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IPC Alternative Real Estate Income Trust, Inc.
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10-K
Mar 18, 4:12 PM ET
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IPC Alternative Real Estate Income Trust, Inc. 10-K
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Contents
111
I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1. Definitions.
Section 1.2. Principles of Construction. Unless otherwise specified, (i) all references to sections and schedules are to those in this Agreement, (ii) the words “hereof,” “herein” and “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision, (iii) all definitions are equally applicable to the singular and plural forms of the terms defined, (iv) the word “including” means “including but not limited to,”.
Section 1.3. Index of Other Definitions. An index of other terms which are defined in this Agreement or in other Loan Documents is set forth on Schedule 1.
Section 1.4. Administrative Agent’s Discretion. Whenever pursuant to this Agreement Administrative Agent exercises any right given to it to approve or disapprove, or any arrangement or term is to be satisfactory to Administrative Agent, the decision of Administrative Agent to approve or disapprove or to decide whether arrangements or terms are satisfactory or not satisfactory shall, except as is otherwise specifically provided herein, and provided no Default or Event of Default then exists, be in the reasonable discretion of Administrative Agent and shall be final and conclusive.
II. THE LOAN
Section 2.1. The Loan.
Section 2.2. Interest Rate.
Section 2.3. Loan Payments.
Section 2.4. Prepayments. The Loan is pre-payable at par (in whole but not in part) at any time subject to three (3) Business Days’ written notice to Administrative Agent provided that if Borrower prepays the Loan prior to the third (3rd) anniversary of the Closing Date (whether by voluntary prepayment by Borrower, by reason of the occurrence of an Event of Default, acceleration of the Loan or otherwise), Borrower shall be required to pay (a) a prepayment premium (the “Prepayment Fee”) equal to (i) 1.0% of the amount prepaid if the prepayment is made prior to the first (1st) anniversary of the Closing Date, (ii) 0.5% of the amount prepaid if the prepayment is made on or after the first (1st) anniversary of Closing Date and before the second (2nd) anniversary of the Closing Date, and (iii) 0.25% of the amount prepaid if the prepayment is made on or after the second anniversary of Closing Date and before the third (3rd) anniversary of the Closing Date, and (b) all hedging products breakage costs; provided that with the exception of hedging products breakage costs, no prepayment premium shall be due with respect to any prepayment in whole or in part as a result of Administrative Agent’s application of Net Property Proceeds or Net Condemnation Proceeds.
Section 2.5. Substitution of Lenders. In the event (a) Borrower receives a claim from any Lender for compensation under Section 2.3.6 or Section 2.3.8, (b) any Lender is then a Defaulting Lender, or (c) a Lender fails to consent to an amendment or waiver requested under Section 12.4 at a time when the Required Lenders have approved such amendment or waiver (any such Lender referred to in clause (a), (b), or (c) above being hereinafter referred to as an “Affected Lender”), Borrower may, in addition to any other rights Borrower may have hereunder or under applicable law, require, at its expense, any such Affected Lender to assign, at par, without recourse, all of its interest, rights (other than its existing rights to payments pursuant to Section 2.3.6 or Section 2.3.8), and obligations hereunder (including all of its Commitments and the Loan and other amounts at any time owing to it hereunder and the other Loan Documents) to an Eligible Assignee specified by Borrower that shall assume such obligations, provided that (i) such assignment shall not conflict with or violate any law, rule or regulation or order of any court or other Governmental Authority, (ii) Borrower shall have paid to the Affected Lender all monies (together with amounts due such Affected Lender under Section 2.3.7 as if the portion of the Loan owing to it were prepaid rather than assigned) other than such principal owing to it hereunder, and the assignee Lender shall have paid to the Affected Lender the principal portion of the Loan owing to it hereunder; provided however, that in the case of Borrower’s replacement of a Defaulting Lender for failure to fund its Percentage of the Loan hereunder, the assignee or Borrower, as the case may be, shall holdback from such amounts payable to such Defaulting Lender and pay directly to Administrative Agent, any payments due to Administrative Agent or the Non-Defaulting Lenders by Defaulting Lender under this Agreement, (iii) the assignment is entered into in accordance with, and subject to the consents required by, Section 9.2 (provided any assignment fees and reimbursable expenses due thereunder shall be paid by Borrower), and (iv) in the case of any such assignment resulting from a claim for payments required to be made pursuant to Section 2.3.6 or compensation under Section 2.3.8, such assignment will result in a reduction in such payments or compensation. 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 Borrower to require such assignment and delegation cease to apply.
Section 2.6. Defaulting Lenders. Anything contained herein to the contrary notwithstanding, in the event that any Lender at any time is a Defaulting Lender, then the following provisions shall apply for so long as the Defaulting Lender Period exists with respect to such Defaulting Lender:
Section 2.7. Lending Offices. Each Lender may, at its option, elect to make its portion of the Loan hereunder at the branch, office or affiliate specified on the appropriate signature page hereof (each a “Lending Office”) for each type of Loan available hereunder or at such other of its branches, offices or affiliates as it may from time to time elect and designate in a written notice to Borrower and the Administrative Agent. To the extent reasonably possible, a Lender shall designate an alternative branch or funding office with respect to its LIBOR Rate Loans to reduce any liability of Borrower to such Lender under Section 2.3.8 or to avoid the unavailability of LIBOR Rate Loans under Section 2.2.5, so long as such designation is not otherwise disadvantageous to the Lender.
Section 2.8. Release of Individual Properties. Administrative Agent and Lenders will release of record (any such release, a “Partial Release”) an Individual Property from the Lien of the applicable Security Instrument and other Loan Documents in connection with a Bona Fide Third Party Sale of such Individual Property, upon Borrower’s request and satisfaction of all the following conditions:
Section 2.9. Substitution of Individual Properties. In connection with a Partial Release pursuant to and satisfying the conditions set forth in Section 2.8, Borrower may replace an Individual Property with a new medical office property (the “Replacement Individual Property”) as collateral for the Loan (the “Partial Substitution”), subject to the following conditions:
Section 2.10. Interest Rate Protection Agreement. Borrower shall, or shall cause the Holdings Borrower to, enter into a Swap Agreement and/or an Interest Rate Cap Agreement, either of which chosen by Borrower, in its sole discretion, in accordance with the terms and conditions set forth below as applicable.
Section 2.11. Replacement of Guarantor. Borrower’s shall have the right to request a replacement of IPC with the Inland Fund as the “Guarantor” under the Guaranty and the Environmental Indemnity, which request shall be granted by Administrative Agent and Lenders subject to satisfaction of the following conditions: (i) no Default or Event of Default shall exist at the time of such request or the proposed effective date of such replacement, (ii) the Inland Fund shall satisfy the Guarantor Financial Covenants, as evidenced by a Compliance Certificate delivered to and approved by Administrative Agent, together with such additional supporting information requested by Administrative Agent to support such determination of compliance with the Guarantor Financial Covenants, and (iii) the Inland Fund, as Guarantor, shall execute and deliver to Administrative Agent for the benefit of the Lenders, the Replacement Third Party Agreements. Upon such replacement of IPC as Guarantor as set forth in this Section 2.11, Administrative Agent, on behalf of itself and the Lenders, shall execute and deliver to IPC a release in form reasonably acceptable to IPC and Administrative Agent, releasing IPC from all liabilities under the Guaranty and the Environmental Indemnity to the extent arising or accruing from and after the effective date of the Replacement Third Party Agreements executed and delivered by the Fund.
III. REPRESENTATIONS AND WARRANTIES
Section 3.1. Borrower Representations. Borrower hereby represents and warrants to Administrative Agent and the Lenders as follows:
Section 3.2. Survival of Representations. Borrower agrees that all of the representations and warranties set forth in Section 3.1 and elsewhere in this Agreement are true as of the date hereof and, except for matters which have been disclosed by Borrower and approved by Administrative Agent in writing, at all times thereafter. Notwithstanding the foregoing, any representation and warranty which is by its express terms made as of a specific date shall only be deemed made as of said date. All representations and warranties made in this Agreement or any other Loan Document or in any certificate or other document delivered to Administrative Agent and Lenders pursuant to or in connection with this Agreement shall be deemed to have been relied upon by Administrative Agent and Lenders notwithstanding any investigation heretofore or hereafter made by Administrative Agent and Lenders or on their behalf.
IV. BORROWER COVENANTS
Section 4.1. Borrower Affirmative Covenants. Borrower hereby covenants and agrees with Administrative Agent and the Lenders that:
Section 4.2. Borrower Negative Covenants. Borrower covenants and agrees with Administrative Agent and Lenders that:
V. INSURANCE, CASUALTY AND CONDEMNATION
Section 5.1. Insurance.
Section 5.2. Casualty and Condemnation.
VI. RESERVE FUNDS
Section 6.1. Tax Funds.
Section 6.2. Insurance Funds.
Section 6.3. Leasing Reserve. On the Closing Date, Borrower shall deposit in a reserve with Administrative Agent the amount of $1,200,000.00 (the “Leasing Reserve”). So long as no Event of Default exists, the funds contained in the Leasing Reserve shall be utilized to pay for or reimburse Borrower solely for Approved Leasing Costs incurred under any Cedar Park Replacement Lease. Administrative Agent shall pay for or reimburse Borrower from the Leasing Reserve for the actual Approved Leasing Costs incurred pursuant to a Cedar Park Replacement Lease upon Borrower’s providing Administrative Agent with paid receipts, lien waivers, a copy of the Cedar Park Replacement Lease, a copy of the brokerage agreement detailing any commission to be paid and/or the construction budget (detailing the estimated costs and the nature of the tenant improvements), as applicable, and other documentation deemed reasonably necessary by Administrative Agent, with minimum draws of $25,000.00 until the final draw, which draws shall occur no more frequently than once per month.
Section 6.4. Application of Reserve Funds. During the existence of an Event of Default, Administrative Agent, at its option, may withdraw funds from the reserves and escrows established pursuant to this Article VI (the “Reserve Funds”) and apply the Reserve Funds to the items for which the Reserve Funds were established or to payment of the Debt in such order, proportion and priority as Administrative Agent may determine in its sole discretion. Administrative Agent’s right to withdraw and apply the Reserve Funds shall be in addition to all other rights and remedies provided to Administrative Agent under the Loan Documents. Notwithstanding anything to the contrary herein, in no event shall Administrative Agent be obligated to disburse funds from a Reserve Fund if an Event of Default exists.
Section 6.5. Security Interest in Reserve Funds.
VII. MANAGEMENT AGREEMENT
Section 7.1. The Management Arrangement. Borrower shall cause Manager to manage the Property in accordance with the Management Agreement. Borrower shall (i) diligently perform and observe all of the terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed and observed, (ii) promptly notify Administrative Agent of any notice to Borrower of any default by Borrower in the performance or observance of any of the terms, covenants or conditions of the Management Agreement on the part of Borrower to be performed and observed, and (iii) promptly deliver to Administrative Agent a copy of each business plan received by it under the Management Agreement. If Borrower shall default in the performance or observance of any material term, covenant or condition of the Management Agreement on the part of Borrower to be performed or observed, then, without limiting Administrative Agent’s other rights or remedies under this Agreement or the other Loan Documents, and without waiving or releasing Borrower from any of its obligations hereunder or under the Management Agreement, Administrative Agent shall have the right, but shall be under no obligation, to pay any sums and to perform any act as may be appropriate to cause all the material terms, covenants and conditions of the Management Agreement on the part of Borrower to be performed or observed.
Section 7.2. Prohibition Against Termination or Modification. Borrower shall not surrender, terminate, cancel, modify, renew or extend the Management Agreement, or enter into any other agreement relating to the management or operation of the Property with Manager or any other Person, or consent to the assignment by the Manager of its interest under the Management Agreement, in each case
without the express consent of Administrative Agent, which consent shall not be unreasonably withheld. If at any time Administrative Agent consents to the appointment of a new Manager, such new Manager and Borrower shall, as a condition of Administrative Agent’s consent, execute a subordination of the Management Agreement in the form then used by Administrative Agent.
Section 7.3. Replacement of Manager. Administrative Agent shall have the right to require Borrower to replace the Manager with a Person, which is not an Affiliate of Borrower, chosen by Borrower and reasonably approved by Administrative Agent in accordance with the provisions of Section 7.2 above, upon the occurrence of any one or more of the following events: (i) at any time during the existence of an Event of Default, (ii) if Manager shall be in default under the Management Agreement beyond any applicable notice and cure period, (iii) any “for cause” reason for termination of the Management Agreement pursuant to the terms thereof, including, without limitation, gross negligence, fraud, or willful misconduct, or (iv) the Manager becoming insolvent or a debtor in any bankruptcy or insolvency proceeding. Borrower’s failure to appoint an acceptable replacement manager within thirty (30) days after Administrative Agent’s request of Borrower to terminate the Management Agreement shall constitute an immediate Event of Default hereunder.
VIII. CASH MANAGEMENT
Section 8.1. Cash Management Arrangements. Borrower shall at all times cause all Rents to be transmitted directly by tenants of the Property into an Eligible Account (the “Central Account”) established and maintained by Holdings Borrower and reasonably approved by Administrative Agent, at Deposit Bank, as more fully described in the Deposit Account Control Agreement. Without in any way limiting the foregoing, if Borrower or Manager receive any Rents, then (i) such amounts shall be deemed to be collateral for the Loan and shall be held in trust for the benefit, and as the property, of Administrative Agent, (ii) such amounts shall not be commingled with any other funds or property of Borrower or Manager, and (iii) Borrower or Manager shall deposit such amounts into the Central Account within two (2) Business Days of receipt. Funds deposited into the Central Account shall be swept by the Deposit Bank on a daily basis into Borrower’s operating account at the Deposit Bank, unless a Cash Management Period is continuing, in which event such funds shall be swept on a daily basis into an Eligible Account at the Deposit Bank controlled by Administrative Agent (the “Deposit Account”) and applied and disbursed in accordance with this Agreement. Funds in the Deposit Account shall be invested at Administrative Agent’s discretion only in Permitted Investments. Administrative Agent will also establish subaccounts of the Deposit Account which shall at all times be Eligible Accounts (and may be ledger or book entry accounts and not actual accounts) (such subaccounts are referred to herein as “Subaccounts”). At all times, Administrative Agent may, in its discretion, elect to maintain the deposits and reserves required under this Agreement in an Eligible Account at a bank or other depository selected by Administrative Agent other than the Deposit Bank in which case, all references to the Deposit Account and any Subaccounts hereunder shall be deemed to include such Eligible Account and the subaccounts of any such Eligible Account and all funds in such Eligible Account shall be invested at Administrative Agent’s discretion only in Permitted Investments. The Central Account, Deposit Account and any Subaccount will be under the sole dominion and control of Administrative Agent, and except as set forth in the Deposit Account Control Agreement, Borrower shall have no right of withdrawal therefrom. Borrower shall pay for all expenses of opening and maintaining all of the above accounts.
Section 8.2. Security Deposits. Borrower shall keep and hold all security deposits under Leases in accordance with applicable Legal Requirements and at a separately designated account under Borrower’s control at the Deposit Bank so that the security deposits shall not be commingled with any other funds of Borrower (such account, the “Security Deposit Account”). After the occurrence of an Event of Default, Borrower shall, upon Administrative Agent’s request, if permitted by applicable Legal Requirements, turn over to Administrative Agent the security deposits (and any interest theretofore earned
thereon) under Leases, to be held by Administrative Agent in a Subaccount (the “Security Deposit Subaccount”) subject to the terms of the Leases. Security deposits held in the Security Deposit Subaccount will either be released by Administrative Agent within ten (10) Business Days after the delivery by Borrower to Administrative Agent of a request therefor together with such evidence as Administrative Agent may reasonably request that such security deposit is required to be returned to a tenant pursuant to the terms of a Lease, or may be applied as Rent pursuant to the rights of Borrower under the applicable Lease. Any letter of credit or other instrument that Borrower receives in lieu of a cash security deposit under any Lease entered into after the date hereof shall (i) be maintained in full force and effect in its full amount unless replaced by a cash deposit as hereinabove described and (ii) if permitted pursuant to any Legal Requirements, name Administrative Agent as payee or mortgagee thereunder (or at Administrative Agent’s option, be fully assignable to Administrative Agent).
Section 8.3. Cash Collateral Subaccount. If a Cash Management Period shall have commenced, then on the immediately succeeding Monthly Payment Date and on each Monthly Payment Date thereafter during the continuance of such Cash Management Period, all Available Cash shall be paid to Administrative Agent, which amounts shall be transferred by Administrative Agent into a Subaccount (the “Cash Collateral Subaccount”) as cash collateral for the Debt. Any funds in the Cash Collateral Account and not previously disbursed or applied shall be disbursed to Borrower upon the termination of such Cash Management Period. Administrative Agent on behalf of the Lenders shall have the right, but not the obligation, in its sole and absolute discretion, at any time after a Cash Management Period has existed for four consecutive calendar quarter testing periods, or during the continuance of an Event of Default, to apply all sums then on deposit in the Cash Collateral Subaccount to the Debt, in such order and in such manner as Administrative Agent shall elect in its sole and absolute discretion.
Section 8.4. Grant of Security Interest; Application of Funds. As security for payment of the Debt and the performance by Borrower of all other terms, conditions and provisions of the Loan Documents, Borrower hereby pledges and assigns to Administrative Agent for the benefit of the Lenders, and grants to Administrative Agent for the benefit of the Lenders a security interest in all of Borrower’s right, title and interest in and to all Rents and in and to all payments to or monies held in the Central Account, the Deposit Account, and all Subaccounts created pursuant to this Agreement (collectively, the “Cash Management Accounts”). Borrower hereby grants to Administrative Agent a continuing security interest in, and agrees to hold in trust for the benefit of Administrative Agent, all Rents in its possession prior to the (i) payment of such Rents to Administrative Agent or (ii) deposit of such Rents into the Central Account. Borrower shall not, without obtaining the prior written consent of Administrative Agent, further pledge, assign or grant any security interest in any Cash Management Account, or permit any Lien to attach thereto, or any levy to be made thereon, or any UCC Financing Statements to be filed with respect thereto, except those naming Administrative Agent as the secured party. This Agreement is, among other things, intended by the parties to be a security agreement for purposes of the UCC. During the existence of an Event of Default, Administrative Agent may apply any sums in any Cash Management Account to the Debt in any order and in any manner as Administrative Agent shall elect in Administrative Agent’s sole and absolute discretion without seeking the appointment of a receiver and without adversely affecting the rights of Administrative Agent to foreclose the Lien of the Security Instrument or exercise its other rights under the Loan Documents. Cash Management Accounts shall not constitute trust funds and may be commingled with other monies held by Administrative Agent. Provided no Event of Default is continuing, all interest which accrues on the funds in any Cash Management Account shall accrue for the benefit of Borrower and shall be taxable to Borrower and shall be added to and disbursed in the same manner and under the same conditions as the principal sum on which said interest accrued. Upon repayment in full of the Debt, all remaining funds in the Cash Management Accounts, if any, shall be promptly disbursed to Borrower.
Section 8.5. Property Cash Flow Allocation.
Section 8.6. Lease Termination Payments. Borrower shall pay to Administrative Agent for transfer into a Subaccount (the “Rollover Reserve Subaccount”) all Lease Termination Payments received by Borrower. Funds in the Rollover Reserve Subaccount shall be applied, at Administrative Agent’s election, towards either (a) subject to the rights of Borrower under the applicable Lease, rent arrearages under such Lease (or to cure any other tenant default under such Lease), (b) debt service shortfalls that may arise as a result of a termination of such Lease (and Borrower hereby authorizes Administrative Agent to disburse to the Lenders any such amounts without any request therefor by Borrower) or (c) funding any Tenant Costs approved by Administrative Agent which are anticipated to occur in connection with the re-tenanting of the space under the Lease that was the subject of such termination; provided, however if (i) the space under the applicable terminated Lease has been re-tenanted and all Tenant Costs incurred and relating thereto have been paid in full (with applicable paid invoices and lien waivers delivered to Administrative Agent), and (ii) the balance of funds in the Rollover Reserve Subaccount relating to such terminated Lease are not needed to pay debt service shortfalls that may arise as a result of the termination of such Lease, as reasonably determined by Administrative Agent, then provided that no Default or Event of Default exists, if requested in writing by Borrower, Administrative Agent shall pay the balance in the Rollover Reserve Subaccount relating to such terminated Lease to Borrower.
IX. SALE OF LOAN
Section 9.1. Participants.
Section 9.2. Assignments.
Section 9.3. Disclosure. Administrative Agent and Lenders may, in connection with any assignment or participation or proposed assignment or participation pursuant to Section 9.1 or Section 9.2, disclose to the assignee or participant or proposed assignee or participant, as the case may be, any information relating to Borrower, Guarantor or any of their respective entity Affiliates and not any individual Affiliates except as required for such assignee to conduct its customary “Know Your Customer” requirements or to any aspect of the Loan that has been furnished to Administrative Agent and Lenders by or on behalf of Borrower, Guarantor or any of their respective Affiliates. Prior to releasing any information, relating to the Loan to bank trade publications, Administrative Agent or any Lender, shall obtain the prior written approval of Borrower, which shall not be unreasonably withheld provided such information to consist of deal terms and other information customarily found in such publications.
Section 9.4. Cooperation. In connection with any such sale, assignment, transfer or participation of the Loan or any portion thereof pursuant to Section 9.1 or Section 9.2 (each such transaction, a “Syndication”), Borrower shall use all reasonable efforts and cooperate, and cause Guarantor to cooperate, fully and in good faith with any Lender and otherwise assist any Lender in consummating any such Syndication, including without limitation (a) providing and causing its advisors to provide Administrative Agent and any Lender upon request all information reasonably deemed necessary by Administrative Agent or such Lender to complete the Syndication, and to prepare an offering memorandum to be used in connection with the initial Syndication, and (b) executing and delivering such amendments to the Loan Documents as may be reasonably requested by Administrative Agent to effect a Syndication, provided that, except as otherwise agreed to by Borrower, no such amendment shall (1) result in any material economic change in the transaction, (2) result in any additional personal liability of Guarantor or any other Person, or (3) materially lessen the rights or materially increase the obligations or liabilities of
Borrower provided in the Loan Documents as of the date hereof.Provided that no Event of Default exists, Borrower shall not be responsible for payment of any of Administrative Agent’s or any Lender’s costs relating to a Syndication.
X. DEFAULTS
Section 10.1. Events of Default. Each of the following events shall constitute an event of default hereunder (each, an “Event of Default”):
Section 10.2. Remedies.
Section 10.3. Right to Cure Defaults. Administrative Agent may, but without any obligation to do so and without notice to or demand on Borrower and without releasing Borrower from any obligation hereunder or being deemed to have cured any Event of Default hereunder, make, do or perform any obligation of Borrower hereunder in such manner and to such extent as Administrative Agent may deem necessary. Administrative Agent is authorized to enter upon the Property for such purposes, or appear in, defend, or bring any action or proceeding to protect its interest in the Property for such purposes, and the cost and expense thereof (including reasonable attorneys’ fees to the extent permitted by law), with interest as provided in this Section 10.3, shall constitute a portion of the Debt and shall be due and payable to Administrative Agent upon demand. All such costs and expenses incurred by Administrative Agent in remedying such Event of Default or such failed payment or act or in appearing in, defending, or bringing any action or proceeding shall bear interest at the Default Rate, for the period after such cost or expense was incurred until the date of payment to Administrative Agent. All such costs and expenses incurred by Administrative Agent together with interest thereon calculated at the Default Rate shall be deemed to constitute a portion of the Debt and be secured by the liens, claims and security interests provided to Administrative Agent under the Loan Documents and shall be immediately due and payable upon demand by Administrative Agent therefor.
Section 10.4. Remedies Cumulative. The rights, powers and remedies of Administrative Agent under this Agreement shall be cumulative and not exclusive of any other right, power or remedy which Administrative Agent may have against Borrower pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Administrative Agent’s rights, powers and remedies may be pursued singly, concurrently or otherwise, at such time and in such order as Administrative Agent may determine in Administrative Agent’s sole discretion to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Administrative Agent permitted by law or as set forth herein or in any other Loan Document. No delay or omission to exercise any remedy, right or power accruing upon an Event of Default shall impair any such remedy, right or power or shall be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one Default or Event of Default with respect to Borrower shall not
be construed to be a waiver of any subsequent Default or Event of Default by Borrower or to impair any remedy, right or power consequent thereon.
XI. THE ADMINISTRATIVE AGENT
Section 11.1. Appointment and Authorization of Administrative Agent. Each Lender hereby appoints BMO Harris Bank N.A. as the Administrative Agent under the Loan Documents and hereby authorizes the Administrative Agent to (a) take such action as Administrative Agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto, and (b) exercise all other powers of Lenders as are not made subject to the consent of the Required Lenders or all of the Lenders pursuant to Section 12.4. The Lenders expressly agree that the Administrative Agent is not acting as a fiduciary of the Lenders in respect of the Loan Documents, Borrower or otherwise, and nothing herein or in any of the other Loan Documents shall result in any duties or obligations on the Administrative Agent or any of the Lenders except as expressly set forth herein.
Section 11.2. Administrative Agent and its Affiliates. The Administrative Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any other Lender and may exercise or refrain from exercising such rights and power as though it were not the Administrative Agent, and the Administrative Agent and its affiliates may accept deposits from, lend money to, and generally engage in any kind of business with Borrower or any Affiliate of Borrower as if it were not the Administrative Agent under the Loan Documents. The term “Lender” as used herein and in all other Loan Documents, unless the context otherwise clearly requires, includes the Administrative Agent in its individual capacity as a Lender (if applicable).
Section 11.3. Action by Administrative Agent. If the Administrative Agent receives from Borrower a written notice of an Event of Default, the Administrative Agent shall promptly give each of the Lenders written notice thereof. The obligations of the Administrative Agent under the Loan Documents are only those expressly set forth therein. Without limiting the generality of the foregoing, the Administrative Agent shall not be required to take any action hereunder with respect to any Default or Event of Default, except as expressly provided in Section 10.2.1. Upon the occurrence of an Event of Default, the Administrative Agent shall take such action to enforce its Lien on the Collateral and to preserve and protect the Collateral as may be directed by the Required Lenders. Unless and until the Required Lenders give such direction, the Administrative Agent may (but shall not be obligated to) take or refrain from exercising any right or remedy hereunder or under the Loan Documents as Administrative Agent deems appropriate and in the best interest of all the Lenders. In no event, however, shall the Administrative Agent be required to take any action in violation of applicable law or of any provision of any Loan Document, and the Administrative Agent shall in all cases be fully justified in failing or refusing to act hereunder or under any other Loan Document unless it first receives any further assurances of its indemnification from the Lenders that it may require, including prepayment of any related expenses and any other protection it requires against any and all costs, expenses, and liabilities which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall be entitled to assume that no Default or Event of Default exists unless notified in writing to the contrary by a Lender or Borrower. In all cases in which the Loan Documents do not require the Administrative Agent to take specific action, the Administrative Agent shall be fully justified in using its discretion in failing to take or in taking any action thereunder. Any instructions of the Required Lenders, or of any other group of Lenders called for under the specific provisions of the Loan Documents, shall be binding upon all the Lenders and the holders of the Debt.
Section 11.4. Consultation with Experts. The Administrative Agent may consult with legal counsel, independent public accountants, and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts.
Section 11.5. Liability of Administrative Agent; Credit Decision. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection with the Loan Documents: (i) with the consent or at the request of the Required Lenders or (ii) in the absence of its own gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify: (i) any statement, warranty or representation made in connection with this Agreement, any other Loan Document or any Loan Advance; (ii) the performance or observance of any of the covenants or agreements of Borrower contained herein or in any other Loan Document; (iii) the satisfaction of any condition specified in Schedule 2.1, except receipt of items required to be delivered to the Administrative Agent; or (iv) the validity, effectiveness, genuineness, enforceability, perfection, value, worth or collectability hereof or of any other Loan Document or of any other documents or writing furnished in connection with any Loan Document or of any Collateral; and the Administrative Agent makes no representation of any kind or character with respect to any such matter mentioned in this sentence. The Administrative Agent may execute any of its duties under any of the Loan Documents by or through employees, agents, and attorneys in fact and shall not be answerable to the Lenders, Borrower, or any other Person for the default or misconduct of any such agents or attorneys in fact selected with reasonable care. The Administrative Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, other document or statement (whether written or oral) believed by it to be genuine or to be sent by the proper party or parties. In particular and without limiting any of the foregoing, the Administrative Agent shall have no responsibility for confirming the accuracy of any certificate or other document or instrument received by it under the Loan Documents. The Administrative Agent may treat the payee of any Obligation as the holder thereof until written notice of transfer shall have been filed with the Administrative Agent signed by such payee in form satisfactory to the Administrative Agent. Each Lender acknowledges that it has independently and without reliance on the Administrative Agent or any other Lender, and based upon such information, investigations and inquiries as it deems appropriate, made its own credit analysis and decision to extend credit to Borrower in the manner set forth in the Loan Documents. It shall be the responsibility of each Lender to keep itself informed as to the creditworthiness of Borrower and the Administrative Agent shall have no liability to any Lender with respect thereto.
Section 11.6. Indemnity. The Lenders shall ratably, in accordance with their respective Percentages, indemnify and hold the Administrative Agent, and its directors, officers, employees, agents, and representatives harmless from and against any liabilities, losses, costs or expenses suffered or incurred by it under any Loan Document or in connection with the transactions contemplated thereby, regardless of when asserted or arising, except to the extent they are promptly reimbursed for the same by Borrower and except to the extent that any event giving rise to a claim was caused by the gross negligence or willful misconduct of the party seeking to be indemnified, as determined by a final, non-appealable judgment of a court of competent jurisdiction. The obligations of the Lenders under this Section shall survive termination of this Agreement. The Administrative Agent shall be entitled to offset amounts received for the account of a Lender under this Agreement against unpaid amounts due from such Lender to the Administrative Agent hereunder (whether as fundings of participations, indemnities or otherwise) but shall not be entitled to offset against amounts owed to the Administrative Agent by any Lender arising outside of this Agreement and the other Loan Documents.
Section 11.7. Resignation of Administrative Agent and Successor Administrative Agent. The Administrative Agent may resign at any time by giving written notice thereof to the Lenders and Borrower. Upon any such resignation of the Administrative Agent, the Required Lenders shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been
so appointed by the Required Lenders, and shall have accepted such appointment, within thirty (30) days after the retiring Administrative Agent’s giving of notice of resignation then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which may be any Lender hereunder or any commercial bank, or an Affiliate of a commercial bank, having an office in the United States of America and having a combined capital and surplus of at least $200,000,000. Any such successor Administrative Agent appointed by the resigning Administrative Agent shall serve only until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided above. Upon the acceptance of its appointment as the Administrative Agent hereunder, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights and duties of the retiring Administrative Agent under the Loan Documents, and the retiring Administrative Agent shall be discharged from its duties and obligations thereunder. After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Article XI and all protective provisions of the other Loan Documents shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent, but no successor Administrative Agent shall in any event be liable or responsible for any actions of its predecessor. If the Administrative Agent resigns and no successor is appointed, the rights and obligations of such Administrative Agent shall be automatically assumed by the Required Lenders, and (i) Borrower shall be directed to make all payments due each Lender hereunder directly to such Lender, and (ii) the Administrative Agent’s rights in the Collateral Documents shall be assigned without representation, recourse or warranty to the Lenders as their interests may appear.
Section 11.8. Hedging Liability Arrangements. By virtue of a Lender’s execution of this Agreement or an assignment agreement pursuant to Section 9.2, as the case may be, any Affiliate of such Lender with whom Borrower has entered into an agreement creating Rate Management Obligations shall be deemed a Lender party hereto for purposes of any reference in a Loan Document to the parties for whom the Administrative Agent is acting, it being understood and agreed that the rights and benefits of such Affiliate under the Loan Documents consist exclusively of such Affiliate’s right to share in payments and collections out of the Collateral and the Guaranty as more fully set forth in Section 2.3.4. Without limiting the generality of the foregoing, (i) each such Lender Affiliate shall, for the avoidance of doubt, be deemed to have agreed to the provisions of Section 11.12 and (ii) no such Lender Affiliate shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral). In connection with any such distribution of payments and collections, or any request for the release of the Guaranty and the Administrative Agent’s Liens in connection with the termination of the Commitments and the payment in full of the Debt, the Administrative Agent shall be entitled to assume no amounts are due to any Lender or its Affiliate with respect to Rate Management Obligations unless such Lender has notified the Administrative Agent in writing of the amount of any such liability owed to it or its Affiliate prior to such distribution or payment or release of Guaranty and Liens.
Section 11.9. Designation of Additional Agents. The Administrative Agent shall have the continuing right, for purposes hereof, at any time and from time to time to designate one or more of the Lenders (and/or its or their Affiliates) as “syndication agents,” “documentation agents,” “book runners,” “lead arrangers,” “arrangers,” or other designations for purposes hereto, but such designation shall have no substantive effect, and such Lenders and their Affiliates shall have no additional powers, duties or responsibilities as a result thereof.
Section 11.10. Releases; Acquisition and Transfer of Collateral.
Section 11.11. Authorization to Enter into, and Enforcement of, the Collateral Documents. The Administrative Agent is hereby irrevocably authorized by each of the Lenders to execute and deliver the Collateral Documents on behalf of each of the Lenders and their Affiliates and to take such action and exercise such powers under the Collateral Documents as the Administrative Agent considers appropriate, provided the Administrative Agent shall not amend the Collateral Documents unless such amendment is agreed to in writing by the Required Lenders. Each Lender acknowledges and agrees that it will be bound by the terms and conditions of the Collateral Documents upon the execution and delivery thereof by the Administrative Agent. Except as otherwise specifically provided for herein, no Lender (or its Affiliates), other than the Administrative Agent, shall have the right to institute any suit, action or proceeding in equity or at law for the foreclosure or other realization upon any Collateral or for the execution of any trust or power in respect of the Collateral or for the appointment of a receiver or for the enforcement of any other remedy under the Collateral Documents; it being understood and intended that no one or more of the Lenders (or their Affiliates) shall have any right in any manner whatsoever to affect, disturb or prejudice the Lien of the Administrative Agent (or any security trustee therefor) under the Collateral Documents by its or their action or to enforce any right thereunder, and that all proceedings at law or in equity shall be instituted, had, and maintained by the Administrative Agent (or its security trustee) in the manner provided for in the relevant Collateral Documents for the benefit of the Lenders and their Affiliates.
Section 11.12. Recovery of Erroneous Payments. Notwithstanding anything to the contrary in this Agreement, if at any time Administrative Agent determines (in its sole and absolute discretion) that it has made a payment hereunder in error to any Lender or any counterparty to a Rate Management Agreement, whether or not in respect of any portion of the Debt or Rate Management Obligations due and owing by Borrower at such time, where such payment is a Rescindable Amount, then in any such event, each such Person receiving a Rescindable Amount severally agrees to repay to Administrative Agent forthwith on demand the Rescindable Amount received by such Person in immediately available funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable Amount is received by it to but excluding the date of payment to Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation. Each Lender and each counterparty to a Rate Management Agreement receiving the benefits of any Loan Document irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another), “good consideration”, “change of position” or similar defenses (whether at law or in equity) to its obligation to return any Rescindable Amount. Administrative Agent shall inform each Lender and counterparty to a Rate Management Agreement that received a Rescindable Amount promptly upon determining that any payment made to such Person comprised, in whole or in part, a Rescindable Amount. Each Person’s obligations, agreements and waivers under this Section 11.12 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments, the repayment, satisfaction or discharge of the Debt (or any portion thereof) under any Loan Document and/or the repayment, satisfaction or discharge of any Rate Management Obligation (or any portion thereof).
XII. MISCELLANEOUS
Section 12.1. Successors and Assigns. All covenants, promises and agreements in this Agreement, by or on behalf of Borrower, shall inure to the benefit of the legal representatives, successors and assigns of Administrative Agent and Lenders. Borrower may not assign or otherwise transfer any of its rights or obligations under any Loan Document, and any such assignment shall be void.
Section 12.2. Governing Law. This Agreement shall be construed in accordance with and governed by the internal laws (and not the law of conflicts) of the State of Illinois.
Section 12.3. Jurisdiction, Venue and Consent of Process.
Section 12.4. Amendments. Subject to Section 2.2.6, (a) any provision of this Agreement or the other Loan Documents may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by (1) Borrower, (2) the Required Lenders or the Administrative Agent with the consent of the Required Lenders, and (3) if the rights or duties of the Administrative Agent are affected thereby, the Administration Agent; provided that, notwithstanding anything to the contrary in this Agreement, the approval or consent of all of the Lenders shall be required for any amendment or waiver of any of the terms or conditions of the Note, this Agreement or any of the other Loan Documents which would:
Section 12.5. Delay Not a Waiver. Neither any failure nor any delay on the part of Administrative Agent in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under any other Loan Document, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement or any other Loan Document, Administrative Agent shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount. Administrative Agent shall have the right to waive or reduce any time periods that Administrative Agent is entitled to under the Loan Documents in its sole and absolute discretion. Except as otherwise expressly provided herein, no notice to, or demand on Borrower, shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances.
Section 12.6. Notices.
Section 12.7. Trial by Jury. 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 OR THE TRANSACTIONS CONTEMPLATED HEREBY (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 12.8. Headings. The Article and/or Section headings and the Table of Contents in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.
Section 12.9. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement, and to that end, the provisions of this Agreement are declared to be severable.
Section 12.10. Preferences. Lenders shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder. To the extent Borrower makes a payment or payments to Lenders, which payment or proceeds
or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lenders.
Section 12.11. Waiver of Notice. Borrower hereby expressly waives the right to receive any notice from Administrative Agent or Lenders with respect to any matter for which this Agreement or the other Loan Documents do not specifically and expressly provide for the giving of notice by Administrative Agent or Lenders to Borrower.
Section 12.12. Expenses. Borrower shall pay (i) all reasonable out‑of‑pocket expenses incurred by Administrative Agent and its Affiliates, including appraisal fees, environmental report fees, inspection fees, closing costs, construction consultant charges, title and escrow charges, the cost of SyndTrak, Intralinks or a similar electronic workspace, and the reasonable fees, charges and disbursements of counsel for Administrative Agent, in connection with the preparation, execution and administration of this Agreement and the other Loan Documents, or any extensions, amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) during the existence of an Event of Default, in connection with the syndication of the Loan, and (iii) all out-of-pocket expenses incurred by Administrative Agent, including the fees, charges and disbursements of any counsel for Administrative Agent, in connection with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents, including its rights under this Section, or in connection with the Loan made hereunder, including all such out-of‑pocket expenses incurred during any workout, restructuring or negotiations in respect of the Loan.
Section 12.13. Indemnity. Borrower shall indemnify, defend and hold harmless Administrative Agent, each Lender and each of their respective Affiliates, and their respective successors and assigns, including the directors, officers, partners, members, shareholders, participants, employees, agents and advisors (each, an “Indemnified Party”), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including the fees and disbursements of counsel for an Indemnified Party), that may be imposed on, incurred by, or asserted against any Indemnified Party (collectively, the “Indemnified Liabilities”) in any manner, relating to or 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 under any other Loan Document, or the consummation of the Loan transaction or any other transactions contemplated hereby or under any other Loan Document, (ii) the Loan or the use of the proceeds therefrom, or (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnified Party is a party thereto; provided, however, that Borrower shall not have any obligation to any Indemnified Party hereunder to the extent that such Indemnified Liabilities arose from the gross negligence or willful misconduct of such Indemnified Party, as determined by a final, non-appealable judgment of a court of competent jurisdiction. Any amounts payable to any Indemnified Party by reason of the application of this paragraph shall be payable within five (5) days after demand therefor and shall bear interest at the Default Rate from the date loss or damage is sustained by any Indemnified Party until paid. The obligations and liabilities of Borrower under this Section 12.13 shall survive the term of the Loan and the exercise by Administrative Agent of any of its rights or remedies under the Loan Documents, including the acquisition of the Property by foreclosure or a conveyance in lieu of foreclosure.
Section 12.14. Schedules and Exhibits Incorporated. The Schedules and Exhibits annexed hereto are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof.
Section 12.15. No Joint Venture or Partnership; No Third-Party Beneficiaries; Waiver of Consequential Damages.
Section 12.16. Publicity. All news releases, publicity or advertising by Borrower, Administrative Agent, Lenders or their respective Affiliates through any media intended to reach the general public which refers to the Loan Documents or the Loan, Administrative Agent or any Lender, or a Loan purchaser, shall be subject to the prior approval of Administrative Agent and Borrower.
Section 12.17. Waiver of Offsets/Defenses/Counterclaims. Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by Administrative Agent or its agents or otherwise to offset any obligations to make the payments required by the Loan Documents. No failure by Administrative Agent or any Lender to perform any of its obligations hereunder shall be a valid defense to, or result in any offset against, any payments which Borrower is obligated to make under any of the Loan Documents.
Section 12.18. Conflict; Construction of Documents; Reliance. In the event of any conflict between the provisions of this Agreement and any of the other Loan Documents, the provisions of this Agreement shall control. The parties hereto acknowledge that they were represented by competent counsel in connection with the negotiation, drafting and execution of the Loan Documents and that such Loan Documents shall not be subject to the principle of construing their meaning against the party which drafted same. Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely on its own judgment and advisors in entering into the Loan without relying in any manner on any statements, representations or recommendations of Administrative Agent, any Lender or any parent, subsidiary or Affiliate of Administrative Agent or any Lender. Administrative Agent shall not be subject to any limitation whatsoever in the exercise of any rights or remedies available to it under any of the Loan Documents or any other agreements or instruments which govern the Loan by virtue of the ownership by it or any Lender or any parent, subsidiary or Affiliate of Administrative Agent or any Lender of any equity interest any of them may acquire in Borrower, and Borrower hereby irrevocably waives the right to raise any defense or take any action on the basis of the foregoing with respect to Administrative Agent’s exercise of any such rights or remedies. Borrower acknowledges that Administrative Agent and Lenders engage in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of Borrower or its Affiliates.
Section 12.19. Brokers and Financial Advisors. Borrower hereby represents that it has dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement, other than Newmark Knight & Frank, which shall be paid by Borrower pursuant to a separate agreement. Borrower shall indemnify, defend and hold Administrative Agent and each Lender harmless from and against any and all claims, liabilities, costs and expenses of any kind (including Lender’s reasonable attorneys’ fees and expenses) in any way relating to or arising from a claim by any Person that such Person acted on behalf of Borrower or Administrative Agent or any Lender in connection with the transactions contemplated herein. The provisions of this Section 12.19 shall survive the expiration and termination of this Agreement and the payment of the Debt.
Section 12.20. Recourse. Borrower shall be fully liable, on a recourse basis, to Administrative Agent and Lenders for repayment of all amounts due hereunder and under the Loan Documents. Notwithstanding anything to the contrary herein or in any other Loan Document (other than pursuant to the Guaranty and Environmental Indemnity), no constituent partner, member or owner of a direct or indirect interest in Borrower shall have any personal liability for the Debt under this Agreement and/or the other Loan Documents (other than pursuant to the Guaranty and Environmental Indemnity), and Administrative Agent and Lenders expressly waives and releases all right to assert any personal liability for the Debt under the Loan Documents against any constituent partners or members of Borrower and any owner of a direct or indirect interest in Borrower (other than pursuant to the Guaranty and Environmental Indemnity).
Section 12.21. Prior Agreements. This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements, understandings and negotiations among or between such parties, whether oral or written, are superseded by the terms of this Agreement and the other Loan Documents.
Section 12.22. Joint and Several Liability. If more than one Person has executed this Agreement as “Borrower,” the representations, covenants, warranties and obligations of all such Persons hereunder shall be joint and several.
Section 12.23. Time is of the Essence. Time is of the essence under this Agreement.
Section 12.24. Set‑Off; Sharing of Set-Off.
Section 12.25. Records. The unpaid amount of the Loan and the amount of any other credit extended by Lenders to or for the account of Borrower set forth on the books and records of Administrative Agent shall be presumptive evidence of the amount thereof owing and unpaid, but failure to record any such amount on Administrative Agent’s books and records shall not limit or affect the obligations of Borrower under the Loan Documents to make payments on the Loan when due.
Section 12.26. Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
Section 12.27. Survival of Indemnities. All indemnities and other provisions relative to reimbursement to the Lenders of amounts sufficient to protect the yield of the Lenders with respect to the Loan, including, but not limited to, Sections 2.3.6, 2.3.7, 2.3.8, 12.13, and 12.19, shall survive the termination of this Agreement and the other Loan Documents and the payment of the Debt.
Section 12.28. Acknowledgement 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:
XIII. MULTIPLE BORROWERS
Section 13.1. Joint and Several Liability. Each Borrower acknowledges, covenants, represents and warrants the following:
Section 13.2. Waivers.
Section 13.3. Full Knowledge. Each Borrower acknowledges that such Borrower has had a full and adequate opportunity to review the Loan Documents, and all underlying facts relating to the transaction
contemplated by the Loan Documents. Each Borrower agrees that Administrative Agent and Lenders have no duty, whether now or in the future, to disclose to any Borrower any information pertaining to such Borrower, any collateral or the other Borrowers. Each Borrower assumes responsibility for keeping itself informed of the financial condition of each other Borrower, and any and all endorsers and/or guarantors of any instrument or document evidencing all or any part of such other Borrower’s Debt, and of all other circumstances bearing upon the risk of nonpayment by such other Borrower of their Debt.
Section 13.4. Adequate Consideration. Each Borrower acknowledges that such Borrower has received adequate consideration for execution of the Loan Documents to which such Borrower is a party by virtue of Lenders’ making the Loan (which benefits each and every Borrower).
Section 13.5. Rights of Contribution; Subordination. Borrowers hereby agree, as between themselves, that if any Borrower shall pay any obligation of the other Borrowers under the Loan Documents, then such other Borrowers shall, on demand, pay to such Borrower the amount of such excess payment; provided, however, the right of a Borrower to receive such excess payment shall be subordinate and subject in right of payment to the prior payment in full of all the Debt of Borrowers to Lenders under the Loan Documents and no Borrower shall exercise any right or remedy with respect to such excess payment until payment and satisfaction in full of all of such Debt to Lenders. No Borrower requires or expects, and no Borrower is entitled to, any other right of reimbursement against any other Borrowers as consideration for entering into the Loan Documents to which such Borrower is a party. If any amount shall be paid to a Borrower on account of such contribution rights at any time prior to payment in full of the Debt has occurred, such amount shall be held in trust for the benefit of Lenders and shall forthwith be paid to Administrative Agent for the benefit of the Lenders to be applied to the Debt in accordance with the terms of this Agreement.
Section 13.6. Lender’s Disgorgement to Payments. Upon payment of all or any portion of the Loan, every Borrower’s Debt under the Loan Documents shall continue and remain in full force and effect if all or any part of such payment is, pursuant to any bankruptcy, insolvency or similar proceeding or otherwise, avoided or recovered directly or indirectly from Lenders as a preference, fraudulent transfer or otherwise, irrespective of (a) any notice of revocation given by such Borrower prior to such avoidance or recovery, or (b) payment in full of the Debt. If, in any such proceeding, any party seeks to require Administrative Agent or Lenders to disgorge or repay any payments previously made by any Borrower to Administrative Agent or Lenders, then such Borrower and/or any other Borrower shall jointly and severally be obligated to pay Administrative Agent and Lenders, as applicable, within ten (10) days after such written request, an amount equal to the amount adjudicated to be disgorged or repaid. This Section 13.6 shall survive repayment of all or any portion of the Debt.
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