PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the “
Agreement
”) is made and entered into as of the 21st day of November, 2016 (the “
Contract Date
”), by and between SUNSET TRIANGLE INVESTORS, LLC, a California limited liability company (“
Seller
”), and STRATEGIC REALTY OPERATING PARTNERSHIP, LP, a Delaware limited partnership (“
Purchaser
”).
RECITALS
Seller desires to sell the Property (as such term is hereinafter defined) to Purchaser, and Purchaser desires to purchase the Property from Seller, each upon and subject to the terms and conditions of this Agreement.
THEREFORE, in consideration of the terms and conditions contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as follows:
1.
PURCHASE AND SALE OF PROPERTY
Subject to the terms and conditions of this Agreement, Seller shall sell and convey and Purchaser shall purchase the following described property (all of which is hereinafter collectively referred to as the “
Property
”):
1.1
Land
. That certain real property commonly known as 3701-3709 Sunset Blvd. and 1601 Griffith Park Blvd. in the City of Los Angeles, County of Los Angeles, State of California, which real property is legally described on
Exhibit A
attached hereto, together with all easements, covenants, rights, privileges, tenements, hereditaments and appurtenances thereunto now or hereafter belonging or appertaining thereto (collectively, the “
Land
”).
1.2
Improvements
. All of the buildings, structures, fixtures and other improvements located on the Land (collectively, the “
Improvements
”) (the Land and Improvements, collectively, are referred to as the “
Premises
”).
1.3
Tangible Personal Property
. All furnishings, equipment and other tangible personal property located on the Premises that are owned by Seller and necessary for the operation of the Premises (the “
Tangible Personal Property
”).
1.4
Leases and Contracts
. All right, title and interest of Seller in and to the Leases and Contracts (as such terms are hereinafter defined).
1.5
Intangibles
. All right, title and interest of Seller in and to any transferable warranties or guaranties issued in connection with the Improvements or Tangible Personal Property, and any other intangible personal property to the extent owned by Seller and used exclusively in connection with the operation of the Property (collectively, the “
Intangible Personal Property
”),
including, without limitation, to the extent assignable, all land use entitlements, development rights, licenses, permits, trademarks, water rights, oil, gas and mineral rights, authorizations and names.
2.
PURCHASE PRICE
The total consideration to be paid by Purchaser to Seller for the Property is Thirteen Million Three Hundred Thousand Dollars ($13,300,000) (the “
Purchase Price
”), which shall be paid as follows:
2.1
Earnest Money
. Within one (1) business day after the Contract Date, Purchaser shall deliver to First American Title Insurance Company, 101 Mission Street, Suite 1600, San Francisco, CA 94105-1730, Attention: Kimberleigh Toci
(“
Title Company
”) cash in the sum of Two Hundred Thousand Dollars ($200,000) (the “
Initial Deposit
”). If Purchaser approves all aspects of the Property pursuant to Section 5.2.1 below, Purchaser shall deposit, concurrently with its delivery of the Approval Notice (as defined below), in escrow with the Title Company an additional sum of Three Hundred Thousand Dollars ($300,000) (the “
Additional Deposit
”) which shall be added to the Initial Deposit and together shall constitute the “
Deposit
” for purposes of this Agreement. Title Company shall invest the Deposit in an interest bearing savings account or short-term U.S. Treasury Bills or similar cash equivalent securities as Purchaser directs. Any and all interest earned on the Deposit shall be included as part of the “Deposit.” If Purchaser fails to timely deliver the Initial Deposit to Title Company, such failure shall constitute a material default by Purchaser hereunder and Seller may terminate this Agreement by delivering written notice to Purchaser. For purposes of this Agreement, “business day” shall mean any day except for Saturday, Sunday and legal holidays in the state of California.
If the Closing (hereinafter defined) contemplated by this Agreement is completed, at Closing the Deposit shall be delivered by the Title Company to Seller as payment toward the Purchase Price. Upon any termination of this Agreement by Purchaser pursuant to its terms, the Deposit will be disbursed in accordance with Section 12.20 below. If the Closing does not occur for any other reason, the Deposit shall be disbursed in accordance with the other terms of this Agreement.
2.2
Non-Refundable Payment
. A portion of the Initial Deposit in the amount of One Hundred Dollars ($100) (the “
Non-Refundable Payment
”) shall serve as independent consideration for Seller’s execution of this Agreement and agreement to sell the Property to Purchaser on and subject to the terms and conditions of this Agreement, including, without limitation, the grant to Purchaser of the right to conduct its due diligence investigations of the Property. The Non-Refundable Payment shall be fully earned and immediately released to Seller by Title Company and, notwithstanding any provisions of this Agreement to the contrary, the Non-Refundable Payment shall not be returned to Purchaser in any circumstance. The Non-Refundable Payment shall not constitute a part of the Deposit but shall be applied toward the Purchase Price upon Closing, should Closing occur. Purchaser acknowledges that Seller would not have entered into this Agreement had Purchaser not made the bargained for Non-Refundable Payment on the terms set forth in this Section 2.2.
2.3
Cash at Closing
. At Closing, Purchaser shall pay to Seller the Purchase Price by federal funds wire transferred to Title Company, subject, however, to such adjustments as are required by this Agreement and less the amount of any Deposit held by Title Company (such amount, as adjusted, being referred to as the “
Cash Balance
”).
3.
OPERATION OF PROPERTY THROUGH CLOSING
From and after the date hereof until the Closing Date:
3.1
Operations
. Seller shall manage, maintain and operate the Property in accordance with existing business practices and keep the Premises and the Tangible Personal Property in substantially the same condition and repair as on the Contract Date, ordinary wear and tear excepted, but in no event shall Seller be obligated to make any capital repairs, replacements or improvements.
3.2
Transfer
. Seller shall not sell, mortgage, pledge, hypothecate or otherwise transfer or dispose of all or any part of the Property or any interest therein. Notwithstanding the foregoing, Seller may dispose of Tangible Personal Property in the ordinary course of business (e.g., equipment that has reached the end of its useful life) so long as it is replaced with items of equivalent or better value and quality.
3.3
Leases
. Without the prior written consent of Purchaser in Purchaser’s sole discretion, Seller shall neither enter into any new lease for space at the Property, nor terminate, modify, extend, amend or renew any existing Lease, except that (i) Seller may enter into any space lease in the ordinary course of business provided such space lease terminates on or prior to the Closing Date, (ii) Seller may modify, extend, amend or renew any existing Lease that is currently scheduled (including all available extensions) to terminate prior to the Closing Date, so long as after such modification, extension, amendment or renewal, the term of such Lease (including all available extensions) still expires on or before the Closing Date, (iii) Seller may terminate (X) any space lease entered into pursuant to (i) above, or (Y) any Lease described in (ii) above. If Purchaser does not respond in writing to Seller’s written request for approval or disapproval of any such action within three (3) business days after Purchaser’s receipt of Seller’s request for such approval, Purchaser shall be conclusively deemed to have approved of such action. Seller shall include in such notice reasonably detailed information with respect to any Tenant Inducement Costs or other monetary inducements to be granted by the landlord thereunder or in connection therewith (including, without limitation, any free or discounted rent periods), and/or leasing commissions contained therein or payable based thereon. Any new lease or Lease amendment which Seller is permitted to enter into hereunder and does enter into shall be deemed a “Lease” for purposes of this Agreement.
3.4
Contracts
. Without the prior written consent of Purchaser in Purchaser’s sole discretion, Seller shall neither enter into any new, nor terminate, modify, extend, amend or renew any existing service, management, maintenance, repair, construction or other contract or agreement affecting the Property, except that (i) Seller may enter into any such contract or agreement in the ordinary course of business provided such contract or agreement terminates on or prior to the Closing Date, (ii) Seller may modify, extend, amend or renew any existing Contract that is currently
scheduled (including all available extensions) to terminate prior to the Closing Date, so long as after such modification, extension, amendment or renewal, the term of such Contract (including all available extensions) still expires on or before the Closing Date, (iii) Seller may terminate any Contract designated by Purchaser for termination pursuant to Section 3.6 below, (iv) Seller may terminate any brokerage or property management agreements affecting the Property, and (v) Seller may terminate (A) any Contract entered into pursuant to (i) above, or (B) any other Contract if the other party thereto is in default thereunder. If Purchaser does not respond in writing to Seller’s written request for approval or disapproval of any such action within three (3) business days after Purchaser’s receipt of Seller’s request for such approval, Purchaser shall be conclusively deemed to have approved of such action. Any new contract or contract amendment which Seller is permitted to enter into hereunder and does enter into shall be deemed a “Contract” for purposes of this Agreement.
3.5
General Rules
. Notwithstanding Sections 3.3 and 3.4, Seller may take any of the actions over which Purchaser otherwise would have approval rights to the extent such actions are required pursuant to the terms of a Lease, Contract or other agreement binding on Seller or the Property or applicable laws, ordinances, codes or regulations (for example, consent to a sublease or assignment in instances where such consent may not be unreasonably withheld, or a lease renewal pursuant to the exercise of an existing option right) without Purchaser’s consent; provided, however, that to the extent any of the economic terms of such mandatory agreements are discretionary and not explicit, such terms shall be subject to Purchaser’s prior written consent in Purchaser’s sole discretion.
3.6
Cancellation of Contracts
. Following the expiration of the Inspection Period,
Seller shall deliver notice of cancellation of those Contracts which are cancelable by their respective terms without payment of any penalty or premium or forfeiture of any incentives or benefits previously received thereunder, that have been designated for cancellation by Purchaser in writing prior to the expiration of the Inspection Period. Such cancellation of the Contracts so designated by Purchaser shall be effective upon the later to occur of (a) the Closing, or (b) the effective date of cancellation permitted under the terms of the respective Contract. The failure of Purchaser to designate any Contracts for cancellation shall be deemed to constitute Purchaser’s election to have no Contracts canceled by Seller.
3.7
Lease Enforcement
. Until the Closing, Seller shall have the right, but not the obligation (without limiting Seller’s obligations under Section 3.1 hereof), to enforce the rights and remedies of the landlord under any Lease, by summary proceedings or otherwise (but not including the right to remove any tenant or to terminate any Lease except as provided in Section 3.3 or 3.5 above), and to apply all or any portion of any security deposits (or other security for any Lease) then held by Seller toward any loss or damage incurred by Seller by reason of any defaults by tenants, and the exercise of any such rights or remedies shall not affect the obligations of Purchaser under this Agreement or entitle Purchaser to a reduction of the Purchase Price; provided that Seller shall promptly notify Purchaser of the taking of any such permitted action.
3.8
Insurance
. Seller shall maintain in full force and effect its existing insurance coverages or substantially similar coverages.
3.9
Notices
. From and after the Contract Date, Seller shall provide to Purchaser, promptly after the receipt thereof, copies of all written notices (as opposed to mere correspondence) relating to or affecting the Property that are received by Seller from any governmental or quasi-governmental agency, insurance company, tenant under any of the Leases or any other party to any agreement binding on Seller or the Property which will bind Purchaser upon and after the Closing.
4.
STATUS OF TITLE TO PROPERTY
4.1
State of Title
. At Closing, Seller shall convey the Property to Purchaser, subject to the matters which are, or are deemed to be, Permitted Exceptions pursuant to this Article 4 (the “
Permitted Exceptions
”).
4.2
Commitment for Title Insurance
. If not delivered to Purchaser prior to the Contract Date, then within two (2) business days after the Contract Date, Seller shall deliver to Purchaser any existing survey within Seller’s possession (the “
Existing Survey
”) and cause Title Company to issue a preliminary report (the “
Title Report
”) covering the Property, together with a copy of each recorded document referred to in the exceptions to title identified in the Title Report.
4.3
Survey
. During the Inspection Period, Purchaser may, at Purchaser’s expense, employ a reputable surveyor or surveying firm, licensed by the state in which the Property is located, to update any Existing Survey or survey the Property and prepare and deliver to Purchaser, the Title Company and Seller a new ALTA survey thereof (the “
Survey
”).
4.4
Title Objections; Cure of Title Objections
.
4.4.1.
Purchaser shall have until 5:00 p.m. (California Time) on November 28 (the “
Title Review Period
”) to notify Seller, in writing, of such objections as Purchaser may have to any exceptions contained in the Title Report or any matters disclosed by the Survey. Any item contained in the Title Report or any matter shown on the Survey to which Purchaser does not object during the Title Review Period shall be deemed a Permitted Exception. In the event Purchaser shall notify Seller of objections to title or to matters shown on the Survey prior to the expiration of the Title Review Period, Seller shall have the right, but not the obligation, to cure such objections; provided, however, that Seller shall be obligated to remove, at its cost: (i) any liens on the Property securing loans to Seller, (ii) any consensual liens or encumbrances agreed to by Seller after the Contract Date without Purchaser’s consent, (iii) any mechanic’s or materialmen’s lien filed with respect to work performed for, or materials provided to, Seller (as opposed to any tenant or other person or entity), (iv) any liens for delinquent real property taxes, or (v) any judgment liens against Seller (collectively, “
Seller Liens
”). Within two (2) business days after receipt of Purchaser’s notice of objections, Seller shall notify Purchaser in writing whether Seller elects to cure such objections, and failure of Seller to provide any notice to Purchaser within such two (2) business day period shall be deemed Seller’s election not to attempt to cure any of Purchaser’s title objections. If Seller elects, or is deemed to have elected, not to cure any objection, Purchaser shall have until the expiration of the Inspection Period either to (i) terminate this Agreement, or (ii) waive its objections and agree to purchase the Property subject to the items to which Purchaser had objected, which shall be deemed Permitted Exceptions, and failure of Purchaser to provide any notice to Seller by the end of the Inspection Period shall be deemed an election under (ii) above. Any cure that Seller
has agreed to pursuant to this Section 4.4.1 or Section 4.4.2 below shall become a condition precedent to Closing in favor of Purchaser and Seller shall use commercially reasonable efforts to cure the same by the Closing Date. If such cure is not accomplished by the Closing Date, Purchaser shall have the following options: either to (i) terminate this Agreement, or (ii) waive its objections to the items that Seller did not cure and agree to purchase the Property subject to those items, which shall be deemed Permitted Exceptions.
4.4.2.
If after the delivery of the Title Report the Title Company delivers an updated Title Report setting forth new exceptions which were not included in the Title Report or disclosed in the Survey (the “
Supplemental Report
”), Purchaser shall have two (2) business days within which to deliver to Seller written notice of its approval or disapproval of such new title exceptions (the “
Supplemental Report Notice
”); provided, however, that Purchaser shall only have the right to disapprove such new title exceptions if they materially and adversely affect the Property. If Purchaser fails to deliver a Supplemental Report Notice within the two (2) business day period, such new title exceptions or matters shall be deemed to be approved by Purchaser and shall constitute Permitted Exceptions. If Purchaser does deliver a Supplemental Report Notice disapproving of any of such new title exceptions, Seller shall have two (2) business days after receipt of the Supplemental Report Notice to notify Purchaser of Seller’s election either (i) to cure such disapproved items prior to the Closing, or (ii) not to cure all or any of such disapproved items. Seller’s failure to deliver such notice within such two (2) business day period shall be deemed Seller’s election not to cure any of such disapproved items, provided, however, that Seller shall be required to cure Seller Liens. If Seller does not agree (or is deemed not to have agreed) to cure all of such disapproved items, Purchaser shall have the right, within two (2) business days, to either (A) terminate this Agreement by giving notice in writing to Seller, or (B) proceed to Closing in accordance with the terms hereof in which event such new exceptions shall be Permitted Exceptions, and failure of Purchaser to provide any notice to Seller within such two (2) business day period shall be deemed an election under (B) above. Either party may extend the Closing Date by up to ten (10) days as necessary to accommodate the process set forth in this Section 4.4.2.
4.5
Title Policy
. Evidence of Title shall be the issuance by the Title Company at Closing of its standard CLTA Owner’s Policy of Title Insurance covering the Property, in the full amount of the Purchase Price, subject only to the Permitted Exceptions (the “
Title Policy
”). Notwithstanding anything contained herein to the contrary, the Property shall be conveyed subject to the following matters, which shall be deemed to be Permitted Exceptions:
(a)
the Title Company’s standard printed exceptions or exclusions from coverage for the type of policy to be issued by the Title Company;
(b)
the Leases and any new Leases entered into between the Contract Date and the Closing Date in accordance with the terms of this Agreement;
(c)
the lien of all ad valorem real estate taxes and assessments not yet due and payable as of the Closing Date, such taxes and assessments being subject to proration as herein provided;
(d)
local, state and federal laws, ordinances or governmental regulations, including but not limited to, building and zoning laws, ordinances and regulations, now or hereafter in effect relating to the Property; and
(e)
all matters directly or indirectly caused by or arising through Purchaser.
5.
DUE DILIGENCE
5.1
Information.
5.1.1.
Provided Information
. Seller has heretofore furnished Purchaser with the documents and information set forth in
Exhibit L
, other than those items on
Exhibit L
marked as “PENDING,” which Seller shall use commercially reasonable efforts to deliver to Purchaser promptly following the Contract Date (collectively, together with any other documents hereinafter delivered or made available to Purchaser, the “
Documents
”). Purchaser acknowledges that many of the Documents were prepared by third parties other than Seller, and in some instances, may have been prepared prior to Seller’s ownership of the Property. Purchaser further acknowledges and agrees that, except as expressly set forth in Section 8.1, neither Seller nor any of Seller’s agents, employees, advisors, consultants or contractors has made any warranty or representation, or undertaken any independent investigation, regarding the truth, accuracy or completeness of any of the Documents or the source(s) thereof. Purchaser acknowledges that it has received a Natural Hazards Disclosure Report with respect to the Land in compliance with disclosure requirements under California law.
5.1.2.
Excluded Documents
. Notwithstanding anything in this Section 5.1 or Section 5.2 to the contrary, Seller shall have no obligation to make available to Purchaser, and Purchaser shall have no right to inspect or make copies of, any of the Excluded Documents. As used herein, “
Excluded Documents
” shall mean any documents involving Seller’s financing or refinancing of the Property, any purchase and escrow agreements, due diligence materials and correspondence pertaining to Seller’s acquisition of the Property, any documents pertaining to the potential acquisition of the Property by any past or prospective purchasers, any documents, projections or other information pertaining to leasing of the Property (other than the Leases and the lease files relating to the Leases), any third party purchase inquiries and correspondence, appraisals or economic evaluations of the Property, Seller’s organizational documents and records, any internal budgets, financial projections or reports prepared by Seller or its advisors, managers, attorneys, accountants or consultants, exclusively for Seller or any of its constituent partners or members and any other internal documents, and any documents or materials which are subject to the attorney/client privilege or which are the subject of a confidentiality obligation.
5.1.3.
No Disclosure
. Purchaser acknowledges and agrees that the Documents are proprietary and confidential in nature and have been or will be made available to Purchaser solely to assist Purchaser in determining the feasibility of purchasing the Property. Purchaser agrees not to disclose the Documents or any of the provisions, terms or conditions of the Documents, or any analyses, compilations, studies or other documents or records prepared by or on behalf of Purchaser from the Documents or otherwise with respect to the Property, or any other
reports of Purchaser (collectively, the “
Proprietary Information
”; the Proprietary Information excludes, and this Section 5.1.3 does not apply to, information that is publicly available other than due to Purchaser’s acts or omissions), to any party outside of Purchaser’s organization except (a) as necessary to Purchaser’s attorneys, accountants, lenders,
prospective lenders,
investors and/or prospective investors, and consultants or contractors engaged to investigate, inspect or analyze the Property (collectively, the “
Permitted Outside Parties
”), (b) to Title Company, or (c) as may be required by law or court order. Purchaser further agrees to notify all Permitted Outside Parties that the Proprietary Information is to be kept confidential and not disclosed to third parties. Without limiting the foregoing, Purchaser agrees not to use any of the Proprietary Information for any purpose other than to determine whether to proceed with the contemplated purchase or, if the Closing occurs, for the operation and ownership of the Property following the Closing. In permitting Purchaser and the Permitted Outside Parties to review the Documents to assist Purchaser, Seller has not waived any privilege or claim of confidentiality with respect thereto, and no third party benefits or relationships of any kind, either expressed or implied, have been offered, intended or created by Seller and any such claims are expressly rejected by Seller and waived by Purchaser.
5.1.4.
Return of Documents
. At such time as this Agreement is terminated for any reason, Purchaser shall return to Seller all of the Documents delivered to Purchaser by or on behalf of Seller, and Purchaser shall destroy, and instruct all Permitted Outside Parties in writing to destroy, any and all copies Purchaser or the Permitted Outside Parties have made of the Documents.
5.1.5.
Access to Records
. For a period of three (3) years subsequent to the Closing, Seller and Seller’s agents, employees, accountants and representatives shall have the right, at no cost or expense to Purchaser and upon reasonable prior notice and during business hours, to (a) access for tax and audit purposes, regulatory compliance, management of unresolved operational or legal issues that arose prior to the Closing, and cooperation with governmental investigations or legal proceedings to all instruments, documents, books and records delivered by Seller to Purchaser at or in connection with the Closing, and (b) make copies of such instruments, documents, books and records.
5.2
Inspection
.
5.2.1.
Inspection Period
. Purchaser shall have from the date hereof until 5:00 p.m. (California Time) on December 5, 2016 (the “
Inspection Period
”) within which to evaluate the Property. During the Inspection Period: (a) Purchaser and its agents, engineers, surveyors, appraisers, auditors and other representatives shall have the right to enter upon the Property to inspect, examine, survey, obtain engineering inspections, test, appraise, and otherwise do that which, in the opinion of Purchaser, is necessary to determine the suitability of the Property for the uses intended by Purchaser; and (b) Purchaser may conduct interviews with the tenants (such interviews to be considered an “inspection” under Section 5.2.2). If Purchaser, in its sole discretion, desires to proceed with its acquisition of the Property, Purchaser shall deliver written notice to Seller (the “
Approval Notice
”), prior to the expiration of the Inspection Period, stating that it approves the Property, in which case the parties shall proceed to complete the Closing, subject to the terms and conditions of this Agreement. If Purchaser fails to deliver the Approval Notice and the Additional Deposit prior to the expiration of the Inspection Period or if such Approval Notice seeks to modify
any of the terms or provisions of this Agreement or conditionally approve the Property, Purchaser will be deemed to have disapproved the Property and this Agreement shall terminate.
5.2.2.
Conduct of Inspection
. Notwithstanding anything to the contrary contained herein: (a) Purchaser’s right of inspection pursuant to this Section 5.2 shall be subject to the rights of tenants under the Leases and other occupants and users of the Property; (b) no inspection shall be undertaken without reasonable prior notice to Seller of not less than forty-eight (48) hours; (c) Seller shall have the right to be present at any or all inspections; (d) all tenant interviews shall be scheduled and coordinated by and through Seller, and neither Purchaser nor its agents or representatives shall contact any tenants without the prior consent of Seller; (e) no entry, inspection or investigation of the Property shall (i) involve the taking of samples or other physically invasive procedures without the prior written consent of Seller, which consent may be withheld in Seller’s sole and absolute discretion; (ii) interfere with the operation, use and maintenance of the Property; (iii) involve the taking of any of Seller’s books and records or other documents located at the Property; or (iv) damage any part of the Property or any personal property owned or held by Seller, any tenant or any third party; (f) Purchaser shall promptly pay when due the costs of all tests, investigations, studies and examinations done with regard to the Property by or on behalf of Purchaser; (g) Purchaser shall not permit any liens to attach to the Property by reason of Purchaser’s inspection activities; and (h) Purchaser shall, at its sole cost, fully repair any damage caused by its inspections, tests or studies at the Property and restore the Property to its condition before any of Purchaser’s inspections, tests or studies. Purchaser shall take commercially reasonable steps to ensure that its repairs do not interfere with any tenants’ or Seller’s operations at the Property.
5.2.3.
Insurance
. The persons or entities performing Purchaser’s inspections shall be properly licensed and qualified and shall have obtained all appropriate permits for performing relevant tests on the Property and shall have delivered to Seller, prior to entering or performing any tests on the Property, evidence of proper and adequate insurance reasonably satisfactory to Seller, with at least Two Million Dollars ($2,000,000.00) combined, single-limit, commercial general liability coverage, and naming Seller as an additional insured.
5.2.4.
Indemnity
. Purchaser shall indemnify, protect, defend and hold harmless Seller and its employees and agents, and each of them, from and against any and all losses, claims, actions, injuries, damages and liabilities (including, without limitation, attorneys’ fees incurred in connection therewith) to the extent arising out of or resulting from Purchaser’s inspection of or entry on the Property as provided for in this Section 5.2; provided, however, that Purchaser shall not be liable for any damages solely as a result of Purchaser’s mere discovery of any pre-existing conditions affecting the Property.
5.3
As-is
. Purchaser acknowledges that it has inspected or will inspect the Property and that it accepts same in its “AS IS” condition subject to use, ordinary wear and tear and natural deterioration and Seller’s express representations herein and in the other Closing documents. Purchaser further acknowledges that, except as expressly provided in this Agreement or in any Closing document Seller executes and delivers at Closing, neither Seller nor any agent or representative of Seller has made, and Seller is not liable for or bound in any manner by, any express or implied warranties, guaranties, promises, statements, inducements, representations or
information pertaining to the Property. Terms appearing below in all capitals that have been defined elsewhere in this Agreement shall have the meanings set forth in such definitions.
ACKNOWLEDGING THE PRIOR USE OF THE PROPERTY AND PURCHASER’S OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER AGREES TO TAKE THE PROPERTY “AS IS” WITH ALL FAULTS AND CONDITIONS THEREON, SUBJECT TO SELLER’S EXPRESS REPRESENTATIONS AND WARRANTIES HEREIN AND IN THE CLOSING DOCUMENTS (AS DEFINED BELOW). ANY INFORMATION, REPORTS, STATEMENTS, DOCUMENTS OR RECORDS (“
DISCLOSURES
”) PROVIDED OR MADE TO PURCHASER OR ITS CONSTITUENTS BY SELLER, ITS AGENTS, REPRESENTATIVES OR EMPLOYEES CONCERNING THE PROPERTY SHALL NOT CONSTITUTE REPRESENTATIONS OR WARRANTIES. PURCHASER SHALL NOT RELY ON SUCH DISCLOSURES, BUT RATHER, PURCHASER SHALL RELY ONLY ON ITS OWN INSPECTION OF THE PROPERTY. ACCORDINGLY, PURCHASER’S ELECTION TO DELIVER THE APPROVAL NOTICE PURSUANT TO THE PROVISIONS OF SECTION 5.2 (INSPECTION) ABOVE SHALL CONSTITUTE PURCHASER’S ACKNOWLEDGMENT AND AGREEMENT TO THE FOLLOWING: (i) PURCHASER HAS REVIEWED, EVALUATED AND VERIFIED THE DOCUMENTS AND HAS CONDUCTED ALL INSPECTIONS, INVESTIGATIONS, TESTS, ANALYSES, APPRAISALS AND EVALUATIONS OF THE PROPERTY (INCLUDING FOR TOXIC OR HAZARDOUS MATERIALS, SUBSTANCES OR WASTES (DEFINED AND REGULATED AS SUCH PURSUANT TO SECTIONS 25316 AND 25501 OF THE CALIFORNIA HEALTH & SAFETY CODE, THE RESOURCE CONSERVATION AND RECOVERY ACT, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OR ANY SIMILAR LAWS AND ALL REGULATIONS ISSUED THEREUNDER)) AS IT CONSIDERS NECESSARY OR APPROPRIATE TO SATISFY ITSELF FULLY WITH RESPECT TO THE CONDITION AND ACCEPTABILITY OF THE PROPERTY (ALL OF SUCH INSPECTIONS, INVESTIGATIONS AND REPORTS BEING HEREIN COLLECTIVELY CALLED THE “
INVESTIGATIONS
”); (ii) SELLER HAS PERMITTED PURCHASER ACCESS TO THE PROPERTY AND MADE AVAILABLE TO PURCHASER ALL OF THE DOCUMENTS, OTHER THAN THE EXCLUDED DOCUMENTS, SUFFICIENT FOR PURCHASER TO COMPLETE THE INVESTIGATIONS AND MAKE AN INFORMED DECISION TO PROCEED WITH THE PURCHASE OF THE PROPERTY PURSUANT TO THE TERMS OF THIS AGREEMENT; AND (iii) PURCHASER HAS COMPLETED ITS DUE DILIGENCE WITH RESPECT TO THE PROPERTY AND THE DOCUMENTS TO ITS SATISFACTION, IS THOROUGHLY FAMILIAR WITH THE PHYSICAL CONDITION OF THE PROPERTY, AND IS ACQUIRING THE PROPERTY BASED EXCLUSIVELY UPON ITS OWN INVESTIGATIONS AND INSPECTIONS OF THE PROPERTY AND THE DOCUMENTS, AND SELLER’S EXPRESS REPRESENTATIONS AND WARRANTIES HEREIN AND IN THE CLOSING DOCUMENTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PURCHASER SHALL FURTHER BE DEEMED TO HAVE ACKNOWLEDGED AND AGREED THAT (A) SELLER, BY MAKING AVAILABLE THE DOCUMENTS AND PERMITTING PURCHASER TO PERFORM THE INVESTIGATIONS, HAS FULLY COMPLIED WITH ALL DISCLOSURE REQUIREMENTS UNDER LOCAL, STATE AND FEDERAL LAWS, INCLUDING THE REQUIREMENTS OF SECTIONS 25359.7 AND 25915, ET SEQ., OF THE CALIFORNIA HEALTH & SAFETY CODE
(COLLECTIVELY, THE “
DISCLOSURE LAWS
”), AND (B) PURCHASER’S RIGHTS AND REMEDIES WITH RESPECT TO THE PROPERTY SHALL BE LIMITED TO THE RIGHTS AND REMEDIES (INCLUDING ALL CONDITIONS AND LIMITATIONS PLACED THEREON) EXPRESSLY SET FORTH IN THIS AGREEMENT, AND PURCHASER HEREBY WAIVES ALL RIGHTS AND REMEDIES THAT MIGHT OTHERWISE BE AVAILABLE TO PURCHASER UNDER THE DISCLOSURE LAWS.
FURTHER, PURCHASER’S DELIVERY OF THE APPROVAL NOTICE PURSUANT TO THE PROVISIONS OF SECTION 5.2 (INSPECTION) ABOVE SHALL CONSTITUTE PURCHASER’S ACKNOWLEDGMENT AND AGREEMENT TO THE PROVISIONS OF THIS SECTION 5.3 AND THAT, REGARDLESS OF THE CONTENT OF ANY OF THE DOCUMENTS, DISCLOSURES OR ANY STATEMENTS THAT SELLER, ITS AGENTS, EMPLOYEES, OFFICERS, CONTRACTORS, PARTNERS OR MEMBERS MAY HAVE MADE TO PURCHASER, ITS AGENTS, EMPLOYEES, OFFICERS, CONTRACTORS, PARTNERS OR MEMBERS, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1 HEREOF OR IN ANY CLOSING DOCUMENTS SELLER EXECUTES AND DELIVERS AT CLOSING, SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO: (1) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY; (2) THE INCOME TO BE DERIVED FROM THE PROPERTY; (3) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON; (4) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY; (5) THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY; OR (6) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND PURCHASER SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING TERMITES OR WASTES, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., OR ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980 (“
CERCLA
”), AS AMENDED, AND REGULATIONS PROMULGATED THEREUNDER. PURCHASER, ON BEHALF OF ITSELF AND ITS SUCCESSORS AND ASSIGNS, HEREBY WAIVES, RELEASES AND AGREES NOT TO MAKE ANY CLAIM OR BRING ANY COST RECOVERY ACTION OR CLAIM FOR CONTRIBUTION OR OTHER ACTION OR CLAIM AGAINST SELLER OR ITS RELATED ENTITIES, AND ITS AND THEIR MEMBERS, MANAGERS, PARTNERS, DIRECTORS, OFFICERS, SHAREHOLDERS, TRUSTEES, BENEFICIARIES, AGENTS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS, HEIRS AND ASSIGNS (COLLECTIVELY, “
SELLER AND ITS AFFILIATES
”) BASED ON (x) ANY FEDERAL, STATE, OR LOCAL ENVIRONMENTAL OR HEALTH AND SAFETY LAW OR REGULATION, INCLUDING CERCLA OR ANY STATE EQUIVALENT, OR ANY SIMILAR LAW NOW EXISTING OR HEREAFTER ENACTED; (y) ANY DISCHARGE, DISPOSAL, RELEASE, OR ESCAPE OF ANY CHEMICAL, OR ANY
MATERIAL WHATSOEVER, ON, AT, TO, OR FROM THE PROPERTY; OR (z) ANY ENVIRONMENTAL CONDITIONS WHATSOEVER ON, IN, UNDER, OR IN THE VICINITY OF THE PROPERTY. EXCEPT WITH RESPECT TO ANY CLAIMS ARISING OUT OF ANY BREACH OF COVENANTS, REPRESENTATIONS OR WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT OR THE DOCUMENTS EXECUTED AND DELIVERED BY SELLER AT CLOSING IN CONNECTION WITH THIS AGREEMENT (THE “
CLOSING DOCUMENTS
”), PURCHASER, ON BEHALF OF ITSELF AND ITS PARTNERS, MEMBERS, MANAGERS, DIRECTORS, OFFICERS, SHAREHOLDERS, TRUSTEES, BENEFICIARIES, AGENTS, EMPLOYEES, REPRESENTATIVES, SUCCESSORS, HEIRS AND ASSIGNS HEREBY RELEASES, SELLER AND ITS AFFILIATES, FROM ANY AND ALL CLAIMS OF ANY KIND WHATSOEVER, KNOWN OR UNKNOWN, WITH RESPECT TO ANY ASPECT OF THE PROPERTY, INCLUDING THE FOREGOING MATTERS, AND SPECIFICALLY WAIVES WITH RESPECT TO ALL SUCH MATTERS THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, AND ANY COMPARABLE LAW APPLICABLE IN THE STATE WHERE THE PROPERTY IS LOCATED, REGARDING THE MATTERS COVERED BY A GENERAL RELEASE, WHICH PROVIDES AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS SECTION 5.3, THE FOREGOING RELEASE IS NOT INTENDED TO AND DOES NOT COVER (I) ANY CLAIMS ARISING FROM THE FRAUD OF SELLER, OR (II) ANY OTHER BREACH BY SELLER OF AN EXPRESS OBLIGATION OF SELLER UNDER THIS AGREEMENT WHICH BY ITS TERMS SURVIVES THE CLOSING.
PURCHASER AND SELLER REPRESENT AND ACKNOWLEDGE THAT THIS SECTION 5.3 WAS EXPLICITLY NEGOTIATED AND BARGAINED FOR AS A MATERIAL PART OF PURCHASER’S CONSIDERATION BEING PAID.
5.4
Survival
. The provisions of this Section 5 shall survive the Closing or termination of this Agreement for any cause.
6.
CLOSING
6.1
Closing Date
. The “
Closing
” of the transaction contemplated by this Agreement (that is, the payment of the Purchase Price, the transfer of title to the Property, and the satisfaction of all other terms and conditions of this Agreement, unless waived by the party to whose benefit any condition runs) shall occur at the offices of the Title Company (or at such other location as the parties may agree) on January 11, 2017 (the “
Closing Date
”), or at such other time and place as Seller and Purchaser shall agree in writing. If the date of Closing above provided for falls on a Saturday, Sunday or legal holiday, the Closing Date shall be the next business day.
6.2
Closing Documents
.
6.2.1.
Seller
. Seller shall deliver into escrow at least one (1) business day prior to the Closing Date, each of the following (duly executed by Seller, if applicable, and acknowledged, if applicable):
6.2.1.1.
a grant deed in the form of
Exhibit C
attached hereto, subject only to the Permitted Exceptions;
6.2.1.2.
a bill of sale in the form of
Exhibit D
attached hereto;
6.2.1.3.
any and all affidavits, undertakings, certificates or other documents customarily required by the Title Company in order to cause it to issue the Title Policy, subject to the reasonable approval of Seller and its counsel;
6.2.1.4.
two counterparts of an Assignment and Assumption of Leases and Security Deposits, in the form of
Exhibit F
attached hereto, with respect to the Leases (the “
Assignment of Leases
”);
6.2.1.5.
two counterparts of an Assignment and Assumption of Contracts in the form of
Exhibit G
attached hereto, with respect to the Contracts being assigned to Purchaser (the “
Assignment of Contracts
”);
6.2.1.6.
an Assignment of Intangibles, in the form of
Exhibit H
attached hereto, with respect to the Intangible Personal Property;
6.2.1.7.
all of the original Leases and Contracts (or if unavailable, true and complete copies thereof), and any physical evidence of the Intangible Personal Property in Seller’s possession or control;
6.2.1.8.
all original Tenant Estoppels and the SNDA (each as defined in Section 9.1.4) received by Seller pursuant to Section 9.1.4;
6.2.1.9.
Seller’s affidavit stating, under penalty of perjury, Seller’s U.S. taxpayer identification number and that Seller is not a foreign person within the meaning of Section 1445 of the Internal Revenue Code (and any similar affidavit that may be required under state law);
6.2.1.10.
assignments of all non-cash security deposits under the Leases;
6.2.1.11.
an owner’s affidavit in favor of Title Company in the form attached hereto as
Exhibit M
, and if Seller and Purchaser agree to close the sale contemplated hereunder on a “gap” as provided more particularly in Section 6.3.4.1 below, a “gap” indemnity in customary form;
6.2.1.12.
all other documents reasonably and customarily required in order to complete the conveyance, transfer and assignment of the Property to Purchaser pursuant to the terms of this Agreement (including, without limitation, any transfer tax declarations, change of ownership forms or other similar instruments as may be required by law), provided that such documents are consistent with the terms of this Agreement, and do not increase Seller’s obligations hereunder or subject Seller to additional liability not otherwise contemplated by this Agreement;
6.2.1.13.
the most recent rent roll for the Property and trial balance prepared by or for Seller in the ordinary course of its business; and
6.2.1.14.
all keys in Seller’s possession for entrance doors at the Property.
6.2.2.
Purchaser
. Purchaser shall deliver into escrow at least one (1) business day prior to the Closing Date (except the Cash Balance in clause 6.2.2.1 below, which shall be delivered on or before 10 a.m. California time on the Closing Date), each of the following (duly executed by Purchaser, if applicable):
6.2.2.1.
the Cash Balance;
6.2.2.2.
two counterparts of the Assignment of Leases;
6.2.2.3.
two counterparts of the Assignment of Contracts;
6.2.2.4.
any and all affidavits, undertakings, certificates or other documents customarily required by the Title Company from a purchaser of commercial real property, in order to cause it to issue the Title Policy, subject to the reasonable approval of Purchaser and its counsel; and
6.2.2.5.
all other documents reasonably and customarily required in order to complete the conveyance, transfer and assignment of the Property to Purchaser pursuant to the terms of this Agreement (including, without limitation, any transfer tax declarations, change of ownership forms or other similar instruments as may be required by law), provided that such documents are consistent with the terms of this Agreement, and do not increase Purchaser’s obligations hereunder or subject Purchaser to additional liability not otherwise contemplated by this Agreement.
6.2.3.
Seller shall, on the Closing Date, send a letter to each of the tenants under the Leases by certified mail, in the form of
Exhibit E
attached hereto (and a letter to vendors under Contracts still in force and effect at the Closing), and provide copies of such letters to Purchaser.
6.3
Credits and Prorations
.
6.3.1.
Prorations
. The following shall be apportioned with respect to the Property, based on the number of days Seller and Purchaser each own the Property in the month in which the Closing occurs, as of 12:01 a.m. on the Closing Date, as if Purchaser were vested with title to the Property during the entire day on the Closing Date:
6.3.1.1.
all collected rents and other sums received under the Leases, including prepaid rents (“
Rents
”);
6.3.1.2.
taxes and assessments (including personal property taxes on the Tangible Personal Property and rent taxes) levied against the Property;
6.3.1.3.
pre-payments and accrued amounts due under any Contracts relating to the Property;
6.3.1.4.
gas, electricity, water and other utility charges for which Seller is liable, if any; such charges to be apportioned at Closing on the basis of the most recent meter reading occurring prior to Closing (which Seller shall use reasonable efforts to cause to be read not more than two (2) business days prior to Closing) or, if unmetered, on the basis of a current bill for each such utility; and
6.3.1.5.
all other expenses pertaining to the Property (other than insurance premiums which shall not be prorated).
6.3.2.
Method of Prorations
. Notwithstanding anything contained in the foregoing provisions:
6.3.2.1.
At Closing, (A) Seller shall credit to the account of Purchaser the amount of all cash security deposits (together with interest required to be paid thereon) held by Seller under Leases and not previously applied in accordance with the terms of the Leases; and (B) Purchaser shall credit to the account of Seller all refundable cash or other deposits posted with utility companies serving the Property which are duly assigned to Purchaser at Closing and Seller shall be entitled to recover from the utility companies any such deposits that are not so credited.
6.3.2.2.
Purchaser and Seller agree to prorate real estate taxes and assessments for the period for which such taxes are assessed, regardless of when payable. Any taxes paid at or prior to Closing shall be prorated based upon the amounts actually paid. If taxes and assessments for the fiscal year in which Closing occurs have been determined but have not been paid before Closing, Purchaser shall be credited at Closing with an amount equal to that portion of such taxes and assessments which relates to the period before the Closing Date and Purchaser shall pay the taxes and assessments prior to their becoming delinquent. If the actual taxes and assessments are not known at Closing, the proration shall be based upon the most recent assessed values and tax rates. To the extent that the actual taxes and assessments paid differ from the amount apportioned at Closing, the parties shall make all necessary adjustments by appropriate payments between themselves within 30 days of the issuance of final tax bills.
6.3.2.3.
With respect to Tenant Inducement Costs and leasing commissions relating to Leases, or any modification, amendment, restatement or renewal thereto, entered into after the Contract Date in accordance with Section 3.3 or 3.5 (referred to as a “
New Lease
”), Seller and Purchaser agree that such costs and commissions shall be prorated over the term of any New Lease with Seller being responsible for a portion of such costs and commissions
based on the ratio of base rent payments received by Seller through the Closing Date to the total base rent payable over the term of the particular New Lease. If, as of the Closing Date, Seller has paid any Tenant Inducement Costs or leasing commissions for which Purchaser is responsible pursuant to the forgoing provisions, Purchaser shall reimburse Seller therefor at Closing. If, as of the Closing Date, Seller shall not have paid any Tenant Inducement Costs or leasing commissions for which Seller is responsible, Purchaser shall receive a credit at Closing in such amounts. For purposes hereof, the term “
Tenant Inducement Costs
” shall mean any payments required under a Lease to be paid by the landlord thereunder to or for the benefit of the tenant thereunder which is in the nature of a tenant inducement, including specifically, tenant improvement costs, lease buyout costs, moving, design and refurbishment allowances. The term “Tenant Inducement Costs” shall not include legal fees or loss of income resulting from any free rental period; it being agreed that Seller shall bear the loss resulting from any free rental period until the date of Closing and that Purchaser shall bear such loss from and after the Closing Date.
6.3.2.4.
Within fifteen (15) days after receipt of Rent by Seller or Purchaser after the Closing Date, the recipient shall deliver to the other party any portion of such Rent to which the other party is entitled (based on the understanding that all Rent received by Seller or Purchaser shall be applied first to then current Rents, and then to delinquent rents, in inverse order of maturity [i.e., any delinquent Rents relating to Purchaser’s period of ownership are to be paid first]). At Closing, Seller shall deliver to Purchaser a schedule of all past due but uncollected Rent and other sums owed by tenants, and Purchaser shall include the amount of such Rent and other sums in the first bills thereafter submitted to the tenants in question after the Closing, and shall continue to do so for six (6) months thereafter. Seller shall not have the right to pursue tenants for payment of delinquent Rent from and after Closing.
6.3.2.5.
Reconciliations
.
(i)
Additional Rents; Payment of 2016 Expenses by Tenants; True Up
. To the extent that Seller has actually collected any portion of Expenses (defined below) from tenants under the Leases as Additional Rents (defined below) for calendar year 2016, Seller may retain all such Additional Rents, subject to the reconciliation described below. Within 60 days after Closing, Seller shall prepare and deliver to Purchaser for review and approval, which approval shall not be unreasonably withheld, a 2016 year end Expense statement for tenants (once approved by Purchaser as provided below, the "
2016 Reconciliation
"). The 2016 Reconciliation shall be subject to Purchaser’s approval and Seller and Purchaser shall use commercially reasonable efforts to resolve any disagreements as to it reasonably promptly after Purchaser’s receipt of Seller’s proposed 2016 Reconciliation. If, based on the 2016 Reconciliation, Seller under-collected Expenses from tenants for calendar year 2016, Purchaser shall include the amount of such under-payment on the rent bills first submitted to the tenants in question after the Closing, and shall continue to do so for six (6) months thereafter (and any such amounts so collected shall be paid to Seller). Seller shall not have the right to pursue tenants for payment of such amounts from and after Closing. If the 2016 Reconciliation evidences that Seller has over-collected Additional Rents from tenants for calendar year 2016, Seller shall promptly pay such over-collected amounts to Purchaser and Purchaser shall thereafter be responsible for making reimbursement to the tenants or applying the same to post-closing Expenses in accordance with the Leases.
(ii)
Additional Rents; Payment of 2017 Expenses by Tenants; True Up
. To the extent that Seller has actually collected any portion of Expenses from tenants under the Leases as Additional Rents for calendar year 2017, Seller may retain all such Additional Rents, as determined by the 2017 Stub Reconciliation (defined below). Within 60 days after Closing, Seller shall prepare and deliver to Purchaser for Purchaser’s review and approval a reconciliation Expense statement for the period from and after January 1, 2017, to but not including the Closing Date (once approved by Purchaser as provided below, the "
2017 Stub Reconciliation
"). The 2017 Stub Reconciliation shall be subject to Purchaser’s approval, which such approval shall not be unreasonably withheld, and Seller and Purchaser shall use commercially reasonable efforts to resolve any disagreements as to it reasonably promptly after Purchaser’s receipt of Seller’s proposed 2017 Stub Reconciliation. If, based on the 2017 Stub Reconciliation, Seller under-collected Expenses from tenants attributable to the portion of calendar year 2017 for which Seller owned the Property, Purchaser shall include the amount of such under-payment on the rent bills first submitted to the tenants in question after the Closing, and shall continue to do so for six (6) months thereafter (and any such amounts so collected attributable to the portion of calendar year 2017 for which Seller owned the Property shall be paid to Seller). Seller shall not have the right to pursue tenants for payment of such from and after Closing. If the 2017 Stub Reconciliation evidences that Seller has over-collected Additional Rent from tenants under Leases for such period, Seller shall promptly pay such over-collected amounts to Purchaser, and Purchaser shall thereafter be responsible for making reimbursements to the applicable tenants or applying the same to post-closing Expenses in accordance with the applicable Leases.
(iii)
As used in this Section 6.3.2.5, the term “
Expenses
” means all expenses and taxes recoverable from tenants under the Leases. As used in this Section 6.3.2.5, the term “
Additional Rent(s)
” means Rents in excess of the “base” portion of Rents.
6.3.2.6.
Notwithstanding the foregoing, if any Expense or other proration cannot be determined at the Closing, the adjustments will be made between the parties as soon after Closing as possible, subject to the limitations of Section 6.3.2.7. For example, Purchaser acknowledges that the Leases are so called “net leases” with Seller, as landlord under the Leases, collecting from tenants additional Rent to cover items such as taxes, insurance, utilities, maintenance and other operating costs and expenses incurred by Seller in connection with the ownership, operation, maintenance and management of the Property. Because the collections are based on budgeted expenses (as opposed to actual) for the year in which Closing occurs, it is likely that there will need to be a post-Closing reconciliation after actual expenses for the year in which Closing occurs are finally determined.
6.3.2.7.
Subject to the provisions of Section 6.3.2.5, either party shall be entitled to a post-Closing adjustment for any incorrect proration or adjustment provided written notice thereof is given to the other party within one (1) year of Closing.
6.3.2.8.
Seller reserves the right to meet with governmental officials and to contest any reassessment governing or affecting Seller’s obligations to pay taxes and assessments or other charges with respect to calendar year 2016 and prior years (but not calendar year 2017), and the right to contest any assessment of the Property or any portion thereof for such
periods and to attempt to obtain a refund for any taxes previously paid for such periods. Seller shall retain all rights with respect to any refund of taxes applicable to any period prior to the Closing Date, subject to the entitlements of tenants under the Leases relating to the period during which Landlord owned the Property. Should any such refund be paid by the relevant authority to Purchaser rather than to Seller, Purchaser will promptly pay the same over to Seller. In the event that Seller receives a refund of taxes on account of the calendar year in which the Closing occurs, Seller shall promptly pay to Purchaser that portion of such refund allocable to the period from and after the Closing Date.
6.3.3.
Closing Costs
. Seller shall pay (i) all county and city transfer taxes; (ii) the premium for a standard CLTA owner’s title insurance policy; (iii) one-half of all escrow fees; and (iv) all other costs and expenses allocated to Seller pursuant to this Agreement. Purchaser shall pay (i) the cost of the Title Policy above the amount Seller is obligated to pay, including the cost of any endorsements requested by Purchaser, and the premium for any policy of lender’s title insurance; (ii) all recording fees; (iii) one-half of all escrow fees; and (iv) all other costs and expenses allocated to Purchaser pursuant to this Agreement.
6.3.4.
Closing
. Pursuant to Section 6.1 above, Title Company shall close the escrow for this transaction when it is in a position to issue the Title Policy and has received from Seller and Purchaser the items required of each in Sections 6.2.1 and 6.2.2 above. Title Company shall close escrow by doing the following:
6.3.4.1.
Recording the grant deed referred to in Section 6.2.1.1 in the Official Records of Los Angeles County (or, in the event of a “gap” closing which is agreed to by Seller and Purchaser in writing, submitting such grant deed for recording in the Official Records of Los Angeles County, California and within 2 business days thereafter providing a recorded copy of same to Seller and Purchaser);
6.3.4.2.
Delivering to Purchaser the Title Policy, the original documents and items listed in Section 6.2.1 above, and a closing statement for the escrow consistent with this Agreement and signed by Purchaser and Seller (the “
Closing Statement
”), and any refund due Purchaser; and
6.3.4.3.
Delivering to Seller the amount due Seller as shown on the Closing Statement, the original documents listed in Section 6.2.2 above, and a signed original of Seller’s Closing Statement.
6.3.5.
Survival
. The obligations under this Section 6.3 shall survive Closing and delivery of the deed to Purchaser.
6.3.6.
Possession
. Upon Closing, Seller shall deliver to Purchaser possession of the Property, subject to such matters as are permitted by or pursuant to this Agreement.
7.
CASUALTY LOSS AND CONDEMNATION
If, prior to Closing, the Property or any part thereof shall (i) be condemned or transferred in lieu of condemnation, (ii) become the subject of pending or threatened condemnation proceedings, or (iii) be destroyed or damaged by fire or other casualty, then Seller shall so notify Purchaser in writing, and:
7.1
Material Event
. If such event (a) would result in costs to restore in excess of $350,000 or (b) would result in any (i) loss of access to the Property which causes the Property to fail to comply with applicable laws or codes, or (ii) material and adverse loss of parking at the Property, (c) would entitle any of the tenants at the Property to terminate their Leases, or (d) would result in an uninsured cost to restore the Improvements to substantially the same condition as prior to such event in excess of $30,000 (excluding the amount of any deductible) (any such event, a “
Material Event
”) then Purchaser shall have the option either to (i) terminate this Agreement (by written notice given to Seller within twenty (20) days of receipt of notice of the applicable event) or (ii) consummate the transaction contemplated by this Agreement notwithstanding such condemnation, destruction or damage; provided, however, if Purchaser elects to terminate this Agreement for an uninsured casualty pursuant to clause (d), then Seller may elect, by giving written notice to Purchaser within five (5) business days after receipt of Purchaser’s notice terminating this Agreement, to give Purchaser a credit against the Purchase Price for the entire uninsured cost to restore the Improvements to substantially the same condition as prior to such event, in which case Purchaser’s termination notice will be deemed rescinded and this Agreement will continue in full force and effect. If Purchaser elects to consummate the transaction contemplated by this Agreement, Purchaser shall be entitled to receive the condemnation proceeds (except any related to loss of rentals or income for the period prior to Closing, to which Seller shall be entitled) or settle the loss under all policies of insurance applicable to the destruction or damage and receive the proceeds of insurance applicable thereto (other than the proceeds of any business or rental interruption insurance applicable to the period prior to Closing, to which Seller shall be entitled), and Seller shall credit Purchaser for the lesser of the cost to repair the damage or destruction or the amount of all deductibles under any insurance policies and further Seller shall execute and deliver to Purchaser all required proofs of loss, assignments of claims and other similar items.
7.2
Non-material Event
. If such event is not a Material Event, Purchaser shall be required to close, but shall be entitled to receive the condemnation proceeds (except any related to loss of rentals or income for the period prior to Closing, to which Seller shall be entitled) or settle the loss under all policies of insurance applicable to the destruction or damage and receive the proceeds of insurance applicable thereto (other than the proceeds of any business or rental interruption insurance applicable to the period prior to Closing, to which Seller shall be entitled), and Seller shall credit Purchaser for the lesser of the cost to repair the damage or destruction or the amount of all deductibles under any insurance policies and further Seller shall execute and deliver to Purchaser all required proofs of loss, assignments of claims and other similar items.
8.
REPRESENTATIONS AND WARRANTIES
8.1
Except as set forth on
Exhibit K
attached hereto, Seller hereby makes the following representations and warranties to Purchaser, which representations and warranties shall survive the Closing for a period of nine (9) months (it being understood that so long as Purchaser has actually filed a lawsuit specifically alleging breach of any such representation or warranty within said nine (9) month period, any claim arising therefrom shall survive the pendency of said lawsuit) and all of which (i) are material and are being relied upon by Purchaser, and (ii) are true, complete and accurate, in all material respects, as of the date hereof and, unless otherwise specified, shall be true, complete and accurate, as modified by any Pre-Closing Disclosures (defined below) and in all material respects, at the Closing Date.
8.1.1.
Authority, etc
. Seller is a limited liability company, duly formed and validly existing and in good standing under the laws of the State of California, and has full power and lawful authority under Seller’s organizational documents to enter into and carry out the terms and provisions of this Agreement and to execute and deliver all documents which are contemplated by this Agreement. All actions necessary to confer such power and authority upon the persons executing this Agreement (and all documents which are contemplated by this Agreement to be executed on behalf of Seller) have been taken. Seller’s execution, delivery and performance of this Agreement will not result in any violation of, or default under, or require any notice or consent under, any of Seller’s organizational documents, any other agreement to which Seller is a party or any law, judgment or order applicable to Seller.
8.1.2.
Leases
. All of the leases, licenses and occupancy agreements (as the same may be amended) affecting the Property and all amendments and guarantees thereof (collectively, “
Leases
”) are listed on
Exhibit I
attached hereto, and such list of Leases is true, correct and complete. During the twenty-four (24) months prior to the Contract Date, Seller has not given to, and to Seller’s Knowledge has not received from, any tenant any written notice of a default that has not subsequently been cured, and Seller has no Knowledge of any other uncured default under any of the Leases by the landlord or tenant thereunder. Additionally, there are no outstanding tenant improvement obligations, Tenant Inducements, free rent credits, or any other monetary inducements owed by the landlord under (or in connection with) any of the Leases.
8.1.3.
Contracts
. All of the service, management, maintenance, repair, parking, construction, and other contracts relating to the ownership and operation of the Property, other than the Leases and brokerage agreements, are listed on
Exhibit J
attached hereto (the “
Contracts
”), and such list of Contracts is true, correct and complete. During the twenty-four (24) months prior to the Contract Date, Seller has not given to, or to Seller’s Knowledge, received from, any other party to a Contract any written notice of a default that has not subsequently been cured, and Seller has no Knowledge of any other uncured default under any of the Contracts by any party thereto.
8.1.4.
Foreign Person
. Seller is not a “foreign person” as defined in Internal Revenue Code Section 1445 and any related regulations. At the Closing, Purchaser will have no duty to collect withholding taxes for Seller pursuant to the Foreign Investment in U.S. Real Property Tax Act of 1980, as amended.
8.1.5.
Bankruptcy
. Seller has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by its creditors; (iii) suffered the appointment of a receiver to take possession of all or substantially all of its assets; or (iv) suffered the attachment or other judicial seizure of all or substantially all of its assets.
8.1.6.
Litigation
. Seller has not been served with any litigation which is still pending against the Seller with respect to its ownership or operation of the Property that, if determined adversely to Seller, would materially and adversely affect the Property or Seller’s ability to consummate the transactions contemplated by this Agreement, and has no Knowledge of any filed and pending condemnation proceedings affecting any portion of the Property.
8.1.7.
Violations
. Seller has not received from any governmental authority written notice of any currently existing material violation of any statute, ordinance, rule, regulation or order applicable to the Property, or any part thereof, that will not have been corrected prior to Closing.
8.1.8.
Environmental.
Seller has delivered or made available to Purchaser pursuant to Section 5.1 true, correct and complete copies of all written third party environmental audits with respect to the Property in Seller’s possession.
8.1.9.
Licenses and Permits
. To Seller’s Knowledge, Seller has not received written notice from any applicable governmental or quasi-governmental entity, or other person or entity, of any material violation of any license or permit issued, approved or granted by any governmental or quasi-governmental entity in connection with the Property, including all renewals and modifications of the foregoing, that has not subsequently been cured.
8.1.10.
OFAC
. Neither: (i) Seller, any affiliate of Seller nor any other person or entity controlled by Seller; nor (ii) to the Knowledge of Seller, without further inquiry, any person or entity who owns a controlling interest in or otherwise controls Seller; nor (iii) any person or entity for whom Seller is acting as agent or nominee in connection with this investment, is a country, territory, person or entity, organization, or entity named on an OFAC List, is a prohibited country, territory, person or entity, organization, or entity under any economic sanctions program administered or maintained by OFAC. As used in this Agreement, the term “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control, and the term “OFAC List” means any list of prohibited countries, individuals, organizations and entities that is administered or maintained by OFAC, including: (i) Section 1(b), (c) or (d) of Executive Order No. 13224 (September 23, 2001) issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), any related enabling legislation or any other similar executive orders, (ii) the List of Specially Designated Nationals and Blocked Persons (the “SDN List”) maintained by OFAC), and/or on any other similar list (“Other Lists”) maintained by OFAC pursuant to any authorizing statute, executive order or regulation, or (iii) a “Designated National” as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515.
8.1.11.
Profit and Loss Statements
. The profit and loss statements for the Property delivered to Purchaser were prepared by or for Seller in the ordinary course of its business.
8.1.12.
Definition of Knowledge
. When used in this Agreement, the terms “
Seller’s Knowledge
” and “
Knowledge
” of Seller shall mean and be limited to the actual (and not constructive) current knowledge, without duty of inquiry or investigation, of Jacob Mathews who Seller represents is an employee or representative of Seller with significant knowledge regarding the management and operation of the Property.
8.2
Pre-Closing Disclosure
. As of Closing, Seller shall be deemed to remake and restate the representations set forth in Section 8.1, except that the representations shall be updated by delivering written notice to Purchaser in order to reflect any fact, matter or circumstance in Seller’s Knowledge that would make any of Seller’s representations or warranties contained herein materially untrue, incomplete or incorrect (any such disclosure being referred to as a “
Pre-Closing Disclosure
”). Purchaser acknowledges that Seller shall have no liability, obligation or responsibility, and shall not be in default under this Agreement, with respect to any representation or warranty which was true and accurate when made by Seller upon the execution and delivery of this Agreement and which subsequently becomes untrue or inaccurate for any reason which is not a breach or default by Seller of the covenants made by Seller in this Agreement (e.g., an untruth or inaccuracy due to the passage of time, litigation initiated against Seller by a third party, events occurring or Knowledge acquired by Seller after the Contract Date, etc.). Seller shall not be liable to Purchaser for a breach of any of the representations and warranties set forth in this Agreement if, and to the extent that, Purchaser has knowledge of such breach at Closing (and in particular Purchaser shall be deemed to have knowledge of the existence of all of the Documents and the contents thereof to the extent delivered or made available to Purchaser), whether due to a Pre-Closing Disclosure or otherwise (unless the representation was untrue when made on the Contract Date or became untrue due to a breach or default by Seller hereunder (a “
Seller Default Breach
”), in which case Purchaser’s remedies shall be governed by Section 11.1 below). Purchaser’s sole remedy for any such Pre-Closing Disclosure and for any breach of which it has knowledge shall be to terminate this Agreement within five (5) business days after the Pre-Closing Disclosure or gaining knowledge of such breach (and in all events prior to Closing), failing which, Purchaser shall be deemed to have accepted all Pre-Closing Disclosures and waived any breach of Seller’s representations and warranties of which Purchaser has knowledge. Notwithstanding anything herein to the contrary, in the event Purchaser terminates the Agreement on account of a Seller Default Breach, Purchaser shall be entitled to reimbursement of its actual out-of-pocket expenses incurred in connection with this Agreement (excluding any expenses incurred in connection with any proposed financing), not to exceed $50,000. For purposes of this Section 8.2 and Section 9.1.1 below, the terms “materially” and “material” shall mean for matters quantifiable in terms of money, an amount in excess of $40,000 and for all other matters, disclosures or breaches that would prompt a commercially reasonable buyer to request a reduction in excess of $40,000 in the Purchase Price. Notwithstanding anything to the contrary contained herein, Purchaser shall have no right to terminate this Agreement by reason of any untruth or inaccuracy in Seller’s representations and warranties which is caused by an action which Seller is authorized or permitted to take under this Agreement. The provisions of this Section 8.2 shall survive the Closing or termination of this Agreement for any cause.
8.3
Purchaser’s Representations and Warranties
. Purchaser hereby makes the following representations and warranties to Seller, which representations and warranties shall survive the Closing and all of which (i) are material and are being relied upon by Seller, and (ii) are true, complete and accurate, in all material respects, as of the date hereof and shall be true, complete and accurate, in all material respects, as of the Closing Date:
8.3.1.
Authority, etc
. Purchaser is a limited partnership duly formed and, validly existing under the laws of the State of Delaware and is in good standing under the laws of the States of Delaware and California, and has full power and lawful authority under Purchaser’s organizational documents to enter into and carry out the terms and provisions of this Agreement and to execute and deliver all documents which are contemplated by this Agreement. All actions necessary to confer such power and authority upon the persons executing this Agreement (and all documents which are contemplated by this Agreement to be executed on behalf of Purchaser) have been taken or will be taken prior to Closing. Purchaser’s execution, delivery and performance of this Agreement will not result in any violation of, or default under, or require any notice or consent under, any of Purchaser’s organizational documents, any other agreement to which Purchaser is a party or any law, judgment or order applicable to Purchaser.
8.3.2.
Bankruptcy
. Purchaser has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by its creditors; (iii) suffered the appointment of a receiver to take possession of all or substantially all of its assets; or (iv) suffered the attachment or other judicial seizure of all or substantially all of its assets.
8.3.3.
OFAC
. Neither: (i) Purchaser, any affiliate of Purchaser nor any other person or entity controlled by Purchaser; nor (ii) to the actual knowledge, without further inquiry, of Purchaser’s representative Alan Shapiro, any person or entity who owns a controlling interest in or otherwise controls Purchaser; nor (iii) any person or entity for whom Purchaser is acting as agent or nominee in connection with this investment, is a country, territory, person or entity, organization, or entity named on an OFAC List, is a prohibited country, territory, person or entity, organization, or entity under any economic sanctions program administered or maintained by OFAC.
8.3.4.
Assignment
. If Purchaser assigns its rights under this Agreement pursuant to the terms of Section 12.1 below, such permitted assignee shall be required and deemed to have made all of the foregoing representations and warranties as of the date of assignment and the Closing Date, modified to apply to the assignee, including its form of enterprise and state of formation. All of such assignee’s representations and warranties shall survive the Closing.
9.
CONDITIONS PRECEDENT
9.1
Purchaser’s Conditions Precedent
. The obligation of Purchaser to close the transaction contemplated by this Agreement is contingent upon any one or more of the following, the failure of any of which shall, upon written notice by Purchaser to Seller, cause this Agreement to terminate; provided, however, that, if such failure of the condition constitutes a default on the part of Seller under any other provision of this Agreement, except as otherwise provided in Section 8.2, Purchaser shall have all of its rights and remedies set forth in Section 11.1 hereof. Notwithstanding the foregoing, Purchaser’s election to proceed with the Closing and deliver the Cash Balance shall be deemed Purchaser’s waiver of all of its conditions precedent to the extent any of such have not been previously satisfied or waived.
9.1.1.
Representations
. Each and every representation and warranty of Seller set forth in Section 8.1 above shall be materially true, complete and correct as of the Closing Date, as modified by any Pre-Closing Disclosures. Notwithstanding the foregoing, if Seller makes any material Pre-Closing Disclosure to Purchaser, Purchaser shall have the right to terminate this Agreement by delivering written notice thereof to Seller on or before the fifth (5th) business day after Purchaser receives written notice of such Pre-Closing Disclosure (and if such day is after the scheduled Closing Date, Closing shall be extended accordingly). If Purchaser does not terminate this Agreement pursuant to its rights under this Section 9.1.1, then such representations and warranties shall be deemed modified to conform them to the Pre-Closing Disclosure.
9.1.2.
Title Policy
. The Title Company shall be irrevocably committed to issue the Title Policy upon Closing in accordance with Section 4.5 hereof.
9.1.3.
No Default
. Seller shall not be in default under any of its material obligations hereunder.
9.1.4.
Tenant Estoppels, SNDA
.
9.1.4.1.
On or before the Closing Date, Purchaser shall have received estoppel certificates meeting the requirements of this Section 9.1.4 (the “
Tenant Estoppels
”), dated not more than thirty (30) days prior to the Closing Date, from all of the tenants under the Leases (the “
Estoppel Threshold
”).
9.1.4.2.
At such time as Seller reasonably determines it is appropriate given the Closing Date, Seller shall prepare draft Tenant Estoppels, which shall be substantially in the Form of
Exhibit B
attached hereto; provided, however, if any applicable Lease limits the information required to be certified by the tenant, then a Tenant Estoppel setting forth only such required information shall be deemed acceptable with respect to such Lease. Prior to delivery of completed Tenant Estoppels to the applicable tenants, Seller shall send them to Purchaser for Purchaser’s approval, which approval shall not be unreasonably withheld or conditioned and shall be deemed granted unless written notice to the contrary (setting forth Purchaser’s grounds for disapproval and/or comments, both of which must be reasonable) shall be provided by Purchaser within two (2) business days after receipt from Seller. Promptly after Purchaser’s approval or deemed approval of the Tenant Estoppels, Seller shall send the Tenant Estoppels to the applicable
tenants, and Purchaser shall send each Tenant Estoppel to Purchaser promptly upon return by the applicable Tenant. Purchaser and Seller agree that the mere failure of Seller to obtain the Tenant Estoppels required hereunder shall not be deemed a default by Seller, so long as Seller has otherwise complied with this Section 9.1.4.2.
9.1.4.3.
Purchaser shall have a period of two (2) business days from the receipt of the signed Tenant Estoppels (or until the scheduled Closing Date, if earlier) to notify Seller of any objection to such Tenant Estoppels due to the fact that any such Tenant Estoppel contains material and adverse changes from the completed but unsigned form approved by Purchaser prior to Seller sending it to the applicable tenant (the “
Estoppel Review Period
”). If Purchaser fails to notify Seller of any objection to the Tenant Estoppels during the Estoppel Review Period, the Tenant Estoppels shall be deemed approved by Purchaser. In the event Purchaser shall notify Seller of such an objection prior to the expiration of the Estoppel Review Period, Seller shall have the right, but not the obligation, to attempt to cure such objection by causing the applicable tenant to re-execute or amend such Tenant Estoppel to remedy Purchaser’s objection. Within five (5) days after receipt of Purchaser’s notice of objection, Seller shall notify Purchaser in writing whether Seller elects to attempt to cause the applicable tenant to re-execute or amend such Tenant Estoppel, and failure of Seller to provide any notice to Purchaser within such five (5) day period shall be deemed Seller’s election not to attempt to cure Purchaser’s objection. If Seller elects, or is deemed to have elected, not to cure any objection, Purchaser shall have two (2) business days from the receipt of Seller’s notice (or from the expiration of the five (5) day period if no notice is given) to do one of the following: (i) terminate this Agreement; or (ii) waive its objections to the applicable Tenant Estoppel and agree to purchase the Property subject to the items to which Purchaser had objected, and failure of Purchaser to provide any notice to Seller within such two (2) business day period shall be deemed an election under (ii) above. If Seller elects to attempt to cause the applicable tenant to re-execute or amend a Tenant Estoppel, Seller shall use commercially reasonable efforts to cause such re-execution or amendment, at no cost to Seller. Seller may extend the Closing Date by up to ten (10) days as necessary to accommodate the process set forth in this Section 9.1.4.3. For purposes of this Section 9.1.4.3, the term “material and adverse” shall include changes which, individually or when aggregated with changes and contained in other Tenant Estoppels, results or would result in damages or losses in excess of $40,000, provided that Purchaser shall receive a credit at Closing for damages or losses up to $30,000, in the aggregate, which result or would result from changes from any completed but unsigned form Tenant Estoppel which was approved by Purchaser prior to Seller sending it to the applicable tenant.
9.1.4.4.
Seller agrees that upon the request of Purchaser, Seller shall deliver to 3705 Group, LLC the form of subordination, non-disturbance and attornment agreement required by Purchaser’s mortgage lender (the “
SNDA
”) and shall request that 3705 Group, LLC execute and return the SNDA prior to Closing; provided however, that it shall not be a condition to Closing that Seller deliver to Purchaser the executed SNDA and the failure of Seller to obtain the SNDA shall not constitute a default by Seller under this Agreement.
9.1.5.
No Financing Contingency
. Notwithstanding any term or provision of this Agreement (including any reference to any Purchaser’s financing or any lender), Purchaser expressly acknowledges, covenants and agrees that there shall be no financing contingency with
respect to the transaction contemplated hereby and Purchaser’s obligations hereunder to complete the Closing and consummate the purchase of the Property pursuant to this Agreement shall not be conditioned upon or subject to Purchaser obtaining financing to pay all or any portion of the Purchase Price.
9.2
Seller’s Conditions Precedent
. The obligation of Seller to close the transaction contemplated by this Agreement is contingent upon any one or more of the following, the failure of any of which shall, upon written notice by Seller to Purchaser cause this Agreement to terminate provided, however, that, if such failure of the condition constitutes a default on the part of Purchaser under any other provision of this Agreement, Seller shall have all of its rights and remedies set forth in Section 11.2 hereof.
9.2.1.
No Default
. Purchaser shall not be in default under any of its material obligations hereunder.
9.2.2.
Representations
. Each and every representation and warranty of Purchaser set forth in Section 8.3 above shall be materially true, complete and correct as of the Closing.
10.
BROKERAGE
Neither party has had any contact or dealings regarding the Property, through any licensed real estate broker or other persons who can claim a right to a commission or finder’s fee in connection with this transaction, except for CBRE, Inc. representing Seller and Purchaser (“
Broker
”). The parties agree that upon consummation of the Closing, Seller shall pay any brokerage commission due to Broker pursuant to a separate agreement between Seller and Broker. Broker shall not be entitled to any monies or other recovery realized by Seller arising out of Purchaser’s default. In the event that any other party claims a commission or finder’s fee in this transaction, the party through whom the party makes its claim shall be responsible for said commission or fee and shall indemnify the other against all costs and expenses (including reasonable attorneys’ fees) incurred in defending against the same. This indemnification obligation shall survive the Closing or termination of this Agreement for any cause.
11.
DEFAULTS AND REMEDIES
11.1
Seller Default
. Notwithstanding anything to the contrary contained in this Agreement, if Seller fails to perform in accordance with the terms of this Agreement prior to Closing and the Closing does not occur, then Purchaser may, as its sole and exclusive remedy hereunder and at Purchaser’s option, either (a) terminate this Agreement, or (b) provided an action is filed within sixty (60) days after the scheduled Closing Date, seek specific performance of this Agreement, but not any damages (whether actual, direct, indirect, consequential, compensatory, punitive or otherwise). Purchaser’s failure to seek specific performance as aforesaid shall constitute its election to proceed under clause (a) above. If specific performance of Seller’s obligation to convey the Property is not available to Purchaser due to an intentional act of Seller (i.e., Seller has sold the Property to another party), then in addition to terminating this Agreement, Purchaser may seek damages in an amount not in excess of Seven Hundred Fifty Thousand Dollars ($750,000).
11.2
Purchaser Default
. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IF THE CLOSING FAILS TO OCCUR DUE TO PURCHASER’S DEFAULT UNDER THE TERMS OF THIS AGREEMENT, THE DEPOSIT SHALL BE PAID TO SELLER AS LIQUIDATED DAMAGES (WHICH SHALL BE SELLER’S SOLE AND EXCLUSIVE REMEDY AGAINST PURCHASER FOR PURCHASER’S FAILURE TO PURCHASE THE PROPERTY), AT WHICH TIME THIS AGREEMENT SHALL TERMINATE. SELLER ACKNOWLEDGES AND AGREES THAT (1) THE AMOUNT OF THE DEPOSIT IS A REASONABLE ESTIMATE OF AND BEARS A REASONABLE RELATIONSHIP TO THE DAMAGES THAT WOULD BE SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF HAVING WITHDRAWN THE PROPERTY FROM SALE AND THE FAILURE OF CLOSING TO HAVE OCCURRED DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; (2) THE ACTUAL DAMAGES SUFFERED AND COSTS INCURRED BY SELLER AS A RESULT OF SUCH WITHDRAWAL AND FAILURE TO CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT WOULD BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE; (3) PURCHASER SEEKS TO LIMIT ITS LIABILITY UNDER THIS AGREEMENT TO THE AMOUNT OF THE DEPOSIT IN THE EVENT THIS AGREEMENT IS TERMINATED AND THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE DUE TO A DEFAULT OF PURCHASER UNDER THIS AGREEMENT; AND (4) THE AMOUNT OF THE DEPOSIT SHALL BE AND CONSTITUTE REASONABLE AND VALID LIQUIDATED DAMAGES. THE PARTIES AGREE THAT THE DEPOSIT IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369 BUT SHALL BE TREATED AS LIQUIDATED DAMAGES PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO LIMIT PURCHASER’S LIABILITY TO SELLER, IF ANY, (A) WITH RESPECT TO ANY INDEMNIFICATION OR OTHER PROVISION OF THIS AGREEMENT THAT EXPRESSLY SURVIVES THE CLOSING OR TERMINATION OF THIS AGREEMENT (INCLUDING THE RIGHT TO REIMBURSEMENT FOR LEGAL AND OTHER COSTS OF ENFORCEMENT), AND SELLER SHALL RETAIN ALL RIGHTS AND REMEDIES, AT LAW OR IN EQUITY, WITH RESPECT TO THOSE PROVISIONS, AND (B) IN THE EVENT THAT, FOLLOWING ANY TERMINATION OF THIS AGREEMENT, PURCHASER OR ANY PARTY AFFILIATED WITH PURCHASER, ASSERTS ANY CLAIMS OR RIGHTS TO THE PROPERTY THAT MIGHT DELAY OR PREVENT SELLER FROM HAVING CLEAR, INDEFEASIBLE AND MARKETABLE TITLE TO THE PROPERTY OR OTHERWISE IMPEDE OR DELAY A SUBSEQUENT SALE OF THE PROPERTY.
Initials of Seller: __________________ Initials of Purchaser: __________________
11.3
Rights after Closing
. After Closing, Seller and Purchaser shall, subject to the terms and conditions of this Agreement, have such rights and remedies as are available at law or in equity, with respect to those provisions and claims that expressly survive Closing, except that neither Seller nor Purchaser shall be entitled to recover from the other punitive, consequential, indirect or special damages.
11.4
Survival
. The provision of this Section 11 shall survive the Closing or termination of this Agreement for any cause.
12.
MISCELLANEOUS
12.1
Assignment
. Purchaser shall not assign its rights or delegate its obligations hereunder without the prior written consent of Seller, which consent may be granted, conditioned or withheld in its sole and absolute discretion; provided, however, that Purchaser shall be permitted to assign its rights and obligations under this Agreement to a limited partnership or limited liability company in which Purchaser (or an entity that controls, is controlled by or is under common control with, Purchaser) serves as the general partner, manager or sole member, as applicable, without Seller’s consent, provided Seller is given evidence of such assignment, the existence and good standing of the assignee, and the interest of Purchaser (or an entity that controls, is controlled by or is under common control with, Purchaser), as general partner, manager or sole member, in the assignee. Subject to the foregoing, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties hereto and their respective heirs, devisees, executors, administrators, legal representatives, successors and assigns. In connection with any approved or permitted assignment, the assignee shall assume the assignor’s obligations hereunder, but, until the Closing only, the assignor shall nevertheless remain jointly and severally liable with the assignee therefor. The provisions of this Section 12.1 shall survive the Closing or termination of this Agreement.
12.2
Entire Agreement
. This document represents the final and complete agreement between the parties with respect to the subject matter hereof and supersedes all other prior or contemporaneous agreements, communications or representations, whether oral or written, express or implied. The parties acknowledge and agree that they may not and are not relying on any representation, promise, inducement, or other statement, whether oral or written and by whomever made, that is not contained expressly in this Agreement. This Agreement may only be modified by a written instrument signed by representatives authorized to bind both parties. Oral modifications are unenforceable.
12.3
Time
. Time is of the essence of this Agreement. In the computation of any period of time provided for in this Agreement or by law, the day of the act or event from which the period of time runs shall be excluded, and the last day of such period shall be included, unless it is a Saturday, Sunday, or legal holiday, in which case the period shall be deemed to run until the end of the next day which is not a Saturday, Sunday, or legal holiday.
12.4
Notices
. All notices and any other communications permitted or required under this Agreement must be in writing and will be effective (i) immediately upon delivery in person, provided delivery is made during regular business hours or receipt is acknowledged by a person reasonably believed by the delivering party to be employed by the recipient; (ii) immediately upon delivery if delivery is made by electronic mail transmission (“
Email
”) (so long as any Email notice contains the following in the Subject line in all caps: “OFFICIAL NOTICE UNDER SILVERLAKE COLLECTION PSA”) completed before 5:00 pm California time on a business day, as evidenced by the transmission confirmation generated by the sending Email system; and otherwise on the business day next following the date of completed transmission; provided, however,
that any communication by Email to be effective must be confirmed two (2) business days after transmission by duplicate notice delivered as otherwise provided herein; (iii) the next business day after timely deposit with a commercial courier or delivery service for overnight delivery, provided delivery is made during regular business hours or receipt is acknowledged by a person reasonably believed by the delivering party to be employed by the recipient; or (iv) the date indicated on the return receipt if deposited with the United States Postal Service, certified mail, return receipt requested, postage prepaid. The inability to deliver because of a changed address of which no notice was given, or rejection or other refusal to accept any notice, shall be deemed to be the receipt of the notice as of the date of such inability to deliver or rejection or refusal to accept. Any notice to be given by any party hereto may be given by the counsel for such party. All notices must be properly addressed and delivered to the parties at the addresses set forth below, or at such other addresses as either party may subsequently designate by written notice given in the manner provided in this Section:
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If to Seller:
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Sunset Triangle Investors, LLC
17351 W. Sunset Blvd #1A
Pacific Palisades, CA 90272
Attention: Jake Mathews
Telephone: (310) 454-6593
Email: jake@9mileinvestments.com
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With a copy to:
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Farella Braun + Martel LLP
235 Montgomery Street
San Francisco, CA 94111
Attention: Gregory B. Shean
Telephone: (415) 954-4957
Email: gshean@fbm.com
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If to Purchaser:
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Strategic Realty Operating Partnership, LP
c/o Glenborough, LLC
66 Bovet Rd., Suite 100
San Mateo, CA 94402
Attention: Alan Shapiro
Fax No. 650-343-9690
Email: alan.shapiro@glenborough.com
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With a copy to:
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Strategic Realty Operating Partnership, LP
c/o Glenborough LLC
66 Bovet Rd., Suite 100
San Mateo, CA 94402
Attention: G. Lee Burns, Jr.
Fax No. 650-343-9690
Email: chip.burns@glenborough.com
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With an additional Elkins Kalt Weintraub Reuben Gartside LLP
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copy to:
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2049 Century Park East, Suite 2700
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Los Angeles, CA 90064
Attention: Scott Kalt
Fax No. 310-746-4499
Email:
skalt@elkinskalt.com
12.5
Law
. This Agreement is entered into and shall be governed by and construed in accordance with the laws of the State of California (without giving effect to its choice of law principles). Subject to Section 12.10 below, the parties agree that all suits or actions of any kind brought to interpret or enforce the terms of, or otherwise arising out of or relating to, this Agreement shall be filed and litigated solely in the state or federal courts in San Francisco, California. Each party hereby consents to the personal and subject matter jurisdiction of said courts.
12.6
No Recordation
. Neither this Agreement nor any memorandum thereof shall be recorded against the Property. The provisions of this Section 12.6 shall survive the termination of this Agreement for any cause.
12.7
Counterparts
. This Agreement may be signed in any number of counterparts with the same effect as if the signatures to each counterpart were upon a single instrument, and is intended to be binding when all parties have delivered their signatures to the other parties. Signatures may be delivered by facsimile transmission or by e-mail in a portable document format (
pdf
). All counterparts shall be deemed an original of this Agreement.
12.8
Waiver
. No consent or waiver by either party to or of any breach or non-performance of any representation, condition, covenant or warranty shall be enforceable unless in a writing signed by the party entitled to enforce performance, and such signed consent or waiver shall not be construed as a consent to or waiver of any other breach or non-performance of the same or any other representation, condition, covenant, or warranty.
12.9
Severability
. If any term, covenant or condition of this Agreement or its application to any person or circumstances shall be held to be illegal, invalid or unenforceable, the remainder of this Agreement or the application of such term or provisions to other persons or circumstances shall not be affected, and each term hereof shall be legal, valid and enforceable to the fullest extent permitted by law. In the event of such partial invalidity, the parties shall seek in good faith to agree on replacing any such legally invalid provisions with valid provisions which, in effect, will, from an economic viewpoint, most nearly and fairly approach the effect of the invalid provision and the intent of the parties in entering into this Agreement.
12.10
ARBITRATION OF DISPUTES
. EXCEPT AS OTHERWISE SET FORTH BELOW, ANY DISPUTE BETWEEN SELLER AND PURCHASER ARISING UNDER OR RELATING TO THIS AGREEMENT, SHALL BE RESOLVED THROUGH ARBITRATION IN ACCORDANCE WITH THE COMPREHENSIVE ARBITRATION RULES AND PROCEDURES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES (“JAMS”), AS AMENDED FROM TIME TO TIME. THE ARBITRATION SHALL TAKE PLACE IN SAN FRANCISCO, CALIFORNIA. NOTWITHSTANDING ANY JAMS RULES TO THE CONTRARY, THE ARBITRATION SHALL BE CONDUCTED BY A SINGLE ARBITRATOR. THE ARBITRATOR SHALL NOT HAVE THE POWER, JURISDICTION OR AUTHORITY TO
COMMIT ERRORS OF LAW. THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING, WILL NOT BE SUBJECT TO APPEAL, AND MAY BE ENTERED AS A FINAL JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION; PROVIDED, HOWEVER, THAT THE DECISION MAY BE VACATED OR CORRECTED PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 1286.2 OR 1286.6, INCLUDING WITHOUT LIMITATION, ON THE GROUNDS THAT THE ARBITRATOR EXCEEDED HIS OR HER AUTHORITY BY COMMITTING AN ERROR OF LAW. ALL ARBITRATION PROCEEDINGS SHALL BE CONFIDENTIAL, AND NEITHER THE PARTIES NOR THE ARBITRATOR MAY DISCLOSE THE CONTENT OR RESULTS OF ANY ARBITRATION HEREUNDER WITHOUT THE WRITTEN CONSENT OF ALL PARTIES TO THE DISPUTE, EXCEPT AS NECESSARY TO CONFIRM OR VACATE THE ARBITRATOR'S AWARD. NOTWITHSTANDING ANYTHING CONTAINED IN THIS SECTION 12.10, EITHER SELLER OR PURCHASER SHALL BE ENTITLED TO (A) COMMENCE LEGAL PROCEEDINGS SEEKING ANY INJUNCTIVE OR OTHER PROVISIONAL RELIEF AS MAY BE NECESSARY TO DEFINE OR PROTECT THE RIGHTS AND ENFORCE THE OBLIGATIONS CONTAINED IN THIS AGREEMENT PENDING THE RESOLUTION OF A DISPUTE IN ACCORDANCE WITH THE ARBITRATION PROCEDURES SET FORTH IN THIS SECTION 12.10, OR (B) JOIN ANY ARBITRATION PROCEEDING ARISING OUT OF THIS AGREEMENT WITH ANY OTHER ARBITRATION PROCEEDING ARISING OUT OF THIS AGREEMENT. THIS SECTION 12.10 SHALL NOT APPLY TO ANY ACTION FOR BODILY INJURY OR WRONGFUL DEATH.
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE “ARBITRATION OF DISPUTES” PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE “ARBITRATION OF DISPUTES” PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY."
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE “ARBITRATION OF DISPUTES” PROVISION TO NEUTRAL ARBITRATION.
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________________________
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________________________
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12.11
Further Assurances
. Each party agrees to perform, execute and deliver, on and after the Closing, such further actions and documents as may be reasonably necessary or requested to more fully effectuate the purposes, terms and intent of this Agreement and the
conveyances contemplated herein, provided that such documents are consistent with the terms of this Agreement, and do not increase Seller’s or Purchaser’s obligations hereunder or subject Seller or Purchaser to additional liability not otherwise contemplated by his Agreement.
12.12
Attorneys’ Fees
. In the event of any litigation, judicial reference or binding arbitration between the parties, whether based on contract, tort or other cause of action or involving bankruptcy or similar proceedings, in any way related to this Agreement or the Property, the non-prevailing party shall pay to the prevailing party all reasonable attorneys’ fees and costs and expenses of any type, without restriction by statute, court rule or otherwise, incurred by the prevailing party in connection with any action or proceeding (including arbitration proceedings, any appeals and the enforcement of any judgment or award), whether or not the dispute is litigated or prosecuted to final judgment. The “prevailing party” shall be determined based upon an assessment of which party’s major arguments or positions taken in the action or proceeding could fairly be said to have prevailed (whether by compromise, settlement, abandonment by the other party of its claim or defense, final decision, after any appeals, or otherwise) over the other party’s major arguments or positions on major disputed issues. Any fees and costs incurred in enforcing a judgment shall be recoverable separately from any other amount included in the judgment and shall survive and not be merged in the judgment. The provisions of this Section 12.12 shall survive Closing or any termination of this Agreement.
12.13
Construction
. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. The captions preceding the text of each Section are included for convenience of reference only and shall be disregarded in the construction and interpretation of this agreement. Unless the context clearly requires otherwise, (i) the plural and singular numbers shall each be deemed to include the other; (ii) the masculine, feminine, and neuter genders shall each be deemed to include the others; (iii) “shall,” “will,” or “agrees” are mandatory, and “may” is permissive; (iv) “or” is not exclusive; (v) “includes” and “including” are not limiting; and (vi) “days” means calendar days unless specifically provided otherwise. All Recitals and Exhibits referred to in this Agreement are incorporated herein by reference and shall be deemed a part of this Agreement.
12.14
No Third-Party Beneficiaries
. This Agreement shall benefit only Purchaser and Seller, and their permitted successors and assigns, and no other person or entity shall have any rights hereunder.
12.15
Purchaser Reports
. If for any reason Purchaser does not consummate the Closing (other than due to a default by Seller), then Purchaser shall, upon Seller’s request and at no cost to Seller, provide copies of any and all studies, reports, surveys and other information, data and/or documents relating to the Property or any part thereof prepared for Purchaser by third parties, subject to the right of such third party to consent to such delivery (provided that Purchaser shall make a reasonable, good faith effort to obtain such consent). Purchaser’s delivery of such reports shall be without any representations or warranties whatsoever as to the matters set forth therein,
and Seller shall not be entitled to rely on any such reports. The provisions of this Section 12.15 shall survive termination of this Agreement.
12.16
Reporting Person
. In order to comply with information reporting requirements of Section 6045(e) of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations thereunder, the parties agree (i) to execute an IRS Form 1099-S Designation Agreement to designate the Title Company as the party who shall be responsible for reporting the contemplated sale of the Property to the Internal Revenue Service (the “
IRS
”) on IRS Form 1099-S and (ii) to provide the Title Company with the information necessary to complete Form 1099-S.
12.17
Limitation Of Liability
. Notwithstanding anything to the contrary contained herein, if Closing shall have occurred (and Purchaser shall not have waived, relinquished or released any applicable rights in further limitation), the aggregate liability of Seller arising pursuant to or in connection with the representations, warranties, indemnifications, covenants or other obligations (whether express or implied) of Seller under this Agreement (or any document executed or delivered in connection herewith) (collectively, the “
Contract Liabilities
”) shall not exceed the sum of Four Hundred Thousand Dollars ($400,000) plus amounts payable by Seller under Section 12.12 and any amounts to be paid by Seller under Section 6.3.2.5 hereof; provided that in no event shall Seller be liable for any Contract Liabilities unless the aggregate amount of such liabilities exceeds $30,000, in which event Seller shall be liable for the full amount of such Contract Liabilities up to the limitation set forth above. No constituent partner or member in Seller, nor any person, trust or entity that becomes a constituent partner or member in Seller, nor any partner, member, manager, shareholder, director, officer, employee, beneficiary, trustee or agent of any of the foregoing, shall have any personal liability, directly or indirectly, under or in connection with this Agreement or any agreement made or entered into under or pursuant to the provisions of this Agreement, or any amendment to any of the foregoing made at any time or times, heretofore or hereafter, and Purchaser and its successors and assigns and, without limitation, all other persons and entities, shall look solely to the assets of Seller for the payment of any claim or for any performance, and Purchaser, on behalf of itself and its successors and assigns, hereby waives any and all such personal liability. Except for the rights and remedies of Purchaser expressly set forth in this Agreement, it is expressly understood and agreed that notwithstanding any applicable law to the contrary, Seller shall not have any liability for any claim, cause of action or other liability arising out of or relating to this Agreement or the Property whether based on contract, common law, statute, equity or otherwise (subject, however, to Purchaser’s right to recover Purchaser’s reasonable attorneys’ fees and court costs pursuant to Section 12.12).
12.18
Public Notices
. Subject to the provisions of Section 5.1.3 hereof, any press release and other public notice to be released by either party hereto disclosing the consummation of the transactions contemplated hereby shall first be submitted to the other party for review and comment, and each party shall reasonably cooperate in addressing the concerns of the other with respect to the nature and content of such disclosure (except and to the extent any such disclosure may be required by law). The provisions of this Section 12.18 shall survive the Closing or the termination of this Agreement for any cause.
12.19
Authority
. The individuals executing this Agreement on behalf of Seller and Purchaser individually represent and warrant that he or she has been authorized to do so and has the power to bind the party for whom they are signing.
12.20
Termination
. Upon any termination of this Agreement other than solely due to a material default of Purchaser under the express provisions hereof, the Deposit shall be returned to Purchaser, and neither party shall have any rights or obligations under this Agreement, except for those that expressly survive termination of this Agreement.
12.21
Exchange
. Both Seller and Purchaser agree to reasonably cooperate with each other in the event that either or both wish to participate in a like kind exchange (an “
Exchange
”) pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended (the “
Code
”), and, in connection therewith either such party may assign its rights under this Agreement to a qualified intermediary pursuant to an assignment that satisfies the requirements of the Code. Seller shall pay any additional costs that would not otherwise have been incurred by Purchaser or Seller had Seller not consummated its purchase through an Exchange, and Purchaser shall pay any additional costs that would not otherwise have been incurred by Seller or Purchaser had Purchaser not consummated its purchase through an Exchange. In connection with an Exchange by Purchaser, (1) Purchaser shall indemnify, protect, defend and hold Seller harmless from any claims, demands, causes of action, judgments, expenses, costs and attorneys’ fees which result from Seller’s cooperation with such Exchange, which obligation shall survive the Closing or termination of this Agreement, and (2) Seller shall not (i) have its rights under this Agreement affected or diminished in any manner, including, but not limited to, any delay in Closing, (ii) be responsible for compliance with or be deemed to have warranted to Purchaser that the Exchange in fact complies with Section 1031 of the Code, or (iii) appear in the chain of title of any other property. In connection with an Exchange by Seller, (A) Seller shall indemnify, protect, defend and hold Purchaser harmless from any claims, demands, causes of action, judgments, expenses, costs and attorneys’ fees which result from Purchaser’s cooperation with such Exchange, which obligation shall survive the Closing or termination of this Agreement, and (B) Purchaser shall not (x) have its rights under this Agreement affected or diminished in any manner including, but not limited to, any delay in Closing, (y) be responsible for compliance with or be deemed to have warranted to Seller that the Exchange in fact complies with Section 1031 of the Code, or (z) appear in the chain of title of any other property.
12.22
Cooperation with Purchaser's Auditors and SEC Filing Requirements
. Subsequent to the Closing but no later than one (1) calendar year following the Closing, Purchaser’s auditor (Moss Adams or any successor auditor selected by Purchaser) may conduct an audit, only to the extent required by the Securities and Exchange Commission (the “
Audit
”), of the income statements of the Property for the last complete fiscal year immediately preceding the Closing and the stub period through the Closing (the “
Audit Period
”) and to otherwise enable Purchaser or its affiliates to prepare audited financial statements to the extent necessary to comply with requirements of the Securities and Exchange Commission. Seller shall reasonably cooperate (at no cost or liability of any kind to Seller) with Purchaser’s auditor in the conduct of the Audit, so long as such cooperation does not entail an excessive amount of time to be spent by Seller or its representatives. Without limiting the foregoing, (a) Purchaser or its designated independent or other auditor may audit the operating statements of the Property for the Audit Period, at Purchaser’s expense and, upon
Purchaser’s reasonable prior written request, Seller shall allow Purchaser’s auditors reasonable access to such books and records maintained by Seller, its property manager or accountants in respect to the Property and pertaining to the Audit Period as necessary to conduct the Audit; and (b) Seller shall use reasonable efforts to provide to Purchaser such existing financial information as may be reasonably required by Purchaser and required for Purchaser’s auditors to conduct the Audit, provided, however, that the ongoing obligations of Seller shall be limited to providing such information or documentation as may be in the possession or control of Seller, Seller’s accountants or property manager, at no cost or liability of any kind to any of such parties, and in the format that Seller (or its property manager or accountants) have maintained such information. The obligations of Seller under this Paragraph shall survive the Closing for one (1) year.
12.23
Confidential Information
. The parties acknowledge that the transaction described herein and the specific terms of this Agreement are of a confidential nature and shall not be disclosed except to Permitted Outside Parties of both Seller and Purchaser, as required by law or otherwise by legal proceedings. In connection with the negotiation of this Agreement and the preparation for the consummation of the transactions contemplated hereby, each of the parties acknowledges that it will have access to confidential information relating to the other party. Seller and Purchaser shall treat such information as confidential, use commercially reasonable efforts to preserve the confidentiality thereof, and not duplicate or use such information, except to Permitted Outside Parties of both Seller and Purchaser in connection with the transactions contemplated hereby. In the event of the termination of this Agreement for any reason whatsoever, each party shall use its commercially reasonable efforts, including instructing its employees and others who have had access to such information, to keep confidential and not to use any such information. The provisions of this Section 12.23 shall survive the Closing for a period of one (1) year or, if the purchase and sale is not consummated, any termination of this Agreement.
12.24
Conditional Delivery
. The submission by Seller to Purchaser of this Agreement in unsigned form shall be deemed to be a submission solely for Purchaser’s consideration and not for acceptance and execution. Such submission shall have no binding force and effect, shall not constitute an option, and shall not confer any rights upon Purchaser or impose any obligations upon Seller irrespective of any reliance thereon, change of position or partial performance. The submission by Seller of this Agreement for execution by Purchaser and the actual execution and delivery thereof by Purchaser to Seller shall similarly have no binding force and effect on Seller unless and until Seller has executed and delivered a counterpart of this Agreement to Purchaser and the good funds constituting the Deposit have been actually received by Title Company.
[Signatures on following page.]
IN WITNESS WHEREOF, this Agreement was executed on the day and year first above written.
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SELLER
:
SUNSET TRIANGLE INVESTORS, LLC,
a California limited liability company
By: 9 Mile Investments, LLC,
a California limited liability company,
Its Manager
By:
Jacob Mathews
Sole Member
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PURCHASER
:
STRATEGIC REALTY OPERATING PARTNERSHIP, LP, a Delaware limited partnership
By: STRATEGIC REALTY TRUST, INC., a Maryland corporation, its general partner
By:
Name:
Title:
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EXHIBIT A
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
LOTS 2, 3 AND 12 IN BLOCK 6 OF CHILDS HEIGHTS, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 39, PAGE 97 OF MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY
ALSO THAT PORTION OF SUNSET BOULEVARD (FORMERLY PARK AVENUE) VACATED BY LOS ANGELES CITY ORDINANCE NO 15176 NEW SERIES, APPROVED AUGUST 6, 1907 ADJOINING LOTS 2 AND 3 ON THE SOUTH, AND LYING BETWEEN THE SOUTHERLY PROLONGATION OF THE EASTERLY LINE OF LOT 2 AND THE WESTERLY LINE OF SAID LOT 3.
APN: 5429-021-027; 5429-021-034
EXHIBIT B
FORM OF TENANT ESTOPPEL LETTER
Re: Suite ____________, _________________, _________________ (the “Premises”)
This estoppel certificate is delivered by the undersigned (“Tenant”) to _____________________ (“Purchaser”) in connection with its contemplated purchase of certain real property commonly known as ______________________________, ______________ (the “Property”) from _________________________ (“Landlord”). Tenant hereby certifies the following information on which Purchaser may rely in connection with its purchase of the Property. Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Lease.
1. The undersigned is the tenant in possession of the Premises under a written lease with Landlord, dated _________________, ____, [as amended by ________________], which lease [as amended] (the “Lease”) is in full force and effect and each provision of which is binding on Tenant in accordance with its terms. The Lease has not been modified or amended, except as specifically set forth above, and contains the entire understanding and agreement between Tenant and Landlord concerning the Premises. A true, complete and accurate copy of the Lease is attached hereto as Exhibit A.
2. The Premises consist of approximately ___________ [net rentable] or [gross] square feet of [office] [retail] space.
3. The current fixed term of the Lease commenced on _____________ and terminates on ____________.
4. Current monthly base rent under the Lease is ___________________. Base rent has been paid through the period ending ____________. As of the date hereof, Tenant has no existing right to free rent, partial rent, rent rebate, credit for improvements, rent abatement, or other rental concessions or any right to payments from Landlord to Tenant except as follows: _________________________.
5. The Lease requires Tenant to pay its pro rata share of real estate taxes and operating expenses for the Property and appurtenant property. Tenant’s pro rata share is ___________. For the calendar year _____, Tenant is obligated to pay monthly estimated amounts for real estate taxes and operating expenses of $_______, and has paid such estimates through the period ending
___________. Tenant is owed no refund of real estate taxes or operating expense payments made for prior calendar years.
6. Tenant has no option to extend or to renew the term of the Lease, except as follows:
.
7. The Lease contains no right of first refusal or offer to lease additional space, option to expand, option to terminate the Lease, or right of first refusal or offer or option to purchase the Property or any interest therein, except as follows:
.
8. The actual cash amount of the security deposit currently held by Landlord is $
. Landlord holds no other funds for Tenant’s account.
9. Tenant is not, and to the best of Tenant’s knowledge Landlord is not, in default under any provision of the Lease, except as follows:
. Tenant asserts no offset or defense against the payment of rent or other charges payable by Tenant or the performance of any other obligations by Tenant under the Lease, except as follows:
. [To the best of Tenant’s knowledge, Tenant is not engaged in any use on the Premises that is not authorized in the Conditional Use and Zone Variance for Case No. ZA 2010-0103(CUB(ZV), applicable to Tenant, as described in the CUP approval letter dated January 28, 2015.]
10. The Premises have been delivered to Tenant, Tenant has accepted the Premises, and Landlord has fully completed all construction and improvements to the Premises required to be completed by Landlord under the Lease. Landlord has fulfilled all obligations to finance or provide an allowance or other reimbursement for improvements to the Premises.
11. Tenant has not assigned its rights under the Lease or sublet any portion of the Premises, except as follows:
.
12.
Neither the Lease nor any obligations of Tenant thereunder have been guaranteed by any person or entity, except as follows (if none, so state):
__________________
.
13. [Tenant will attorn to Purchaser, its assignees, and any other party that succeeds to the interest of Landlord under the Lease.]
The statements made herein shall be binding upon us, our successors and assigns, and shall inure to your benefit and the benefit of your successors and assigns and their mortgage and other lender(s). The officers executing this letter have been duly empowered to do so on behalf of the undersigned.
Dated: ____________________
Very truly yours,
,
a
By:
Name:
Its:
EXHIBIT C
GRANT DEED
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
MAIL TAX STATEMENTS TO:
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Space Above this Line for Recorder’s Use
APN:
The undersigned grantor declares the Documentary Transfer Tax is $_______________ and City Tax is $__________ and is computed on the full value of the interest or property conveyed. The property is located in the City of __________, and County of ____________________, State of California.
GRANT DEED
THIS GRANT DEED is made and entered into this _____ day of _________________, 2016, by SUNSET TRIANGLE INVESTORS, LLC, a California limited liability company (“
Grantor
”), in favor of ___________________, a ________________________ (“
Grantee
”).
W I T N E S S E T H :
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, GRANTOR hereby GRANTS to Grantee that certain real property in the County of Los Angeles, State of California, more particularly described as follows (the “
Property
”):
LEGAL DESCRIPTION IS ATTACHED HERETO AS
EXHIBIT A
AND INCORPORATED HEREIN BY THIS REFERENCE.
The foregoing grant is expressly subject to all matters of record as of the date hereof and those certain unrecorded matters identified and described in
Exhibit B
attached hereto and incorporated herein by this reference.
Mail Tax Statements To: Same as Above
EXECUTED as of the day and year set forth above.
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GRANTOR:
SUNSET TRIANGLE INVESTORS, LLC,
a California limited liability company
By: 9 Mile Investments, LLC,
a California limited liability company,
Its Manager
By:
Jake Mathews
Sole Member
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CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of _______________________
On __________________, 201__ before me, ________________________________________, Notary Public, personally appeared ________________________________________________, who 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 the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
___________________________________
Signature of Notary Public (Notary Seal)
EXHIBIT A TO GRANT DEED
DESCRIPTION OF PROPERTY
EXHIBIT B TO GRANT DEED
OFF-RECORD MATTERS
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1.
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All matters which a correct survey of the Property would disclose.
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2.
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All matters which could be ascertained by a physical inspection of the Property.
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3.
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Interest of tenants, as tenants only, under the following leases:
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4.
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All liens for non-delinquent taxes for real property and personal property, and any non-delinquent general or special assessments against the Property.
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5.
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Zoning ordinances and regulations and any other laws, ordinances or governmental regulations restricting, regulating or relating to the use, occupancy or enjoyment of the Property.
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EXHIBIT D
BILL OF SALE
THIS BILL OF SALE (this “Bill of Sale”) is executed as of the ____ day of __________, _____, by SUNSET TRIANGLE INVESTORS, LLC, a California limited liability company (“Seller”), in favor of _______________________________, a _____________________ (“Purchaser”).
1.
Real Property
. The “Real Property” shall mean the real property located in the County of Los Angeles, State of California, legally described in
Exhibit A
attached to this Bill of Sale, together with the building, structures and other improvements located thereon.
2.
Personal Property
. The “Personal Property” shall mean all furnishings, equipment and other tangible personal property owned by Seller and located on the Real Property that are necessary for the operation of the Real Property, including, without limitation, those certain articles of personal property which are described in
Exhibit B
attached to this Bill of Sale.
3.
Sale
. For good and valuable consideration received by Seller, the receipt and sufficiency of which are hereby acknowledged, Seller hereby sells, assigns and transfers the Personal Property to Purchaser. Seller covenants and agrees to warrant and forever defend title to the Personal Property listed on
Exhibit B
unto Purchaser, its successors and assigns against all claims arising by or through Seller, but not otherwise.
4.
Power and Authority
. Seller represents and warrants to Purchaser that it is fully empowered and authorized to execute and deliver this Bill of Sale, and the individuals signing this Bill of Sale on behalf of Seller each represents and warrants to Purchaser that he or she is fully empowered and authorized to do so.
[Signatures on following page.]
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of the day and year first above written.
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SELLER
:
SUNSET TRIANGLE INVESTORS, LLC,
a California limited liability company
By: 9 Mile Investments, LLC,
a California limited liability company,
Its Manager
By:
Jake Mathews
Sole Member
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EXHIBIT E
LETTER TO TENANTS
___________________, ____
VIA CERTIFIED MAIL
______________________
______________________
______________________
Re: Sale of [property address] (the “Property”)
Ladies and Gentlemen:
You are hereby notified that:
1. As of the date hereof, _______________________________________ (“Seller”) has sold the Property to ______________________________ (“New Owner”).
2. New Owner’s address is:
3. In connection with the sale, Seller has delivered your security deposit in the amount of $____________ to New Owner and retains no portion thereof. As a result of this delivery and this notice, Seller has no further liability to you with respect to your security deposit.
4. Future notices [and payments] with respect to your lease at the Property should be made to the New Owner at the address above.
5.
[If notice and payment addresses are different:
Future rental payments with respect to your lease at the Property should be made to the New Owner at the following address:
]
Very truly yours,
By:
EXHIBIT F
ASSIGNMENT AND ASSUMPTION
OF LEASES AND SECURITY DEPOSITS
THIS ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS (this “Assignment”) is entered into as of the _____ day of _________, ____, between SUNSET TRIANGLE INVESTORS, LLC, a California limited liability company (“Assignor”), and _________________, a ________________ (“Assignee”).
1.
Property
. The “Property” means the real property located in the County of Los Angeles, State of California legally described in
Exhibit A
attached to this Assignment, together with the building, structures and other improvements located thereon.
2.
Leases
. The “Leases” means those leases and occupancy agreements (and guarantees thereof) affecting the Property which are described in
Exhibit B
attached to this Assignment.
3.
Security Deposits
. “Security Deposits” means those cash security deposits set forth on
Exhibit B
, the amount of which has been credited to Assignee in connection with the sale of the Property to Assignee.
4.
Assignment
. For good and valuable consideration received by Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor hereby grants, transfers and assigns to Assignee the entire right, title and interest of Assignor in and to the Leases and the Security Deposits.
5.
Assumption
. Assignee hereby accepts such assignment and assumes the obligations of Assignor as lessor under the Leases (including with respect to the Security Deposits) which accrue and are attributable to the period from and after the date of this Assignment, but not otherwise.
6.
Power and Authority
. Assignor and Assignee hereby each represents and warrants to the other that it is fully empowered and authorized to execute and deliver this Assignment, and the individuals signing this Assignment on behalf of Assignor and Assignee hereby represent and warrant that he or she is fully empowered and authorized to do so.
7.
Attorneys’ Fees
. In the event of any dispute between the parties, whether based on contract, tort or other cause of action or involving bankruptcy or similar proceedings, in any way related to this Assignment or the Property, the non-prevailing party shall pay to the prevailing party all reasonable attorneys’ fees and costs and expenses of any type, without restriction by statute, court rule or otherwise, incurred by the prevailing party in connection with any action or proceeding (including arbitration proceedings, any appeals and the enforcement of any judgment or award), whether or not the dispute is litigated or prosecuted to final judgment. The “prevailing party” shall be determined based upon an assessment of which party’s major arguments or positions taken in
the action or proceeding could fairly be said to have prevailed (whether by compromise, settlement, abandonment by the other party of its claim or defense, final decision, after any appeals, or otherwise) over the other party’s major arguments or positions on major disputed issues. Any fees and costs incurred in enforcing a judgment shall be recoverable separately from any other amount included in the judgment and shall survive and not be merged in the judgment.
8.
Successors and Assigns
. This Assignment shall be binding upon and inure to the benefit of Assignor and Assignee and their respective heirs, legal representatives, successors and assigns.
9.
Counterparts
. This Assignment may be signed in any number of counterparts with the same effect as if the signatures to each counterpart were upon a single instrument, and is intended to be binding when all parties have delivered their signatures to the other parties. Signatures may be delivered by facsimile transmission or by e-mail in a portable document format (
pdf
). All counterparts shall be deemed an original of this Assignment.
10.
Governing Law
. This Assignment shall be governed and interpreted in accordance with the laws of the State of California.
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this Assignment as of the day and year first above written.
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ASSIGNOR
SUNSET TRIANGLE INVESTORS, LLC,
a California limited liability company
By: 9 Mile Investments, LLC,
a California limited liability company,
Its Manager
By:
Jake Mathews
Sole Member
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ASSIGNEE
,
a
By:
Name:
Title:
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EXHIBIT G
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this “Assignment”) is entered into as of the _____ day of __________, ____, between SUNSET TRIANGLE INVESTORS, LLC, a California limited liability company (“Assignor”), and _________________, a _______________ (“Assignee”).
1.
Property
. The “Property” means the real property located in the County of Los Angeles, State of California, legally described in
Exhibit A
attached to this Assignment, together with the building, structures and other improvements located thereon.
2.
Contracts
. “Contracts” means those agreements which are listed on
Exhibit B
attached to this Assignment.
3.
Assignment
. For good and valuable consideration received by Assignor, the receipt and sufficiency of which is hereby acknowledged, Assignor hereby grants, transfers and assigns to Assignee the entire right, title and interest of Assignor in and to the Contracts.
4.
Assumption
. Assignee hereby accepts such assignment and assumes the obligations of Assignor under the Contracts which accrue and are attributable to the period from and after the date of this Assignment, but not otherwise.
5.
Power and Authority
. Assignor and Assignee hereby each represents and warrants to the other that it is fully empowered and authorized to execute and deliver this Assignment, and the individuals signing this Assignment on behalf of Assignor and Assignee hereby represent and warrant that he or she is fully empowered and authorized to do so.
6.
Attorneys’ Fees
. In the event of any dispute between the parties, whether based on contract, tort or other cause of action or involving bankruptcy or similar proceedings, in any way related to this Assignment or the Property, the non-prevailing party shall pay to the prevailing party all reasonable attorneys’ fees and costs and expenses of any type, without restriction by statute, court rule or otherwise, incurred by the prevailing party in connection with any action or proceeding (including arbitration proceedings, any appeals and the enforcement of any judgment or award), whether or not the dispute is litigated or prosecuted to final judgment. The “prevailing party” shall be determined based upon an assessment of which party’s major arguments or positions taken in the action or proceeding could fairly be said to have prevailed (whether by compromise, settlement, abandonment by the other party of its claim or defense, final decision, after any appeals, or otherwise) over the other party’s major arguments or positions on major disputed issues. Any fees and costs incurred in enforcing a judgment shall be recoverable separately from any other amount included in the judgment and shall survive and not be merged in the judgment.
7.
Successors and Assigns
. This Assignment shall be binding upon and inure to the benefit of Assignor and Assignee and their respective heirs, legal representatives, successors and assigns.
8.
Counterparts
. This Assignment may be signed in any number of counterparts with the same effect as if the signatures to each counterpart were upon a single instrument, and is intended to be binding when all parties have delivered their signatures to the other parties. Signatures may be delivered by facsimile transmission or by e-mail in a portable document format (
pdf
). All counterparts shall be deemed an original of this Assignment.
9.
Governing Law
. This Assignment shall be governed and interpreted in accordance with the laws of the State of California.
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered this Assignment as of the day and year first above written.
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ASSIGNOR
SUNSET TRIANGLE INVESTORS, LLC,
a California limited liability company
By: 9 Mile Investments, LLC,
a California limited liability company,
Its Manager
By:
Jake Mathews
Sole Member
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ASSIGNEE
,
a
By:
Name:
Title:
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EXHIBIT H
ASSIGNMENT OF INTANGIBLES
THIS ASSIGNMENT OF INTANGIBLES (this “Assignment”) is made as of the ______ of _________, ____, by SUNSET TRIANGLE INVESTORS, LLC, a California limited liability company (“Assignor”), in favor of ____________________, a __________________ (“Assignee”).
1.
Property
. The “Property” means the real property located in the County of Los Angeles, State of California, legally described in
Exhibit A
attached to this Assignment, together with the building, structures and other improvements located thereon.
2.
Intangibles
. “Intangibles” means all of the Property (as such term is defined in that certain Purchase and Sale Agreement dated ___________, 201_ between Assignor, as Seller, and Assignee [or
, its predecessor], as Purchaser), which has not otherwise been conveyed, sold, transferred or assigned by Assignor to Assignee by other instruments executed and delivered this date by and between Assignor and Assignee.
3.
Assignment
. For good and valuable consideration received by Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor hereby grants, transfers and assigns to Assignee the entire right, title and interest of Assignor in and to the Intangibles.
4.
Power and Authority
. Assignor represents and warrants to Assignee that it is fully empowered and authorized to execute and deliver this Assignment, and the individual signing this Assignment on behalf of Assignor represents and warrants to Assignee that he or she is fully empowered and authorized to do so.
5.
Attorneys’ Fees
. In the event of any dispute between the parties, whether based on contract, tort or other cause of action or involving bankruptcy or similar proceedings, in any way related to this Assignment or the Property, the non-prevailing party shall pay to the prevailing party all reasonable attorneys’ fees and costs and expenses of any type, without restriction by statute, court rule or otherwise, incurred by the prevailing party in connection with any action or proceeding (including arbitration proceedings, any appeals and the enforcement of any judgment or award), whether or not the dispute is litigated or prosecuted to final judgment. The “prevailing party” shall be determined based upon an assessment of which party’s major arguments or positions taken in the action or proceeding could fairly be said to have prevailed (whether by compromise, settlement, abandonment by the other party of its claim or defense, final decision, after any appeals, or otherwise) over the other party’s major arguments or positions on major disputed issues. Any fees and costs incurred in enforcing a judgment shall be recoverable separately from any other amount included in the judgment and shall survive and not be merged in the judgment.
6.
Successors and Assigns
. This Assignment shall be binding upon and inure to the benefit of Assignor and Assignee and their respective heirs, legal representatives, successors and assigns.
7.
Counterparts
. This Assignment may be signed in any number of counterparts with the same effect as if the signatures to each counterpart were upon a single instrument, and is intended to be binding when all parties have delivered their signatures to the other parties. Signatures may be delivered by facsimile transmission or by e-mail in a portable document format (
pdf
). All counterparts shall be deemed an original of this Assignment.
8.
Governing Law
. This Assignment shall be governed and interpreted in accordance with the laws of the State of California.
IN WITNESS WHEREOF, Assignor has executed and delivered this Assignment as of the day and year first above written.
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ASSIGNOR
SUNSET TRIANGLE INVESTORS, LLC,
a California limited liability company
By: 9 Mile Investments, LLC,
a California limited liability company,
Its Manager
By:
Jake Mathews
Sole Member
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EXHIBIT I
LEASES
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1.
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Restaurant Lease, dated April 16, 2014, by and between Sunset Triangle Investors, LLC (“Sunset”) as Landlord, and 3705 Group, LLC (“3705”) as Tenant
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a.
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First Amendment to Restaurant Lease, dated May 11, 2015, by and between Sunset and 3705
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b.
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Second Amendment to Restaurant Lease, dated December 24, 2015, by and between Sunset and 3705
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c.
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Third Amendment to Restaurant Lease, dated July 6, 2016, by and between Sunset and 3705
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d.
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Guaranty of Lease, dated April 16, 2014, by and between Beau Laughlin and Landlord
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2.
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Roof Lease (No. 12274), dated August 6, 1986, by and between Rosen Investment Co. as Lessor, and Gannett Outdoor Co., Inc. of Southern California as Lessee
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a.
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Amendment to Lease, dated on or about July 22, 1999, by and between JR Properties as Lessor and Outdoor Systems as Lessee
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3.
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Restaurant Lease, dated February 15, 2014, by and between Sunset as Landlord and La Conq, LLC as Tenant
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a.
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Guaranty, dated February 5, 2014, by and between Dustin Lancaster and Tyler Bell, jointly and severally, and Landlord
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4.
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AIR Commercial Real Estate Association Standard Industrial/Commercial Single-Tenant Lease – Net, dated August 18, 2014, by and between Sunset as Landlord and Counter Culture Coffee, Inc.
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a.
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Guaranty, dated August 2014, by Brett Smith in favor of Landlord
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EXHIBIT J
CONTRACTS
Republic Services Customer Service Agreement, dated March 19, 2014 (Waste Services), as modified by that certain E-mail correspondence from Leticia Suzuki, dated June 10, 2016
EXHIBIT K
DISCLOSURE SCHEDULE
Seller has agreed to contribute $13,000 (the “
Contribution Amount
”) toward Counter Culture Coffee, Inc.’s fence along Griffith Park Boulevard, as evidenced by email correspondence between Michael Baker and Jesse Kahn, dated November 18, 2016. Seller acknowledges and agrees that Seller is obligated to pay the Contribution Amount on or before the Closing Date, and that Purchaser shall have no obligation therefor.
EXHIBIT L
DUE DILIGENCE ITEMS DELIVERED
1. Original ALTA Survey – JRN Civil Engineers – September 11, 2012
2. Updated ALTA Survey – JRN Civil Engineers – October 20, 2016
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3.
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Phase I Environmental Site Assessment – Environmental Audit, Inc – September 11, 2012
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4.
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Phase II Environmental Site Assessment – Environmental Audit, Inc – September 25, 2012
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5. Memorandum – Environmental Audit, Inc – September 20, 2012
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6.
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Updated Phase I Environmental Site Assessment – Environmental Audit, Inc – February 5, 2016
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7. Floor plan – 1505 Edgecliff-A103 – As Built – August 12, 2013
8. Floor plan – 3701 Sunset-A101 – As Built – August 12, 2013
9. Floor plan – 3701 Sunset-A102 – As Built – August 12, 2013
10. Floor plan – 3705 Sunset-A101 – As Built – July 31, 2013
11. Floor plan – 3705 Sunset-A102 – As Built – July 31, 2013
12. Roof warranty – Allied Roofing and Waterproofing – March 8, 2016
13. Recorded Grant Deed – City of Los Angeles – December 19, 2012
14. Certificate of Occupancy – 3705 W Sunset Blvd and 1505 N Edgecliffe Dr
15. Fire Alarm Permit – 3705 Group – January 15, 2016
16. Application for Building Permit + Inspection Record – 3705 Group – October 8, 2015
17. Electrical Permit – CCC 1505 Edgecliff – October 2, 2015
18. HVAC Permit – CCC 1505 Edgecliff – October 2, 2015
19. Plumbing Permit – CCC 1505 Edgecliff – October 2, 2015
20. Permit Finaled – CCC 1505 Edgecliff – September 24, 2015
21. Appendix A Plan Check Calculations – Miyamoto – May 28, 2015
22. Certificate of Compliance, Division 88 Seismic – LADBS – December 7, 1990
23. Seismic Rehabilitation – 3705 Group – D3 Architecture – August 25, 2015
24. Rent Roll, Rent Calculation, 2016 Rent Paid
25. Tenant Security Deposits
26. Restaurant Lease – 3705 Group – April 16, 2014
27. First Amendment to Lease – 3705 Group – May 11, 2015
28. Second Amendment to Lease – 3705 Group – December 24, 2015
29. Third Amendment to Lease – 3705 Group – July 6, 2016
30. Bike Parking – 3705 Sunset
31. Conditional Use Permit Approval – City of Los Angeles – January 28, 2015
32. Tenant Off-Site Parking Lease – 3705 Group – January 6, 2016
33. Amendment to Lease – CBS Billboard – July 22, 1999
34. Restaurant Lease – La Conq – February 5, 2014
35. Restaurant Lease – Counter Culture Coffee – August 18, 2014
36. Electrical Plans Approved – TEK Engineering Group – CCC – May 11, 2015
37. Mechanical Plumbing Bid Set – Engineered Solutions – CCC
38. Architectural Bid Set – CCC – May 29, 2015
39. Profit & Loss – January through December 2013
40. Profit & Loss – January through December 2014
41. Profit & Loss – January through December 2015
42. Profit & Loss – January through October 2016
43. Annual Property Tax Bill – July 1, 2013 to June 30, 2014
44. Annual Property Tax Bill – July 1, 2014 to June 30, 2015
45. Annual Property Tax Bill – July 1, 2015 to June 30, 2016
46. Annual Property Tax Bill – July 1, 2016 to June 30, 2017
47. Billboard and Parapet Anchorage Assessment – Miyamoto – March 17, 2014
48. Observation Report 1 – LADBS – November 13, 2015
49. Observation Report 2 – LADBS – November 28, 2015
50. Observation Report 3 – LADBS – January 28, 2016
51. Observation Report 4 – LADBS – February 23, 2016
52. Observation Report 5 – LADBS – March 18, 2016
53. Architect’s or Engineer’s Certificate of Compliance – LADBS – May 2, 2016
54. Observation Report Final – LADBS – May 2, 2016
55. Republic Services Contract – March 3, 2014
56. Republic Services Contract Update (Email) – June 10, 2016
57. Preliminary Title Report – First American Title – November 10, 2016
58. Counter Culture Coffee Insurance Certificate – Acord – November 15, 2016
59. Counter Culture Coffee Balance Sheet – December 2014 (Excel Document)
60. Counter Culture Coffee Profit and Loss – December 2014 (Excel Document)
61. Counter Culture Coffee Balance Sheet – December 2015 (Excel Document)
62. Counter Culture Coffee Profit and Loss – December 2015 (Excel Document)
63. 3705 Group, LLC CAM Reconciliation – 2016 (Excel Document)
64. Counter Culture Coffee CAM Reconciliation – 2015 and 2016 (Excel Document)
65. La Conq, LLC CAM Reconciliation – 2015 and 2016 (Excel Document)
66. La Conq, LLC Insurance Certificate – PENDING
67. La Conq, LLC Financial Statements – PENDING
68. 3705 Group Insurance Certificate – PENDING
69. 3705 Group Financial Statements – PENDING
70. Sunset Triangle Investors, LLC – Accounts Receivable Report
71. Sunset Triangle Investors, LLC – Tenant 2016 Payment Date Ledger
EXHIBIT N
OWNER’S AFFIDAVIT
ALTA EXTENDED COVERAGE OWNER’S AFFIDAVIT
Escrow No.
Title order No.
ON THE ___ DAY OF __________, 2016, Sunset Triangle Investors, LLC, a California limited liability company (“Seller”), represents to _____________ Title Insurance Company (the “Title Company”), with respect to that certain real property (the “Property”) described in that certain Preliminary Report dated as of _____________, 2016, issued by the Title Company under order number _____________, that, to Seller’s knowledge:
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1.
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That there are no unrecorded leases affecting the Property, or other parties in possession of the Property, except as shown on
Exhibit A
. As to those tenants set forth on
Exhibit A
, there are no options to purchase or rights of first refusal to purchase contained in the respective leases.
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2.
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Except as set forth on Exhibit B, (A) there has not been any construction, repairs, alterations or improvements made, ordered or contracted to be made on or to the Property (nor materials ordered therefor) by or on behalf of Seller within the last ninety (90) days which has not been paid for, nor are there any fixtures attached to the Property which have not been paid for in full; (B) there are no outstanding or disputed claims for any such work or item; and (C) there is no ongoing construction being performed on or to the Property by or on behalf of Seller.
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This affidavit is made for the purpose of aiding the Title Company in determining the insurability of title to the Property, and to induce said Company to issue an owner’s policy of title insurance in connection with the sale of the Property by Seller on or about the date hereof (the “Sale”).
(Signature Page Follows)
OWNER’S AFFIDAVIT
Page Two
Seller understands that the Title Company is relying on the representations contained herein in insuring the Property in connection with the Sale, and would not insure the same unless said representations were made.
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OWNER:
SUNSET TRIANGLE INVESTORS, LLC,
a California limited liability company
By: 9 Mile Investments, LLC,
a California limited liability company,
Its Manager
By:
Jake Mathews
Sole Member
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PURCHASE AND SALE AGREEMENT
(WOODLAND WEST MARKETPLACE – ARLINGTON, TEXAS)
THIS PURCHASE AND SALE AGREEMENT
(“
Agreement
”) is dated as of January 31, 2017 (the “
Effective Date
”), by and between
TNP SRT WOODLAND WEST HOLDINGS, LLC
,
a Delaware limited liability company (“
Seller
”), and
ORDA CORP.,
a Texas corporation (“
Buyer
”).
Recitals
A
. Buyer desires to acquire the Property from Seller and Seller desires to sell the Property to Buyer, upon the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE
, in consideration of the premises, the mutual representations, warranties, covenants and agreements hereinafter contained, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged and intending to be legally bound, the Parties hereby agree as follows:
1.
Definitions
. Capitalized terms used in this Agreement shall have the meanings set forth in
Addendum I
attached hereto.
2.
Agreement to Purchase and Sell
. Subject to and upon the terms and conditions herein set forth and the representations and warranties contained herein, Seller agrees to sell the Property to Buyer, and Buyer agrees to purchase the Property from Seller.
3.
Consideration
. Seller and Buyer agree that the total Consideration for the Property shall be Fourteen Million Six Hundred Thousand and No/100ths Dollars ($14,600,000.00).
(a)
Deposit; Additional Deposit; Balance of Consideration
. The Consideration shall comprise the following components:
(i)
Initial Earnest Money Deposit; Remaining Earnest Money Deposit
. Within two (2) Business Days of the Effective Date, Buyer shall deposit the Initial Earnest Money Deposit in escrow with the Title Company. If Buyer notifies Seller in writing on or before the end of the Due Diligence Period of Buyer’s election to proceed to close pursuant to the terms hereof, Buyer shall deposit the Remaining Earnest Money Deposit with the Title Company within two (2) Business Days after the Approval Date. At Buyer’s request made to the Title Company the Earnest Money shall be held in a federally insured interest-bearing account and interest accruing thereon shall be for the account of Buyer; provided, however, Buyer shall be solely responsible for any costs or fees associated with such account and such account shall permit immediate withdrawal of funds without penalty. In the event the transaction contemplated hereby is consummated, the Earnest Money plus interest accrued thereon while held by the Title Company shall be credited against Buyer’s payment obligations under this Agreement.
Purchase and Sale Agreement
Page 1 of 34
(ii)
Cash
. Immediately available funds, in an amount equal to the Consideration, less the Earnest Money and the Non-Refundable Payment.
(b)
Non-Refundable Payment
. Concurrently with the delivery to Escrow Holder of the Initial Earnest Money Deposit, as a condition precedent to the effectiveness of this Agreement, Buyer shall deposit in escrow with the Title Company the amount of One Hundred and No/100ths Dollars ($100.00) (the “
Non-Refundable Payment
”), as consideration for Buyer’s rights under
Section 4
of this Agreement and Seller’s execution and delivery of this Agreement. The Non-Refundable Payment shall be immediately released from the Escrow to Seller, shall be fully earned by Seller upon receipt, shall not constitute part of the Initial Earnest Money Deposit and notwithstanding anything in this Agreement to the contrary, shall not be returned to Buyer in any circumstance. The Non-Refundable Payment shall be applicable to the Consideration at the Close of Escrow. Buyer acknowledges that Seller would not have agreed to the terms of
Section 4
of this Agreement had Buyer not made the Non-Refundable Payment to Seller on the terms set forth in this
Section 3(b)
.
(c)
No Financing Contingency
. Buyer acknowledges and agrees that (i) the acquisition of the Property by Buyer is not conditioned upon Buyer obtaining financing for all or any portion of the Purchase Price, and (ii) references in this Agreement to Buyer’s lender or to the effect that Buyer may in fact be seeking financing for the acquisition of the Property shall not be construed as or deemed to be a Buyer Condition Precedent on obtaining and such financing.
4.
Buyer’s Due Diligence
. As more fully provided below, Seller agrees to assist and cooperate with Buyer in obtaining access to the Property and certain documents relating thereto for purposes of inspection and due diligence.
(a)
Physical Inspection of the Property
. At any time(s) reasonably requested by Buyer following the Effective Date and prior to Closing, Seller shall afford Buyer and its authorized representatives reasonable access to the Property for purposes of satisfying Buyer with respect to the suitability of the Property for Buyer’s purposes, the representations, warranties and covenants of Seller contained herein and the satisfaction of any conditions precedent to the Closing; provided, however, that Buyer shall not unreasonably disturb or interfere with the rights of any Tenant. Buyer shall provide Seller with notice on a Business Day not less than two (2) Business Days prior to any such inspections, and Seller, at its election, shall have the right to have a representative present during any such investigations. Seller shall have the right at all times to have a representative of Seller accompany any of Buyer or Buyer’s Agents while such persons are on the Property. Buyer may conduct Tenant interviews, provided Buyer has given Seller notice on a Business Day not less than two (2) Business Days prior to any such interview, and provided further that Seller shall have the right to be present at all such interviews. Notices to Seller pursuant to this
Section 4(a)
may be delivered orally (if made in person, and not via voicemail, to Alan Shapiro at 650-343-9300), or by email (if made to Alan Shapiro at alan.shapiro@glenborough.com and no “out of office” response or other “undelivered” response is generated).
Purchase and Sale Agreement
Page 2 of 34
(b)
Invasive Testing
. Buyer shall not conduct or allow any Invasive Testing without Seller’s prior written consent, which consent may be withheld at Seller’s sole and absolute discretion. Buyer shall provide Seller with notice not less than five (5) Business Days prior to the commencement of any Invasive Testing, accompanied by a detailed work plan describing the nature, scope, location and purpose of the proposed work, and if approved by Seller, Seller shall have the right to have its own consultant present for any such work. Buyer acknowledges and agrees that Seller’s review of Buyer’s work plan is solely for the purpose of protecting Seller’s interests, and shall not be deemed to create any liability of any kind on the part of Seller in connection with such review that, for example, the work plan is adequate or appropriate for any purpose or complies with applicable legal requirements. Invasive Testing to which Seller has given its approval shall be conducted in strict conformity with the work plan approved by Seller. Buyer shall be responsible for and shall obtain any permits required for any investigations conducted by Buyer. All Invasive Testing and all other investigations conducted by Buyer or Buyer’s Agents shall be performed in compliance with all applicable permits and all Laws, at the sole cost and expense of Buyer.
(c)
Damage; Indemnity
. Notwithstanding anything in this Agreement to the contrary, any entry upon, inspection, or investigation of the Property by Buyer or Buyer’s Agents, whether performed before or after the Effective Date, shall be performed at the sole risk and expense of Buyer, and Buyer shall be solely and absolutely responsible for the acts or omissions of Buyer and any of Buyer’s Agents. Furthermore, Buyer shall protect, indemnify, defend and hold Seller, and its successors, assigns, and affiliates harmless from and against any and all losses, damages (whether general, punitive, special, consequential or otherwise), liabilities, claims, causes of action, judgments, costs and legal or other expenses (including, but not limited to, reasonable attorneys’ fees and costs) (collectively, “
Access Claims
”) suffered or incurred by any or all of such indemnified Parties to the extent resulting from (i) any act or omission of Buyer or Buyer’s Agents in connection with entry upon the Property by Buyer or Buyer’s Agents, or the activities, studies or investigations conducted at, to or on the Property by Buyer or Buyer’s Agents, or (ii) any breach on the part of Buyer of its obligations under this
Section 4
. If at any time prior to Closing, Buyer or Buyer’s Agents cause any damage to the Property, Buyer shall, at its sole expense, immediately restore the Property to substantially the same condition as existed immediately prior to the occurrence of such damage, as reasonably determined by Seller. Buyer’s obligation to indemnify, defend and hold Seller harmless shall not apply to matters to the extent arising or resulting from (i) the mere discovery by Buyer of any pre-existing defects in the Property (except to the extent Buyer or Buyer’s Agents exacerbate any such pre-existing condition or such discovery is made in violation of the terms of this Agreement pertaining to Invasive Testing); or (ii) the mere discovery by Buyer of any Hazardous Materials within, on or adjacent to the Property that were not released or deposited by Buyer or any of Buyer’s Agents (except to the extent that Buyer or Buyer’s Agents exacerbate the scope or effect of or cause additional or further release of any such Hazardous Materials or such discovery is made in violation of the terms of this Agreement pertaining to Invasive Testing). Buyer’s obligations under this
Section 4
shall survive the termination of this Agreement or the Closing, as the case may be, notwithstanding any other provisions herein to the contrary, and shall not be limited by
Section 14(c)
. Buyer shall at all times keep the Property free and clear of any mechanics’,
Purchase and Sale Agreement
Page 3 of 34
materialmen’s or design professional’s claims or liens arising out of or relating to its investigations of the Property, whether occurring before or after the Effective Date.
(d)
Liability Insurance
. Prior to any entry onto the Property by Buyer or Buyer’s Agents, Buyer shall provide Seller written evidence that Buyer has procured comprehensive general liability insurance specific to the Property (or with the requisite limits dedicated to the Property) on an “occurrence” form policy covering (at a minimum) (i) the activities of Buyer and Buyer’s Agents on the Property during the period from the Effective Date through the Closing Date; and (ii) Buyer’s indemnity obligation under this Agreement. Such policy shall provide for combined single limit coverage in the minimum amount of $2,000,000, be issued by a company licensed in or authorized to do business in the State in which the Property is located and have a deductible not to exceed $10,000. Seller shall be named as an additional insured under all such liability insurance and prior to any entry onto the Property by Buyer or Buyer’s Agents, Buyer shall deliver to Seller a copy of the insurer’s endorsements which name Seller as an additional insured and provide for contractual liability coverage, and ACORD certificates evidencing that the insurance required under this section is in full force and effect.
(e)
Delivery of Documents and Records
. To the extent not previously delivered, Seller shall deliver the Due Diligence Materials to Buyer within two (2) Business Days after the Effective Date. Except as specifically set forth herein, Seller makes no representations or warranties as to the truth, accuracy or completeness of any materials, data or other information supplied to Buyer in connection with Buyer’s inspection of the Property (e.g., that such materials are complete, accurate, or the final version thereof, or that all such materials are in the Seller’s possession). It is the Parties’ express understanding and agreement that such materials are provided only for Buyer’s convenience in making its own examination and determination prior to the Approval Date, as to whether or not it wishes to purchase the Property, and, in doing so, Buyer shall rely exclusively on its own independent investigation and evaluation of every aspect of the Property and, except as expressly set forth herein, not on any materials supplied by Seller. Buyer expressly disclaims any intent to rely on any such materials provided to it by Seller in connection with its own inspections and agrees that it shall rely solely on its own independently developed or verified information. Buyer agrees that delivery may be accomplished by access to the Due Diligence Materials in an electronic data room established by Seller or Seller’s Broker.
(f)
Contacts with Property Managers
. At any time reasonably requested by Buyer, following the Effective Date and prior to Closing, Buyer may contact and interview the property manager/leasing agent(s) for the Property, if any, on a Business Day, provided Buyer shall give Seller written notice on a Business Day not less than forty-eight (48) hours in advance of the time Buyer desires to conduct such interview, and Seller or its representative may be present during such interview. Notices to Seller pursuant to this subsection may be delivered orally (if made in person, and not via voicemail, to Alan Shapiro at 650-343-9300), or by email (if made to Alan Shapiro at alan.shapiro@glenborough.com and no “out of office” response or other response indicating delivery failure or Mr. Shapiro’s unavailability is generated)..
Purchase and Sale Agreement
Page 4 of 34
(g)
Service Contracts
.
Schedule 3
to this Agreement identifies all Service Contracts to be assumed by Buyer at Closing.
(h)
Approval of Title
. Promptly after the Effective Date, Seller shall request that the Title Company deliver to Buyer a Preliminary Title Report with links to or copies of any underlying exceptions or documents referenced therein. No later than six (6) Business Days prior to the end of the Due Diligence Period, Buyer shall advise Seller what exceptions to title, if any, will be accepted by Buyer. Seller shall have three (3) Business Days after receipt of Buyer’s objections to give to Buyer: (A) written notice that Seller will remove such objectionable exceptions on or before the Closing Date; or (B) written notice that Seller elects not to cause such exceptions to be removed. Seller’s failure to give notice to Buyer within the three (3) Business Day period shall be deemed to be Seller’s election not to cause such exceptions to be removed. If Seller gives Buyer notice or is otherwise deemed to have elected to proceed under clause (B), Buyer shall have until the later of (i) three (3) Business Days after receipt of Seller’s actual or deemed notice as to Seller’s unwillingness to cause such exceptions to be removed, or (ii) the end of the Due Diligence Period, to elect to proceed with the transaction or terminate this Agreement. If Buyer fails to give Seller notice of its election on or before the expiration of such period, Buyer shall be deemed to have elected to terminate this Agreement. If Seller gives notice pursuant to clause (A) and fails to remove any such objectionable exceptions from title prior to the Closing Date, and Buyer is unwilling to take title subject thereto, Buyer shall have the right to elect to terminate this Agreement and
Section 14(a)
shall apply. Notwithstanding the foregoing, Buyer shall be deemed to have objected to any lien encumbering the Property that secures the payment of money, such as mechanic’s liens, materialmen’s liens, delinquent tax liens and judgment liens, and the liens of deeds of trust and mortgages (collectively, “
Monetary Liens
”), unless Buyer otherwise notifies Seller in writing. Monetary Liens shall not include non-delinquent assessments or bond amounts encumbering the property and reflected in the tax bills for the Property, non-delinquent property taxes or assessments, or non-delinquent dues, costs or assessments under declarations, reciprocal easements, or other covenants, conditions or restrictions to which the Property is subject. Seller hereby agrees to remove at or before the Closing and shall cause the Property to be delivered free and clear of, Monetary Liens caused by Seller, including the lien in favor of the Existing Lender. Buyer agrees that “removal” of an exception shall include the Title Company’s willingness to endorse over such exception or provide affirmative assurance to Buyer of no loss or damage to Buyer from such exception.
(i)
New Exceptions
. In the event the Title Company notifies Buyer of any New Exceptions to title after the Approval Date, Buyer shall have two (2) Business Days in which to notify Seller of its approval or disapproval of such New Exception. Failure to deliver notice of approval of such New Exception shall be deemed disapproval of the New Exception. If Buyer disapproves such New Exception, Seller shall notify Buyer within two (2) Business Days thereafter whether or not Seller can or will cause the removal of such New Exception. Failure to deliver such notice by Seller shall be deemed Seller’s refusal to cause the removal of such New Exception. If Seller is unwilling or unable to cause the removal of such New Exception, Buyer shall have the right within two (2) Business Days thereafter in which to
Purchase and Sale Agreement
Page 5 of 34
waive such objection to title and proceed to Closing, or terminate this Agreement, in which case
Section 14(a)
shall apply. Failure by Buyer to deliver notice of waiver shall be deemed Buyer’s objection to title and election to terminate this Agreement. Buyer agrees that “removal” of a New Exception shall include the Title Company’s willingness to endorse over such exception or provide affirmative assurance to Buyer of no loss or damage to Buyer from such New Exception.
(j)
Survey
. Seller has provided Buyer with a copy of an ALTA survey of the Property (the “
Survey
”). If Buyer elects ALTA extended coverage title insurance, with survey coverage, Buyer shall have the right, at its cost, to update, modify, amend or re-certify the Survey as necessary in order for the Title Company to delete the survey exception from the Title Policy or to otherwise satisfy Buyer’s objectives. Seller will consent to the use and update of such Survey by Buyer, at Buyer’s cost. Buyer shall have the right to object to any matters shown in the Survey no later than six (6) Business Days prior to the end of the Due Diligence Period in accordance with Section 4(h). The receipt of an updated Survey shall not be a Buyer Closing Condition.
(k)
Title Commitment during Due Diligence Period
. Buyer shall use diligent, good faith efforts to obtain from the Title Company no later than the end of the Due Diligence Period, such assurances and commitments as to policy form, coverage and endorsements as Buyer may request for the Title Policy. Delivery of the Approval Notice to Seller prior to the end of the Due Diligence Period shall constitute Buyer’s approval of matters affecting title to the Property, including any such matters as are shown on the Survey, subject to Buyer’s rights under
Section 4(h)
and any New Exceptions. Buyer may elect to obtain an owner’s ALTA extended coverage title insurance policy, and such endorsements as Buyer may require, at Buyer’s cost. Seller shall execute and deliver to the Title Company its standard owner’s title affidavit in the form attached hereto as
Exhibit H
. It shall be a condition to Buyer’s obligation to close the Escrow that the Title Company not be unwilling or unable to deliver to Buyer as of the Closing its irrevocable commitment to issue to Buyer its Title Policy consistent in all material respects with the commitment, if any, made by the Title Company as of the Approval Date, subject to New Exceptions approved by Buyer. For the avoidance of doubt, and without limiting the foregoing, if, as of the delivery of the Approval Notice, Buyer is negotiating with the Title Company as to the terms, coverage or endorsements to the Title Policy, it shall not be a condition to Buyer’s obligation to close Escrow that the Title Company agree to such requests by Buyer or provide the coverage or assurances sought by Buyer. If, prior to the Approval Date, Buyer fails to obtain a commitment from the Title Company generally or as to any particular exception or term of the Title Policy sought by Buyer, Buyer shall be deemed, as of the delivery of the Approval Notice, to have waived objections to such matters (notwithstanding any further efforts to address such issues with the Title Company, and notwithstanding any agreement by Seller to cooperate with Buyer or the Title Company in addressing such matters) and approved all exceptions to title other than Monetary Liens and subsequent New Exceptions.
(l)
Buyer’s Right to Terminate
. At any time up to the Approval Date, Buyer has the unqualified right to terminate this Agreement and obtain a full refund of the Earnest Money
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(and any interest thereon), subject to Buyer’s obligations to return Due Diligence Materials to Seller as provided in the Section entitled “Conditions to Closing.” On or before the end of the Due Diligence Period, if Buyer is satisfied with its due diligence review of the Property and matters affecting the Property and wishes to proceed with the acquisition of the Property under this Agreement, Buyer shall give the Seller written notice of its approval of the Property and election to proceed under this Agreement (the “
Approval Notice
”). If Buyer fails to deliver an Approval Notice to Seller on or before the end of the Due Diligence Period, Buyer shall be deemed to have elected to terminate this Agreement, the Agreement shall automatically terminate as of the end of the Due Diligence Period, and Buyer’s Earnest Money (and any interest thereon) shall immediately be returned to Buyer. If Buyer timely delivers its Approval Notice to Seller and timely deposits the Remaining Earnest Money with the Escrow Holder, the Earnest Money shall become non-refundable to Buyer except as specifically set forth herein.
5.
Conditions to Closing
.
(a)
Buyer Closing Conditions
. The conditions set forth in this
Section 5(a)
are conditions precedent to Buyer’s obligation to acquire the Property (“
Buyer Closing Conditions
”). The Buyer Closing Conditions are intended solely for the benefit of Buyer. If any of the Buyer Closing Conditions is not satisfied, Buyer shall have the right in its sole discretion either to waive the Buyer Closing Condition and proceed with the acquisition of the Property without adjustment to the Consideration or terminate this Agreement by written notice to Seller and the Title Company.
(i)
Representations and Warranties; Performance
. The representations and warranties of the Seller contained in
Addendum II
shall be true and correct in all material respects as of the Closing Date as though made at and as of the Closing Date, and Seller shall have timely performed all obligations and covenants of Seller under this Agreement requiring performance prior to the Closing.
(ii)
Title Company Commitment
. The Title Company shall not have withdrawn or modified in any material respect its commitment made as of the Approval Date (if any), to issue the Title Policy at the Closing, subject to New Exceptions approved by Buyer.
(iii)
Tenant Estoppels
. Seller shall have delivered to Buyer the Tenant Estoppels from the Required Tenants, or Seller Estoppels, if any, on or before three (3) days prior to the Closing Date, as required under
Section 8
below.
(b)
Seller Closing Conditions
. The conditions set forth in this
Section 5(b)
are conditions precedent to Seller’s obligation to sell the Property (“
Seller Closing Conditions
”). The Seller Closing Conditions are intended solely for the benefit of Seller. If any of the Seller Closing Conditions is not satisfied, Seller shall have the right in its sole discretion either to waive the Seller Closing Condition and proceed with the transaction or terminate this Agreement by written notice to Buyer and the Title Company.
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(i)
Representations and Warranties; Performance
. The representations and warranties of Buyer contained herein shall be true and correct in all material respects as of the Closing Date as though made at and as of the Closing Date, and Buyer shall have timely performed all covenants and obligations of Buyer under this Agreement requiring performance prior to the Closing.
(c)
Deemed Approval of Conditions
. In the event that any Party having the right of cancellation hereunder based on failure of a condition precedent set forth herein does not inform the other Party and Title Company in writing of the failure of any condition precedent made for the benefit of such Party prior to the Closing, such failure shall be deemed to have been waived, effective as of the Closing; provided that a Party shall not be deemed to have waived any claim for breach of any representation or warranty by the other Party unless such Party has Actual Knowledge of such breach prior to Closing.
(d)
Return of Materials
. Upon termination of this Agreement and the escrow for failure of a condition precedent or upon termination by Buyer prior to the end of the Due Diligence Period, and upon Seller’s written request, Buyer shall return to Seller or otherwise delete or destroy all Due Diligence Materials delivered to Buyer by Seller.
6.
Closing and Escrow
.
(a)
Closing
. The Closing shall occur through the Title Company on the Closing Date.
(b)
Deposit of Agreement and Escrow Instructions
. The Parties shall promptly deposit a fully executed copy of this Agreement with Title Company and this Agreement shall serve as escrow instructions to Title Company for consummation of the transactions contemplated hereby. Title Company is not a party to this Agreement and its execution and acknowledgement of this Agreement is solely for the purpose of acknowledging receipt of a copy of this Agreement, and is not a condition to the effectiveness of this Agreement as between Buyer and Seller. The Parties agree to execute such additional escrow instructions as may be appropriate to enable Title Company to comply with the terms of this Agreement; provided, however, that in the event of any conflict between the provisions of this Agreement and any supplementary escrow instructions, the terms of this Agreement shall control unless such supplementary instructions are signed by both Buyer and Seller and a contrary intent is expressly indicated in such supplementary instructions. Seller and Buyer hereby designate Title Company as the “reporting person” for the transaction pursuant to Section 6045(e) of the Internal Revenue Code and the regulations promulgated thereunder.
(c)
Seller’s Deliveries to Escrow
. At or before the Closing, Seller shall deliver to the Title Company, in escrow, the following:
(i)
the duly executed and acknowledged Deed;
(ii)
a duly executed Assignment of Leases;
(iii)
a duly executed Bill of Sale;
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(iv)
a duly executed Assignment of Contracts;
(v)
a FIRPTA affidavit (in the form attached as
Exhibit E
) pursuant to Section 1445(b)(2) of the Internal Revenue Code of 1986, and on which Buyer is entitled to rely, that Seller is not a foreign person within the meaning of Section
1445(f)(3) of the Internal Revenue Code, and any equivalents required by the states in which the Property is located; and
(vi)
any other instruments, records or correspondence called for hereunder which have not previously been delivered.
(d)
Seller’s Deliveries to Buyer
.
(i)
Deliveries at Closing
. At or before the Closing, Seller shall deliver to Buyer the following:
a)
operating statements for that portion of the current year ending at the end of the calendar month preceding the month in which the Closing Date occurs, provided, however, that if the Closing occurs during the first fifteen days of a month, the operating statement shall be updated to the end of the calendar month that is two months prior to the Closing;
b)
a Rent Roll dated as of the first day of the month in which the Closing Date occurs;
c)
subject to Seller’s obligations in
Section 8
, duly executed original Tenant Estoppels or Seller Estoppels, to the extent required hereunder;
d)
one original form notice to each Tenant, informing it of this transaction; and
e)
all keys, combinations and electronic passwords to the Property.
(ii)
Deliveries After Closing
. Promptly after Closing, Seller shall deliver to Buyer the following, to the extent they have not already been delivered:
a)
originals of the Leases, to the extent available; and
b)
any other instruments, records or correspondence called for hereunder which have not previously been delivered, to the extent available.
(e)
Buyer’s Deliveries to Escrow
. At or before the Closing, Buyer shall deliver or cause to be delivered in escrow to the Title Company the following:
(i)
a duly executed Assignment of Leases;
(ii)
a duly executed Assignment of Contracts; and
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(iii)
the Cash.
(f)
Deposit of Other Instruments
. Seller and Buyer shall each deposit such other instruments as are reasonably required by Title Company or otherwise required to close the escrow and consummate the transactions described herein in accordance with the terms hereof.
7.
Closing Adjustments and Prorations
. With respect to the Property, the following adjustments shall be made, and the following procedures shall be followed:
(a)
Basis of Prorations
. All prorations shall be calculated as of 12:01 a.m. on the Closing Date, on the basis of a 365-day year, meaning Buyer shall be deemed to be the owner of the Property for the full Closing Date.
(b)
Items Not to be Prorated
. There shall be no prorations or adjustments of any kind with respect to:
(i)
Insurance Premiums
. Buyer shall be responsible to obtain insurance covering such risks as Buyer deems necessary or appropriate, commencing as of the Closing Date.
(ii)
Delinquent Rents for Full Months Prior to the Month in which the Closing Occurred
. Delinquent Rents for full months prior to the month in which the Closing occurred shall remain the property of Seller, and Buyer shall have no claim thereto, whether collected before or after the Closing. Seller shall have the right to take collection measures against any delinquent Tenant (including litigation), however Seller shall not seek any remedy which would interfere with Tenant’s continued occupancy and full use of its premises under such Tenant’s Lease, or Buyer’s rights to receive Rents with respect to any period from or after the Closing Date. In the event that Buyer collects any delinquent Rents relating to any period before the Closing Date, Buyer shall promptly pay such amounts over to Seller in accordance with the procedures set forth in subsection (d) below. Buyer shall use commercially reasonable efforts to collect such amounts due from any Tenant; provided that Buyer shall not be required to interfere with the Tenant’s continued occupancy and full use of its premises under such Tenant’s Lease, or Buyer’s rights to receive Rents or Additional Rent with respect to any period beginning on the Closing Date.
(c)
Closing Adjustments
. Prior to Closing, Seller shall prepare and deliver to Buyer for review, comment and agreement, a proration statement for the Property, and each Party shall be credited or charged at the Closing, in accordance with the following:
(i)
Rents and Additional Rents
. Seller shall account to Buyer for any Rents and Additional Rents actually collected by Seller for the rental period in which the Closing occurs, and Buyer shall be credited for its pro rata share.
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(ii)
Expenses
.
a)
Prepaid Expenses
. To the extent Expenses have been paid prior to the Closing Date for the period after the Closing Date, , Seller shall account to Buyer for such prepaid Expenses, and Seller shall be credited for the amount of such prepaid Expenses applicable to the period after the Closing Date.
b)
Unpaid Expenses
. To the extent Expenses relating to the period prior to the Closing Date are unpaid as of the Closing Date but are ascertainable, Buyer shall be credited for Seller’s pro rata share of such Expenses for the period prior to the Closing Date (and Buyer shall assume the obligation to pay for said Expenses).
c)
Property Taxes
. For purposes of this subsection entitled “Expenses,” and subject to the limitations described in this subsection, the Title Company shall pro-rate real property taxes and any special assessments (collectively, “
Property Taxes
”) based on the most recent available tax bills. Property Taxes shall be subject to a post-Closing adjustment once the actual tax bills are available (to the extent that the same are not available at Closing for the period in which the Closing occurs); provided, however, that Buyer shall be solely responsible for any increased taxes resulting from the change in ownership of the Property from Seller to Buyer or resulting from an increased tax levy based upon the Consideration paid hereunder. Notwithstanding the foregoing, to the extent any Tenant is obligated to pay a tax bill directly to the taxing authority, the amounts payable by such Tenant shall not be prorated at Closing. If Seller has paid the Property Taxes payable by any such Tenant, but Seller has not been reimbursed by such Tenant, Buyer shall credit Seller at Closing for the amount paid by Seller, and Buyer shall thereafter have the right to collect those Property Taxes directly from such Tenant after the Closing.
(iii)
Security Deposits
. Seller shall deliver to Buyer all prepaid rents, security deposits, letters of credit and other collateral actually held by Seller or any of its Affiliates under any of the Leases, to the extent not applied by Seller prior to the Closing Date to amounts owing by a Tenant as permitted by the Leases.
(iv)
Utility Deposits
. With respect to any deposits with utility companies, if any of the underlying utility contracts or agreements is assignable by Seller to Buyer, then Seller shall transfer to Buyer the applicable deposits, and Buyer shall credit Seller at the Closing with the actual amount of such deposits transferred to Buyer.
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(d)
Post-Closing Adjustments
. After the Closing Date, Seller and Buyer shall make post-Closing adjustments in accordance with the following:
(i)
Non-delinquent Rents
. If either Buyer or Seller collects any non-delinquent Rents or Additional Rents applicable to the month in which the Closing occurred, such Rents or Additional Rents shall be prorated as of the Closing Date and paid to the Party entitled thereto within ten (10) days after receipt.
(ii)
Delinquent Rents for month in which the Closing occurred
. If either Buyer or Seller collects any Rents or Additional Rents that were delinquent as of the Closing Date and that relate to the rental period in which the Closing occurred, then such Rents or Additional Rents shall be applied in the following order of priority: first, to reimburse Buyer or Seller for all reasonable out-of-pocket, third-party collection costs actually incurred by Buyer or Seller in collecting such Rents or Additional Rents (including the portion thereof relating to the period after the Closing Date); second, to satisfy such Tenant’s Rent or Additional Rent obligations relating to the period after the Closing Date; and third, to satisfy such delinquent Rent or Additional Rent obligations relating to the period prior to the Closing Date. Seller shall have the right to take collection measures against any delinquent Tenants (including litigation), however Seller shall not seek any remedy which would interfere with any Tenant’s continued occupancy and full use of its premises under such Tenant’s Lease, or Buyer’s rights to receive Rent with respect to any period from or after the Closing Date. Buyer shall use commercially reasonable efforts to collect such amounts due from any Tenant; provided that Buyer shall not be required to interfere with any Tenant’s continued occupancy and full use of its premises under such Tenant’s Lease, or Buyer’s rights to receive Rent or Additional Rent with respect to any period beginning on the Closing Date.
(iii)
Percentage Rents
. To the extent that Buyer receives any Percentage Rents after the Closing Date that are applicable to the period of time before the Closing Date (including any such amounts received after any cut-off date for prorated rents set forth in this
Section 7
), Buyer shall render an accounting to Seller with respect to such Percentage Rents and such Percentage Rents shall be applied in the following order of priority: (i) first to Buyer for the period covered by such Percentage Rents following the calendar month in which the Closing occurred until the Tenant under its Lease is current with respect to all Percentage Rents applicable to periods after the Closing Date, and all expenses reasonably incurred by Buyer collecting such rents, (ii) then to Seller and Buyer for the calendar month in which the Closing occurred with such rents and other similar payments being prorated in the same manner as otherwise provided in this
Section 7
at Closing and on the Closing Statement, and (iii) then to Seller for the period prior to the month in which the Closing occurred. If Percentage Rents are based on other than a month-to-month basis (e.g., on a quarterly or annual basis), Percentage Rents collected by Buyer after the Closing Date and applicable to the period of time before the Closing Date shall
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be prorated as of the Closing Date based on the number of days in such period for which such Percentage Rents are paid.
(iv)
Expenses
. With respect to any invoice received by Buyer or Seller after the Closing Date for Expenses that relate to the period in which the Closing occurred and for which a proration was not made at the Closing pursuant to the proration statement delivered to Buyer by Seller prior to the Closing, the Party receiving such invoice shall give the other Party written notice of such invoice, and the other Party shall have thirty (30) days to review and approve the accuracy of any such invoice. If the Parties agree that the invoice is accurate and should be paid, Seller shall compute Seller’s pro rata share, write a check for that amount in favor of the vendor, and then send the invoice and check to Buyer, in which case Buyer agrees that it will pay for its share and forward the invoice and the two payments to the vendor.
(v)
Additional Rents; Payment of 2016 Expenses by Tenants; True Up
. To the extent that Seller has actually collected any portion of Expenses from Tenants under the Leases as Additional Rents for calendar year 2016, Seller may retain all such Additional Rents in amounts not to exceed such Tenants’ share of Expenses actually paid, as determined by the 2016 Reconciliation (defined below). Seller shall use commercially reasonable efforts to complete and deliver to Buyer a reconciliation Expense statement for calendar year 2016 (the “
2016 Reconciliation
”) prior to the Closing Date, but in any event, on or before March 31, 2017. If the 2016 Reconciliation evidences that Seller under-collected Expenses from Tenants for such period, Seller shall receive a credit at Closing for such under-collected Expenses, or, if the 2016 Reconciliation is completed and delivered to Buyer after the Closing, Buyer shall pay such under-collected amount to Seller within thirty (30) days after delivery of the 2016 Reconciliation. Buyer shall be responsible to collect such amounts from Tenants. If the 2016 Reconciliation is delivered to Buyer prior to the Closing and evidences that Seller has over-collected Additional Rent from Tenants for such period, Buyer shall receive a credit at Closing for the Expenses to which such Additional Rents applies and shall be responsible to reimburse such over-collected Expenses to the Tenants or apply the same to Expenses in accordance with the Leases. If the 2016 Reconciliation is completed and delivered to Buyer after the Closing, Seller shall pay such over-collected amounts to Buyer within thirty (30) days after delivery of the 2016 Reconciliation, and Buyer shall thereafter be responsible for making reimbursement to the Tenants or applying the same to Expenses in accordance with the Leases. In absence of manifest error, the 2016 Reconciliation shall be final and binding on the parties as to 2016 Additional Rent and shall not be subject to modification or adjustment based on subsequent or later reconciliations prepared by Buyer or required under the Leases.
(vi)
Additional Rents; Payment of 2017 Expenses by Tenants; True Up
. To the extent that Seller has actually collected any portion of Expenses from Tenants under the Leases as Additional Rents for calendar year 2017, Seller may retain all such Additional Rents in amounts not to exceed such Tenants’ share of Expenses
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actually paid, as determined by the 2017 Stub Reconciliation (defined below). Within sixty (60) days after the Closing, Seller shall prepare and deliver to Buyer a reconciliation Expense statement for the period from and after January 1, 2017, to but not including the Closing Date (the “
2017 Stub Reconciliation
”). If the 2017 Stub Reconciliation evidences that Seller under-collected Expenses from Tenants for such period, Buyer shall pay such amounts to Seller within thirty (30) days after delivery of the 2017 Stub Reconciliation, and Buyer shall be responsible to collect such amounts from Tenants. If the 2017 Stub Reconciliation evidences that Seller has over-collected Additional Rent from Tenants for such period and Buyer did not receive a credit at Closing for the Expenses to which such Additional Rents applies, Seller shall pay such over-collected amounts to Buyer within thirty (30) days after delivery of the 2017 Stub Reconciliation, and Buyer shall thereafter be responsible for making reimbursement to the Tenants or applying the same to Expenses in accordance with the Leases. In absence of manifest error, the 2017 Stub Reconciliation shall be final and binding on the parties as to 2017 Additional Rent and shall not be subject to modification or adjustment based on subsequent or later reconciliations prepared by Buyer or required under the Leases.
(vii)
Survival of Obligations
. The obligations of Seller and Buyer under the Subsection entitled “Post-Closing Adjustments” shall survive the Closing for a period of six (6) months from the Closing Date, at which point all such adjustments shall be made in a final accounting and all prorations hereunder shall be deemed final for all purposes.
(e)
Allocation of Closing Costs
. Closing costs shall be allocated as set forth below:
(i)
Escrow and closing agent charges: 50% to Buyer and 50% to Seller.
(ii)
Recording fees for Deed and any documents in connection with financing for Buyer: 100% to Buyer.
(iii)
Cost of preparation of preliminary title commitments by the Title Company: 100% to Seller.
(iv)
Title insurance premiums and other costs for the Title Policy exclusive of extended coverage, survey coverage, endorsements and lender policies or requirements: 100% to Seller.
(v)
Title insurance premiums and other costs for the Title Policy for extended coverage, survey coverage, endorsements, and any lender policies or requirements: 100% to Buyer.
(vi)
Survey costs: 100% to Buyer for any new survey required by Buyer or any updates, modifications and recertification of any existing survey provided by Seller.
(vii)
Attorneys’ Fees: Each party to pay its own fees.
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(viii)
Other: According to custom where the Property is located.
8.
Tenant Estoppels; SNDAs
. Seller shall use all reasonable efforts to obtain a Tenant Estoppel from all Tenants. Seller shall deliver completed Tenant Estoppels to Buyer as they are received by Seller, and shall use all reasonable efforts to deliver all Tenant Estoppels to Buyer no later than three (3) days prior the Closing Date. It shall be a condition to Buyer’s obligation to close the acquisition of the Property that not later than the Closing Date:
(a)
Tenant Estoppels
. Seller shall have delivered to Buyer Tenant Estoppels from the Required Tenants, which Tenant Estoppels shall (i) be dated no earlier than forty-five (45) days prior to the initial, scheduled Closing Date (and not the Closing Date as it may be extended under this Agreement), (ii) conform to the most recent Rent Roll, (iii) allege no defaults, offsets, or claims against Seller, and (iv) allege no facts that are inconsistent in any material respect with the representations and warranties of Seller in this Agreement or the Due Diligence Materials provided by Seller to Buyer; or
(b)
Seller Estoppels
. To the extent Seller is unable to obtain Tenant Estoppels, or any items required to be therein, from the Required Tenants (other than Major Tenants), Seller shall have delivered to Buyer on the Closing Date a certification (a “
Seller Estoppel
”) in the form and on the terms attached hereto as
Exhibit G
(or as otherwise provided in
Section 8(c)
below). Seller shall have the right, but not the obligation, to fulfill such condition to closing by delivery of a Seller Estoppel, and if a Seller Estoppel is tendered by Seller, Buyer shall be obligated to accept such Seller Estoppel if such Seller Estoppel (i) is dated no earlier than forty-five (45) days prior to the Closing Date, (ii) conforms to the most recent Rent Roll, (iii) alleges no defaults, offsets, or claims against Seller, and (iv) alleges no facts that are inconsistent in any material respect with the representations and warranties of Seller in this Agreement or the Due Diligence Materials provided by Seller to Buyer. If Seller is later able to deliver to Buyer a Tenant Estoppel from any Tenant as to which Seller has provided a Seller Estoppel, the Seller Estoppel shall be and become null and void as to each statement of fact or representation that is substantially identical to a similar fact or representation in the Tenant Estoppel, and to the extent the Tenant Estoppel covers in all material respects the information covered in the Seller Estoppel, the Seller Estoppel as to such Tenant shall become null and void. In no event shall Seller have any liability under any Seller Estoppel unless a claim thereon exceeds the Material Damage Floor and in no event shall any liability of Seller under any Seller Estoppel exceed the Material Damage Ceiling.
(c)
Required Estoppel Form
. Notwithstanding anything in this Agreement, Buyer agrees that the delivery by a Tenant of an estoppel certificate either (i) substantially in the form attached to or required under such Tenant’s Lease, or (ii) on a commercially reasonable, standard form of the Tenant in the case of any Tenant with a national or regional presence and multiple locations, shall be accepted by Buyer, and if and to the extent Seller delivers a Seller Estoppel to Buyer in connection with such Tenant, such Seller Estoppel shall be substantially in the form attached hereto as
Exhibit G
, as modified to reflect only the factual information required of the Tenant under the estoppel certificate required under such Tenant’s Lease or on such standard form
.
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(d)
SNDAs.
Seller shall use commercially reasonable efforts to obtain a Subordination, Non-Disturbance and Attornment Agreement (“
SNDA
”) from the Major Tenants. The form of the SNDA shall be promulgated by the Buyer or its lender. Buyer, with prior or concurrent notice to Seller, shall have the right to contact Tenants about the SNDAs and negotiate SNDAs directly with the Tenants. Seller shall reasonably cooperate with Buyer in the process of obtaining SNDAs. Buyer shall respond promptly to Tenant changes, modifications and comments to SNDAs and shall use commercially reasonable efforts to obtain final, executed SNDAs in a timely manner. Nothing herein shall prohibit or limit Seller from interaction with and direct contact with, any Tenant, at any time or from time to time, about an SNDA or such Tenant’s contacts with Buyer. It shall be a Buyer Closing Condition that Buyer shall have received SNDAs from the Major Tenants (which SNDAs shall be dated no earlier than forty-five (45) days prior to the Closing Date) no later than three (3) Business Days prior to the initial Closing Date, or if the Closing Date is extended as provided, below, no later than two (2) Business Days prior to the Closing Date, as extended; provided, however, such Buyer Closing Condition shall be deemed waived in its entirety if either or both of the following does not or has not occurred as and when required:
(i)
Buyer shall have delivered to Seller, for delivery to Tenants, completed SNDAs for all Major Tenants, on or before three (3) Business Days prior to the end of the Due Diligence Period; and
(ii)
The form of SNDA shall have been pre-approved by Buyer’s lender prior to delivery to Seller, and is a commercially reasonable, standard form (the foregoing subsections (i) and (ii), the “
SNDA Closing Condition Threshold
”).
If Seller has not obtained SNDAs from the Major Tenants by the date that is three (3) Business Days prior to the initial, scheduled Closing Date, either Seller or Buyer may extend the Closing Date one time, for up to an additional ten (10) Business Days, upon written notice to the other Party delivered no later than two (2) days prior to the initial, scheduled Closing Date. If Seller has not delivered the SNDAs of the Major Tenants by the date that is two (2) Business Days prior to the extended Closing Date, Buyer may terminate this Agreement by written notice delivered to Seller no later than the extended Closing Date. The duration of such extension in the Closing Date shall not be computed in the calculation of the 45-day aging requirements for Tenant Estoppels or SNDA and such aging requirement shall be premised on the initial, scheduled Closing Date and not the extended Closing Date. Buyer’s right to so extend the Closing Date is subject to Buyer’s prior, timely satisfaction of the SNDA Closing Condition Threshold. If Buyer exercises its right to terminate this Agreement under this
Section 8(d)
, all Earnest Money shall be returned to Buyer and the parties shall have no further obligations under this Agreement except as expressly provided herein.
9.
Transfer of Property “As Is”
.
(a)
BUYER IS PURCHASING THE PROPERTY “AS IS, WITH ALL FAULTS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (EXCEPT ANY EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT OR THE DOCUMENTS DELIVERED AT CLOSING),
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INCLUDING IMPLIED WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY OR ANY OTHER WARRANTIES WHATSOEVER. AS OF THE CLOSING, BUYER ASSUMES ALL RISKS REGARDING ANY DEFECTS, DAMAGE OR ADVERSE CONDITIONS PERTAINING TO THE CONDITION OF THE PROPERTY, OR ANY LOSS, DIMINUTION IN VALUE, OR INJURY TO THE PROPERTY ARISING FROM ANY GOVERNMENTAL STATUTES, ORDINANCES, REGULATIONS, DECISIONS OR POLICIES PERTAINING TO THE PRESENT OR FUTURE CONDITION, USE, OCCUPANCY, OPERATIONS, MAINTENANCE, REPAIR, IMPROVEMENT, OWNERSHIP OR DISPOSITION OF THE PROPERTY OR ANY PART THEREOF, AND BUYER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR UNDER ANY INSTRUMENT DELIVERED BY SELLER TO BUYER AT CLOSING, (A) NEITHER SELLER NOR ANY OF ITS AGENTS HAVE MADE, AND SPECIFICALLY NEGATE AND DISCLAIM, ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, OF, AS TO, CONCERNING, OR WITH RESPECT TO, (i) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (ii) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH MAY BE CONDUCTED THEREON, (iii) THE COMPLIANCE OF OR BY THE PROPERTY WITH LAWS, (iv) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, OR (v) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND (B) NEITHER SELLER NOR ANY OF ITS AGENTS HAVE MADE, AND SPECIFICALLY NEGATE AND DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING COMPLIANCE OF THE PROPERTY WITH ANY ENVIRONMENTAL LAWS, INCLUDING THOSE PERTAINING TO SOLID WASTE, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., PART 261, OR THE DISPOSAL OR EXISTENCE, IN OR ON THE PROPERTY, OF ANY HAZARDOUS SUBSTANCES, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED, AND THE REGULATIONS PROMULGATED THEREUNDER ("
CERCLA
"). BUYER SHALL RELY SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER OR ITS AGENTS OR CONTRACTORS, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR EXHIBITS OR UNDER ANY INSTRUMENT DELIVERED BY SELLER TO BUYER OR ITS PERMITTED ASSIGNS AT CLOSING. SELLER SHALL NOT BE LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR THE OPERATION THEREOF, FURNISHED BY ANY PARTY PURPORTING TO ACT ON BEHALF OF SELLER. EXCEPT TO THE EXTENT OF ANY BREACH OF ANY EXPRESS REPRESENTATION, WARRANTY OR COVENANT OF SELLER UNDER THIS AGREEMENT OR UNDER ANY INSTRUMENT DELIVERED BY SELLER TO BUYER OR ITS ASSIGNS AT CLOSING. Except as expressly set forth
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in this Agreement, Buyer has not relied and will not rely on, and Seller has not made and is not liable for or bound by, any express or implied warranties, guarantees, statements, representations or information pertaining to the Property or relating thereto (including specifically, without limitation, Property information packages distributed with respect to the Property) made or furnished by Seller or any real estate broker, agent, or third party representing or purporting to represent Seller, to whomever made or given, directly or indirectly, orally or in writing. Buyer represents that it is a knowledgeable, experienced and sophisticated purchaser of real estate and that, except as expressly set forth in this Agreement, it is relying solely on its own expertise and that of Buyer’s consultants in purchasing the Property and shall make an independent verification of the accuracy of any documents and information provided by Seller. Buyer will conduct such inspections and investigations of the Property as Buyer deems necessary, including, but not limited to, the physical and environmental conditions thereof, and shall rely upon same. By failing to terminate this Agreement prior to the expiration of the Due Diligence Period, Buyer acknowledges that Seller has afforded Buyer a full opportunity to conduct such investigations of the Property as Buyer deemed necessary to satisfy itself as to the condition of the Property and the existence or non-existence or curative action to be taken with respect to any Hazardous Materials on or discharged from the Property, and will rely solely upon same and not upon any information provided by or on behalf of Seller or its agents or employees with respect thereto, other than such representations, warranties and covenants of Seller as are expressly set forth in this Agreement. Upon Closing, Buyer shall assume the risk that adverse matters, including, but not limited to, adverse physical or construction defects or adverse environmental, health or safety conditions, may not have been revealed by Buyer’s inspections and investigations. Buyer’s approval of the Property under Section 4(l) above is Buyer’s acknowledgement that it will have reviewed or have had adequate time and opportunity to review the Due Diligence Materials and conduct its diligence review of the Property and matters affecting the Property.
Buyer’s Initials
(b)
Buyer further acknowledges that certain of the Due Diligence Materials may have been prepared by parties other than Seller and Seller makes no representation or warranty of any kind whatsoever, express or implied, as to the accuracy or completeness of any Due Diligence Materials prepared by third parties.
(c)
Except for those matters expressly set forth in this Agreement to survive the Closing and except for the agreements of Seller and Buyer set forth in the closing documents or otherwise entered into at the Closing, Buyer agrees that Buyer’s acceptance of the Deed shall be and be deemed to be an agreement by Buyer that Seller has fully performed, discharged and complied with all of Seller’s obligations, covenants and agreements hereunder and that Seller shall have no further liability with respect thereto.
(d)
AS A MATERIAL INDUCEMENT TO SELLER TO AGREE TO SELL THE PROPERTY TO BUYER AND TO EXECUTE THIS AGREEMENT, EXCEPT TO THE EXTENT SPECIFICALLY PROVIDED TO THE CONTRARY HEREIN OR IN THE
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DEED AND OTHER INSTRUMENTS TO BE EXECUTED AND DELIVERED BY SELLER AT THE CLOSING, OR ANY ACTION FOR BREACH OF ANY REPRESENTATION, WARRANTY AND/OR COVENANT OF SELLER SPECIFICALLY SET FORTH HEREIN, BUYER, FOR ITSELF AND ITS AGENTS, AFFILIATES, SUCCESSORS AND ASSIGNS, HEREBY WAIVES, RELEASES, ACQUITS AND FOREVER DISCHARGES THE SELLER RELATED PARTIES FROM ALL CLAIMS, CAUSES OF ACTION, DEMANDS, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEY’S FEES AND DISBURSEMENTS WHETHER SUIT IS INSTITUTED OR NOT) WHICH BUYER HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF THE PROPERTY OR ANY OF ITS CONSTITUENT ELEMENTS (INCLUDING THE LAND, THE IMPROVEMENTS, THE PERSONAL PROPERTY, THE GENERAL INTANGIBLES, THE LEASES OR THE CONTRACTS), INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO (I) ALL MATTERS DESCRIBED IN SUBPARAGRAPH (a), ABOVE AS ACCEPTED BY BUYER IN “AS IS, WHERE IS, WITH ALL FAULTS” CONDITION, (II) THE STRUCTURAL AND PHYSICAL CONDITION OF THE REAL PROPERTY OR ITS SURROUNDINGS, (III) THE FINANCIAL CONDITION OF THE OPERATION OF THE PROPERTY EITHER BEFORE OR AFTER THE CLOSING DATE, (IV) ANY LAW, ORDINANCE, RULE, REGULATION, RESTRICTION OR LEGAL REQUIREMENT WHICH IS NOW OR MAY HEREAFTER BE APPLICABLE TO THE PROPERTY, (V) THE FINANCIAL CONDITION OR STATUS OF ANY TENANT OR TENANCY FOR THE PROPERTY, (VI) THE ENVIRONMENTAL CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE PRESENCE, DISCOVERY OR REMOVAL OF ANY HAZARDOUS MATERIALS IN, AT, ABOUT OR UNDER THE PROPERTY OR THE APPLICABILITY TO THE PROPERTY OF ANY ENVIRONMENTAL LAWS, AS SUCH ACTS MAY BE AMENDED FROM TIME TO TIME, OR ANY OTHER FEDERAL, STATE OR LOCAL STATUTE OR REGULATION RELATING TO ENVIRONMENTAL CONTAMINATION AT, IN OR UNDER THE PROPERTY, OR (VII) ANY OTHER CONDITIONS, INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL AND OTHER PHYSICAL CONDITIONS, AFFECTING THE PROPERTY WHETHER THE SAME ARE A RESULT OF NEGLIGENCE OR OTHERWISE, INCLUDING SPECIFICALLY, BUT WITHOUT LIMITATION, ANY CLAIM FOR INDEMNIFICATION OR CONTRIBUTION ARISING UNDER ENVIRONMENTAL LAWS, WHETHER ARISING BASED ON EVENTS THAT OCCURRED BEFORE, DURING, OR AFTER SELLER’S PERIOD OF OWNERSHIP OF THE PROPERTY AND WHETHER BASED ON THEORIES OF INDEMNIFICATION, CONTRIBUTION OR OTHERWISE. THE RELEASE SET FORTH IN THIS SECTION SPECIFICALLY INCLUDES, WITHOUT LIMITATION, ANY CLAIMS UNDER ENVIRONMENTAL LAWS OR UNDER THE AMERICANS WITH DISABILITIES ACT OF 1990, AS ANY OF THOSE LAWS MAY BE AMENDED FROM TIME TO TIME AND ANY REGULATIONS, ORDERS, RULES OF PROCEDURES OR GUIDELINES PROMULGATED IN CONNECTION WITH SUCH LAWS, REGARDLESS OF WHETHER THEY ARE IN EXISTENCE ON THE DATE OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, SELLER SHALL REMAIN LIABLE FOR,
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AND BUYER DOES NOT WAIVE OR RELEASE CLAIMS BASED ON FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF SELLER OR ANY SELLER RELATED PARTY. BUYER SHALL NOT MAKE OR INSTITUTE ANY CLAIMS AGAINST ANY OF THE SELLER RELATED PARTIES WHICH ARE INCONSISTENT WITH THE FOREGOING. BUYER AGREES THAT THIS RELEASE SHALL BE GIVEN FULL FORCE AND EFFECT ACCORDING TO EACH OF ITS EXPRESSED TERMS AND PROVISIONS. THIS RELEASE INCLUDES CLAIMS OF WHICH BUYER IS PRESENTLY UNAWARE OR WHICH BUYER DOES NOT PRESENTLY SUSPECT TO EXIST, WHICH IF KNOWN BY BUYER, WOULD MATERIALLY AFFECT BUYER’S RELEASE TO SELLER. IN THIS CONNECTION AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, BUYER AGREES AND ACKNOWLEDGES THAT FACTUAL MATTERS NOW UNKNOWN TO IT MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND BUYER FURTHER AGREES AND ACKNOWLEDGES THAT THE WAIVERS AND RELEASES HEREIN HAVE BEEN NEGOTIATED AND AGREED UPON IN LIGHT OF THAT REALIZATION AND THAT BUYER NEVERTHELESS HEREBY INTENDS TO RELEASE, DISCHARGE, AND ACQUIT THE SELLER RELATED PARTIES FROM ANY SUCH UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES EXCEPT TO THE EXTENT CAUSED BY FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF SELLER OR ANY SELLER RELATED PARTY. BUYER ACKNOWLEDGES THAT BUYER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF BUYER’S SELECTION AND BUYER IS GRANTING THIS RELEASE OF ITS OWN VOLITION AND AFTER CONSULTATION WITH BUYER’S COUNSEL. BUYER ACKNOWLEDGES THAT BUYER HAS CAREFULLY REVIEWED THIS
SECTION 9
AND DISCUSSED ITS IMPORT WITH LEGAL COUNSEL AND THAT THE PROVISIONS OF THIS
SECTION 9
ARE A MATERIAL PART OF THIS AGREEMENT.
Buyer’s Initials ______
(e)
In no event shall Seller be liable to Buyer for any incidental, special, exemplary, punitive or consequential damages, including, without limitation, loss of profits or revenue, interference with business operations, loss of tenants, lenders, investors, buyers, diminution in value of the Property, or inability to use the Property, due to the condition of the Property.
(f)
THIS
SECTION 9
SHALL SURVIVE CLOSING AND DELIVERY OF THE DEED, OR TERMINATION OF THIS AGREEMENT, AND SHALL BE DEEMED INCORPORATED BY REFERENCE AND MADE A PART OF ALL DOCUMENTS DELIVERED BY SELLER TO BUYER IN CONNECTION WITH THE SALE OF THE PROPERTY.
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10.
Seller’s Representations and Warranties
. Seller represents and warrants to Buyer the matters set forth on
Addendum II
, which is incorporated herein by this reference as though fully set forth herein. Other than as expressly contained in this Agreement and
Addendum II
, Seller makes no representations or warranties of any kind relating to the Property or its condition or fitness. Buyer is entitled to rely on Seller’s representations and warranties notwithstanding Buyer’s inspection and investigation of the Property, except to the extent that Buyer has Actual Knowledge on or before the Closing Date that any such representation or warranty is inaccurate in any material respect, and such inaccuracy did not result from a Seller R&W Breach (as defined below). Seller shall promptly notify Buyer if, prior to the Closing, Seller has Actual Knowledge that any representation or warranty of Seller was inaccurate in any material respect on the Effective Date (a “
Seller R&W Breach
”), or was true when given on the Effective Date but became inaccurate in any material respect after the Effective Date (a “
Seller R&W Change
”). If, prior to the Closing, Buyer has Actual Knowledge (whether from Seller or its own investigation) that a Seller R&W Breach has occurred and Seller is unable to cure such Seller R&W Breach within ten (10) days after notice from Buyer of such R&W Breach, such Seller R&W Breach shall be a default on the part of Seller, and Buyer shall have the right, as its sole and exclusive remedy, to terminate this Agreement, upon which termination the Earnest Money (plus interest earned thereon) shall be returned to Buyer, and if such Seller R&W Breach has resulted in a loss in excess of the Material Damage Floor, Seller shall pay the Expense Reimbursement to Buyer, and the Parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive termination of this Agreement. If, prior to the Closing, Buyer has Actual Knowledge (whether from Seller or its own investigation) that a Seller R&W Change has occurred, such Seller R&W Change was not caused by a material breach by Seller of its covenants under this Agreement or by an affirmative, intentional act on the part of Seller which caused such representation and warranty to become inaccurate in any material respect (in which case such Seller R&W Change shall be deemed to be a Seller R&W Breach), and Seller is unable within ten (10) days after notice from Buyer of such R&W Change to eliminate such inaccuracy, Buyer shall have the right, as its sole and exclusive remedy, to terminate this Agreement, upon which termination the Earnest Money (plus interest earned thereon) shall be returned to Buyer and the Parties shall have no further rights or obligations under this Agreement except for those rights and obligations which expressly survive termination of this Agreement. If, prior to the Closing, Buyer has Actual Knowledge that any representation or warranty of Seller is inaccurate in any material respect and Buyer consummates the Closing, such representation or warranty shall be deemed modified by Buyer’s Actual Knowledge. Buyer shall be entitled to seek and recover from Seller its actual damages incurred on account of the breach by Seller of any one or more of the representations and warranties of Seller made herein, only if (i) the breach thereof is first discovered subsequent to Closing, (ii) the claim thereon is asserted by Buyer to Seller in writing on or before the date one hundred eighty (180) days after Closing, (iii) the amount of any such loss, cost, liability, damage and expense suffered by Buyer (when aggregated with all other amounts for which Seller may be liable in connection with breaches of its representations, warranties or covenants under this Agreement) shall exceed the Material Damage Floor; provided, however, in no event shall the amount of any such loss, cost, liability, damage and expense for which Seller shall be liable with respect to such breach (when aggregated with all other damages for which Seller may be liable in connection with breaches of its representations, warranties or covenants under this Agreement) exceed the Material Damage Ceiling.
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11.
Buyer’s Representations and Warranties
. Buyer hereby represents and warrants, as of the Effective Date and as of the Closing Date, to Seller as follows:
(a)
Buyer is duly organized, validly existing and in good standing under the laws of the State of its formation, and as of the Closing will be qualified to do business in the State in which the Property is located.
(b)
Buyer has full power and authority to execute and deliver this Agreement and to perform all of the terms and conditions hereof to be performed by Buyer and to consummate the transactions contemplated hereby. This Agreement and all documents executed by Buyer which are to be delivered to Seller at Closing have been duly executed and delivered by Buyer and are or at the time of Closing will be the legal, valid and binding obligation of Buyer and enforceable against Buyer in accordance with its or their respective terms, except as the enforcement thereof may be limited by applicable Creditors’ Rights Laws. Buyer is not presently subject to any bankruptcy, insolvency, reorganization, moratorium, or similar proceeding.
(c)
The entities and individuals executing this Agreement and the instruments referenced herein on behalf of Buyer and its constituent entities, if any, have the legal power, right and actual authority to bind Buyer to the terms and conditions hereof and thereof.
(d)
Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated by this Agreement, nor the compliance with the terms and conditions hereof will violate or conflict, in any material respect, with any provision of Buyer’s organizational documents or to Buyer’s Actual Knowledge any statute, regulation or rule, or, to Buyer’s Actual Knowledge, any injunction, judgment, order, decree, ruling, charge or other restrictions of any government, governmental agency or court to which Buyer is subject, and which violation or conflict would have a material adverse effect on Buyer. Buyer is not a party to any contract or subject to any other legal restriction that would prevent fulfillment by Buyer of all of the terms and conditions of this Agreement or compliance with any of the obligations under it.
(e)
To Buyer’s Actual Knowledge all material consents required from any governmental authority or third party in connection with the execution and delivery of this Agreement by Buyer or the consummation by Buyer of the transactions contemplated hereby have been made or obtained or shall have been made or obtained by the Closing Date. Complete and correct copies of all such consents shall be delivered to Seller.
(f)
As of the Closing Date, Buyer (i) has made an independent investigation with regard to the Property and has conducted all due diligence investigations deemed by Buyer or its consultants as necessary or appropriate with respect to the Property and matters affecting the Property, (ii) has ascertained to its satisfaction the extent to which the Property complies with applicable zoning, building, environmental, health and safety and all other Laws, and (iii) has determined that the Property is suitable for Buyer’s intended use thereof.
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(g)
There is no litigation pending or, to Buyer’s Actual Knowledge, threatened, against Buyer or any basis therefor that might materially and detrimentally affect the ability of Buyer to perform its obligations under this Agreement. Buyer shall notify Seller promptly of any such litigation of which Buyer becomes aware.
(h)
Buyer is not, nor is any person who owns a controlling interest in or otherwise controls Buyer, (a) listed on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control (“
OFAC
”), Department of the Treasury, and/or on any other similar list maintained by the OFAC pursuant to any authorizing statute, Executive Order or regulation (collectively, “
OFAC Laws and Regulations
”); or (b) a person either (i) included within the term “designated national” as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (ii) designated under Sections 1(a), 1(b), 1(c) or 1(d) of Executive Order No. 13224 (Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), 66 Fed. Reg. 49079 (effective September 24, 2001, and published September 25, 2001) or similarly designated under any related enabling legislation or any other similar Executive Orders (collectively, the “
Executive Orders
”). Neither Buyer nor any of its principals or affiliates is (x) a person or entity with which Seller is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, or that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Orders, or (y) is directly or indirectly affiliated or associated with a person or entity listed in the preceding clause (x). To the best knowledge of Buyer, neither Buyer nor any of its principals or affiliates, nor any brokers or other agents acting in any capacity in connection with the transactions contemplated herein (I) directly or indirectly deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Orders, (II) directly or indirectly engages in any transaction in violation of any Laws relating to drug trafficking, money laundering or predicate crimes to money laundering or (III) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law. As used herein, “
Anti-Terrorism Law
” means the OFAC Laws and Regulations, the Executive Orders and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001), as amended.
12.
Risk of Loss
.
(a)
Notice of Loss
. If, prior to the Closing Date, any portion of the Property suffers a Minor or Major Loss, Seller shall immediately notify Buyer of that fact, which notice shall include sufficient detail to apprise Buyer of the current status of the Property following such loss.
(b)
Minor Loss
. Buyer’s obligations hereunder shall not be affected by the occurrence of a Minor Loss, provided that: (i) upon the Closing, there shall be a credit against the Consideration equal to the amount of any insurance proceeds or condemnation awards collected by Seller as a result of such Minor Loss, plus the amount of any insurance
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deductible; or (ii) insurance or condemnation proceeds available to Seller are sufficient to cover the cost of restoration and the insurance carrier has admitted liability for the payment of such costs. If the proceeds or awards have not been collected as of the Closing, then Seller’s right, title and interest to such proceeds or awards shall be assigned to Buyer at the Closing, together with a credit against the Consideration in the amount of any insurance deductible. This provision shall not limit any of the Buyer’s repair obligations under the Leases. If there is a Minor Loss and insurance coverage as set forth above is not available, Buyer shall have the same rights as if it was a Major Loss.
(c)
Major Loss
. In the event of a Major Loss, Buyer may, at its option to be exercised by written notice to Seller within twenty (20) days of Seller’s notice to Buyer of the occurrence thereof, elect to either (i) terminate this Agreement, or (ii) consummate the acquisition of the Property for the full Consideration, subject to the following. If Buyer elects to proceed with the acquisition of the Property, then the Closing shall be postponed if necessary, to occur on the later of the then-scheduled Closing Date or the date which is ten (10) Business Days after Buyer makes such election and, upon the Closing, Buyer shall be given a credit against the Consideration equal to the amount of any insurance proceeds or condemnation awards collected by Seller as a result of such Major Loss, plus the amount of any insurance deductible. If the proceeds or awards have not been collected as of the Closing, then Seller’s right, title and interest to such proceeds or awards shall be assigned to Buyer, and Seller will cooperate with Buyer as reasonably requested by Buyer in the collection of such proceeds or award. If Buyer fails to give Seller notice within such twenty (20) day period, then Buyer will be deemed to have elected to terminate this Agreement. If the Agreement is not terminated under this Section or otherwise as permitted under this Agreement, Buyer shall be responsible for performance by Buyer as “landlord” under the Leases, including any repair obligations of landlord, and nothing herein shall limit Buyer’s repair obligations or other obligations under the Leases.
13.
Seller’s Continued Operation of the Property
.
(a)
General
. Except as otherwise contemplated or permitted by this Agreement or approved by Buyer in writing, from the Effective Date to the Closing Date, Seller will operate, maintain and repair the Property in a prudent manner, in the ordinary course of business, on an arm’s-length basis and consistent with its past practices.
(b)
Actions Requiring Buyer’s Consent
. Notwithstanding the above terms of this Section, from the Approval Date until the Closing Date, Seller shall not, without the prior written approval of Buyer, which approval shall not be unreasonably withheld or delayed, take any of the following actions except as required by law or existing contractual obligations of Seller:
(i)
Leases
. Execute or renew any Lease; or bring an action to enforce any Lease; or terminate any Lease; or modify or waive any material term of any Lease; provided, however, that if Seller has delivered notice to Buyer of Seller’s request for Buyer’s approval and Buyer has not responded to Seller’s request for Lease approval within
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two (2) Business Days, then Buyer shall be deemed to have approved the Lease activity in question; or
(ii)
Contracts
. Except as otherwise required under this Agreement, enter into, execute or terminate any easement agreement, management agreement or any lease, contract, agreement or other commitment of any sort (including any contract for capital items or expenditures), with respect to the Property that will survive the Closing and be binding on Buyer or the Property after the Closing; provided, however, that if Seller has delivered notice to Buyer of Seller’s request for Buyer’s approval and Buyer has not responded to Seller’s request for approval within two (2) Business Days, then Buyer shall be deemed to have approved the activity in question.
(c)
Cost of Tenant Improvements and Leasing Commissions
.
(i)
New Leases, Renewals, Modifications
. In connection with any new lease, or any renewal of a lease or modification of any existing Lease which extends the term or expands the premises under such Lease other than under an option or right governed by subsections (c)(iii) or (c)(iv) below, which new lease, renewal or modification is entered into between the Effective Date and the Closing, the cost of tenant improvement allowances and leasing commissions in connection with any such new lease, renewal or modification, shall be prorated between Buyer and Seller in proportion to the ratio between the portion of the new lease term or renewal term (following the commencement of rental payments thereunder) which occurs prior to the Closing Date and the portion of the new lease term or renewal term (following the commencement of rental payments thereunder) which occurs after the Closing Date.
(ii)
Existing Leases
. Subject to subsections (c)(iii) and (c)(iv) below, Seller shall be responsible for the cost of all tenant improvement allowances and leasing commissions for all Leases (and amendments thereto) entered into prior to the Effective Date, and Seller’s obligations with respect thereto shall survive the Closing.
(iii)
Tenant Rights Under Existing Leases
. If, during the period between the Effective Date and the Closing Date, any Tenant shall exercise an option or right under an existing Lease to renew the Lease, extend the term of the Lease, or expand its premises, any obligation for tenant improvement allowances and leasing commissions associated with the exercise of such option or right shall be prorated between Seller and Buyer in proportion to the ratio between the portion of the extended lease term (following the commencement of rental payments thereunder) resulting from the exercise of the option which occurs prior to the Closing Date and the portion thereof (following the commencement of rental payments thereunder) which occurs after the Closing Date.
(iv)
Post-Closing Extensions, Renewals, Modifications
. If, on or after the Closing Date, any Tenant shall exercise an option or right under an existing Lease
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to renew the Lease, extend the term of the Lease, or expand its premises, any obligation for tenant improvement allowances and leasing commissions associated with the exercise of such option or right shall be the responsibility of Buyer.
14.
Non-Consummation of the Transaction
. If the transaction is not consummated on or before the Closing Date, the following provisions shall apply:
(a)
No Default
. If the purchase and sale of the Property under this Agreement is not consummated for a reason other than a default by one of the Parties, then (i) the Title Company and each Party shall return to the depositor thereof the Earnest Money and all other funds and items which were deposited hereunder (except that Seller shall retain the Non-Refundable Payment); and (ii) Seller and Buyer shall each bear one-half of any Escrow cancellation charges. Any return of funds or other items by the Title Company or any Party as provided herein shall not relieve either Party of any liability it may have for its wrongful failure to close.
(b)
Default by Seller
. If the transaction is not consummated as a result of a default by Seller, then Buyer, as its sole and only remedies hereunder, to the exclusion of all other potential remedies under this Agreement, at law or in equity, may either (i) terminate this Agreement by delivery of notice of termination to Seller, whereupon (A) the Earnest Money plus interest accrued thereon shall be immediately returned to Buyer, and (B) Seller shall pay to Buyer its Expense Reimbursement, in which case neither Party shall have any further rights or obligations hereunder other than those rights and obligations which expressly survive termination of this Agreement; or (ii) continue this Agreement pending Buyer’s action for specific performance, provided, however, that any such action for specific performance shall not include an action for damages and shall be filed and served by Buyer within thirty (30) days of the date which is the later of (x) the termination of this Agreement by Seller, or (y) the date on which Buyer has Actual Knowledge of the event or occurrence comprising the alleged default on the part of Seller, it being the intent of the Parties hereto that any failure of Buyer to meet the time deadline set for filing shall be deemed to be Buyer’s election to waive and relinquish any rights to enforce specific performance of this Agreement. In the event Buyer files an action for specific performance in accordance with subparagraph (ii) above and Seller prevails in such action, then in addition to its obligations under
Section 15(l)
below, Buyer shall be obligated to pay to Seller an amount equal to the Specific Performance Amount as liquidated damages in order to compensate Seller for actual costs, damages and losses, as well as lost opportunity costs, suffered by Seller due to its inability to sell the Property to a third party pending the resolution of Buyer’s specific performance action. Buyer acknowledges that the damages suffered by Seller due to a delay in selling the Property are difficult to determine and that the Specific Performance Amount has been agreed upon, after negotiation, as the parties’ reasonable estimate of such Seller’s damages. In no event shall Seller be liable to Buyer in connection with any breach or default on the part of Seller under this Agreement for any incidental, special, exemplary, punitive or consequential damages, including, without limitation, loss of profits or revenue, interference with business operations, loss of tenants, lenders, investors, buyers, diminution in value of the Property, or inability to use the Property. Notwithstanding anything to the
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contrary herein, Buyer on its own behalf and on behalf of its agents, members, partners, employees, representatives, officers, directors, agents, related and affiliated entities, successors and assigns (collectively, the “
Buyer Parties
”) hereby agrees that IN NO EVENT OR CIRCUMSTANCE SHALL ANY OF THE DIRECT OR INDIRECT MEMBERS, PARTNERS, EMPLOYEES, REPRESENTATIVES, OFFICERS, DIRECTORS, AGENTS, PROPERTY MANAGEMENT COMPANY, AFFILIATED OR RELATED ENTITIES OF SELLER OR SELLER’S PROPERTY MANAGEMENT COMPANY (COLLECTIVELY, THE “
SELLER PARTIES
”) HAVE ANY PERSONAL LIABILITY UNDER THIS AGREEMENT.
Buyer’s Initials
(c)
Default by Buyer
. If the Closing does not occur as a result of a default by Buyer, then (i) Buyer shall pay all escrow cancellation charges, (ii) to the extent it has not previously been delivered to Seller, the Title Company shall deliver the Earnest Money to Seller as its full and complete liquidated damages and its sole and exclusive remedy for Buyer’s default (provided that this provision shall not limit the Seller’s right to enforce Buyer’s obligations pursuant to
Sections 4(c)
,
15(f)
and
15(l)
, and to obtain monetary damages from Buyer pursuant to those provisions above and beyond any amounts collected pursuant to this liquidated damages provision). If the transaction is not consummated because of a default by Buyer, the Earnest Money together with the interest accrued thereon shall be paid to and retained by Seller as liquidated damages. THE PARTIES HAVE AGREED THAT SELLER’S ACTUAL DAMAGES, IN THE EVENT OF A DEFAULT BY BUYER, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE EARNEST MONEY HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES’ REASONABLE ESTIMATE OF SELLER’S DAMAGES (IN ADDITION TO ANY FEES AND COSTS TO WHICH SELLER IS ENTITLED UNDER
SECTION 15(l)
) AND AS SELLER’S EXCLUSIVE REMEDY AGAINST BUYER, AT LAW OR IN EQUITY, IN THE EVENT OF A DEFAULT UNDER THIS AGREEMENT ON THE PART OF BUYER; PROVIDED, HOWEVER, NOTHING HEREIN SHALL RELIEVE BUYER OF THE INDEMNITY OBLIGATIONS OF BUYER UNDER
SECTIONS 4(c) AND 15(f)
, WHICH EXPRESSLY SURVIVE THE TERMINATION OF THIS AGREEMENT. Notwithstanding anything to the contrary contained in this
Section 14(c)
, in the event of (i) Buyer’s default under this Agreement, (ii) a termination of this Agreement by Buyer, or (iii) a termination of this Agreement by Seller as a result of a default on the part of Buyer, Seller shall have all remedies available at law or in equity if Buyer or any Person related to or affiliated with Buyer asserts any claims or right to the Property that (i) delays or prevents Seller from having clear, indefeasible, and marketable title to the Property or (ii) constitutes slander of title to the Property. In all other events, Seller’s remedies shall be limited to those described in this
Section 14(c)
and
Sections 15(f)
and
15(l)
hereof. If Closing is consummated, Seller shall have all remedies available at law or in equity in the event Buyer fails to perform any obligation of Buyer under this Agreement.
Purchase and Sale Agreement
Page 27 of 34
INITIALS: Seller _____ Buyer _____
15.
Miscellaneous
(a)
Disclosure of Transaction
. Except as may be permitted in
Section 15(o)
below, prior to Closing neither Party shall publicly announce or discuss the execution of this Agreement or the transaction contemplated hereby without the prior written consent of the other Party, which shall not be unreasonably withheld. Notwithstanding the foregoing, nothing herein shall limit or restrict any public announcement or notification which Seller or any Affiliate is required to make under the applicable provisions of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended and the rules and regulations adopted by the Securities and Exchange Commission thereunder.
(b)
Possession
. Possession of the Property shall be delivered to Buyer upon the Closing.
(c)
Force Majeure.
Seller’s corporate headquarters are located in San Mateo, California. If during the term of this Agreement, there occurs a Force Majeure Event (a fire or other casualty, act of God, riot or other civil disturbance, or any other event out of the control of Seller that prevents Seller from having access to and use of its headquarters facility for the conduct of its operations), Seller shall have the right, exercisable by written notice to Buyer within five (5) Business Days of the date of the Force Majeure Event, to extend any period for Seller’s performance hereunder by a period of time equal to the time that Seller reasonably anticipates that it will be unable to use its headquarters, but not to exceed fourteen (14) days.
(d)
Tax Protest
. If, as a result of any tax protest or otherwise, there is any refund or reduction of real property or other tax or assessment relating to the Property applicable to the period prior to Closing, Seller shall be entitled to receive or retain such refund or the benefit of such reduction, less equitable prorated costs of collection and subject to the rights of Tenants under Leases as to any such refunds. To the extent any such tax protest or proceeding is ongoing as of the Closing, Seller shall have the right, but not the obligation, to continue to pursue such protest or proceeding following the Closing, but only to the extent that it applies to the pre-Closing tax periods.
(e)
Notices
. Any notice, consent or approval required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given upon (i) delivery of email on a Business Day between the hours of 9:00 a.m. and 5:00 p.m. the recipient’s time (otherwise, the next following Business Day) (provided that such email contains in all uppercase letters the words “OFFICIAL NOTICE” in the subject line and generates no “out of office” receipt or other message that such delivery was ineffective or delayed), (ii) personal delivery, (iii) confirmed telecopy delivery on a Business Day between the hours of 9:00 a.m. and 5:00 p.m. the recipient’s time (otherwise, the next following Business Day), (iv) one (1) Business Day after being deposited with Federal Express, DHL Worldwide Express or another reliable, nationally-recognized overnight courier service prior to the specified delivery deadline for next-day service, specifying an address to which such courier makes overnight deliveries, or (v) two (2) Business Days after being deposited in the United States
Purchase and Sale Agreement
Page 28 of 34
mail, registered or certified mail, postage prepaid, return receipt required, and addressed as indicated below, or such other address as either Party may from time to time specify in writing to the other. A notice, consent or approval sent in the above manner by counsel to a Party (whether or not identified below as a “copy to” recipient) shall constitute effective delivery of such notice, consent or approval and shall be binding on such Party as if sent by such Party.
|
|
|
If to Buyer:
|
If to Seller:
|
|
|
O.R.D.A. Corporation
15400 Knoll Trail, Suite 350
Dallas, Texas 75248
Attention: David Salomon
Fax No. 972- 960-0627
Email: ordacorp@yahoo.com
|
TNP SRT WOODLAND WEST HOLDINGS, LLC
c/o Glenborough, LLC
66 Bovet Road, Suite 100
San Mateo, CA 94402
Attention: Alan Shapiro
Fax No. 650-343-9690
Email: alan.shapiro@glenborough.com
|
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With a copy to:
|
with a copy to:
|
Colven, Tran & Meredith, PC
1401 Burnham Drive
Plano, Texas 75093
Attention: Thomas J. Colven, III
Fax No. (469) 533-0337
Email: tom@colvenandtran.com
|
TNP SRT WOODLAND WEST HOLDINGS, LLC
c/o Glenborough LLC
66 Bovet Road, Suite 100
San Mateo, CA 94402
Attention: G. Lee Burns, Jr.
Fax No. 650-343-9690
Email: chip.burns@glenborough.com
|
(f)
Brokers and Finder
. Seller has engaged Seller’s Broker to act as Seller’s representative in this transaction, and Seller has sole responsibility for the payment of any amounts due to Seller’s Broker as a result of this transaction, pursuant to a separate written agreement. Buyer has engaged Buyer’s Broker as Buyer’s representative in this transaction. Any commission or finder’s fee due to Buyer’s Broker shall be paid by Buyer or pursuant to separate written agreement between Buyer’s Broker and Seller’s Broker. Except as set forth in the preceding sentences of this paragraph, neither Party has had any contact or dealings regarding the Property, or any communication in connection with the subject matter of this transaction through any real estate broker or other person who can claim a right to a commission or finder’s fee in connection with the transactions contemplated in this Agreement. In the event that any broker or finder perfects a claim for a commission or finder’s fee based upon any such contact, dealings or communication, the Party through whom the broker or finder makes its claim shall be responsible for said commission or fee and shall indemnify and hold harmless the other Party from and against all liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising in connection with such claim for a commission or finder’s fee. The provisions of this subsection shall survive the Closing or the termination of this Agreement.
Purchase and Sale Agreement
Page 29 of 34
(g)
Successors and Assigns
.
Subject to the following, this Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective successors, heirs, administrators and assigns. Seller acknowledges that Buyer intends to assign this Agreement to a newly created entity. Buyer shall have the right, with notice to Seller, but without Seller’s consent, to assign this Agreement to an Affiliate of Buyer at any time before the Closing Date. Buyer shall have no other right to assign this Agreement. Any such assignee(s) shall execute and deliver to Seller a written assignment prepared by Seller and reasonably acceptable to Buyer, pursuant to which such assignee assumes all obligations of Buyer, without releasing Buyer from any obligation hereunder.
(h)
Amendments
.
Except as otherwise provided herein, this Agreement may be amended or modified only by a written instrument executed by Seller and Buyer.
(i)
Governing Law
. The substantive Laws of the State in which the Property is located, without reference to its conflict of law provisions, will govern the validity, construction, and enforcement of this Agreement and the Transaction Documents.
(j)
Merger of Prior Agreements
.
This Agreement and the Addenda, Exhibits and Schedules hereto constitute the entire agreement between the Parties and supersede all prior agreements and understandings between the Parties relating to the subject matter hereof.
(k)
Time for Performance
. Any time deadlines contained herein shall be calculated by reference to calendar days unless otherwise specifically noted. In the event that any time periods for performance hereunder fall on a day that is not a Business Day, the date for performance shall be the next following Business Day.
(l)
Enforcement
.
If either Party fails to perform any of its obligations under this Agreement or if a dispute arises between the Parties concerning the meaning or interpretation of any provision of this Agreement, then the defaulting Party or the Party not prevailing in such dispute shall pay any and all costs and expenses incurred by the other Party on account of such default and/or in enforcing or establishing its rights hereunder, including, without limitation, arbitration or court costs and attorneys’ fees and disbursements. Any such attorneys’ fees and other expenses incurred by either Party in enforcing a judgment in its favor under this Agreement shall be recoverable separately from and in addition to any other amount included in such judgment, and such attorneys’ fees obligation is intended to be severable from the other provisions of this Agreement and to survive and not be merged into any such judgment.
(m)
Time of the Essence
.
THE TIME FRAMES AND DEADLINES FOR PERFORMANCE IN THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE TIME FRAMES AND DEADLINES SET FORTH IN SECTIONS 2, 3 AND 4 WITH RESPECT TO THE EARNEST MONEY, TITLE APPROVAL AND DILIGENCE REVIEW) HAVE BEEN NEGOTIATED BY THE PARTIES AND ARE A MATERIAL PART OF THE CONSIDERATION BETWEEN THE PARTIES. THE PARTIES HERETO AGREE THAT TIME IS OF THE ESSENCE WITH RESPECT TO THIS AGREEMENT,
Purchase and Sale Agreement
Page 30 of 34
AND ALL OF THE TIME FRAMES AND DEADLINES SET FORTH IN THIS AGREEMENT.
INITIALS: Seller _____ Buyer _____
(n)
Severability
.
If any provision of this Agreement, or the application thereof to any person, place, or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such provisions as applied to other persons, places and circumstances shall remain in full force and effect.
(o)
Confidentiality
. Buyer and Seller shall each maintain as confidential any and all material or information about the other, or in the case of Buyer and its agents, employees, consultants and contractors, about the Property, and shall not disclose such information to any third party, except, in the case of information about the Property or the Seller, to Buyer’s investment bankers, investors, lender or prospective lenders, insurance and reinsurance firms, attorneys, environmental assessment and remediation service firms and consultants, as may be reasonably required for the consummation of this transaction and/or as required by law.
(p)
Counterparts
.
This Agreement may be executed in counterparts or duplicate originals, each of which shall be deemed an original but all or which together shall constitute as one and the same instrument, and which shall be the official and governing version in the interpretation of this Agreement. This Agreement may be executed and delivered by facsimile or electronic transmission and the Parties agree that such facsimile or electronic (e.g., pdf) execution and delivery shall have the same force and effect as delivery of an original document with original signatures, and that each Party may use such facsimile or electronic signatures as evidence of the execution and delivery of this Agreement by the Parties to the same extent that an original signature could be used.
(q)
Addenda, Exhibits and Schedules
. All addenda, exhibits and schedules referred to herein are, unless otherwise indicated, incorporated herein by this reference as though set forth herein in full. The Exhibits, Addenda and Schedules to this Agreement are:
Exhibit A – Deed
Exhibit B – Assignment and Assumption of Leases
Exhibit C – Bill of Sale
Exhibit D – Assignment and Assumption of Warranties and
Other General Intangibles
Exhibit E – Certificate of Transferor Other than an Individual (FIRPTA Affidavit)
Exhibit F – Form of Tenant Estoppel
Exhibit G – Form of Seller Estoppel
Exhibit H – Form of Owner’s Title Affidavit
Addendum I – Definitions
Addendum II – Seller’s Representations and Warranties
Purchase and Sale Agreement
Page 31 of 34
Schedule 1 – Due Diligence Materials
Schedule 2 – Description of Land
Schedule 3 – Assumed Service Contracts
Schedule 4 – Environmental Reports
Schedule 5 – Rent Roll
Schedule 6 – Exceptions to Seller Representations and Warranties
(r)
Construction
. Headings at the beginning of each section and subsection are solely for the convenience of the Parties and are not a part of the Agreement. Whenever required by the context of this Agreement, the singular shall include the plural and the masculine shall include the feminine and vice versa. This Agreement shall not be construed as if it had been prepared by one of the Parties, but rather as if both Parties had prepared the same.
(s)
Tax Free Exchange
. As an accommodation to Buyer, Seller agrees to cooperate with Buyer to accomplish an I.R.C. Section 1031 like kind tax deferred exchange, provided that the following terms and conditions are met; (i) Buyer shall give Seller notice of any desired exchange not later than five (5) days prior to the Closing Date; (ii) Seller shall in no way be liable for any additional costs, fees and/or expenses relating to the exchange; (iii) if, for whatever reason, the Closing does not occur, Seller shall have no responsibility or liability to the third party involved in the exchange transaction, if any; and (iv) Seller shall not be required to make any representations or warranties nor assume or incur any obligations or personal liability whatsoever in connection with the exchange transaction. Buyer indemnifies and agrees to hold Seller and each Seller Related Party harmless from and against any and all causes, claims, demands, liabilities, costs and expenses, including attorneys’ fees, as a result of or in connection with any such exchange. As an accommodation to Seller, Buyer agrees to cooperate with Seller to accomplish an I.R.C. Section 1031 like kind tax deferred exchange, provided that the following terms and conditions are met; (i) Seller shall give Buyer notice of any desired exchange not later than five (5) days prior to the Closing Date; (ii) Buyer shall in no way be liable for any additional costs, fees and/or expenses relating to the exchange; (iii) if, for whatever reason, the Closing does not occur, Buyer shall have no responsibility or liability to the third party involved in the exchange transaction, if any; and (iv) Buyer shall not be required to make any representations or warranties nor assume or incur any obligations or personal liability whatsoever in connection with the exchange transaction. Seller indemnifies and agrees to hold Buyer harmless from and against any and all causes, claims, demands, liabilities, costs and expenses, including attorneys’ fees, as a result of or in connection with any such exchange.
(t)
Waiver of Jury Trial
. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BUYER AND SELLER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ANY
Purchase and Sale Agreement
Page 32 of 34
ACTIONS OF EITHER PARTY ARISING OUT OF OR RELATED IN ANY MANNER WITH THIS AGREEMENT OR THE PROPERTY (INCLUDING WITHOUT LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT OR ANY CLAIMS OR DEFENSES ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO AND ACCEPT THIS AGREEMENT AND THE DOCUMENTS TO BE DELIVERED BY THE OTHER PARTY AT CLOSING, AND SHALL SURVIVE THE CLOSING OR TERMINATION OF THIS AGREEMENT. Each party hereby authorizes and empowers the other to file this Section and this Agreement with the clerk or judge of any court of competent jurisdiction as a written consent to waiver of jury trial.
[Signatures on following page]
Purchase and Sale Agreement
Page 33 of 34
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above.
SELLER
:
TNP SRT WOODLAND WEST HOLDINGS, LLC
,
a Delaware limited liability company
By:
Name:
Title:
BUYER
:
ORDA CORP.,
a Texas corporation
By:
David Salomon, President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
Purchase and Sale Agreement
Page 34 of 34
First American Title Insurance Company
The undersigned executes this Agreement for the purpose of acknowledging its agreement to serve as escrow agent in accordance with the terms of this Agreement and to acknowledge receipt of a fully executed copy of the Agreement.
First American Title Insurance Company
By: ________________________
Its: ________________________
Purchase and Sale Agreement
Page 35 of 34
EXHIBIT A
DEED
Upon recording, please return to:
SPECIAL WARRANTY DEED
TNP SRT WOODLAND WEST HOLDINGS, LLC, a Delaware limited liability company (“
Grantor
”), for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) cash, and other good and valuable consideration this day paid by _____________________________, a ___________________________ (
Grantee
”), the receipt and sufficiency of which consideration are hereby confessed and acknowledged,
has GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents does GRANT, BARGAIN, SELL and CONVEY unto Grantee that certain real property more particularly described in
Exhibit A
attached hereto and made a part hereof (the “
Property
”).
The conveyance of the Property is made by Grantor and accepted by Grantee subject to (a) the matters herein stated, (b) the matters set forth on
Exhibit B
attached hereto and made a part hereof (the "
Permitted Exceptions
"), and (c) real estate taxes and standby fees for the year 201_ (which are assumed by Grantee).
THE PROPERTY IS CONVEYED TO AND ACCEPTED BY GRANTEE IN ITS “AS IS, WHERE IS, WITH ALL FAULTS”, CONDITION WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED (EXCEPT THE SPECIAL WARRANTY OF TITLE SET FORTH IN THIS DEED), INCLUDING IMPLIED WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY OR ANY OTHER WARRANTIES WHATSOEVER. GRANTEE ASSUMES ALL RISKS REGARDING ANY DEFECTS, DAMAGE OR ADVERSE CONDITIONS PERTAINING TO THE CONDITION OF THE PROPERTY, OR ANY LOSS, DIMINUTION IN VALUE, OR INJURY TO THE PROPERTY ARISING FROM ANY GOVERNMENTAL STATUTES, ORDINANCES, REGULATIONS, DECISIONS OR POLICIES PERTAINING TO THE PRESENT OR FUTURE CONDITION, USE, OCCUPANCY, OPERATIONS, MAINTENANCE, REPAIR, IMPROVEMENT, OWNERSHIP OR DISPOSITION OF THE PROPERTY OR ANY PART THEREOF. GRANTEE ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED IN THAT CERTAIN PURCHASE AND SALE AGREEMENT FOR THE PROPERTY BY AND BETWEEN
Purchase and Sale Agreement
Exhibit A – Deed
Page 1 of 5
846565.4
GRANTOR AND GRANTEE DATED AS OF ____________, 201_, (A) NEITHER GRANTOR NOR ANY OF ITS AGENTS HAVE MADE, AND SPECIFICALLY NEGATE AND DISCLAIM, ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, OF, AS TO, CONCERNING, OR WITH RESPECT TO, (i) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (ii) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH MAY BE CONDUCTED THEREON, (iii) THE COMPLIANCE OF OR BY THE PROPERTY WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY, (iv) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, OR (v) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND (B) NEITHER GRANTOR NOR ANY OF ITS AGENTS HAVE MADE, AND SPECIFICALLY NEGATE AND DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING COMPLIANCE OF THE PROPERTY WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES, REGULATIONS, ORDERS, REQUIREMENTS, OR REGARDING LIABILITIES UNDER COMMON LAW, INCLUDING THOSE PERTAINING TO HAZARDOUS MATERIALS, AS DEFINED BELOW, OR THE DISPOSAL OR EXISTENCE IN, ON, OR UNDER THE PROPERTY, OR ANY ADJACENT PROPERTIES, OF ANY HAZARDOUS MATERIALS. GRANTEE ACKNOWLEDGES THAT GRANTOR HAS AFFORDED GRANTEE A FULL OPPORTUNITY TO CONDUCT SUCH INVESTIGATIONS OF THE PROPERTY AS GRANTEE DEEMS NECESSARY TO SATISFY GRANTEE AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR NON EXISTENCE OF, OR THE NECESSITY FOR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO, ANY HAZARDOUS MATERIALS ON OR DISCHARGED FROM THE PROPERTY. GRANTEE ASSUMES THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL OR CONSTRUCTION DEFECTS OR ADVERSE ENVIRONMENTAL, HEALTH OR SAFETY CONDITIONS, MAY NOT HAVE BEEN REVEALED BY GRANTEE’S INSPECTIONS AND INVESTIGATIONS.
GRANTEE, FOR ITSELF AND ITS AGENTS, AFFILIATES, SUCCESSORS AND ASSIGNS, HEREBY WAIVES, RELEASES, ACQUITS AND FOREVER DISCHARGES GRANTOR AND ITS AGENTS, AFFILIATES, SUCCESSORS AND ASSIGNS FROM ALL CLAIMS, CAUSES OF ACTION, DEMANDS, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEY’S FEES AND DISBURSEMENTS WHETHER SUIT IS INSTITUTED OR NOT) WHICH GRANTEE HAS OR MAY HAVE IN THE FUTURE ON ACCOUNT OF OR IN ANY WAY ARISING OUT OF THE PROPERTY OR ANY OF ITS CONSTITUENT ELEMENTS (INCLUDING THE LAND, THE IMPROVEMENTS, THE PERSONAL PROPERTY, THE GENERAL INTANGIBLES, THE LEASES OR THE CONTRACTS), INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO (I) ALL MATTERS DESCRIBED IN THIS DEED, ABOVE AS ACCEPTED BY GRANTEE IN “AS IS, WHERE IS, WITH ALL FAULTS” CONDITION, (II) THE STRUCTURAL AND PHYSICAL CONDITION OF THE PROPERTY OR ITS SURROUNDINGS, (III) THE FINANCIAL CONDITION OF THE OPERATION OF THE PROPERTY EITHER BEFORE OR AFTER THE
Purchase and Sale Agreement
Exhibit A – Deed
Page 2 of 5
846565.4
CLOSING DATE, (IV) ANY LAW, ORDINANCE, RULE, REGULATION, RESTRICTION OR LEGAL REQUIREMENT WHICH IS NOW OR MAY HEREAFTER BE APPLICABLE TO THE PROPERTY, (V) THE FINANCIAL CONDITION OR STATUS OF ANY TENANT OR TENANCY FOR THE PROPERTY, (VI) THE ENVIRONMENTAL CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE PRESENCE, DISCOVERY OR REMOVAL OF ANY HAZARDOUS MATERIALS IN, AT, ABOUT OR UNDER THE PROPERTY OR THE APPLICABILITY TO THE PROPERTY OF ANY ENVIRONMENTAL LAWS, AS SUCH ACTS MAY BE AMENDED FROM TIME TO TIME, OR ANY OTHER FEDERAL, STATE OR LOCAL STATUTE OR REGULATION RELATING TO ENVIRONMENTAL CONTAMINATION AT, IN OR UNDER THE PROPERTY, OR (VII) ANY OTHER CONDITIONS, INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL AND OTHER PHYSICAL CONDITIONS, AFFECTING THE PROPERTY WHETHER THE SAME ARE A RESULT OF NEGLIGENCE OR OTHERWISE, INCLUDING SPECIFICALLY, BUT WITHOUT LIMITATION, ANY CLAIM FOR INDEMNIFICATION OR CONTRIBUTION ARISING UNDER ENVIRONMENTAL LAWS, WHETHER ARISING BASED ON EVENTS THAT OCCURRED BEFORE, DURING, OR AFTER GRANTOR’S PERIOD OF OWNERSHIP OF THE PROPERTY AND WHETHER BASED ON THEORIES OF INDEMNIFICATION, CONTRIBUTION OR OTHERWISE. THE RELEASE SET FORTH IN THIS SECTION SPECIFICALLY INCLUDES, WITHOUT LIMITATION, ANY CLAIMS UNDER ENVIRONMENTAL LAWS OR UNDER THE AMERICANS WITH DISABILITIES ACT OF 1990, AS ANY OF THOSE LAWS MAY BE AMENDED FROM TIME TO TIME AND ANY REGULATIONS, ORDERS, RULES OF PROCEDURES OR GUIDELINES PROMULGATED IN CONNECTION WITH SUCH LAWS, REGARDLESS OF WHETHER THEY ARE IN EXISTENCE ON THE DATE OF THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, GRANTOR SHALL REMAIN LIABLE FOR, AND GRANTEE DOES NOT WAIVE OR RELEASE CLAIMS BASED ON FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF GRANTOR. GRANTEE SHALL NOT MAKE OR INSTITUTE ANY CLAIMS AGAINST GRANTOR OR ITS AGENTS, AFFILIATES, SUCCESSORS OR ASSIGNS WHICH ARE INCONSISTENT WITH THE FOREGOING. GRANTEE AGREES THAT THIS RELEASE SHALL BE GIVEN FULL FORCE AND EFFECT ACCORDING TO EACH OF ITS EXPRESSED TERMS AND PROVISIONS. THIS RELEASE INCLUDES CLAIMS OF WHICH GRANTEE IS PRESENTLY UNAWARE OR WHICH GRANTEE DOES NOT PRESENTLY SUSPECT TO EXIST, WHICH IF KNOWN BY GRANTEE, WOULD MATERIALLY AFFECT GRANTEE’S RELEASE TO GRANTOR. IN THIS CONNECTION AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, GRANTEE AGREES AND ACKNOWLEDGES THAT FACTUAL MATTERS NOW UNKNOWN TO IT MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND GRANTEE FURTHER AGREES AND ACKNOWLEDGES THAT THE WAIVERS AND RELEASES HEREIN HAVE BEEN NEGOTIATED AND AGREED UPON IN LIGHT OF THAT REALIZATION AND THAT GRANTEE NEVERTHELESS HEREBY INTENDS TO RELEASE, DISCHARGE, AND ACQUIT GRANTOR AND ITS AGENTS, AFFILIATES, SUCCESSORS AND ASSIGNS FROM ANY SUCH UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES EXCEPT TO
Purchase and Sale Agreement
Exhibit A – Deed
Page 3 of 5
846565.4
THE EXTENT CAUSED BY FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF GRANTOR. GRANTEE ACKNOWLEDGES THAT GRANTEE HAS CAREFULLY REVIEWED THIS DEED AND DISCUSSED ITS IMPORT WITH LEGAL COUNSEL AND THAT THE PROVISIONS OF THIS DEED ARE A MATERIAL PART OF THE AGREEMENT WITH GRANTOR.
For purposes hereof, “Hazardous Materials” means “Hazardous Substance,” “Pollutant or Contaminant,” and “Petroleum” and “Natural Gas Liquids,” as those terms are defined or used in Section 101 of CERCLA, and any other substances regulated, or that in the future become regulated, under any federal, state, or local law, including, without limitation, statues, ordinances, rules, and orders, because of their effect or potential effect on public health or the environment, including, without limitation, PCBs, lead paint, asbestos, urea formaldehyde, radioactive materials, putrescible materials, infectious materials, and biological matter, including, without limitation, mold, mildew and fungi. “Environmental Laws” means all federal, state, local or administrative agency ordinances, laws, rules, regulations, orders or requirements relating to Hazardous Materials.
TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereunto in anywise belonging, unto Grantee, its successors and assigns, forever; and Grantor does hereby bind itself, its successors and assigns, to warrant and forever defend, all and singular, the Property unto Grantee, its successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise, subject, however, to (a) the Permitted Exceptions and the matters herein stated, and (b) taxes and standby fees for the year 201_, which have been assumed by Grantee.
Grantor, for the same consideration and subject to the Permitted Exceptions, grants, sells, and conveys to Grantee, without express or implied warranty, the strips or gores, if any, between the Property and abutting properties and land lying in or under any public thoroughfare, opened or proposed, abutting or adjacent to the Property, together with all and singular the rights and appurtenances thereto in any way belonging, to have and to hold it to Grantee and Grantee's heirs, successors, and assigns forever. All warranties that might arise by common law as well as the warranties in section 5.023 of the Texas Property Code (or its successor) are excluded as to the property conveyed by this paragraph.
EXECUTED on the dates of the acknowledgments below to be effective as of this ____ day of ________________, 201_.
[Signature on following page]
Purchase and Sale Agreement
Exhibit A – Deed
Page 4 of 5
846565.4
|
|
|
Signed, sealed and delivered
in the presence of:
|
TNP SRT WOODLAND WEST HOLDINGS, LLC,
a Delaware limited liability company
By:________________________________________
Name:
Title:
|
Purchase and Sale Agreement
Exhibit A – Deed
Page 5 of 5
846565.4
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of
)
) ss.
County of
)
On
,
before me,
(here insert name and title of officer), personally appeared
, who signed the above-referenced Instrument in my presence and who 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(ies) upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing is true and correct.
WITNESS my hand and official seal.
________________________________ [Seal]
Purchase and Sale Agreement
Exhibit A – Deed
Acknowledgment
846565.4
EXHIBIT A
TO LIMITED WARRANTY DEED
REAL PROPERTY DESCRIPTION
Real property in the City of Arlington, County of Tarrant, State of Texas, described as
follows:
TRACT 1 (FEE SIMPLE)
BEING Lots 3-R-5A, and Lot 5-R-A1, of Woodlands West Shopping Center, on addition to the City of Arlington, Tarrant County, Texas, according to the plot thereof recorded in Cabinet A, Slide 3671, Plat Records, Tarrant County, Texas, as corrected by Affidavit filed 02/06/2012, recorded in cc# D212028031, Real Property Records, Tarrant County, Texas.
TRACT 2 (NON-EXCLUSIVE EASEMENT)
Non-exclusive easement created pursuant to Agreement by and between Robert S. Folsom and Metropolitan Savings and Loan Association dated 06/13/1977 and recorded in Volume 6259, Page 297, Real Property Records, Tarrant County, Texas and re-recorded in Volume 6306, Page 737, Real Property Records, Tarrant County, Texas.
TRACT 3 (NON-EXCLUSIVE EASEMENT)
Non-exclusive easement created pursuant to Reciprocal Easement Agreement by and between Massachusetts Mutual Life insurance Company and The City of Arlington, dated 04/16/1996, filed for record 04/22/1996 and recorded in Volume 12338, Page 868, Real Property Records, Tarrant County, Texas.
Purchase and Sale Agreement
Exhibit A – Deed
Exhibit A – Real Property Description
846565.4
EXHIBIT B
TO SPECIAL WARRANTY DEED
PERMITTED EXCEPTIONS
|
|
1.
|
Taxes and special assessments, for the year 201_ and thereafter, none now due and payable. Parcel No. _____________________.
|
|
|
2.
|
[ALL MATTERS DISCLOSED IN THE PRELIMINARY REPORT, AND ANY NEW EXCEPTIONS, WHETHER OR NOT ENDORSED OVER OR AFFIRMATIVELY INSURED BY THE TITLE COMPANY, EXCEPT FOR THOSE MATTERS SELLER IS OBLIGATED TO REMOVE].
|
|
|
3.
|
The following matters disclosed by a survey of the Property made by _______________. dated ____________________, designated Job No. ______________:
|
|
|
4.
|
[MATTERS DESCRIBED IN THE PRECEDING SPECIAL WARRANTY DEEDS UNDER WHICH SELLER AND ITS PREDECESSOR IN INTEREST OBTAINED TITLE].
|
Purchase and Sale Agreement
Exhibit A – Deed
Exhibit B – Permitted Exceptions
846565.4
EXHIBIT B
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (“
Assignment
”) dated as of __________, 201_, is entered into by and between
TNP SRT WOODLAND WEST HOLDINGS, LLC
, a Delaware limited liability company (“Assignor”), and ____________________________ a _________________________ (“
Assignee
”).
W I T N E S S E T H:
WHEREAS, Assignor is the lessor under certain leases executed with respect to that certain real property located at 2613-2833 W. Park Row Drive and 1112-01226 S. Bowen Road, in the City of Arlington, County of Tarrant, State of Texas (the “
Property
”), as more fully described in
Exhibit A
attached hereto, which leases are described in the Rent Roll attached hereto as
Schedule 1
(the “
Leases
”); and
WHEREAS, Assignor has entered into that certain Purchase and Sale Agreement (the “
Agreement
”) by which title to the Property is being transferred to Assignee; and
WHEREAS, Assignor desires to assign its interest as lessor in the Leases to Assignee, and Assignee desires to accept the assignment thereof;
NOW, THEREFORE, in consideration of the promises and conditions contained herein, the Parties hereby agree as follows:
1.
Effective as of the Closing Date (as defined in the Agreement), Assignor hereby assigns to Assignee all of its right, title and interest in and to the Leases, and any guarantees related thereto, and Assignee hereby accepts such assignment and agrees to assume the obligations of Landlord under the Leases; provided, however, Assignor hereby indemnifies and holds Assignee harmless from any action, cause of action, loss, cost, claim or expense, including without limitation reasonable attorneys’ fees arising out of or related to a breach or default on the part of Assignor as Landlord under the Leases occurring before the date of this Assignment. Assignee hereby indemnifies and holds Assignor harmless from any action, cause of action, loss, cost, claim or expense, including without limitation reasonable attorneys’ fees arising out of or related to a breach or default on the part of Assignee as Landlord under the Leases occurring on or after the date of this Assignment. Notwithstanding the foregoing, if Assignee acquires the Property and any Tenant Estoppel delivered to Assignee on or before the Closing identifies any event, occurrence or matter (whether or not characterized as a breach, default or failure to perform on the part of Assignor) as to which Assignor is or would be required to indemnify Assignee hereunder if such event, occurrence or matter would, with the passage of time or notice or both, constitute a breach, default or failure to perform under such Lease on the part of Assignor, Assignor shall not be responsible for, or obligated to indemnify Assignee for, any such event, occurrence or matter or the resulting breach, default or failure to perform.
Purchase and Sale Agreement
Exhibit B – Assignment and Assumption of Leases
Page 1 of 3
846565.4
2.
If either Party hereto fails to perform any of its obligations under this Assignment or if a dispute arises between the Parties hereto concerning the meaning or interpretation of any provision of this Assignment, then the defaulting Party or the Party not prevailing in such dispute shall pay any and all costs and expenses incurred by the other Party on account of such default and/or in enforcing or establishing its rights hereunder including, without limitation, court costs and attorneys’ fees and disbursements. Any such attorneys’ fees and other expenses incurred by either Party in enforcing a judgment in its favor under this Assignment shall be recoverable separately from and in addition to any other amount included in such judgment and such attorneys’ fees obligation is intended to be severable from the other provisions of this Assignment and to survive and not be merged into any such judgment.
3.
This Assignment shall be binding on and inure to the benefit of the Parties hereto, their heirs, executors, administrators, successors in interest and assigns.
4.
The substantive laws of the State in which the Property is located, without reference to its conflict of law provisions, will govern the validity, construction, and enforcement of this Assignment.
5.
This Assignment may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Capitalized terms used but not defined in this Assignment have the meaning given to such terms in the Agreement.
[Signatures on following page]
Purchase and Sale Agreement
Exhibit B – Assignment and Assumption of Leases
Page 2 of 3
846565.4
IN WITNESS WHEREOF Assignor and Assignee have executed this Assignment the day and year first above written.
ASSIGNOR:
TNP SRT WOODLAND WEST HOLDINGS, LLC
,
a Delaware limited liability company
By:
[EXHIBIT – DO NOT SIGN]
Name:
Title:
ASSIGNEE:
,
a
By:
[EXHIBIT – DO NOT SIGN]
Name:
Title:
Purchase and Sale Agreement
Exhibit B – Assignment and Assumption of Leases
Page 3 of 3
846565.4
EXHIBIT A
TO ASSIGNMENT AND ASSUMPTION OF LEASES
REAL PROPERTY DESCRIPTION
Purchase and Sale Agreement
Exhibit B – Assignment and Assumption of Leases
Exhibit A – Real Property Description
846565.4
SCHEDULE 1
TO ASSIGNMENT AND ASSUMPTION OF LEASES
RENT ROLL
Purchase and Sale Agreement
Exhibit B – Assignment and Assumption of Leases
Schedule 1 – Rent Roll
846565.4
EXHIBIT C
BILL OF SALE
For good and valuable consideration the receipt of which is hereby acknowledged,
TNP SRT WOODLAND WEST HOLDINGS, LLC
, a Delaware limited liability company (“
Transferor
”), does hereby sell, transfer, and convey to _________________________
,
a _________________ (“
Transferee
”) all personal property owned by Transferor and located on or located in or used in connection with the Real Property commonly known as “Woodland West Marketplace” located at 2613-2833 W. Park Row Drive and 1112-01226 S. Bowen Road, in the City of Arlington, County of Tarrant, State of Texas, including, without limitation, those items described in
Schedule 1
attached hereto (collectively, the “
Personal Property
”), pursuant to that certain Purchase and Sale Agreement between Transferor and Transferee for the purchase and sale of the Real Property (the “
Agreement
”). Transferor is conveying the Personal Property to Transferee free and clear of free of any lien or encumbrance thereon except as previously disclosed to and accepted by Transferee. Capitalized terms used but not defined in this Bill of Sale have the meaning given to such terms in the Agreement.
Transferor makes no representation or warranty regarding the condition, merchantability, fitness or usefulness of the Personal Property, and Transferee acknowledges and agrees that it is acquiring the Personal Property in its AS-IS, WHERE-IS, WITH ALL FAULTS CONDITION, WITHOUT WARRANTY, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, IT BEING THE INTENTION OF TRANSFEROR AND TRANSFEREE EXPRESSLY TO NEGATE AND EXCLUDE ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, WARRANTIES CREATED BY ANY AFFIRMATION OF FACT OR PROMISE OR BY ANY DESCRIPTION OF THE PROPERTY CONVEYED HEREUNDER, OR BY ANY SAMPLE OR MODEL THEREOF, AND ALL OTHER WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY THE TEXAS UNIFORM COMMERCIAL CODE.
This Bill of Sale shall be binding upon and inure to the benefit of the successors and assigns of Transferor and Transferee.
The substantive laws of the State in which the Property is located, without reference to its conflict of law provisions, will govern the validity, construction, and enforcement of this Bill of Sale.
This Bill of Sale may be executed in one or more counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one and the same instrument.
Dated: ____________________, 201_.
[Signatures on following page]
Purchase and Sale Agreement
Exhibit C – Bill of Sale
Page 1 of 2
846565.4
TRANSFEROR:
TNP SRT WOODLAND WEST HOLDINGS, LLC
,
a Delaware limited liability company
By:
[EXHIBIT – DO NOT SIGN]
Name:
Title:
TRANSFEREE:
,
a
By:
[EXHIBIT – DO NOT SIGN]
Name:
Title:
Purchase and Sale Agreement
Exhibit C – Bill of Sale
Page 2 of 2
846565.4
SCHEDULE 1
TO BILL OF SALE
PERSONAL PROPERTY
Purchase and Sale Agreement
Exhibit C – Bill of Sale
Schedule 1 – Personal Property
846565.4
EXHIBIT D
ASSIGNMENT AND ASSUMPTION OF WARRANTIES AND OTHER GENERAL INTANGIBLES
This Assignment and Assumption of Warranties and Other General Intangibles (“
Assignment
”) is made and entered into as of ________, 201_, by
TNP SRT WOODLAND WEST HOLDINGS, LLC
, a Delaware limited liability company (“
Assignor
”), to _________________________,
a ________________ (“
Assignee
”), pursuant to that certain Purchase and Sale Agreement (the “
Agreement
”) between Assignor and Assignee relating to the real property owned by Assignor commonly known as “Woodland West Marketplace” and located at 2613-2833 W. Park Row Drive and 1112-01226 S. Bowen Road, in the City of Arlington, County of Tarrant, State of Texas. Capitalized terms used but not defined in this Assignment have the meaning given to such terms in the Agreement.
1. For good and valuable consideration, the receipt of which is hereby acknowledged, effective as of the Closing Date (as defined in the Agreement), Assignor hereby assigns and transfers unto Assignee all of its right, title, claim and interest in and under:
(a) all warranties and guaranties made by or received from any third party with respect to any building, building component, structure, fixture, machinery, equipment, or material situated on, contained in any building or other improvement situated on, or comprising a part of any building or other improvement situated on, any part of that certain real property described in
Exhibit A
attached hereto including, without limitation, those warranties and guaranties listed in
Schedule 1
attached hereto (collectively, “
Warranties
”); provided however, that to the extent there are any third party costs, expenses or fees in connection with the assignment of any Warranties, including, without limitation, reliance fees or transfer fees, Seller shall not be obligated to assign such Warranties to Buyer unless Buyer pays all such costs, expenses and fees;
(b) any General Intangibles (as defined in the Agreement); and
(c) any Service Contracts (as defined in the Agreement).
Assignor and Assignee further hereby agree and covenant as follows:
2. Effective as of the Closing Date, Assignee hereby assumes all of Assignor’s obligations under the Warranties, General Intangibles and Service Contracts and agrees to indemnify, protect and defend Assignor against and hold Assignor harmless from any and all cost, liability, loss, damage or expense, including, without limitation, reasonable attorneys’ fees and costs and court costs, originating on or subsequent to the Closing Date and arising out of failure on the part of Assignee to perform the obligations of owner under the Service Contracts requiring performance on or after the Closing Date.
3. If either Party hereto fails to perform any of its obligations under this Assignment or if a dispute arises between the Parties hereto concerning the meaning or interpretation of any provision of this Assignment, then the defaulting Party or the Party not prevailing in such dispute shall pay
Purchase and Sale Agreement
Exhibit D – Assignment and Assumption of Warranties and Other General Intangibles
Page 1 of 3
846565.4
any and all costs and expenses incurred by the other Party on account of such default and/or in enforcing or establishing its rights hereunder, including, without limitation, court costs and attorneys’ fees and disbursements. Any such attorneys’ fees and other expenses incurred by either Party in enforcing a judgment in its favor under this Assignment shall be recoverable separately from and in addition to any other amount included in such judgment, and such attorneys, fees obligation is intended to be severable from the other provisions of this Assignment and to survive and not be merged into any such judgment.
4. Assignor hereby covenants that Assignor will, at any time and from time to time, upon written request therefor, execute and deliver to Assignee any new or confirmatory instruments which Assignee may reasonably request in order to fully assign, transfer to and vest in Assignee, and to protect Assignee’s right, title and interest in and to, any of the items assigned herein or to otherwise realize upon or enjoy such rights in and to those items.
5. This Assignment shall be binding on and inure to the benefit of the Parties hereto, their heirs, executors, administrators, successors in interest and assigns.
6. The substantive laws of the State in which the Property is located, without reference to its conflict of law provisions, will govern the validity, construction, and enforcement of this Assignment.
7. This Assignment may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
[Signatures on following page]
Purchase and Sale Agreement
Exhibit D – Assignment and Assumption of Warranties and Other General Intangibles
Page 2 of 3
846565.4
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the day and year first above written.
ASSIGNOR:
TNP SRT WOODLAND WEST HOLDINGS, LLC
,
a Delaware limited liability company
By:
[EXHIBIT – DO NOT SIGN]
Name:
Title:
ASSIGNEE:
,
a
By:
[EXHIBIT – DO NOT SIGN]
Name:
Title:
Purchase and Sale Agreement
Exhibit D – Assignment and Assumption of Warranties and Other General Intangibles
Page 3 of 3
846565.4
EXHIBIT A
TO
ASSIGNMENT AND ASSUMPTION OF WARRANTIES
AND OTHER GENERAL INTANGIBLES
REAL PROPERTY DESCRIPTION
Purchase and Sale Agreement
Exhibit D – Assignment and Assumption of Warranties and Other General Intangibles
Exhibit A – Real Property Description
846565.4
SCHEDULE 1
TO
ASSIGNMENT AND ASSUMPTION OF WARRANTIES
AND OTHER GENERAL INTANGIBLES
WARRANTIES
Purchase and Sale Agreement
Exhibit D – Assignment and Assumption of Warranties and Other General Intangibles
Schedule 1 – Warranties
EXHIBIT E
CERTIFICATE OF TRANSFEROR
OTHER THAN AN INDIVIDUAL
(FIRPTA AFFIDAVIT)
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. To inform _______________________________, a __________________________, the transferee of certain real property commonly known as “Woodland West Marketplace” and located at 2613-2833 W. Park Row Drive and 1112-01226 S. Bowen Road, in the City of Arlington, County of Tarrant, State of Texas, that withholding of tax is not required upon the disposition of such U.S. real property interest by TNP SRT Woodland West Holdings, LLC, a Delaware limited liability company and wholly owned subsidiary of _______________________, LLC, a Delaware limited liability company (“
Transferor
”), the undersigned hereby certifies the following on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations);
2. Transferor is not a disregarded entity as defined in Income Tax Regulations §1.1445-2(b)(2)(iii);
3. Transferor’s U.S. employer identification number is __________; and
|
|
4.
|
Transferor’s office address is: c/o Glenborough, LLC
|
66 Bovet Road, Suite 100
San Mateo, California 94402
Transferor understands that this certification may be disclosed to the Internal Revenue Service by Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.
Under penalty of perjury, I declare that I have examined this certificate and to the best of my knowledge and belief it is true, correct and complete, and I further declare that I have authority to sign this document on behalf of Transferor.
Dated: ______________________, 201_.
[EXHIBIT – DO NOT SIGN]
on behalf of:
___________________________, LLC,
a Delaware limited liability company
Purchase and Sale Agreement
Exhibit E – Certificate of Transferor Other than an Individual (FIRPTA Affidavit)
EXHIBIT F
FORM OF TENANT ESTOPPEL
(“
Tenant
”) hereby certifies as follows:
1.
The undersigned is the Tenant under that certain Lease dated
(as amended and supplemented by the following instruments:
_______________________________________________________
_______________________________________________________
_______________________________________________________
(collectively, the “
Lease
”), between TNP SRT WOODLAND WEST HOLDINGS, LLC, a Delaware limited partnership and successor in interest to ______________________ (“
Landlord
”) as landlord and Tenant covering a portion of the property commonly known as “Woodland West Marketplace” located at 2613-2833 W. Park Row Drive and 1112-01226 S. Bowen Road, in the City of Arlington, County of Tarrant, State of Texas (the “
Property
”). There are no amendments, modifications or supplements to the Lease, whether oral or written, except for those set forth in this Section 1.
2.
Pursuant to the Lease, Tenant has leased approximately ______ rentable square feet of space (the “
Premises
”) at the Property. The term of the Lease terminates on
.
3.
As of the date hereof, Tenant is occupying the Premises and is paying rent on a current basis under the Lease.
|
|
a.
|
The minimum monthly or base rent currently being paid by Tenant for the Premises pursuant to the terms of the Lease is [_____] per month.
|
|
|
b.
|
Percentage rent (“
Percentage Rent
”), if any, due under the Lease has been paid through [
] and the amount of Percentage Rent for [
] was [
].
|
|
|
c.
|
Common area maintenance, taxes, insurance and other charges (the “
Reimbursables
”) due under the Lease are currently in the amount of $
per month.
|
|
|
d.
|
Tenant has paid to Landlord a security deposit of $
(none, if no figure inserted).
|
4.
No prepayments of rentals due under the Lease have been made for more than one month in advance.
Purchase and Sale Agreement
Exhibit F – Form of Tenant Estoppel
Page 1 of 3
846565.4
5.
Tenant does not have any right or option to renew or extend the term of the Lease, to lease other space at the Property, nor any preferential right to purchase all or any part of the Premises or the Property, except as follows (if none, so state): [
].
6.
All space and improvements leased by Tenant have been completed and furnished in accordance with the provisions of the Lease, and Tenant has accepted and taken possession of the Premises. Landlord has paid in full any required contribution towards work to be performed by Tenant under the Lease, except as follows (if none, so state): [
].
7.
To the best of Tenant’s knowledge, Landlord is not in material default in the performance of the terms and provisions of the Lease. Tenant is not in any respect in default under the Lease and has not assigned, transferred or hypothecated the Lease or any interest therein or subleased all or any portion of the Premises.
8.
There are no current offsets or credits against rentals payable under the Lease and no free periods or rental concessions have been granted to Tenant applicable to the portion of the term of the Lease arising from and after the date hereof, except as expressly set forth in the Lease.
9.
Tenant has not subleased or allowed any third party to occupy any part of the Premises.
10.
Neither the Lease nor any obligations of Tenant thereunder have been guaranteed by any person or entity, except as follows (if none, so state):
.
11.
None of the following have been done by, against, or with respect to Tenant: (a) the commencement of a case under Title 11 of the U.S. Code, as now constituted or hereafter amended, or under any other applicable federal or state bankruptcy law or other similar law; (b) the appointment of a trustee or receiver of the property of Tenant generally; or (c) an assignment for the benefit of creditors generally. There are no actions, voluntary or otherwise, pending or, to the best knowledge of the Tenant, threatened against the Tenant under the bankruptcy, reorganization, moratorium or similar laws of the United States, any state thereof or any other jurisdiction.
This certificate is given to
and its successors and assigns (collectively, “
Buyer
”), with the understanding that Landlord, Buyer and Buyer’s lenders, successors and assigns will rely hereon in connection with the conveyance of the Property of which the Premises constitute a part.
[Signature on following page]
Purchase and Sale Agreement
Exhibit F – Form of Tenant Estoppel
Page 2 of 3
846565.4
TENANT
:
Printed name of Tenant (exactly as appears on Lease)
By:
Print Name:
Print Title:
Date:
Purchase and Sale Agreement
Exhibit F – Form of Tenant Estoppel
Page 3 of 3
846565.4
EXHIBIT G
FORM OF SELLER ESTOPPEL
To: __________________________ (“
Buyer
”)
Re: Lease Pertaining to ____________________________________ (the “
Property
”)
Ladies and Gentlemen:
The undersigned (“
Seller
”) hereby acknowledges that Buyer is entering into an agreement to acquire the Property. Seller further acknowledges the right of Buyer to rely upon the statements and representations of Seller contained in this Certificate and further acknowledges that Buyer will be acquiring the Property in material reliance on this Certificate. This Certificate shall survive Buyer’s acquisition of the Property for a period of six (6) months from the Closing and shall thereafter be null and void. Capitalized terms used herein but not defined herein shall have the same meaning as set forth in the Purchase and Sale Agreement for the Property by and between Seller and Buyer.
Given the foregoing, Seller hereby certifies and represents to Buyer (and its lender, successors and assigns), with respect to the above-described Lease, that to the Actual Knowledge of Seller:
1.
________________________ is the Tenant under that certain Lease dated
(as amended and supplemented by the following instruments:
_______________________________________________________
_______________________________________________________
_______________________________________________________
(collectively, the “
Lease
”), between TNP SRT WOODLAND WEST HOLDINGS, LLC, a Delaware limited partnership and successor in interest to ___________________________ (“
Landlord
”) as landlord and Tenant covering a portion of the Property. There are no amendments, modifications or supplements to the Lease, whether oral or written, except for those set forth in this Section 1.
2.
Pursuant to the Lease, Tenant has leased approximately ______ rentable square feet of space (the “
Premises
”) at the Property. The term of the Lease terminates on
.
3.
As of the date hereof, Tenant is occupying the Premises and is paying rent on a current basis under the Lease.
|
|
a.
|
The minimum monthly or base rent currently being paid by Tenant for the Premises pursuant to the terms of the Lease is [_____] per month.
|
Purchase and Sale Agreement
Exhibit G – Form of Seller Estoppel
Page 1 of 3
846565.4
|
|
b.
|
Percentage rent (“
Percentage Rent
”), if any, due under the Lease has been paid through [
] and the amount of Percentage Rent for [
] was [
].
|
|
|
c.
|
Common area maintenance, taxes, insurance and other charges (the “
Reimbursables
”) due under the Lease are currently in the amount of $
per month.
|
|
|
d.
|
Tenant has paid to Landlord a security deposit of $
(none, if no figure inserted).
|
4.
No prepayments of rentals due under the Lease have been made for more than one month in advance.
5.
Tenant does not have any right or option to renew or extend the term of the Lease, to lease other space at the Property, nor any preferential right to purchase all or any part of the Premises or the Property, except as follows (if none, so state): [
].
6.
All space and improvements leased by Tenant have been completed and furnished in accordance with the provisions of the Lease, and Tenant has accepted and taken possession of the Premises. Landlord has paid in full any required contribution towards work to be performed by Tenant under the Lease, except as follows (if none, so state): [
].
7.
Landlord is not in material default in the performance of the terms and provisions of the Lease. Tenant is not in any respect in default under the Lease and has not assigned, transferred or hypothecated the Lease or any interest therein or subleased all or any portion of the Premises.
8.
There are no current offsets or credits against rentals payable under the Lease and no free periods or rental concessions have been granted to Tenant applicable to the portion of the term of the Lease arising from and after the date hereof, except as expressly set forth in the Lease.
9.
Tenant has not subleased or allowed any third party to occupy any part of the Premises.
10.
Neither the Lease nor any obligations of Tenant thereunder have been guaranteed by any person or entity, except as follows (if none, so state):
.
11.
None of the following have been done by, against, or with respect to Tenant: (a) the commencement of a case under Title 11 of the U.S. Code, as now constituted or hereafter amended, or under any other applicable federal or state bankruptcy law or other similar law; (b) the appointment of a trustee or receiver of the property of Tenant generally; or (c) an assignment for the benefit of creditors generally. There are no actions, voluntary or otherwise, pending or, to the best knowledge of the Tenant, threatened against the Tenant under the bankruptcy, reorganization, moratorium or similar laws of the United States, any state thereof or any other jurisdiction.
Purchase and Sale Agreement
Exhibit G – Form of Seller Estoppel
Page 2 of 3
846565.4
This certificate is given to Buyer with the understanding that Buyer and Buyer’s lenders, successors and assigns will rely hereon in connection with the conveyance of the Property of which the Premises constitute a part.
SELLER:
TNP SRT WOODLAND WEST HOLDINGS, LLC
,
a Delaware limited liability company
By:
[EXHIBIT – DO NOT SIGN]
Name:
Title:
Purchase and Sale Agreement
Exhibit G – Form of Seller Estoppel
Page 3 of 3
846565.4
EXHIBIT H
FORM OF OWNER’S TITLE AFFIDAVIT
AFFIDAVIT AS TO DEBTS AND LIENS AND PARTIES IN POSSESSION
(ENTITY OWNER)
File #: NCS-________-SM
SUBJECT PROPERTY: Woodland West, Arlington, TX, and being more fully described in the title commitment for the referenced NCS-_____________-SM (the “Property”).
OWNER: _______________________________ (“Owner”)
SALE TO:_______________________________ (“Buyer”)
THE STATE OF ________________
COUNTY OF __________________
BEFORE ME, the undersigned authority, on this day personally appeared the undersigned Affiant, personally known to me to be the person whose name is subscribed hereto and upon oath deposes and says that, to the best knowledge and belief of Affiant:
|
|
1.
|
To the best knowledge and belief of Affiant:
|
a. The charges for all labor and materials that may have been furnished to the Property or to the improvements thereon at the request of Owner have been fully paid.
b. All contracts to which Owner is a party for the furnishing of labor or materials to the Property or for improvements thereon have been completed and fully paid.
c. There are no security agreements or leases to which Owner is a party affecting any goods or chattels that have become attached, or that will at any later date become attached, to the Property or improvements thereon as fixtures that have not been fully performed and satisfied, which are not shown on the referenced title commitment.
d. There are no mortgages or deeds of trust of any kind against the Property, which are not shown on the referenced title commitment.
e. There are no brokers that have a written commission agreement with Owner under which a commission is claimed or earned and has not been paid related to the Property, which are not shown on the Owner-approved settlement statement.
|
|
2.
|
Affiant has no knowledge of a notice of change of use nor has Owner received written notice of change of use by the appraisal district with jurisdiction over the Property.
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3.
|
The Property is currently being used for the operation of a retail shopping center, and Owner has received no written notice that the improvements upon the
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Purchase and Sale Agreement
Exhibit H – Owner’s Title Affidavit
Page 1 of 3
846565.4
Property and/or such use violates any restrictive covenants affecting the Property of which Affiant has knowledge.
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4.
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There are no proceedings involving Owner, or notice to Owner of any proceedings, by any agency or authority, public or private, that levies taxes or assessments, which, to the best knowledge of Affiant, are reasonably likely to result in an increase in taxes or assessments affecting the Property and which are not shown by the referenced title commitment.
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5.
|
There are no Judgments, Federal Tax Liens, or State Tax Liens against Owner and/or the Property; Owner is not indebted to the State of Texas for any penalties or wages pursuant to a final order of the Texas Workforce Commission; and neither Owner nor the Property is subject to a claim under the Medicaid Estate Recovery Program.
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6.
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(a) All ad valorem and personal property taxes (if any), all “use” type business taxes (if any), including but not limited to hotel use and occupancy taxes, and all association/ maintenance type taxes or assessments (if any) that are applicable to the Property and that are currently due and payable have been paid or will be paid at closing and are shown on the Owner-approved settlement statement. (b) Any of the above referenced taxes which are the obligation of Owner and which have been prorated on the Owner-approved settlement statement are based on information approved by Owner.
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7.
|
Owner is the only occupant of the Property, except the leases shown on the rent roll attached hereto as
Exhibit A
, which the undersigned certifies is a true and correct copy of Owner’s rent roll for the Property.
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8.
|
There are no unrecorded contracts; deeds; mortgages; mechanic’s liens; options of any kind, including but not limited to options to purchase or lease (except the leases shown on the rent roll attached hereto as
Exhibit A
); rights of first refusal or requirements of prior approval of a future purchaser or occupant; rights of reentry; rights of reverter; or rights of forfeiture affecting the Property or improvements thereon, which are not shown on the referenced title commitment.
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10.
|
No proceedings in bankruptcy or receivership have ever been instituted by or against Owner, and Owner has never made an assignment for the benefit of creditors.
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11.
|
The Property has curb cut(s) and driveway(s) providing actual vehicular and pedestrian access which are open and in use.
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The term “best knowledge and belief of Affiant”, or other references to the “knowledge” of Affiant means the current, actual knowledge of _______________ as of the date of this affidavit, upon due inquiry but without imputation of matters of record or constructive knowledge. The undersigned represents that _________________ is the person most likely to have current, actual knowledge of the matters described in this affidavit.
This affidavit is made to First American Title, as an inducement to them to complete the above referenced transaction, and Affiant realizes that First American Title is relying upon the representations contained herein. This affidavit does not constitute or contain
Purchase and Sale Agreement
Exhibit H – Owner’s Title Affidavit
Page 2 of 3
846565.4
representations, warranties or statements on which Buyer or its lender may rely. Affiant does hereby swear under the penalties of perjury that the foregoing information is true and correct in all respects, to the best knowledge and belief of Affiant, and that Affiant is authorized to make this affidavit on behalf of Owner.
EXECUTED this _________ day of ________, 201_.
______________________________________
THE STATE OF
COUNTY OF
Subscribed and sworn to before me this _______ of________, 2016, by __________________, _______________ of _____________________________
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___________________________________
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Notary Public, State of
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Purchase and Sale Agreement
Exhibit H – Owner’s Title Affidavit
Page 3 of 3
846565.4
ADDENDUM I
DEFINITIONS
Terms used in this Agreement shall have the meanings set forth below:
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1.
|
2016 Reconciliation
. As defined in
Section 7(d)(v)
.
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2.
|
2017 Stub Reconciliation
. As defined in
Section 7(d)(vi)
.
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3.
|
Actual Knowledge of Buyer (or Buyer’s Actual Knowledge.)
The knowledge of any Responsible Individual of Buyer, without duty of inquiry; provided that so qualifying Buyer’s knowledge shall in no event give rise to any personal liability on the part of the Responsible Individual, on account of any breach of any representation and warranty of Buyer herein. Actual Knowledge shall not include constructive knowledge, imputed knowledge, or knowledge Buyer or such Responsible Individual do not have but could have obtained through further investigation or inquiry, but shall include information provided by Seller to Buyer in writing (including the Due Diligence Materials).
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4.
|
Actual Knowledge of Seller (or Seller’s Actual Knowledge.)
The knowledge of any Responsible Individual of Seller, without duty of inquiry; provided that so qualifying Seller’s knowledge shall in no event give rise to any personal liability on the part of the Responsible Individual, on account of any breach of any representation and warranty of Seller herein. Actual Knowledge shall not include constructive knowledge, imputed knowledge, or knowledge Seller or such Responsible Individual do not have but could have obtained through further investigation or inquiry.
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5.
|
Additional Rents
. All amounts, other than Fixed Rents, due from any Tenant under any Lease, including without limitation, percentage rents, escalation charges for real estate taxes, parking charges, marketing fund charges, reimbursement of Expenses, maintenance escalation rents or charges, cost of living increases or other charges of a similar nature, if any, and any additional charges and expenses payable under any Lease.
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6.
|
Affiliate
. Any Person that, directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with another Person. An affiliate of a Person includes any officer, director, managing member, member or general partner, and any record or beneficial owner of more than 10% of any class of ownership interests in such Person.
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7.
|
Agreement
. This Agreement between Seller and Buyer, including all Addenda, Schedules and Exhibits attached hereto and incorporated herein by reference.
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8.
|
Approval Date.
The day on or prior to the end of the Due Diligence Period on which Buyer delivers its Approval Notice to Seller.
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Purchase and Sale Agreement
Addendum I – Definitions
Page 1 of 7
846565.4
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9.
|
Approval Notice
. Buyer’s notice delivered to Seller (if at all) under
Section 4(l)
of the Agreement.
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10.
|
Assignment of Contracts
. An Assignment and Assumption of Guaranties and Warranties and Other General Intangibles in the form attached to this Agreement as
Exhibit D
.
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11.
|
Assignment of Leases
. An Assignment and Assumption of Leases in the form attached to this Agreement as
Exhibit B
.
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12.
|
Bill of Sale
. A Bill of Sale in the form attached to this Agreement as
Exhibit C
.
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13.
|
Business Day
. Any day other than a Saturday, Sunday or holiday on which national banks located in the State in which the Property is located or in the State of California, are authorized or required by law to close for business.
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14.
|
Buyer
. The “Buyer” in the preamble to this Agreement.
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15.
|
Buyer’s Agents
. The employees, agents, contractors, consultants, officers, directors, representatives, managers and members of Buyer or its Affiliates, and such other Persons as are acting under the direction of, or on behalf of, Buyer or any Affiliate of Buyer.
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16.
|
Buyer’s Broker
. None.
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17.
|
Buyer Closing Conditions
. Conditions precedent to Buyer’s obligation to consummate this transaction, as set forth in
Section 5(a)
.
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18.
|
Cash
. Immediately available funds to be paid by Buyer at the Closing, as provided in the Section entitled “Consideration”.
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19.
|
Closing
. The delivery of the Deed and the other documents required to be delivered hereunder and the payment of the Consideration.
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20.
|
Closing Date
. Forty-five (45) days after the delivery by Buyer of the Approval Notice; provided, Buyer shall have a one-time right to extend the Closing Date if, and only if, such extension is required by Buyer’s lender, for one additional twenty (20) day period upon timely delivery of an Extension Notice and concurrent delivery to the Escrow Holder of the Extension Deposit.
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21.
|
Consideration
. The purchase price for the Property payable by Buyer to Seller as described in the Section entitled “Consideration.”
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22.
|
Contracts
. The service contracts, construction contracts for work in progress, any warranties thereunder, management contracts, unrecorded reciprocal easement agreements, operating agreements, maintenance agreements, franchise agreements and other similar agreements relating to the Property.
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Purchase and Sale Agreement
Addendum I – Definitions
Page 2 of 7
846565.4
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23.
|
Creditors’ Rights Laws
. All bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally, as well as general equitable principles whether or not the enforcement thereof is considered to be a proceeding at law or in equity.
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24.
|
Day
. The term “day” used herein and not capitalized means a calendar day.
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25.
|
Deed
. A deed in the form attached to this Agreement as
Exhibit A
(with vendor’s lien assigned, if requested by Buyer).
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26.
|
Due Diligence Materials
. The materials described in
Schedule 1
to this Agreement.
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27.
|
Due Diligence Period.
A period of time commencing on the Effective Date and ending at 5:00 p.m., Pacific Time, on the date that is twenty (20) days from Effective Date.
|
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28.
|
Earnest Money
. The aggregate of the Initial Earnest Money Deposit and the Remaining Earnest Money Deposit.
|
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29.
|
Effective Date.
The date set forth in the preamble to this Agreement.
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30.
|
Environmental Laws
. All federal, state, local or administrative agency ordinances, laws, rules, regulations, orders or requirements relating to Hazardous Materials.
|
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31.
|
Environmental Reports
. All environmental reports and investigations relating to the Property which are available to Seller, which are listed on
Schedule 4
to this Agreement.
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32.
|
Existing Lender
. JPMorgan Chase.
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33.
|
Expenses
. All operating expenses normal to the operation and maintenance of the Property, including without limitation: Property Taxes; current installments of any improvement bonds or assessments which are a lien on the Property or which are pending and may become a lien on the Property; water, sewer and utility charges; amounts payable under any Contract for any period in which the Closing occurs; and permits, licenses and inspection fees. Expenses shall not include expenses which are of a capital nature.
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34.
|
Expense Reimbursement.
That amount necessary to reimburse Buyer for all of its out-of-pocket, third-party costs and expenses related to the transactions contemplated by this Agreement, including, without limitation, to consultants and for third‐party reports, for legal fees incurred in connection with negotiating and entering into this Agreement, up to a maximum, in the aggregate, of Fifty Thousand and No/100ths Dollars ($50,000).
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35.
|
Extension Deposit.
The additional earnest money deposit(s) paid by Buyer concurrently with its delivery of an Extension Notice to Seller, in the amount of One Hundred Thousand and No/100ths Dollars ($100,000.00).
|
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36.
|
Extension Notice.
Written notice from Buyer to Seller of its exercise of the right to extend the Closing Date delivered no later than ten (10) days prior to the original, scheduled Closing
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Purchase and Sale Agreement
Addendum I – Definitions
Page 3 of 7
846565.4
Date and otherwise in accordance with the terms set forth under the defined term “Closing Date” in this
Addendum I
.
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37.
|
Fixed Rents.
The fixed periodic payments under any Lease.
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38.
|
General Intangibles
. All general intangibles relating to design, development, operation, management and use of the Real Property; all certificates of occupancy, zoning variances, building, use or other permits, approvals, authorizations, licenses and consents obtained from any governmental authority or other person in connection with the development, use, operation or management of the Real Property; all engineering reports, architectural drawings, plans and specifications relating to all or any portion of the Real Property, and all payment and performance bonds or warranties or guarantees relating to the Real Property; and all of Seller’s right, title and interest in and to any and all of the following to the extent assignable: trademarks, service marks, logos or other source and business identifiers, trademark registration and applications for registration used at or relating to the Real Property and any written agreement granting to Seller any right to use any trademark or trademark registration at or in connection with the Real Property.
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39.
|
Hazardous Materials
. Any substance which is (a) designated, defined, classified or regulated as a hazardous substance, hazardous material, hazardous waste, toxic substance, pollutant or contaminant under any federal or state law or regulation, (b) a petroleum hydrocarbon, including crude oil or any fraction thereof and all petroleum products, (c) PCBs, (d) asbestos or asbestos-containing products, (e) a flammable explosive, (f) an infectious material, (g) a radioactive material, (h) a carcinogenic, or (i) a reproductive toxicant.
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40.
|
Improvements
. All buildings, parking lots, parking garages, signs, walks and walkways, fixtures and equipment and all other improvements located at or on or affixed to the Land to the full extent that such items are owned by Seller and constitute realty under the laws of the state in which the Land is located.
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41.
|
Initial Earnest Money Deposit
. The initial earnest money deposit(s) paid by Buyer pursuant to the Section entitled “Consideration,” in the amount(s) of Two Hundred Thousand and No/100ths Dollars ($200,000.00).
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42.
|
Invasive Testing
. Any physically intrusive, invasive or destructive testing or investigation (however characterized) of, on or under the Property or any portion or part thereof, for the presence or absence of Hazardous Materials, or for other purposes, including, without limitation, by (i)
taking, sampling or testing groundwater or soils, (ii) air quality sampling or testing, or (iii) probing, cutting, penetrating, removing or otherwise disturbing any interior or exterior feature of the Land or Improvements in order to sample, test, observe or monitor normally inaccessible areas, components, features or systems.
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43.
|
Land
. The land described in
Schedule 2
to this Agreement, together with all appurtenances thereto, including without limitation easements and mineral and water rights.
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Purchase and Sale Agreement
Addendum I – Definitions
Page 4 of 7
846565.4
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44.
|
Laws
. All Environmental Laws, zoning and land use laws, and other local, state and federal laws and regulations applicable to the Property, the Parties, and/or the transactions contemplated by this Agreement.
|
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|
45.
|
Leases
. The leases for the Tenants listed in the Rent Roll, together with any leases of all or any portion of the Real Property executed between the Effective Date and the Closing Date, and all amendments, modifications and guarantees thereof.
|
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|
46.
|
Major Loss.
Any damage or destruction to, or condemnation of, any Real Property as to which the cost to repair, or the value of the portion taken, as the case may be, exceeds Four Hundred Thousand and No/100ths Dollars ($400,000.00).
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47.
|
Major Tenants.
Randall’s Food and Drug LP (Tom Thumb), Goodyear Tire Center, Ameri-Tech Kidney Center, Anytime Fitness, Tuesday Morning and Petco.
|
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|
48.
|
Material Damage Ceiling.
Damage in the aggregate of Four Hundred Thousand and No/100ths Dollars ($400,000.00) suffered by Buyer as a result of any inaccuracy or breach of any representation or warranty or covenant (on a cumulative basis and not per occurrence) by Seller hereunder.
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49.
|
Material Damage Floor
. Damage in excess of Eighty Thousand and No/100ths Dollars ($80,000.00) suffered by Buyer as a result of any inaccuracy or breach of any representation or warranty or any breach of any covenant (on a cumulative basis and not per occurrence) by Seller hereunder.
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50.
|
Minor Loss.
Damage or destruction to, or condemnation of, any Real Property that is not a Major Loss.
|
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|
51.
|
Monetary Liens.
As defined in the Section entitled “Approval of Title.”
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|
52.
|
New Exception.
An exception to title to the Real Property that materially affects the condition of title to the Real Property and is not (i) included in or referenced in any preliminary report delivered to Buyer prior to the Approval Date, or in any exception document delivered to Buyer by the Title Company prior to the Approval Date, (ii) disclosed to Buyer in any of the Due Diligence Materials, (iii) shown on or referenced in the Survey, (iv) caused by Buyer or any of Buyer’s Agents, or (v) previously approved in writing by Buyer or any of Buyer’s Agents.
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|
53.
|
Non-Refundable Payment
. See
Section 3(b)
.
|
|
|
54.
|
Parties.
Buyer and Seller.
|
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|
55.
|
Percentage Rents.
Rents under any Lease based on a percentage of Tenant revenue, sales or income, or on the performance of the business of any Tenant.
|
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|
56.
|
Permitted Exceptions
. The Leases and the exceptions to title approved by Buyer during the Due Diligence Period, pursuant to the title review procedure set forth in the Agreement.
|
Purchase and Sale Agreement
Addendum I – Definitions
Page 5 of 7
846565.4
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57.
|
Person
. An individual, partnership, corporation, business trust, joint stock company, limited liability company, trust, unincorporated association, joint venture or governmental authority.
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58.
|
Personal Property
. All of Seller’s right, title and interest in and to the personal property and any interest therein owned by Seller or held directly for the benefit of Seller, if any, located on the Real Property and used in the operation or maintenance of the Real Property.
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59.
|
Property.
The Real Property, the Leases, the Personal Property, the General Intangibles, and the Contracts (excluding Contracts to be terminated by Seller pursuant to this Agreement).
|
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|
60.
|
Property Taxes.
As defined in Section
7(c)(ii)(c)
, entitled “Property Taxes.”
|
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|
61.
|
Real Property
. The Land and Improvements.
|
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|
62.
|
Remaining Earnest Money Deposit
. The additional earnest money deposit(s) paid by Buyer on or after the Approval Date pursuant to the Section entitled “Consideration”, in the amount of Two Hundred Thousand and No/100ths Dollars ($200,000.00)
|
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63.
|
Rent Roll
. The list of each of the Tenants under Leases as of the date of this Agreement, attached to this Agreement as
Schedule 5
.
|
|
|
64.
|
Rents
. Fixed Rents and Percentage Rents.
|
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|
65.
|
Required Tenants
. The Major Tenant and other Tenants which along with the Major Tenant in the aggregate occupy eighty percent (80%) of the occupied rentable area of the Property.
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66.
|
Responsible Individuals
. With respect to Buyer: David Salomon; and with respect to Seller: Alan Shapiro.
|
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|
67.
|
Seller
. The “Seller” in the preamble to this Agreement.
|
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|
68.
|
Seller Related Party
. Seller, any Affiliate of Seller, and any of its or their respective shareholders, partners, members, managers, officers, directors, employees, contractors, agents, attorneys or other representatives of Seller.
|
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|
69.
|
Seller’s Broker
. Pierson Retail Advisors.
|
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|
70.
|
Seller Closing Conditions
. Conditions precedent to Seller’s obligation to consummate this transaction, as set forth in
Section 5(b)
.
|
|
|
71.
|
Service Contracts
. All Contracts involving ongoing services and periodic payment therefor, as distinguished from franchise agreements, easements, guarantees, warranties and the like.
|
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|
72.
|
SNDA
. As defined in
Section 8(d)
.
|
|
|
73.
|
SNDA Closing Condition Threshold
. As defined in
Section 8(d)
.
|
Purchase and Sale Agreement
Addendum I – Definitions
Page 6 of 7
846565.4
|
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74.
|
Specific Performance Amount
. One Hundred Thousand and No/100ths Dollars ($100,000.00).
|
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|
75.
|
Survey
. That certain ALTA/NSPS Land Title Survey of the Property prepared under American National, LLC, by Blew & Associates, P.A. and signed by James Temple (Surveyor No. 6296), with a plat/map date of November 5, 2011, and a last revision date of November 9, 2016, and delivered to Buyer with the Due Diligence Materials.
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76.
|
Tenant(s)
. Tenants under the Leases and listed on the Rent Roll.
|
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|
77.
|
Tenant Estoppel(s)
. Estoppel certificates in the form attached to this Agreement as
Exhibit F
(or on such other form as may be prescribed in the Tenant Lease or otherwise permitted under this Agreement), to be provided by Seller as provided in the Section entitled “Tenant Estoppel(s).”
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78.
|
Title Company
. First American Title Insurance Company – National Commercial Services, at its office located at 2755 Campus Drive, Suite 125, San Mateo, CA 94403; Attention: Erwin J. Broekhuis, Commercial Escrow Officer, (650) 356-1729 (direct), email ebroekhuis@firstam.com.
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79.
|
Title Policy
. An owner’s standard coverage ALTA title policy, issued by Title Company in the amount of the Consideration, showing title vested in Buyer subject only to the Permitted Exceptions.
|
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|
80.
|
Transaction Documents
. The Deed, Bill of Sale, Assignment of Contracts, Assignment of Leases, and any and all other agreements entered into by the Parties in connection with the Closing.
|
Purchase and Sale Agreement
Addendum I – Definitions
Page 7 of 7
846565.4
ADDENDUM II
SELLER’S REPRESENTATIONS AND WARRANTIES
Seller hereby represents and warrants to Buyer as follows:
A.
Organization and Authorization
1.
Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, and is qualified to do business in the State in which the Property is located.
2.
Seller has full power and authority to execute and deliver this Agreement and to perform all of the terms and conditions hereof to be performed by Seller and to consummate the transactions contemplated hereby. This Agreement and all documents executed by Seller which are to be delivered to Buyer at Closing have been duly executed and delivered by Seller and are or at the time of Closing will be the legal, valid and binding obligation of Seller and is enforceable against Seller in accordance with its terms, except as the enforcement thereof may be limited by applicable Creditors’ Rights Laws. Seller is not presently subject to any bankruptcy, insolvency, reorganization, moratorium, or similar proceeding.
3.
The individuals and entities executing this Agreement and the instruments referenced herein on behalf of Seller and its constituent entities, if any, have the legal power, right and actual authority to bind Seller to the terms and conditions hereof and thereof.
4.
Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated by this Agreement, nor the compliance with the terms and conditions hereof will violate or conflict, in any material respect, with any provision of Seller’s organizational documents or to Seller’s Actual Knowledge any statute, regulation or rule, injunction, judgment, order, decree, ruling, charge or other restrictions of any government, governmental agency or court to which Seller is subject, and which violation or conflict would have a material adverse effect on Seller. Seller is not a party to any contract or subject to any other legal restriction that would prevent fulfillment by Seller of all of the terms and conditions of this Agreement or compliance with any of the obligations under it.
B.
Property Condition, Use and Compliance
1.
Compliance with Laws
. Except as set forth on
Schedule 6
to this Agreement, to Seller’s Actual Knowledge, Seller has not received written notice that the use or operation of the Property is in violation of any applicable Laws.
2.
No Regulatory Proceedings
. Except as set forth on
Schedule 6
to this Agreement, to Seller’s Actual Knowledge, Seller has not received any written notice of any condemnation, environmental, zoning or other land-use regulation proceedings that have
Purchase and Sale Agreement
Addendum II – Seller’s Representations and Warranties
Page 1 of 4
846565.4
been instituted, or are planned to be instituted, which directly identify any of the Property, nor has Seller received written notice of any special assessment proceedings affecting any of the Property. Seller shall notify Buyer promptly of any such proceedings of which any Seller becomes aware prior to Closing.
3.
Environmental Matters.
To the Actual Knowledge of Seller and except as set forth in the Due Diligence Materials, there are no Hazardous Materials on or under the Property in violation of Environmental Laws or which would require remediation or mitigation under Environmental Laws.
4.
Storage Tanks.
To the Actual Knowledge of Seller there are no storage tanks (USTs or ASTs) on or under the Property.
5.
Mold Damage Remediation
. To the Actual Knowledge of Seller, no Certificates of Mold Damage Remediation have been issued for the Property during the previous five (5) years (Tex. Occ. Code Ann. § 1958.154(b)).
C.
The Leases
1.
Rent Roll
. The Rent Roll attached hereto accurately reflects the material terms and conditions of the Leases in all material respects as of its date. Except as disclosed on the Rent Roll, to the Actual Knowledge of Seller, there are no other Tenants at the Property with Seller’s consent, and no Rents under any Lease have been collected in advance of the current month. The Rent Roll shall be updated at the Closing to reflect any changes which occur after the Effective Date.
2.
Security Deposits
. The Rent Roll sets forth all cash security deposits held by Seller under the Leases. Seller has not received from any Tenant or any other Person written notice of any claim (other than for customary refund at the expiration of a Lease) to all or any part of any security deposit, except as set forth on the Rent Roll and/or the Tenant Estoppels.
3.
Leases.
Except as set forth in
Schedule 6
to this Agreement: (i) the Leases for the Tenants shown on the Rent Roll have not been modified or amended except as set forth on the Rent Roll or the Due Diligence Documents; (ii) Seller has provided to Buyer complete copies of all of the Leases for the Tenants identified on the Rent Roll; (iii) to Seller’s Actual Knowledge, Seller is not in default under any such Lease and no Tenant has delivered written notice to Seller of a default on the part of Seller under its Lease, (iv) to Seller’s Actual Knowledge, no Tenant is in default under any such Lease, and (v) no Tenant has asserted in writing to Seller that Tenant has or is entitled to any defense or set-off against the payment of rent in connection with its Lease or has contested any tax, operating cost or other escalation payments or occupancy charges payable under its Lease. To the extent prior to the Closing Seller delivers a Tenant Estoppel as to any Lease, such Tenant Estoppel shall supersede and replace this Section C.3 and the representations of Seller in this Section C.3 shall not apply to such Lease or Tenant.
Purchase and Sale Agreement
Addendum II – Seller’s Representations and Warranties
Page 2 of 4
846565.4
D.
Other Matters
1.
No Litigation
. Except as set forth on
Schedule 6
to this Agreement there is no litigation pending or, to Seller’s Actual Knowledge, threatened: (i) against Seller that arises out of the ownership of the Property or that might materially and detrimentally affect the value or the use or operation of any of the Property for its intended purpose or the ability of such Seller to perform its obligations under this Agreement; or (ii) by Seller against any Tenant. Seller shall notify Buyer promptly of any such litigation of which Seller becomes aware before Closing.
2.
No Contracts for Improvements
. Except as set forth on
Schedule 6
to this Agreement and in connection with any new leases executed after the Effective Date and prior to Closing, as of the Closing there are no outstanding written or oral contracts entered into by Seller for the provision of labor or materials which have not been fully paid or which Buyer has not expressly agreed to assume under the terms of this Agreement.
3.
Exhibits and Schedules
. The Schedules attached hereto, as provided by or on behalf of Seller, completely and correctly present in all material respects the information required by this Agreement to be set forth therein, provided, however, that as set forth in more detail in the Agreement, Seller makes no representation or warranty as to the completeness or accuracy of any materials contained in the Schedules that have been prepared by third parties unrelated to Seller.
4.
Seller Not a Foreign Person
. Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code.
5.
Patriot Act
. Seller is not, nor is any person who owns a controlling interest in or otherwise controls Seller, (a) listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC, Department of the Treasury, and/or on any other similar list maintained by the OFAC pursuant to any OFAC Laws and Regulations; or (b) a person either (i) included within the term “designated national” as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, or (ii) designated under any Executive Orders. Neither Seller nor any of its principals or affiliates is (x) a person or entity with which Buyer is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, or that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Orders, or (y) is directly or indirectly affiliated or associated with a person or entity listed in the preceding clause (x). To the best knowledge of Seller, neither Seller nor any of its principals or affiliates, nor any brokers or other agents acting in any capacity in connection with the transactions contemplated herein (I) directly or indirectly deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Orders, (II) directly or indirectly engages in any transaction in violation of any Laws relating to drug trafficking, money laundering or predicate crimes to money laundering or (III) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.
Purchase and Sale Agreement
Addendum II – Seller’s Representations and Warranties
Page 3 of 4
846565.4
6.
Seller’s Due Diligence Materials
. To the Actual Knowledge of Seller, the Due Diligence Materials delivered to Buyer pursuant to this Agreement are complete, true and correct copies of the Due Diligence Materials in Seller’s possession.
E.
Miscellaneous
1.
Timeliness of Representations and Warranties
. All representations and warranties set forth herein shall be deemed to be given as of the Effective Date and the Closing Date unless Seller otherwise notifies Buyer in writing prior to the Closing.
2.
Materiality Limitation.
Buyer
shall not be entitled to any right or remedy for any inaccuracy in or breach of any representation, warranty or covenant under this Agreement or any conveyance document unless the amount of damages proximately caused thereby exceeds the Material Damage Floor, and in no event shall the damages for which Seller is liable hereunder for any such inaccuracies or breaches exceed in the aggregate the Material Damage Ceiling.
3.
Continuation and Survival of Representations and Warranties, Etc
.
All representations and warranties by the respective Parties contained herein or made in writing pursuant to this Agreement are intended to and shall remain true and correct as of the time of Closing, shall be deemed to be material, and, together with all conditions, covenants and indemnities made by the respective Parties contained herein or made in writing pursuant to this Agreement (except as otherwise expressly limited or expanded by the terms of this Agreement), shall survive the execution and delivery of this Agreement and shall survive the Closing for a period of six (6) months after the Closing, or, to the extent the context requires, beyond any termination of this Agreement for a period of six (6) months. Any claim for breach of a representation and warranty given hereunder must be filed and served within such six (6) month period, or be deemed waived and released.
Purchase and Sale Agreement
Addendum II – Seller’s Representations and Warranties
Page 4 of 4
846565.4
SCHEDULE 1
TNP SRT WOODLAND WEST HOLDINGS, LLC
DUE DILIGENCE MATERIALS
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o
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ALTA/NSPS Land Title Survey prepared by American National dated November 9, 2016
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o
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A/R as of December 31, 2016
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o
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2017 CAM Recovery Calculations
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o
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2015 CAM Recovery Schedules
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o
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2014 CAM Recovery Schedules
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•
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Certificates of Occupancy
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◦
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Response Action Effectiveness Report prepared by NewFields dated December 15, 2016
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◦
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Phase I Environmental Site Assessment Report prepared by W&M Environmental Group, LLC, dated August 25, 2016
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◦
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Letter from Texas Commission on Environmental Quality dated August 11, 2016
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◦
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Letter from Texas Commission on Environmental Quality dated January 27, 2016
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◦
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Response Action Effectiveness Report prepared by NewFields, dated December 8, 2015
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◦
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Response Action Effectiveness Report prepared by NewFields dated December 4, 2014
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◦
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Response Action Effectiveness Report prepared by NewFields, dated December 12, 2013
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◦
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Woodland West Risk Evaluation, Subslab Vapor Monitoring, and Indoor Air Quality Assessment prepared by W&M Environmental Group, LLC, dated April 13, 2015
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◦
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Letter from Texas Commission on Environmental Quality dated February 12, 2015
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◦
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Addendum 1 to the Temporary Access Agreement (Groundwater Monitoring) dated October 4, 2012
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◦
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Agreement for Temporary Access to Property During Groundwater Monitoring Activities dated July 12, 2012
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◦
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Phase I Environmental Site Assessment prepared by AEI Environmental & Engineering, dated December 23, 2011
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◦
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Temporary Access Agreement (Groundwater Monitoring) dated January 9, 2007
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◦
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Phase I Environmental Site Assessment & Limited Phase II Subsurface Investigation prepared by Mantech Environmental Corporation dated March 28, 2001
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◦
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Limited Phase II Soil & Groundwater Investigation prepared by Mantech Environmental Corporation dated January 23, 2001
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◦
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Phase I Environmental Site Assessment prepared by TRC Environmental Corporation dated December, 1993
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Purchase and Sale Agreement
Schedule 1 – Due Diligence Materials
Page 1 of 4
846565.4
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o
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City of Arlington, Texas
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§
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Maintenance Agreement dated October 15, 2013
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§
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First Amendment to Maintenance Agreement dated October 1, 2014
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§
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Second Amendment to Maintenance Agreement dated August 13, 2015
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o
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Alcoholics Anonymous/Arlington Group
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§
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Shopping Center Lease dated November 28, 2000
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§
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First Amendment to Lease dated January 25, 2008
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§
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Second Amendment to Lease dated January 13, 2014
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§
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Third Amendment to Lease dated January 28, 2015
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o
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CDVV Enterprises, LLC dba All Nails #1
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§
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Retail Lease dated April 29, 2013
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o
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Ameri-Tech Kidney Center-Arlington, LLC
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§
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Lease dated February 18, 2004
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§
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Assignment and Assumption of Lease Agreement dated August 1, 2013
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§
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First Amendment to Lease dated February 28, 2014
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o
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TexFit, LLC dba Anytime Fitness
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§
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Retail Lease dated October 31, 2013
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o
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Bank of America, National Association
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§
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Agreement of Lease dated July 31, 1990
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§
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First Amendment to Lease dated October 31, 1995
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§
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Second Amendment to Lease Agreement dated on or about May 8, 2000
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§
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Third Amendment to Agreement of Lease dated June 29, 2005
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§
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Amended and Restated Fourth Amendment to Agreement of Lease dated on or about July 19, 2010
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§
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Fifth Amendment to Lease dated May 5, 2015
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o
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Greg Daniel, an individual dba Elite Designs, LLP
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§
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Shopping Center Lease dated January 11, 2002
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§
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First Amendment to Shopping Center Lease dated November 8, 2004
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§
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Second Amendment to Shopping Center Lease dated January 26, 2009
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§
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Third Amendment to Shopping Center Lease dated July 17, 2014
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o
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C. S. Lee Tire & Auto Service, Inc., dba Goodyear Tire Center
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§
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Shopping Center Lease dated January 21, 2004
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§
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First Amendment to Shopping Center Lease dated January 22, 2009
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§
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Second Amendment to Shopping Center Lease dated April 27, 2011
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§
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Third Amendment to Shopping Center Lease dated December 31, 2014
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o
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Tammy Cobb, an individual dba Heflin’s Hairport
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§
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Shopping Center Lease dated April 26, 2006
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§
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First Amendment to Shopping Center Lease dated April 30, 2011
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Purchase and Sale Agreement
Schedule 1 – Due Diligence Materials
Page 2 of 4
846565.4
|
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§
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Second Amendment to Shopping Center Lease dated August 1, 2014
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o
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North Texas Nephrology Associates
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§
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Lease dated February 18, 2004
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§
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First Amendment to Lease dated January 30, 2014
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§
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Shopping Center Lease dated December 4, 1997
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§
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First Amendment to Shopping Center Lease dated October 23, 2002
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§
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Second Amendment to Shopping Center Lease dated February 28, 2008
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§
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Third Amendment to Shopping Center Lease dated July 22, 2011
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§
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Standard Form Lease dated December 19, 2013
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o
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Rupoll LLC dba Quizno’s
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§
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Shopping Center Lease dated October 3, 2001
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§
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Assignment of Lease dated May 31, 2004
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§
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Assignment and Assumption and First Amendment to Shopping Center Lease dated March __, 2012
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§
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Assignment and Assumption of Lease dated November 25, 2013
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§
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Guaranty of Lease dated November 25, 2013
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o
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Randall’s Food & Drugs LP
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§
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Shopping Center Pad Ground Lease dated April 9, 2007
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§
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Notice of Option Exercise dated November 3, 2016
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o
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Randall’s Food & Drugs LP
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§
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Build and Lease Agreement dated March 5, 1996
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§
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First Lease Amendment dated September 30, 1997
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§
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Second Lease Amendment dated April 9, 2007
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§
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Lease dated October 8, 2008
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§
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First Amendment to Lease dated January 27, 2014
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o
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United States Postal Service
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§
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Lease dated January 6, 2010
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§
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Exercise of Renewal Option dated May 13, 2014
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o
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Tony Vu and Mai Nguyen, individuals, dba VCM Smoke Shop
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§
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Shopping Center Lease dated October 4, 1999
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§
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First Amendment to Shopping Center Lease dated October 8, 2002
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§
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Second Amendment to Shopping Center Lease dated February 28, 2007
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§
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Assignment and Assumption and Third Amendment to Shopping Center Lease dated April 2011
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§
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Fourth Amendment to Shopping Center Lease dated May 13, 2015
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o
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Long Hoang Nguyen, an individual dba Yoberry
|
Purchase and Sale Agreement
Schedule 1 – Due Diligence Materials
Page 3 of 4
846565.4
|
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§
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Retail Lease dated October 22, 2015
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o
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Cornerstone Martial Arts and Leadership Academy LLC
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§
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Retail Lease dated January 11, 2016
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o
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Operating Statement as of December 31, 2013
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o
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Operating Statement as of December 31, 2014
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o
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Operating Statement as of December 31, 2015
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o
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Operating Statement as of December 31, 2016
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o
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Account:00007049323-2016 Tax Statement
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o
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Account: 00007049323-2015 Tax Statement
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o
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Account: 00007049323-2014 Tax Statement
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o
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Account: 00007049323-2013 Tax Statement
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o
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Account: 00007049331-2016 Tax Statement
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o
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Account: 00007049331-2015 Tax Statement
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o
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Account: 00007049331-2014 Tax Statement
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o
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Account: 00007049331-2014 Tax Statement
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o
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Rent Roll dated January 1, 2017
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o
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Excell Electric-Service Parking Light Inspections
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o
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Landmark Protective Services
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o
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Prestonwood Landscape-Landscape Contract
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o
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Prestonwood Landscape-Snow and Ice removal
|
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o
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Site Services Group-Janitorial
|
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o
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Bradford Management Company-Maintenance Agreement
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o
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NewFields-MNA Groundwater Monitoring
|
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o
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For years 2015 and 2016
|
Purchase and Sale Agreement
Schedule 1 – Due Diligence Materials
Page 4 of 4
846565.4
SCHEDULE 2
DESCRIPTION OF LAND
TRACT 1 (FEE SIMPLE)
BEING Lots 3-R-5A, and Lot 5-R-A1, of Woodlands West Shopping Center, on addition to the City of Arlington, Tarrant County, Texas, according to the plot thereof recorded in Cabinet A, Slide 3671, Plat Records, Tarrant County, Texas, as corrected by Affidavit filed 02/06/2012, recorded in cc# D212028031, Real Property Records, Tarrant County, Texas.
TRACT 2 (NON-EXCLUSIVE EASEMENT)
Non-exclusive easement created pursuant to Agreement by and between Robert S. Folsom and Metropolitan Savings and Loan Association dated 06/13/1977 and recorded in Volume 6259, Page 297, Real Property Records, Tarrant County, Texas and re-recorded in Volume 6306, Page 737, Real Property Records, Tarrant County, Texas.
TRACT 3 (NON-EXCLUSIVE EASEMENT)
Non-exclusive easement created pursuant to Reciprocal Easement Agreement by and between Massachusetts Mutual Life insurance Company and The City of Arlington, dated 04/16/1996, filed for record 04/22/1996 and recorded in Volume 12338, Page 868, Real Property Records, Tarrant County, Texas.
Purchase and Sale Agreement
Schedule 2 – Description of Land
SCHEDULE 3
ASSUMED SERVICE CONTRACTS
[To be determined during the Due Diligence Period]
Purchase and Sale Agreement
Schedule 3 – Assumed Service Contracts
SCHEDULE 4
ENVIRONMENTAL REPORTS
Response Action Effectiveness Report prepared by NewFields dated December 15, 2016
Phase I Environmental Site Assessment Report prepared by W&M Environmental Group, LLC, dated August 25, 2016
Letter from Texas Commission on Environmental Quality dated August 11, 2016
Letter from Texas Commission on Environmental Quality dated January 27, 2016
Response Action Effectiveness Report prepared by NewFields, dated December 8, 2015
Response Action Effectiveness Report prepared by NewFields dated December 4, 2014
Response Action Effectiveness Report prepared by NewFields, dated December 12, 2013
Woodland West Risk Evaluation, Subslab Vapor Monitoring, and Indoor Air Quality Assessment prepared by W&M Environmental Group, LLC, dated April 13, 2015
Letter from Texas Commission on Environmental Quality dated February 12, 2015
Addendum 1 to the Temporary Access Agreement (Groundwater Monitoring) dated October 4, 2012
Agreement for Temporary Access to Property During Groundwater Monitoring Activities dated July 12, 2012
Phase I Environmental Site Assessment prepared by AEI Environmental & Engineering, dated December 23, 2011
Temporary Access Agreement (Groundwater Monitoring) dated January 9, 2007
Phase I Environmental Site Assessment & Limited Phase II Subsurface Investigation prepared by Mantech Environmental Corporation dated March 28, 2001
Limited Phase II Soil & Groundwater Investigation prepared by Mantech Environmental Corporation dated January 23, 2001
Phase I Environmental Site Assessment prepared by TRC Environmental Corporation dated December, 1993
Purchase and Sale Agreement
Schedule 4 – Environmental Reports
SCHEDULE 5
RENT ROLL
Purchase and Sale Agreement
Schedule 5 – Rent Roll
Page 1 of 12
846565.4
Purchase and Sale Agreement
Schedule 5 – Rent Roll
Page 2 of 12
846565.4
Purchase and Sale Agreement
Schedule 5 – Rent Roll
Page 3 of 12
846565.4
Purchase and Sale Agreement
Schedule 5 – Rent Roll
Page 4 of 12
846565.4
Purchase and Sale Agreement
Schedule 5 – Rent Roll
Page 5 of 12
846565.4
Purchase and Sale Agreement
Schedule 5 – Rent Roll
Page 6 of 12
846565.4
Purchase and Sale Agreement
Schedule 5 – Rent Roll
Page 7 of 12
846565.4
Purchase and Sale Agreement
Schedule 5 – Rent Roll
Page 8 of 12
846565.4
Purchase and Sale Agreement
Schedule 5 – Rent Roll
Page 9 of 12
846565.4
Purchase and Sale Agreement
Schedule 5 – Rent Roll
Page 10 of 12
846565.4
Purchase and Sale Agreement
Schedule 5 – Rent Roll
Page 11 of 12
846565.4
Purchase and Sale Agreement
Schedule 5 – Rent Roll
Page 12 of 12
846565.4
SCHEDULE 6
EXCEPTIONS TO SELLER REPRESENTATIONS AND WARRANTIES
Purchase and Sale Agreement
Schedule 6 – Exceptions to Seller Representations and Warranties
846565.4
SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
dated as of February 15, 2017 among
STRATEGIC REALTY OPERATING PARTNERSHIP, L.P., SRT SECURED HOLDINGS, LLC,
AND CERTAIN OTHER ENTITIES AS PROVIDED HEREIN, collectively as Borrower and
The Lenders Party Hereto and
KEYBANK NATIONAL ASSOCIATION
,
as Administrative Agent
KEYBANC CAPITAL MARKETS, LLC,
AS SOLE LEAD BOOKRUNNER AND SOLE LEAD ARRANGER
2079308.10
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS 2
SECTION 1.01
Defined Terms 2
SECTION 1.02
Classification of Loans and Borrowings 29
SECTION 1.03
Terms Generally 29
SECTION 1.04
Accounting Terms; GAAP 29
SECTION 1.05
Designation of Lead Borrower as Agent for Borrower 30
ARTICLE II. THE CREDIT FACILITY 31
SECTION 2.01
Commitments 31
SECTION 2.02
Loans and Borrowings 31
SECTION 2.03
Requests for Borrowings and Approval of Proposed Properties 31
SECTION 2.04
Funding of Borrowings 32
SECTION 2.05
Interest Elections 33
SECTION 2.06
Termination, Reduction and Increase of Commitments 34
SECTION 2.07
Repayment of Loans; Evidence of Debt 35
SECTION 2.08
Prepayment of Loans 36
SECTION 2.09
Fees 36
SECTION 2.10
Interest 37
SECTION 2.11
Alternate Rate of Interest 38
SECTION 2.12
Increased Costs 39
SECTION 2.13
Break Funding Payments 40
SECTION 2.14
Taxes 41
SECTION 2.15
Payments Generally; Pro Rata Treatment; Sharing of Set-offs 42
SECTION 2.16
Mitigation Obligations; Replacement of Lenders 43
SECTION 2.17
Defaulting Lenders 44
SECTION 2.18
Existing Credit Agreement Loans 46
SECTION 2.19
Letters of Credit 46
SECTION 2.20
Expiration or Maturity Date of Letters of Credit Past Termination Date 50
SECTION 2.21
Cash Collateral 51
SECTION 3.01
Organization; Powers 52
SECTION 3.02
Authorization; Enforceability 52
SECTION 3.03
Governmental Approvals; No Conflicts 52
SECTION 3.04
Financial Condition; No Material Adverse Change 53
SECTION 3.05
Properties 53
SECTION 3.06
Intellectual Property 54
SECTION 3.07
Litigation and Environmental Matters 55
SECTION 3.08
Compliance with Laws and Agreements 56
- i -
SECTION 3.09
Investment and Holding Company Status 56
SECTION 3.10
Taxes 56
SECTION 3.11
ERISA 57
SECTION 3.12
Disclosure 57
SECTION 3.13
Insurance 57
SECTION 3.14
Margin Regulations 57
SECTION 3.15
Subsidiaries; REIT Qualification 58
SECTION 3.16
Leases 58
SECTION 3.17
OFAC 58
SECTION 3.18
EEA Financial Institutions 58
SECTION 3.19
No Credit Party is an EEA Financial Institution 58
SECTION 3.20
Anti-Corruption Laws and Sanctions. 58
ARTICLE IV. CONDITIONS 59
SECTION 4.01
Effective Date 59
SECTION 4.02
Each Credit Event 60
ARTICLE V. AFFIRMATIVE COVENANTS 60
SECTION 5.01
Financial Statements; Ratings Change and Other Information 60
SECTION 5.02
Financial Covenants 62
SECTION 5.03
Notices of Material Events. 62
SECTION 5.04
Existence; Conduct of Business 63
SECTION 5.05
Payment of Obligations 63
SECTION 5.06
Maintenance of Properties; Insurance 63
SECTION 5.07
Books and Records; Inspection Rights 66
SECTION 5.08
Compliance with Laws 66
SECTION 5.09
Use of Proceeds; Letters of Credit 66
SECTION 5.10
Fiscal Year 66
SECTION 5.11
Environmental Matters. 66
SECTION 5.12
Mortgaged Property Pool 67
SECTION 5.13
Further Assurances. 72
SECTION 5.14
Partial Releases 72
SECTION 5.15
[Intentionally Deleted] 73
SECTION 5.16
REIT Covenants 73
SECTION 5.17
[Intentionally Deleted] 73
SECTION 5.18
[Intentionally Deleted] 73
SECTION 5.19
[Intentionally Deleted] 74
SECTION 5.20
[Intentionally Deleted] 74
SECTION 5.21
Borrowing Base Covenants. 74
- ii -
SECTION 6.01
Liens 74
SECTION 6.02
Fundamental Changes 74
SECTION 6.03
Investments, Loans, Advances and Acquisitions 75
SECTION 6.04
Hedging Agreements 76
SECTION 6.05
Restricted Payments 76
SECTION 6.06
Transactions with Affiliates 76
SECTION 6.07
[Intentionally Deleted] 76
SECTION 6.08
Restrictive Agreements 76
SECTION 6.09
Indebtedness 77
SECTION 6.10
Management; Management Fees 77
SECTION 6.11
Leases 77
SECTION 6.12
Compliance with Anti-Corruption Laws and Sanctions 79
ARTICLE VII. EVENTS OF DEFAULT 79
SECTION 7.01
Events of Default 79
SECTION 7.02
Remedies 82
SECTION 7.03
Liquidation Proceeds 83
ARTICLE VIII. THE AGENT 84
SECTION 8.01
Appointment and Authority 84
SECTION 8.02
Rights as a Lender 84
SECTION 8.03
Exculpatory Provisions 85
SECTION 8.04
Reliance by Agent 86
SECTION 8.05
Delegation of Duties 86
SECTION 8.06
Resignation of Agent 86
SECTION 8.07
Non-Reliance on Agent and Other Lenders 87
SECTION 8.08
No Other Duties, etc. 87
SECTION 9.01
Notices 87
SECTION 9.02
Waivers; Amendments 89
SECTION 9.03
Expenses; Indemnity; Damage Waiver 90
SECTION 9.04
Successors and Assigns 92
SECTION 9.05
Survival 96
SECTION 9.06
Counterparts; Integration; Effectiveness; Joint and Several 96
SECTION 9.07
Severability 97
SECTION 9.08
Right of Setoff. 97
SECTION 9.09
Governing Law; Jurisdiction; Consent to Service of Process 98
SECTION 9.10
WAIVER OF JURY TRIAL 99
- ii -
SECTION 9.11
Headings 99
SECTION 9.12
Confidentiality 99
SECTION 9.13
Interest Rate Limitation 100
SECTION 9.14
USA PATRIOT Act 100
SECTION 9.15
Joint and Several Liability 100
SECTION 9.16
Additional Waivers and Agreements 104
SECTION 9.17
Effect on Existing Credit Agreement 107
SECTION 9.18
Acknowledgment and Consent to Bail-In of EEA Financial Institutions. 108
- iii -
|
|
|
|
SCHEDULES:
|
|
|
Schedule 2.01
|
--
|
Commitments
|
Schedule 3.05
|
--
|
Liens and Flood Zones, Earthquake or Seismic Areas
|
Schedule 3.15
|
--
|
REIT Subsidiaries
|
Schedule 3.16
|
--
|
Leases
|
Schedule 5.12(a)
|
--
|
Mortgaged Property Pool
|
|
|
|
EXHIBITS:
|
|
|
Exhibit A
|
--
|
Form of Assignment and Assumption
|
Exhibit B
|
--
|
Form of Compliance Certificate
|
Exhibit C
|
--
|
INTENTIONALLY DELETED
|
Exhibit D
|
--
|
Form of Note
|
Exhibit E
|
--
|
Form of Borrowing Request/Interest Rate Election
|
Exhibit F
|
--
|
Form of Joinder Agreement
|
Exhibit G
|
--
|
Form of Borrowing Base Certificate
|
Exhibit H
|
--
|
Form of SNDA Agreement
|
Exhibit I
|
--
|
Form of Estoppel
|
- iv -
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT AMENDS AND RESTATES THAT CERTAIN AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT DATED AS OF AUGUST 4, 2014 (AS AMENDED, SUPPLEMENTED AND OTHERWISE MODIFIED FROM TIME TO TIME), ENTERED INTO BY AND AMONG STRATEGIC REALTY OPERATING PARTNERSHIP, L.P., SRT SECURED HOLDINGS, LLC, AND CERTAIN OF THEIR AFFILIATES, AS BORROWER, KEYBANK NATIONAL ASSOCIATION, AS AGENT, AND KEYBANC CAPITAL MARKETS AS LEAD BOOKRUNNER AND LEAD ARRANGER, AND THE VARIOUS LENDERS PARTY THERETO
SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT
(this
“
Agreem
e
nt”) is made and entered into as of February 15, 2017, by and among
STRATEGIC REALTY OPERATING PARTNERSHIP, L.P.
, a Delaware limited partnership (the “
P
arent”),
SRT SECURED HOLDINGS, LLC
, a Delaware limited liability company
(
“Holdings”), and certain affiliated entities as set forth herein (Parent, Holdings, and such affiliated entities, individually and collectively, the “
Borrow
er” or the
“
Borrowers,” as more fully defined in
Section 1
.01), the lenders from time to time who are parties hereto, whether by execution of this Agreement or through an Assignment and Assumption (each individually, a
“
L
e
nder,” and collectively, the “
Lenders
,” as more fully defined in
Section 1.
01), and
KEYBANK NATIONAL ASSOCIATION
, a national banking association having an address at 225 Franklin Street, 18
th
Floor, Boston, Massachusetts 02110
(
“KeyBank”), as administrative agent (in such capacity, together with its successors and assigns in such capacity, the
“
Agent,” as more fully defined in
Section 1
.01).
RECITALS
Parent, Holdings, certain of the Borrowers, certain of the Lenders as of the date hereof, and the Agent are parties to that certain Amended and Restated Revolving Credit Agreement dated as of August 4, 2014 (as amended, supplemented and otherwise modified from time to time, the “
Existing
Credit Agreeme
nt”). The Borrowers party to the Existing Credit Agreement have requested that the Agent and the Lenders agree to amend and restate the Existing Credit Agreement, and the Borrowers party to this Agreement have requested the Agent and the Lenders continue to make available to them a secured revolving credit facility, including a letter of credit sub-facility, all on the terms and conditions set forth in this Agreement.
The Agent and the Lenders have agreed to the Borrowers’ requests.
NOW, THEREFORE
, in consideration of the recitals herein and mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby covenant and agree that the Existing Credit Agreement is hereby amended and restated in its entirety, and agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01
Defined Terms
. As used in this Agreement, the following terms have the meanings specified below:
“ABR,”
when used in reference to any Loan (e.g., an
“ABR Loan”
) or Borrowing (e.g., an
“ABR Borrowing”
), refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.
“Act” has the meaning set forth in Section 9.14.
“Adjusted EBITDA”
means, for any period of determination, REIT’s consolidated EBITDA for such period, less the Capital Reserve (prorated for such period).
“Adjusted Funds From Operations”
means Funds From Operations (a) plus (i) any charges for asset impairments, (ii) non-cash items, and (iii) non-recurring extraordinary expenses (to the extent approved for purposes of this definition by Agent), (b) minus (i) normalized recurring expenditures that are capitalized by the REIT and then amortized, but which are necessary to maintain the REIT’s properties and its revenue stream (e.g., new carpeting and drapes in apartment units, leasing expenses and tenant improvement allowances), (ii) “straight-lining” of rents, and (iii) amortization of above and below market leases. Adjusted Funds From Operations shall be determined on a cumulative basis utilizing the cumulative calculation as of September 30, 2016 and continuing thereafter.
“Adjusted LIBO Rate”
means, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
“Adjusted Net Operating Income
” means, for any period of determination with respect to any Real Property, such Real Property’s Net Operating Income for such period, less the Capital Reserve (prorated for such period).
“Adjusted Pool Net Operating Income”
means, for any period of determination, the Pool Net Operating Income for such period, less the Capital Reserve (prorated for such period).
“Administrative Questionnaire
” means an Administrative Questionnaire in a form supplied by the Agent.
“Affiliate”
means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
“Affiliate Prepared Information”
has the meaning set forth in
Section 3.12
.
“Agent”
means KeyBank National Association, in its capacity as agent for the Lenders hereunder.
“Alternate Base Rate”
means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) (i) the Federal Funds Effective Rate in effect on such day, plus
(ii) ½ of 1%, and (c) (i) the Adjusted LIBO Rate for a hypothetical Interest Period of one month beginning on such day, plus (ii) one percent (1%). Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
“Anti-Corruption Laws”
means all Legal Requirements of any jurisdiction applicable to a Credit Party or any of its Subsidiaries from time to time concerning or relating to bribery or corruption, including, without limitation, the United States Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
“
Applicable Margin
” means, for any day, with respect to any ABR Loan or Eurodollar Loan, the applicable spread set forth below under the caption “ABR Spread” or “Eurodollar Spread”:
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|
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Total Leverage Ratio
|
ABR Spread
|
Eurodollar Spread
|
≥ 65% and ≤ 70%
|
2.50
|
3.50
|
≥ 55% and < 65%
|
2.00
|
3.00
|
< 55%
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1.50
|
2.50
|
“Applicable Percentage”
means, with respect to any Lender, the percentage of the total Commitments represented by such Lender’s Commitment. If the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Revolving Credit Exposure most recently in effect, giving effect to any assignments.
“Appraisal”
(whether one or more) means a written appraisal, ordered by the Agent, of any Real Property by an MAI appraiser satisfactory to the Agent. Each Appraisal must comply with all Legal Requirements and must be in form and substance satisfactory to the Agent.
“Appraised Value”
means, as to any Real Property, the “as is” value of such Real Property, as set forth in the most recent Appraisal of such Real Property.
“Approved Fund”
means any Person (other than a natural person, a Real Property Tenant or a Competitor) that is engaged in making, purchasing, holding or investing in commercial loans and similar extensions of credit in the ordinary course of its business, and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Approved Lease”
has the meaning set forth in
Section 6
.11(a).
“Assignment and Assumption”
means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 9.04
), and accepted by the Agent, in the form of
Exhibit A
or any other form approved by the Agent.
“Availability Period”
means the period from, and including, the Effective Date to, but excluding, the Termination Date.
“Bail-In Action”
means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation”
means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
“Board”
means the Board of Governors of the Federal Reserve System of the United States of America.
“Borrower(s)”
means, collectively, the Parent, Holdings, SRT Secured Topaz, LLC, a Delaware limited liability company, SRT SF Retail I, LLC, a Delaware limited liability company, SRT LA Retail, LLC, a Delaware limited liability company, and any other Person who from time to time becomes a “Borrower” as required by
Section 5.12(a)
but excluding any Person who from time to time is released from its obligations as a “Borrower” pursuant to
Section 5
.14.
“Borrower Collateral”
means the “Collateral” as defined in the Borrower Pledge Agreement.
“Borrower Entity”
means, as of the date of determination (a) any Subsidiary of a Borrower (other than, for purposes of this clause (a), Lead Borrower), (b) any Subsidiary of Lead Borrower which, directly or indirectly, owns or holds an interest in a Mortgaged Property, and (c) any Subsidiary of any Entity, Subsidiary or Person set forth in subsections (a) and (b), of this definition which directly or indirectly owns or holds and interest in (x) any Mortgaged Property or (y) any Equity Interests in any Person owning or holding an interest in a Mortgaged Property. Collectively, the term
“
Borrower
Entities
” refers to all of the foregoing.
“Borrower Pledge Agreement”
means the first priority Pledge and Security Agreement (SRT Secured Holdings, LLC) dated as of December 17, 2010 by and between Holdings and Agent, as the same has been and may be amended from time to time.
“
Borrowin
g” means Loans of the same Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.
“Borrowing Base Availability”
means, at any time of determination, the least of (a) the aggregate Commitments at such time, (b) an amount equal to 65% of the Borrowing Base Pool Value at such time, and (c) the Debt Service Test Amount at such time.
“Borrowing Base Certificate”
has the meaning set forth in
Section 5
.01(e).
“Borrowing Base Pool Value”
means, at any time of determination, the aggregate Appraised Values of each then Mortgaged Property (excluding any released Mortgaged Property), based on the Appraisal of such Mortgaged Property at the time such Mortgaged Property was added to the Mortgaged Property Pool, or in an updated Appraisal approved by the Agent. Prior to the Maturity Date, Agent shall have the right to order updated Appraisals of the Mortgaged Properties for the
purpose of determining Borrowing Base Pool Value, which Appraisals shall not be ordered more frequently than once annually at Lenders’ expense (unless an Event of Default has occurred and is continuing), and Agent shall have the right to order updated appraisals at any time during the continuance of an Event of Default, at Borrower’s expense.
“Borrowing Request”
means a request by the Borrower for a Borrowing in accordance with
Section 2.03
.
“Business Day”
means any day that is not a Saturday, Sunday or other day on which commercial banks in Boston, Massachusetts or New York, New York are authorized or required by law to remain closed;
provided
that, when used in connection with a Eurodollar Loan, the term
“Business Day”
shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.
“Calculation Period”
means the period of two (2) consecutive Calendar Quarters ending on any Determination Date.
“Calendar Quarter”
means a period of three (3) consecutive calendar months, ending with the last day of March, June, September or December of each year.
“Capital Event”
means, (a) with respect to REIT, any Equity Issuance by REIT, (b) with respect to the Borrower, any Equity Issuance by the Borrower, and (c) with respect to the Borrower or REIT (as applicable), (i) the sale or refinancing of any of Borrower’s assets, the sale or refinancing of any Equity Interests in the Entities owned directly or indirectly by the Borrower and/or REIT, (ii) during the continuance of an Event of Default, the sale or refinancing of a Real Property or the collection of insurance or condemnation proceeds due to the occurrence of any damage or destruction to a Real Property by reason of fire or other hazard or casualty or any condemnation for public use of a Real Property, or (iii) the Borrower’s (and/or REIT’s) receipt of any proceeds of any Excluded Rights (as defined in the Pledge Agreement).
“Capitalization Rate”
means 7.00%.
“Capitalization Value”
means, for any Real Property at any time of determination, the quotient of (a) such Real Property’s Adjusted Net Operating Income for the Calculation Period ending on the most recent Determination Date, annualized, divided by (b) the Capitalization Rate.
“Capital Reserve”
means, on an annual basis, an amount equal to $0.20 per occupied square foot for each applicable Real Property.
“Capital Lease Obligations”
of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Cash Equivalents”
means (i) securities issued or directly or fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (
provided
that the full faith and credit of the United States of America is pledged in support thereof); (ii) unrestricted domestic
and LIBOR certificates of deposit and time deposits, bankers’ acceptances and floating rate certificates of deposit issued by any commercial bank organized under the laws of the United States, any state thereof, the District of Columbia, any foreign bank, or its branches or agencies (fully protected against currency fluctuations), which, at the time of acquisition, are rated A-1 (or better) by S&P or P-1 (or better) by Moody’s (any such bank an “Approved Bank”), maturing within one year from the date of acquisition, (iii) commercial paper issued by any Approved Bank or by the parent company of any Approved Bank and commercial paper issued by, or guaranteed by, any industrial or financial company with a short-term commercial paper rating of at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s, or guaranteed by any industrial company with a long term unsecured debt rating of at least A or A2, or the equivalent of each thereof, from S&P or Moody’s, as the case may be, and in each case maturing within one year after the date of acquisition, (iv) marketable direct obligations issued by the District of Columbia or any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s, and (v) investments in money market funds substantially all the assets of which are comprised of securities of the type described in any one or more of clauses (i) through (iv) above, but without regard to the maturity date of the underlying assets of any such money market fund.
“Change in Control or Key Management”
means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the date hereof), of shares representing more than fifty percent (50%) of the aggregate ordinary voting power represented by the issued and outstanding capital stock of REIT; occupation of a majority of the seats (other than vacant seats) on the board of directors of REIT by Persons who were neither (i) nominated by the board of directors of REIT nor (ii) appointed by directors so nominated; or (c) the acquisition of direct or indirect Control of REIT by any Person or group; or (d) the chief executive officer (or the individual performing the functions and having the duties and responsibilities customarily performed and delegated to such officer, regardless of title) of SRT Advisor or Glenborough ceases to act in such capacity, has his duties and responsibilities materially reduced, or ceases to be actively involved in the day-to-day
management and operations of the Credit Parties, unless replaced within thirty (30) days by an individual acceptable to the Agent, in its reasonable discretion.
“Change in Law”
means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority;
provided
that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “
Change in Law
”, regardless of the date enacted, adopted or issued.
“Charges”
has the meaning set forth in
Section 9
.13.
“Claim”
has the meaning set forth in
Section 9
.16(c).
“Code”
means the Internal Revenue Code of 1986, as amended from time to time.
“Collateral”
means all property, tangible or intangible, real, personal or mixed, now or hereafter subject to the liens and security interests of the Loan Documents, or intended so to be, which Collateral shall secure the Obligations and the Hedging Obligations on a pari passu basis.
“Collateral Account”
means a special non-interest bearing deposit account or securities account maintained by, or on behalf of, the Agent and under its sole dominion and control.
“Commitment”
means, with respect to each Lender, the obligation of such Lender to make Loans and purchase participations in Letters of Credit hereunder, in an aggregate amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on
Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate amount of the Lenders’ Commitments on the Effective Date is $60,000,000.00.
“Commodity Exchange Act”
means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Competitor”
means any Person that is a competitor of REIT or any Affiliate or Subsidiary of REIT, or an Affiliate of a competitor, which shall include a so-called “Retail REIT” or “hedge fund,” in each case as disclosed in writing to Agent.
“Compliance Certificate”
has the meaning set forth in
Section 5.
01(e).
“Contingent Obligation”
means any obligation of a Person arising from a guaranty, indemnity or other assurance of payment or performance of any Indebtedness, lease, dividend or other obligation (“
primary obligations
”) of another obligor (“
primary obligor
”) in any manner, whether directly or indirectly (but, for purposes of clarification, excluding any such primary obligation to the extent such primary obligation is reflected on the balance sheet of either the Borrower or a Guarantor), including any obligation of such Person under any (i) guaranty, endorsement, co-making or sale with recourse of an obligation of a primary obligor; (ii) obligation to make take-or-pay or similar payments regardless of nonperformance by any other party to an agreement; and (iii) arrangement (a) to purchase any primary obligation or security therefor, (b) to supply funds for the purchase or payment of any primary obligation, (c) to maintain or assure working capital, equity capital, net worth or solvency of the primary obligor, (d) to purchase real or personal property or services for the purpose of assuring the ability of the primary obligor to perform a primary obligation, or (e) otherwise to assure or hold harmless the holder of any primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be the stated or determinable amount of the primary obligation (or, if less, the maximum amount for which such Person may be liable under the instrument evidencing the Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability with respect thereto.
“Control”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise, which includes the customary powers of a managing member of any limited liability company, any general partner of any limited partnership, or any board of directors of a corporation.
“
Controlling” and
“
C
o
ntrolled” have meanings correlative thereto.
“Cost to Repair”
has the meaning set forth in
Section 5
.06(c).
“Court”
has the meaning set forth in
Section 9
.16(c).
“Credit Party”
means each Borrower and the Guarantor.
“Current Survey”
means the boundary survey of each of the Mortgaged Properties.
“Debtor Relief Laws”
means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
“Debt Service”
means, for any period with respect to Indebtedness of Borrower, REIT and their Subsidiaries, the sum of (without duplication) all Interest Expense and regularly scheduled principal (including the portion of rent payable during such period under Capital Lease Obligations that should be treated as principal in accordance with GAAP) due and payable during such period, other than any balloon, bullet, early repayment or similar principal payment which, in each case, repays such Indebtedness in full. Debt Service shall include the applicable Equity Percentage share of items (a) and (b) as applicable for all Unconsolidated Affiliates.
“Debt Service Test Amount”
means, as of any date of determination, the Principal Testing Amount that would result in an Implied Debt Service Ratio of 1.35 to 1.0.
“Deed of Trust”
(whether one or more) means a deed of trust and security agreement, a mortgage and security agreement, or a security deed and security agreement covering the Mortgaged Properties.
“Default”
means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
“Defaulting Property”
has the meaning assigned to such term in
Section 7
.02.
“Defaulting Property Cure Rights”
has the meaning assigned to such term in
Section 7
.02.
“Default Rate”
means the interest rate described in
Section 2.10
(c).
“Defaulting Lender”
means, subject to
Section 2
.17(b), any Lender that (a) has failed to
(i)
fund all or any portion of its Loans within 2 Business Days of the date such Loans were required to be funded hereunder, unless such failure is due to a good faith dispute by such Lender regarding whether one or more of the conditions precedent to the funding obligation of such Lender have been satisfied, or (ii) pay to the Agent or any other Lender any other amount required to be paid by it
hereunder (including in respect of its participation in Letters of Credit) within 2 Business Days of the date when due, (b) has notified the Lead Borrower or the Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within 3 Business Days after written request by the Agent or the Lead Borrower, to confirm in writing to the Agent and the Lead Borrower that it will comply with its prospective funding obligations hereunder (
provided
that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Agent and the Lead Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity, (iii) in the good faith determination of the Agent, taken any material action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment, or (iv) become the subject of a Bail-in Action;
provided
that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate,
disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to
Section
2
.17(b)) as of the date established therefor by Agent in a written notice of such determination, which shall be delivered by Agent to Borrower and each Lender following such determination.
“Derivatives Termination Value
” means, in respect of any one or more Hedging Agreement, after taking into account the effect of any legally enforceable netting agreement relating to such Hedging Agreements, (a) for any date on or after the date such Hedging Agreements 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 Hedging Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which may include the Agent or an Affiliate of the Agent).
“Designated Jurisdiction”
means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
“Determination Date”
means the last day of each Calendar Quarter.
“Dollars”
or
“$”
refers to lawful money of the United States of America.
“EBITDA”
means, for any period of determination, without duplication, net income (or loss), plus (a) actual interest paid or payable respecting all debt, plus (b) total income tax expense, plus (c) depreciation and amortization expense, plus (minus) (d) losses (gains) from extraordinary items, nonrecurring items (such as offering and organizational costs), asset sales, write-ups, or forgiveness of debt, adjusted for (e) the elimination of straight-line rents and amortization of above or below market rents, all of the foregoing as determined in accordance with GAAP, as appropriate. Such adjustments shall only be made to the extent that said item was included in the calculation of net income (loss), without double counting, and shall include the Borrower’s Equity Percentage for Unconsolidated Affiliates. Costs excluded from this calculation shall include acquisition fees, asset management fees and property management fees in excess of 3% that are subordinated to the Obligations.
“EEA Financial Institution”
means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country”
means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority”
means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Effective Date
” means the date on which the conditions specified in
Section 4.01
are satisfied (or waived in accordance with
Section 9
.02).
“Eligible Assignee”
means any Person that meets the requirements to be an assignee under
Sections 9.04
(b)(iii),
(v)
and
(vi)
(subject to such consents, if any, as may be required under
Section 9.04
(b)(iii)).
“Entity”
or
“Entities”
means collectively, each Borrower Entity and REIT Entity, or individually, any Borrower Entity and/or REIT Entity, as the context may require.
“Environmental Assessment”
means a written assessment and report approved by the Agent as to the status of any Proposed Mortgaged Properties regarding compliance with any Legal Requirements related to environmental matters and accompanied by a reliance letter satisfactory to the Agent. Each Environmental Assessment must comply with all Legal Requirements.
“Environmental Claim”
means any notice of violation, action, claim, Environmental Lien, demand, abatement or other order or direction (conditional or otherwise) by any Governmental Authority or any other Person for personal injury (including sickness, disease or death), tangible or intangible property damage, damage to the environment, nuisance, pollution, contamination or other adverse effects on the environment, or for fines, penalties or restriction, resulting from or based upon (i) the existence, or the continuation of the existence, of a Release (including, without limitation, sudden or non-sudden accidental or non-accidental Releases) of, or exposure to, any Hazardous
Material, or other Release in, into or onto the environment (including, without limitation, the air, soil, surface water or groundwater) at, in, by, from or related to any property owned, operated or leased by the Borrower or any of its Subsidiaries or any activities or operations thereof; (ii) the environmental aspects of the transportation, storage, treatment or disposal of Hazardous Materials in connection with any property owned, operated or leased by the Borrower or any of its Subsidiaries or their operations or facilities; or (iii) the violation, or alleged violation, of any Environmental Laws or Environmental Permits of or from any Governmental Authority relating to environmental matters connected with any property owned, leased or operated by the Borrower or any of its Subsidiaries.
“Environmental Indemnity”
means, collectively, each Environmental and Hazardous Substances Indemnity Agreement heretofore executed by the Borrower and Guarantor and delivered to the Agent, together with each Environmental and Hazardous Substances Indemnity Agreement hereafter executed, with respect to any of the Mortgaged Properties.
“Environmental Laws”
means all applicable laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters and includes (without limitation) the Comprehensive Environmental Response, Compensation, and Liability Act
(
“CERCLA”), 42 U.S.C. § 9601
et seq
., the Hazardous Materials Transportation Act, 49 U.S.C. § 1801
et seq
., the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136
et seq
., the Resource Conservation and Recovery Act (
“
RCRA”), 42 U.S.C. § 6901
et seq
., the Toxic Substances Control Act, 15 U.S.C. § 2601
et seq
., the Clean Air Act, 42 U.S.C. §7401
et seq
., the Clean Water Act, 33 U.S.C. § 1251
et se
q., the Occupational Safety and Health Act, 29 U.S.C. § 651
et seq
., (to the extent the same relates to any Hazardous Materials), and the Oil Pollution Act of 1990, 33 U.S.C. § 2701
et seq
., as such laws have been amended or supplemented, and the regulations promulgated pursuant thereto, and all analogous state and local statutes.
“Environmental Liability”
means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) exposure to any Hazardous Materials in violation of any Environmental Law, (c) the Release or threatened Release of any Hazardous Materials into the environment in violation of any Environmental Law or (d) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Environmental Lien”
means any lien in favor of any Governmental Authority arising under any Environmental Law.
“Environmental Permit”
means any permit required under any applicable Environmental Law or under any and all supporting documents associated therewith.
“Equity Interest”
means, with respect to any Person, any limited liability company interests, membership interests, general partnership interests, limited partnership interests, any share of capital stock of (or other ownership or profit interests in) such Person, any warrant, option or other right for the purchase or other acquisition from such Person of any share of capital stock of (or other
ownership or profit interests in) such Person, any security convertible into or exchangeable for any share of capital stock of (or other ownership or profit interests in) such Person or warrant, right or option for the purchase or other acquisition from such Person of such shares (or such other interests), and any other ownership or profit interest in such Person (including, without limitation, partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such share, warrant, option, right or other interest is authorized or otherwise existing on any date of determination.
“Equity Issuance”
means any issuance by a Person of any Equity Interest in such Person and shall in any event include the issuance of any Equity Interest upon the conversion or exchange of any security constituting indebtedness that is convertible or exchangeable, or is being converted or exchanged, for Equity Interests, but shall specifically exclude any issuance by a Person of any Equity Interest in any Person in exchange for a contribution of real property (together with cash required by a lender secured by such real property for escrow or reserve
purposes and cash in any other property-related accounts) or Equity Interests in another Person, or any other non-cash consideration.
“Equity Percentage”
means the aggregate ownership percentage of Borrower in each Unconsolidated Affiliate, which shall be calculated as the greater of (a) Borrower’s nominal capital ownership interest in the Unconsolidated Affiliate as set forth in the Unconsolidated Affiliate’s organizational documents, and (b) Borrower’s economic ownership interest in the Unconsolidated Affiliate, reflecting Borrower’s share of income and expenses of the Unconsolidated Affiliate.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate”
means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.
“ERISA Event”
means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
“EU Bail-In Legislation Schedule”
means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Eurodollar,”
when used in reference to any Loan (e.g., a
“Eurodollar Loan”
) or Borrowing (e.g., a
“Eurodollar Borrowing”
), refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.
“Event of Default”
has the meaning assigned to such term in
Article VII
.
“Excluded Swap Obligation”
means, with respect to any Credit Party, any Hedging Obligation of another Credit Party as to which such Credit Party is jointly and severally or otherwise liable pursuant to the terms of this Agreement or any other Loan Document if, and to the extent that, the incurrence of Obligations by such Credit Party in respect of such Hedging Obligation, or the grant under a Loan Document by such Credit Party of a security interest to secure such Hedging Obligation (or any guaranty thereof), is or becomes illegal under the Commodity Exchange Act (or the application or official interpretation thereof) by virtue of such Credit Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time such Credit Party becomes jointly and severally or otherwise liable with respect to such Hedging Obligation or grants a security interest to secure same. If a Hedging Obligation arises under a Hedging Agreement governing more than one transaction, such exclusion shall apply only to the portion of such Hedging Obligation that is attributable to Hedging Agreements for which such Obligations or security interest becomes illegal.
“Excluded Taxes”
means, with respect to the Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.16
(b)), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Foreign Lender’s failure to comply with
Section 2.14(e)
, except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.14(a)
.
“Existing Credit Agreement Loans”
means the outstanding principal balance of the Loans (as defined in the Existing Credit Agreement) on the Effective Date.
“Existing Credit Agreement”
has the meaning assigned to such term in the Recitals paragraphs to this Agreement.
“Fair Market Value”
means, with respect to (a) a security listed on a national securities exchange or the NASDAQ National Market, the price of such security as reported on such exchange or market by any widely recognized reporting method customarily relied upon by financial
institutions and (b) with respect to any other property, the price which could be negotiated in an arm’s-length free market transaction, for cash, between a willing seller and a willing buyer, neither of which is under pressure or compulsion to complete the transaction.
“Federal Funds Effective Rate”
means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Agent from three Federal funds brokers of recognized standing selected by it.
“Financial Officer”
means the chief financial officer or the chief accounting officer of REIT or other specified Person.
“Financing Statements
” means all such Uniform Commercial Code financing statements as the Agent shall require, duly authorized by the Credit Parties to give notice of and to perfect or continue perfection of the Lenders’ security interest in all Collateral (to the extent a security interest can be perfected by such filing).
“Fixed Charge Coverage Ratio”
means, as of any date of determination, the ratio of
(a)
REIT’s Adjusted EBITDA, on a consolidated basis, for the Calculation Period ending on the most recent Determination Date, to (b) the Fixed Charges for such Calculation Period.
“Fixed Charges”
means, for any period, the sum of (a) Debt Service for such period, and
(b)
the aggregate of all cash dividends on the preferred stock of REIT or any of its Subsidiaries that such Person is required, pursuant to the terms of the certificate of designation or other similar document governing the rights of preferred shareholders, to pay and is not permitted to defer which is paid during such period, in each case on a consolidated basis, all of the foregoing calculated without duplication.
“Foreign Lender”
means any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower is organized. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
“Fronting Exposure”
means, at any time there is a Defaulting Lender, with respect to the Agent, such Defaulting Lender’s Applicable Percentage of the outstanding Letter of Credit Liabilities other than Letter of Credit Liabilities as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or cash collateralized in accordance with the terms hereof.
“Funds From Operations”
means, for any period, the REIT’s net income or loss for the period computed in accordance with GAAP, excluding gains or losses from sales of property but including asset impairment writedowns, plus depreciation and amortization, and after adjustments for the REIT’s pro-rata ownership of unconsolidated partnerships and joint ventures. Adjustment for unconsolidated partnerships and joint ventures are calculated to reflect Funds From Operations.
“GAAP”
means generally accepted accounting principles in the United States of America, subject to the provisions of
Section 1.04
.
“Glenborough”
means Glenborough, LLC, a Delaware limited liability company.
“Governmental Authority”
means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Ground Lease”
means the ground lease for a Proposed Mortgaged Property pursuant to which a Borrower will lease such Proposed Mortgaged Property.
“Guarantee”
of or by any Person (the “
guarantor
”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “
primary obligor
”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided
, that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.
“Guarantor”
means the REIT, its successors and/or assigns and any other Person who from time to time has executed a Guaranty of the Loans as required by the terms of this Agreement.
“Guarantor Payment”
has the meaning set forth in
Section 9.15(g)
.
“Guaranty”
means collectively, that certain Second Amendment and Ratification of Amended and Restated Guaranty Agreement of even date herewith executed by the Guarantor, together with other guaranties executed in connection with the Loans, each as may be amended from time to time.
“Hazardous Materials”
means all materials which are defined, described or identified as hazardous or toxic materials, wastes or substances in applicable Environmental Laws;
provided
, that Hazardous Materials shall not include any such substances or wastes utilized or maintained at the Real Property in the ordinary course of business and in accordance with all applicable Environmental Laws.
“Hedging Agreement”
means any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.
“Hedging Obligations”
means, with respect to REIT, any Borrower or any Subsidiary of REIT or a Borrower, any obligations arising under any Hedging Agreement entered into with the Agent or an Affiliate of the Agent.
“Holdings”
has the meaning set forth in the introductory paragraph of this Agreement.
“Holdings LLC Agreement”
means that certain limited liability company agreement of Holdings as in effect on the Effective Date.
“Impacted Interest Period”
has the meaning set forth in the definition of LIBOR Rate.
“Implied Debt Service”
means, for any period of determination, the principal and interest that would be due and payable during such period on a hypothetical loan in a notional principal amount equal to the applicable Principal Testing Amount, assuming monthly payments of principal and interest thereon due on the first day of each calendar month, based on a thirty (30) year amortization schedule with interest accruing, and payable in arrears, at a per annum rate equal to the greater of (a) 2.50% over the 10-year Treasury rate at the time of determination, or (b) 6.0%.
“Implied Debt Service Ratio”
means, at any date of determination, the ratio of (a) the Pool Net Operating Income for the Calculation Period ending on the most recent Determination Date, adjusted to give pro forma effect for Mortgaged Properties added and released during such Calculation Period and during the period from such Determination date to such date of determination, to (b) the Implied Debt Service for a period of two (2) consecutive Calendar Quarters.
“Indebtedness”
of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, including mandatorily redeemable preferred stock, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, (k) all obligations contingent or otherwise, of such Person with respect to any Hedging Agreements, including the Derivatives Termination Value thereof, and (1) payments received in consideration of sale of an ownership interest in Borrower when the interest so sold is determined, and the date of delivery is, more than one (1) month after receipt of such payment and only to the extent that the obligation to deliver such interest is not payable solely in such interest of such Person. The Indebtedness of any Person shall include the Indebtedness of any
other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. Indebtedness shall be calculated on a consolidated basis in
accordance with GAAP, and including (without duplication) the Equity Percentage of Indebtedness for the Borrower’s Unconsolidated Affiliates.
“Indemnified Taxes”
means Taxes other than Excluded Taxes.
“Indemnitee”
has the meaning set forth in
Section 9
.03(b).
“Interest Coverage Ratio”
means the ratio of (a) the sum (without duplication) of REIT’s Adjusted EBITDA, and the Borrower’s Adjusted EBITDA for Calculation Period ending on the most recent Determination Date, to (b) the sum (without duplication) of all Interest Expense of REIT and the Borrower for such Calculation Period.
“Interest Election Request”
means a request by the Borrower to convert or continue a Borrowing in accordance with
Section 2.05
.
“Interest Expense”
means, for any period, without duplication (a) total interest expense of Borrower, REIT and Subsidiaries, including capitalized interest not funded under a construction loan interest reserve account, determined on a consolidated basis for such period, plus (b) Borrower’s, REIT’s and Subsidiaries’ Equity Percentage of Unconsolidated Affiliates for such period. Notwithstanding anything to the contrary, Interest Expense shall not include any amortization of deferred financing costs or the impact of ASC 470.20, as codified by the Financial Accounting Standards Board, in accordance with GAAP.
“Interest Payment Date”
means the first Business Day of each calendar month.
“Interest Period”
means with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two or three months thereafter;
provided
, that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar Borrowing only, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (b) any Interest Period pertaining to a Eurodollar Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Interpolated Rate”
means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as LIBO Rate) determined by the Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that
results from interpolating on a linear basis between: (a) the LIBO Rate for the longest period for which the LIBO Rate is available that is shorter than the Impacted Interest Period; and (b) the LIBO Rate for the shortest period for which that LIBO Rate is available that exceeds the Impacted Interest Period, in each case, at such time.
“KeyBank”
as defined in the Preamble.
“Lead Borrower”
means the Parent.
“
Lease
” means any lease, license agreement and other occupancy or use agreement (whether oral or written), now or hereafter existing, which cover or relate to a Real Property or any part thereof, together with all options therefor, amendments thereto and renewals, modifications and guaranties thereof, including any cash or security deposited under the Lease to secure performance by the tenants of its obligations under the Lease, whether such cash or security is to be held until the expiration of the terms of the Lease or applied to one or more of the installments of rent coming due thereunder.
“Legal Requirements”
means all applicable constitutions, treaties, statutes, laws, by-laws, codes, ordinances, regulations, rules, orders, writs, injunctions, directives, or decrees of any Governmental Authority, and the requirements of any Governmental Authority having or claiming jurisdiction with respect thereto, including, but not limited to, those applicable to zoning, subdivision, building, health, fire, safety, sanitation, the protection of and access for the handicapped or disabled persons, and environmental matters.
“Lenders”
means the Persons holding Commitments listed on
Schedule 2.01
and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. As the context permits, the term
“
Lende
r
” shall also refer to the Agent in its capacity as the issuer of any Letter of Credit.
“Letter of Credit”
has the meaning set forth in
Section 2.19
.
“Letter of Credit Documents”
means, with respect to any Letter of Credit, collectively, any application therefor, any certificate or other document presented in connection with a drawing under such Letter of Credit and any other agreement, instrument or other document governing or providing for (a) the rights and obligations of the parties concerned or at risk with respect to such Letter of Credit, or (b) any collateral security for any of such obligations.
“Letter of Credit Liabilities”
means, without duplication, at any time and in respect of any Letter of Credit, the sum of (a) the Stated Amount of such Letter of Credit, plus (b) the aggregate unpaid principal amount of all Reimbursement Obligations at such time due and payable in respect of all drawings made under such Letter of Credit. For purposes of this Agreement, a Lender (other than the Lender acting as the Agent) shall be deemed to hold a Letter of Credit Liability in an amount equal to its participation interest in the related Letter of Credit under
Section 2
.19(i), and the Lender acting as the Agent shall be deemed to hold a Letter of Credit Liability in an amount equal to its retained interest in the related Letter of Credit after
giving effect to the acquisition by the Lenders other than the Lender acting as the Agent of their participation interests under such Section.
“Letter of Credit Sublimit”
means $10,000,000.00.
“LIBO Rate”
means, with respect to any Eurodollar Borrowing for any Interest Period, the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for U.S. Dollars) for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen, on any successor or
substitute page on such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate from time to time as selected by the Agent in its reasonable discretion; in each case the
“LIBOR Screen Rate”
) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period;
provided
that (i) if the LIBOR Screen Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement;
provided further
that if the LIBOR Screen Rate shall not be available at such time for such Interest Period (an “
Impacted Interest Period
”) then the LIBO Rate shall be the Interpolated Rate; provided that if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement, and (ii) if no such rate administered by ICE Benchmark Administration (or by such other Person that has taken over the administration of such rate for U.S. Dollars) is available to the Agent, the applicable LIBO Rate for the relevant Interest Period shall instead be the rate determined by the Agent to be the rate at which KeyBank or one of its Affiliate banks offers to place deposits in U.S. dollars with first class banks in the London interbank market at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period, in the approximate amount of the relevant LIBOR Rate Loan and having a maturity equal to such Interest Period. For any period during which a Reserve Percentage shall apply, the LIBO Rate with respect to Eurodollar Borrowings shall be equal to the amount determined above divided by an amount equal to 1 minus the Reserve Percentage.
“LIBOR Screen Rate”
has the meaning set forth in the definition of LIBO Rate.
“Lien”
means, with respect to an asset, (a) any mortgage, deed of trust, lien (statutory or other), pledge, hypothecation, negative pledge, collateral assignment, encumbrance, deposit arrangement, charge or security interest in, on or of such asset; (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset; (c) the filing under the Uniform Commercial Code or comparable law of any jurisdiction of any financing statement naming the owner of the asset to which such Lien relates as debtor; (d) any other preferential arrangement of any kind or nature whatsoever intended to assure payment of any Indebtedness or other obligation; and (e) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities, including any dividend reinvestment or redemption plans.
“Liquidation Proceeds”
means amounts received by the Agent and/or the Lenders in the exercise of the rights and remedies under the Loan Documents.
“
Liquidity
” means the sum of REIT and Borrower’s unencumbered and unrestricted (a) cash and Cash Equivalents, plus (b) the current market value (as determined by Agent) of readily marketable securities and other short-term investments approved by Agent.
“Loan Documents”
means this Agreement, the Notes, each Letter of Credit Document, the Guaranty, the Pledge Agreements, the Deed of Trust, the Financing Statements, the Environmental Indemnity, the Subordination of Management Fees, and all other instruments, agreements and written obligations executed and delivered by any of the Credit Parties in connection with the transactions contemplated hereby.
“Loans”
means the loans made by the Lenders to the Borrower pursuant to this Agreement.
“Major Lease”
means any Lease for all or any portion of a Mortgaged Property that exceeds 10,000 square feet, but excluding any Lease that is on a month-to-month basis whereby the tenant does not have unilateral discretion regarding monthly renewals.
“Management Company”
means, collectively, SRT Advisor and/or Glenborough.
“Material Adverse Effect”
means a material adverse effect, as determined in good faith by Agent in its reasonable discretion, on (a) the business, assets, operations, or condition, financial or otherwise, of (i) the Borrower and its Subsidiaries, other than owners of Mortgaged Properties, and the Guarantor, taken as a whole, or (ii) any owner of a Mortgaged Property to the extent that such material adverse effect results in a violation of the financial covenants set forth in
Section 5.02
or the borrowing base covenants set forth in
Section 5
.21, (b) the ability of any of the Credit Parties to perform their obligations under the Loan Documents, or (c) the rights of or benefits available to the Agent or the Lenders under the Loan Documents.
“Material Contract”
means any contract or other arrangement (other than Loan Documents), whether written or oral, to which any Credit Party is a party as to which the breach, nonperformance, cancellation or failure to renew by any party thereto could reasonably be expected to have a Material Adverse Effect.
“Maturity Date”
means February 15, 2020.
“Maximum Commitment
” has the meaning set forth in
Section 2.06(d
).
“Maximum Rate”
shall have the meaning set forth in
Section 9.13
.
“Moody’s”
means Moody’s Investors Service, Inc. and any successor thereto.
“Mortgaged Properties”
means a Real Property which satisfies the Mortgaged Property Requirements, has been approved by Agent and Required Lenders in accordance with
Section 5
.12, is subject to the Lien of a Deed of Trust in accordance with this Agreement, and is included
in the Mortgaged Property Pool, but excludes any Real Property which is released from the liens and security interests of the Loan Documents pursuant to
Section 5.1
4.
“Mortgaged Property Pool
” shall have the meaning set forth in
Section 5
.12(a)(i).
“Mortgaged Property Requirements
” shall have the meaning set forth in
Section 5
.12(a)(iii).
“Multiemployer Plan
” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“Net Operating Income
” means, for any period and for any operating Real Property, the sum of the following, without duplication, determined on a consistent basis with prior periods and including pro-rata amounts for Real Properties not wholly-owned: (a) rents and other revenues received in the ordinary course from such Real Property (including proceeds of rent loss or business interruption insurance but excluding pre-paid rents and revenues, security deposits, lease termination fees and straight-line rents), minus (b) all expenses paid (excluding interest, depreciation and amortization and any expenditures that are capitalized in accordance with GAAP but including an
appropriate accrual for property taxes and insurance) related to the ownership, operation or maintenance of such Real Property, including, but not limited to, property taxes, assessments and the like, insurance, utilities, payroll costs, maintenance, repair and landscaping expenses, marketing expenses, and general and administrative expenses and any property management fees (not to be less than 3% of revenues) related to such Real Property. Annualized amounts shall be adjusted for unbilled CAM reimbursements (e.g., snow removal) expected to be paid in the calendar year and for any extraordinary, non-recurring expenses.
“Net Proceeds”
means, without duplication, the total net proceeds directly or indirectly received or to be received by the Borrower or REIT (i.e., received by the Borrower or REIT or, to the extent of Borrower’s or REIT’s ownership therein, by an Entity owned by Borrower or REIT) from or with respect to an Equity Issuance calculated as the sum of the aggregate amount of all cash and the Fair Market Value of all other property (other than securities of the Borrower or REIT being converted or exchanged in connection with such Equity Issuance) received by the Borrower or REIT in respect of such Equity Issuance
less
investment banking fees, legal fees, accountants’ fees, underwriting discounts and commissions and other customary fees and expenses actually incurred by the Borrower or REIT in connection with such Equity Issuance.
“Non-Defaulting Lenders”
means, collectively, those Lenders which are not Defaulting Lenders.
“Note”
means a promissory note in the form attached hereto as
Exhibit D
payable to a Lender evidencing certain of the obligations of the Borrower to such Lender and executed by Borrower, as the same may be amended, supplemented, modified or restated from time to time; “
Notes
” means, collectively, all of such Notes outstanding at any given time.
“Obligations
” means all liabilities, obligations, covenants and duties of any Credit Party to the Agent and/or any Lender arising under or otherwise with respect to any Loan Document,
including, without limitation, the aggregate principal balance of, and all accrued and unpaid interest on, all Loans, and all Reimbursement Obligations and all other Letter of Credit Liabilities, and all Hedging Obligations (other than Excluded Swap Obligations), in all cases whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Credit Party or any Affiliate thereof of any proceeding under any bankruptcy or other insolvency proceeding naming such person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceedings.
“OFAC”
means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Organizational Documents”
means all certificates, instruments, agreements, other documents and any amendments thereto in effect on the Effective Date pursuant to which any Person is organized, operates or is governed, including (a) with respect to a corporation, its articles of incorporation and bylaws, (b) with respect to a limited partnership, its limited partnership certificate and partnership agreement, (c) with respect to a general partnership or joint venture, its partnership or joint venture agreement, (d) with respect to a limited liability company, its articles or certificate of formation or organization and operating or limited liability company agreement, in each case all
amendments, supplements and modifications thereto, and (e) any other document that affects the control of, or the ability to oversee the management and day-to-day operations of, and the amounts and timing of payments of dividends, distributions and other amounts (including, without limitation, returns on and of invested capital) to the holders of Equity Interests in, such Person.
“Other Connection Taxes”
means, with respect to any Lender or the Agent, Taxes imposed as a result of a present or former connection between such Person and the jurisdiction imposing such Tax (other than connections arising from such Person having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes”
means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.
“Parent”
has the meaning set forth in the introductory paragraph of this Agreement.
“Partial Release Date”
has the meaning set forth in
Section 5.14(d)
.
“Participant”
has the meaning set forth in
Section 9.04(d)
.
“Participant Register”
has the meaning set forth in
Section 9.04(d)
.
“
PBGC
” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Permitted Encumbrances”
means:
(a)
Liens, encumbrances or security interests pursuant to the Loan Documents and other agreements in favor of the Agent and Lenders;
(b)
Liens imposed by law for taxes that are not yet due or are being contested in compliance with
Section 5.05
;
(c)
pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations;
(d)
deposits to secure the performance of bids, trade contracts, purchase, construction or sales contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;
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(e)
|
the Title Instruments, Liens and other matters described in the Title Insurance Policy;
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(f)
uniform commercial code protective filings with respect to personal property leased to REIT, the Borrower or any of their respective Subsidiaries; and
(g)
landlords’ liens for rent not yet due and payable.
“Permitted Investments”
means:
(a)
direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof;
(b)
investments in commercial paper maturing within 270 days from the date of acquisition thereof and having an investment grade credit rating on the date of acquisition;
(c)
investments in certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000.00;
(d)
fully collateralized repurchase agreements with a term of not more than 90 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above; and
(e)
investments in Subsidiaries and Unconsolidated Affiliates made in accordance with this Agreement.
(f)
(i) investments in existing retail properties; (ii) joint ventures for the purpose of acquiring interests in Real Property and developing and improving Real Property; (iii) originating or acquiring real estate-related loans and debt, and derivative instruments related to real estate; and (iv) equity investments in real estate investment trusts and other real estate companies.
“Permitted Liens”
has the meaning set forth in
Section 6.01
.
“Person”
means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership (general or limited), Governmental Authority or other entity.
“Plan”
means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Pledge Agreements”
means, collectively, the Borrower Pledge Agreement, and the REIT Pledge Agreement.
“Pool Debt Service Coverage Ratio”
means, at any date of determination, the ratio of (a) the Adjusted Pool Net Operating Income for the Calculation Period ending on the most recent Determination Date, to (b) the Implied Debt Service for a period of two (2) consecution Calendar Quarters based on a Principal Testing Amount equal to the Principal Obligation on the most recent Determination Date.
“Pool Leasing Ratio”
means, at any time of determination, the ratio, expressed as a percentage, of (a) the weighted average of the Mortgaged Properties’ leased square feet (tenants in occupancy and current on rent payments, or a new tenant under a signed lease to take occupancy within 30 days), to (b) the Mortgaged Properties’ aggregate rentable square feet.
“
Pool Net Operating Income
” means, for any period, the sum of the Net Operating Income of each Mortgaged Property for such period, treating (a) Mortgaged Properties which are acquired by a Borrower during such period as owned by such Borrower for the entire period, and (b) Mortgaged Properties which are released during such period as having been released as of immediately prior to the beginning of such period.
“Prime Rate”
means the rate of interest per annum publicly announced from time to time by KeyBank National Association as its prime rate in effect at its principal office in Cleveland, Ohio; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective. The Prime Rate is a reference rate used by the Lender acting as the Agent in determining interest rates on certain loans and is not intended to be the lowest rate of interest charged by the Lender acting as the Agent or any other Lender on any extension of credit to any debtor.
“Principal Obligation”
means, at any time of determination, the sum of: (a) the aggregate outstanding principal amount of the Loans; plus (b) the Letter of Credit Liabilities.
“Principal Testing Amount”
means, at any time, the principal amount of Indebtedness for which Implied Debt Service is being calculated at such time.
“Proposed Mortgaged Property”
shall have the meaning set forth in
Section 5.12(a)(iii)
.
“Real Property”
means, collectively, all interest in any land and improvements located thereon (including direct financing leases of land and improvements owned by a Credit Party or a Subsidiary of Borrower), together with all equipment, furniture, materials, supplies and personal property now or hereafter located at or used in connection with the land and all appurtenances, additions, improvements, renewals, substitutions and replacements thereof now or hereafter acquired by a Credit Party or a Subsidiary of Borrower.
“Real Property Tenant”
means any Person that is a tenant at a Real Property, in each case, as disclosed in writing to Agent.
“Real Property Value”
means, at any time of determination, without duplication (a) the then Borrowing Base Pool Value, plus (b) the Capitalization Value for all other Real Property owned for more than two (2) Calendar Quarters, plus (c) the GAAP book value of Real Property acquired during the two (2) most recent Calendar Quarters, plus (d) the GAAP book value of Real Property under construction until the Real Property is substantially complete which in no case shall go beyond
eighteen (18) months from commencement, plus (e) the GAAP book value of unimproved land, mortgages and notes from unrelated parties. The Equity Percentage of Unconsolidated Affiliates shall be included in calculations of Capitalization Value consistent with the above treatment for wholly owned assets. For purposes of determining Capitalization Value, Net Operating Income attributable to assets described in any of the immediately preceding clauses (c) through (e) shall be excluded from the determination of Adjusted Net Operating Income.
“Register”
has the meaning set forth in
Section 9
.04.
“Reimbursement Obligation”
means the absolute, unconditional and irrevocable obligation of the Borrowers to reimburse the Agent for any drawing honored by the Agent under a Letter of Credit.
“REIT”
means Strategic Realty Trust, Inc., a Maryland corporation.
“REIT Collateral”
means the “Collateral” as defined in the REIT Pledge Agreement.
“REIT Entity”
means, as of the date of determination (a) any Subsidiary of REIT that directly or indirectly owns a Mortgaged Property or an interest in a Mortgaged Property, (b) the Borrower, (c) any Person that owns a Mortgaged Property in which REIT owns or holds any Equity Interests, whether directly or indirectly, and (d) any Subsidiary of any Entity, Subsidiary or Person set forth in subsections (a), (b) and (c), inclusive, of this definition; and which (in the case of (a), (b), (c) or (d) hereof), directly or indirectly owns (x) any Mortgaged Property or (y)
any Equity Interests in any Entity, Subsidiary or other Person owning a Mortgaged Property. Collectively, the term
“REIT Entities”
refers to all of the foregoing.
“REIT Pledge Agreement”
means the first priority Pledge and Security Agreement (Strategic Retail Trust, Inc.) of dated herewith by and between REIT and Agent, as may be amended from time to time, including in connection with this Agreement.
“Related Parties”
means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.
“Release”
means any release, spill, emission, leaking, pumping, pouring, dumping, emptying, injection, deposit, disposal, discharge, dispersal, leaching or migration on or into the indoor or outdoor environment or into or out of any property in violation of applicable Environmental Laws.
“Release Request”
has the meaning set forth in
Section 5.14(d)
.
“Release Tract”
has the meaning set forth in
Section 5.14
.
“Remaining Projects”
has the meaning set forth in
Section 5.14(e
).
“Remedial Action”
means all actions, including without limitation any capital expenditures, required or necessary to (i) clean up, remove, treat or in any other way address any Hazardous Material pursuant to applicable Environmental Laws; (ii) prevent the Release or threat of Release, or minimize the further Release, of any Hazardous Material so it does not migrate or endanger public
health or the environment; (iii) perform pre-remedial studies and investigations or post-remedial monitoring and care; or (iv) bring facilities on any property owned or leased by the Borrower or any of its Subsidiaries into compliance with all Environmental Laws.
“Rents”
means all rents, royalties, issues, profits, revenue, income, accounts, proceeds and other benefits of a Real Property, whether now due, past due or to become due, including all prepaid rents and security deposits.
“Repair Work”
means the work necessary to restore, repair, rebuild or replace a Mortgaged Property that has been impacted by a casualty or condemnation pursuant to
Section 5.06
.
“Required Lenders”
means, as of any day of determination, Lenders (one of which must be the Agent, unless the Agent is a Defaulting Lender at such time) having at least 66-2/3% of the aggregate amount of the Commitments, or, if the Commitments have been terminated or reduced to zero, Lenders holding at least 66-2/3% of the Revolving Credit Exposure of all Lenders;
provided
that in determining such percentage at any given time, the Commitments and Revolving Credit Exposure of all then Defaulting Lenders will be disregarded and excluded.
“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other property), direct or indirect, on account of or with respect to any Equity Interest in REIT, Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, exchange, conversion, cancellation or termination of any such Equity Interests, or of any option, warrant or other right to acquire any Equity Interests in REIT, Borrower or any Subsidiary.
“Revolving Credit Exposure”
means, with respect to any Lender at any time, the sum of (a) the outstanding principal amount of such Lender’s Loans, and (b) such Lender’s Applicable Percentage of the Letter of Credit Liabilities.
“S&P”
means Standard & Poor’s Financial Services LLC, a subsidiary of the McGraw & Hill Companies, Inc. and any successor thereto.
“Sanction(s)”
means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government (including those administered by OFAC and the U.S. Department of State), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority.
“Sanctioned Country”
means at any time, a country or territory which is itself the subject or target of any Sanctions (including, without limitation, as of the Closing Date, Cuba, Iran, North Korea, Sudan, Syria, and the Crimea region of Ukraine).
“Sanctioned Person”
means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described in clauses (a) and (b).
“SEC”
means the United States Securities and Exchange Commission, or any successor Governmental Authority.
“SNDA Agreement”
has the meaning set forth in
Section 6
.11(b).
“SRT Advisor”
means SRT Advisor, LLC, a Delaware limited liability company.
“SRT Manager”
means SRT Secured Holdings Manager, LLC, a Delaware limited liability company, which is an Affiliate of SRT Advisor.
“Stated Amount”
means the amount available to be drawn by a beneficiary under a Letter of Credit from time to time, as such amount may be increased or reduced from time to time in accordance with the terms of such Letter of Credit.
“Statutory Reserve Rate”
means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Governmental Authority to which the Agent is subject, with respect to the Adjusted LIBO Rate, for Eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute Eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Subordination of Management Fees”
has the meaning set forth in
Section 6.10
.
“Sub-Manager”
means a third party property management company engaged by the Management Company with respect to a Real Property that (a) does not have any direct contractual relationship with a Credit Party or an Entity, and (b) whose identity has been disclosed in writing to the Agent.
“Subsidiary”
means, with respect to any Person (the “
parent
”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent.
“Tangible Net Worth”
means, at any time of determination, on a consolidated basis determined in accordance with GAAP, the net worth of REIT and Borrower minus all intangible assets of REIT and Borrower, with real estate assets based on carrying value before depreciation.
“Taxes”
means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Termination Date”
means the earliest of (a) the date on which the Commitments are terminated or reduced to zero under
Section 2.06(b)
, (b) the Maturity Date, and (c) the date the Commitments are terminated pursuant to
Article VII
.
“Third Party Information”
has the meaning set forth in
Section 3.12
.
“Title Instruments”
means true and correct copies of all instruments of record in the Office of the County Clerk, the Real Property Records or of any other Governmental Authority affecting title to all or any part of the Mortgaged Properties, including but not limited to those (if any) which impose restrictive covenants, easements, rights-of-way or other encumbrances on all or any part of the Mortgaged Properties.
“Title Insurance Policy”
means, collectively, the policies of title insurance in the aggregate face amounts equal to the aggregate Commitment, issued in favor of the Agent by a title insurance company satisfactory to the Agent and insuring that title to the Mortgaged Properties is vested in Borrower, free and clear of any Lien, objection, exception or requirement, and that each Deed of Trust creates a valid first and prior lien on all the Mortgaged Properties, subject only to the Permitted Encumbrances and such other exceptions as may be approved in writing by the Agent. The Title Insurance Policy shall include such provisions or endorsements as necessary to provide coverage on a revolving credit basis (excluding creditor’s rights endorsements).
“Total Asset Value”
means, at any time of determination, the sum of (without duplication) the following, at such time, of the Borrower, REIT, and Subsidiaries on a consolidated basis determined in accordance with GAAP applied on a consistent basis: (a) the Real Property Value, plus (b) the amount of any cash and cash equivalents.
“Total Debt”
means, as to any Person at any time of determination, all liabilities of such Person and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, whether secured or unsecured, contingent or absolute, and, without duplication, all Indebtedness of such Person and its Subsidiaries (determined on a consolidated basis), whether or not so classified, including such Person’s and its Subsidiaries’ Equity Percentage of the Total Debt of its Unconsolidated Affiliates;
provided
,
however
,
the calculation of Total Debt shall not include any fair value adjustments to the carrying value of liabilities.
“Total Leverage Ratio”
means, at any time of determination, the ratio (expressed as a percentage) of (a) (without duplication) the sum of the Borrower’s and REIT’s Total Debt, to (b) Total Asset Value.
“Transactions”
means the execution, delivery and performance by the Credit Parties of the Loan Documents, the borrowing of Loans, the issuances of Letters of Credit, and the use of the proceeds thereof.
“Type,”
when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
“Unconsolidated Affiliate”
means, without duplication, in respect of any Person, any other Person (other than a Person whose stock is traded on a national trading exchange) in whom such Person holds a voting equity or ownership interest and whose financial results would not be consolidated under GAAP with the financial results of such Person on the consolidated financial statements of such Person.
“Unused Fee”
has the meaning set forth in
Section 2.09(a)
.
“Unused Amount”
has the meaning set forth in
Section 2.09(a)
.
“Withdrawal Liability”
means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Write-Down and Conversion Powers”
means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
SECTION 1.02
Classification of Loans and Borrowings
. For purposes of this Agreement, Loans may be classified and referred to by Type (e.g., a “Eurodollar Loan”). Borrowings also may be classified and referred to by Type (e.g., a “Eurodollar Borrowing”).
SECTION 1.03
Terms Generally
. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes,” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof,” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. Unless otherwise specifically stated otherwise, all references to the time of day are to the time of day in Boston, Massachusetts.
SECTION 1.04
Accounting Terms; GAAP
. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP,
as in effect from time to time;
provided
that, if the Lead Borrower notifies the Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Agent notifies the Lead Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
SECTION 1.05
Designation of Lead Borrower as Agent for Borrower
.
(a)
Each Borrower hereby irrevocably designates and appoints the Lead Borrower as that Borrower’s agent to obtain (i) Loans, the proceeds of which shall be available to each Borrower as set forth herein, and (ii) the issuance of Letters of Credit for the account of any one or more of the Borrowers. As the disclosed principal for its agent, each Borrower shall be obligated to the Agent and the Lenders on account the Loans as if made directly by the Lenders to that Borrower and for Reimbursement Obligations as if that Borrower had requested each Letter of Credit and executed each Letter of Credit Document, notwithstanding the manner by which such Loans and Letters of Credit are recorded on the books and records of the Lead Borrower and/or of any Borrower (including, without limitation, on account of any such treatment of said Loan or Reimbursement Obligation as an equity investment in a Borrower by Lead Borrower).
(b)
Each Borrower recognizes that credit available to it under the Loans and Letters of Credit are in excess of and on better terms than it otherwise could obtain on and for its own account and that one of the reasons therefor is its joining in the credit facility contemplated herein with all other Borrowers. Consequently, each Borrower, jointly and severally, hereby assumes and agrees fully, faithfully, and punctually to discharge all Indebtedness and other Obligations of all of the Borrowers.
(c)
The Lead Borrower shall act as a conduit for each Borrower (including itself, as a
“
Borrower”) on whose behalf the Lead Borrower has requested a Loan or a Letter of Credit.
(d)
The proceeds of each Loan which is requested by the Lead Borrower shall be advanced and each Letter of Credit requested shall be issued as and when otherwise provided herein or as otherwise indicated by the Lead Borrower. The Lead Borrower shall cause the transfer of the proceeds of a Loan to the Borrower(s) on whose behalf such Loan was obtained, and, in the case of Letters of Credit, the delivery thereof to the applicable beneficiary. Neither the Agent nor any Lender shall have any obligation to see to the application of such proceeds or the delivery of such Letters of Credit.
(e)
Each Borrower hereby irrevocably designates and appoints the Lead Borrower as that Borrower’s attorney-in-fact to act in the Borrower’s name and stead and to do and perform all matters, to grant to the Agent for the benefit of the Lenders a security interest in the Collateral, transact all business, and make, execute and acknowledge all Loan Documents and other instruments relating to this Agreement including but not limited to, this Agreement, the Note, and each Deed of
Trust. Each Borrower hereby acknowledges and agrees that the power of attorney created hereby is coupled with an interest.
(f)
Nothing contained herein shall be deemed or otherwise construed to modify, waive, or otherwise limit the obligations of Guarantor under its Guaranty to the Agent and the Lenders.
ARTICLE II.
THE CREDIT FACILITY
SECTION 2.01
Commitments
. Subject to the terms and conditions set forth herein, each Lender severally agrees to make Loans to the Borrower in amounts requested by the Lead Borrower from time to time during the Availability Period in an aggregate principal amount that will not result in (a) such Lender’s Revolving Credit Exposure exceeding such Lender’s Commitment as of such date, or (b) the Principal Obligation exceeding the then Borrowing Base Availability. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Loans during the Availability Period.
SECTION 2.02
Loans and Borrowings
.
(a)
Each Loan shall be made as part of a Borrowing consisting of Loans made by the Lenders ratably in accordance with their respective Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder;
provided
that the Commitments of the Lenders are several, and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(b)
Subject to
Section 2.11
, each Borrowing shall be comprised solely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance with this Agreement. Each Lender, at its option, may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided
that any exercise of such option shall not affect the obligation of the Borrower to repay such Eurodollar Loan in accordance with the terms of this Agreement.
(c)
At the commencement of each Interest Period for any Eurodollar Borrowing, such Eurodollar Borrowing shall be in an aggregate amount that is an integral multiple of
$100,000.00 and not less than $1,000,000.00. At the time that each ABR Borrowing is made, such ABR Borrowing shall be in an aggregate amount that is an integral multiple of $100,000.00 and not less than $1,000,000.00. Borrowings of more than one Type may be outstanding at the same time.
(d)
Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.
SECTION 2.03
Requests for Borrowings and Approval of Proposed Properties
. To request a Borrowing, Lead Borrower (on behalf of the Borrower) shall notify the Agent of such request by telephone (a) in the case of a Eurodollar Borrowing, not later than 12:00 noon, Boston, Massachusetts time, three (3) Business Days before the date of the proposed Eurodollar Borrowing
or (b) in the case of an ABR Borrowing, not later than 12:00 noon, Boston, Massachusetts time, one (1) Business Day before the date of the proposed ABR Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Agent of a written Borrowing Request in the form of
Exhibit E
and a Borrowing Base Certificate,
each as attached hereto and hereby made a part hereof and signed by Lead Borrower, on behalf of the Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with
Section 2.02
:
(a)
the aggregate amount of the requested Borrowing;
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(b)
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the date of such Borrowing, which shall be a Business Day;
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(c)
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whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
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(d)
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in the case of a Eurodollar Borrowing, the Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and
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(e)
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the location and number of the Borrower’s account to which funds are to be disbursed.
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If no election as to the Type of Borrowing is specified in the Borrowing Request, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration, in the case of a Eurodollar Borrowing. Promptly following receipt of a Borrowing Request in accordance with this
Section 2
.03, the Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
Notwithstanding anything herein to the contrary, the Borrower must have complied with
Section 5.12
prior to submitting such Borrowing Request if the proceeds of such Borrowing are being used to fund the direct or indirect purchase of a Mortgaged Property.
SECTION 2.04
Funding of Borrowings
.
(a)
Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, Boston, Massachusetts time, to the account of the Agent most recently designated by it for such purpose by notice to the Lenders. The Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower maintained with the Agent in Boston, Massachusetts, or wire transferred to such other account or in such manner as may be designated by the Lead Borrower in the applicable Borrowing Request.
(b)
Unless the Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Agent such Lender’s share of such Borrowing, the Agent may assume that such Lender has made such share available on such date in accordance with
Section 2.04(a)
and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Agent, then the Agent shall notify the Borrower and such Lender of the funding by the Agent, and the applicable
Lender and the Borrower jointly and severally agree to pay to the Agent within three (3) Business Days after demand such corresponding amount (with demand to be first made on such Lender) with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to the corresponding Loan made to the Borrower. If the Borrower and such Lender pay such interest to the Agent for an overlapping period, the Agent shall credit the future interest payments of Borrower by an amount (as calculated by Agent in its reasonable discretion) equal to the interest paid by Borrower for such overlapping period. If such Lender pays such amount to the Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Defaulting Lender.
SECTION 2.05
Interest Elections
.
(a)
Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this
Section 2.05.
The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.
(b)
To make an election pursuant to this
Section 2.05
, the Lead Borrower shall notify the Agent of such election by telephone by the time that a Borrowing Request would be required under
Section 2.03
if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by delivery, by hand delivery, telecopy, or email, to the Agent of a written Interest Election Request in the form of a Borrowing Request (with proper election made for an interest rate election only) and signed by the Lead Borrower.
(c)
Each telephonic and written Interest Election Request shall specify the following information in compliance with
Section 2.02
:
(i)
the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);
(ii)
the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii)
whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and
(iv)
if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.
(v)
If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
(d)
Promptly following receipt of an Interest Election Request, the Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.
(e)
If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Eurodollar Borrowing is repaid as provided herein, at the end of such Interest Period such Eurodollar Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Agent, at the request of the Required Lenders, so notifies the Lead Borrower, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.
(f)
After giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same Type, there shall not be more than six (6) Interest Periods in effect with respect to the Loans.
SECTION 2.06
Termination, Reduction and Increase of Commitments
.
(a)
Unless previously terminated by the Agent or Borrower in accordance with this Agreement, the Commitments will terminate on the last day of the Termination Date.
(b)
The Borrower may from time to time reduce the unused amount of the Commitments (which shall be deemed to include the aggregate amount of Letter of Credit Liabilities, without duplication),
provided
that each reduction in the Commitments shall be in an amount that is at least $5,000,000.00 and integrals thereof. The Borrower shall not reduce the Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with
Section 2.08
, the Principal Obligation would exceed the Borrowing Base Availability. Upon any reduction in the Commitments, the Borrower’s option to increase the Commitments provided in
Section 2.06(d)
shall terminate.
(d)
The Lead Borrower shall notify the Agent of any election to reduce the Commitments under
Section 2.06(b)
at least three (3) Business Days prior to the effective date of such reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Lead Borrower pursuant to this
Section 2.06(c)
shall be irrevocable. Any reduction of the Commitments shall be permanent. Each reduction in the Commitments shall be made ratably among the Lenders in accordance with their respective Commitments.
(e)
So long as the Borrower is not then in Default, and the Borrower has not previously decreased the Commitments under
Section 2.06(b)
, the Borrower may, at any time request that the Commitments be increased, so long as (a) each increase is in a minimum amount of $5,000,000.00 and an integral multiple of $5,000,000.00 (or such smaller amounts as the Agent may approve), (b) the aggregate Commitments do not exceed $100,000,000.00 (the “
Maximum
Commitment
”), and (c) the aggregate amount of all such increases do not exceed $40,000,000.00. If the Borrower requests that the total Commitments be increased pursuant to this
Section 2.06(c)
, the Agent shall use its best efforts to obtain increased or additional commitments up to the Maximum Commitment, and to do so the Agent may obtain additional lenders of its choice (and approved by Borrower, such approval not to be unreasonably withheld or delayed,
provided
that Borrower shall have the right, in its sole discretion, to reject any proposed lenders that are Competitors or tenants of any Real Property), and without the necessity of approval from any of the Lenders. The Borrower and each other Credit Party shall execute an amendment to this Agreement, additional Notes and other documents as the Agent may reasonably require to evidence the increase of the Commitments, the addition of new projects as Mortgaged Properties, if applicable, and the admission of additional Persons as Lenders, if necessary. No increase in the Commitments shall increase the Letter of Credit Sublimit.
SECTION 2.07
Repayment of Loans; Evidence of Debt
.
(a)
Borrower hereby unconditionally promises to pay to the Agent for the account of each Lender the then unpaid principal amount of, and all accrued but unpaid interest on, the Loans on the Maturity Date.
(b)
Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(c)
The Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Type thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Agent hereunder for the account of the Lenders and each Lender’s share thereof. Borrower shall be entitled to rely on the accounts prepared by Agent (in lieu of any accounts maintained by each Lender), and Agent agrees to provide Borrower with statements of such accounts following Borrower’s written request.
(d)
The entries made in the accounts maintained pursuant to Section 2.07(b) or (c) shall be prima facie evidence of the existence and amounts of the obligations recorded therein absent manifest error;
provided
that the failure of any Lender or the Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.
SECTION 2.08
Prepayment of Loans
.
(a)
The Borrower shall have the right at any time and from time to time to prepay, without penalty, any Borrowing in whole or in part, subject to prior notice in accordance with
Section 2.08(b)
, and subject to
Section 2.13
, if applicable.
(b)
The Lead Borrower shall notify the Agent by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., Boston, Massachusetts time, three (3) Business Days before the date of prepayment, or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., Boston, Massachusetts time, one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid. Promptly following receipt of any such notice relating to a Borrowing, the Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an amount that is an integral multiple of $100,000 and not less than $500,000.00. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.10
.
(c)
In connection with the prepayment of any Loan, Borrower will pay all accrued and unpaid interest on the principal amount prepaid, and, if such prepayment is prior to the expiration of the Interest Period applicable thereto, the Borrower shall also pay all any applicable expenses pursuant to
Section 2.13
.
(d)
Amounts to be applied to the prepayment of Loans shall be applied, first, to reduce outstanding ABR Loans and next, to the extent of any remaining balance, to reduce outstanding Eurodollar Loans. Each such prepayment shall be applied to prepay ratably the Loans of each Lender.
(e)
If at any time the Principal Obligation exceeds the then Borrowing Base Availability, then, within one (1) Business Day after such occurrence (i) (except to the extent that any such excess is addressed in the following clause (ii)) the Borrower shall pay such excess to the Agent, for the benefit of the Lenders, and/or (ii) if the amount of such excess exceeds the Principal Obligation attributable to Loans and Reimbursement Obligations plus any other then-due Obligations of the Borrower other than the Stated Amounts of any Letters of Credit, the Borrower shall cash collateralize the Stated Amount of Letters of Credit in the amount of such excess, such that, following any such payment and cash collateralization, no such excess will exist. Any cash collateral so provided shall be treated as if provided under
Section 2.20(a)
.
SECTION 2.09
Fees
.
(b)
The Borrower agrees to pay to the Agent for the account of each Lender, according to its Applicable Percentage, an unused fee (the “
Unused Fee
”) based on the amount by which the total Commitments exceed the Principal Obligation (the
“
Unused
Amount
”), for each day from the Effective Date to, but not including, the Termination Date. The Unused Fee shall accrue at the rate of (i) 0.30% per annum for any day on which the Unused Amount is equal to or greater than fifty percent (50%) of the total Commitments on such day, and (ii) 0.20% per annum for any day on which the Unused Amount is less than fifty percent (50%) of the total Commitments on such day, in each instance calculated daily (based on the number of days
elapsed in a 360-day year). Accrued Unused Fees shall be payable in arrears on the first Interest Payment Date after the end of each Calendar Quarter and on the Termination Date.
(c)
The Borrower agrees to pay to the Agent, for its own account, fees payable in the amounts and at the times separately agreed upon in the fee letters executed between the Borrower, KeyBank, Lead Arranger and the Agent.
(d)
Borrower agrees to pay to the Agent for the pro rata account of each Lender a letter of credit fee at a rate per annum equal to the Applicable Margin for Eurodollar Loans for each day (while an Event of Default exists to be increased by 4% per annum, at the option of the Agent), times the daily average Stated Amount of each Letter of Credit for the period from and including the date of issuance of such Letter of Credit (x) through and including the date such Letter of Credit expires or is terminated or (y) to but excluding the date such Letter of Credit is drawn in full and is not subject to reinstatement, as the case may be. The fees provided for in the immediately preceding sentence shall be nonrefundable and payable in arrears on (i) each Interest Payment Date, (ii) the Termination Date, and (iii) thereafter from time to time on demand of the Agent. In addition, the Borrowers shall pay to the Agent for its own account and not the account of any Lender, an issuance fee (with such issuance fee being paid to any Lender other than Agent that issues a Letter of Credit hereunder) in respect of each Letter of Credit equal to the greater of (i) $1,000.00 or (ii) the product of (x) one-eighth of one percent (0.125%) and (y) initial Stated Amount of such Letter of Credit. The fees provided for in the immediately preceding sentence shall be nonrefundable and payable upon issuance (or in the case of an extension of the expiration date, on the previous expiration date). Borrower shall pay directly to the Agent from time to time on demand all commissions, charges, costs and expenses in the amounts customarily charged by the Agent from time to time in like circumstances with respect to the issuance of each Letter of Credit, drawings, amendments and other transactions relating thereto.
(e)
All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Agent for distribution, in the case of Unused Fees and letter of credit fees to the Lenders. Fees paid shall not be refundable under any circumstances.
SECTION 2.10
Interest
.
(a)
The Loans comprising each ABR Borrowing shall bear interest for each day outstanding at the Alternate Base Rate for such day plus the Applicable Margin.
(b)
The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin.
(d)
Notwithstanding the foregoing, (i) if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (A) in the case of principal or interest, 4% plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this
Section 2.10
, or (B) in the case of any other amount, 4% plus the rate
applicable to ABR Loans as provided in
Section 2.10(a)
; and (ii) after the occurrence and during the continuance of any Event of Default, at the option of the Agent, or if the Agent is directed in writing by the Required Lenders to do so, the Loans and all other amounts payable by the Borrower hereunder shall bear interest at a rate per annum equal to 4% plus the rate applicable to ABR Loans from time to time as provided in
Section
2
.10(a).
(e)
Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and upon termination of the Commitments;
provided
that (i) interest accrued pursuant to
Section 2.10(c)
shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.
(f)
All interest hereunder shall be computed on the basis of a year of 360 days, and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Agent, and such determination shall be conclusive absent manifest error. In the case of any Borrowing, interest shall begin to accrue when Lenders advance the Borrowing, whether such advance is made directly to Borrower or into escrow with the title company that will be issuing a Title Insurance Policy for the Mortgaged Property.
SECTION 2.11
Alternate Rate of Interest
. If prior to the commencement of any Interest Period for a Eurodollar Borrowing:
(a)
the Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or
(b)
the Agent determines or is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period; then the Agent shall give notice thereof to the Lead Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Agent notifies the Lead Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective, and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing;
provided
that if the circumstances giving rise to such notice affect only one Type of Borrowings, then the other Type of Borrowings shall be permitted. In addition, any pending Borrowing Request for a Eurodollar Loan may be revoked by the Lead Borrower or it shall be deemed a request for an ABR Loan, and each outstanding Eurodollar Loan will automatically, on the last day of the then current Interest Period applicable thereto, become an ABR Loan; or
(c)
at any other time after the date hereof, any Change in Law shall make it unlawful, or any Governmental Authority having jurisdiction over a Lender or its lending office shall assert that it is unlawful, for any Lender to make or maintain Eurodollar Loans, such Lender shall forthwith give notice of such circumstances to the Agent and the Borrower and thereupon (i) the commitment of the Lenders to make Eurodollar Loans shall forthwith be suspended and (ii) any Eurodollar Loans then outstanding shall be converted automatically to ABR Loans on the last day of each Interest Period applicable to such Eurodollar Loans or within such earlier period as may be required by Legal Requirements.
SECTION 2.12
Increased Costs
.
(a)
If any Change in Law shall:
(i)
impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Adjusted LIBO Rate) or Agent;
(ii)
subject any Lender or the Agent to any Tax, levy, impost, duty, charge, fee, deduction or withholding of any nature with respect to this Agreement, the other Loan Documents, such Lender’s Commitment or the Loans or any Letter of Credit or participation therein (other than Taxes based upon or measured by the gross receipts, income or profits of such Lender or the Agent or its franchise tax);
(iii)
materially change the basis of taxation (except for changes in taxes on gross receipts, income or profits or its franchise tax) of payments to any Lender of the principal of or the interest on any Loans or any other amounts payable to any Lender under this Agreement (including with respect to any Letter of Credit or participation therein) or the other Loan Documents, or payable to the Agent with respect to Letters of Credit;
(iv)
impose on any Lender or the London interbank market any other condition cost or expense (other than one relating to Excluded Taxes) affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or participation therein; and the result of any of the foregoing shall be to increase the cost to such Lender of making converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender or the Agent of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender of the Agent hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the Agent the Borrower will pay to such Lender and/or the Agent, as applicable, within fifteen (15) days of any written request by such Lender or the Agent, such additional amount or amounts as will compensate such Lender or the Agent for such additional costs incurred or reduction suffered, which amounts shall be determined by such Lender and/or
the Agent, as applicable, in its sole but reasonable judgment, after good faith and reasonable computation.
(b)
If any Lender or the Agent determines that any Change in Law affecting such Lender or the Agent or any lending office of such Lender or the Agent or such Lender’s or the Agent’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s or Agent’s capital or on the capital of such Lender’s or the Agent’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the Agent, to a level below that which such Lender or the Agent or such Lender’s or the Agent’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Agent’s policies and the policies of such Lender’s or the Agent’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender and/or the Agent, as the case may be, within fifteen (15) days of any written request by such Lender, such additional amount or amounts as will compensate such Lender and/or the Agent or such Lender’s or the Agent’s holding company for any such reduction suffered, which amounts shall be determined by such Lender and/or the Agent in its sole but reasonable judgment, after good faith and reasonable computation.
(c)
A certificate of a Lender and/or the Agent setting forth the amount or amounts necessary to compensate such Lender, the Agent or their respective holding companies, as the case may be, as specified in
Section 2.12(a) or (b)
shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender and/or the Agent, the amount shown as due on any such certificate within fifteen (15) days after receipt thereof.
(d)
Failure or delay on the part of any Lender or the Agent to demand compensation pursuant to this
Section 2.12
shall not constitute a waiver of such Lender’s or the Agent’s right to demand such compensation;
provided
that the Borrower shall not be required to compensate a Lender or the Agent pursuant to this
Section 2.12
for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or the Agent notifies the Lead Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the Agent’s intention to claim compensation therefor;
provided further
that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
SECTION 2.13
Break Funding Payments
. In the event of (a) the payment of any principal of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under
Section 2.08(b))
, or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Lead Borrower pursuant to
Section 2.16
, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be
deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the Eurodollar market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.14
Taxes
.
(a)
Any and all payments by or on account of any obligation of the Borrower hereunder shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided
that if the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this
Section 2.14
) the Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.
(b)
In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(c)
The Borrower shall indemnify the Agent and each Lender, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Agent or such Lender, as the case may be, on or with respect to any payment by or on account of any obligation of the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this
Section 2.14
) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or by the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d)
As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Agent.
(e)
Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Lead Borrower (with a copy to the Agent), at the time or times prescribed by applicable law, such properly completed and executed documentation prescribed by applicable law or reasonably requested by the Lead Borrower as will permit such payments to be made without withholding or at a reduced rate.
SECTION 2.15
Payments Generally; Pro Rata Treatment; Sharing of Set-offs
.
(a)
The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or of amounts payable under
Section 2
.12,
2
.13,
2
.14,
9
.03, or otherwise) prior to 1:00 p.m., Boston, Massachusetts time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Agent at its main offices in Cleveland, Ohio, except that payments pursuant to
Sections 2.12, 2.13, 2.14 and 9.03
shall be made directly to the Persons entitled thereto. If the Agent receives a payment for the account of a Lender prior to 1:00 p.m., Boston, Massachusetts time, such payment must be delivered to the Lender on the same day and if it is not so delivered due to the fault of the Agent, the Agent shall pay to the Lender entitled to the payment interest thereon for each day after payment should have been received by the Lender pursuant hereto until the Lender receives payment, at the Federal Funds Effective Rate. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. Further, if there is no corresponding day for a payment in the given calendar month (i.e., there is no February 30
th
), the payment shall be due on the last Business Day of such calendar month. All payments hereunder shall be made in Dollars.
(b)
If at any time insufficient funds are received by and available to the Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(c)
If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (i) notify the Agent of such fact, and (ii) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:
(i)
if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
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(ii)
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the provisions of this paragraph shall not be construed to apply to
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(x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in Letter of Credit Liabilities to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this paragraph shall apply).
(d)
Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Credit Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of each Credit Party in the amount of such participation.
(e)
Unless the Agent shall have received notice from the Lead Borrower prior to the date on which any payment is due to the Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Agent, at the Federal Funds Effective Rate.
(f)
If any Lender shall fail to make any payment required to be made by it pursuant to
2.04(b)
or
2.15(d)
, then the Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.16
Mitigation Obligations; Replacement of Lenders
.
(a)
Each Lender will notify the Lead Borrower of any event occurring after the date of this Agreement which will entitle such Person to compensation pursuant to
Sections 2.10
and
2.12
as promptly as practicable after it obtains knowledge thereof and determines to request such compensation,
provided
that such Person shall not be liable for the failure to provide such notice. If any Lender requests compensation under
Section 2.10
, or if the Borrower is required to pay any additional amount to any such Person or any Governmental Authority for the account of any Lender pursuant to
Section 2.12
, then such Lender shall use reasonable efforts to avoid or minimize the amounts payable, including, without limitation, the designation of a different lending office for funding or booking its Loans hereunder or the assignment of its rights
and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to
Section 2.10
or
2.12
, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable and documented costs and expenses incurred by any Lender in connection with any such designation or assignment.
(a)
If any Lender requests compensation under
Section 2
.12, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.14
, or if any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in
Section 9.04
), all its interests, rights (other than its existing rights to payments pursuant to
Section 2.12
or
Section 2.14
) and obligations under this Agreement and the Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment);
provided
that (i) the Borrower shall have paid to the Agent the assignment fee specified in
Section 9.04
, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in Letter of Credit Liabilities, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under
Section 2.13
) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts), (iii) such assignment will result in a reduction in such compensation or payments, and (iv) such assignment does not conflict with applicable law. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.17
Defaulting Lenders
.
(b)
Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable Legal Requirements:
(i)
Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders.
(ii)
Any payment of principal, interest, fees or other amounts received by the Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to
Article VII
or otherwise) or received by the Agent from a Defaulting Lender pursuant to
Section 9.08
shall be applied at such time or times as may be determined by the Agent as follows:
first
, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder (including with respect to Letters of Credit participations);
second
, if so determined by the Agent, to be held as cash collateral for the Fronting Exposure with respect to such Defaulting Lender;
third
, as the Lead
Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent;
fourth
, if so determined by the Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) cash collateralize the future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement;
fifth
, to the payment of any amounts owing to the Lenders or the Agent as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Agent against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement;
sixth
, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and
seventh
, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
provided
that if (x) such payment is a payment of the principal amount of any Loans or Letter of Credit participations in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the applicable conditions set forth in
Sections 4.01
and
4.02
were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter of Credit participation payments owed to, all Non- Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Letter of Credit participation payments owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letter of Credit Liabilities are held by the Lenders pro rata in accordance with the Commitments without giving effect to
Section 2.17(a)(v)
. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this
Section 2.17(a)(ii)
shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iii)
No Defaulting Lender shall be entitled to receive any fees hereunder for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender), other than Letter of Credit fees for any period during which that Lender is a Defaulting Lender to the extent allocable to its Applicable Percentage of the Stated Amount of Letters of Credit for which it has provided cash collateral pursuant to
Section 2.21
.
(iv)
With respect to any fee not required to be paid to any Defaulting Lender pursuant to clause (iii) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letter of Credit Liabilities that has been reallocated to such Non-Defaulting Lender pursuant to clause (v) below, (y) pay to Agent the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to
Agent’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
(v)
All or any part of such Defaulting Lender’s participation in Letter of Credit Liabilities shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that (x) the applicable conditions set forth in
Sections 4.01
and
4.02
are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(vi)
If the reallocation described in clause (v) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, cash collateralize the Agent’s Fronting Exposure in accordance with the procedures set forth in
Section 2
.21.
(b)
If the Borrowers and the Agent agree in writing in their sole discretion (with no consent required from the Borrowers if any Default or Event of Default exists) that a Lender is no longer a Defaulting Lender, the Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held pro rata by the Lenders in accordance with the Commitments (without giving effect to
Section 2.17(a)(v)
), whereupon such Lender will cease to be a Defaulting Lender;
provided
that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and
provided
,
further
, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(c)
So long as any Lender is a Defaulting Lender, the Agent shall not be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
SECTION 2.18
Existing Credit Agreement Loans
.
On the Effective Date, the Existing Credit Agreement Loans shall be deemed to be converted to Eurodollar Loans having an Interest Period of one (1) month commencing on the Effective Date. The Borrowers shall pay to the Agent any amounts which might be due and payable pursuant to
Section 2.13(b)
as a result of such deemed conversion. The Existing Credit Agreement Loans and all accrued and unpaid
interest thereon shall be due and payable at the same time as all other payments of principal and interest hereunder.
SECTION 2.19
Letters of Credit
.
(a)
Subject to the terms and conditions of this Agreement, the Agent, on behalf of the Lenders, agrees to issue for the account of any one or more of the Borrowers during the period from and including the Effective Date to, but excluding, the date 30 days prior to the Maturity Date one or more letters of credit (each a “
Letter of Credit
”);
provided
,
however
that after giving effect to the issuance of any Letter of Credit: (i) the Principal Obligation will not exceed the Borrowing Base Availability; (ii) the Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment; and (iii) the Letter of Credit Liabilities will not exceed the Letter of Credit Sublimit. The initial Stated Amount of each Letter of Credit shall be at least $100,000.00.
(b)
At the time of issuance, renewal or increase, the amount, form, terms and conditions of each Letter of Credit, and of any drafts or acceptances thereunder, shall be subject to the reasonable approval by the Agent and the Lead Borrower. Notwithstanding the foregoing, in no event may the expiration date of any Letter of Credit extend beyond the earlier of (i) the date one year from its date of issuance or (ii) the Maturity Date;
provided
,
however
, a Letter of Credit may contain a provision providing for the automatic extension of the expiration date in the absence of a notice of non-renewal from the Agent but in no event shall any such provision permit the extension of the expiration date of such Letter of Credit beyond the Maturity Date unless the Agent and all of the Lenders have approved such expiration date.
(c)
The Lead Borrower shall give the Agent written notice (or telephonic notice promptly confirmed in writing) at least 5 Business Days prior to the requested date of issuance of a Letter of Credit, such notice to describe in reasonable detail the proposed terms of such Letter of Credit and the nature of the transactions or obligations proposed to be supported by such Letter of Credit, and in any event shall set forth with respect to such Letter of Credit the proposed (i) Stated Amount, (ii) beneficiary, and (iii) expiration date. The Lead Borrower shall also execute and deliver such customary letter of credit application forms as requested from time to time by the Agent. Together with the notice to the Agent as specified immediately above, the Lead Borrower shall deliver to the Agent a completed, current Borrowing Base Certificate. Provided the Lead Borrower has given the notice prescribed by the first sentence of this subsection and subject to the other terms and conditions of this Agreement, including the satisfaction of any applicable conditions precedent set forth in
Article IV
, the Agent shall issue the requested Letter of Credit on the requested date of issuance for the benefit of the stipulated beneficiary. Upon the written request of the Lead Borrower, the Agent shall deliver to the Lead Borrower a copy of each issued Letter of Credit within a reasonable time after the date of issuance thereof. To the extent any term of a Letter of Credit Document is inconsistent with a term of any Loan Document, the term of such Loan Document shall control.
(d)
Upon receipt by the Agent from the beneficiary of a Letter of Credit of any demand for payment under such Letter of Credit, the Agent shall promptly notify the Lead Borrower of the amount to be paid by the Agent as a result of such demand and the date on which payment is to be made by the Agent to such beneficiary in respect of such demand;
provided
,
however
, the Agent’s failure to give, or delay in giving, such notice shall not discharge the Borrowers in any respect from the applicable Reimbursement Obligation. The Borrowers hereby unconditionally and irrevocably agree to pay and reimburse the Agent for the amount of each demand for payment under such Letter of Credit on or prior to the date on which payment is to be made by the Agent to the beneficiary thereunder, without presentment, demand, protest or other formalities of any kind (other than notice as provided in this subsection). Upon receipt by the Agent of any payment in respect of any Reimbursement Obligation, the Agent shall promptly pay to each Lender that has acquired a participation therein under the second sentence of
Section 2.19(j)
such Lender’s Applicable Percentage of such payment.
(f)
Upon its receipt of a notice referred to in the immediately preceding subsection (d), the Lead Borrower shall advise the Agent whether or not the Borrowers intend to borrow hereunder to finance its obligation to reimburse the Agent for the amount of the related demand for payment and, if they do, the Lead Borrower shall submit a timely request for such borrowing as provided in the applicable provisions of this Agreement. If the Lead Borrower fails to so advise the Agent, or if the Borrowers fail to reimburse the Agent for a demand for payment under a Letter of Credit by the date of such payment, then (i) if the applicable conditions contained in
Article IV
would permit the making of Loans, the Borrowers shall be deemed to have requested a borrowing of Loans in an amount equal to the unpaid Reimbursement Obligation and the Agent shall give each Lender prompt notice of the amount of the Loan to be made available to the Agent not later than 1:00 p.m. or (ii) if such conditions would not permit the making of Loans, the provisions of subsection (j) of this Section shall apply. The limitations of
Section 2.02(c)
shall not apply to any borrowing of Loans under this subsection.
(g)
Upon the issuance by the Agent of any Letter of Credit and until such Letter of Credit shall have expired or been terminated, the Commitment of each Lender shall be deemed to be utilized for all purposes of this Agreement in an amount equal to the product of (i) such Lender’s Applicable Percentage and (ii) the sum of (A) the Stated Amount of such Letter of Credit plus (B) any related Reimbursement Obligations then outstanding.
(a)
In examining documents presented in connection with drawings under Letters of Credit and making payments under Letters of Credit against such documents, the Agent shall only be required to use the same standard of care as it uses in connection with examining documents presented in connection with drawings under letters of credit in which it has not sold participations and making payments under such letters of credit. The Borrowers assume all risks of the acts and omissions of, or misuse of the Letters of Credit by, the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing, neither the Agent nor any of the Lenders shall be responsible for, and the Borrowers’ obligations in respect of the Letters of Credit shall not be affected in any manner by, (i) the form, validity, sufficiency, accuracy, genuineness or legal effects of any document submitted by any party in connection with the application for and issuance of or any drawing honored under any Letter of Credit even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Letter of Credit, or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of the beneficiary of any Letter of Credit to comply fully with conditions required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telex, telecopy or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any Letter of Credit, or of the proceeds thereof; (vii) the misapplication by the beneficiary of the proceeds of any drawing under any Letter of Credit; or (viii) any consequences arising from causes beyond the control of the Agent or the Lenders. None of the above shall affect, impair or prevent the vesting of any of the Agent’s or any Lender’s rights or powers hereunder. Any action taken or omitted to be taken by the Agent under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final, non-appealable judgment), shall not create against the Agent or any Lender any liability to the Borrowers or any Lender. In this regard, the obligation of the Borrowers to reimburse the Agent for any drawing made under any Letter of Credit, and to repay any Loan made pursuant to the second sentence of the preceding subsection (e), shall be absolute, unconditional and irrevocable and shall be paid strictly in accordance with the terms of this Agreement and any other applicable Letter of Credit Document under all circumstances whatsoever, including without limitation, the following circumstances: (A) any lack of validity or enforceability of any Letter of Credit Document or any term or provisions therein; (B) any amendment or waiver of or any consent to departure from all or any of the Letter of Credit Documents; (C) the existence of any claim, setoff, defense or other right which any Borrower may have at any time against the Agent, any Lender, any beneficiary of a Letter of Credit or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or in the Letter of Credit Documents or any unrelated transaction; (D) any breach of contract or dispute between any Borrower, the Agent, any Lender or any other Person; (E) any demand, statement or any other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein or made in connection therewith being untrue or inaccurate in any respect whatsoever; (F) any non-application or misapplication by the beneficiary of a Letter of Credit of the proceeds of any drawing under such Letter of Credit; (G) payment by the Agent under any Letter of Credit against presentation of a draft or certificate which does not strictly comply with the terms of such Letter of Credit; and (H) any other act, omission to act, delay or circumstance whatsoever that might, but for the provisions of this Section, constitute a legal or equitable defense to or discharge of the Borrowers’ Reimbursement Obligations.
(h)
The issuance by the Agent of any amendment, supplement or other modification to any Letter of Credit shall be subject to the same conditions applicable under this Agreement to the issuance of new Letters of Credit (including, without limitation, that the request therefor be made through the Agent), and no such amendment, supplement or other modification shall be issued unless either (i) the respective Letter of Credit affected thereby would have complied with such conditions had it originally been issued hereunder in such amended, supplemented or modified form or (ii) the Requisite Lenders (or all of the Lenders if required by
Section 9.02
) shall have consented thereto. In connection with any such amendment,
supplement or other modification, the Borrowers shall pay the fees, if any, payable under the last sentence of
Section 2.09(c)
.
(i)
Immediately upon the issuance by the Agent of any Letter of Credit each Lender shall be deemed to have irrevocably and unconditionally purchased and received from the Agent, without recourse or warranty, an undivided interest and participation to the extent of such Lender’s Applicable Percentage of the liability of the Agent with respect to such Letter of Credit, and each Lender thereby shall absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety, and shall be unconditionally obligated to the Agent to pay and discharge when due, such Lender’s Applicable Percentage of the Agent’s liability under such Letter of Credit. In addition, upon the making of each payment by a Lender to the Agent in respect of any Letter of Credit pursuant to the immediately following subsection (j), such Lender shall, automatically and without any further action on the part of the Agent or such Lender, acquire (i) a participation in an amount equal to such payment in the Reimbursement Obligation owing to the Agent by the Borrowers in respect of such Letter of Credit and (ii) a participation in a percentage equal to such Lender’s Applicable Percentage in any interest or other amounts payable by the Borrowers in respect of such Reimbursement Obligation (other than the fees payable solely to the Agent pursuant to
Section 2.09(c)
). Notwithstanding the foregoing, in the event of a default in any Lender’s obligations to fund under this Agreement exists or any Lender is at such time a Defaulting Lender, the Agent shall have the right, but not the obligation, to refuse to issue any Letter of Credit unless the Agent has entered into satisfactory arrangements with the Borrowers and/or such Defaulting Lender to eliminate the Agent’s risk with respect to such Defaulting Lender.
(k)
Each Lender severally agrees to pay to the Agent on demand in immediately available funds in Dollars the amount of such Lender’s Applicable Percentage of each drawing paid by the Agent under each Letter of Credit to the extent such amount is not reimbursed by the Borrowers pursuant to
Section 2.19(d)
;
provided
,
however
, that in respect of any drawing under any Letter of Credit, the maximum amount that any Lender shall be required to fund, whether as a Loan or as a participation, shall not exceed such Lender’s Applicable Percentage of such drawing. If the notice referenced in the second sentence of
Section 2.19(e)
is received by a Lender not later than 11:00 a.m., then such Lender shall make such payment available to the Agent not later than 2:00 p.m. on the date of demand therefor; otherwise, such payment shall be made available to the Agent not later than 1:00 p.m. on the next succeeding Business Day. The obligation of each Lender to make such payments to the Agent under this subsection, and the Agent’s right to receive the same, shall be absolute, irrevocable and unconditional and shall not be affected in any way by any circumstance whatsoever, including without limitation, (i) the failure of any other Lender to make its payment under this subsection, (ii) the financial condition of any Borrower or any other Credit Party, (iii) the existence of any Default or Event of Default, or (iv) the termination of the Commitments. Each such payment to the Agent shall be made without any offset, abatement, withholding or deduction whatsoever.
(l)
The Agent shall periodically deliver to the Lenders information setting forth the Stated Amount of all outstanding Letters of Credit. Other than as set forth in this subsection, the Agent shall have no duty to notify the Lenders regarding the issuance or other matters regarding Letters of Credit issued hereunder. The failure of the Agent to perform its
requirements under this subsection shall not relieve any Lender from its obligations under
Section 2.19(j)
.
SECTION 2.20
Expiration or Maturity Date of Letters of Credit Past Termination Date
.
(a)
If on the Termination Date there are any Letters of Credit outstanding hereunder (excluding any Letters of Credit for which cash collateral has been provided as provided herein), the Borrowers shall, on such date, pay to the Agent an amount of money equal to the Stated Amount of such Letter(s) of Credit for deposit into the Collateral Account.
(b)
As collateral security for the prompt payment in full when due of all Letter of Credit Liabilities, the Borrowers hereby pledge and grant to the Agent, for the ratable benefit of the Agent and the Lenders as provided herein, a security interest in all of their respective right, title and interest in and to the Collateral Account and the balances from time to time in the Collateral Account (including the investments and reinvestments therein provided for below). The balances from time to time in the Collateral Account shall not constitute payment of any Letter of Credit Liabilities until applied by the Agent as provided herein. Anything in this Agreement to the contrary notwithstanding, funds held in the Collateral Account shall be subject to withdrawal only as provided in this Section.
(c)
Amounts on deposit in the Collateral Account shall be invested and reinvested by the Agent in such cash equivalents as the Agent shall determine in its sole discretion. All such investments and reinvestments shall be held in the name of and be under the sole dominion and control of the Agent for the ratable benefit of the Lenders (but owned by Lead Borrower for tax purposes). The Agent shall exercise reasonable care in the custody and preservation of any funds held in the Collateral Account and shall be deemed to have exercised such care if such funds are accorded treatment substantially equivalent to that which the Agent accords other funds deposited with the Agent, it being understood that the Agent shall not have any responsibility for taking any necessary steps to preserve rights against any parties with respect to any funds held in the Collateral Account.
(d)
If a drawing pursuant to any Letter of Credit occurs on or prior to the expiration date of such Letter of Credit, the Borrowers and the Lenders authorize the Agent to use the monies deposited in the Collateral Account and proceeds thereof to make payment to the beneficiary with respect to such drawing or the payee with respect to such presentment.
(e)
If an Event of Default exists, the Requisite Lenders may, in their discretion, at any time and from time to time, instruct the Agent to liquidate any such investments and reinvestments and apply proceeds thereof to the Obligations in accordance with
Section 7.03
.
(f)
So long as no Default or Event of Default exists, and to the extent amounts on deposit in or credited to the Collateral Account exceed the aggregate amount of the Letter of Credit Liabilities then due and owing, the Agent shall, from time to time, at the request of the Borrowers, deliver to the Borrowers within 10 Business Days after the Agent’s receipt of such request from the Borrowers, against receipt but without any recourse, warranty or representation whatsoever, such amount of the credit balances in the Collateral Account as exceeds the aggregate amount of the Letter of Credit Liabilities at such time.
(g)
The Borrowers shall pay to the Agent from time to time such fees as the Agent normally charges for similar services in connection with the Agent’s administration of the Collateral Account and investments and reinvestments of funds therein.
SECTION 2.21
Cash Collateral
.
(a)
At any time that there shall exist a Defaulting Lender, within one (1) Business Day following the written request of the Agent the Borrower shall cash collateralize the Agent’s Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to
Section 2.17(a)(v)
and any cash collateral provided by such Defaulting Lender) in an amount not less than the amount of such Fronting Exposure. Any such cash collateral shall be maintained in the Collateral Account, subject to
Section 2.20(c)
.
(b)
The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Agent, and agrees to maintain, a first priority security interest in all such cash collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of Letter of Credit Liabilities, to be applied pursuant to
clause (c)
below. If at any time the Agent determines that cash collateral is subject to any right or claim of any Person other than the Agent as herein provided, or that the total amount of such cash collateral is less than the Fronting Exposure, the Borrower will, promptly upon demand by the Agent, pay or provide to the Agent additional cash collateral in an amount sufficient to eliminate such deficiency (after giving effect to any cash collateral provided by the Defaulting Lender).
(c)
Notwithstanding anything to the contrary contained in this Agreement, cash collateral provided under this Section or
Section 2.17
in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of Letter of Credit Liabilities (including, as to cash collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the cash collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.
(d)
Cash collateral (or the appropriate portion thereof) provided to reduce any Fronting Exposure shall no longer be required to be held as cash collateral pursuant to this Section following (i) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (ii) the determination by the Agent that there exists excess cash collateral;
provided
that, subject to
Section 2.17
the Person providing cash collateral and the Agent may agree that cash collateral shall be held to support future anticipated Fronting Exposure or other obligations and
provided further
that to the extent that such cash collateral was provided by the Borrower, such cash collateral shall remain subject to the security interest granted pursuant to the Loan Documents.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
The Credit Parties represent and warrant to the Lenders and the Agent that:
SECTION 3.01
Organization; Powers
. Each Credit Party (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) has all requisite power and authority to carry on its business as now conducted and (c) is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required to the extent that the failure to so qualify could reasonably be expected to have a Material Adverse Effect.
SECTION 3.02
Authorization; Enforceability
. The Transactions are within the corporate, partnership or limited liability company powers (as applicable) of the respective Credit Parties and have been duly authorized by all necessary corporate, partnership or limited liability company action. This Agreement and the Loan Documents have been duly executed and delivered by each Credit Party which is a party thereto and constitute the legal, valid and binding obligation of each such Person, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03
Governmental Approvals; No Conflicts
. The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect or which shall be completed at the appropriate time for such filings under applicable securities laws, (b) will not violate, to the Credit Parties’ knowledge, any applicable law, regulation or order of any Governmental Authority to the extent that such violation could reasonably be expected to have a Material Adverse Effect, (c) will not violate the charter, by-laws or other Organizational Documents of any Credit Party or any of the Borrower’s Subsidiaries, (d) will not violate or result in a default under any indenture, agreement or other instrument binding upon any Credit Party or any of the Borrower’s Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by any Credit Party or any of the Borrower’s Subsidiaries to the extent that such violation, default or right to require payment could reasonably be expected to have a Material Adverse Effect, and (e) will not result in the creation or imposition of any Lien on any Collateral, except pursuant to the Deed of Trust and the Pledge Agreements.
SECTION 3.04
Financial Condition; No Material Adverse Change
.
(a)
The Borrower has heretofore furnished to the Agent the consolidated financial statements of REIT as of and for the fiscal year ended December 31, 2015, reported on by Moss Adams LLP, independent public accountants, for REIT. Such financial statements present fairly, in all material respects, the financial position and results of operations and cash flows of REIT and its consolidated Subsidiaries as of such dates and for such periods in accordance with GAAP, subject to year-end audit adjustments.
(b)
Since December 31, 2015, no event has occurred which could reasonably be expected to have a Material Adverse Effect.
SECTION 3.05
Properties
.
(a)
Each of the Credit Parties and the Borrower’s Subsidiaries has title to, or valid leasehold interests in, all Collateral and all real and personal property necessary to its business, except for Permitted Liens and minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes, as set forth on
Schedule 3.05
.
(b)
Except as otherwise set forth in the property conditions reports obtained with respect to each Mortgaged Property, to the best of each Credit Party’s knowledge, all components of all improvements included within such Mortgaged Property, including, without limitation, the roofs and structural elements thereof and the heating, ventilation, air conditioning, plumbing, electrical, mechanical, sewer, waste water, storm water, paving and parking equipment, systems and facilities included therein, are in good working order and repair, subject to such exceptions which could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. To the best of each Credit Party’s knowledge, all water, gas, electrical, steam, compressed air, telecommunication, sanitary and storm sewage lines and systems and other similar systems serving the Mortgaged Properties are installed and operating and are sufficient to enable each Mortgaged Property to continue to be used and operated in the manner currently being used and operated, and no Credit Party has any knowledge of any fact or condition that reasonably could be expected to result in the termination or material impairment of the furnishing thereof, subject to such exceptions which could not reasonably be expected to have, in the aggregate, a Material Adverse Effect.
(c)
To the best of each Credit Party’s knowledge, all franchises, licenses, authorizations, rights of use, governmental approvals and permits (including all certificates of occupancy and building permits) which are reasonably required to have been issued by Governmental Authority to enable all Mortgaged Properties to be operated as then being operated have been lawfully issued and are in full force and effect, other than those which the failure to obtain in the aggregate could not be reasonably expected to have a Material Adverse Effect. To the best of each Credit Party’s knowledge, no Credit Party or any Subsidiary of the Borrower is in violation of the terms or conditions of any such franchises, licenses, authorizations, rights of use, governmental approvals and permits, which violation could reasonably be expected to have a Material Adverse Effect.
(d)
None of the Credit Parties or Subsidiaries of the Borrower has received any written notice or has any actual knowledge of any pending, threatened or contemplated condemnation proceeding affecting any Mortgaged Property or any part thereof, or any proposed termination or impairment of any parking at any Mortgaged Property or of any sale or other disposition of any Mortgaged Property or any part thereof in lieu of condemnation, which in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(e)
Except for events or conditions which could not reasonably be expected to have, in the aggregate, a Material Adverse Effect, no portion of any Mortgaged Property has suffered any damage by fire or other casualty loss which has not heretofore been completely repaired and restored to its condition prior to such casualty.
(f)
No portion of any Mortgaged Property is located in a special flood hazard area as designated by any federal Government Authorities or any area identified by the insurance
industry or other experts acceptable to the Agent as an area that is a high probable earthquake or seismic area, except as set forth on
Schedule 3
.05.
(g)
There are no Persons operating or managing any Mortgaged Property other than the Borrower, and the Management Company and any Sub-Managers pursuant to (i) the management agreements delivered to Agent as of the Effective Date, and (ii) such other management agreements in form and substance reasonably satisfactory to the Agent and which are assigned to Agent pursuant to an assignment of management agreement in form and substance satisfactory to the Agent,
provided
that sub-management contracts between the Management Company and a Sub- Manager are not subject to Agent’s approval
provided
that such contracts (i) are terminable by Glenborough on no greater than thirty (30) days’ notice without penalty, and (ii) terminate upon the termination of any applicable management agreement between the Borrower and Glenborough and on any transfer of the Mortgaged Property (including as a result of foreclosure, deed in lieu of foreclosure, or other similar transfer).
(h)
To the best of the Credit Parties’ knowledge, except as disclosed on the Current Survey, no improvement or portion thereof, or any other part of any Mortgaged Property, is dependent for its access, operation or utility on any land, building or other improvement not included in such Mortgaged Property, other than for access provided pursuant to a recorded easement, declaration or other right of way establishing the right of such access, subject to such exceptions which could not reasonably be expected to have, in the aggregate, a Material Adverse Effect.
SECTION 3.06
Intellectual Property
. To the best of the Credit Parties’ knowledge, each Credit Party and each of the Borrower’s Subsidiaries owns, or is licensed to use, all patents and other intellectual property the absence of which could reasonably be expected to have a Material Adverse Effect, and the use thereof does not materially infringe upon the rights of any other Person. To the best of the Credit Parties’ knowledge, there are no material slogans or other advertising devices, projects, processes, methods, substances, parts or components, or other material now employed, or now contemplated to be employed, by any Credit Party or any of the Borrower’s Subsidiaries, and no claim or litigation regarding any slogan or advertising device, project, process, method, substance, part or component or other material employed, or now contemplated to be employed by any Credit Party or any of the Borrower’s Subsidiaries, is pending or threatened, the outcome of which could reasonably be expected to have a Material Adverse Effect.
SECTION 3.07
Litigation and Environmental Matters
.
(a)
There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the best of the Credit Parties’ knowledge, threatened against or affecting any Credit Party or any of the Borrower’s Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect or (ii) that involve this Agreement or the Transactions.
(a)
Except as disclosed in the environmental reports obtained with respect to each Mortgaged Property:
(i)
to the best of the Credit Parties’ knowledge, each Mortgaged Property is free from contamination by any Hazardous Material, except as could not reasonably be expected to have a Material Adverse Effect;
(ii)
to the best of the Credit Parties’ knowledge, the operations of the Credit Parties, and the operations at each Mortgaged Property are in compliance with all applicable Environmental Laws, except as could not reasonably be expected to have a Material Adverse Effect;
(iii)
none of the Credit Parties or Subsidiaries of the Borrower have known liabilities with respect to Hazardous Materials at any Mortgaged Property and, to the best of the Credit Parties’ knowledge, no facts or circumstances exist which could reasonably be expected to give rise to liabilities with respect to such Hazardous Materials, in either case, except to the extent such liabilities could not reasonably be expected to have a Material Adverse Effect;
(iv)
To the best of the Credit Parties’ knowledge, (A) the Credit Parties and each Mortgaged Property have all Environmental Permits (if any) necessary for the operations at such Mortgaged Property and are in compliance with such Environmental Permits; (B) there are no legal proceedings pending nor threatened to revoke, or alleging the violation of, such Environmental Permits; and (C) none of the Credit Parties or Subsidiaries of the Borrower have received any notice from any source to the effect that there is lacking any Environmental Permit required in connection with the current use or operation of any Mortgaged Property, in each case, except as could not reasonably be expected to have a Material Adverse Effect;
(v)
none of the Mortgaged Properties currently leased or owned by any Credit Party, nor, to the best of the Credit Parties’ knowledge, any owner of Mortgaged Property leased or operated by any Credit Party, are subject to any outstanding written order or contract, including Environmental Liens, with any Governmental Authority or other Person, or to any federal, state, local, foreign or territorial investigation of which a Credit Party has been given notice respecting (A) Environmental Laws, (B) Remedial Action, (C) any Environmental Claim; or (D) the Release or threatened Release of any Hazardous Material, in each case, except as could not reasonably be expected to have a Material Adverse Effect;
(vi)
none of the Credit Parties or Subsidiaries of the Borrower are subject to any pending legal proceeding alleging the violation of any Environmental Law with respect to any Mortgaged Property nor, to the best of Credit Parties’ knowledge, are any such proceedings threatened, in either case, except as could not reasonably be expected to have a Material Adverse Effect;
(vii)
none of the Credit Parties or Subsidiaries of the Borrower or, to the best of the Credit Parties’ knowledge, any owner of any Mortgaged Property leased by
any Credit Party, have filed any notice under federal, state or local, territorial or foreign law indicating past or present treatment, storage, or disposal of or reporting a Release of Hazardous Material into the environment with respect to a Mortgaged Property, in each case, except as could not reasonably be expected to have a Material Adverse Effect;
(viii)
none of the operations of the Credit Parties or Subsidiaries of the Borrower at a Mortgaged Property or, to the best of the Credit Parties’ knowledge, of any owner of any Mortgaged Property currently leased by any Credit Party or of any tenant of any Mortgaged Property currently leased from any Credit Party, involve or, to the best of the Credit Parties’ knowledge, previously involved the generation, transportation, treatment, storage or disposal of hazardous waste, as defined under 40 C.F.R. Part 261.3 (in effect as of the date of this Agreement) or any state, local, territorial or foreign equivalent, in violation of Environmental Laws; and
(ix)
to the best of the Credit Parties’ knowledge, there is not now, nor has there been in the past (except, in all cases, to the extent the existence thereof could not reasonably be expected to have a Material Adverse Effect), on, in or under any Mortgaged Property leased or owned by any Credit Party, (A) any underground storage tanks or surface tanks, dikes or impoundments (other than for surface water); (B) any friable asbestos- containing materials; (C) any polychlorinated biphenyls; or (D) any radioactive substances other than naturally occurring radioactive material.
SECTION 3.08
Compliance with Laws and Agreements
. Each of the Credit Parties and Subsidiaries of the Borrower are in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or to its knowledge, its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing.
SECTION 3.09
Investment and Holding Company Status
. Neither any of the Credit Parties nor any of the Borrower’s Subsidiaries is (a) an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940 or (b) a “holding company” as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.10
Taxes
. Each Credit Party and each of the Borrower’s Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which such Person has set aside on its books adequate reserves or (b) to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect.
SECTION 3.11
ERISA
. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to have a Material Adverse Effect. The Borrower does not have any Plans as of the date hereof. As to any future Plan the present value of all accumulated benefit obligations under each Plan (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) will not exceed the fair market value of the assets of such Plan, and the present value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) will not exceed the fair market value of the assets of all such underfunded Plans.
SECTION 3.12
Disclosure
. To the best of the Credit Parties’ knowledge, there are no agreements, instruments and corporate or other restrictions to which it, any other Credit Party, or any of its Subsidiaries is subject, or any other matters known to it, that, in the aggregate, could reasonably be expected to have a Material Adverse Effect. None of the reports, financial statements, certificates or other information prepared by a Credit Party, an Affiliate of a Credit Party or any employee or officer thereof and furnished by or on behalf of the Borrower to the Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) (the “
Affiliate Prepared Information
”) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time; and
provided further
that none of the Credit Parties shall be responsible for the accuracy of any statements or information contained in any deliverable that is not Affiliate Prepared Information (the
“Third Party Information
”) except that the Credit Parties represent and warrant that, to the best of their knowledge, the Third Party Information does not contain any material errors, omissions or misstatements of fact.
SECTION 3.13
Insurance
. Borrower has provided to Agent an insurance schedule which accurately sets forth, in all material respects, as of the Effective Date all insurance policies and programs currently in effect with respect to the assets and business of the Credit Parties and the Borrower’s Subsidiaries, specifying for each such policy and program, (i) the amount thereof, (ii) the risks insured against thereby, (iii) the name of the insurer and each insured party thereunder, (iv) the policy or other identification number thereof and (v) the expiration date thereof, with Agent, for the benefit of the Lenders, being names as mortgagee, additional insured and loss payee, as applicable. Such insurance policies and programs (or such other similar policies as are permitted pursuant to
Section 5.06
) are currently in full force and effect, and, together with payment by the insured of scheduled deductible payments, are in amounts sufficient to cover the replacement value of the respective assets of the Credit Parties and the Subsidiaries of the Borrower.
SECTION 3.14
Margin Regulations
. The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board), and no proceeds of any Loan will be used to purchase or carry any margin stock.
SECTION 3.15
Subsidiaries; REIT Qualification
. As of the Effective Date, REIT has only the Subsidiaries listed on Schedule 3.15 attached hereto. The Borrower qualifies as a “qualified REIT subsidiary” under Section 856 of the Code. REIT is a Maryland corporation duly organized pursuant to articles of incorporation filed with the Maryland Department of Assessments and Taxation, and is in good standing under the laws of Maryland. REIT conducts
its business in a manner which enables it to qualify as a real estate investment trust under, and to be entitled to the benefits of, §856 of the Code and has elected to be treated as and is entitled to the benefits of a real estate investment trust thereunder.
SECTION 3.16
Leases
. With respect to the Mortgaged Properties, Borrower represents and warrants to the Agent and the Lenders that: (i) Borrower has delivered to Agent a true and correct copy of each Lease and any guaranty(ies) thereof which affect any part of the Mortgaged Property; (ii) no such Lease or guaranty contains any option or right of first refusal to purchase all or any portion of the Mortgaged Property, or any present or future interest therein, except as set forth on Schedule 3.16 attached hereto; (iii) complete and correct rent rolls for the Mortgaged Property as of the date hereof have been delivered to Agent; (iv) to the best of Borrower’s knowledge, the Leases are currently in full force and effect with no existing default on the part of the landlord thereunder and no condition existing with respect thereto which, with the giving of notice or the passage of time, could constitute such a default; and (v) to Borrower’s knowledge, there is no existing material default by any of the tenants under any of the Leases and no condition existing with respect thereto which, with the giving of notice or the passage of time, could constitute such a default
.
SECTION 3.17
OFAC
.
No Credit Party or any Related Party: (a) is currently the subject of any Sanctions; (b) is located, organized or residing in any Designated Jurisdiction; or (c) is or has been (within the previous five (5) years) engaged in any transaction with any Person who is now or was then the subject of Sanctions or who is located, organized or residing in any Designated Jurisdiction. No Loan, nor the proceeds from any Loan, has been used, directly or indirectly, to lend, contribute, provide or has otherwise made available to fund any activity or business in any Designated Jurisdiction or to fund any activity or business of any Person located, organized or residing in any Designated Jurisdiction or who is the subject of any Sanctions, or in any other manner that will result in any violation by any Person (including any Lender or the Agent) of Sanctions.
SECTION 3.18
EEA Financial Institutions
. No Credit Party is an EEA Financial Institution.
SECTION 3.20
Anti-Corruption Laws and Sanctions
.
(a)
None of (i) the Credit Parties, any Subsidiary thereof or, to the knowledge of the Borrower, any of their respective directors, officers, employees or affiliates, or (ii) to the knowledge of the Borrower, any agent or representative of a Credit Party or any Subsidiary thereof that will act in any capacity in connection with or benefit from the credit facility established hereby, (x) is a Sanctioned Person or currently the subject or target of any Sanctions or (y) has taken any action, directly or indirectly, that would result in a violation by such Persons of any Anti-Corruption Laws or Sanctions; and
(b)
No proceeds of any Loan or other extension of credit have been used, directly or indirectly, by any Credit Party, any of their Subsidiaries or any of its or their respective directors, officers, employees and agents (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, including any payments (directly or indirectly) to a Sanctioned Person or a Sanctioned Country, or (iii) in any manner that would result in the violation of any Sanctions applicable to any party hereto.
ARTICLE IV.
CONDITIONS
SECTION 4.01
Effective Date
. The obligations of the Lenders to make Loans and of the Agent to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with
Section 9.02
):
(a)
The Agent (or its counsel) shall have received from each Credit Party either (i) a counterpart of this Agreement and all other Loan Documents to which it is party signed on behalf of such party or (ii) written evidence satisfactory to the Agent (which may include telecopy or email transmission of a signed signature page of each such Loan Document other than the Notes) that such party has signed a counterpart of the Loan Documents, together with copies of all Loan Documents.
(b)
The Agent shall have received a favorable written opinion (addressed to the Agent and the Lenders and dated the Effective Date) of counsel for the Credit Parties, as the Agent may approve, covering such matters relating to the Credit Parties, the Loan Documents or the Transactions as the Required Lenders shall reasonably request.
(c)
The Agent shall have received such documents and certificates as the Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Credit Parties, the authorization of the Transactions and any other legal matters relating to the Credit Parties, this Agreement (including each Credit Party’s compliance with
Section 9.14
and other customary “know your customer” requirements) or the Transactions, all in form and substance satisfactory to the Agent and its counsel.
(d)
The Agent shall have received a Compliance Certificate and a Borrowing Base Certificate, dated the date of this Agreement and signed by a Financial Officer of Borrower, in form and substance satisfactory to the Agent.
(e)
The Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all out- of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(f)
The Agent shall have received the Appraisal, the Environmental Assessment, the Title Insurance Policy and the Current Survey (in each instance as delivered in connection with the original closing of the Loan, with the Agent receiving an acceptable endorsement to each Title Policy), property condition assessments, insurance certificates, and such other due diligence information as the Agent may require for each Mortgaged Property.
(g)
The Agent shall have received such amendments and/or amendments and restatements of the various Loan Documents (as defined in the Existing Credit Agreement) as it shall determine to be necessary and appropriate.
The Agent shall notify the Lead Borrower and the Lenders of the Effective Date, and such notice shall be conclusive and binding.
SECTION 4.02
Each Credit Event
. The obligation of each Lender to make a Loan on the occasion of any Borrowing and of the Agent to issue Letters of Credit is subject to the satisfaction of the following conditions:
(a)
The representations and warranties of each Credit Party set forth in this Agreement or in any other Loan Document shall be true and correct in all material respects on and as of the date of such Borrowing or issuance (except to the extent a representation or warranty is already qualified by materiality, in which case such representation or warranty shall be true and correct in all respects).
(b)
At the time of and immediately after giving effect to such Borrowing or issuance, no Default or Event of Default shall have occurred and be continuing.
(c)
With respect to any requested Borrowings, the Borrower shall have complied with
Section 2.03
, and with respect to any requested Letter of Credit issuance, the Borrower shall have complied with
Section 2.19
.
(d)
The Agent shall have received a Borrowing Base Certificate signed by a Financial Officer of REIT.
Each Borrowing shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in this
Section 4.02
.
ARTICLE V.
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated, the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full, and no Letter of Credit Liabilities are outstanding, the Credit Parties covenant and agree with the Lenders that:
SECTION 5.01
Financial Statements; Ratings Change and Other Information
.
The Credit Parties will furnish to the Agent and each Lender:
(b)
within 90 days after the end of each fiscal year of REIT, and not later than 10 days after the filing of REIT’s Form 10-K with respect to such fiscal year with the SEC, REIT’s audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such year, together with all notes and supporting schedules thereto, setting forth in each case in comparative form the figures for the previous fiscal year which present fairly in all material respects the financial condition and results of operations of REIT and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, all certified by a Financial Officer of REIT (which may be included in the applicable Compliance Certificate) and reported on (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) by Moss Adams LLP or other firm independent public accountants of recognized national standing, in any case which firm has authorized REIT to deliver such financial statements and report to the Agent and the Lenders;
(c)
within 45 days after the end of each fiscal year of REIT, a pro-forma budget, including cash flow projections, for REIT and the Borrower, for the following fiscal year;
(d)
within 45 days after the end of each of the first three Calendar Quarters, and not later than 10 days after the filing of REIT’s Form 10-Q with respect to such Calendar Quarter with the SEC, (i) such entity’s consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows as of the end of and for such Calendar Quarter and the then elapsed portion of the fiscal year, together with all notes and supporting schedules thereto, setting forth in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of REIT’s Financial Officers as presenting fairly in all material respects the financial condition and results of operations of each such entity on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes, and (ii) a Real Property Portfolio Summary Schedule, broken out by Mortgaged Property in the Mortgaged Property Pool and all other properties of REIT and its Subsidiaries, detailing at a minimum, the property address, square footage, Net Operating Income for such Calendar Quarter, cost basis and Appraised Value (if applicable), and attaching rent rolls and operating statements for each Mortgaged Property as of the related Determination Date;
(e)
concurrently with the delivery thereof, copies of all quarterly and annual reporting provided to the investors in REIT;
(f)
within 45 days after the end of each of the first three (3) Calendar Quarters and within 90 days after the end of each fiscal year of REIT, a compliance certificate of a Financial Officer of REIT (each, a
“Compliance Certificate”
) in the form of
Exhibit B
attached hereto, and a borrowing base certificate of a Financial Officer of REIT (each, a
“Borrowing Base Certificate”
) in the form of
Exhibit G
attached hereto;
(g)
Within ten (10) days after the filing thereof for Forms 10-K and 10-Q described below, and upon written request for items other than Forms 10-K and 10-Q described below, copies of all periodic and other reports, proxy statements and other materials filed by
REIT, the Borrower or any Subsidiary with the SEC (including registration statements and reports on Form 10-K, 10-Q and 8-K (or their equivalents)) or with any national securities exchange, or distributed by REIT or the Borrower to its shareholders generally, as the case may be,
provided
, that this covenant may be satisfied by directing Agent and each Lender to the appropriate page of the SEC website; and
(a)
promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of any Credit Party or any Subsidiary of the Borrower, or compliance with the terms of the Loan Documents, as the Agent or any Lender may reasonably request, including property operating statements, cash flow statements, and balance sheets.
SECTION 5.02
Financial Covenants
. The Borrower and Guarantor shall be in compliance with the financial covenants set forth below in this
Section 5.02
at all times, and shall certify and report such compliance as of the last day of each Calendar Quarter in each Compliance Certificate required to be delivered pursuant to this Agreement. All calculations shall include the applicable Equity Percentage of Unconsolidated Affiliates, without duplication.
(b)
The Total Leverage Ratio shall not exceed sixty-five percent (65%);
provided
,
however
, the Total Leverage Ratio may increase to seventy percent (70%) for no more than two (2) consecutive Calendar Quarters once prior to the Maturity Date in connection with asset acquisitions or other events approved by Agent in its sole discretion.
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(c)
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The Fixed Charge Coverage Ratio shall not be less than 1.40:1.00.
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(d)
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Liquidity shall not be less than $2,500,000.00.
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(e)
The Tangible Net Worth shall not be less than (i) $40,407,000, plus (ii) seventy-five percent (75%) of the Net Proceeds of all Equity Issuances by REIT or the Borrower after the Effective Date. Nothing herein shall be deemed to authorize any Equity Issuance otherwise prohibited pursuant to this Agreement or any other Loan Document.
(f)
The Indebtedness of REIT that bears interest at a varying rate of interest or that does not have the interest rate effectively fixed or hedged pursuant to a Hedging Agreement, shall not exceed twenty percent (20%) of Total Asset Value, with all Hedging Agreements subject to the review and approval of Agent.
SECTION 5.03
Notices of Material Events
. The Borrower will furnish to the Agent and each Lender written notice of the following promptly after it becomes aware of same (unless specific time is set forth below):
(a)
within five (5) Business Days after it has actual knowledge thereof, the occurrence of any Default or Event of Default;
(b)
within five (5) Business Days after the filing or commencement of any action, suit or proceeding by or before any Governmental Authority (excluding any courts)
against or affecting any Credit Party or any Affiliate thereof that, if adversely determined, could reasonably be expected to have a Material Adverse Effect;
(c)
within five (5) Business Days (i) after the filing or commencement of any litigation or arbitration which is pending against a Credit Party and where the amount in controversy exceeds $1,000,000.00 and (ii) after a Credit Party has knowledge thereof, threatened in writing against a Credit Party in which the amount in controversy exceeds $10,000,000.00, and which Borrower reasonably believes is not covered entirely by insurance;
(e)
within five (5) Business Days after the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount exceeding $10,000,000.00; and
(f)
within five (5) Business Days after it has actual knowledge thereof, any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this
Section 5.03
shall be accompanied by a statement of a Financial Officer or other executive officer of Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
SECTION 5.04
Existence; Conduct of Business
. The Borrower will, and will cause each of its Subsidiaries to do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of its business;
provided
that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.02
. Each Borrower must at all times be a wholly owned direct or indirect Subsidiary of REIT.
SECTION 5.05
Payment of Obligations
. Subject to any applicable right to contest, each Credit Party shall duly pay and discharge, or cause to be paid and discharged, before the same shall become overdue, or to bond over, all Taxes, assessments and other governmental charges payable by it, or with respect to the Mortgaged Property or the Collateral, as well as all claims or obligations for labor, materials, supplies or services (involving an amount in excess of $500,000.00 in any instance or $3,000,000.00 in the aggregate) that could result in a lien on the Mortgaged Property or the Collateral or for borrowed funds in any amount.
SECTION 5.06
Maintenance of Properties; Insurance
.
(a)
The Borrower will, and will cause each of its Subsidiaries to, (i) keep and maintain all Mortgaged Property and property necessary to the conduct of its business in good working order and condition, ordinary wear and tear excepted, and (ii) maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are set forth in the schedule provided pursuant to
Section 3.13
, with Agent named as loss payee and a beneficiary of such insurance on substantially similar policies and programs as are acceptable to Agent.
(b)
The Borrower shall maintain the following insurance coverages for each of the Mortgaged Properties in the Mortgaged Property Pool:
(i)
An all-risk policy of permanent property insurance insuring the Mortgaged Property against all risks of any kind or character except those permitted by the Agent in writing to be excluded from coverage thereunder.
(ii)
A boiler and machinery insurance policy covering loss or damage to all portions of the Mortgaged Property comprised of air-conditioning and heating systems, other pressure vessels, machinery, boilers or high pressure piping.
(iii)
An all-risk policy of insurance covering loss of earnings and/or rents from the Mortgaged Property in the event that the Mortgaged Property is not available for use or occupancy due to casualty, damage or destruction required to be covered by the policies of insurance described in (i) and (ii) above.
(iv)
Commercial general liability, auto liability, umbrella or excess liability and worker’s compensation insurance against claims for bodily injury, death or property damage occurring on, in or about the Mortgaged Property in an amount and containing terms acceptable to the Agent.
(v)
Such other insurance against other insurable hazards, risks or casualties which at the time are commonly insured against in the case of owners and premises similarly situated, due regard being given to the financial condition of the Borrower, the height and type of the Mortgaged Property, its construction, location, use and occupancy.
(vi)
All required insurance will be written on forms acceptable to the Agent and by companies having a Best’s Insurance Guide Rating of not less than A or A+ (subject to the requirements of any Lease) and which are otherwise acceptable to the Agent, and such insurance (other than third party liability insurance) shall be written or endorsed so that all losses are payable to the Agent, as Agent for the Lenders. The original policies evidencing such insurance shall be delivered by the Borrower to the Agent and held by the Agent, unless Agent expressly consents to accept insurance certificates instead. Each such policy shall expressly prohibit cancellation or modification of insurance without thirty (30) days’ written notice to the Agent. The Borrower agrees to furnish (only to the extent available in the event such premiums are paid directly by tenants) due proof of payment of the premiums for all such insurance to Agent promptly after each such payment is made and in any case at least fifteen (15) days before payment becomes delinquent.
(c)
Except as may be required under the terms of any Approved Lease, all net proceeds of insurance with respect to a Mortgaged Property shall be paid to Agent and, at Agent’s option, be applied to Borrower’s Obligations or released, in whole or in part, to pay for the actual cost of repair, restoration, rebuilding or replacement (collectively,
“Cost to Repair”
). If the Cost
to Repair does not exceed twenty percent (20%) of the Borrowing Base Pool Value attributable to the subject Mortgaged Property,
provided
no Event of Default is then in existence, Agent shall release so much of the insurance proceeds as may be required to pay for the actual Cost to Repair in accordance with and subject to the provisions of
Section 5.06(d)
.
(d)
If Agent elects or is required to release insurance proceeds, Agent may impose (subject to the requirements of any Approved Lease), reasonable conditions on such release which shall include, but not be limited to, the following:
(i)
Prior written approval by Agent, which approval shall not be unreasonably withheld or delayed of plans, specifications, cost estimates, contracts and bonds for the restoration or repair of the loss or damage;
(ii)
Waivers of lien, architect’s certificates, contractor’s sworn statements and other evidence of costs, payments and completion as Agent may reasonably require;
(iii)
If the Cost to Repair does not exceed $500,000.00, the funds to pay therefor shall be released to Borrower. Otherwise, funds shall be released upon final completion of the Repair Work, unless Borrower requests earlier funding, in which event partial monthly disbursements equal to the value of the work completed (less applicable retainage) shall be made prior to final completion of the repair, restoration or replacement and the balance of the disbursements shall be made upon full completion and the receipt by Agent of satisfactory evidence of payment and release of all liens;
(iv)
Determination by Agent in its reasonable discretion that the undisbursed balance of such proceeds on deposit with Agent, together with additional funds deposited for the purpose, shall be at least sufficient to pay for the remaining Cost to Repair, free and clear of all liens and claims for lien;
(v)
All work to comply with the standards, quality of construction and Legal Requirements applicable to the original construction of the Mortgaged Property;
(vi)
in Agent’s good faith and reasonable judgment the Repair Work is likely to be completed at least three (3) months prior to the Maturity Date;
(vii)
each tenant of the Property which might otherwise have a right to terminate its lease on account of such casualty or condemnation shall have waived its right to so terminate conditioned only upon the Repair Work being completed within a reasonable period of time acceptable to Agent or such period as is expressly provided in the applicable leases, whichever is longer, so long as the period does not exceed the period for which rent loss insurance is available; and
(viii)
no Event of Default is in existence as of the date of such casualty or condemnation or on the date of any applicable disbursement of any insurance proceeds or condemnation award to Borrower (excluding any Event of Default relating to such casualty or condemnation);
(ix)
Agent is reasonably satisfied that all payments to be made by Borrower under the Notes will be made in a timely manner;
(x)
Agent shall have received copies of all permits and approvals required in connection with the Repair Work; and
(xi)
Agent shall be satisfied that after the Repair Work is completed, the value of said Mortgaged Property, upon completion of the Repair Work, will equal or exceed such value immediately prior to the applicable casualty loss or condemnation.
(a)
Subject to the requirements of any Approved Lease, if there is any condemnation for public use of a Mortgaged Property, the net proceeds on account thereof shall be paid to Agent and shall be applied to Borrower’s obligations, or at Agent’s discretion released to Borrower. If, in the case of a partial taking or a temporary taking, in the good faith and reasonable judgment of Agent the effect of such taking is such that there has not been a material and adverse impairment of the profitability of the Mortgaged Property, so long as no Event of Default exists Agent shall release awards on account of such taking to Borrower if such awards are sufficient (or amounts sufficient are otherwise made available) to repair or restore the Mortgaged Property to a condition reasonably satisfactory to Agent, subject to the requirements of
Section 5.06(d)
.
SECTION 5.07
Books and Records; Inspection Rights
.
(b)
The Borrower will, and will cause each of its Subsidiaries to, keep proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities.
(c)
The Borrower will, and will cause each of its Subsidiaries to, permit any representatives designated by the Agent or any Lender, upon reasonable prior notice and subject to rights of tenants, to visit and inspect the Mortgaged Properties and any of its properties where books and records are kept, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested.
SECTION 5.08
Compliance with Laws
. The Borrower will, and will cause each of its Subsidiaries to, comply with all Legal Requirements applicable to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.09
Use of Proceeds; Letters of Credit
. The proceeds of the Loans and the Letters of Credit will be used for Borrower’s working capital requirements and for general corporate purposes, including the acquisition, development and enhancement of real estate, capital expenditures and debt repayment. No part of the proceeds of any Loan or Letter of Credit will be used, whether directly or indirectly, for financing, funding or completing the hostile acquisition of publicly traded Persons or for any purpose that entails a violation of any of the Regulations of the Board, including Regulations U and X.
SECTION 5.10
Fiscal Year
. Borrower shall maintain (and shall cause REIT to maintain) as its fiscal year the twelve (12) month period ending on December 31 of each year.
SECTION 5.11
Environmental Matters
.
(a)
Borrower shall comply and shall cause each of its Subsidiaries and each Mortgaged Property owned or leased by such parties to comply in all material respects with all applicable Environmental Laws currently or hereafter in effect, except to the extent noncompliance could not reasonably be expected to have a Material Adverse Effect.
(b)
If the Agent or the Required Lenders at any time have a reasonable basis to believe that there may be a material violation of any Environmental Law related to any Mortgaged Property owned or leased by Borrower or any of its Subsidiaries, or real property immediately adjoining such Mortgaged Property, which could reasonably be expected to have a Material Adverse Effect, then Borrower agrees, upon request from the Agent (which request may be delivered at the option of Agent or at the direction of Required Lenders), to provide the Agent, at the Borrower’s expense, with such reports, certificates, engineering studies or other written material or data as the Agent or the Required Lenders may reasonably require so as to reasonably satisfy the Agent and the Required Lenders that any Credit Party or Mortgaged Property owned or leased by them is in material compliance with all applicable Environmental Laws.
(c)
Borrower shall, and shall cause each of its Subsidiaries to, take such Remedial Action or other action as required by Environmental Law or any Governmental Authority with respect to Mortgaged Properties.
(d)
If the Borrower fails to timely take, or to diligently and expeditiously proceed to complete, any action described in this
Section 5.11
within the lesser of: (i) thirty (30) days following Borrower’s actual knowledge of the event in question or (ii) the period required for such actions by any applicable Environmental Laws, the Agent may, after notice to the Lead Borrower, with the consent of the Required Lenders, make advances or payments toward the performance or satisfaction of the same, but shall in no event be under any obligation to do so. All sums so advanced or paid by the Agent (including reasonable counsel and consultant and investigation and laboratory fees and expenses, and fines or other penalty payments) and all sums advanced or paid in connection with any judicial or administrative investigation or proceeding relating thereto, will become due and payable from the Borrower fifteen (15) Business Days after demand, and shall bear interest at the rate for past due interest provided in
Section 2.10(c)
from the date any such sums are so advanced or paid by the Agent until the date any such sums are repaid by the Borrower. Promptly upon request, the Borrower will execute and deliver such instruments as the Agent may deem reasonably necessary to permit the Agent to take any such action, and as the Agent may require to secure all sums so advanced or paid by the Agent. If a Lien is filed against the Mortgaged Property by any Governmental Authority resulting from the need to expend or the actual expending of monies arising from an action or omission, whether intentional or unintentional, of the Borrower or for which any Borrower is responsible, resulting in the Releasing of any Hazardous Material into the waters or onto land located within or without the State where the Mortgaged Property is located, then the Borrower will, within thirty (30) days from the date that the Borrower is first given notice that such Lien has been placed against the
Mortgaged Property (or within such shorter period of time as may be specified by the Agent if such Governmental Authority has commenced steps to cause the Mortgaged Property to be sold pursuant to such Lien), either (i) pay the claim and remove the Lien, or (ii) furnish a cash deposit, bond or such other security with respect thereto as is satisfactory in all respects to the Agent and is sufficient to effect a complete discharge of such Lien on the Mortgaged Property.
SECTION 5.12
Mortgaged Property Pool
.
(a)
(i) The Borrower owns, and subject to
Section 5.21(c)
, will at all times own, in fee simple (or, if approved by the Agent and Required Lenders, in their sole discretion, leasehold title) a pool of Mortgaged Properties (the “
Mortgaged Property Pool
”). As of the Effective Date, the Mortgaged Properties included in the Mortgaged Property Pool are listed on
Schedule 5.12(a)
attached hereto.
(ii)
Intentionally Deleted.
(3)
In order to request Agent’s and Required Lenders’ approval of a real property (each, a
“Proposed Mortgaged Property”
) for inclusion in the Mortgaged Property Pool pursuant to Section 5.12(b) (which determination shall be made in Agent’s and Required Lenders’ sole discretion), the Proposed Mortgaged Property shall satisfy all of the following criteria and requirements to the satisfaction of Agent, and all documents and other items delivered hereunder must be acceptable to the Agent and Required Lenders in their sole discretion (collectively, the
“Mortgaged Property Requirements”
):
(A)
The Proposed Mortgaged Property shall be an existing, completed multi-tenanted or single-tenanted retail property located within the United States, of scope and quality consistent with the Borrower’s overall portfolio.
(B)
The Proposed Mortgaged Property shall be wholly-owned in fee simple (or if approved by Agent and the Required Lenders, leasehold title) by a Borrower or shall be so held following the acquisition of such Proposed Mortgaged Property using the proceeds of a Loan.
(C)
If the Proposed Mortgaged Property is or will be leased by Borrower, the Agent and Required Lenders shall have received and approved the Ground Lease and a memorandum of the Ground Lease.
(D)
A final certificate of occupancy, or the local equivalent has been issued by the appropriate Governmental Authority for all of the improvements on the Proposed Mortgaged Property which are occupied.
(E)
The Proposed Mortgaged Property shall be free from any material structural defect and no material deferred maintenance and no capital improvements are required or if required, adequate reserves, pledged to the Agent (unless the subject tenant is obligated to pay for such maintenance or capital improvements), are made therefor to continue operating as a retail
property (or such other use as the Agent and Required Lenders may approve), as determined by an architectural or engineering report approved by the Agent.
(F)
The Borrower shall have delivered (or will simultaneously with the acquisition deliver) a Deed of Trust and Environmental Indemnity to Agent with respect to the Proposed Mortgaged Property.
(G)
The Proposed Mortgaged Property shall be free of any material environmental defect. Agent shall have received a Phase I Environmental Assessment with respect to such Proposed Mortgaged Property and, if available or if reasonably requested by the Agent, Agent shall have received a Phase II Environmental Assessment including (A) information regarding whether (1) the Proposed Mortgaged Property contains or is within or near any area designated as a hazardous waste site by any Governmental Authority, (2) the Proposed Mortgaged Property contains or has contained any Hazardous Material under any Environmental Laws and (4) the Proposed Mortgaged Property or any use or activity thereon violates or is or could be subject to any response, remediation, clean-up, or other obligation under any Environmental Law including without limitation, a written report of an environmental assessment of such Proposed Mortgaged Property, made within thirty (30) days prior to the date of delivery of the Mortgaged Property Requirements, by an engineering firm, and of a scope and in form and content satisfactory to Agent, complying with Agent’s established guidelines, regarding evidence of any Hazardous Material which has been generated, treated, stored, released, or disposed of in such Proposed Property in violation of Environmental Law, and such additional information as may be required by Agent and (B) information regarding whether any circumstances in (A)(1), (2) or (3) are being remediated or cleaned up or will be remediated or cleaned up and information relating to any financial arrangements relating thereto including insurance policies, escrows or bond arrangements. All reports, drafts of reports, and recommendations, whether written or oral, from such engineering firm shall be made available and communicated to Agent.
(H)
The Borrower must be able to make the representations and warranties in
Sections 3.05
and
3.07
as to each Proposed Mortgaged Property.
(I)
The Agent shall have received a current Survey, Title Insurance Policy, flood zone certification, and tax certifications for the Proposed Mortgaged Property which shall include: (1) evidence that such Proposed Mortgaged Property is a separate tax parcel, (2) evidence that no mechanic’s or materialman’s Lien claim or notice, lis pendens, judgment, or other claim or encumbrance against such Proposed Mortgaged Property has been filed for record in the county or city where such Proposed Mortgaged Property is located or in any other public record which by law provides notice of claims or encumbrances regarding such Proposed Mortgaged Property for which adequate provision for payment or bonding arrangements have not been made;
(3) evidence that all applicable zoning ordinances, restrictive covenants and other Legal Requirements affecting such Proposed Mortgaged Property do not prohibit the use for which such Proposed Mortgaged Property is intended and have been or will be complied with; and (4) a legal description of the Proposed Mortgaged Property.
(J)
Agent shall have received a rent roll, operating statements, copies of the tenant leases with any amendments thereto, estoppel certificates from tenants representing, alone or in combination, no less than 65% of the occupied square footage of the Proposed Mortgaged Property (which shall include, without limitation, all Major Leases, regardless of whether the aforementioned 65% threshold may have been exceeded), and SNDA Agreements from tenants under Major Leases and any other tenants that Agent shall reasonably specify, which SNDA Agreements shall be substantially in the form attached hereto as
Exhibit H
or on such other form as is reasonably approved by the Agent.
(K)
The Agent shall have received an architect’s or engineer’s inspection report, a property conditions assessment report and a probable maximum loss study (for any property located in a seismic zone) with respect to such Proposed Mortgaged Property, in form and substance satisfactory to Agent and performed by an architect or engineer satisfactory to the Agent, in each case with reliance letters in favor of Agent.
(L)
The Agent shall have received evidence of insurance with respect to the Proposed Mortgaged Property which complies with the requirements of this Agreement.
(M)
The Agent shall have received an Appraisal with respect to the Proposed Mortgaged Property, which Appraisal shall be ordered by the Agent at Borrower’s expense.
(N)
If applicable, Agent shall have received information regarding the anticipated purchase of the Proposed Mortgaged Property, including any purchase agreements and closing statements, which shall be acceptable to Agent.
(O)
The Agent shall have received recent photographs of the Proposed Mortgaged Property.
(P)
Borrower shall provide Agent with the property management contract for such Proposed Mortgaged Property, which shall be with a Management Company, shall be satisfactory to Agent, and shall be subject to an Assignment of Management Contract.
(Q)
Borrower shall deliver to Agent a completed Borrowing Base Certificate and a pro-forma Compliance Certificate, evidencing sufficient Borrowing Base Availability and continued compliance with the provisions of
Sections 5.02
and
5.21
after giving effect to the inclusion of the Proposed Mortgaged Property and any Borrowing related to the purchase thereof.
(R)
Borrower shall deliver to Agent an updated UCC lien search on the Borrower which owns or is acquiring the Proposed Mortgaged Property.
(S)
The owner or purchaser of the Proposed Mortgaged Property must have (or simultaneously with its purchase of the Proposed Mortgaged Property will have) joined in and assumed all obligations of a “Borrower” under this Agreement and the other Loan Documents, and shall have delivered to Agent such opinions of counsel regarding enforceability of the Deed of Trust and Environmental Indemnity and authority of and due execution by the new Borrower, Organizational Documents and authorizations, joinder agreements and such other related documents as requested by Agent, all in form and substance satisfactory to the Agent.
(T)
For any Mortgaged Property whereby an existing lease is being amended to expand the premises covered by such lease pursuant to an Approved Lease, Agent shall complete all reasonable due diligence and monitoring in connection with the Loans.
(U)
Agent shall have received such other documentation requested by Agent as is necessary for Agent to determine whether such Proposed Mortgaged Property shall be approved as a Mortgaged Property and included in the Mortgaged Property Pool.
(V)
The Proposed Mortgaged Property is otherwise approved by the Agent and the Required Lenders in their sole discretion.
(b)
Upon receipt of the Mortgaged Property Requirements, the Agent and the Required Lenders shall have the right to approve or reject, in their sole discretion, the Proposed Mortgaged Property. The Agent and the Required Lenders agree to use reasonable efforts to either approve or reject such Proposed Mortgaged Property within ten (10) Business Days of Agent’s and Lenders’ receipt of all Mortgaged Property Requirements, but in any event, Agent and Lenders shall either approve or reject such Proposed Mortgaged Property within twenty (20) days of Agent’s and Lender’s receipt of all Mortgaged Property Requirements, as applicable. Following Agent’s and Required Lenders’ approval of Proposed Mortgaged Property and the satisfaction of all Mortgaged Property Requirements, such Proposed Mortgaged Property shall be deemed to be a “Mortgaged Property.” If the Agent does not notify the Borrower of the Agent’s
and Required Lenders’ decision within such twenty (20) day period, they will be deemed to have rejected the Proposed Mortgaged Property.
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(c)
|
Notwithstanding anything set forth in this Agreement to the contrary,
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(i)
Borrower shall have the right to acquire real property interests (directly or indirectly) (which shall not be included as Mortgaged Properties) and/or Equity Interests without submitting Mortgaged Property Requirements or otherwise utilizing Loans under this Agreement, and (ii) Borrower may request from time to time, that Agent and the Required Lenders approve a Proposed Mortgaged Property that does not satisfy the Mortgaged Property Requirements, the approval or rejection of which may be made in the Agent’s and the Required Lenders’ sole discretion, in each case subject to compliance with the requirements set forth in
Sections 5.02
,
5.21
, and
6.03
.
(d)
Additional Pledge Re
quired. Upon Agent’s and Required Lenders’ approval of a Mortgaged Property, in order to secure the payment and performance of the Obligations of the Borrower under this Agreement, the Notes and the Loan Documents, Borrower shall grant or cause to be granted, to Agent for the benefit of the Lenders, a valid, enforceable and perfected first priority Lien in and with respect to, the Equity Interests of any and all applicable Entities acquiring the Mortgaged Property (or any interest in the Mortgaged Property), subject however, to the provisions in the Pledge Agreement regarding Excluded Rights, and Borrower shall execute and deliver, and cause to be executed and delivered by REIT and the Entities (as applicable), to Agent for the benefit of Lenders a Pledge Agreement Addendum and such other documents, certificates and agreements requested by Agent.
SECTION 5.13
Further Assurances
. At any time upon the request of the Agent, each Credit Party will, promptly and at its expense, execute, acknowledge and deliver such further documents and perform such other acts and things as the Agent may reasonably request to evidence the Loans made hereunder and interest thereon in accordance with the terms of this Agreement. The Agent has agreed in some instances that the maximum amount secured by a Deed of Trust may be limited in order to reduce fees or taxes paid by the Borrower in a particular jurisdiction. If an Appraisal reflects that the Appraised Value of a Mortgaged Property is in excess of the maximum amount secured by the Deed of Trust, then within ten (10) days after written notice from the Agent to the Lead Borrower, upon the reasonable request of the Agent, the Borrower will execute an amendment to the Deed of Trust and such other documentation as is necessary to increase the amount secured by the Deed of Trust to at least the Appraised Value of the subject Mortgaged Property.
SECTION 5.14
Partial Releases
. The Borrower may obtain the release of any Mortgaged Property or portion thereof (the “
Release Tract
”) from the liens and security interests of the Loan Documents if it satisfies the following terms and conditions:
(a)
No Default or Event of Default is in existence, and the release of the Release Tract will not cause there to be a Default (including under
Sections 2
.01,
5
.02,
5
.12, or
5
.21) or Event of Default.
(b)
Lead Borrower will deliver to the Agent a Borrowing Base Certificate with pro forma information without the Release Tract which shows that the Principal Obligation
after the release of the Release Tract will not exceed the Borrowing Base Availability;
p
rovided,
however
, that if the Principal Obligation after the release of the Release Tract will exceed the Borrowing Base Availability, the Borrower shall have the right, prior to or at the time of and as a condition to, the release of the Release Tract, to (i) (except to the extent that any such excess is addressed in the following clause (ii)) pay such excess to the Agent, for the benefit of the Lenders, and/or (ii) if the amount of such excess exceeds the Principal Obligation attributable to Loans and Reimbursement Obligations plus any other then-due Obligations of the Borrower other than the Stated Amounts of any Letters of Credit, cash collateralize such Stated Amounts in the amount of such excess, such that, following any such payment and cash collateralization, no such excess will exist. Any such cash collateral shall be treated as if provided pursuant to
Section 2.20(a)
.
(c)
The release will be for the complete Mortgaged Property, and not for just a portion thereof unless the additional requirements set forth in (h) are satisfied.
(d)
No less than fifteen (15) days prior to the date of the requested release
(“Partial Release Date”
), the Borrower shall deliver to the Agent a written request for such partial release (the “
Release Request
”).
(e)
The Borrower shall provide the Agent with an endorsement to the Title Insurance Policy, if required with respect to interrelated Title Insurance Policies, and such other documents as may be reasonably required by the Agent, to confirm that the liens and security interests of the Loan Documents remain valid and prior liens against the Mortgaged Properties (the
“Remaining Projects”
).
(f)
The Borrower shall pay all costs and expenses incurred by the Agent in connection with such Partial Release, including, without limitation, reasonable attorneys’ fees, recording fees and any title policy endorsement fees.
(g)
The Agent shall have received satisfactory evidence that each of the Remaining Projects which is adjoining or which shares access or easements with the Release Tract, if any, has adequate access and joint use easements, that there are no encroachments from or on to the Release Tract, and that there is no inability to use required facilities or amenities, which evidence may be provided by a Current Survey of the affected Remaining Projects.
(h)
If the Release Tract is a portion of a Mortgaged Property, Agent shall have the right, in its sole discretion and at the Borrower’s expense, to require an updated Appraisal of the Mortgaged Property without the Release Tract, and Agent shall be satisfied, in its reasonable discretion, that the remaining portion of the subject Property will continue to qualify as a Mortgaged Property.
The Agent shall be solely responsible for determining whether the criteria set forth in this
Section 5.14
have been met, and Agent shall not require the approval of any Lenders to release a Release Tract in accordance with this
Section 5.14
. Subject to the satisfaction of the provisions of this
Section 5.14
, on the applicable Partial Release Date, (i) any Borrower owning the Release Tract which has no other ownership interest in any of the Remaining Projects, will be released
from further payment and performance of the Loans (other than obligations under the Environmental Indemnity and obligations which, by their terms, survive the termination of the Loan Documents as set forth in
Section 9.05
); (ii) such Borrower will no longer be deemed a “Borrower” under the Loan Documents; and (iii) such Release Tract will no longer be deemed a “Mortgaged Property” under the Loan Documents. Agent and Lenders shall execute a deed of partial release or its equivalent with respect to the Release Tract, along with any other documents reasonably requested by Borrower to evidence the release, all at Borrower’s expense.
SECTION 5.15
[Intentionally Deleted]
.
SECTION 5.16
REIT Covenants
. REIT will:
(a)
own, directly or indirectly, all of the general partnership interests in the Parent and will not sell or transfer any of its general partnership interests in the Parent (
provided
that REIT shall be expressly permitted to transfer its limited partnership interests in the Parent);
(b)
comply with all Legal Requirements to maintain, and at all times will elect, qualify as and maintain, its status as a real estate investment trust under Section 856(c)(i) of the Code; and
(c)
promptly contribute to Parent the Net Proceeds of any Equity Issuances, stock sales or debt offerings.
SECTION 5.17
[Intentionally Deleted
]
.
SECTION 5.18
[Intentionally Deleted]
.
SECTION 5.19
[Intentionally Deleted]
.
SECTION 5.20
[Intentionally Deleted
]
.
SECTION 5.21
Borrowing Base Covenants
. The Borrower shall (x) cause the following covenants to be in compliance at all times, and (y) certify and report such compliance in each Borrowing Base Certificate required to be delivered pursuant to this Agreement (i) as of the last day of each Calendar Quarter, and (ii) at the time each Loan is made or Letter of Credit issued hereunder:
(a)
At no time will the ratio, expressed as a percentage, of (i) the Principal Obligation at such time to (ii) the Borrowing Base Pool Value at such time exceed 65%.
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(b)
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At no time will the Pool Debt Service Coverage Ratio be less than 1.35 to 1.0.
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(c)
At all times there shall be a minimum of two (2) Mortgaged Properties, unless there is no Principal Obligation outstanding.
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(d)
|
At no time will the Pool Leasing Ratio be less than 75%.
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ARTICLE VI.
NEGATIVE COVENANTS
Until the Commitments have expired or terminated, the principal of and interest on each
Loan and all fees payable hereunder have been paid in full, and no Letter of Credit Liabilities are outstanding, the applicable Credit Parties covenant and agree with the Lenders that:
SECTION 6.01
Liens
. None of REIT or any Borrower will create, incur, assume or permit to exist any Lien on any Collateral or any Equity Interests in any Entity now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except (collectively,
“Permitted Liens”
):
(a)
Permitted Encumbrances; and
(b)
Liens for which Agent has given its prior written consent (which consent may be given or not given in Agent’s sole discretion).
SECTION 6.02
Fundamental Changes
. REIT and the Borrower will not and will not, without the Agent’s prior written consent (which consent may be given or not given in Agent’s sole discretion), permit any of Borrower’s Subsidiaries to:
(b)
merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing (i) any Person may merge into, or consolidate with, Lead Borrower in a transaction in which Lead Borrower is the surviving entity, (ii) any Person not a Credit Party may merge into, or consolidate with, any Subsidiary of a Credit Party in a transaction in which the surviving entity is a Subsidiary of a Credit Party, (iii) any Subsidiary of a Credit Party which is not itself a Credit Party may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to another Subsidiary of the Credit Parties, (iv) any Subsidiary of a Credit Party which is not itself a Credit Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders, (v) any Subsidiary of a Credit Party which is itself a Credit Party may merge into (or consolidate with) or liquidate or dissolve into, any other Subsidiary of a Credit Party which is also a Credit Party, and (vi) any Subsidiary of a Credit Party which is itself a Credit Party may sell, transfer, lease or otherwise dispose of its assets to Borrower or to any other Subsidiary of a Credit Party which is also a Credit Party;
provided
that any such merger involving a Person that is not a wholly owned Subsidiary of a Credit Party immediately prior to such merger shall not be permitted unless also permitted by
Section 6.03
;
(c)
sell, transfer, lease or otherwise dispose of all or substantially all of its assets, all or substantially all of the Equity Interests of their respective Subsidiaries in one transaction or a series of transactions), in each case whether now owned or hereafter acquired, to a Person, other than pursuant to
Section 5.14
or clause (a) above;
(d)
engage to any material extent in any business other than the ownership, development, operation and management of retail properties and businesses reasonably related thereto, except as allowed by
Section 6.03
; or
(e)
make or allow any material change to the Organizational documents or organizational structure of any Credit Party or Borrower Entity.
SECTION 6.03
Investments, Loans, Advances and Acquisitions
. REIT and the Borrower will not, and will not permit any of Borrower’s Subsidiaries to, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any Equity Interests, evidences of indebtedness (subject to
Section 6
.09) or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, except:
(a)
Permitted Investments,
provided
,
however
, that at any time (i) investments in unimproved land (valued at book value) shall not exceed, in the aggregate, 5% of Total Asset Value; (ii) investments in properties under development (valued at undepreciated book value) shall not exceed, in the aggregate, 15% of Total Asset Value; (iii) investments in assets which are not retail properties shall not exceed, in the aggregate, 5% of Total Asset Value; (iv) investments in unconsolidated Affiliates shall not exceed, in the aggregate, 20% of Total Asset Value;
(v)
investments in real estate-related loans and debt (including derivative instruments related to real estate) shall not exceed, in the aggregate, 10% of Total Asset Value; and
provided further
that (x) the aggregate of investments described in (i) through (v) above shall not exceed 30% of the Total Asset Value, and (y) the certain real property located at 7441-7499 Sunset Boulevard and 1502-1512 Gardner Street, Los Angeles, California shall be excluded from any calculations that may be made pursuant to subparagraph (ii) hereof;
(b)
mergers, consolidations and other transactions permitted under
Section 6.02
, so long as same do not cause REIT or the Borrower to be in violation of any provision of this
Section 6.03
; and
(c)
investments for which Agent has given its prior written consent (which consent may be given or not given in Agent’s sole discretion).
SECTION 6.04
Hedging Agreements
. The Borrower will not, and will not permit any of its Subsidiaries to, enter into any Hedging Agreement, other than Hedging Agreements entered into in the ordinary course of business to hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct of its business or the management of its liabilities. No such Hedging Agreements may be secured by any Collateral, unless the Agent or an Affiliate of the Agent is the counterparty.
SECTION 6.05
Restricted Payments
. REIT and the Borrower will not, and will not permit any of their Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, during any Calendar Quarter, any Restricted Payment which is not approved by the prior written consent of the Required Lenders,
provided
that any of the following Restricted Payments are permitted so long as the aggregate amount of such Restricted Payments, without double counting for distributions by Holdings to Parent, by Parent to REIT, or by REIT to its shareholders, does not exceed 100% of REIT’s Adjusted Funds From Operations: (a) Restricted Payments by REIT to the extent necessary in order to maintain its status as a real estate investment trust under Section 856(c)(i) of the Code; (b) provided no Default or Event of Default is then in existence, Restricted Payments declared and paid ratably by Subsidiaries to Borrower or REIT with respect to their Equity Interests; and (c) provided no Default or Event of Default is then in existence, Restricted Payments declared and paid ratably by Holdings to Parent (and then by Parent to REIT) with respect to its Equity Interest. Borrower may reserve up to $2,000,000 of net sales proceeds from property dispositions to supplement the calculation of Adjusted Funds From Operations to maintain an annual distribution amount of $0.24 per share,
provided
that not Default or Event of Default exists.
SECTION 6.06
Transactions with Affiliates
. The Borrower will not, and will not permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties (with in independent MAI appraisal delivered by a qualified third party appraiser being conclusive to establish compliance with this requirement), (b) transactions between or among the Borrower and its wholly owned Subsidiaries not involving any other Affiliate, (c) any Restricted Payment permitted by
Section 6.05
, or (d) as consented to by Agent, such consent not to be unreasonably withheld, conditioned or delayed.
SECTION 6.07
[Intentionally Deleted]
.
SECTION 6.08
Restrictive Agreements
. REIT, the Parent and the Borrower will not, and will not permit any of Borrower’s Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of REIT, the Parent, the Borrower or any of Borrower’s Subsidiaries to create, incur or permit to exist any Lien upon any of its property or assets, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or repay loans or advances to REIT, the Parent, the Borrower or any of Borrower’s Subsidiaries or to Guarantee Indebtedness of REIT, the Parent, the Borrower or any of Borrower’s Subsidiaries;
provided
that (i) the foregoing shall not apply to restrictions and conditions imposed by law or by this Agreement or as otherwise approved by the Agent, (ii) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale,
provided
such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (iii) clause (a) of the foregoing shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness or Liens permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness and (iv) clause (a) of the foregoing shall not apply to customary provisions in leases restricting the assignment thereof.
SECTION 6.09
Indebtedness
. Neither REIT nor any Borrower shall, without the prior written consent of the Agent and the Required Lenders, create, incur, assume, guarantee or be or remain liable, contingently or otherwise with respect to any Indebtedness on a recourse basis, except: (a) Indebtedness under this Agreement; (b) Indebtedness to the Agent; (c) Indebtedness under any Hedging Agreements permitted by this Agreement; and (d) individual property-level Indebtedness with recourse to REIT or Borrower in an aggregate amount outstanding at any one time not to exceed fifteen percent (15%) of Total Asset Value.
SECTION 6.10
Management; Management Fees
. The Credit Parties shall not replace SRT Advisor as the external advisor of REIT or Glenborough as the property manager of any Mortgaged Property without the Agent’s prior written consent. At any time that any Event of Default exists under this Agreement or any other Loan Document, no property or asset or management fees shall be paid to a Management Company, any Credit Party or to any Subsidiary or Affiliate of a Management Company or a Credit Party. All such Persons (or any successor advisor or property manager but not any Sub-Manager) shall execute subordination agreements, which, in the case of any property manager, shall include an assignment of the property management agreement, in form and substance acceptable to the Agent (each, a “
Subordination of Management Fees
”) which shall provide (a) that such fees may be paid so long as no Event of Default exists; (b) that all such fees (or, in the case of property management fees to Glenborough only, those fees that are in excess of 3% of gross revenues) shall be expressly subordinate to the Loans; and (c) that such Management Company is not made a party to the Loans solely by executing such Subordination of Management Fees.
SECTION 6.11
Leases
.
(a)
(i) As to any Major Lease executed after the Effective Date, the Agent’s prior written approval (
provided
,
however
that the prior written approval of the Required Lenders shall be required for Major Leases which exceed 25,000 square feet) shall be required in each instance as to: (A) the terms of such Major Lease; (B) each tenant; (C) each guarantor of a tenant’s obligations; (D) any consent to subletting or assignment; (E) any modification or amendment of the term (except for extension or renewal option contemplated in such Major Lease), rent and/or renewal option provisions of such Major Lease; and (F) any termination (excluding the expiration of the term of such lease on the expiration date, as set forth in the applicable lease agreement), cancellation or surrender of such Major Lease. Agent’s and/or Required Lenders’ approval shall not be required in connection with any Lease that is not a Major Lease, any subletting or assignment under such Lease, and any modification, amendment, termination, cancellation or surrender of any such Lease.
All references in this Agreement and/or the other Loan Documents to the term
“Approved Lease
” means, when such reference is applicable to the Mortgaged Property, (a) any Major Lease, or modification or amendment of the term, rent and/or renewal option provisions of such Major Lease, (i) which has been so approved by the Agent and/or the Required Lenders (as applicable) or which does not require Agent’s and/or the Required Lenders (as applicable) approval hereunder, and (ii) as to which the tenant has executed an SNDA Agreement and estoppel certificate in the forms described in
Section 6.11(b)
,
(b) any Lease that is not a Major Lease, (c) any subletting or assignment under a Lease that is not a Major Lease, and (d) any modification, amendment, termination, cancellation or surrender of any Lease that is not a Major Lease.
(ii)
Any request by the Borrower for an approval from the Agent or Lenders (if required) with respect to any Major Lease shall be sent to the Agent or Lenders (if required) and shall be accompanied, at a minimum, by the following: (A) the proposed Major Lease or amendment or modification of the term, rent and/or renewal option provisions of such Major Lease complete with all applicable schedules and exhibits; (B) a complete copy of any proposed guaranty; and (C) if available, comprehensive financial information with respect to the proposed tenant and, if applicable, the proposed guarantor.
(iii)
The Agent and/or the Lenders (as applicable) shall act on requests from the Borrower for any approval of a Major Lease in a commercially reasonable manner and shall respond to any such request within ten (10) Business Days following the Agent’s or such Lender’s receipt of all requested information in connection therewith. The Agent’s response may consist of an approval or disapproval of the request, or a conditional approval thereof subject to specified reasonable conditions, or any combination thereof. In the event that Agent requires additional information from Borrower to review any such request, Agent will request such additional information within five (5) Business Days following Agent’s receipt of such approved request. In order to expedite the processing of requests for such approvals, the Borrower agrees to provide the Agent and each of the Lenders with as much advance information as is possible in a commercially reasonable manner in advance of the Borrower’s formal request for an approval.
(b)
The Agent shall have the right to request that each tenant execute and deliver to the Agent, and upon such request the Borrower agrees to use commercially reasonable efforts to obtain from such tenant, a subordination, non-disturbance of possession and attornment agreement substantially in the form, attached hereto as
Exhibit H
or in such other form as reasonably approved by Agent (each, an “
SNDA Agreemen
t”), and, from time to time, but, so long as no Event of Default has occurred and is continuing, no more frequently than once per calendar year, an estoppel certificate substantially in the form attached hereto as
Exhibit I
.
(c)
From time to time upon Agent’s reasonable request, Borrower shall promptly deliver to Agent (i) complete executed originals of each Lease, including any exhibits thereto and any guaranty(ies) thereof, (ii) a complete rent roll of the Real Property in such detail as Agent may require, together with such operating statements and leasing schedules and reports as Agent may require, (iii) any and all financial statements of the tenants, subtenants and any lease guarantors at the Real Property to the extent available to Borrower, and (iv) such other information regarding tenants and prospective tenants and other leasing information related to the Real Property as Agent may reasonably request which is in Borrower’s possession or control or can be obtained by Borrower using commercially reasonable efforts. In addition, Borrower shall provide Agent with a copy of all Leases and amendments thereto executed after the date hereof
promptly following their execution. Borrower shall have a reasonable time within which to respond to Agent’s request for information pursuant to this Section.
(d)
Borrower represents, covenants and warrants to the Agent and the Lenders that Borrower (i) will observe and perform all of the obligations imposed upon the landlord in the Leases of the Mortgaged Property and will not do or permit to be done anything to impair the security thereof; (ii) will use its best efforts to enforce or secure, or cause to be enforced or secured, the performance of each and every obligation and undertaking of the respective tenants under the Leases of the Mortgaged Property and will appear in and defend, at Borrower’s sole cost and expense, any action or proceeding arising under, or in any manner connected with, the Leases of the Mortgaged Property; (iii) will not collect any of the Rents more than thirty (30) days in advance of the time when the same become due under the terms of the Leases of the Mortgaged Property; (iv) will not discount any future accruing Rents from the Mortgaged Property without Agent’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed; (v) without the prior written consent of Agent, will not execute any assignment of the Leases or the Rents of the Mortgaged Property; (vi) will not add or modify any option or right of first refusal to purchase all or any portion of the Mortgaged Property or any present or future interest therein, without the prior written consent of Agent; (vii) will execute and deliver, at the request of Agent, all such assignments of the Leases and Rents of the Mortgaged Property in favor of Agent as Agent may from time to time require; and (viii) shall notify Agent promptly in writing in the event that Borrower obtains actual knowledge that a tenant under a Major Lease of the Mortgaged Property committed a material default under such Major Lease.
SECTION 6.12
Compliance with Anti-Corruption Laws and Sa
nctions.
No Credit Party shall permit any Loan or the proceeds of any Loan, directly or indirectly: (a) to be lent, contributed or otherwise made available to fund any activity or business in any Designated Jurisdiction; (b) to fund any activity or business of any Person located, organized or residing in any Designated Jurisdiction or who is the subject of any Sanctions; or (c) in any other manner that will result in any violation by any Person (including any Lender or the Agent) of any Sanctions. The Credit Parties will maintain in effect and enforce policies and procedures designed to ensure compliance by the Credit Parties, their Subsidiaries, and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.
ARTICLE VII.
EVENTS OF DEFAULT
SECTION 7.01
Events of Default
. The occurrence of any one of the following shall
be an event of default under this Agreement
(“Events of Default”
):
(a)
the Borrower shall fail to pay when due any principal of any Loan or any Reimbursement Obligation, or to provide cash collateral when required hereunder, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise, and including, without limitation, any such payment due under
Section 2.08(e)
and cash collateral required pursuant to
Section 2.21
;
(b)
any Credit Party shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in
clause (a)
of this Article) payable under any Loan Documents, the same shall become due and payable (including on demand if payable on demand), and such failure shall continue unremedied for a period of five (5) days;
(c)
any material representation or warranty made or deemed made by or on behalf of any Credit Party in or in connection with any Loan Document or any amendment or modification thereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any amendment or modification hereof or waiver hereunder, shall prove to have been materially false or misleading when made or deemed made;
(d)
the Borrower shall fail to observe or perform any covenant, condition or agreement contained in
Sections 5.01
,
5.02
,
5.03
,
5.06(a)(ii)
and (b),
5.07
,
5.09
,
5.11
(subject to the cure period expressly set forth therein),
5.16(a)
or (b) or
5.21
or
Article VI
;
(e)
any Credit Party shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document (other than those specified in
clause (
a),
(b)
or
(d)
of this Article), and, if such failure is curable, such failure continues unremedied for a period of 30 days after notice thereof from the Agent to the Lead Borrower (which notice will be given at the request of any Lender);
provided
,
however
, that if such failure is curable, but not curable within 30 days and the Credit Party is diligently pursuing the cure of same, the cure period may be extended for up to 60 days (for a total of 90 days after the original notice from the Agent) upon written request from the Borrower to the Agent made within the original 30 day period detailing the facts and circumstances and the Borrower’s cure plan and efforts to the Agent’s satisfaction (to be updated every 15 days thereafter until the cure is complete or the 90 day period has expired);
(f)
an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of any Credit Party, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Credit Party or any Mortgaged Property or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered;
(g)
any Credit Party shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for such Person or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it
in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(h)
any Credit Party shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;
(i)
one or more judgments for the payment of money in an aggregate amount in excess of $5,000,000.00 shall be rendered against any Credit Party and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of such Person to enforce any such judgment;
(j)
an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in liability of the Credit Parties and any Entity which owns an Approved Property in an aggregate amount exceeding $10,000,000.00;
(k)
the Guaranty of the Loan by the Guarantor shall for any reason terminate or cease to be in full force and effect;
(l)
any Credit Party shall (or shall attempt to) disavow, revoke or terminate any Loan Document to which it is a party or shall otherwise challenge or contest in any action, suit or proceeding in any court or before any Governmental Authority the validity or enforceability of any Loan Document;
(m)
any provision of any Loan Document with respect to the Collateral shall for any reason ceases to be valid and binding on, enforceable against, any Credit Party resulting in a Material Adverse Effect, or any lien created under any Loan Document ceases to be a valid and perfected first priority lien in any of the Collateral purported to be covered thereby;
|
|
(n)
|
a Change in Control or Key Management shall occur;
|
|
|
(o)
|
an event shall occur resulting in a Material Adverse Effect;
|
(p)
any Credit Party or any Subsidiary thereof defaults under (i) any recourse indebtedness having an aggregate amount outstanding at the time of such default, in each case individually or in the aggregate with all other recourse indebtedness as to which such a default exists, greater than $10,000,000.00, or (ii) any non-recourse indebtedness having an aggregate amount outstanding at the time of such default, in each case individually or in the aggregate with all other such non-recourse indebtedness as with such a default exists, greater than $20,000,000.00, and such default is either (x) a monetary default, or (y) a non-monetary default, in the case of this
clause (y)
, resulting in the acceleration thereof; or
(q)
there occurs under any Hedging Agreement an “Early Termination Date” (as defined in such Hedging Agreement) resulting from (i) any event of default under such Derivatives Contract as to which any Credit Party or any Subsidiary thereof is the “Defaulting Party” (as defined in such Hedging Agreement), or (ii) any “Termination Event” (as defined in
such Hedging Agreement) under such Hedging Agreement as to which any Credit Party or any Subsidiary thereof is an “Affected Party” (as defined in such Hedging Agreement) and, in either event, the Derivatives Termination Value owed by any Credit Party or any Subsidiary thereof as a result thereof is greater than $10,000,000.00.
SECTION 7.02
Remedies
.
Upon the occurrence of an Event of Default (other than an event described in
Sections 7.01(f)
,
(g)
or
(h
)), and at any time thereafter during the continuance of such Event of Default, the Agent may, and at the request of the Required Lenders shall, by notice to the Lead Borrower, take some or all of the following actions, at the same or different times: (a) terminate the Commitments, and thereupon the Commitments, the obligations of the Lenders to make Loans, and the obligation of the Agent to issue Letters of Credit shall terminate immediately, (b) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, (c) require the Borrower to deposit an amount equal to the Stated Amount of all Letters of Credit outstanding as of the date of the occurrence of such Event of Default into the Collateral Account, and (d) exercise any other rights or remedies provided under this Agreement or any other Loan Document, or any other right or remedy available by law or equity; and in case of any event described in
Sections 7.01(f)
,
(g)
or
(h)
, the Commitments, the obligations of the Lenders to make Loans, and the obligation of the Agent to issue Letters of Credit shall automatically terminate, and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, and an amount equal to the Stated Amount of all Letters of Credit outstanding as of the date of the occurrence of such Event of Default for deposit into the Collateral Account, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.
Notwithstanding anything set forth herein to the contrary, if a Default occurs based solely on the condition of, or facts or circumstances existing with respect to, a particular Mortgaged Property (a
“Defaulting Property”
), it shall not constitute an Event of Default if:
(a)
a release of such Defaulting Property as a Mortgaged Property pursuant to
Section 5.14
would result in the cure of such Default; and
(b)
within ten (10) days after the occurrence of such Default, Borrower shall give Agent written notice of its intention to remedy such Default by obtaining a release of the Defaulting Property, pursuant to
Section 5.14
, from the liens and security interests of the Loan Documents;
(c)
within twenty (20) days after the occurrence of such Default, Borrower shall provide Agent with a written plan, which shall be subject to Agent’s approval in its sole and absolute discretion, of the actions intended to be taken by Borrower in order to obtain such release of the Defaulting Property; and
(d)
within thirty (30) days after the occurrence of such Default, Borrower shall actually obtain the release of such Defaulting Property from the liens and security interests of the Loan Documents pursuant to the provisions of Section 5.14, other than Section 5.14(a)(but only with respect to the requirement that no Default or Event of Default then exists,
provided
that the only Default that exists is the Default pertaining to the Defaulting Property that is being cured) and (d);
provided
,
however
, that if Borrower shall not have obtained the release of the Defaulting Property within such thirty (30) day period, but during such period shall have initiated and be continuing diligently to pursue the process of obtaining such release pursuant to an Agent-approved plan, Borrower shall be allowed up to an additional thirty (30) days (that is, until the day that is sixty (60) days after the occurrence of such Default) in which to complete such release.
Borrower’s exercise of its rights set forth in the immediately preceding paragraph (the “
Defaulting Property Cure Rights
”) shall be subject to the following additional conditions:
(A)
There shall be no other Default or Event of Default in existence at the occurrence of the Default that causes Borrower to seek release of the Defaulting Property, or at any time thereafter, up to and including the date that such Defaulting Property is actually released from the liens and the security interests of the Loan Documents;
(B)
Agent and the Lenders shall not be obligated to make any Loans or issue any Letters of Credit during any period of time between the occurrence of a Default that causes Borrower to seek release of a Defaulting Property and the date that such Defaulting Property is actually released from the liens and the security interests of the Loan Documents; and
(C)
Borrower shall not be permitted to exercise the Defaulting Property Cure Rights any more often than once in any period of twelve (12) consecutive months during the term of the Loans.
SECTION 7.03
Liquidation Proceeds
.
Subject to the terms and conditions of this Agreement
,
the Agent shall distribute all Liquidation Proceeds in the order and manner set forth below:
First:
To the Agent, towards any fees and any expenses for which the Agent is entitled to reimbursement under this Agreement or the other Loan Documents not theretofore paid to the Agent.
Second:
To all applicable Lenders in accordance with their proportional share based upon their respective Applicable Percentages until all Lenders have been reimbursed for all fees and expenses which such Lenders have previously paid to the Agent and not theretofore paid to such Lenders.
Third:
To all applicable Lenders in accordance with their proportional share based upon their respective Applicable Percentages until all Lenders have been paid in full all
principal and interest due to such Lenders under the Loan, with each Lender applying such proceeds for purposes of this Agreement first against the outstanding principal balance due to such Lender under the Loan and then to accrued and unpaid interest due under the Loans.
Fourth:
To all applicable Lenders and the Agent, until the Agent and all of the Lenders have been paid in full all other amounts due to the Agent and such Lenders under the Loans, Letters of Credit and Hedging Obligations, including, without limitation, (a) any costs and expenses incurred directly by such Lenders to the extent such costs and expenses are reimbursable to such Lenders by the Borrower under the Loan Documents, (b) payment of breakage, termination or other Hedging Obligations due under any Hedging Agreement between any Credit Party and the Agent or any Affiliate of the Agent, and (c) cash collateralize that portion of Letter of Credit Liabilities comprised of the aggregate undrawn amount of Letters of Credit, ratably among the Lenders and the Agent (and, in the case of such Hedging Agreements, Affiliates of the Agent) and the Agent (as the Letters of Credit issuer) in proportion to the respective amounts described in this clause Fourth held by them.
Fifth:
To the Borrower or such other Person as may be entitled to claim Liquidation Proceeds
.
ARTICLE VIII.
THE AGENT
SECTION 8.01
Appointment and Authority
. Each of the Lenders hereby irrevocably appoints KeyBank to act on its behalf as the Agent hereunder and under the other Loan Documents and authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. In the event of conflicting instructions or notices given to Borrower by Agent and any Lender, Borrower is hereby directed, and shall be entitled, to rely exclusively on the instruction or notice given by Agent. The provisions of this Article are solely for the benefit of the Agent and the Lenders, and neither the Borrower nor any other Credit Party shall have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
SECTION 8.02
Rights as a Lender
. The Person serving as the Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Agent hereunder in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for, and generally engage in any kind of business with, the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Agent hereunder and without any duty to account therefor to the Lenders.
SECTION 8.03
Exculpatory Provisions
.
(a)
The Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Agent:
(i)
shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;
(ii)
shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents);
provided
that the Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and
(iii)
shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Agent or any of its Affiliates in any capacity.
(b)
The Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Agent shall believe in good faith shall be necessary, under the circumstances as provided in
Sections 9.02
and
7.02
), or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to the Agent in writing by the Borrower or a Lender.
(c)
The Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, (v) the satisfaction of any condition set forth in
Article IV
or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Agent, or (vi) any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, nor shall the Agent be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral.
SECTION 8.04
Reliance by Agent
. The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender, the Agent may presume that such condition is satisfactory to such Lender unless the Agent shall have received notice to the contrary from such Lender prior to the making of such Loan or the issuance of such Letter of Credit. The Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
SECTION 8.05
Delegation of Duties
. The Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Agent. The Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facility under this Agreement as well as activities as Agent. The Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.
SECTION 8.06
Resignation of Agent
.
(a)
The Agent may at any time give notice of its resignation to the Lenders and the Lead Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “
Resignation Effective D
ate”), then the retiring Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor
Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
(c)
With effect from the Resignation Effective Date (i) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by the Agent on behalf of the Lenders under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is appointed), and (ii) except for any indemnity payments owed to the retiring Agent, all payments, communications and determinations provided to be made by, to or through the Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Agent as provided for above. Upon the acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Agent (other than any rights to indemnity payments owed to the retiring Agent), and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and
Section 9.03
shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was acting as Agent.
(d)
Such successor Agent shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or shall make other arrangements satisfactory to the current Agent, in either case, to assume effectively the obligations of the current Agent with respect to such Letters of Credit.
SECTION 8.07
Non-Reliance on Agent and Other Lenders
. Each Lender acknowledges that it has, independently and without reliance upon the Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.
SECTION 8.08
No Other Duties, etc.
Anything herein to the contrary notwithstanding, the Bookrunner and Arranger listed on the cover page hereof shall not have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Agent or a Lender hereunder.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.01
Notices
.
(a)
Any notice, demand, request or other communication which any party hereto may be required or may desire to give hereunder shall be in writing (except where telephonic instructions or notices are expressly authorized herein to be given) and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by fax or electronic mail as follows, and all notices and other communications expressly permitted hereunder to be given by telephone (such as Borrowing Requests, which must be followed by a written Borrowing Request as provided herein) shall be made to the telephone number separately provided by such Person for such purposes, as follows:
if to the
B
orrower: c/o SRT Advisor, LLC, 66 Bovet Road, Suite 100, San Mateo, California 94402, Attention: Andrew Batinovich, CEO (Telecopy No.:(650-343- 9690).
With a copy to: c/o SRT Advisor, LLC, 66 Bovet Road, Suite 100, San Mateo, California 94402, Attention: G. Lee Burns, Jr., General Counsel (Telecopy No.:(650-343- 9690).
if to the
Agent
: KeyBank National Association, 225 Franklin Street, Boston, Massachusetts, Attention: Jane McGrath (Telecopy No.: (617-385-6293).
With a copy to: Riemer & Braunstein LLP, 7 Times Square, Suite 2506, New York, New York 10036, Attention: Ronald N. Braunstein, Esq. (Telecopy No.: (212) 719-0140).
if to
any Lender
, to it at its address for notices set forth on Schedule 2.01 or in the Administrative Questionnaire furnished to the Agent with the Assignment and Assumption pursuant to which it became a Lender.
(b)
Any party may change its address for purposes of this Agreement by giving notice of such change to the other parties pursuant to this
Section 9.01
.
(c)
Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by fax shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices sent via telephone, shall be deemed to have been given on the day and at the time reciprocal communication (i.e., direct communication between two or more individuals, which shall not include voice mail messages) with one of the individuals designated to receive notice occurs during a call to the telephone number or numbers indicated for such party. Notices delivered through electronic communications to the extent provided in subsection (d) below, shall be effective as provided in such subsection (d).
(d)
Notices and other communications to the Agent and the Lenders hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites). The Agent or the Borrower may, each in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it,
provided
that approval of such procedures may be limited to particular notices or communications.
(f)
Unless the Agent otherwise prescribes: (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e- mail or other written acknowledgement); and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e- mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor;
provided
that for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.
(g)
The Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic or electronic Borrowing Requests and Letter of Credit applications) purportedly given by or on behalf of the Borrower even if: (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein; or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Agent, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other telephonic communications with the Agent may be recorded by the Agent, and each of the parties hereto hereby consents to such recording.
SECTION 9.02
Waivers; Amendments
.
(a)
No failure or delay by the Agent or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Agent and the Lenders hereunder and under any other Loan Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by
Section 9
.02(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Agent or any Lender may have had notice or knowledge of such Default or Event of Default at the time.
(b)
Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Agent with the consent of the Required Lenders;
provided
that no such agreement shall (i) increase or reduce the Commitment of any Lender other than as otherwise provided herein, (ii) reduce the rate of interest thereon, or reduce any fees payable hereunder (other than a reduction or waiver of default interest or late charges), (iii) extend the Maturity Date, or (iv) change any of the provisions of this Section or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender adversely affected thereby;
provided further
that no such agreement shall amend, modify or otherwise affect the rights or duties of the Agent hereunder without the prior written consent of the Agent. Notwithstanding anything set forth in this Agreement to the contrary, in the event that the Lenders’ consent is requested under this
Section
9
.02(b), the Lenders shall have ten (10) Business Days to respond to such request so long as such request bears the following legend at the top of the page “RESPONSE NEEDED WITHIN TEN (10) DAYS FROM RECEIPT OR REQUEST WILL BE DEEMED APPROVED”. If any Lender fails to respond within the foregoing ten (10) Business Days period, such Lender shall be deemed to have approved the request.
(c)
Notwithstanding any provision of this Agreement to the contrary none of the Lenders or the existing Borrower will be required to execute assumption or amendment documents to add a Person as a Borrower or as a Guarantor. If Real Property assets are added to the Pool in accordance with this Agreement and the owner is not already a Borrower, then such owner may be added as a Borrower as required by
Section 5.12
pursuant to a Joinder Agreement in the form attached hereto as
Exhibit F
executed by such owner and delivered to the Agent, and in each case Borrower, Guarantor, such owner and the Agent will enter into an amendment to the Environmental Indemnity.
SECTION 9.03
Expenses; Indemnity; Damage Waiver
.
(a)
The Borrower shall pay (i) all reasonable out of pocket expenses incurred by the Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Agent), and shall pay all fees and time charges and disbursements for attorneys who may be employees of the Agent , in connection with the syndication of the credit facility provided herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents, or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out of pocket expenses incurred by the Agent in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder, and (iii) all out of pocket expenses incurred by the Agent or any Lender (including the reasonable fees, charges and disbursements of any counsel for the Agent or any Lender, and shall pay all fees and time charges for attorneys who may be employees of the or any Lender, in connection with the enforcement or protection of its rights (A) in connection
with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out of pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit. Borrower’s payment obligation under this
Section 9.03(a)
shall not apply to expenses (however characterized or of whatever type) incurred by Agent or its affiliates, or any Lender, in connection with any dispute solely between Agent and any one or more Lenders, or solely among Lenders, as to their respective rights, duties or obligations under Article 8 of this Agreement or otherwise.
(b)
The Borrower shall indemnify the Agent (and any sub-agent thereof), each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”
) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any Person (including the Borrower or any other Credit Party) other than such Indemnitee and its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or proposed use of the
proceeds therefrom (including any refusal by the Agent to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Credit Party, and regardless of whether any Indemnitee is a party thereto;
provided
that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the Borrower or any other Credit Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or such Credit Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. This
Section 9.03(b)
shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. The foregoing indemnity and hold harmless on the part of Borrower shall not apply to losses, claims, damages, liabilities and related expenses (however characterized or of whatever type) incurred by Agent or its affiliates, or any Lender, in connection with any dispute solely between Agent and any one or more Lenders, or solely among Lenders, as to their respective rights, duties or obligations under Article 8 of this Agreement or otherwise.
(c)
Unless an Event of Default shall have occurred and be continuing, the Borrower shall be entitled to assume the defense of any action for which indemnification is sought hereunder with counsel of its choice at its expense (in which case the Borrower shall not thereafter be responsible for the fees and expenses of any separate counsel retained by an Indemnitee except as set forth below); provided, however, that such counsel shall be subject to the reasonable approval of each such Indemnitee. Notwithstanding the Borrower’s election to assume the defense of such action, each Indemnitee shall have the right to employ separate counsel and to participate in the defense of such action, and the Borrower shall bear the reasonable fees, costs and expenses of such separate counsel, if (i) the use of counsel chosen by the Borrower to represent such Indemnitee would present such counsel with a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the Borrower and such Indemnitee and such Indemnitee shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the Borrower (in which case the Borrower shall not have the right to assume the defense or such action on behalf of such Indemnitee); (iii) the Borrower shall not have employed counsel reasonably satisfactory to such Indemnitee to represent it within a reasonable time after notice of the institution of such action; or (iv) the Borrower shall authorize in writing such Indemnitee to employ separate counsel at the Borrower’s expense. The Borrower will not be liable under this Agreement for any amount paid by an Indemnitee to settle any claims or actions if the settlement is entered into without the Borrower’s consent, which consent may not be withheld or delayed unless such settlement is unreasonable in light of such claims or actions against, and defenses available to, such Indemnitee. Notwithstanding the foregoing, in the event an Indemnitee
releases the Borrower from its indemnification obligations hereunder, such Indemnitee may assume the defense of any such action with respect to itself.
(d)
To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of this Section to be paid by it to the Agent (or any sub- agent thereof) or any Related Party of any of the Agent, each Lender severally agrees to pay to the Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Principal Obligation at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender);
provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Agent (or any such sub-agent) in its capacity as such, or against any Related Party of the Agent acting for the Agent (or any such sub-agent) in connection with such capacity.
(e)
To the fullest extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit, or the use of the proceeds thereof. No Indemnitee referred to in paragraph (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
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(f)
|
All amounts due under this
Section 9.03
shall be payable not later than fifteen (15) days after written demand therefor, which demand shall be accompanied by reasonable documentation with respect to the amounts claimed.
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(g)
Each party’s obligations under this Section shall survive the termination of the Loan Documents and payment of the obligations hereunder.
SECTION 9.04
Successors and Assigns
.
(a)
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither the Borrower nor any other Credit Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of paragraph (b) of this Section, (ii) by way of participation in accordance with the provisions of paragraph (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of paragraph (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in paragraph (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)
Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans and Letter of Credit Liabilities at the time owing to it);
provided
that any such assignment shall be subject to the following conditions:
(i) (A)
in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans and Letter of Credit Liabilities at the time owing to it or contemporaneous assignments to related Approved Funds that equal at least the amount specified in paragraph (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and
(B)
in any case not described in paragraph (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans and Letter of Credit Liabilities outstanding thereunder) or, if the applicable Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Agent) shall not be less than $5,000,000.00, unless each of the Agent and, so long as no Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).
(ii)
Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans, Letter of Credit Liabilities and Commitment assigned.
(iii)
No consent shall be required for any assignment except to the extent required by paragraph (b)(i)(B) of this Section and, in addition:
(A)
the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default has occurred and is continuing at the time of such assignment, or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
provided
,
however
, that (1) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Agent within five (5) Business Days after having received notice thereof; (2) no consent of the Borrower shall be required in connection with any assignment to a Person acquiring, or merging with, a
Lender; and (3) Borrower’s consent shall not be deemed to be unreasonably withheld if the Borrower reasonably believes that any proposed assignee (including an entity that becomes an assignee solely by virtue of its merger with or acquisition of a Lender) is a Competitor.
(B)
the consent of the Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender.
(iv)
The parties to each assignment shall execute and deliver to the Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500.00;
provided
that the Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Agent an Administrative Questionnaire.
(v)
No such assignment shall be made to (A) the Borrower or any of the Borrower’s Affiliates or Subsidiaries or (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B).
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(vi)
|
No such assignment shall be made to a natural Person.
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(vii)
In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agent, and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Agent pursuant to paragraph (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of
Sections 2.12, 2.13, 2.14, and 9.03
with respect to facts and circumstances occurring prior to the effective date of such assignment;
provided
, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or
release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (d) of this Section.
(c)
The Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the
“Register
”). The entries in the Register shall be conclusive, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d)
Any Lender may, without the consent of the Borrower or the Agent, sell participations to any Person, other than a natural Person, the Borrower or any of the Borrower’s Affiliates or Subsidiaries, Competitors or Real Property Tenants (each, a
“
Participan
t
”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided
that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) the Borrower, the Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) Borrower’s obligations hereunder shall not be increased. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided
that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to
Section 9.02(b)
that affects such Participant. Subject to
Section 9
.04(e), the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.12, 2.13 and 2.14
to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to
Section 9
.04(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of
Section 9.08
as though it were a Lender,
provided
such Participant agrees to be subject to
Section 2.15(c)
as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non- fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each
Participant’s interest in the Loans or other obligations under the Loan Documents (the
“
Participant
Re
gister”);
provided
that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
For the avoidance of doubt, the Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(e)
A Participant shall not be entitled to receive any greater payment under
Section 2.12
or
2.14
than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.14
unless the Lead Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.14(e)
as though it were a Lender.
(f)
Any Lender may at any time pledge, assign, or grant a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank;
provided
that no such pledge, assignment, or grant shall release such Lender from any of its obligations hereunder or substitute any such pledgee, assignee, or secured party for such Lender as a party hereto.
SECTION 9.05
Survival
. All covenants, agreements, representations and warranties made by the Borrower herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans, regardless of any investigation made by any such other party or on its behalf, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid and so long as the Commitments have not expired or terminated. The provisions of
Sections 2.12, 2.13
,
2.14
and
9.03
and
Article VIII
shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06
Counterparts; Integration; Effectiveness; Joint and Several
.
(a)
This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.
(b)
This Agreement and any separate letter agreements with respect to fees payable to the Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.
(c)
Except as provided in
Section 4
.01, this Agreement shall become effective when it shall have been executed by the Agent, and when the Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.
(d)
Each Person constituting the Borrower shall be bound jointly and severally with one another to make, keep, observe and perform the representations, warranties, covenants, agreements, obligations and liabilities imposed by this Agreement and the other Loan Documents upon the “Borrower.”
(e)
Each Borrower agrees that it shall never be entitled to be subrogated to any of the Agent’s or any Lender’s rights against any Credit Party or other Person or any collateral or offset rights held by the Agent or the Lenders for payment of the Loans until the full and final payment of the Loans and all other obligations incurred under the Loan Documents and final termination of the Lenders’ obligations, if any, to make further advances under this Agreement or to provide any other financial accommodations to any Credit Party. The value of the consideration received and to be received by each Borrower is reasonably worth at least as much as the liability and obligation of each Borrower incurred or arising under the Loan Documents.
(f)
Each Borrower has determined that such liability and obligation may reasonably be expected to substantially benefit each Borrower directly or indirectly. Each Borrower has had full and complete access to the underlying papers relating to the Loans and all of the Loan Documents, has reviewed them and is fully aware of the meaning and effect of their contents. Each Borrower is fully informed of all circumstances which bear upon the risks of executing the Loan Documents and which a diligent inquiry would reveal. Each Borrower has adequate means to obtain from each other Borrower on a continuing basis information concerning such other Borrower’s financial condition, and is not depending on the Agent or the Lenders to provide such information, now or in the future. Each Borrower agrees that neither the Agent nor any of the Lenders shall have any obligation to advise or notify any Borrower or to provide any Borrower with any data or information regarding any other Borrower.
SECTION 9.07
Severability
. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08
Right of Setoff
. If an Event of Default shall have occurred and be continuing, each Lender, the Agent, and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Legal Requirements, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held, and other obligations (in whatever currency) at any time owing, by such Lender, the Agent or any such Affiliate, to or for the credit or the account of the Borrower or any other Credit Party against any and all of the obligations of the Borrower or such Credit Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or the Agent or their respective Affiliates, irrespective of whether or not such Lender, the Agent or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower or such Credit Party may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender or the Agent different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness;
provided
that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Agent for further application in accordance with the provisions of
Section 2.17
and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the Agent and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, the Agent or their respective Affiliates may have. Each Lender and the Agent agrees to notify the Borrower promptly after any such setoff and application;
provided
that the failure to give such notice shall not affect the validity of such setoff and application.
SECTION 9.09
Governing Law; Jurisdiction; Consent to Service of Process
.
(a)
This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
(b)
The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the state and federal courts in New York, New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Agent or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan Document against the Borrower or its properties in the courts of any jurisdiction.
Notwithstanding the foregoing choice of law:
(i)
matters relating to the creation, perfection, priority and enforcement of the liens on and security interests in a Mortgaged Property or other assets situated in another jurisdiction(s), including by way of illustration, but not in limitation, actions for foreclosure, for injunctive relief, or for the appointment of a receiver, shall be governed by the laws of such state;
(ii)
Agent shall comply with applicable law in such state to the extent required by the law of such jurisdiction(s) in connection with the foreclosure of the security interests and liens created under the Deed of Trust or exercising any rights with respect to the Property directly, and the other Loan Documents with respect to the Property or other assets situated in another jurisdiction; and
(iii)
provisions of Federal law and the law of such other jurisdiction(s) shall apply in defining the terms Hazardous Materials, Environmental Laws and Legal Requirements applicable to the Property as such terms are used in this Loan Agreement, the Environmental Indemnity and the other Loan Documents.
(c)
The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d)
Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in
Section 9
.01. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10
WAIVER OF JURY TRIAL
. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11
Headings
. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.12
Confidentiality
. Each of the Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority, (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to any Eligible Assignee of or Participant in, or any prospective assignee (which is not a Competitor or Real Property Tenant) of or Participant in, any of its rights or obligations under this Agreement, (g) with the consent of the Borrower or (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Agent or any Lender on a nonconfidential basis from a source other than the Borrower. For the purposes of this Section,
“Information”
means all information received from any Credit Party relating to the Credit Party or its business, other than any such information that is available to the Agent or any Lender on a nonconfidential basis prior to disclosure by any Credit Party;
provided
that, in the case of information received from any Credit Party after the date hereof, such information
is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
SECTION 9.13
Interest Rate Limitation
. If at any time there exists a maximum rate of interest which may be contracted for, charged, taken, received or reserved by the Lenders in accordance with applicable law (the
“Maximum Rate”
), then notwithstanding anything herein to the contrary, at any time the interest applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively, the
“
Charges”), shall exceed such Maximum Rate, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been paid in respect of such Loan but were not payable as result of the operation of this Section shall be cumulated and the interest and Charges payable to the Lenders in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by the Lenders. If, for any reason whatsoever, the Charges paid or received on the Loans produces a rate which exceeds the Maximum Rate, the Lenders shall credit against the principal of the Loans (or, if such indebtedness shall have been paid in full, shall refund to the payor of such Charges) such portion of said Charges as shall be necessary to cause the interest paid on the Loans to produce a rate equal to the Maximum Rate. All sums paid or agreed to be paid to the holders of the Loans for the use, forbearance or detention of the Loans shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of this Agreement, so that the interest rate is uniform throughout the full term of this Agreement. The provisions of this Section shall control all agreements, whether now or hereafter existing and whether written or oral, between the parties hereto. Without notice to the Borrower or any other person or entity, the Maximum Rate, if any, shall automatically fluctuate upward and downward as and in the amount by which such maximum nonusurious rate of interest permitted by applicable law fluctuates.
SECTION 9.14
USA PATRIOT Act
. Each Lender hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “
A
ct”), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender to identify the Borrower in accordance with the Act.
SECTION 9.15
Joint and Several Liability
.
(a)
Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to the Agent and Lenders by each other Borrower. Although it is the express agreement and intent of Agent, Lenders and Borrowers that each Borrower is and shall be a primary obligor with respect to the obligations set forth herein and not a guarantor, indemnitor, surety or otherwise only secondarily liable for such obligations, in the event and to the extent that the obligations of such Borrower undertaken herein might in the future be construed to consist, in whole or in part, of the guaranty of
obligations of the other Borrower, each Borrower consents and agrees that such guaranty obligation (as the same may be construed) is and shall be a continuing guaranty of payment and performance and not of collection, that its obligations under this
Section 9.15
shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this
Section 9.15
shall be absolute, unconditional and irrevocable, irrespective of, and unaffected by,
(i) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, any Obligation or any Loan Document, agreement, document or instrument to which any Borrower is or may become a party; (ii) the absence of any action to enforce any Obligation or Loan Document or the waiver or consent by the Agent or any Lender with respect to any of the provisions governing any Obligation or Loan Document; (iii) the insolvency of any Borrower, Guarantor or other Obligor; and (iv) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall
be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
(b)
Each Borrower expressly waives all rights it may have now or in the future under any statute, or at common law, or at law or in equity, or otherwise, to compel the Agent or Lenders to marshal assets or to proceed in respect of the Obligations guaranteed hereunder against any other Borrower, Guarantor or Obligor, any other party or against any security for the payment and performance of the Obligations before proceeding against, or as a condition to proceeding against, such Borrower. Each Borrower consents and agrees that the Agent or the Lenders may, at any time and from time to time, without notice or demand, whether before or after an actual or purported termination, repudiation or revocation of this Agreement by any Borrower, and without affecting the enforceability or continuing effectiveness hereof as to such Borrower: (i) with the consent of each Borrower, supplement, restate, modify, amend, increase, decrease, extent, renew or otherwise change the time for payment or the terms of this Agreement, any Loan Document or any part thereof, including any increase or decrease of the rate(s) of interest thereon; (ii) with the consent of each Borrower, supplement, restate, modify, amend, increase, decrease, or enter into or give any agreement with respect to, this Agreement, any Loan Document or any part thereof, or any of the Security Documents; (iii) waive, approve or consent to any action, condition, covenant, default, remedy, right, representation or term of this Agreement or any other Loan Document; (iv) accept partial payments; (v) release, reconvey, terminate, waive, abandon, fail to perfect, subordinate, exchange, substitute, transfer or enforce any security or guarantees, and apply any security and direct the order or manner of sale thereof as the Agents or Lenders in their sole and absolute discretion may determine; (vi) release any person from any personal liability with respect to this Agreement or any part thereof; (vii) settle, release on terms satisfactory to the Required Lenders or by operation of applicable Legal Requirements or otherwise liquidate or enforce any security or guaranty in any manner, consent to the transfer of any security and bid and purchase at any sale; or (viii) consent to the merger, change or any other restructuring or termination of the corporate or partnership existence of any Borrower or any other person, and correspondingly restructure the obligations evidenced hereby, and any such merger, change, restructuring or termination shall not affect the liability of any Borrower or the continuing effectiveness hereof, or the enforceability hereof with respect to all or any part of the obligations evidenced hereby. It is agreed among each Borrower, the Agent and Lenders that the foregoing consents and waivers are of the essence of the transaction contemplated by this Agreement and the other Loan Documents and that, but for the provisions of this
Section 9.15
and such waivers, the Agent and Lenders would decline to enter into this Agreement.
(c)
Each Borrower agrees that the provisions of this
Section 9.15
are for the benefit of the Agent and the other Lenders and their respective successors, transferees, endorsees and assigns, and nothing herein contained shall impair, as between any other Borrower and the Agent or the other Lenders, the obligations of such other Borrower under the Loan Documents.
(d)
Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, and except as set forth in
Section 9.15(g)
of this Agreement, each Borrower hereby expressly and irrevocably waives any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all defenses
available to a surety, guarantor or accommodation co-obligor. Each Borrower acknowledges and agrees that this waiver is intended to benefit the Agent and Lenders and shall not limit or otherwise affect such Borrower’s liability hereunder or the enforceability of this
Section 1
7, and that the Agent, Lenders and their respective successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this
Section 9
.15(d).
(e)
If the Agent or any Lender may, under applicable law, proceed to realize its benefits under any of the Loan Documents, the Agent or any Lender may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights and remedies under this
Section 9
.15. If, in the exercise of any of its rights and remedies, the Agent or any Lender shall forfeit any of its rights or remedies, including its right to enter a deficiency judgment against any Borrower or any other Person, whether because of any applicable laws pertaining to “election of remedies” or the like, each Borrower hereby consents to such action by the Agent or such Lender and waives any claim based upon such action, even if such action by the Agent or such Lender shall result in a full or partial loss of any rights of subrogation that each Borrower might otherwise have had but for such action by the Agent or such Lender. Any election of remedies that results in the denial or impairment of the right of the Agent or any Lender to seek a deficiency judgment against any Borrower shall not impair any other Borrower’s obligation to pay the full amount of the Obligations.
(f)
Notwithstanding any provision herein contained to the contrary, each Borrower’s liability under this
Section 9.15
(which liability is in any event in addition to amounts for which such Borrower is primarily liable under
Article II
of this Agreement) shall be limited to an amount not to exceed as of any date of determination the greater of:
(i)
the net amount of all Loans advanced to any other Borrower under this Agreement and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower; and
(ii)
the amount that could be claimed by the Agent and Lenders from such Borrower under this
Section 9.15
without rendering such claim voidable or avoidable under Section 548 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after taking into account, among other things, such Borrower’s right of contribution and indemnification from each other Borrower under
Section 9.15(g)
of this Agreement.
|
|
(g)
|
Contribution with Respect to Guaranty O
bligations.
|
(i)
To the extent that any Borrower shall make a payment under this
Section 9.15
of all or any of the Obligations (other than Obligations related to Loans and other extensions of credit made directly or indirectly to that Borrower, or on such Borrower’s behalf, in which case such Borrower shall be primarily liable) (a “
Guarantor Payment
”) that, taking into account all other Guarantor Payments then previously or concurrently made by any other Borrower, exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the aggregate Obligations satisfied by
such Guarantor Payment in the same proportion that such Borrower’s “Allocable Amount” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Borrowers as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Obligations and termination of the Commitments, such Borrower shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Borrower for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
(ii)
As of any date of determination, the
“
Allocable
Amo
unt” of any Borrower shall be equal to the maximum amount of the claim that could then be recovered from such Borrower under this
Section 9.15
without rendering such claim voidable or avoidable under Section 548 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law.
(iii)
This
Section 9.15(g)
is intended only to define the relative rights of Borrowers and nothing set forth in this
Section 9.15(g)
is intended to or shall impair the obligations of Borrowers, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement, including
Section 9.15(a)
of this Agreement. Nothing contained in this
Section 9.15(g)
shall limit the liability of any Borrower to pay the Loans made directly or indirectly to that Borrower, or on such Borrower’s behalf, and accrued interest, fees and expenses with respect thereto for which such Borrower shall be primarily liable.
(iv)
The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Borrower to which such contribution and indemnification is owing.
(v)
The rights of the indemnifying Borrowers against other Borrowers under this
Section 9.15
shall be exercisable on or after the Termination Date, but shall in all respects be subordinate to any Obligations owing to the Lenders.
(vi)
The liability of Borrowers under this
Section 9.15
is in addition to and shall be cumulative with all liabilities of each Borrower to the Agent and Lenders under this Agreement and the other Loan Documents to which such Borrower is a party or in respect of any Obligations or obligation of the other Borrower, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.
(vii)
If acceleration of the time for payment of any amount payable by the Borrowers under this Agreement is stayed upon the insolvency, bankruptcy or reorganization of any of the Borrowers, all such amounts otherwise subject to acceleration under the terms of this Agreement shall nonetheless be payable jointly and
severally by the Borrower hereunder forthwith on demand by the Agent made at the request of the Required Lenders.
(viii)
All of the Borrowers and the Entities are engaged in related businesses and integrated to such an extent that the financial strength and flexibility of each such Person has a direct impact on the success of each other Person. Each Borrower and each Entity will derive substantial direct and indirect benefit from the extension of credit hereunder.
SECTION 9.16
Additional Waivers and Agreements
.
(a)
Notwithstanding any provision contained in this Agreement or any other Loan Document to the contrary, it is the intention and agreement of each Borrower, Guarantor, Obligor and the Agent that the obligations of each Borrower, Guarantor and Obligor under the Loan Documents shall be valid and enforceable against each Borrower, Guarantor and Obligor to the maximum extent permitted by applicable law. Accordingly, if any provision of this Agreement or any other Loan Document creating any obligation of a Borrower, Guarantor or Obligor in favor of any Lender shall be declared to be invalid or unenforceable in any respect or to any extent, it is the stated intention and agreement of each Borrower, Guarantor, Obligor and Lender that any balance of the obligation created by such provision and all other obligations of each Borrower, Guarantor and Obligor to Lenders created by other provisions of the Loan Documents shall remain valid and enforceable. Likewise, if any sums which a Lender may be otherwise entitled to collect from a Borrower, Guarantor or Obligor under the Loan Documents shall be declared to be in excess of those permitted under any law (including any federal or state fraudulent conveyance or like statute or rule of law) applicable to the Obligations and/or the Guaranteed Obligations (as defined in the Guaranty) of such Borrower, Guarantor and Obligor, it is the stated intention and agreement of such Borrower, Guarantor and Obligor and the Lenders that all sums not in excess of those permitted under such applicable law shall remain fully collectible by Lenders from such Borrower, Guarantor and Obligor and such excess sums shall nevertheless survive as a subordinate obligation of such Borrower, Guarantor and Obligor, junior in right to the claims of general unsecured creditors, but prior to the claims of equityholders in such Borrower, Guarantor and Obligor. This provision shall control every other provision of the Loan Documents.
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(b)
|
Each Borrower, Guarantor and Obligor under the Loan Documents hereby waives:
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(i)
any defense based upon Agent or any Lender’s election of any remedy against any Borrower, any Guarantor or any Obligor, including without limitation, the defense to enforcement of this Agreement (the “
G
radsky” defense based upon
Union Bank v.
G
radsky, 265 Cal. App. 2d 40 (1968) or subsequent cases) which, absent this waiver, a guarantor or indemnitor would have by virtue of an election by Agent or any Lender to conduct a non-judicial foreclosure sale of any Property securing the Obligations, it being understood by each Borrower, Guarantor and Obligor that any such non-judicial foreclosure sale will destroy, by operation of California Civil Code of
Civil Procedure Section 580d, all rights of any party to a deficiency judgment against any Borrower, and, as a consequence,
will destroy all rights which a guarantor or indemnitor would otherwise have (including, without limitation, the right of subrogation, the right of reimbursement, and the right of contribution) to proceed against any Borrower and to recover any such amount, and that Agent and Lenders could be otherwise estopped from pursuing guarantor or indemnitor for a deficiency judgment after a non-judicial foreclosure sale on the theory that a guarantor or indemnitor should be exonerated if a lender elects a remedy that eliminates the guarantor’s or indemnitor’s subrogation, reimbursement or contribution rights;
(ii)
any rights under California Code of Civil Procedure Sections 580a and 726b, which provide, among other things: that a creditor must file a complaint for deficiency within three (3) months of non-judicial foreclosure sale or judicial foreclosure sale, as applicable; that a fair market value hearing must be held; and that the amount of the deficiency judgment shall be limited to the amount by which the unpaid debt exceeds the fair market value of the security, but not more that the amount by which the unpaid debt exceeds the sale price of the security;
(iii)
any rights, under Sections 2845 or 2850 of the California Civil Code, or otherwise, to require Agent to institute suit against, or to exhaust any rights and remedies which Agent or the Lenders has or may have against any Borrower, any Guarantor or any Obligor, or against any collateral for the Obligations provided by any Borrower, any Guarantor, or any Obligor and any defense arising by reason of any disability or other defense (other than the defense that the Obligations shall have been fully and finally performed and indefeasibly paid) of Borrowers, Guarantor, or Obligors or by reason of the cessation from any cause whatsoever of the liability of any Borrower, any Guarantor, or any Obligor in respect thereof; and
(iv)
(1) any rights to assert against Agent and Lenders any defense (legal or equitable), set-off, counterclaim, or claim which any Guarantor may now or at any time hereafter have against Borrowers or any other Person liable to Agent and Lenders; (2) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Obligations or any security therefor; (3) any defense any Guarantor has to performance hereunder, and any right any Guarantor has to be exonerated, provided by Sections 2819, 2822, or 2825 of the California Civil Code, or otherwise, arising by reason of: the impairment or suspension of the Agent’s or Lenders’ rights or remedies against any Borrower; the alteration by Agent or Lenders of the Obligations; any discharge of any Borrower’s obligations to Agent or Lenders by operation of law as a result of any intervention or omission; or the acceptance by Agent or Lenders of anything in partial satisfaction of the Obligations; (4) the benefit of any statute of limitations affecting any Guarantor’s liability under the Loan Documents or the enforcement thereof, and any act which shall defer or delay the operation of any statute of limitations applicable to the Obligations shall similarly operate to defer or delay the operation of such statute of limitations applicable to any Guarantor’s liability under the Loan Documents.
(v)
Each Guarantor absolutely, unconditionally, knowingly, and expressly waives any defense arising by reason of or deriving from election of remedies by the Agent
and Lenders including any election by Agent or any Lender under Bankruptcy Code Section 1111 (b) to limit the amount of, or any collateral securing, its claim against Borrowers.
(vi)
without limiting the generality of the foregoing or any other provision hereof, each Borrower, Guarantor and Obligor absolutely, knowingly, unconditionally, and expressly waives any and all benefits or defenses which might otherwise be available to such Borrower, Guarantor or Obligor under any one or more of California Civil Code Sections 2799, 2808, 2809, 2810, 2815, 2819, 2820, 2821, 2822, 2825, 2839, 2845, 2848, 2849, and 2850, California Code of Civil Procedure Sections 580a, 580b, 580c, 580d, and 726, California Uniform Commercial Code Sections 3116, 3118, 3119, 3419, 3605, 9504, and 9507, and Chapter 2 of Title 14 of Part 4 of Division 3 of the California Civil Code.
(vii)
Each Guarantor hereby acknowledges and agrees that neither Agent, any Lender nor any other Person shall be under any obligation (i) to marshal any assets in favor of Guarantors or in payment of any or all of the liabilities of Borrowers under the Guaranty or the obligations of Guarantors hereunder or (ii) to pursue any other remedy that Guarantors may or may not be able to pursue themselves, any right to which each Guarantor hereby waives.
(viii)
Each Guarantor warrants and agrees that each of the waivers set forth in this
Section 17
is made with full knowledge of its significance and consequences and after consultation with legal counsel, and that if any of such waivers are determined to be contrary to any applicable law or public policy, such waivers shall be effective only to the maximum extent permitted by applicable law.
(ix)
Any and all rights of subrogation, reimbursement, indemnification and contribution and any other rights and defenses that are or may become available to Guarantor by reason of California Civil Code Sections 2787 to 2855, inclusive, 2899 and 3433 including, without limitation, any and all rights or defenses Guarantor may have by reason of protection afforded to the principal with respect to any of the Obligations or to any other guarantor of any of the Obligations with respect to such obligations under its guaranty, in either case, pursuant to the antideficiency or other laws of the state of California limiting or discharging the principal’s indebtedness or such other guarantor’s obligations, including, without limitation, California Code of Civil Procedure Sections 580a, 580b, 580d or 726;
(x)
all rights and defenses arising out of an election of remedies by the Lenders, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Obligations, has destroyed Guarantor’s rights of subrogation and reimbursement against Borrower by the operation of California Code of Civil
Procedure Section 580d or otherwise, and even though that election of remedies by the Lenders has destroyed Guarantor’s rights of contribution against another guarantor of any of the Obligations; and
(xi)
any right Guarantor might otherwise have under Section 2822 of the California Civil Code or similar law or otherwise to have Borrower designate the portion of any such obligation to be satisfied in the event that Borrower provides partial satisfaction of such obligation. Guarantor acknowledges and agrees that Borrower may already have agreed
with the Lenders, or may hereafter agree, that in any such event the designation of the portion of the obligation to be satisfied shall, to the extent not expressly made by the terms of the Loan Documents, be made by the Lenders rather than by Borrower.
(c)
The Loan Documents currently contain jury trial waivers. Such waivers shall continue to apply to the fullest extent now or hereafter permitted by applicable law. BORROWERS, AGENT AND LENDERS PREFER THAT ANY DISPUTE BETWEEN THEM BE RESOLVED IN LITIGATION SUBJECT TO A JURY TRIAL WAIVER AS SET FORTH IN THE LOAN DOCUMENTS. IF, HOWEVER, UNDER THEN APPLICABLE LAW, A PRE-DISPUTE JURY TRIAL WAIVER OF THE TYPE PROVIDED FOR IN THE LOAN DOCUMENTS IS UNENFORCEABLE IN LITIGATION IF SUCH LITIGATION OCCURS IN CALIFORNIA (ALTHOUGH THE PARTIES DO NOT INTEND HEREBY TO WAIVE THEIR CONSENT TO JURISDICTION AND VENUE IN THE STATE OF NEW YORK), TO RESOLVE ANY DISPUTE, CLAIM, CAUSE OF ACTION OR CONTROVERSY UNDER THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE ENVIRONMENTAL INDEMNITY (EACH, A
“
CLAIM”), THEN, UPON THE WRITTEN REQUEST OF ANY PARTY TO SUCH LITIGATION, SUCH CLAIM, INCLUDING ANY AND ALL QUESTIONS OF LAW OR FACT RELATING THERETO, SHALL BE DETERMINED EXCLUSIVELY BY A JUDICIAL REFERENCE PROCEEDING. EXCEPT AS OTHERWISE PROVIDED IN THE PREVIOUS PARAGRAPH, VENUE FOR ANY SUCH REFERENCE PROCEEDING SHALL BE IN THE STATE OR FEDERAL COURT IN THE COUNTY OR DISTRICT WHERE VENUE IS APPROPRIATE UNDER APPLICABLE LAW (THE “
CO
URT”). THE PARTIES SHALL SELECT A SINGLE NEUTRAL REFEREE, WHO SHALL BE A RETIRED STATE OR FEDERAL JUDGE. IF THE PARTIES CANNOT AGREE UPON A REFEREE, THE COURT SHALL APPOINT THE REFEREE. THE REFEREE SHALL REPORT A STATEMENT OF DECISION TO THE COURT. NOTHING IN THIS PARAGRAPH, HOWEVER, SHALL LIMIT THE RIGHT OF ANY PARTY AT ANY TIME TO EXERCISE SELF-HELP REMEDIES, FORECLOSE AGAINST COLLATERAL OR OBTAIN PROVISIONAL REMEDIES (INCLUDING, WITHOUT LIMITATION, REPLEVIN, INJUNCTIVE RELIEF, ATTACHMENT OR THE APPOINTMENT OF A RECEIVER). THE PARTIES SHALL BEAR THE FEES AND EXPENSES OF THE REFEREE EQUALLY UNLESS THE REFEREE ORDERS OTHERWISE. THE REFEREE ALSO SHALL DETERMINE ALL ISSUES RELATING TO THE APPLICABILITY, INTERPRETATION, AND ENFORCEABILITY OF THIS PARAGRAPH. THE PARTIES ACKNOWLEDGE THAT ANY CLAIM DETERMINED BY REFERENCE PURSUANT TO THIS PARAGRAPH SHALL NOT BE ADJUDICATED BY A JURY.
SECTION 9.17
Effect on Existing Credit Agreement
.
(a)
Upon satisfaction of the conditions precedent set forth in
Section 4
.01, this Agreement shall exclusively control and govern the mutual rights and obligations of the parties hereto with respect to the Existing Credit Agreement, and the Existing Credit Agreement shall be superseded by this Agreement in all respects, in each case, on a prospective basis only.
(b)
THE PARTIES HERETO HAVE ENTERED INTO THIS AGREEMENT SOLELY TO AMEND AND RESTATE THE TERMS OF, AND THE OBLIGATIONS OWING UNDER AND IN CONNECTION WITH, THE EXISTING CREDIT AGREEMENT. THE PARTIES DO NOT INTEND THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY TO BE, AND THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING BY ANY BORROWER UNDER OR IN CONNECTION WITH THE EXISTING CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS (AS DEFINED IN THE EXISTING CREDIT AGREEMENT).
SECTION 9.18
Acknowledgment and Consent to Bail-In of EEA Financial
Institutions
. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)
the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
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(b)
|
the effects of any Bail-in Action on any such liability, including, if applicable:
|
(i)
a reduction in full or in part or cancellation of any such liability;
(ii)
a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Credit Agreement or any other Loan Document; or
(iii)
the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.
[Remainder of page intentionally blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as an instrument under seal as of the day and year first above written.
BORROWER:
STRATEGIC REALTY OPERATING
PARTNERSHIP, L.P.,
a Delaware limited partnership
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By;
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Strategic Realty Trust, Inc., a Maryland corporation, it neral Partner
|
By:
Name: G. Lee Burns, Jr.
Title: Vice President
SRT SECURED HOLDINGS, LLC,
a Delaware limited liability company
By: Strategic Realty Operating
Partnership, L.P., a Delaware limited partnership, its sole member
By: Strategic Realty Trust, Inc.,
a Maryland corporation, its general partner
By:
Name: G. Lee Burns, Jr.
Title: Vice President
[ADDITIONAL SIGNATURE PAGES FOLLOW]
SRT SECURED TOPAZ, LLC,
a Delaware limited liability company
By: SRT SECURED HOLDINGS, LLC,
a Delaware limited liability company, its sole member
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By:
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STRATEGIC REALTY OPERATING PARTNERSHIP, L.P.,
|
a Delaware limited partnership, its sole member
By: STRATEGIC REALTY TRUST, INC.,
a Maryland corporation, its general partner
By:
Name: G. Lee Burns, Jr.
Title: Vice President
SRT LA RETAIL, LLC,
a Delaware limited liability company
By: SRT SECURED HOLDINGS, LLC,
a Delaware limited liability company, its sole member
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By:
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STRATEGIC REALTY OPERATING PARTNERSHIP, L.P.,
|
a Delaware limited partnershi p, its sole member
By: STRATEGIC REALTY TRUST, INC.,
a Maryland corporation, its general partner
By:
Name: G. Lee Burns, Jr.
Title: Vice President
[ADDITIONAL SIGNATURE PAGE FOLLOWS]
SRT SF RETAIL I, LLC,
a Delaware limited liability company
By: SRT SECURED HOLDINGS, LLC,
a Delaware limited liability company, its sole member
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By:
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STRATEGIC REALTY OPERATING PARTNERSHIP, L.P.,
|
a Delaware limited partnership, its sole member
By: STRATEGIC REALTY TRUST, INC.,
a Maryland corporation, its general partner
By:
Name: G. Lee Burns, Jr.
Title: Vice President
[ADDITIONAL SIGNATURE PAGE FOLLOWS]
LENDER AND AGENT:
KEYBANK NATIONAL ASSOCIATION,
ind ividuall
y
and as Agent
By
Title: Vice
Pre
s
id
ent
[ADDlTIO
NAL
SIGNATURE PAGE
FOLLOWS]
LENDER:
RAYMOND JAMES BANK, N.A.
By:
Name:James Armstrong
Title: Senior Vice President -Commercial
Real
Estate Lending Manager
SCHEDULE 2.01
COMMITMENTS
LENDER COMMITMENT
(Applicable Percentage)
KEYBANK NATIONAL ASSOCIATION $30,000,000.00 (50%) RAYMOND JAMES BANK, N.A. $30,000,000.00 (50%)
Schedule 3.05
Liens
1.
Mechanics Lien filed October 14, 2016 against 400 Grove Street, San Francisco, California on behalf of Alliance Roofing Company Inc. in the amount of $112,450.60
2.
Mechanics Lien filed December 14, 2016 against 400 Grove Street, San Francisco, California on behalf of Cannon Constructors North, Inc. in the amount of $654,829.00
3.
Mechanics Lien filed December 30, 2016 against 450 Hayes Street, San Francisco, California on behalf of Miscellaneous Architectural and Structural Metals Inc. dba MAS Metals in the amount of $182,407.00.
3. Claim of Lien filed January 13, 2017 against 450 Hayes Street, San Francisco, California on behalf of Cannon Constructors North, Inc., in the amount of $1,500,000.00.
Flood Zones, Earthquake or Seismic Areas
Topaz Marketplace, Hesperia, California
8 Octavia Boulevard, San Francisco, California 400 Grove Street, San Francisco, California
Fulton Hugger Shops, 1720, 1730, 1770, 1780 and 1790 Fulton Street, San Francisco, California 450 Hayes Street, San Francisco, California
388 Fulton Street, San Francisco, California
3701-3709 West Sunset Boulevard (f/k/a 3713 West Sunset Boulevard) and 1601 Griffith Park Boulevard, Los Angeles, California
Schedule 3.15
Subsidiaries
The following are the Subsidiaries of Strategic Realty Trust, Inc. as of the date of this Agreement:
SRT Advisor, LLC SRT LA Retail, LLC
SRT SECURED HOLDINGS, LLC SRT SECURED PINEHURST, LLC SRT SECURED TOPAZ, LLC
SRT SF RETAIL I, LLC SRT SGO MN, LLC SRT SGO, LLC
SRT TRS, LLC SRTCC SG, LLC
SRTCC WILSHIRE, LLC
STRATEGIC REALTY OPERATING PARTNERSHIP, L.P. STRATEGIC REALTY TRUST, INC.
TNP SRT BLOOMINGDALE HILLS, LLC TNP SRT COCHRAN BYPASS, LLC
TNP SRT ENSENADA SHOPPING CENTER, LLC TNP SRT FLORISSANT MARKETPLACE, LLC TNP SRT LAHAINA GATEWAY HOLDINGS, LLC TNP SRT LAHAINA GATEWAY, LLC
TNP SRT MORNINGSIDE MARKETPLACE, LLC TNP SRT PORTFOLIO II HOLDINGS, LLC
TNP SRT PORTFOLIO II, LLC TNP SRT TURKEY CREEK, LLC TNP SRT WAIANAE MALL, LLC
TNP SRT Woodland West Holdings, LLC TNP SRT WOODLAND WEST, LLC
Schedule 3.16
Leases with an option or right of first refusal to purchase any portion of the Mortgaged Property.
1. Lease with Johnny Doughnuts, LLC, as Tenant, at 388 Fulton Street, San Francisco, CA contains a Tenant Right of First Offer with respect to its leased premises, pursuant to Section 29 of its lease, dated June 17, 2016.
Schedule 5.12(a)
Mortgaged Property Pool
Topaz Marketplace, Hesperia, California
8 Octavia Boulevard, San Francisco, California 400 Grove Street, San Francisco, California
Fulton Hugger Shops, 1720, 1730, 1770, 1780 and 1790 Fulton Street, San Francisco, California 450 Hayes Street, San Francisco, California
388 Fulton Street, San Francisco, California
3701-3709 West Sunset Boulevard (f/k/a 3713 West Sunset Boulevard) and 1601 Griffith Park Boulevard, Los Angeles, California
EXHIBIT A
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “
Assignment and Assumpt
ion”) is dated as of the Effective Date set forth below and is entered into by and between [
Insert name of Assignor
] (the
“Assignor
”) and [
Insert name of Assignee
] (the “
A
ssignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the
“Credit Agreement
”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any guarantees included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
[and is an Affiliate/Approved Fund of [
identify Lender
]
1
]
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3.
|
Borrower: Strategic Realty Operating Partnership, LP, SRT Secured Holdings, LLC and certain of its Subsidiaries
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4.
|
Agent: KeyBank National Association, as the Agent under the Credit
|
Agreement
1
Select as applicable.
|
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5.
|
Credit Agreement: Second Amended and Restated Credit Agreement dated as of
|
February 15, 2017, among Strategic Realty Operating Partnership, L.P., SRT Secured Holdings, LLC, certain of their Subsidiaries, the Lenders parties thereto, KeyBank National Association, as Agent, and the other agents parties thereto
|
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Aggregate Amount of Commitment/Loans for all Lenders
|
Amount of Commitment/Loans Assigned
|
Percentage Assigned of
Commitment/Loans
2
|
$
|
$
|
|
%
|
$
|
$
|
|
%
|
$
|
$
|
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%
|
Effective Date:
, 20
[TO BE INSERTED BY AGENT AND
WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
Title:
2
Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
[Consented to and]
3
Accepted: [KeyBank National Association], as
Agent
By:
Title:
[Consented to:]
4
[NAME OF RELEVANT PARTY]
By:
Title:
3
To be added only if the consent of the Agent is required by the terms of the Credit Agreement.
4
To be added only if the consent of the Borrower and/or other parties is required by the terms of the Credit Agreement.
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION
1.
Representations and Warr
anties.
1.1
A
ssignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2
A
ssignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Agent or any other Lender, and (v) if it is a Foreign Lender, attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2.
Payme
nts. From and after the Effective Date, the Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3.
General P
rovisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and
Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
Key Bank National Association, as Agent 225 Franklin Street
Boston, MA 02110
Attn: Ms. Jane McGrath, Institutional Real Estate
RE: Strategic Realty Operating Partnership, LP, SRT Secured Holdings, LLC - Compliance
Certificate for
, 201_ through
, 201_
Dear Ladies and Gentlemen:
This Compliance Certificate is made with reference to that certain Second Amended and Restated Revolving Credit Agreement dated as of February 15, 2017 (as amended, supplemented or otherwise modified from time to time, the “
Credit Agreement
”), among Strategic Realty Operating Partnership, LP, SRT Secured Holdings, LLC and certain of its Subsidiaries (collectively, the “
Borrower
”), the financial institutions party thereto, as lenders, and KeyBank National Association, as Agent. All capitalized terms used in this Compliance Certificate (including any attachments hereto) and not otherwise defined in this Compliance Certificate shall have the meaning set forth for such terms in the Credit Agreement. All Section references herein shall refer to the Credit Agreement.
I hereby certify that I am the
of Strategic Realty Operating Partnership, L.P., and
that I make this Certificate on behalf of each Borrower. I further represent and certify on behalf of the Borrower as follows as of the date of this Compliance Certificate:
I have reviewed the terms of the Loan Documents and have made, or have caused to be made under my supervision, a review in reasonable detail of the transactions and consolidated and consolidating financial condition of the Borrower and its Subsidiaries, during the accounting period (the “
Reporting Period
”) covered by the financial reports delivered simultaneous herewith pursuant to Section 5.01[(a)][(c)], and that such review has not disclosed the existence during or at the end of such Reporting Period (and that I do not have knowledge of the existence as at the date hereof) of any condition or event which constitutes a Default or Event of Default.
The information set forth in
Schedule 1
attached hereto is in all material respects true, correct and complete, and has been prepared in accordance with the requirements of the Credit Agreement.
The Mortgaged Properties identified on, and the calculation of Covenant Compliance shown on,
Schedule 1
attached hereto comply with all applicable conditions, terms, warranties, representations and covenants set forth in the Credit Agreement.
As of the date hereof, the representations and warranties of the Borrowers contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects.
As of the date hereof, no Default or Event of Default exists.
This Compliance Certificate has been executed and delivered as of the date set forth above.
STRATEGIC REALTY OPERATING
PARTNERSHIP, L.P.
, a Delaware limited partnership
By:
Title:
Schedule 1
Strategic Realty Operating Partnership, L.P. Covenant Compliance Calculations as of
Total Debt Total Asset Value
Total Leverage Ratio
Limit 65.0%
|
|
(b)
|
Fixed Charge Coverage Ratio
|
Trailing 2 Quarters Adjusted EBITDA Trailing 2 Quarters Fixed Charges
Limit 1.40
Unrestricted Cash & Equivalents
Limit 2,500,000
Minimum TNW at Closing 40,407,000
Plus 75% of Net Equity Raise Proceeds Since Closing 0
Minimum 40,407,000
|
|
(e)
|
Unhedged Variable Rate Indebtedness to Total Asset Value
|
Variable Rate Indebtedness not Subject to a Hedge Hedge
Total Asset Value
Limit 20.0%
Section 6.03 (a)
Permitted Investments as % of Total Asset Value
Total Asset Value
$
% Limit
|
|
(ii)
|
Undepreciated Book Value of Properties Under Development
15%
|
|
|
(iii)
|
Asset which are not Retail Properties
5%
|
|
|
(v)
|
Mortgages and Notes Receivable
10%
|
Aggregate
30%
|
|
Section 6.05
|
Restricted Payments
|
Adjusted Funds From Operations (cumulative) Distributions (cumulative)
Distributions to Adjusted Funds From Operations
Limit 100.0%
Exhibit C
Intentionally Omitted
[Exhibit C]
EXHIBIT D
FORM OF REVOLVING CREDIT NOTE
$ , 201_
FOR VALUE RECEIVED,
STRATEGIC REALTY OPERATING PARTNERSHIP,
L.P
.
, a Delaware limited partnership,
SRT SECURED HOLDINGS, LLC
, a Delaware limited liability company,
SRT SECURED TOPAZ, LLC
, a Delaware limited liability company,
SRT SF RETAIL I, LLC
, a Delaware limited liability company,
SRT LA RETAIL, LLC
, a Delaware limited liability company, and each other person that from time to time becomes a “Borrower” under the Credit Agreement (collectively, the “
M
aker”), hereby jointly and severally promise to pay, without offset or counterclaim, to the order of [insert name of Lender],
(
“Payee”), the principal amount equal to the lesser of (x)
($ ) or (y) the outstanding
amount advanced by Payee as a Loan (or Loans) under the Credit Agreement (as hereinafter defined), payable in accordance with the terms of the Credit Agreement.
Maker also promises to pay interest on the unpaid principal amount of this Note (this
“
N
o
te”) at the rates and at the times which shall be determined in accordance with the provisions of that certain Second Amended and Restated Credit Agreement dated as of February 15, 2017, among Maker, certain Affiliates of Maker, the Lenders named therein, and KeyBank National Association, as Agent for itself and the Lenders (as hereafter amended, supplemented or otherwise modified from time to time, the “
Credit Agreeme
nt”). Capitalized terms used herein without definition shall have the meanings set forth in the Credit Agreement.
Subject to the terms and provisions of the Credit Agreement, amounts borrowed may be repaid and reborrowed at any time during the Availability Period. Payee shall not have any obligation to make a Loan to the extent such Loan would cause Payee’s Revolving Credit Exposure to exceed Payee’s Commitment, or as otherwise provided in the Credit Agreement.
This Note is subject to (a) mandatory prepayment, and (b) prepayment at the option of the Maker, as provided in the Credit Agreement.
This Note is issued pursuant to the Credit Agreement and is entitled to the benefits of the Credit Agreement, reference to which is hereby made for a more complete statement of the terms and conditions under which the Loans evidenced hereby are made and are to be repaid.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. MAKER AGREES THAT JURISDICTION AND VENUE FOR ANY ACTION REGARDING THIS NOTE SHALL BE AS SET FORTH IN THE CREDIT AGREEMENT.
Upon the occurrence of an Event of Default, the unpaid balance of the principal amount of this Note may become, or may be declared to be, due and payable in the manner, upon the conditions and with the effect provided in the Credit Agreement.
Maker promises to pay all fees, costs and expenses incurred in the collection and enforcement of this Note in accordance with the terms of the Credit Agreement. Maker and any endorser of this Note hereby consents to renewals and extensions of time at or after the maturity hereof, without notice, and hereby waive diligence, presentment, protest, demand and notice of every kind (except such notices as may be expressly required under the Credit Agreement or the other Loan Documents) and, to the full extent permitted by law, the right to plead any statute of limitations as a defense to any demand hereunder.
(The next page is the signature page)
IN WITNESS WHEREOF, Maker has caused this Note to be executed and delivered by its duly authorized officer, as an instrument under seal as of the day and year first written above.
STRATEGIC REALTY OPERATING
PARTNERSHIP, L.P.
, a Delaware limited partnership
|
|
By:
|
Strategic Realty Trust, Inc., a Maryland corporation, its General Partner
|
By:
Name:
Title:
SRT SECURED HOLDINGS, LLC
, a Delaware
limited liability company
|
|
By:
|
SRT Secured Holdings Manager, LLC, a Delaware limited liability company, its Managing Member
|
By:
Name:
Title:
SRT SECURED TOPAZ, LLC
, a Delaware
limited liability company
|
|
By:
|
SRT Secured Holdings, LLC, a Delaware limited liability company, its Sole Member and Manager
|
By: SRT Secured Holdings Manager, LLC, a Delaware limited liability Company, its Managing Member
By:
Name:
Title:
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
SRT SF RETAIL I, LLC
, a Delaware limited liability company
|
|
By:
|
SRT Secured Holdings, LLC, a Delaware limited liability company, its Sole Member and Manager
|
By: SRT Secured Holdings Manager, LLC, a Delaware limited liability Company, its Managing Member
By:
Name:
Title:
SRT LA RETAIL, LLC
, a Delaware limited liability company
|
|
By:
|
SRT Secured Holdings, LLC, a Delaware limited liability company, its Sole Member and Manager
|
By: SRT Secured Holdings Manager, LLC, a Delaware limited liability Company, its Managing Member
By:
Name:
Title:
EXHIBIT E
[Date]
FORM OF BORROWING REQUEST/INTEREST ELECTION REQUEST
KeyBank National Association, as Agent 225 Franklin Street, 18
th
floor
Boston, Massachusetts 02110 Attn: Ms. Jane E. McGrath
|
|
Re:
|
Strategic Realty Operating Partnership, L.P., SRT Secured Holdings, LLC - Borrowing Request
|
Ladies and Gentlemen:
This Borrowing Request is made with reference to that certain Second Amended and Restated Revolving Credit Agreement dated as of February [15, 2017 (as amended, supplemented or otherwise modified from time to time, the “
Credit Agreeme
nt”), among Strategic Realty Operating Partnership, L.P., SRT Secured Holdings, LLC and certain of its Subsidiaries (collectively, the “
Borrower
”), the financial institutions party thereto, as lenders, and KeyBank National Association, as Agent. All capitalized terms used in this Borrowing Request (including any attachments hereto) and not otherwise defined in this Borrowing Request shall have the meanings set forth for such terms in the Credit Agreement. All Section references herein shall refer to the Credit Agreement. This request is made by Strategic Realty Operating Partnership, L.P. on behalf of the Borrower in its role as Lead Borrower.
The Borrower hereby requests [check as applicable] a conversion of an existing Loan as provided below and/or a Loan under the Credit Agreement, in the amount of $
[minimum of $1,000,000 and in multiples of $100,000].
|
|
1.
|
Aggregate Commitment $
,000,000.00
|
$
|
|
2.
|
Borrowing Base Availability
|
$
|
|
3.
|
The amount outstanding under the Loans
|
$
|
|
4.
|
Available amount (the lesser of 1 or 2
minus
3)
|
|
|
5.
|
Less amount requested ($
)
|
[Exhibit E – Page 1]
$
|
|
6.
|
Amount remaining to be advanced under the Loans
|
The advance or conversion is to be made as follows:
$
|
|
1.
|
Amount of ABR Borrowing:
|
|
|
B.
|
Eurodollar B
orrowing.
|
$
|
|
1.
|
Amount of Eurodollar Borrowing:
|
$
|
|
2.
|
Amount of conversion of existing Loan to Eurodollar
Borrowing:
|
|
|
3.
|
Number of Eurodollar Borrowing(s) now in effect: [cannot exceed six (6)]
|
|
|
4.
|
Date of Eurodollar Rate Borrowing or conversion:
|
|
|
6.
|
Expiration date of current Interest Period as to this conversion:
|
Attached hereto is a Borrowing Base Certificate submitted in form of Exhibit G to the Credit Agreement.
The Borrower hereby represents and warrants that the amounts set forth above are true and correct, that the amount above requested has actually been incurred, that the representations and warranties contained in the Credit Agreement are true and correct as if made as of this date (except to the extent relating to a specific date), that Borrower has satisfied all conditions required to be satisfied, or such conditions have been waived by Agent, as of the date hereof to qualify for the Borrowing requested hereby, and that the Borrower has kept, observed, performed and fulfilled each and every one of its obligations under the Credit Agreement as of the date hereof [except as follows:
].
[Signature Page Follows]
Very truly yours,
STRATEGIC REALTY OPERATING
PARTNERSHIP, L.P.
, a Delaware limited partnership
|
|
By:
|
Strategic Realty Trust, Inc., a Maryland corporation, its General Partner
|
By:
Name:
Title:
EXHIBIT F
JOINDER AGREEMENT
JOINDER AGREEMENT (the
“
Agreem
e
nt”), dated as of
, 201_, made by
a
(the “
New Bo
rrower”) in favor of
KEYBANK NATIONAL ASSOCIATION, as Agent for the lenders party to the Credit Agreement referred to below (in such capacity, together with its successors in such capacity, the
“
Adm
inistrative
A
gent”).
WITNESSETH:
WHEREAS, Strategic Realty Operating Partnership, L.P., a Delaware limited partnership, SRT Secured Holdings, LLC, a Delaware limited liability company, SRT Secured Topaz, LLC, a Delaware limited liability company, SRT SF Retail I, LLC, a Delaware limited liability company and SRT LA Retail, LLC, a Delaware limited liability company (collectively, the
“
Borrower”), certain lenders (the
“
Lenders”), and the Agent are parties to that certain Second Amended and Restated Credit Agreement dated as of February 15, 2017 (as amended, modified, restated, or supplemented and in effect from time to time, the
“
Credit
Agreemen
t”).
WHEREAS, the Credit Agreement requires that the owner of any Real Property included in the Mortgaged Property Pool must join in and assume all obligations of the “Borrower” under the Loan Documents, and the New Borrower is the owner of Real Property to be included in the Mortgaged Property Pool.
NOW, THEREFORE, in consideration of the premises and the mutual agreements, representations and warranties herein set forth and for other good and valuable consideration, the New Borrower hereby agrees as follows:
1.
The New Borrower hereby becomes a party to the Loan Documents as a Borrower thereunder with the same force and effect as if originally named therein as a Borrower and, without limiting the generality of the foregoing, hereby irrevocably, absolutely, and unconditionally assumes and agrees, jointly and severally with each other Borrower, to timely and faithfully pay and perform all of the obligations of the Borrower under the Loan Documents. Any and all references to the term “Borrower” in the Credit Agreement, the Notes, the Other Loan Documents or in any other document or agreement executed and delivered, or to be executed and delivered, in connection therewith shall be deemed to be a reference to, and include, the New Borrower.
2.
The New Borrower hereby represents and warrants that each of the representations and warranties contained in Article III of the Credit Agreement are also made by it and are true and correct in all material respects on and as the date hereof (after giving effect to this Agreement) as if made on and as of such date.
3.
All capitalized terms not defined herein shall have the meaning ascribed to them in the Credit Agreement. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly executed and delivered as an instrument under seal as of the date first above written.
[INSERT SIGNATURE BLOCK OF NEW BORROWER]
By:
Name:
Title:
EXHIBIT G
BORROWING BASE CERTIFICATE
|
|
To:
|
KeyBank National Association, as Agent 225 Franklin Street, 18
th
Floor
|
Boston, Massachusetts 02110
Attention: Jane McGrath, Institutional Real Estate
Re: Strategic Realty Operating Partnership, L.P., SRT Secured Holdings, LLC - Borrowing Base Certificate
This Borrowing Base Certificate (the “
Certificate
”) is furnished pursuant to that certain Second Amended and Restated Revolving Credit Agreement dated as of February 15, 2017, by and among STRATEGIC REALTY OPERATING PARTNERSHIP, L.P., a Delaware limited partnership, SRT SECURED HOLDINGS, LLC, a Delaware limited liability company, the other Borrowers thereunder, (the “
Borrower
”), the Lenders party thereto, KEYBANK NATIONAL ASSOCIATION, a national banking association, as lender and agent (the “
Agent
”) for the Lenders, and KEYBANC CAPITAL MARKETS, INC., as Sole Lead Arranger (such Amended and Restated Revolving Credit Agreement as it may be amended, modified, supplemented, extended, renewed, or restated from time to time, the “
Credit Agreement
”). Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Credit Agreement. This Certificate is made by the undersigned in its role as Lead Borrower on behalf of Borrower.
The Borrower hereby CERTIFIES to Agent and the Lenders as follows:
The information set forth in
Schedule 1
hereto is in all material respects true, correct and complete, and has been prepared in accordance with the requirements of the Credit Agreement.
The Mortgaged Properties identified on, and the calculation of Borrowing Base Availability shown on,
Schedule 1
hereto comply with all applicable conditions, terms, warranties, representations and covenants set forth in the Credit Agreement.
As of the date hereof, the representations and warranties of the Borrowers contained in the Credit Agreement and the other Loan Documents are true and correct in all material respects.
As of the date hereof, no Default or Event of Default exists.
[Signature Page Follows]
STRATEGIC REALTY OPERATING
PARTNERSHIP, L.P.
, a Delaware limited partnership
By:
SRT SECURED HOLDINGS, LLC
, a Delaware
limited liability company By:
Schedule 1
Strategic Realty Operating Partnership, L.P. Borrowing Base Availability
As of:
|
|
|
|
|
|
|
|
|
Appraised
|
|
Cap Ex
|
|
Adjusted
|
Borrowing Base Pool Properties
|
SF
|
Value
|
% Leased
|
Reserve
|
NOI
|
NOI
|
|
|
|
|
|
|
|
Minimum Borrowing Base Pool Leasing
|
|
|
|
|
75%
|
Borrowing Base Availability: the lesser of
|
|
|
|
|
|
(a)
Facility Amount (Aggregate Commitments)
(b)
65% of Aggregate Appraised Value
(c)
Debt Service Test Amount
|
|
|
60,000,000
|
|
|
Debt Service Test Amount: Available Amount at 1.35X coverage of Implied Debt Service
Implied Debt Service: based on a 30‐year principal amortization schedule and interest at the greater of
Rate Debt Constant Amt at 1.35X
(a) 10‐yr Treasury Rate + 2.50%
(b)
6.00% 6.00% 7.19%
Greater
|
|
(i)
|
Borrowing Base Availability
|
Current Loan Outstanding Letters of Credit Issued
Plus Draw Request/Minus Paydown
(ii) greater than (i)? N
Exhibit H
Form of SNDA
Recorded at the Request of and After Recording Return to:
Riemer & Braunstein LLP
7 Times Square, Suite 2506 New York, New York 10036
Attention: Ronald N. Braunstein, Esq.
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
Grantor #1 (Landlord): SRT [ ] Grantor #2 (Tenant):
Grantee (Agent): KEYBANK NATIONAL ASSOCIATION, as Agent, its successors
and assigns Abbreviated Legal Description:
Official Legal Description on
Exhibit A
Assessor’s Tax Parcel ID #
[NOTE: ONLY USE COVER PAGE IF SNDA IS BEING RECORDED, IN WHICH CASE CONFORM TO LOCAL RECORDING REQUIREMENTS FOR MARGINS, BLANK SPACES, ETC.]
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(this “
Agreement
”) is made as of the
day of
201
by and between KEYBANK
NATIONAL ASSOCIATION, a national banking association, having an address at 225 Franklin Street, 18
th
Floor, Boston, MA 02110 (“
Agent
”), and
, a
, having an address at: (“
Tenant
”).
RECITALS:
A.
Tenant is the holder of a leasehold estate in a portion of those certain premises located
in the City of
, the County of
, State of
, and more
particularly described on Exhibit A attached hereto and made a part hereof (the “
Property
”) under
and pursuant to the provisions of a certain lease dated
between
SRT
, LLC, a limited liability company organized
under the laws of the State of Delaware, having its principal place of business at 400 South El Camino Real, Suite 1100, San Mateo, California 94402 as landlord (“
Landlord
”) and Tenant, as tenant (the “
Lease
”); and
B.
Agent and other lenders (“
Lenders
”) have made a loan or are about to make a loan to Landlord and other borrowers (collectively, the “
Borrowers
”), evidenced or to be evidenced by certain revolving credit notes made payable by the Borrowers to the order of KeyBank National Association and other Lenders (the “
Notes
”) and secured or to be secured by a [Mortgage/Deed of Trust], Assignment of Rents, Security Agreement and Fixture Filing (including, without limitation, all amendments, renewals, increases, modifications, spreaders, consolidations, replacements and extensions thereof from time to time, the “
Security Instrument
”) granted by Landlord to or for the benefit of Agent and encumbering the Property; and
C.
Landlord is, or is about to become, the owner in fee simple of the Property and the landlord under the Lease; and
D.
Tenant has agreed to subordinate the Lease to the Security Instrument and to the lien thereof, and Agent has agreed to grant non-disturbance to Tenant under the Lease on the terms and conditions hereinafter set forth.
AGREEMENT:
For good and valuable consideration, Tenant and Agent agree as follows:
1.
SUBORDINATION
. The Lease and all of the terms, covenants and provisions thereof and all rights, remedies and options of Tenant thereunder are and shall at all times continue to be subject and subordinate in all respects to the terms, covenants and provisions of the Security Instrument (including, without limitation, any and all amendments, renewals, increases, modifications, spreaders, consolidations, replacements and extensions thereof from time to time) and to the lien thereof, and to all sums secured thereby and advances made thereunder from time to time,
with the same force and effect as if the Security Instrument had been executed, delivered and recorded, and all advances made, prior to the execution and delivery of the Lease.
2.
NON-DISTURBANCE
. If any action or proceeding is commenced by Agent for the foreclosure of the Security Instrument or the sale of the Property, Tenant shall not be named as a party therein unless such joinder shall be required by law,
provided
,
however
, such joinder shall not result in the termination of the Lease or disturb the Tenant’s possession or use of the premises demised thereunder, and the sale of the Property in any such action or proceeding and the exercise by Agent of any of its other rights under the Notes or the Security Instrument shall be made subject to all rights of Tenant under the Lease,
provided
that at the time of the commencement of any such action or proceeding or at the time of any such sale or exercise of any such other rights Tenant shall not be in default under any of the terms, covenants or conditions of the Lease or of this Agreement on Tenant’s part to be observed or performed beyond any applicable notice or grace period.
(a)
If Agent or any other Person (including any nominee or designee of Agent and/or Lenders) shall become the owner of the Property by reason of the foreclosure of the Security Instrument or the acceptance of a deed or assignment in lieu of foreclosure or by reason of any other enforcement of the Security Instrument (Agent or such other Person being hereinafter referred as “
Purchaser
”), and the conditions set forth in Section 2 above have been met at the time Purchaser becomes owner of the Property, the Lease shall not be terminated or affected thereby but shall continue in full force and effect as a direct lease between Purchaser (as to each Purchaser, only during the period of its ownership) and Tenant upon all of the terms, covenants and conditions set forth in the Lease and, in that event, Tenant agrees to attorn to Purchaser and Purchaser by virtue of such acquisition of the Property shall be deemed to have agreed to accept such attornment, whereupon, subject to the observance and performance by Tenant of all the terms, covenants and conditions of the Lease on the part of Tenant to be observed and performed, Purchaser shall recognize the leasehold estate of Tenant under all of the terms, covenants and conditions of the Lease for the remaining balance of the term with the same force and effect as if Purchaser were the lessor under the Lease subject to the terms of Section 4 of this Agreement;
provided
,
however
, that Purchaser shall not be:
(i)
liable for any breach or default or other act or omission of, any prior landlord (any such prior landlord, including Landlord and any successor
landlord, being hereinafter referred to as a “
Prior Landlord
”), or obligations accruing under the Lease prior to Purchaser’s actual ownership of the Property;
(ii)
subject to any offsets, defenses, abatements or counterclaims which shall have accrued in favor of Tenant against any Prior Landlord prior to the date upon which Purchaser shall become the owner of the Property;
(iii)
liable for the return of rental security deposits, if any, paid by Tenant to any Prior Landlord in accordance with the Lease unless such sums are actually received by Purchaser;
(iv)
bound by any payment of rents, additional rents or other sums which Tenant may have paid more than one (1) month in advance to any Prior Landlord unless (x) such sums are actually received by Purchaser or (y) such prepayment shall have been expressly approved of in writing by Purchaser;
(v)
bound by (x) any agreement (1) terminating the Lease, (2) amending or modifying the Lease, or waving any terms of the Lease, or (3) transferring to the Landlord costs and expenses previously paid or payable by Tenant under the Lease, or (y) any voluntary surrender of the premises demised under the Lease, in any of the foregoing cases made without Agent’s or Purchaser’s prior written consent prior to the time Purchaser succeeded to Landlord’s interest;
(vi)
responsible for the making of repairs in or to the Property in the case of damage or destruction to the Property or any part thereof due to fire or other casualty or by reason of condemnation unless Purchaser is obligated under the Lease to make such repairs and Purchaser receives insurance proceeds or condemnation awards sufficient to finance the completion of such repairs;
(vii)
liable for or incur any obligation with respect to any breach of warranties or representations of any nature under the Lease or otherwise, including, without limitation, any warranties or representations respecting use, compliance with zoning, Landlord’s or Purchaser’s title, Landlord’s authority, habitability and/or fitness for any purpose, or possession;
(viii)
liable for or incur any obligation with respect to the construction of the Property or any improvements of the demised premises or the Property, or for any tenant allowances; or
(ix)
except any assignment or sublet permitted under the Lease as to which Landlord’s consent is not required, bound by any assignment or sublet, made without Agent’s prior written consent.
(b)
Each Purchaser, upon a further transfer of the Property and the Lease, shall automatically be released from any and all obligations and liabilities as the lessor under the Lease accruing or arising after the date of such transfer.
(c)
Notwithstanding anything in this Agreement or in the Lease to the contrary, Purchaser shall not be personally liable for the payment of any claim hereunder or under the Lease, or for the performance of any obligation, agreement, contribution, or term to be performed or observed by Purchaser hereunder or under the Lease, such Purchaser’s liability being limited to its then interest, if any, in the Property, and Tenant shall look exclusively to such interest, if any, of Purchaser in the Property for the payment and discharge of any obligations imposed upon Purchaser hereunder or under the Lease, and Tenant shall not collect or attempt to collect any amounts out of any other assets of Purchaser or any of its affiliates. Purchaser shall under no circumstances be liable for any incidental, consequential, punitive, or exemplary damages.
(d)
Tenant agrees to execute and deliver at any time and from time to time, upon the request of any holder(s) of any of the indebtedness or other obligations secured by the Security Instrument, or upon request of any Purchaser, (i) any instrument or certificate which, in the reasonable judgment of such holder(s) or such Purchaser, may be necessary or appropriate in any proceeding or otherwise to evidence Tenant’s attornment as provided herein, and (ii) an instrument or certificate regarding the status of the Lease, consisting of statements, if true (and if not true, specifying in what respect), (A) that the Lease is in full force and effect, (B) the date through which rentals have been paid, (C) the duration and date of the commencement of the term of the Lease, (D) the nature of any amendments or modifications to the Lease, (E) that no default, or state of facts, which with the passage of time, or notice, or both, would constitute a default, exists on the part of either party to the Lease (to the best of Tenant’s knowledge with respect to Landlord), and (F) the dates on which payments of additional rent, if any, are due under the Lease.
4.
NOTICE TO TENANT
. After notice is given to Tenant by Agent that the Landlord is in default under the Notes and the Security Instrument and that the rentals under the Lease should be paid to Agent pursuant to the terms of the assignment of leases and rents executed and delivered by Landlord to Agent in connection therewith (or as may be included within the Security Instrument), Tenant shall thereafter pay to Agent, or as directed by the Agent, all rentals and all other monies due or to become due to Landlord under the Lease and Landlord hereby expressly authorizes Tenant to make such payments to Agent and hereby releases and discharges Tenant from any liability to Landlord on account of any such payments.
5.
NOTICE TO AGENT AND RIGHT TO CURE
. Tenant agrees to notify Agent by certified mail, return receipt requested, with postage prepaid, of any default on the part of Landlord under the Lease which would (with the giving of notice to Tenant, the passage of time, or both) entitle Tenant to cancel or terminate the Lease, to abate or reduce the rent payable thereunder, or to seek monetary damages against Landlord, at the same time as Tenant provides Landlord with any such notice (such notice, a “
Default Notice
”). Notwithstanding any provisions of the Lease, no cancellation or termination of the Lease and no abatement or reduction of the rent payable thereunder shall be effective unless Agent has received a Default Notice and has failed to cure the subject default within thirty (30) days after the expiration of the time period provided in the Lease for Landlord to cure such default;
provided
that in the event
Agent cannot commence such cure without possession and control of the Property, or such default is not otherwise reasonably susceptible of cure within the foregoing period, Agent’s cure period shall be extended for such additional time as Agent may reasonably require to cure such default, if, during Agent’s initial cure period, Agent commences and diligently pursues curative action (including, if possession and control of the Property is required, efforts to either obtain possession and control of the Property and thereafter to diligently prosecute such cure to completion cure, or to obtain the appointment of a receiver to diligently prosecute such cure to completion). If such default is not susceptible of cure by Agent and Agent obtains possession of the Property, such default shall be waived. Notwithstanding the foregoing, Agent shall have no obligation to cure (and shall have no liability or obligation for not curing) any breach or default by Landlord, except to the extent that Agent agrees or undertakes otherwise in writing.
6.
NOTICES
. Any notice, demand, request or other communication which any party hereto may be required or may desire to give hereunder shall be in writing and shall be deemed to
have been properly given (a) if hand delivered, when delivered; (b) if mailed by United States certified mail (postage prepaid, return receipt requested), on the Business Day on which delivery is first attempted; (c) if by Federal Express or other reliable overnight courier service, on the next Business Day after delivered to such courier service; or (d) if by telecopier on the day of transmission so long as a copy is sent on the same day by overnight courier as set forth below (and
provided
that, if the day of transmission is not a Business Day, or if the time of transmission is after the close of the recipient’s business on such day, such notice shall be deemed received on the next Business Day, subject to the preceding requirement of the delivery of a copy), addressed as follows:
If to Tenant:
Attention:
Telecopier no.:
|
|
If to Agent:
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KeyBank National Association 225 Franklin Street, 18
th
Floor Boston, MA 02110
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Attention: Jane E. McGrath Telecopier no.: (617) 385-6292
or addressed as such party may from time to time designate by written notice to the other parties (which shall only be effective ten (10) days after actual receipt). For purposes of this Section 6, the term “
Business Day
” shall mean a day on which commercial banks are not authorized or required by law to close in the state where the Property is located. Either party by notice to the other may designate additional or different addresses for subsequent notices or communications.
7.
SUCCESSORS AND ASSIGNS
. This Agreement shall be binding upon and inure to the benefit of Agent, Lenders, Tenant and Purchaser and their respective successors and assigns. Reference to successors and assigns of Tenant shall not constitute a consent by Landlord to an assignment or sublet by Tenant.
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8.
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GOVERNING LAW
. This Agreement shall be deemed to be a contract entered into
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pursuant to the laws of [
] and shall in all respects be governed, construed, applied and
enforced in accordance with the laws of the State of [ _].
9.
MISCELLANEOUS
. This Agreement may not be modified in any manner or terminated except by an instrument in writing executed by the parties hereto. If any term, covenant or condition of this Agreement is held to be invalid, illegal or unenforceable in any respect, this Agreement shall be construed without such provision. This Agreement may be executed in any number of duplicate originals and each duplicate original shall be deemed to be an original. This Agreement may be executed in several counterparts, each of which counterparts shall be deemed an original instrument and all of which together shall constitute a single Agreement. The failure of any party hereto to execute this Agreement, or any counterpart hereof, shall not relieve the other signatories from their obligations hereunder. Whenever the context may require, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural and vice versa.
(Signatures on next page)
IN WITNESS WHEREOF, Agent and Tenant have duly executed this Agreement as an instrument under seal as of the date first above written.
AGENT:
KEYBANK NATIONAL ASSOCIATION
, a
national banking association, as Agent
By:
Name:
Its:
TENANT:
By: Name: Its:
The undersigned hereby joins in the execution of this Agreement in order to evidence its acceptance of, and agreement to, the provisions of Section 4 hereof.
BORROWER/LANDLORD:
[ADD APPLICABLE SIGNATURE BLOCK]
STATE OF [ ] COUNTY OF
[ADD STATE-CONFORMING ACKNOWLEDGEMENTS FOR EACH OF TENANT, AGENT AND BORROWER/LANDLORD]
Notary Public
Print Name
My Commission Expires
[SEAL]
EXHIBIT A LEGAL DESCRIPTION
Exhibit I
Form of Estoppel
TENANT:
PROJECT:
TENANT ESTOPPEL CERTIFICATE
To: KeyBank National Association, as Agent, its successors and assigns
Re: Lease Pertaining to
(the
“Project”
)
Ladies and Gentlemen:
The undersigned, as tenant
(
“Ten
a
nt”), hereby states, declares and certifies as follows:
1.
Tenant is the lessee under that certain lease (the “
L
ease”) pertaining to the Project
which is dated .
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2.
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The name of the current landlord under the Lease is: .
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3.
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The Lease is for the following portion of the Project
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(the
“
Dem
ised Premis
es”) (if the entire Project, so state):
4.
A true and complete copy of the Lease, including, if any, all amendments and modifications, is attached hereto as
Exhibit A
. There are no side letters or other arrangements relating to the Demised Premises or the Project.
5.
The Lease has not been modified or amended except by the following documents which are included as part of Exhibit
A
attached hereto (if none, so state):
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6.
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The initial term of the Lease commenced on
,
20
and shall expire on
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, 20 , unless sooner terminated in accordance with the terms of the Lease. Tenant has no option to renew or extend the term of the Lease, except as follows (if none, so state):
7.
The Lease, as it may have been modified or amended, contains the entire agreement of Landlord and Tenant with respect to the Demised Premises, is in full force and effect according to its terms, and is the valid and binding obligation of Tenant.
8.
As of the date hereof, Tenant is occupying the Demised Premises, is fully obligated to pay and is paying rent other charges on a current basis under the Lease.
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9.
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The minimum monthly or base rent currently being paid by Tenant for the Demised
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Premises pursuant to the terms of the Lease is $
per month.
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10.
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Percentage rent (“Percentage Rent”), if any, due under the Lease has been paid
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through
and the amount of Percentage Rent for the last period paid was $ .
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11.
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Common area maintenance, taxes, insurance and other charges (the “Reimbursables”), if any, due under the Lease have been paid through .
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12.
The Lease does not provide for any payments (including, without limitation, rent credits) by Landlord to Tenant which are presently due and payable, or which are due and payable in the future.
13.
Tenant has accepted possession of the Demised Premises, and all items of an executory nature relating thereto to be performed by Landlord have been completed, including, but not limited to, completion of construction thereof (and all other improvements required under the Lease) in accordance with the terms of the Lease and within the time periods set forth in the Lease. Landlord has paid in full any required contribution towards work to be performed by Tenant under the Lease, except as follows (if none, so state):
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14.
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The Demised Premises shall be expanded by the addition of the following space on
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the dates hereinafter indicated (if none, so state): .
15.
No default or event or state of facts that with the passage of time, the giving of notice, or both would constitute a default (hereinafter collectively a
“
Default”) on the part of Tenant exists under the Lease in the performance of the terms, covenants and conditions of the Lease required to be performed on the part of Tenant.
16.
To the best of Tenant’s knowledge, no Default on the part of Landlord exists under the Lease in the performance of the terms, covenants and conditions of the Lease required to be performed on the part of Landlord.
17.
Tenant has no options to extend the Lease other than that provided for in the Lease, nor does the Tenant have the option to lease additional space at the Project, or to purchase the Project, and the Tenant has no right of refusal with respect to leasing additional space or with respect to purchasing the Project.
18.
Tenant has not assigned, sublet, transferred, hypothecated or otherwise disposed of its interest in the Lease and/or the Premises, or any part thereof.
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19.
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Neither the Lease nor any obligations of Tenant thereunder have been guaranteed by any person or entity, except as follows (if none, so state): .
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20.
No hazardous substances are being generated, used, handled, stored or disposed of by Tenant on the Demised Premises or on the Project in violation of any applicable laws, rules or regulations or the terms of the Lease.
21.
No rentals are accrued and unpaid under the Lease, except for Percentage Rent, if any, or Reimbursables, if any, which are not yet due and payable.
22.
No prepayments of rentals due under the Lease have been made for more than one month in advance. No security or similar deposit has been made under the Lease, except for the sum
of $
which has been deposited by Tenant with Landlord pursuant to the terms of the Lease.
23.
Tenant has no defense as to its obligations under the Lease and asserts no setoff, claim or counterclaim against Landlord.
24.
Tenant has not received notice of any assignment, hypothecation, mortgage or pledge of Landlord’s interest in the Lease or the rents or other amounts payable thereunder, except as follows (if none, so state): .
25.
There are no actions, whether voluntary or otherwise, pending or threatened against Tenant, or any guarantor of Tenant’s obligations under the Lease, pursuant to the bankruptcy or insolvency laws of the United States or any similar state laws.
26.
Tenant understands and acknowledges that you have made or are about to make a loan to Landlord and have received or will receive as part of the security for such loan (i) a Mortgage [Deed of Trust] encumbering Landlord’s fee interest in the Project and the rents, issues and profits of the Lease (the
“Security Instrument”
), and (ii) an Assignment of Leases and Rents, which may be incorporated within and as part of the Security Instrument (“
Assignment of Leases
”) which affects the Lease, and that you (and persons or entities to whom the Security Instrument and/or Assignment of Leases may subsequently be assigned) are relying upon the representations and warranties contained herein in making such loan. Further, Tenant has received notice that the Lease and the rent and all other sums due thereunder have been assigned or are to be assigned to you as security for the aforesaid loan secured by the Security Instrument. In the event that you (or any person or entity to whom the Security Instrument and/or Assignment of Leases may subsequently be assigned) notify Tenant of a default under the Security Instrument or Assignment of Leases and demand that Tenant pay its rent and all other sums due under the Lease to you (or such future lender), Tenant shall honor such demand without inquiry and pay its rent and all other sums due under the Lease directly to you (or such future lender) or as otherwise required pursuant to such notice and shall not thereby incur any obligation or liability to Landlord.
27.
The undersigned is authorized to execute this Tenant Estoppel Certificate on behalf of Tenant.
28.
This Tenant Estoppel Certificate may be executed in any number of separate counterparts, each of which shall be deemed an original, but all of which, collectively and separately, shall constitute one and the same instrument.
Very truly yours,
TENANT:
,
a
By
Name:
Its:
Landlord, as landlord under the Lease and mortgagor or grantor under the Security Instrument and Assignment of Leases, hereby acknowledges and agrees for itself and its heirs, successors and assigns, that in the event of a default under the Security Instrument and/or Assignment of Leases, Tenant may pay all rent and all other sums due under the Lease to KeyBank National Association or to such person or entity to whom KeyBank National Association (or subsequent holder of the Security Instrument) may assign the Security Instrument or as directed by them, without incurring any obligation or liability to Landlord as provided in this Tenant Estoppel Certificate, the Security Instrument, the Assignment of Leases or any other document signed by Landlord.
LANDLORD:
a
By:
Name:
Title: