A
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LEGAL DESCRIPTION AND PERMITTED
ENCUMBRANCES
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EXHIBIT B
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SCHEDULE OF MORTGAGES AND
ASSIGNMENTS
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EXHIBIT D
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ACCOUNT NUMBERS
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LOAN AGREEMENT
THIS LOAN AGREEMENT (this “
Agreement ”) is made and entered into as of March 10,
2009, by and between ALEXANDER’S REGO SHOPPING CENTER, INC.,
a Delaware corporation (the “ Borrower ”), and
U.S. BANK NATIONAL ASSOCIATION, a national banking association
(“ Bank ” or “ US Bank ”), as
lender.
Borrower has requested that the Bank
provide the Loan (as hereinafter defined) to Borrower in the
principal sum of up to $78,245,641.77 for the purpose of
re-financing existing indebtedness on the Project (as hereinafter
defined).
NOW, THEREFORE, in consideration of
the mutual covenants and agreements hereinafter set forth, the Loan
to be made by Bank pursuant to this Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as
follows:
DEFINITIONS:
For purposes of this Agreement, the
following terms shall have the following respective meanings,
unless the context hereof clearly requires otherwise:
“ Affiliate
”: Any other Person directly or indirectly controlling,
controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person
owns 10% or more of any class of voting securities (or other
ownership interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction
of the management or policies of the controlled Person, whether
through ownership of stock, by contract or otherwise.
“ Agreement
”: This Loan Agreement, including any amendments hereof and
supplements hereto executed by Borrower and the Bank.
“ Amended and Restated
Note ”: That certain Amended and Restated Promissory
Note of even date herewith in the original principal amount of the
Loan from Borrower payable to the order of Bank.
“ Anti-Terrorism
Laws ”: Any laws relating to terrorism or money
laundering, including Executive Order No. 13224, the USA Patriot
Act, the Laws comprising or implementing the Bank Secrecy Act, and
the Law administered by the United States Treasury
Department’s Office of Foreign Asset Control (as any of the
foregoing Laws may from time to time be amended, renewed, extended,
or replaced).
“ Assignment of
Leases ”: that certain Assignment of Leases and Rents
dated the date hereof from Borrower in favor of Bank with respect
to the Loan.
“ Blocked Person
”: As that term is defined in Section 4.22
below.
“ Borrower
”: Shall have the meaning assigned said term in the
introductory paragraph hereof.
“ Business Day
”: Any day other than a Saturday, a Sunday, or a legal
holiday on which Bank is not open for business.
“ Cash
Collateral ”: Shall have the meaning set forth in the
Pledge Agreement.
“ Closing Date
”: March 10, 2009.
“ Code ”:
The Internal Revenue Code of 1986, as amended.
“ Default
”: Any event which, with the giving of notice to Borrower or
the lapse of time, or both, would constitute an Event of
Default.
“ Default Rate
”: The lesser of four percent (4%) per annum in excess of the
Loan Rate or the maximum lawful rate of interest which may be
charged, if any.
“ Deposit
”: Means $78,245,641.77 cash, in readily available funds,
deposited by Borrower initially into the Noninterest-bearing
Transaction Account to serve as cash collateral for the
Loan.
“ Deposit
Account ”: Means the Noninterest-bearing Transaction
Account and/or Interest-bearing Investment Account, as the case may
be, in which Funds are on deposit from time to time.
“ Deposit Rate
”: Shall mean a floating rate per annum equal to the Federal
Funds Rate minus twenty-five (25) basis points; provided,
that in no event shall the Deposit Rate be less than zero percent
(0%).
“ Equipment
”: All furniture, fixtures, equipment and personal property
owned by Borrower and located or to be located in or on, and used
in connection with the management, maintenance or operation of, the
Land and the Improvements.
“ Event of
Default ”: An Event of Default specified in
Section 6.1 hereof.
“ Existing
Mortgage ”: That certain Amended, Restated and
Consolidated Mortgage and Security Agreement dated May 12, 1999 by
and between Mortgagor and The Chase Manhattan Bank, recorded on
June 7, 1999 in Reel 5263, Page 2302, in the Office of the City
Register of the City of New York, Queens County, and assigned to
State Street Bank and Trust Company, as Trustee for the Registered
Holders of Chase Manhattan Bank-First Union National Bank
Commercial Mortgage Trust, Commercial Mortgage Pass Though
Certificates Series, 1999-1, pursuant to an Assignment of Mortgages
dated October 10, 2000 and recorded November 22, 2000 in Reel 5727,
Page 0118 in the Office of the City Register of the City of New
York, Queens County, which consolidates a certain Building Loan
Mortgage, Assignment of Leases and Rents and Security Agreement
dated March 29, 1995, recorded on March 30, 1995 in Reel 4097, Page
746 in the Office of the City Register of the City of New York,
Queens County and a certain Project Loan Mortgage, Assignment of
Leases and Rents and Security Agreement dated March 29, 1995 and
recorded on March 30, 1995 in Reel 4097, Page 780 in the Office of
the City Register of the City of New York, Queens County to for a
single lien in the amount of $82,000,000.00, which consolidated
mortgages and assignments thereof are set forth on Exhibit
B attached hereto, securing the Existing Note, and
assigned on or about the date hereof to US Bank.
“ Existing Mortgage
Assignment ”: An assignment of the Existing Mortgage
in favor of Bank, in recordable form, duly executed by the holder
of the Existing Mortgage
“ Existing Note
”: That certain Amended, Restated and Consolidated Promissory
Note dated May 12, 1999, in the original principal amount of
$82,000,000 from Borrower originally payable to The Chase Manhattan
Bank, and assigned on or about the date hereof to US
Bank.
“ Existing Note
Allonge ”: An Allonge to the Existing Note payable to
the order of Bank, in form reasonably acceptable to Bank,
endorsing, assigning and setting over the Existing Note to
Bank.
“ Existing
Survey ”: That certain ALTA/ACSM Survey of the Land
entitled: Rego Park Borough of Queens, County of Queens, State of
New York Tax Map Section 12, Block 2084, Lot 101” prepared by
Gerald T. O’Buckley Land Surveyors, dated April 20
th , 1999.
“ Federal Funds
Rate ”: For any day, the rate per annum (expressed as
a decimal, rounded upwards, if necessary, to the next higher 1/100
of 1%) equal to the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such
day; provided (i) if such day is not a business day, the Federal
Funds Rate for such day shall be such rate on such transactions on
the next preceding business day as so published on the next
succeeding business day, and (ii) if no such rate is so published
on such next succeeding business day, the Federal Funds Rate for
such day shall be the average rate charged to Bank on such day on
such transactions as determined by Bank; provided, further that in
no event shall the Federal Funds Rate, as used herein, be less than
zero percent (0%).
“ FDIC ”:
The Federal Deposit Insurance Corporation, a body
politic.
“ Fiscal Year
”: The period of January 1 of any year through December 31 of
such calendar year.
“ Funds ”:
Shall have the meaning set forth in Section 2 of the Pledge
Agreement.
“ GAAP ”:
Generally accepted accounting principles consistently applied and
maintained throughout the period indicated and consistent with the
audited financial statements delivered to Bank pursuant to
Article V . Whenever any accounting term is used herein and
is not otherwise defined, it shall be interpreted in accordance
with GAAP.
“ Good Faith
Indemnity ”: The Good Faith Indemnity and Guaranty
Agreement of even date herewith executed by Borrower and
Indemnitor, including any amendments thereof and supplements
thereto executed by Borrower, Indemnitor and Bank.
“ Governmental
Authority ”: means any court, board, agency,
commission, office or authority of any nature whatsoever or any
governmental unit (federal, state, commonwealth, county, district,
municipal, city or otherwise) whether now or hereafter in
existence.
“ Governmental
Requirements ”: All laws, statutes, codes,
ordinances, and governmental rules, regulations and requirements of
a Governmental Authority applicable to Borrower, Bank or the
Project, including without limitation environmental laws, and the
requirements of the Americans with Disabilities Act of 1990, as
amended, and all regulations thereunder, and all covenants,
agreements, restrictions and encumbrances contained in any
instruments, either of record or known to Borrower, at any time in
force affecting the Project or any part thereof, including any
which may (i) require repairs, modifications or alterations in or
to the Project or any part thereof, or (ii) in any way limit the
use and enjoyment thereof.
“ Improvements
”: The buildings and improvements presently located on the
Land.
“ Indemnitor
”: Alexander’s, Inc., a Delaware
corporation.
“ Indemnity
”: The Indemnification Agreement of even date herewith
executed by Borrower and Indemnitor, including any amendments
thereof and supplements thereto executed by Borrower and
Bank.
“ Interest-bearing
Investment Account ”: Means a money market account at
Bank, mutually acceptable to Borrower and Bank, which shall at all
times be a balance sheet liability of Bank and not a custodial
account, and having the Account Number set forth on Exhibit
D hereto, as amended from time to time; provided that any
Interest-bearing Investment Account shall pay interest at the
Deposit Rate.
“ Land ”:
Certain property commonly known as 96-05 Queens Boulevard, Queens
Boulevard, New York, and more specifically described on Exhibit
A , attached hereto and made a part hereof by this
reference.
“ Land Records
”: The Office of the City Register of the City of New York,
Queens County.
“ Loan ”:
The loan in the maximum aggregate principal amount of
$78,245,641.77.
“ Loan Documents
”: The documents described in Section 2.2 of this
Agreement, and any other documents which evidence, secure and/or
govern the Loan, including, but not limited to, this Agreement, the
Note, the Mortgage, the Pledge Agreement, the Indemnity, the
Assignment of Leases, the Good Faith Indemnity and any amendments
thereof and supplements thereto executed by Borrower and the
parties thereto.
“ Loan Party(ies)
” : Borrower and
Indemnitor.
“ Loan Rate
”: A fixed rate per annum equal to seventy-five basis points
(.75%); provided , however , that for that portion of
the Loan which is equal to the dollar amount of the Funds which are
invested in an Interest-bearing Investment Account, from time to
time, the Loan Rate shall be a floating rate per annum equal to the
Federal Funds Rate, in effect from time to time, plus fifty (50)
basis points.
“ Material Adverse
Occurrence ”: Any occurrence of whatsoever nature
(including, without limitation, any adverse determination in any
litigation, arbitration or governmental
investigation or proceeding) which
Bank shall determine, acting as a commercially reasonable secured
lender, is likely to impair the ability of Borrower or Indemnitor
to perform its obligations as and when required under any of the
Loan Documents.
“ Maturity Date
”: March 10, 2012.
“ Mortgage
”: That certain Amended and Restated Mortgage, Security
Agreement, Fixture Filing and Assignment of Leases and Rents of
even date herewith, executed by Borrower in favor of Bank to secure
the Loan, and which amends and restates, in its entirety, the
Existing Mortgage, including any amendments or modifications
thereof and supplements thereto by Borrower and Bank.
“ Noninterest-bearing
Transaction Account ”: Shall mean the non-interest
bearing deposit account, as contemplated by 12 CFR Part 370,
maintained by US Bank and having the Account Number set forth on
Exhibit D hereto, as amended from time to time.
“ Note ”:
That certain Amended and Restated Promissory Note dated of even
date herewith, which amends and restates in its entirety the
Existing Note, of even date herewith, executed and delivered by
Borrower to Bank to evidence the Loan,
“ Organizational
Documents ”: Means, for any entity, the documents pursuant to
which such entity has been formed and by which it is governed,
including, in the case of a corporation, its articles of
organization or certificate of incorporation and its bylaws; in the
case of a partnership, its agreement of partnership and certificate
of limited partnership, if applicable; in the case of a limited
liability company, its certificate or articles of organization and
operating agreement; and in the case of a trust, its declaration of
trust.
“ Permitted
Encumbrances ”: The liens, charges and encumbrances
on title to the Land listed on Exhibit A hereto, and any
others accepted by Bank, in advance of recordation.
“ Permitted
Transfers ”: Shall mean and include: (i) such
easements, covenants and restrictions as Borrower determines to be
necessary or desirable in connection with the operation of the
Project (as to which Bank shall cooperate in entering into
reasonable subordination agreements with respect thereto at
Borrower’s request); (ii) Leases; (iii) so long as the Cash
Collateral is on deposit in the Deposit Account, transfers by
Indemnitor of equity interests in Borrower to a Person (other than
a Blocked Person), provided that Indemnitor retains a degree of
control over Borrower’s business and affairs; and (iv)
transfers of equity interests in Borrower to Affiliates of Borrower
or Indemnitor.
“ Person
”: An individual, corporation, partnership, limited liability
company, joint venture, trust or unincorporated organization, or a
government or any agency or political subdivision
thereof.
“ Pledge
Agreement ”: That certain Cash Pledge Agreement of
even date herewith from Borrower to Bank for the benefit of Bank,
including any amendments thereof and supplements thereto
“ Project
”: The Land, the Improvements and the Equipment.
“ Protective
Advance ”: All necessary costs and expenses
(including attorneys’ fees and disbursements) incurred by
Bank in order to remedy an Event of Default under the Loan
Documents, which Event of Default, by its nature, may interfere
with the enforceability or enforcement of the Loan Documents, or
otherwise materially impair the payment of the Loan (including,
without limitation, foreclosure costs, costs of collection, costs
incurred in bankruptcy proceedings and other costs incurred in
enforcing any of the Loan Documents.
“ Regulation D
”: Regulation D (or any substitute regulations) of the Board
of Governors of the Federal Reserve System (or any successor
thereto), together with all amendments from time to time
thereto.
“ Related Party
”: Any one or more of the following: (a) Indemnitor, or (b)
an Affiliate of Borrower or Indemnitor or (c) any of the partners,
members or other equity holders of Borrower, Indemnitor or any
Affiliate thereof.
“ Security
Interest ”: Any lien, pledge, mortgage, encumbrance,
charge or security interest of any kind whatsoever (including,
without limitation, the lien or retained security title of a
conditional vendor) whether arising under a security instrument or
as a matter of law, judicial process or otherwise or the agreement
by Borrower or any of its Subsidiaries to grant any lien, security
interest or pledge, mortgage or encumber any asset.
“ Subsidiary
”: Any corporation or other entity of which more than 50% of
the outstanding capital stock or interests having ordinary voting
power to elect a majority of the board of directors or the board of
governors or otherwise to control the activities of such entity
(irrespective of whether or not at the time other class or classes
of the equity of such entity shall or might have voting power upon
the occurrence of any contingency) is at the time directly or
indirectly owned by Borrower or by Indemnitor and one or more of
their respective Subsidiaries, or by one or more other
Subsidiaries.
“ TAG Program
”: The Transaction Account Guarantee Program component of the
FDIC Temporary Liquidity Guarantee Program, 12 CFR Part
370.
“ USA Patriot
Act ”: The Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Public Law 107-56, as the same has been, or
shall hereafter be, renewed, extended, amended or
replaced.
LOAN
•
Principal . Simultaneously herewith and subject to the terms
and conditions hereof, Bank has made an advance to Borrower in the
amount of $78,245,641.77 as further evidenced by the Note. The
entire principal balance of the Note shall mature and be payable at
the Maturity Date.
•
Interest . Borrower shall pay to Bank interest on the Note
computed at the Loan Rate. In the event that the interest and/or
charges in the nature of interest, if any, provided for by this
Agreement or by any other Loan Document, shall contravene a legal
or statutory limitation applicable to the Loan, if any, Borrower
shall pay only such amounts as would legally be
permitted; provided ,
however , that if the defense of usury and all similar
defenses are unavailable to Borrower, Borrower shall pay all
amounts provided for herein. If, for any reason, amounts in excess
of the amounts permitted in the foregoing sentence shall have been
paid, received, collected or applied hereunder, whether by reason
of acceleration or otherwise, then, and in that event, any such
excess amounts shall be applied to principal, unless principal has
been fully paid, in which event such excess amount shall be
refunded to Borrower.
Interest shall accrue on the Loan
from and after the date the Loan is advance by the Bank to
Borrower. Interest on the Note computed at the Loan Rate shall be
payable, as accrued, on the first day of each calendar month,
commencing on the first day of the next calendar month following
the calendar month in which the Loan is made hereunder, and all
unpaid, accrued interest shall be paid in full at the time the Loan
is paid in full. Interest computed at the Loan Rate shall be
computed on the basis of a 360 day year, but shall be charged for
the actual number of days principal is unpaid. If the Loan has not
been repaid on or before the Maturity Date or if an Event of
Default occurs pursuant to this Agreement or any other Loan
Document, then the entire unpaid balance of the Loan shall (without
notice to or demand upon Borrower) become due and payable on said
date, together with all unpaid, accrued interest thereon, and with
interest computed at the Default Rate from and after that date
until the Loan is paid in full. Interest at the Default Rate shall
be payable on the first day of each calendar month or on demand, at
Bank’s option.
In the event that Borrower fails to
make any required payment of principal or interest on the Note
(other than the balloon payment at the Maturity Date) on or before
the tenth (10th) day following the due date thereof, Borrower shall
pay to each Bank, in addition to interest at the Default Rate, a
late payment charge equal to four percent (4%) of the amount of the
overdue payment, for the purpose of reimbursing such Bank for a
portion of the expense incident to handling the overdue payment.
This late charge shall apply individually to all payments past due
and there will be no daily prorated adjustment. This provision
shall not be deemed to excuse a late payment or be deemed a waiver
of any other rights Bank may have including the right to declare
the entire unpaid principal and/or interest immediately due and
payable. Borrower agrees that the “late charge” is a
provision for liquidated damages and represents a fair and
reasonable estimate of the damages Bank will incur by reason of the
late payment considering all circumstances known to Borrower and
Bank on the date hereof. Borrower further agrees that proof of
actual damages will be difficult or impossible.
(a) From
the Closing Date to and including June 10, 2009, the unpaid
principal balance of the Note may not be prepaid.
(b) After
June 10, 2009, the unpaid principal balance of the Note and accrued
interest thereon may be prepaid in full or in part, without premium
or penalty (except as provided in Section 1.4 hereof), after
at least three (3) Business Days’ prior written notice from
Borrower to Bank of the date of prepayment, either through (i) the
payment by Borrower to Bank of immediately available federal funds
(other than the Funds) sufficient to reduce the then outstanding
principal balance of the Loan in full or in part, or (ii) so long
as no Event of Default shall have occurred and be continuing,
application of
all or a portion of the Funds then
on deposit in the Deposit Account to the then outstanding principal
balance of Loan. In the event that Borrower shall fail to provide
such three (3) Business Days’ notice when required herein,
Bank will charge, and Borrower shall pay, additional interest on
the amount prepaid, at the Loan Rate through the date three (3)
Business Days after the date of prepayment. No Bank shall be
obligated hereunder or under any of the other Loan Documents to
re-advance to Borrower any sums prepaid by Borrower, whether
prepaid voluntarily or involuntarily. In connection with any
prepayment of the Loan in full, Bank shall cooperate in assigning
the Note and Mortgage as contemplated by the defeasance clause of
the Mortgage, that being the last grammatical paragraph of the
Mortgage.
•
Bank Losses . Except for a failure caused by Bank’s
default, Borrower shall indemnify Bank and/or any of the Bank
against any loss or expense which Bank may sustain or incur as a
consequence of (a) any failure of Borrower to make any payment when
due of any amount due hereunder, (b) any prepayment of the Loan,
other than as permitted hereunder, or (c) the occurrence of any
Event of Default. Bank shall provide to Borrower a statement,
signed by an officer of Bank, explaining any such loss or expense
and setting forth, if applicable, the computation pursuant to the
preceding sentence which, in the absence of manifest error, shall
be conclusive and binding on Borrower.
•
Payments . All payments and prepayments of principal of, and
interest on, the Note and all fees, expenses and other obligations
under the Loan Documents payable to Bank shall be made, without
deduction, set off, or counterclaim, in immediately available funds
not later than 2:00 o’clock p.m., Eastern time on the dates
due, to Bank at the office specified by it from time to time,
except as otherwise specifically provided in this Agreement. Funds
received on any day after 2:00 o’clock p.m., Eastern time
shall be deemed to have been received on the next Business Day.
Whenever any payment to be made hereunder or on the Note shall be
stated to be due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of any
interest or fees. Borrower authorizes Bank to charge any of
Borrower’s accounts maintained at Bank for the amount of any
payment or prepayment on the Note or other amount owing pursuant to
any of the other Loan Documents.
•
Application of Payments . All payments received by Bank for
application to the principal, interest, fees, costs and expenses
due to Bank shall be applied in the following order: (i) first, to
any fees, costs and expenses due to Bank hereunder; (ii) second, to
any unpaid interest then due to the Bank hereunder; and (iii)
third, to the unpaid principal balance of the Note.
CONDITIONS
OF BORROWING
Bank shall not be required to make
Loan until the pre closing requirements, conditions and other
requirements set forth below have been completed and fulfilled to
the reasonable satisfaction of Bank, at Borrower’s sole cost
and expense.
•
Pre Closing Requirements . On or prior to the date of
closing of the Loan, Borrower shall provide to Bank each of the
following, in form and substance acceptable to Bank:
(a)
A
copy of the Existing Survey
(b)
The
Environmental Reports.
(c) A
certificate of liability insurance showing Bank as an Additional
Insured, together with an Additional Insured Endorsement, and a
certificate of property and casualty insurance indicating that
coverage is in place.
(d) A
copy of Borrower’s Organizational Documents, certified as
true, correct and complete by an officer of Borrower authorized to
do so, together with (i) a current certificate of good standing
from the jurisdiction in which Borrower was organized (and from the
jurisdiction in which the Land is located, if different from the
jurisdiction in which Borrower was organized), and (ii) resolutions
and/or consents of those parties necessary to authorize the
transaction contemplated hereby.
(e) A
copy of Indemnitors Organizational Documents, certified as true,
correct and complete by an officer of Borrower authorized to do so,
together with (i) a current certificate of good standing from the
jurisdiction in which Indemnitor was organized, and (ii)
resolutions and/or consents of those parties necessary to authorize
the transaction contemplated hereby.
(f) A
flood zone certification from a consultant acceptable to Bank
indicating that the Project is not located in a flood plain or any
other flood-prone area as designated by any governmental agency;
provided , however , that if the Project is so
located, Borrower shall provide proof of flood insurance to
Bank.
(g) Borrower
shall have established the Noninterest-bearing Transaction Account
and shall have made the Deposit with Bank.
(h) The
Existing Note Allonge, together with originals or certified copies
of the Existing Note.
(i) The
Existing Mortgage Assignment, together with originals or certified
copies of the Existing Mortgage.
(j) All
such other agreements, documents and/or exhibits which may be
required, in Bank’s judgment, to assure compliance with the
requirements of this Agreement.
•
Loan Documents . On or prior to the date of closing of the
Loan, Borrower shall execute and deliver (or cause to be executed
and delivered) to Bank the following documents in quantity, form
and substance acceptable to Bank and to its counsel, to evidence
and secure the Loan:
(a)
The Note.
(b) The
Mortgage.
(c) A
first security interest in all Equipment and in all of
Borrower’s intangible property relating to the Project,
created and evidenced by a security agreement (which is
incorporated within the Mortgage) and perfected by appropriate
Uniform Commercial Code financing statements.
(d)
The Assignment of Leases and
Rents.
(e) The
Indemnity executed by Borrower and Indemnitor, pertaining to
compliance with Environmental Law.
(f)
The Pledge Agreement executed by
Borrower in favor of the Bank.
(g)
The Good Faith Indemnity
(h) Such
other ancillary documents as Bank may reasonably require to
evidence and secure the Loan.
Bank may designate which of the Loan
Documents are to be filed and/or placed of record, the order of
filing and/or recording thereof, and the offices in which the same
are to be filed and/or recorded. Borrower shall pay all filing,
documentary, recording and/or registration taxes and/or fees, if
any, due upon the Loan Documents.
•
Opinion of Borrower’s Attorneys . Bank shall have
received from outside counsel for Borrower and Indemnitor a current
written opinion, in form and substance acceptable to Bank,
addressed to Bank.
•
Evidence of Recording . Bank shall have received from
outside counsel to the Borrower evidence, reasonably satisfactory
to Bank, that the Existing Mortgage has been duly recorded and that
the Existing Mortgage Assignment and the Mortgage have been
executed and delivered to the title company for recording, with all
recording fees and expenses paid, and that no exceptions title to
the Project are shown of record other than Permitted Encumbrances,
which may be in the form of a certificate of title or title bring
down Chicago Title Insurance Company or another reputable,
nationally recognized title insurer, reasonably acceptable to
Bank..
•
Satisfaction of Closing Conditions . Bank’s making of
the advance at the closing of the Loan shall constitute its
agreement that Borrower has satisfied the above requirements of
this Article II .
ADVANCES
OF LOAN PROCEEDS
•
General . The Loan will be advanced in a single advance by
Bank for the benefit of Borrower in accordance with the terms and
conditions set forth in this Article III . All monies
advanced by the Bank pursuant to this Agreement shall constitute a
loan made to Borrower under this Agreement, evidenced by the Note
and secured by the other Loan Documents, and interest shall be
computed thereon, as prescribed by this Agreement and the Note,
from the date the Loan account is charged with the amount of the
advance.
•
Inspections . Bank and its representatives shall have access
to the Project at all reasonable times and upon reasonable notice
and shall have the right to enter the Project and to conduct such
inspections thereof as they shall deem reasonably necessary or
desirable for the protection of Bank’s interests. Bank may
retain any consultants deemed necessary or desirable by Bank, at
Borrower’s expense, to make periodic inspections of the
Project and to perform such services as may, from time to time, be
required by Bank in connection with the Loan, this Agreement, the
other Loan Documents or the Project, at no cost to Borrower, unless
an Event of Default shall exist. Notwithstanding the foregoing to
the contrary, Bank’s rights under this Section 3.2
shall be subject to the rights of tenants under leases of the
Project and, in each instance, may be exercised by Bank not more
than one (1) time in any twelve (12) month period, unless an Event
of Default shall exist.
REPRESENTATIONS AND
WARRANTIES
Borrower represents, warrants and
covenants to Bank and Bank that:
•
Borrower’s Formation and Powers . Borrower is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and qualified and
authorized to do business in all jurisdictions in which the conduct
of its business and affairs requires it to be so qualified.
Borrower has all power, authority, permits, consents,
authorizations and licenses necessary to carry on its business, to
own and operate the Project and to execute, deliver and perform its
obligations under this Agreement and the other Loan Documents; all
consents necessary to authorize the execution, delivery and
performance of this Agreement and the other Loan Documents have
been duly adopted and are in full force and effect; and this
Agreement and the other Loan Documents have been duly executed and
delivered by Borrower, and constitute valid and binding obligations
of Borrower, enforceable in accordance with their respective
terms.
