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 | 2003 |
Asset Purchase Agreement [Amended and Restated]
Asset Purchase Agreement [Amended and Restated] (467K)
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================================================================================
AMENDED AND RESTATED ASSET PURCHASE AGREEMENT
by and among
CONSECO FINANCE CORP.
THE SELLING SUBSIDIARIES NAMED HEREIN
and
CFN Investment Holdings LLC
Dated as of
March 14, 2003
================================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
{S} {C} {C} {C}
ARTICLE I. DEFINITIONS............................................................................................1
1.1. Definitions................................................................................1
ARTICLE II. PURCHASE AND SALE OF ASSETS..........................................................................27
2.1. Purchased Assets..........................................................................27
2.2. Liabilities...............................................................................31
2.3. Closing Transactions......................................................................34
2.4. Purchase Price............................................................................37
2.5. Post-Effective Time Amounts Received and Paid.............................................37
2.6. True Sale.................................................................................37
2.7. Assumption of Certain Leases and Contracts................................................37
2.8. Consents to Certain Assignments...........................................................38
2.9. Real Estate Apportionments and Payments...................................................39
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE SELLERS.......................................................39
3.1. Organization and Power....................................................................39
3.2. Authorization of Transactions.............................................................40
3.3. Absence of Conflicts; Required Consents, Approvals and Filings............................40
3.4. Company Subsidiaries......................................................................41
3.5. Good Title................................................................................41
3.6. Compliance with Laws; Permits.............................................................41
3.7. Assets Necessary to Conduct Businesses....................................................42
3.8. Facilities; Real Property.................................................................42
3.9. Personal Property.........................................................................44
3.10. Receivables...............................................................................44
3.11. Material Agreements.......................................................................45
3.12. Intellectual Property.....................................................................46
3.13. Brokerage.................................................................................47
3.14. Employees.................................................................................47
3.15. Affiliate Transactions....................................................................47
3.16. ERISA; Employee Benefits..................................................................48
3.17. Depository Institutions...................................................................48
3.18. Litigation................................................................................48
3.19. Financial Statements......................................................................49
3.20. Indebtedness; Guarantees; Absence of Undisclosed Liabilities..............................49
3.21. Residual Assets...........................................................................50
3.22. Tax Matters...............................................................................50
3.23. Insurance.................................................................................55
3.24. Environment, Health and Safety............................................................56
3.25. Accounting Controls.......................................................................56
3.26. Summary of Securitizations................................................................56
3.27. Representations as to Certain Purchased Assets............................................56
3.28. Securities Offerings......................................................................56
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3.29. No Powers of Attorney.....................................................................56
3.30. Securities Laws Matters; No Registration..................................................56
3.31. Green Tree RECS II Guaranty Corporation...................................................57
3.32. Conseco HE/HI 2001-B-2, Inc...............................................................57
3.33. Conseco Finance Securitizations Corp......................................................57
3.34. Green Tree First GP Inc...................................................................57
3.35. Green Tree Second GP Inc..................................................................57
3.36. Conseco Finance Advance Receivables Corp..................................................58
3.37. Conseco Finance Liquidation Expense Advance Receivables 2002-B Corp.......................58
3.38. Convergent Lending Services, LLC..........................................................58
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE BUYER..........................................................59
4.1. Organization and Corporate Power..........................................................59
4.2. Authorization of Transaction..............................................................59
4.3. No Violation..............................................................................59
4.4. Governmental Authorities and Consents.....................................................59
4.5. Litigation................................................................................59
4.6. Brokerage.................................................................................60
4.7. Availability of Funds.....................................................................60
4.8. Stock Purchase............................................................................60
4.9. Knowledge.................................................................................60
ARTICLE V. ADDITIONAL AGREEMENTS.................................................................................60
5.1. Tax Matters...............................................................................60
5.2. Access to Information and Facilities......................................................66
5.3. Confidentiality...........................................................................66
5.4. Conduct of the Businesses Prior to Closing................................................67
5.5. Restrictions on Certain Actions...........................................................67
5.6. Press Releases and Announcements..........................................................69
5.7. Approvals of Third Parties; Satisfaction of Conditions to Closing.........................70
5.8. Bankruptcy Actions........................................................................70
5.9. Exclusivity; No Solicitation of Transactions..............................................71
5.10. Employees.................................................................................72
5.11. Transition................................................................................76
5.12. Seller's Trademarks.......................................................................76
5.13. Notices to Obligors.......................................................................77
5.14. Non-Solicitation and Non-Competition......................................................77
5.15. Further Actions...........................................................................78
5.16. Further Assurances........................................................................78
5.17. Mail Forwarding...........................................................................78
5.18. DIP Loan..................................................................................78
5.19. REMIC Items Reflected on Tax Returns; Bring Down on Certain Information...................78
5.20. Title Insurance...........................................................................79
5.21. Preparation of License Applications.......................................................79
5.22. Provision of Bank Information.............................................................80
5.23. Access to Records After the Closing.......................................................80
5.24. Liens.....................................................................................81
{/TABLE}
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5.25. Exclusion of Certain Purchased Assets.....................................................81
5.26. Certain Insurance Matters.................................................................81
5.27. Financial Information.....................................................................83
5.28. GE Loan Services; Transition Services.....................................................84
5.29. Intellectual Property Licenses............................................................84
5.30. GE Leases.................................................................................85
5.31. Waiver of B-2 Guarantee Rights............................................................85
5.32. Termination of HE Origination Business....................................................85
5.33. Seller Transition Services................................................................86
ARTICLE VI. CONDITIONS PRECEDENT TO THE BUYER'S OBLIGATIONS......................................................86
6.1. Representations and Warranties; Covenants; Certificates...................................86
6.2. Bankruptcy Condition......................................................................87
6.3. Litigation................................................................................87
6.4. Approvals.................................................................................87
6.5. Instruments of Conveyance and Transfer; Title.............................................87
6.6. Transition Services Agreement.............................................................88
6.7. Resignation or Removal of Officers and Directors of Subject Subsidiaries..................88
6.8. Lehman Facility...........................................................................88
6.9. No Material Adverse Effect................................................................88
6.10. Reserved..................................................................................88
6.11. Servicing Rights..........................................................................89
6.12. Tax Opinion...............................................................................89
6.13. Data Service Contracts....................................................................90
6.14. Acceptance of Employment Offers...........................................................90
6.15. Parent Guarantee..........................................................................90
6.16. Goldman...................................................................................91
ARTICLE VII. CONDITIONS PRECEDENT TO THE SELLERS' OBLIGATIONS....................................................91
7.1. Representations and Warranties; Covenants; Certificates...................................91
7.2. Bankruptcy Condition......................................................................91
7.3. Litigation................................................................................91
7.4. Approvals.................................................................................92
7.5. Reserved..................................................................................92
7.6. Other Documents...........................................................................92
ARTICLE VIII. TERMINATION........................................................................................92
8.1. Termination Prior to Closing..............................................................92
8.2. Break-Up Fee and Expense Reimbursement....................................................93
8.3. Termination by Reason of Buyer Default....................................................94
8.4. Effect of Termination.....................................................................95
ARTICLE IX. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION.........................................................95
9.1. Survival of Representations...............................................................95
9.2. Indemnification...........................................................................96
9.3. Qualifications on Indemnification.........................................................96
9.4. Notice and Defense of Claims..............................................................97
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9.5. Tax Treatment.............................................................................98
9.6. Remedy....................................................................................98
9.7. Administrative Expense; Administrative Priority...........................................98
ARTICLE X. MISCELLANEOUS.........................................................................................99
10.1. Expenses..................................................................................99
10.2. Amendment and Waiver......................................................................99
10.3. Notices...................................................................................99
10.4. Binding Agreement; Assignment............................................................100
10.5. Severability.............................................................................101
10.6. Construction.............................................................................101
10.7. Captions.................................................................................101
10.8. Entire Agreement.........................................................................101
10.9. Counterparts.............................................................................102
10.10. Governing Law............................................................................102
10.11. Parties in Interest......................................................................102
10.12. Consent to Jurisdiction..................................................................102
10.13. Delivery by Facsimile....................................................................102
10.14. Disclosure Schedules.....................................................................103
10.15. Specific Performance.....................................................................103
{/TABLE}
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{PAGE}
ASSET PURCHASE AGREEMENT
THIS AMENDED AND RESTATED ASSET PURCHASE AGREEMENT (this
"Agreement") is made as of March 14, 2003, by and among Conseco Finance Corp., a
Delaware corporation (the "Company"), the Subsidiaries of the Company owning
Purchased Assets, which are named on the signature pages hereof or become
parties hereto in accordance with this Agreement (the "Selling Subsidiaries"),
and CFN Investment Holdings LLC, a Delaware limited liability company (the
"Buyer") and amends and restates the Asset Purchase Agreement, dated as of
December 19, 2002, by and among the Company, the Selling Subsidiaries and the
Buyer, as amended (the "Original Agreement"). The Company and the Selling
Subsidiaries are collectively referred to herein as the "Sellers" and,
individually, as a "Seller". The Sellers, the Parent and the Buyer are
collectively referred to herein as the "Parties" and, individually, as a
"Party".
WHEREAS, on the terms and subject to the conditions set forth
in this Agreement, the Buyer desires to purchase from the Sellers, and the
Sellers desire to sell to the Buyer, the Purchased Assets, in a sale authorized
by the Bankruptcy Court pursuant to, inter alia, sections 105, 363, 365 and
1146(c) of the Bankruptcy Code;
WHEREAS, it is intended that the acquisition of the Purchased
Assets would be accomplished through the sale, transfer and assignment of assets
of the Company and the Selling Subsidiaries owning, leasing or having the right
to use the Purchased Assets and/or, as provided herein, through the sale of
capital stock of one or more direct or indirect Subsidiaries of the Company;
WHEREAS, the Buyer also desires to assume, and the Sellers
desire to assign and transfer, the Assumed Liabilities; and
WHEREAS, the Company and the Filing Company Subsidiaries
either have filed or will file a Chapter 11 Case and have obtained
debtor-in-possession financing from FPS DIP LLC.
NOW, THEREFORE, in consideration of the premises and mutual
promises herein made, and in consideration of the representations, warranties
and covenants herein contained, the Parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.1. Definitions. For purposes of this Agreement, the following
terms shall have the meanings set forth below:
"Accrued and Unpaid Interest" means, with respect to any Loan,
as of any date, the interest, fees, premiums, consignment fees, costs, advances
and other charges that have accrued on such Loan (whether or not such fees,
costs or charges have been billed) but have not been paid by the Obligor on such
Loan or otherwise collected by offset, recourse to collateral or otherwise.
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"Acquisition Proposal" means a written proposal(s) relating to
(a) any merger, consolidation, business combination, sale, reorganization or
other direct or indirect disposition of one or more of the Purchased Businesses
or of all or a portion of the Purchased Assets, pursuant to one or more
transactions, to one or more affiliated or unaffiliated parties (other than
transactions in the ordinary course of business or transactions permitted or
approved pursuant to Section 5.5), (b) the sale of 20% or more of the
outstanding shares of capital stock of the Company (including, without
limitation, by way of foreclosure or plan of reorganization or liquidation) to
one or more affiliated or unaffiliated parties or a similar transaction
involving one or more affiliated or unaffiliated parties, or (c) any transaction
or series of transactions in which a Person or group provides or commits to
provide $50 million or more of capital to the Company or its Subsidiaries
(whether as debt or equity or a combination thereof) (other than (i) debt
financing in which none of the Purchased Assets is pledged as collateral or
subjected to any Lien other than Permitted Liens, (ii) the DIP Loan, (iii) the
Additional Lehman Debt and (iv) transactions specifically contemplated by the GE
Approved Agreement).
"Additional Lehman Debt" means an additional warehouse
financing facility (or an amendment of an existing Lehman Facility) in an amount
not to exceed $250 million to finance the origination of Loans by the Company
and its Subsidiaries, which, subject to Section 5.5(b), would be included in the
Purchased Assets, on terms and conditions reasonably satisfactory to the Buyer.
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities or otherwise.
"Affiliated Group" means any affiliated group of corporations
within the meaning of Section 1504(a) of the Tax Code as well as any other group
of corporations filing a consolidated, combined, or unitary Income Tax Return
under federal, state, local or foreign Law.
"Agreement" shall have the meaning set forth in the Recitals.
"ALTA" means the American Land Title Association. ----
"Assigned Receivables" means those Receivables identified in
Section 3.10(a) of the applicable Business Schedules with respect to a
particular Purchased Business, and any Receivables generated by the applicable
Purchased Business in the ordinary course from and including the last date as of
which the Business Schedules identifying such Receivables are updated under this
Agreement through the Closing Date, and including all obligations to make
additional extensions of credit under the Assumed Receivables Contracts.
"Assumed Agreements" means, collectively, the Assumed Leases,
the Assumed Contracts, the Assumed Retention Agreements and the Assumed
Receivables Contracts.
"Assumed Contracts" means those Contracts identified in
Section 2.1(a) of the applicable Business Schedules under the heading "Assumed
Contracts", but excluding (i) Assumed Leases, Assumed Receivables Contracts and
those Contracts that expire or are
113245
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CSFB Mortgage
As referenced in this Asset Purchase Agreement [Amended and Restated]:
Credit Suisse First Boston
Mortgage Capital – between the
Company and U.S. Bank (the "U.S. Bank Credit Agreement"); and the Master
Repurchase Agreement dated April 16, 1999 between Credit Suisse First Boston
Mortgage Capital LLC and Green Tree Financial Corporation (the Company), as
amended by Annex I--Amended and Restated Supplemental Terms to Master Repurchase
Agreement, dated
_____________
dt 113004
;
Chicago Title
As referenced in this Asset Purchase Agreement [Amended and Restated]:
Chicago Title Insurance – delivered to the Buyer a
commitment for a 1992 form ALTA title insurance policy (the "Title Commitments")
for each Owned Real Premises from Chicago Title Insurance Company (the "Title
Company"). At the Buyer's sole discretion, the Buyer may deliver written notice
to the Sellers not later than the
_____________
dt 157761
;
Conseco
As referenced in this Asset Purchase Agreement [Amended and Restated]:
Conseco, Inc – Code, (III)
Granting Adequate Protection Pursuant to Sections 363 and 364 of the Bankruptcy
Code, and (IV) Approving the Tax Indemnity Obligations of Conseco, Inc .
hereunder filed with the Bankruptcy Court on March 4, 2003.
"Goldman Expense Reimbursement" means the payment of $5
million for expenses incurred
_____________
Conseco, Inc – Business Schedules pursuant to which a Seller leases all or any part
of the Owned Real Premises as the landlord thereunder.
"Parent" means Conseco, Inc ., an Indiana corporation.
"Parties" shall have the meaning set forth in the Recitals.
"Party" shall have the meaning set forth in the
_____________
dt 220264
;
|
Fannie Mae
As referenced in this Asset Purchase Agreement [Amended and Restated]:
Federal National Mortgage Association – the
"Unsecured Creditors Committee"), the Ad Hoc Committee of Certificateholders
(the "Ad Hoc Committee") and Federal National Mortgage Association ("Fannie
Mae"), evidencing the consent of the Trustees, the Unsecured Creditors
Committee, the Ad
_____________
dt 80335
;
 GE Capital
As referenced in this Asset Purchase Agreement [Amended and Restated]:
General Electric Capital
Corp – assume the Excluded
Servicing Liabilities or any Guarantees given to any holders
of interests in a Securitization.
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{PAGE}
(iv) The Company and General Electric Capital
Corp oration or one or more of its affiliates ("GE") shall not
enter into an asset purchase agreement for the purchase and
sale of
_____________
dt 100788
;
More... |
Preview
Full Doc
| 2003 |
Asset Purchase Agreement [Amended and Restated 2003]
Asset Purchase Agreement [Amended and Restated 2003] (467K)
Doc #290229: Click preview link for longer preview.
AMENDED AND RESTATED ASSET PURCHASE AGREEMENT
by and among
CONSECO FINANCE CORP.
THE SELLING SUBSIDIARIES NAMED HEREIN
and
CFN Investment Holdings LLC
Dated as of
March 14, 2003
================================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
{S} {C} {C} {C}
ARTICLE I. DEFINITIONS............................................................................................1
1.1. Definitions................................................................................1
ARTICLE II. PURCHASE AND SALE OF ASSETS..........................................................................27
2.1. Purchased Assets..........................................................................27
2.2. Liabilities...............................................................................31
2.3. Closing Transactions......................................................................34
2.4. Purchase Price............................................................................37
2.5. Post-Effective Time Amounts Received and Paid.............................................37
2.6. True Sale.................................................................................37
2.7. Assumption of Certain Leases and Contracts................................................37
2.8. Consents to Certain Assignments...........................................................38
2.9. Real Estate Apportionments and Payments...................................................39
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE SELLERS.......................................................39
3.1. Organization and Power....................................................................39
3.2. Authorization of Transactions.............................................................40
3.3. Absence of Conflicts; Required Consents, Approvals and Filings............................40
3.4. Company Subsidiaries......................................................................41
3.5. Good Title................................................................................41
3.6. Compliance with Laws; Permits.............................................................41
3.7. Assets Necessary to Conduct Businesses....................................................42
3.8. Facilities; Real Property.................................................................42
3.9. Personal Property.........................................................................44
3.10. Receivables...............................................................................44
3.11. Material Agreements.......................................................................45
3.12. Intellectual Property.....................................................................46
3.13. Brokerage.................................................................................47
3.14. Employees.................................................................................47
3.15. Affiliate Transactions....................................................................47
3.16. ERISA; Employee Benefits..................................................................48
3.17. Depository Institutions...................................................................48
3.18. Litigation................................................................................48
3.19. Financial Statements......................................................................49
3.20. Indebtedness; Guarantees; Absence of Undisclosed Liabilities..............................49
3.21. Residual Assets...........................................................................50
3.22. Tax Matters...............................................................................50
3.23. Insurance.................................................................................55
3.24. Environment, Health and Safety............................................................56
3.25. Accounting Controls.......................................................................56
3.26. Summary of Securitizations................................................................56
3.27. Representations as to Certain Purchased Assets............................................56
3.28. Securities Offerings......................................................................56
{/TABLE}
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3.29. No Powers of Attorney.....................................................................56
3.30. Securities Laws Matters; No Registration..................................................56
3.31. Green Tree RECS II Guaranty Corporation...................................................57
3.32. Conseco HE/HI 2001-B-2, Inc...............................................................57
3.33. Conseco Finance Securitizations Corp......................................................57
3.34. Green Tree First GP Inc...................................................................57
3.35. Green Tree Second GP Inc..................................................................57
3.36. Conseco Finance Advance Receivables Corp..................................................58
3.37. Conseco Finance Liquidation Expense Advance Receivables 2002-B Corp.......................58
3.38. Convergent Lending Services, LLC..........................................................58
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE BUYER..........................................................59
4.1. Organization and Corporate Power..........................................................59
4.2. Authorization of Transaction..............................................................59
4.3. No Violation..............................................................................59
4.4. Governmental Authorities and Consents.....................................................59
4.5. Litigation................................................................................59
4.6. Brokerage.................................................................................60
4.7. Availability of Funds.....................................................................60
4.8. Stock Purchase............................................................................60
4.9. Knowledge.................................................................................60
ARTICLE V. ADDITIONAL AGREEMENTS.................................................................................60
5.1. Tax Matters...............................................................................60
5.2. Access to Information and Facilities......................................................66
5.3. Confidentiality...........................................................................66
5.4. Conduct of the Businesses Prior to Closing................................................67
5.5. Restrictions on Certain Actions...........................................................67
5.6. Press Releases and Announcements..........................................................69
5.7. Approvals of Third Parties; Satisfaction of Conditions to Closing.........................70
5.8. Bankruptcy Actions........................................................................70
5.9. Exclusivity; No Solicitation of Transactions..............................................71
5.10. Employees.................................................................................72
5.11. Transition................................................................................76
5.12. Seller's Trademarks.......................................................................76
5.13. Notices to Obligors.......................................................................77
5.14. Non-Solicitation and Non-Competition......................................................77
5.15. Further Actions...........................................................................78
5.16. Further Assurances........................................................................78
5.17. Mail Forwarding...........................................................................78
5.18. DIP Loan..................................................................................78
5.19. REMIC Items Reflected on Tax Returns; Bring Down on Certain Information...................78
5.20. Title Insurance...........................................................................79
5.21. Preparation of License Applications.......................................................79
5.22. Provision of Bank Information.............................................................80
5.23. Access to Records After the Closing.......................................................80
5.24. Liens.....................................................................................81
{/TABLE}
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5.25. Exclusion of Certain Purchased Assets.....................................................81
5.26. Certain Insurance Matters.................................................................81
5.27. Financial Information.....................................................................83
5.28. GE Loan Services; Transition Services.....................................................84
5.29. Intellectual Property Licenses............................................................84
5.30. GE Leases.................................................................................85
5.31. Waiver of B-2 Guarantee Rights............................................................85
5.32. Termination of HE Origination Business....................................................85
5.33. Seller Transition Services................................................................86
ARTICLE VI. CONDITIONS PRECEDENT TO THE BUYER'S OBLIGATIONS......................................................86
6.1. Representations and Warranties; Covenants; Certificates...................................86
6.2. Bankruptcy Condition......................................................................87
6.3. Litigation................................................................................87
6.4. Approvals.................................................................................87
6.5. Instruments of Conveyance and Transfer; Title.............................................87
6.6. Transition Services Agreement.............................................................88
6.7. Resignation or Removal of Officers and Directors of Subject Subsidiaries..................88
6.8. Lehman Facility...........................................................................88
6.9. No Material Adverse Effect................................................................88
6.10. Reserved..................................................................................88
6.11. Servicing Rights..........................................................................89
6.12. Tax Opinion...............................................................................89
6.13. Data Service Contracts....................................................................90
6.14. Acceptance of Employment Offers...........................................................90
6.15. Parent Guarantee..........................................................................90
6.16. Goldman...................................................................................91
ARTICLE VII. CONDITIONS PRECEDENT TO THE SELLERS' OBLIGATIONS....................................................91
7.1. Representations and Warranties; Covenants; Certificates...................................91
7.2. Bankruptcy Condition......................................................................91
7.3. Litigation................................................................................91
7.4. Approvals.................................................................................92
7.5. Reserved..................................................................................92
7.6. Other Documents...........................................................................92
ARTICLE VIII. TERMINATION........................................................................................92
8.1. Termination Prior to Closing..............................................................92
8.2. Break-Up Fee and Expense Reimbursement....................................................93
8.3. Termination by Reason of Buyer Default....................................................94
8.4. Effect of Termination.....................................................................95
ARTICLE IX. SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION.........................................................95
9.1. Survival of Representations...............................................................95
9.2. Indemnification...........................................................................96
9.3. Qualifications on Indemnification.........................................................96
9.4. Notice and Defense of Claims..............................................................97
{/TABLE}
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9.5. Tax Treatment.............................................................................98
9.6. Remedy....................................................................................98
9.7. Administrative Expense; Administrative Priority...........................................98
ARTICLE X. MISCELLANEOUS.........................................................................................99
10.1. Expenses..................................................................................99
10.2. Amendment and Waiver......................................................................99
10.3. Notices...................................................................................99
10.4. Binding Agreement; Assignment............................................................100
10.5. Severability.............................................................................101
10.6. Construction.............................................................................101
10.7. Captions.................................................................................101
10.8. Entire Agreement.........................................................................101
10.9. Counterparts.............................................................................102
10.10. Governing Law............................................................................102
10.11. Parties in Interest......................................................................102
10.12. Consent to Jurisdiction..................................................................102
10.13. Delivery by Facsimile....................................................................102
10.14. Disclosure Schedules.....................................................................103
10.15. Specific Performance.....................................................................103
{/TABLE}
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{PAGE}
ASSET PURCHASE AGREEMENT
THIS AMENDED AND RESTATED ASSET PURCHASE AGREEMENT (this
"Agreement") is made as of March 14, 2003, by and among Conseco Finance Corp., a
Delaware corporation (the "Company"), the Subsidiaries of the Company owning
Purchased Assets, which are named on the signature pages hereof or become
parties hereto in accordance with this Agreement (the "Selling Subsidiaries"),
and CFN Investment Holdings LLC, a Delaware limited liability company (the
"Buyer") and amends and restates the Asset Purchase Agreement, dated as of
December 19, 2002, by and among the Company, the Selling Subsidiaries and the
Buyer, as amended (the "Original Agreement"). The Company and the Selling
Subsidiaries are collectively referred to herein as the "Sellers" and,
individually, as a "Seller". The Sellers, the Parent and the Buyer are
collectively referred to herein as the "Parties" and, individually, as a
"Party".
WHEREAS, on the terms and subject to the conditions set forth
in this Agreement, the Buyer desires to purchase from the Sellers, and the
Sellers desire to sell to the Buyer, the Purchased Assets, in a sale authorized
by the Bankruptcy Court pursuant to, inter alia, sections 105, 363, 365 and
1146(c) of the Bankruptcy Code;
WHEREAS, it is intended that the acquisition of the Purchased
Assets would be accomplished through the sale, transfer and assignment of assets
of the Company and the Selling Subsidiaries owning, leasing or having the right
to use the Purchased Assets and/or, as provided herein, through the sale of
capital stock of one or more direct or indirect Subsidiaries of the Company;
WHEREAS, the Buyer also desires to assume, and the Sellers
desire to assign and transfer, the Assumed Liabilities; and
WHEREAS, the Company and the Filing Company Subsidiaries
either have filed or will file a Chapter 11 Case and have obtained
debtor-in-possession financing from FPS DIP LLC.
NOW, THEREFORE, in consideration of the premises and mutual
promises herein made, and in consideration of the representations, warranties
and covenants herein contained, the Parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.1. Definitions. For purposes of this Agreement, the following
terms shall have the meanings set forth below:
"Accrued and Unpaid Interest" means, with respect to any Loan,
as of any date, the interest, fees, premiums, consignment fees, costs, advances
and other charges that have accrued on such Loan (whether or not such fees,
costs or charges have been billed) but have not been paid by the Obligor on such
Loan or otherwise collected by offset, recourse to collateral or otherwise.
-1-
{PAGE}
"Acquisition Proposal" means a written proposal(s) relating to
(a) any merger, consolidation, business combination, sale, reorganization or
other direct or indirect disposition of one or more of the Purchased Businesses
or of all or a portion of the Purchased Assets, pursuant to one or more
transactions, to one or more affiliated or unaffiliated parties (other than
transactions in the ordinary course of business or transactions permitted or
approved pursuant to Section 5.5), (b) the sale of 20% or more of the
outstanding shares of capital stock of the Company (including, without
limitation, by way of foreclosure or plan of reorganization or liquidation) to
one or more affiliated or unaffiliated parties or a similar transaction
involving one or more affiliated or unaffiliated parties, or (c) any transaction
or series of transactions in which a Person or group provides or commits to
provide $50 million or more of capital to the Company or its Subsidiaries
(whether as debt or equity or a combination thereof) (other than (i) debt
financing in which none of the Purchased Assets is pledged as collateral or
subjected to any Lien other than Permitted Liens, (ii) the DIP Loan, (iii) the
Additional Lehman Debt and (iv) transactions specifically contemplated by the GE
Approved Agreement).
"Additional Lehman Debt" means an additional warehouse
financing facility (or an amendment of an existing Lehman Facility) in an amount
not to exceed $250 million to finance the origination of Loans by the Company
and its Subsidiaries, which, subject to Section 5.5(b), would be included in the
Purchased Assets, on terms and conditions reasonably satisfactory to the Buyer.
"Affiliate" of any particular Person means any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities or otherwise.
"Affiliated Group" means any affiliated group of corporations
within the meaning of Section 1504(a) of the Tax Code as well as any other group
of corporations filing a consolidated, combined, or unitary Income Tax Return
under federal, state, local or foreign Law.
"Agreement" shall have the meaning set forth in the Recitals.
"ALTA" means the American Land Title Association. ----
"Assigned Receivables" means those Receivables identified in
Section 3.10(a) of the applicable Business Schedules with respect to a
particular Purchased Business, and any Receivables generated by the applicable
Purchased Business in the ordinary course from and including the last date as of
which the Business Schedules identifying such Receivables are updated under this
Agreement through the Closing Date, and including all obligations to make
additional extensions of credit under the Assumed Receivables Contracts.
"Assumed Agreements" means, collectively, the Assumed Leases,
the Assumed Contracts, the Assumed Retention Agreements and the Assumed
Receivables Contracts.
"Assumed Contracts" means those Contracts identified in
Section 2.1(a) of the applicable Business Schedules under the heading "Assumed
Contracts", but excluding (i) Assumed Leases, Assumed Receivables Contracts and
those Contracts that expire or are
-2-
{PAGE}
terminated in the ordinary course of business prior to the Closing Date and (ii)
all Employee Agreements (other than the Assumed Retention Agreements).
"Assumed Leases" means real property leases, subleases,
licenses or other Contracts set forth in Section 3.8(b) of the applicable
Business Schedules pursuant to which a Seller or Mill Creek Bank leases the
Leased Premises as a tenant thereof or leases all or any part of the Owned Real
Premises as the landlord thereunder.
"Assumed Liabilities" shall have the meaning set forth in
Section 2.2(a) hereof.
"Assumed Receivables Contracts" means Contracts of the
Purchased Businesses evidencing or executed and delivered in connection with the
Assigned Receivables.
"Assumed Retention Agreements" means the agreement, dated as
of December 19, 2002, by and between the Company and Dan Hall, the agreement,
dated as of December 19, 2002, by and between the Company and Walter Carter and,
if the GE condition is not satisfied, the agreement, dated as of December 19,
2002, by and between the Company and Todd Woodard.
"Auction" means the auction conducted by the Sellers pursuant
to the Bidding Procedures Order.
"B-2 Certificates" means the certificates identified as such
on the Residuals Schedule under the captions "Junior P&I Regular Interests -
Manufactured Housing" and all other interests (whether certificated or
uncertificated) of a substantially similar nature owned by a Seller.
"B-2 Guarantee Rights" shall have the meaning set forth in
Section 2.1(c) hereof.
"Backup Agreements" shall mean the purchase agreement between
the Sellers and EMC Mortgage Corporation (or any of its Affiliates) and the
purchase agreement between the Sellers and Charlesbank Capital Partners, LLC (or
any of its Affiliates) to acquire the assets of the Sellers and which is entered
into pursuant to the Auction and contingent upon the termination of this
Agreement and Bankruptcy Court approval.
"Bank Information" shall have the meaning set forth in Section
290229
|
CSFB Mortgage
As referenced in this Asset Purchase Agreement [Amended and Restated 2003]:
Credit Suisse First Boston
Mortgage Capital – between the
Company and U.S. Bank (the "U.S. Bank Credit Agreement"); and the Master
Repurchase Agreement dated April 16, 1999 between Credit Suisse First Boston
Mortgage Capital LLC and Green Tree Financial Corporation (the Company), as
amended by Annex I--Amended and Restated Supplemental Terms to Master Repurchase
Agreement, dated
_____________
dt 248482
;
Conseco
As referenced in this Asset Purchase Agreement [Amended and Restated 2003]:
Conseco, Inc – Code, (III)
Granting Adequate Protection Pursuant to Sections 363 and 364 of the Bankruptcy
Code, and (IV) Approving the Tax Indemnity Obligations of Conseco, Inc .
hereunder filed with the Bankruptcy Court on March 4, 2003.
"Goldman Expense Reimbursement" means the payment of $5
million for expenses incurred
_____________
Conseco, Inc – Business Schedules pursuant to which a Seller leases all or any part
of the Owned Real Premises as the landlord thereunder.
"Parent" means Conseco, Inc ., an Indiana corporation.
"Parties" shall have the meaning set forth in the Recitals.
"Party" shall have the meaning set forth in the
_____________
dt 248115
;
Fannie Mae
As referenced in this Asset Purchase Agreement [Amended and Restated 2003]:
Federal National Mortgage Association – Official Committee of Unsecured Creditors of the Company (the
"Unsecured Creditors Committee"), the Ad Hoc Committee of Certificateholders
(the "Ad Hoc Committee") and Federal National Mortgage Association ("Fannie
Mae"), evidencing the consent of the Trustees, the Unsecured Creditors
Committee, the Ad Hoc Committee and Fannie Mae to the matters
_____________
Fannie
Mae – Creditors of the Company (the
"Unsecured Creditors Committee"), the Ad Hoc Committee of Certificateholders
(the "Ad Hoc Committee") and Federal National Mortgage Association ("Fannie
Mae "), evidencing the consent of the Trustees, the Unsecured Creditors
Committee, the Ad Hoc Committee and Fannie Mae to the matters covered by
_____________
Fannie Mae – Committee") and Federal National Mortgage Association ("Fannie
Mae"), evidencing the consent of the Trustees, the Unsecured Creditors
Committee, the Ad Hoc Committee and Fannie Mae to the matters covered by Section
6.11(b) and (c), which agreement is in form and substance reasonably acceptable
to the
_____________
dt 252227
;
|
GS Credit
As referenced in this Asset Purchase Agreement [Amended and Restated 2003]:
Goldman Sachs Credit Partners, – Assets" as defined
in the GE Approved Agreement.
"GE Sale Order" means the "Sale Order" as in the GE Approved
Agreement.
"Goldman" means Goldman Sachs Credit Partners, L.P.
"Goldman Commitment Letter" means the Commitment Letter, dated
February 26, 2003, between Goldman and the Company.
"Goldman Credit Agreement" means
_____________
dt 247252
;
Lehman Brothers
As referenced in this Asset Purchase Agreement [Amended and Restated 2003]:
Lehman Brothers Holdings
Inc – Lehman Residuals
Facility), plus, (b) the Additional Lehman Debt, plus, (c) an amount equal to
the unreimbursed out-of-pocket expenses incurred by Lehman Brothers Holdings
Inc . and its Affiliates in connection with the transactions contemplated by this
Agreement and the Lehman Facilities, but not in excess of $3
_____________
Lehman Brothers Holdings Inc – of January 30, 2002, among the Company, the Parent, CIHC,
Incorporated, Green Tree Residual Finance Corp. I, Green Tree Finance Corp.-Five
and Lehman Brothers Holdings Inc ., as the same may be further amended in
accordance with the terms thereof and of this Agreement.
"Lehman Warehouse Facility" means the
_____________
Lehman
Brothers Holdings Inc – Selling
Subsidiary (including, without limitation, the Residual
Assets, Assigned Receivables or other Purchased Assets subject
to a repurchase agreement or otherwise transferred to Lehman
Brothers Holdings Inc . or any of its Affiliates under the
Lehman Forbearance Agreement or any of the other Lehman
Facilities and, to the extent the
_____________
Lehman Brothers Holdings Inc – any financing arrangements arranged
by the Buyer with respect to the purchase of the Purchased
Assets, including, without limitation, any such arrangements
with Lehman Brothers Holdings Inc . or its Affiliates under
which the Residual Assets or the Assigned Receivables are to
be held or financed. If any Purchased Assets
_____________
Lehman Brothers Holdings Inc – of Purchased Assets be sold,
transferred or liquidated during the Pre-Closing Period; and provided, further,
that (I) the Company may sell to Lehman Brothers Holdings Inc . or its Affiliates
during the period from December 19, 2002 to the Closing Date (A) up to $318
million in outstanding principal
_____________
dt 246369
;
More... |
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{DOCUMENT}
{TYPE}EX-10.31
{SEQUENCE}2
{FILENAME}a2040926zex-10_31.txt
{DESCRIPTION}EXHIBIT 10.31
{TEXT}
{PAGE}
Exhibit 10.31
BRISBANE TECHNOLOGY PARK
LEASE
by and between
GAL-BRISBANE, L.P., a California limited partnership
as Landlord,
and
INTERMUNE PHARMACEUTICALS, INC., a Delaware corporation
as Tenant
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
1. PREMISES.............................................................1
(a) Leased Premises ............................................1
(b) Project Common Areas .......................................2
2. LEASE TERM...........................................................2
(a) Term .......................................................2
(b) Commencement Date; Delivery Dates...........................3
(c) Tenant's Access ............................................3
(d) Failure to Deliver Possession ..............................3
3. RENT.................................................................3
(a) Base Rent...................................................4
(b) Additional Rent ............................................4
(c) Prorations. ..............................................4
4. CONDITION OF PREMISES................................................4
5. USE..................................................................5
(a) Tenant's Use ...............................................5
(b) Compliance with Laws and Project Rules and Regulations......5
(c) Hazardous Materials.........................................6
6. ASSIGNMENT AND SUBLETTING............................................7
(a) Landlord's Consent. ......................................7
(b) Transferee Form. .........................................8
(c) No Waiver. ...............................................8
(d) Information to be Furnished. .............................8
(e) Landlord's Alternatives ....................................8
(f) Permitted Transfer .........................................9
(g) Executed Counterpart. ....................................9
(h) Definitions ...............................................10
7. ALTERATIONS.........................................................10
(a) Consent to Alterations ....................................10
(b) General Conditions for Alterations ........................10
(c) Notice and Liens ..........................................11
{/TABLE}
i
{PAGE}
TABLE OF CONTENTS
(continued)
{TABLE}
{CAPTION}
Page
----
{S} {C}
(d) Removal of Alterations ....................................11
(e) Maintenance of Alterations ................................11
8. REPAIR AND MAINTENANCE..............................................11
(a) Landlord ..................................................12
(b) Tenant ....................................................12
(c) Waiver ....................................................12
9. UTILITIES AND SERVICES..............................................12
(a) Tenant's Obligations ......................................13
(b) Tenant to Pay Share of Expenses ...........................13
10. REAL PROPERTY TAXES.................................................13
(a) Payment by Tenant .........................................13
(b) Real Property Taxes .......................................13
(c) Tax on Improvements .......................................14
(d) Proration .................................................14
(e) Personal Property Taxes ...................................14
11. INSURANCE...........................................................14
(a) Indemnification............................................14
(b) Tenant's Insurance ........................................14
(c) Landlord's Insurance ......................................15
(d) Certificates ..............................................16
(e) Increased Coverage ........................................16
(f) Co-Insurer ................................................16
(g) Insurance Requirements ....................................16
(h) Landlord's Disclaimer .....................................16
(i) Waiver of Subrogation .....................................17
12. ADDITIONAL RENT.....................................................17
(a) Payment ...................................................17
(b) Tenant's Project Percentage ...............................17
(c) Definition of Operating Expenses ..........................17
(d) Estimates .................................................18
(e) Annual Adjustment .........................................19
(f) Arbitration ...............................................19
{/TABLE}
ii
{PAGE}
TABLE OF CONTENTS
(continued)
{TABLE}
{CAPTION}
Page
----
{S} {C}
13. DAMAGE OR DESTRUCTION...............................................20
(a) Landlord's Obligation to Rebuild ..........................20
(b) Landlord's Right to Terminate .............................20
(c) Tenant's Right to Terminate ...............................20
(d) Limited Obligation to Repair ..............................21
(e) Abatement of Rent .........................................21
(f) Damage Near End of Lease Term .............................21
(g) Landlord's Determinations .................................21
14. NOTICES.............................................................21
15. DEFAULT.............................................................22
(a) Tenant's Default ..........................................22
(b) Remedies ..................................................23
(c) Late Charges ..............................................24
(d) Landlord's Default ........................................25
16. SURRENDER OF THE PREMISES...........................................25
(a) Condition upon Surrender ..................................25
(b) Removal of Alterations ....................................25
(c) Indemnification of Landlord ...............................25
17. ATTORNEYS' FEES.....................................................26
18. LIENS...............................................................26
19. SUBORDINATION.......................................................26
(a) Documentation .............................................27
(b) Attornment ................................................27
20. MORTGAGEE PROTECTION................................................27
21. CONDEMNATION........................................................27
(a) Total Taking - Termination ................................27
(b) Partial Taking ............................................28
{/TABLE}
iii
{PAGE}
TABLE OF CONTENTS
(continued)
{TABLE}
{CAPTION}
Page
----
{S} {C}
(c) No Apportionment of Award .................................28
(d) Temporary Taking ..........................................28
(e) Sale Under Threat of Condemnation .........................28
22. HOLDING OVER........................................................28
23. ENTRY BY LANDLORD...................................................29
24. ESTOPPEL CERTIFICATES; INFORMATION..................................29
(a) Estoppel Certificates .....................................29
(b) Financial Statements ......................................30
25. TRANSFER OF THE PREMISES BY LANDLORD................................30
26. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS......................30
27. TENANT'S REMEDY.....................................................31
28. SECURITY............................................................31
(a) Cash Security Deposit .....................................31
(b) Letter of Credit ..........................................31
(c) Reduction of Security Deposit .............................32
29. FINANCIAL COVENANTS.................................................32
30. PARKING.............................................................32
31. QUIET ENJOYMENT.....................................................33
32. SIGNS...............................................................33
33. ACCEPTANCE..........................................................34
34. RECORDING; QUITCLAIM................................................34
{/TABLE}
iv
{PAGE}
TABLE OF CONTENTS
(continued)
{TABLE}
{CAPTION}
Page
----
{S} {C}
35. BROKERS.............................................................34
36. GENERAL.............................................................34
(a) Captions ..................................................34
(b) Executed Copy; Counterparts ...............................35
(c) Severability ..............................................35
(d) Construction; Choice of Law ...............................35
(e) Gender; Singular, Plural ..................................35
(f) Binding Effect ............................................35
(g) Waiver ....................................................35
(h) Entire Agreement ..........................................35
(i) Authority .................................................35
(j) Exhibits ..................................................36
(k) Lease Summary .............................................36
(l) Survival ..................................................36
(m) Time ......................................................36
(n) No Jury Trial .............................................36
(o) Shuttle Program. ..........................................36
(p) Generator .................................................36
{/TABLE}
v
{PAGE}
LIST OF EXHIBITS
EXHIBIT A DIAGRAM OF BUILDING
EXHIBIT A-1 DESCRIPTION OF YARD AREA
EXHIBIT B PLAT AND LEGAL DESCRIPTION OF PROJECT
EXHIBIT C WORK LETTER AGREEMENT
EXHIBIT D COMMENCEMENT DATE MEMORANDUM
EXHIBIT E PROJECT RULES AND REGULATIONS
EXHIBIT F SIGNAGE
EXHIBIT G LETTER OF CREDIT
EXHIBIT H FORM OF SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
EXHIBIT I FORM OF TENANT ESTOPPEL
EXHIBIT J EXCLUSIVE USE PARKING SPACES
i
{PAGE}
LEASE SUMMARY
Lease Date: December 18, 2000
Landlord: GAL-BRISBANE, L.P., a California limited
partnership
Landlord's Address: c/o Stuhlmuller Property Company
4055 Bohannon Drive
Menlo Park, CA 94025
Attn: Mr. Roger Stuhlmuller
Telephone: (650) 321-5900
Fax No.: (650) 321-5933
Tenant: INTERMUNE PHARMACEUTICALS, INC.,
a Delaware corporation
Tenant's Address:
Prior to the Commencement 1710 Gilbreth Road, Suite 301
Date: Burlingame, CA 94010
Attn: Stephen Rosenfield, Esq.
Telephone: (650) 409-2050
Fax No: (650) 259-0774
After the Commencement Date: 3280 Bayshore Boulevard
Brisbane, CA 94005
Attn:
Premises: The Premises shall consist of
fifty-five thousand eight hundred
ninety-eight (55,898) rentable
square feet of space located in
the building commonly known as
Building A located at 3280
Bayshore Boulevard (the
"Building"). The Premises is
located in the City of Brisbane,
State of California.
Premises Address: 3280 Bayshore Blvd., Brisbane, California
94005
ii
{PAGE}
Project: That certain office and research and
development business parkcommonly known as
Brisbane Technology Park, and more
particularly described in Exhibit
B attached hereto. The Project
shall consist of the Building and
two other buildings commonly known
as Building B and Building C
located at 3260 Bayshore Boulevard
and 3240 Bayshore Boulevard,
respectively, adjacent parking
areas, landscaping and related
improvements and will contain one
hundred eighty-three thousand
three hundred twenty-nine
(183,329) rentable square feet of
space.
Tenant's Project Percentage: A percentage equal to the rentable square
footage of the Premises divided by the
rentable square footage of the Project.
Commencement Date: The earlier of (A) the date Tenant first
occupies the Premises for the purpose of
conducting business therein, or (B) May 1,
2001.
Term: One hundred twenty (120) full calendar
months and any partial calendar month at the
commencement of the Term.
Initial Base Rent: Four Dollars and Twenty-Five Cents ($4.25)
per square foot per month (subject to
adjustment pursuant to Paragraph 3(a)(ii))
Security Deposit: One Million Four Hundred Twenty-Five
Thousand Three Hundred Ninety-Nine Dollars
($1,425,399.00) (subject to adjustment
pursuant to Paragraph 28)
Landlord's Broker: BT Commercial Real Estate (Mr. Mike Connor
and Bob Baumann)
Tenant's Broker: CB Richard Ellis (Mr. Christopher R. Jacobs
and Mr. Dino Perazzo)
iii
{PAGE}
BRISBANE TECHNOLOGY PARK
LEASE
THIS LEASE (this "Lease"), dated as of December 18, 2000, is entered
into by and between GAL-BRISBANE, L.P., a California limited partnership
("Landlord"), and INTERMUNE PHARMACEUTICALS, INC., a Delaware corporation
("Tenant").
1. PREMISES
(a) LEASED PREMISES. Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, those certain premises (the "Premises")
consisting of fifty-five thousand eight hundred ninety-eight (55,898) rentable
square feet of space, as shown on Exhibit A attached hereto and located within
the building commonly known as Building A located at 3280 Bayshore Boulevard,
Brisbane, California (the "Building"). The Building and the Premises are located
within that certain office and research and development business park commonly
known as Brisbane Technology Park (the "Project"), and more particularly
described in Exhibit B attached hereto. The Project consists of the Building and
two other office buildings, one located at 3260 Bayshore Boulevard ("Building
B") and the other located at 3240 Bayshore Boulevard ("Building C," and together
with Building B, collectively, the "Other Buildings"), adjacent parking areas,
landscaping and related improvements. The total rentable square footage of the
Project is one hundred eighty-three thousand three hundred twenty-nine (183,329)
rentable square feet.
In addition to the Premises, during the term of this Lease, Tenant
shall have (i) the exclusive right to use the yard area adjacent to the Building
consisting of nine hundred (900) rentable square feet (the "Yard Area")
designated as "FMA" in Plan A1.2 attached hereto as EXHIBIT A-1, and (ii) the
non-exclusive right to use a portion of the roof of the Building (the "Roof
Area"), the location of which Roof Area shall be reasonably approved by
Landlord, to install the Generator described in PARAGRAPH 36(p) hereof. Tenant
covenants with respect to the Yard Area and Roof Area that: (1) Tenant's use of
the Yard Area and the Roof Area shall comply with the use restrictions described
in PARAGRAPH 5 hereof, and Tenant shall obtain all permits and/or other
approvals required by the City of Brisbane and other appropriate governmental
agencies necessary to use and operate in the Yard Area and the Roof Area, (2)
Tenant shall use the Yard Area and Roof Area in compliance with all applicable
laws and regulations, (3) if Tenant at any time occupies less than the entire
Building, Tenant's use of the Yard Area and the Roof Area shall not unreasonably
interfere with or cause a nuisance with respect to the use or occupancy of the
Building by other tenants, and (4) Tenant shall keep the Yard Area and Roof Area
in a neat, clean and safe condition and pay all costs and expenses incurred in
connection with or otherwise related to its use of the Yard Area and the Roof
Area. Tenant's use of the Yard Area and the Roof Area shall comply with all of
the terms and conditions of this Lease as though they were part of the Premises,
except that the Yard Area and Roof Area shall not be considered part of the
Premises for purposes of calculating Base Rent or Tenant's Project Percentage
under this Lease. Prior to the expiration or earlier termination of this Lease,
Tenant shall remove any Alterations (defined below) and Personal Property
(defined below) from the Yard Area and Roof Area in accordance with PARAGRAPH 16
hereof and repair all damage to the Yard Area and Roof Area resulting from
Tenant's use thereof during the term of
{PAGE}
this Lease, all at Tenant's sole cost and expense. Tenant agrees to indemnify,
defend (with attorneys acceptable to Landlord) and hold Landlord, its agents,
employees, successors and assigns, harmless from and against any and all claims,
losses, damages and liabilities arising out of or in any way relating to,
involving, or in dealing with, the use of the Yard Area and the Roof Area by
Tenant and its agents, employees and contractors during the term of the Lease
and any default or breach by Tenant in the performance in a timely manner of any
obligation on Tenant's part to be performed under this Lease with respect to its
use and/or occupancy of the Yard Area and the Roof Area.
(b) PROJECT COMMON AREAS. Tenant's right to use the Project
Common Areas (as hereinafter defined) is a right in common with other tenants of
the Project, if any. For purposes of this Lease, the term "Project Common Areas"
shall mean all areas and facilities within the Project except for the Building
and the Other Buildings, including, but not limited to, parking areas, access
and perimeter roads, sidewalks, landscaped areas, service areas, trash disposal
facilities and similar areas, subject to the reasonable rules and regulations
and changes therein from time to time made by Landlord governing the use of the
Project Common Areas. Landlord shall at all times have exclusive control of the
Project Common Areas and may at any time temporarily close any part thereof,
exclude and restrain anyone from any part thereof, and/or temporarily or
permanently change the size, configuration, composition and/or location of the
Project Common Areas. Specifically, Landlord shall have the right from time to
time during the Lease Term (as hereinafter defined) to (a) grant easements
within the boundaries of the Project, (b) modify the parking areas and ingress
and egress to and from the parking areas and the buildings located within the
Project, (c) modify the directional flow of traffic in the Project, (d) make
alterations or additions to the Building, the Other Buildings and any other
buildings located within the Project, and (e) install, maintain, use, repair and
replace pipes, ducts, conduits and wires, leading through, under or over the
Premises to locations serving other parts of the Project. Landlord also reserves
the right to expand or contract the area of the Project, to make alterations
thereof or additions thereto and to construct and install additional buildings
and other improvements within the Project; provided, however that in such case,
Tenant's Project Percentage (as hereinafter defined) shall be proportionately
adjusted. In exercising any of the foregoing rights, (i) Landlord shall make
commercially reasonable efforts to minimize any disruption of Tenant's business
in the Premises, and (ii) Landlord shall not materially and adversely restrict
or limit Tenant's access to, or use of, the Premises or the parking to which
Tenant is entitled hereunder.
2. LEASE TERM
(a) TERM. The term of this Lease shall be a period of
approximately ten (10) years, commencing on the Commencement Date (defined in
Paragraph 2(b)) and ending, unless earlier terminated pursuant to the terms of
this Lease, on the last day of the one hundred twentieth (120th) full calendar
month after the Commencement Date (the "Expiration Date"). Such period, as the
same may be extended pursuant to the terms hereof, shall be referred to
hereinafter as the "Lease Term."
2
{PAGE}
(b) COMMENCEMENT DATE; DELIVERY DATES.
(i) COMMENCEMENT DATE. For purposes of this Lease,
the term "Commencement Date" shall be the earlier of (A) the date
Tenant first occupies the Premises for the purpose of conducting
business therein, or (B) May 1, 2001. The estimated completion date for
Landlord's Work (as defined in the Work Letter attached hereto as
EXHIBIT C) with respect to the Warm Building Shell described in the
Work Letter (the "Estimated Shell Completion Date") is December 30,
2000. The Warm Building Shell shall be deemed "substantially completed"
as and when specified in the Work Letter.
(ii) COMMENCEMENT DATE MEMORANDUM. Within ten (10)
days after the determination of the Commencement Date, Landlord and
Tenant shall execute a Commencement Date Memorandum in the form shown
in EXHIBIT D attached hereto.
(c) TENANT'S ACCESS. Upon full execution and delivery of this
Lease by the parties hereto, Tenant shall be allowed access to the Premises
prior to Landlord's completion of the Warm Building Shell improvements described
in the Work Letter for the purpose of constructing the Tenant Improvements,
provided that (i) Tenant's access and construction of the Tenant Improvements
(as defined in the Work Letter) in the Premises does not interfere with
Landlord's completion of the Warm Building Shell or occasion any labor dispute
as a result and (ii) Tenant provides Landlord and Landlord's architect with
twenty-four (24) hours' prior written notice of its intent to enter the Premises
or perform any work in the Premises. During any access by Tenant pursuant to
this Paragraph 2(c), Tenant assumes all risk of loss or damage to Tenant's
machinery, equipment, fixtures and other personal property and the Tenant
Improvements, and hereby agrees to indemnify, defend and hold harmless Landlord
from any loss or damage to such machinery, equipment, fixtures and personal
property and the Tenant Improvements, and all liability, loss or damage arising
from any injury to the property of Landlord, or its contractors, subcontractors
or materialmen, and any death or personal injury to any person or persons to the
extent arising out of Tenant's access or work, except for liability, loss or
damage caused by Landlord's gross negligence or willful misconduct.
(d) FAILURE TO DELIVER POSSESSION. If, for any reason,
Landlord cannot deliver possession of the Warm Building Shell to Tenant by the
Estimated Shell Completion Date, then this Lease shall remain in effect,
Landlord shall not be subject to any liability, and such failure shall neither
adjust the Commencement Date of the Lease nor extend the expiration date of this
Lease, provided, however, that the Commencement Date as defined in Paragraph
2(b)(i) above shall be extended, on a day for day basis, for each day that the
Premises are not delivered to Tenant in substantially completed condition
following the Estimated Shell Completion Date. Notwithstanding anything to the
contrary contained herein, if Landlord has not delivered the Premises in
substantially completed condition to Tenant prior to March 31, 2001, then Tenant
shall have the right thereafter to cancel this Lease by written notice to
Landlord within five (5) days thereafter, and upon such cancellation, Landlord
shall return all sums theretofore deposited by Tenant with Landlord, and neither
party shall have any further liability to the other.
3. RENT
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(a) BASE RENT
(i) INITIAL BASE RENT. Commencing on the Commencement
Date, and continuing thereafter until the Expiration Date or earlier
termination of this Lease, Tenant shall pay to Landlord base rent (the
"Base Rent") for the Premises in the amount of Four Dollars and
Twenty-Five Cents ($4.25) per month per rentable square foot of the
Premises then subject to the Lease. Base Rent shall be paid in advance
on the first day of each calendar month, in lawful money of the United
States, without abatement, deduction, claim, offset, prior notice or
demand except as otherwise specifically provided in this Lease. Tenant
shall pay to Landlord the first month's Base Rent upon execution of
this Lease.
(ii) ADJUSTMENTS. On the first (1st) day of the
thirteenth (13th) month after the Commencement Date and on each
anniversary of the Commencement Date thereafter the then current Base
Rent shall be increased by four percent (4%) until the Expiration Date
or the expiration of the extended term, if any, pursuant to the
Addendum Paragraph 1 (each, an "Adjustment Date").
(b) ADDITIONAL RENT. All monies other than Base Rent that
Tenant is required to pay under this Lease, including, without limitation, a
portion of repair and maintenance charges pursuant to Paragraph 8, Real Property
Taxes pursuant to Paragraph 10, insurance premiums pursuant to Paragraph 11 and
Operating Expenses pursuant to Paragraph 12, shall be deemed "Additional Rent"
and shall be paid to Landlord as provided in this Lease. The term "Rent" as used
herein shall refer to Base Rent plus any Additional Rent. All Rent shall be paid
to Landlord at Landlord's address set forth in the Lease Summary or at such
other place designated by Landlord in a written notice to Tenant. No Additional
Rent shall accrue under the Lease until on and after the Commencement Date.
(c) PRORATIONS. If the Commencement Date is not the first
(1st) day of a calendar month, or if the expiration date of this Lease is not
the last day of a calendar month, Base Rent due for the fractional month during
which this Lease commences or expires shall be prorated on the basis of a thirty
(30) day month. If the rentable square footage of the Premises changes in
accordance with Paragraph 1(a) of this Lease on other than the first day of a
calendar month, then the Base Rent for such calendar month shall be equitably
allocated on a per diem basis, based on the number of days in such calendar
month.
4. CONDITION OF PREMISES
Landlord shall deliver possession of the Warm Building Shell to Tenant
in the condition required pursuant to the Work Letter. Tenant acknowledges that,
except as expressly provided in this Lease, neither Landlord nor Landlord's
authorized agents, partners, members, subsidiaries, directors, officers and/or
employees (collectively, "Landlord's Agents") have made any representations or
warranties as to the suitability or fitness of the Premises for the conduct of
Tenant's business or for any other purpose, nor has Landlord or Landlord's
Agents agreed to undertake any Alterations (defined below in PARAGRAPH 7) or
construct any Tenant Improvements to the Premises. Notwithstanding anything to
the contrary in this Lease, Landlord warrants that, to the actual knowledge of
Landlord, on the commencement of the term hereof: (a) the Warm
4
{PAGE}
Building Shell shall comply with all laws, codes, ordinances and other
governmental requirements then applicable to the Premises, the Building and/or
the Project, (b) the Warm Building Shell, including the improvements and
equipment therein, shall be in good working order, condition and repair, and (c)
Landlord knows of no material defects in the Warm Building Shell which would
unreasonably interfere with Tenant's use and enjoyment of the Premises.
5. USE
(a) TENANT'S USE. Tenant shall use the Premises solely for
office, administration, research and development, laboratory, marketing,
manufacturing and warehousing purposes and any other legal purpose permitted by
the City of Brisbane, California, and shall not use the Premises for any other
use or purpose.
(b) COMPLIANCE WITH LAWS AND PROJECT RULES AND REGULATIONS.
(i) LAWS.
(A) TENANT'S COMPLIANCE. Tenant shall not
use the Premises or suffer or permit anything to be done in or
about the Premises which shall in any way conflict with the
requirements of any covenants, conditions and/or restrictions
of record, or with any law, statute, zoning restriction,
ordinance, order, rule, regulation or requirement of any duly
constituted public authorities (including, without limitation,
state, municipal, county and federal governments and their
departments, bureaus, boards and officials), whether now in
force or which may hereafter be in force, applicable to the
condition, use or occupancy of the Premises whether or not any
condition or occupancy is related to Tenant's particular use
of the Premises (collectively, "Laws"), including, without
limitation, (i) the San Bruno Mountain Area Habitat
Conservation Plan, as amended (the "HCP") and (ii) that
certain Declaration of Covenants and Restrictions on Real
Property on San Bruno Mountain. Throughout the Lease Term,
Tenant shall, at its own cost and expense, promptly and
properly observe and comply with all Laws applicable to
Tenant's use or occupancy of the Premises, including, without
limitation, the making by Tenant of any Alteration (as defined
in PARAGRAPH 7) to the Premises or any change to the Tenant
Improvements as may be necessitated by such Laws, including,
without limitation, all applicable building codes, Title III
of the Americans with Disabilities Act and all state and local
accessibility requirements (collectively, the "Accessibility
Requirements") and Title 24 of the California Code of
Regulations, as such may be amended from time to time. Capital
improvements to the structure of the Building in which the
Premises are located necessitated by Laws not related to
Tenant's alteration, use or occupancy of the Premises shall be
the responsibility of Landlord and the costs thereof shall be
paid by Tenant to the extent applicable pursuant to PARAGRAPH
12(c) hereof.
(B) LANDLORD'S COMPLIANCE. Landlord shall
construct the Warm Building Shell in compliance with all Laws.
In addition, Landlord shall maintain the Project Common Areas
and perform Landlord's maintenance and
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repair obligations pursuant to PARAGRAPH 8(a) of this Lease in
compliance with all Laws, including, without limitation, all
applicable building codes, Accessibility Requirements and
Title 24 of the California Code of Regulations, as such may be
amended from time to time.
(ii) RULES AND REGULATIONS. Tenant shall comply with
the Rules and Regulations of the Project which are attached hereto as
EXHIBIT E, as the same may be modified and amended from time to time by
Landlord in its reasonable discretion (the "Rules and Regulations"). In
the event of any conflict between the Rules and Regulations and the
Lease, this Lease shall control.
(c) HAZARDOUS MATERIALS.
(i) DEFINITION. As used herein, the term "Hazardous
Material" shall mean any substance: (i) the presence of which requires
investigation or remediation under any federal, state or local statute,
regulation, ordinance, order, action, policy or common law; (ii) which
is or becomes defined as a "hazardous waste," "hazardous substance,"
pollutant or contaminant under any federal, state or local statute,
regulation, ordinance, rule, directive or order or any amendments
thereto (hereinafter referred to as "Environmental Laws") including,
without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. Section 9601 et seq.) and/or
the Resource Conservation and Recovery Act (41 U.S.C. Section 6901 et
seq.); (iii) which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous
and is or becomes regulated by any governmental authority, agency,
department, commission, board, agency or instrumentality of the United
States, the State of California or any political subdivision thereof;
(iv) which contains gasoline, diesel fuel or other petroleum
hydrocarbons; (v) which contains polychlorinated biphenyls (PCBs),
asbestos or urea formaldehyde foam insulation; or (vi) radon gas.
(ii) EXISTING ENVIRONMENTAL CONDITION. Tenant
acknowledges and agrees that Tenant has received and reviewed a copy of
that certain report entitled "Updated Level One Environmental Site
Assessment" dated January 7, 1999, prepared by Lumina Technologies.
(iii) INDEMNITY. Tenant shall not, without the prior
written consent of Landlord, store, use, generate, transport, dispose
or release any Hazardous Materials on, in, under or about the Premises
or any portion of the Project; provided, however, that Tenant may,
without obtaining such consent, use and store on the Premises limited
quantities of commonly used standard office and janitorial supplies
containing chemicals categorized as Hazardous Materials so long as
Tenant uses, stores and disposes of all such Hazardous Materials in
strict compliance with all Environmental Laws and prudent business
practices. Notwithstanding the foregoing, Landlord shall not
unreasonably withhold its consent to Tenant's use, handling, storage,
generation, or transport of certain Hazardous Materials in, or about
the Premises, which are reasonably necessary for the conduct of
Tenant's business in the Premises, so long as, within a reasonable time
period prior to the use, handling, storage, generation or transport of
such Hazardous Materials in and about the Premises, Tenant submits to
Landlord a Hazardous Materials Management
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{PAGE}
Plan ("HMMP") for Landlord's review and approval, which approval shall
not be unreasonably withheld. The HMMP shall describe: (aa) the
quantities of each material to be used, (bb) the purpose for which each
material is to be used, (cc) the method of storage of each material,
(dd) the method of transporting each material to and from the Premises
and within the Premises, (ee) the methods Tenant will employ to monitor
the use, storage, handling and disposal of the material and to detect
any leaks or potential hazards, and (ff) any other information any
department of any governmental entity (city, state or federal) requires
prior to the issuance of any required permit for the Premises or during
Tenant's occupancy of the Premises. If Landlord determines in good
faith by inspection of the Premises or review of the HMMP that the
methods in use or described by Tenant are not adequate in Landlord's
good faith judgment to prevent or eliminate the existence of
environmental hazards, then Tenant shall not use, handle, generate,
transport, or store such Hazardous Materials at or about the Premises
unless and until such methods are approved by Landlord in good faith
and added to an approved HMMP. Once approved by Landlord, Tenant shall
strictly comply with the HMMP and shall not change its use, operations
or procedures with respect to Hazardous Materials without submitting an
amended HMMP for Landlord's review and approval as provided above.
Tenant shall pay to Landlord Lanldord's out-of-pocket costs and
expenses in connection with Landlord's review of the HMMP. In addition,
Tenant shall comply with all guidelines contained in the HCP with
respect to the use, storage and release of pesticides in or on the
Project by Tenant. Tenant shall be solely responsible for and shall
indemnify, defend and hold harmless Landlord and Landlord's Agents from
and against all claims, demands, judgments, losses, expenses, costs and
liabilities, including fees and costs of attorneys and consultants and
engineers (collectively, "Liabilities"), arising out of or in any way
relating to the storage, use, generation, transportation, disposal or
release of any Hazardous Material by Tenant and/or Tenant's affiliates
(defined as any entity which controls, is controlled by or under common
control with Tenant), subsidiaries, divisions, officers, directors,
partners, employees, agents, contractors, invitees, Tenants or
assignees (collectively, "Tenant's Agents") in, on, under or about the
Premises or any portion of the Project, including, without limitation,
any Liabilities arising out of or in any way relating to any
investigation, testing, removal, clean-up and/or restoration services,
work, materials and equipment necessary to return the Project (or any
part thereof) to full compliance with Environmental Laws and to
otherwise satisfactorily investigate and remediate the contamination
arising therefrom. If at any time during or after the Lease Term Tenant
becomes aware of any inquiry, investigation, administrative proceeding
or judicial proceeding by any governmental agency regarding the
storage, use or disposition of any Hazardous Materials by Tenant or
Tenant's Agents in, on, under or about the Premises or the Project,
Tenant shall, within five (5) days after first learning of such
inquiry, investigation or proceeding, give Landlord written notice
advising Landlord of the same. Tenant's obligations under this
PARAGRAPH 5(c)(iii) shall survive the expiration and/or earlier
termination of this Lease.
6. ASSIGNMENT AND SUBLETTING
(a) LANDLORD'S CONSENT. Tenant shall not assign this Lease,
sublease all or any portion of the Premises or mortgage or hypothecate this
Lease or all or any portion of Tenant's interest in this Lease or the Premises
(each, a "Transfer") without Landlord's prior
7
{PAGE}
written consent, which consent shall not be unreasonably withheld, conditioned
or delayed. Any attempted or purported Transfer without Landlord's prior written
consent shall be void and confer no rights upon any third party. If Tenant
attempts a Transfer without Landlord's prior written consent, Landlord may (i)
terminate this Lease, or (ii) accept rent from the purported Tenant or assignee
(each, a "Transferee") and apply such rent against Tenant's Base Rent and
Additional Rent obligations under this Lease. No such acceptance of rent shall
be deemed an express or implied waiver of Tenant's breach of this Paragraph
6(a). unless such waiver is in writing and signed by Landlord, and Landlord
reserves all rights and remedies arising with respect to such breach by Tenant,
including, without limitation, the right to terminate this Lease. Such
acceptance of rent from a purported Transferee shall not be construed to
constitute a consent to the purported Transfer or to give the purported
Transferee a right of possession with respect to the Premises.
(b) TRANSFEREE FORM. Each Transfer shall be by an instrument
in writing in a form reasonably satisfactory to Landlord, and shall be executed
by Tenant and Transferee. Tenant and the proposed Transferee shall agree in
writing, for the benefit of Landlord, to be jointly and severally liable for all
costs and expenses in connection with any obligation to install or construct any
Alterations to the Premises or improvements to other portions of the Project
that may be required by any Laws (including any Accessibility Requirements) as a
result of such proposed Transfer. Each Transferee shall agree in writing, for
the benefit of Landlord, to assume, to be bound by and to perform the terms,
conditions and covenants of this Lease to be performed by Tenant as applicable
to the transferred premises. Notwithstanding anything contained herein, Tenant
shall not be released from personal liability for the performance of each term,
condition and covenant of this Lease by reason of Landlord's consent to a
Transfer unless Landlord specifically grants such release in writing.
(c) NO WAIVER. Consent by Landlord to one Transfer shall not be deemed
to be a consent to any subsequent Transfer.
(d) INFORMATION TO BE FURNISHED. If Tenant desires at any time to
Transfer the Premises or any portion thereof, it shall first notify Landlord of
its desire to do so and shall submit in writing to Landlord: (i) the name of the
proposed Transferee; (ii) the nature of the proposed Transferee's business to be
carried on in the Premises; (iii) the terms and provisions of the proposed
Transfer and a copy of the proposed Transfer agreement and related agreements;
(iv) such financial information, including financial statements, as Landlord may
reasonably request concerning the proposed Transferee. Tenant shall reimburse
Landlord, as Additional Rent, for all reasonable legal and other expenses
incurred by Landlord in connection with any request by Tenant for consent to a
Transfer.
(e) LANDLORD'S ALTERNATIVES. At any time within twenty (20) days after
Landlord's receipt of all of the information specified in Paragraph 6(d),
Landlord may, by written notice to Tenant, elect: (i) to terminate this Lease
and recapture the entire Premises, in the event of an assignment, or the portion
of the Premises that Tenant proposes to sublease, in the event of a sublease
which, when taken together with all other existing subleases, covers more than
fifty percent (50%) of the rentable area of the Premises and the term of the
proposed sublease is over thirty-six (36) months, in which event this Lease
shall terminate as to, and Tenant shall surrender to Landlord, the portion of
the Premises that Landlord has elected to
8
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recapture as of the date specified in Landlord's election notice (which in no
event shall be less than fifteen (15) nor more than one hundred twenty (120)
days following the date of Landlord's election notice); (ii) to consent to the
Transfer by Tenant; or (iii) to reasonably refuse its consent to the Transfer,
in which case Landlord shall specify the reasons for its refusal in Landlord's
election notice. Landlord may withhold its consent to any Transfer pursuant to
clause (iii) above if Landlord determines that the Subrent is less than ninety
percent (90%) of fair market rent. If Landlord fails to elect any of the
alternatives set forth in Paragraph 6(e)(i) through Paragraph 6(e)(iii) above
within thirty (30) days following Landlord's receipt of all of the information
specified in Paragraph 6(d), it shall be deemed that Landlord has not consented
to the Transfer. If Landlord proceeds with Paragraph 6(e)(ii) and consents to
the Transfer, Tenant may thereafter enter into a valid Transfer of the Premises
or portion thereof, upon the terms and conditions and with the proposed
Transferee set forth in the information furnished by Tenant to Landlord pursuant
to Paragraph 6(d), subject, however, to the condition that Tenant shall pay to
Landlord fifty percent (50%) of any excess of the Subrent (defined below) over
the rent required to be paid by Tenant hereunder, less Tenant's reasonable
Transfer Costs. For the purposes of the foregoing, the term "Transfer Costs"
shall mean all actual costs and expenses paid by Tenant to effect the Transfer,
including, without limitation, the amortized cost of any alterations or
leasehold improvements made by Tenant at the request of the transferee that
would not have been constructed for Tenant's occupancy of the subject portion of
the Premises, amortized on a straight line basis, without interest, over the
term of this Lease, in the event of an assignment, and the term of the proposed
Transfer, in the event of a sublease, and (ii) any leasing commissions paid by
Tenant incidental to such Transfer, but not including vacancy costs or the cost
of any alterations or leasehold improvements made to the Premises other than
those performed to effect the Transfer. Any such Subrent to be paid to Landlord
pursuant hereto shall be payable to Landlord as and with the Base Rent payable
to Landlord hereunder pursuant to Paragraph 3(a).
(f) PERMITTED TRANSFER. Notwithstanding anything to the contrary
contained in this Lease, but subject to the net-worth requirement for a
Permitted Transferee (defined below) described below, Tenant may assign this
Lease or sublet the Premises, or any portion thereof, without Landlord's
consent, to any of the following (each, a "Permitted Transferee"): (i) any
entity which controls, is controlled by, or is under common control with Tenant;
(ii) any entity which results from a merger of, reorganization of, or
consolidation with Tenant; (iii) any entity which acquires substantially all of
the stock or assets of Tenant, as a going concern, with respect to the business
that is being conducted in the Premises (hereinafter each a "Permitted
Transfer"). In addition, sale or transfer of the capital stock of Tenant other
than as described in subparagraph (iii) above shall be deemed a Permitted
Transfer. Notwithstanding anything to the contrary contained herein, a Permitted
Transferee shall have a minimum net worth (excluding intangible assets) of
$100,000,000. Landlord shall have no right to terminate this Lease in connection
with, and shall have no right to any sums or other economic consideration
resulting from any Permitted Transfer.
(g) EXECUTED COUNTERPART. No Transfer shall be valid nor shall any
Transferee take possession of the Premises until an executed counterpart of the
Transfer agreement has been delivered to Landlord.
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(h) DEFINITIONS. The following terms as used herein shall have the
following meanings:
(i) SUBRENT. The term "Subrent" shall mean any consideration
of any kind received, or to be received, by Tenant from a Transferee if
such sums are related to Tenant's interest in this Lease or in the
Premises.
(ii) TENANT. The term "Tenant" shall mean the person or entity
with whom a Sublet agreement is proposed to be or is made.
7. ALTERATIONS
(a) CONSENT TO ALTERATIONS. Tenant shall not make or permit
any modifications, additions or improvements in, on or about the Premises,
including, but not limited to, lighting, heating, ventilating, air conditioning,
electrical, partitioning, fixtures, window and wall covering and carpentry
installations (collectively, "Alterations"), without the prior written consent
of Landlord. Notwithstanding the foregoing, Tenant shall have the right to make
nonstructural Alterations costing in the aggregate not more than Thirty Thousand
Dollars ($30,000) in any twelve (12) month period without Landlord's prior
consent, provided that such Alterations (i) are not visible from any point
outside of the Building, and (ii) will not affect the systems or structure of
the Building. Landlord shall not unreasonably withhold, condition or delay its
consent to any nonstructural Alterations provided that (i) the nonstructural
Alterations are not visible from any point outside of the Building, and (ii) do
not affect the building systems or structural components of the Building. In no
event may Tenant modify any building systems or structural components of the
Building without Landlord's consent, which consent may be withheld by Landlord
in its sole and absolute discretion; provided, however, that if Landlord's
architect and/or engineer, to the extent applicable, approve Alterations
proposed by Tenant to the building systems in the Building and Tenant uses
subcontractors approved by Landlord to perform such building systems
Alterations, Landlord agrees not to unreasonably withhold its consent to those
Alterations. Tenant shall request Landlord's consent in writing and shall
deliver Tenant's written request to Landlord with reasonably detailed plans and
specifications for the proposed Alterations prepared at Tenant's expense by a
licensed architect or engineer, together with a list of the contractors that
Tenant would like to use to install the subject Alteration(s). Landlord shall
consent to or disapprove the Alterations proposed by Tenant within ten (10)
business days after Landlord's receipt of Tenant's written request and a copy of
Tenant's proposed plans and specifications and list of proposed contractors. If
Landlord fails to respond to Tenant's written request for Landlord's consent to
Tenant's proposed Alterations made in strict compliance with Paragraph 14 hereof
within the above-referenced ten (10) business day period, Landlord shall be
deemed to have approved Tenant's request. Additionally, Landlord shall have the
right to pre-approve (not to be unreasonably withheld) all contractors selected
by Tenant to construct and install the Alterations. Tenant shall reimburse
Landlord for Landlord's reasonable out-of-pocket costs incurred in connection
with reviewing and approving or disapproving any request for an Alteration,
including the plans and specifications thereof proposed by Tenant.
(b) GENERAL CONDITIONS FOR ALTERATIONS. All Alterations shall
be installed at Tenant's sole expense, in compliance with all applicable Laws
and in accordance with the plans
10
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and specifications delivered to and approved by Landlord; provided, however,
that neither Landlord's acceptance nor approval of any such plans and
specifications shall imply that Landlord in any way covenants or warrants that
the same are safe or that they comply with applicable Laws. All Alterations
shall be performed in a good and workmanlike manner conforming in quality and
design with the Premises existing as of the Commencement Date, and shall not
diminish the value of the Premises or the Project. The workmanship and materials
used in all Alterations shall be of a quality equal to or exceeding that used
generally throughout the Project. Tenant shall indemnify and hold harmless
Landlord and Landlord's Agents from any and all Liabilities incurred by Landlord
and/or Landlord's Agents as a result of any defects in the design, materials or
workmanship of the Alterations, and/or failure of Tenant or Tenant's Agents to
comply with applicable Laws, including, without limitation, all applicable
Accessibility Requirements.
(c) NOTICE AND LIENS. Tenant shall notify Landlord in writing
at least ten (10) business days prior to the commencement of any work on
Alterations approved by Landlord, and Landlord shall be entitled to post and
record Notices of Nonresponsibility or other notices deemed proper before the
commencement of such work. If Tenant fails to cause any lien filed against the
Premises in connection with any work performed or claimed to have been performed
by or at the direction of Tenant to be released of record by payment or posting
of a proper bond acceptable to Landlord within ten (10) days from the date of
such filing, then Landlord may do so at Tenant's expense and Tenant shall
reimburse Landlord for such amount as Additional Rent. Such reimbursement shall
include all sums disbursed, incurred or deposited by Landlord, including
Landlord's costs, expenses and reasonable attorneys' fees, with interest thereon
at an interest rate of ten percent (10%) per annum from the date of payment by
Landlord.
(d) REMOVAL OF ALTERATIONS. Landlord shall notify Tenant
within ten (10) days after Landlord receives the plans and specifications for
any proposed Alteration or, if Tenant is not required to obtain Landlord's
consent to the Alteration, within ten (10) days after Tenant notifies Landlord
in writing of its intent to make an Alteration, as to whether Tenant will be
required to remove the proposed Alteration upon the termination of Tenant's
lease of that portion of the Premises in which the Alteration is to be
constructed. If Landlord so notifies Tenant within said ten (10)-day period,
then Tenant shall remove the proposed Alteration and to repair or restore any
damage caused by the installation and removal of such Alteration at the
expiration or earlier termination of Tenant's lease of that portion of the
Premises in which the Alteration is constructed, all at Tenant's sole cost and
expense; provided, however, Tenant shall only be required to remove those
Alterations which are specified in Landlord's notice. Tenant shall fully and
promptly repair all damage caused by the removal of Alterations from the
Premises. In no event shall Tenant be required to remove any of the initial
Tenant Improvements, except where Landlord has given Tenant written notice that
such Tenant Improvements, or portion thereof, must be removed in accordance with
this Paragraph 7(d).
(e) MAINTENANCE OF ALTERATIONS. Notwithstanding any other
provision of this Lease, Tenant shall be solely responsible for the maintenance
and repair of any and all Alterations to the Premises made by Tenant, or by
Landlord at Tenant's expense.
8. REPAIR AND MAINTENANCE
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(a) LANDLORD. Landlord, at its expense, shall keep in good
order, condition and repair the foundations of the Building, the structural
components of the Building, the exterior walls of the Building (excluding the
interior finish surface thereof), and the roof structures and membranes on the
Building; provided, however, that any damage thereto caused by the gross
negligence or willful acts or omissions of Tenant or Tenant's Agents, or by
reason of the failure of Tenant to perform or comply with any terms, conditions
or covenants in this Lease, or caused by any Alterations made by or for Tenant,
shall be at Tenant's sole expense. In addition, Landlord shall be responsible
for maintaining the outside landscaping of the Project in good condition and
repair, the cost of which shall constitute an Operating Expense under this
Lease. Landlord shall enter into regularly scheduled maintenance/service
contracts for servicing the elevators within the Building, unless Landlord
elects for Tenant to do so pursuant to Paragraph 8(b) below, the cost of which
shall constitute an Operating Expense under this Lease. Also, Landlord shall
enter into regularly scheduled preventive maintenance/service contracts with
maintenance contractors acceptable to Landlord for servicing all hot water and
heating and air conditioning (the "HVAC") systems and equipment in the Premises,
the cost of which shall constitute an Operating Expense under this Lease. It is
an express condition precedent to all obligations of Landlord to repair and
maintain the Bui
278350
|
CSFB Mortgage
As referenced in this Lease:
Credit
Suisse First Boston Mortgage Capital – DISTURBANCE
AND ATTORNMENT AGREEMENT
This Subordination, Non-Disturbance and Attornment Agreement
(this "AGREEMENT") is as of the _____ day of ____________, 2000-, between Credit
Suisse First Boston Mortgage Capital LLC ("LENDER") and ___________________
("TENANT").
RECITALS
A. Tenant is the tenant under a certain lease (the "LEASE"),
dated as of _______________________, 2000, with
_____________
Credit Suisse First Boston Mortgage Capital – the following addresses:
4
{PAGE}
If to Tenant: ___________________________
___________________________
___________________________
___________________________
with a copy to: ___________________________
___________________________
___________________________
___________________________
If to Lender: Credit Suisse First Boston Mortgage Capital LLC
Real Estate Products Group
11 Madison Avenue
New York, New York 10010
Attention: Asset Management
Re: [NAME OF DEAL/NAME OF BANKER]
_____________
Credit Suisse First Boston Mortgage Capital – Avenue
New York, New York 10010
Attention: Asset Management
Re: [NAME OF DEAL/NAME OF BANKER]
Telecopier: (212) 325-8164
with copies to: Credit Suisse First Boston Mortgage Capital LLC
Legal and Compliance Department
11 Madison Avenue
New York, New York 10010
Attention: Colleen Graham, Esq.
Re: [NAME OF DEAL/NAME OF
_____________
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL – accordance with the laws of
the State where the Premises is located.
Witness the execution hereof as of the date first above written.
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC
By: _________________________________
Name: ___________________________
Title: ____________________________
[TENANT]
By: _________________________________
Name: ___________________________
Title: ____________________________
The undersigned Landlord hereby consents to the foregoing
Agreement
_____________
dt 196329
;
| |
Preview
Full Doc
| 2003 |
Deed of Trust Note
Deed of Trust Note (35K)
Doc #336632: Click preview link for longer preview.
DEED OF TRUST NOTE
$41,841,021.29 December 23, 1997
For value received, FPR HOLDINGS LIMITED PARTNERSHIP, a Delaware
limited partnership, having its principal place of business at c/o Donatelli &
Klein Inc., Artery Plaza, 7200 Wisconsin Avenue, Suite 310, Bethesda, Maryland
20814 (hereinafter referred to as "MAKER"), promises to pay to the order of
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC, a Delaware limited liability
company ("LENDER" and also sometimes " . . .
336632
|
CSFB Mortgage
As referenced in this Deed of Trust Note:
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL – Inc., Artery Plaza, 7200 Wisconsin Avenue, Suite 310, Bethesda, Maryland
20814 (hereinafter referred to as "MAKER"), promises to pay to the order of
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC, a Delaware limited liability
company ("LENDER" and also sometimes "PAYEE"), having its principal office at 11
Madison Avenue, New York, New York
_____________
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL – limited partnership
By: FPR-GP HOLDINGS, Inc.,
a Delaware corporation,
General Partner
By:
------------------------------------
Name:
Title:
Pay to the order of _________________,
without recourse.
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC,
a Delaware limited liability company
By: ________________________________
Name:
Title:
-12-
{/TEXT}
{/DOCUMENT}
_____________
dt 704981
;
| |
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Full Doc
| 2002 |
Investment Agreement
Investment Agreement (48K)
Doc #257565: Click preview link for longer preview.
INVESTMENT AGREEMENT
THIS INVESTMENT AGREEMENT (the "Agreement") is made and entered into as of
July 20, 2001, by and among the investors signing this Agreement (collectively,
the "Investors") who have agreed to participate in BFSC's Recapitalization Plan
by making the Capital Contributions into OFLLC in exchange for the issuance of
the number of Membership Units in OFLLC which are set forth next to each
Investor's name on Exhibit A attached hereto. Capitalized terms that are used
in this Agreement are defined in Section 1 below. . . .
257565
|
CSFB Mortgage
As referenced in this Investment Agreement:
Credit Suisse First Boston Mortgage Capital, – of 11% and a cap of 15%, (d) be subordinated
in all respects to BFSC Entities' current credit facility (the "Senior
Facility") with Credit Suisse First Boston Mortgage Capital, LLC (the "Senior
Lender"), and (e) be secured by all assets of OFLLC and the OFLLC Subsidiaries
to the extent permitted under
_____________
dt 135473
;
Origen Financial
As referenced in this Investment Agreement:
Origen Financial, – each as more fully described in such Merger Agreement.
"MERGERS" mean the statutory merger transactions described in the Merger
Agreement.
"OFI" shall mean Origen Financial, Inc., a Virginia corporation.
3
{PAGE}
"OFI SUBSIDIARIES" shall mean collectively each of the following
corporations which are wholly owned by OFI:
_____________
Origen Financial – organized in Delaware, and Origen Manufactured Home Financial, Inc. and
Origen Insurance Agency, Inc., each of which is organized in Virginia.
"OFLLC" means Origen Financial L.L.C., a limited liability company
organized under the laws of the State of Delaware pursuant to the
Certificate of Formation and
_____________
dt 134777
;
Origen Financial
As referenced in this Investment Agreement:
Origen Financial L – OFI: Origen Special Holdings Corporation
which is organized in Delaware, and Origen Manufactured Home Financial, Inc. and
Origen Insurance Agency, Inc., each of which is organized in Virginia.
"OFLLC" means Origen Financial L .L.C., a limited liability company
organized under the laws of the State of Delaware pursuant to the
Certificate of Formation and OFLLC's Limited Liability Company Agreement.
"OFLLC
_____________
dt 1313385
;
|
Sun Communities
As referenced in this Investment Agreement:
Sun Communities Operating Limited Partnership, – which is more particularly described on the Term Sheet and
in the schematic representations that are attached hereto as Exhibit E.
"SCOLP" means Sun Communities Operating Limited Partnership, a limited
partnership organized under the laws of Michigan.
"SCOLP LINE OF CREDIT" means the $12,500,000.00 stand-by line
_____________
dt 132094
;
Sun Communities
As referenced in this Investment Agreement:
Sun Communities, Inc – in accordance with the terms and
conditions set forth in the minutes of the meetings of the Boards of
Directors of BFSC and Sun Communities, Inc . which were each held on June
25, 2001."
F. The definition of "Series B Units" set forth in the Agreement is hereby
_____________
dt 132192
|
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Full Doc
| 2006 |
Lease Termination Agreement
Lease Termination Agreement (16K)
Doc #2562082: Click preview link for longer preview.
LEASE TERMINATION AGREEMENT
THIS LEASE TERMINATION AGREEMENT (this �Agreement�) is made and entered into as of the 13 day of October, 2006, by and between CAPTEC FRANCHISE CAPITAL PARTNERS, L.P. IV a Michigan corporation (�Landlord�), and BLOCKBUSTER INC., a Delaware corporation (�Tenant�).
W I T N E S S E T H
A. Landlord and Tenant entered into that certain lease dated April 10, 1997 (collectively with all amendments thereto, the �Lease�), whereby Landlord leased to Tenant, and Tenant leased from Landlord, the . . .
2562082
|
CSFB Mortgage
As referenced in this Lease Termination Agreement:
Credit Suisse First Boston Mortgage Capital, L – described according to that certain Boundary and Topographic Survey for Atlantis Properties, L.L.C., Regions Bank, Blockbuster Videos, Inc., Commonwealth Land Title Insurance Company, Captec Net Lease Realty, Inc., Credit Suisse First Boston Mortgage Capital, L .L.C., and First American Title Insurance Company prepared by Travis Pruitt & Associates, P.C., certified by Travis N. Pruitt, Sr., GRLS No. 1729, dated February 4, 1997,
_____________
dt 1621758
;
Blockbuster
As referenced in this Lease Termination Agreement:
BLOCKBUSTER INC – this Agreement) is made and entered into as of the 13 day of October, 2006, by and between CAPTEC FRANCHISE CAPITAL PARTNERS, L.P. IV a Michigan corporation (Landlord), and BLOCKBUSTER INC ., a Delaware corporation (Tenant).
W I T N E S S E T H
A. Landlord and Tenant entered into that certain lease dated April 10, 1997 (collectively with
_____________
BLOCKBUSTER INC – LANDLORD:
WITNESSES:
CAPTEC FRANCHISE CAPITAL PARTNERS L.P. IV,
a Michigan corporation
_/s/
_/s/
By: /s/ Daniel J. Kelly__________________________
Name: Daniel J. Kelly__________________________
Title: Vice President ___________________________
TENANT:
BLOCKBUSTER INC .,
WITNESSES:
a Delaware corporation
_/s/
By: /s/ Stephen B. Krumholz_____________________
_/s/
Name: Stephen B. Krumholz
Title: Senior Vice President
3
[ACKNOWLEDGEMENT OF LANDLORD]
STATE OF Michigan )
) SS:
_____________
BLOCKBUSTER INC – On this 12 day of October, 2006, before me, the undersigned Notary Public in and for said County and State, personally appeared Stephen B. Krumholz, as Senior Vice President of BLOCKBUSTER INC ., a Delaware corporation, who executed the foregoing instrument on behalf of said corporation for the purposes therein expressed. He is personally known to me and did not take an
_____________
dt 1628672
;
|
Viacom
As referenced in this Lease Termination Agreement:
Viacom Inc – the Lease or the Premises, save and except any failure to comply with the terms of this Agreement. Upon termination of the Lease as aforesaid, Landlord further releases and discharges Viacom Inc . (Guarantor) of and from any and all liabilities and obligations under that certain Guaranty executed by Guarantor on April 4, 1997, in favor of Landlord, which Guaranty guaranteed the
_____________
dt 1638797
|
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Full Doc
| 2002 |
Loan Agreement
Loan Agreement (279K)
Doc #254788: Click preview link for longer preview.
{DOCUMENT}
{TYPE}EX-10
{SEQUENCE}11
{FILENAME}ex10-9.txt
{DESCRIPTION}EXHIBIT 10.9
{TEXT}
{PAGE}
================================================================================
LOAN AGREEMENT
BY AND BETWEEN
SWH FUNDING CORP.,
AS LENDER
AND
CEDAR INCOME FUND PARTNERSHIP, L.P.,
AS BORROWER
AS OF NOVEMBER ___, 2002
================================================================================
{PAGE}
{TABLE}
{CAPTION}
Page
----
{S} {C}
ARTICLE 1 -- PARTICULAR TERMS; DEFINITIONS........................................................................1
ARTICLE 2 -- THE LOAN............................................................................................17
2.1 Loan Funding..............................................................................................17
2.2 Interest Rate.............................................................................................18
2.3 Payments..................................................................................................18
2.3.1 Basic Interest...................................................................................18
2.3.2. Principal Payments...............................................................................18
2.3.3 Repayment of Outstanding Principal Balance.......................................................19
2.3.4 Fees.............................................................................................19
2.3.5 General..........................................................................................19
2.4 Loan Term.................................................................................................20
2.5 Change In Law, Etc........................................................................................20
2.6 Prepayment................................................................................................21
2.7 Default Interest; Late Charge.............................................................................21
2.8 Maximum Amount of Interest................................................................................22
2.9 Loan Taxes................................................................................................23
2.10 Servicing.................................................................................................24
ARTICLE 3 -- CERTAIN REPRESENTATIONS AND WARRANTIES OF BORROWER..................................................25
3.1 Borrower Organization, Enforceability, Etc................................................................25
3.1.1 Borrower Status..................................................................................25
3.1.2 Guarantor/General Partner Status.................................................................25
3.1.3 Status of Limited Partners.......................................................................26
3.1.3 Status of Borrower Affiliates....................................................................26
3.1.5 No Other Partners................................................................................26
3.1.6 Structure of Borrower and the Bryant Owners......................................................26
3.1.7 Guarantor........................................................................................26
3.2 Address For Borrower Entities.............................................................................26
3.3 Organizational Documents..................................................................................26
3.4 Guarantor's Organizational Documents......................................................................27
3.5 Title.....................................................................................................27
3.6 Uses......................................................................................................27
3.7 No Structural Defects.....................................................................................27
{/TABLE}
i
{PAGE}
{TABLE}
{CAPTION}
Page
----
{S} {C}
3.8 Compliance with Zoning, Etc...............................................................................27
3.9 No Condemnation...........................................................................................28
3.10 No Casualty...............................................................................................28
3.11 Purchase Options..........................................................................................28
3.12 No Encroachments..........................................................................................28
3.13 Litigation................................................................................................28
3.14 No Conflict with Law or Agreements........................................................................29
3.15 Personal Property.........................................................................................29
3.16 Easements; Access; Utilities..............................................................................29
3.17 No Flood Hazard, Etc......................................................................................30
3.18 Property Taxed as a Separate Tax Lot......................................................................30
3.19 Leases....................................................................................................30
3.20 Environmental.............................................................................................31
3.21 Access Laws...............................................................................................31
3.22 No Default................................................................................................32
3.23 No Offsets................................................................................................32
3.24 Fraudulent Conveyance.....................................................................................32
3.25 Broker....................................................................................................32
3.26 Financial Statements......................................................................................32
3.27 No Insolvency.............................................................................................33
3.28 Fiscal Year...............................................................................................33
3.29 No Other Financing........................................................................................33
3.30 ERISA ....................................................................................................33
3.31 FIRPTA....................................................................................................33
3.32 PUHCA ....................................................................................................33
3.33 Insurance................................................................................................33
3.34 Securities Laws...........................................................................................33
3.35 Investment Company Act....................................................................................34
3.36 Taxes; Impositions........................................................................................34
3.37 Full and Accurate Disclosure..............................................................................34
3.38 Contracts.................................................................................................34
3.39 Other Obligations and Liabilities.........................................................................35
3.40 Documents.................................................................................................35
3.41 No Strikes................................................................................................35
3.42 Consumer Credit Laws; Usury...............................................................................35
{/TABLE}
ii
{PAGE}
{TABLE}
{CAPTION}
Page
----
{S} {C}
ARTICLE 4 -- CERTAIN COVENANTS OF BORROWER.......................................................................35
4.1 Payment and Performance of Obligations....................................................................35
4.2 Transfers.................................................................................................36
4.3 Liens.....................................................................................................37
4.4 Indebtedness..............................................................................................37
4.5 Compliance with Restrictive Covenants, Etc................................................................37
4.6 Leases....................................................................................................38
254788
|
CSFB Mortgage
As referenced in this Loan Agreement:
Credit Suisse First Boston Mortgage
Capital – 2(a)
hereof.
"Washington Center Loan" shall mean that certain loan in the original
principal amount of $6,200,000.00, made by Credit Suisse First Boston Mortgage
Capital LLC to Washington Center Shops, L.P., which loan (a) is secured by,
inter alia, a mortgage encumbering the Shopping Center commonly known
_____________
dt 113020
;
Brentway
As referenced in this Loan Agreement:
Brentway Management – withdrawal or similar occurrence) the result of which is either
that (a) Guarantor no longer controls, directly or indirectly, Borrower and/or
(b) Brentway Management LLC no longer manages all of the Properties or (c) Leo
Ullman no longer controls, directly or indirectly, Brentway Management LLC.
"Claim" shall
_____________
Brentway Management – and/or
(b) Brentway Management LLC no longer manages all of the Properties or (c) Leo
Ullman no longer controls, directly or indirectly, Brentway Management LLC.
"Claim" shall have the meaning ascribed thereto in Section 7.5(b)
hereof.
"Code" shall mean the Internal Revenue Code of 1986,
_____________
Brentway Management, – 9, 2002 (revised November 12, 2002), prepared by
Daniel Jay Hartman, Registered Professional Land Surveyor No. 048538-E, as
certified to, without limitation, Brentway Management, LLC, Fidelity and Lender.
"Tax or Taxes" shall mean any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding
_____________
Brentway Management – management agreement(s) with Manager(s) approved by Lender (each, a
"Management Agreement"), such approval not to be unreasonably withheld. Lender
hereby approves Brentway Management LLC as the initial Manager for each
Property. Notwithstanding anything to the contrary herein contained, any third
party managing agent, and the terms
_____________
dt 112430
;
Cedar Bay Realty
As referenced in this Loan Agreement:
Cedar
Bay Realty Advisors, – its
successors, assigns and/or participants, "Lender"), and CEDAR INCOME FUND
PARTNERSHIP, L.P., a Delaware limited partnership, having an office c/o Cedar
Bay Realty Advisors, Inc., 44 South Bayles Avenue, Suite 304, Port Washington,
New York 11050 ("Borrower").
W I T N E S S E T
_____________
Cedar Bay Realty Advisors, – Avenue
New York, New York 10017
Attention: Jay Stark, Esq.
Facsimile: (212) 605-0999
Borrower:
Cedar Income Fund Partnership, L.P.
c/o Cedar Bay Realty Advisors, Inc.
44 South Bayles Avenue, Suite 304
Port Washington, New York 11050
Attention: Brenda J. Walker
Facsimile: (516) 767-6497
with a
_____________
Cedar Bay Realty Advisors, – 44 South Bayles Avenue, Suite 304
Port Washington, New York 11050
Attention: Brenda J. Walker
Facsimile: (516) 767-6497
with a copy to:
Cedar Bay Realty Advisors, Inc.
44 South Bayles Avenue, Suite 304
Port Washington, New York 11050
Attention: Stuart H. Widowski, Esq.
Facsimile: (516) 767-6497
Any
_____________
dt 112612
;
|
CIFP
As referenced in this Loan Agreement:
CEDAR INCOME FUND PARTNERSHIP, – SEQUENCE}11
{FILENAME}ex10-9.txt
{DESCRIPTION}EXHIBIT 10.9
{TEXT}
{PAGE}
================================================================================
LOAN AGREEMENT
BY AND BETWEEN
SWH FUNDING CORP.,
AS LENDER
AND
CEDAR INCOME FUND PARTNERSHIP, L.P.,
AS BORROWER
AS OF NOVEMBER ___, 2002
================================================================================
{PAGE}
{TABLE}
{CAPTION}
Page
----
{S} {C}
ARTICLE 1 -- PARTICULAR TERMS; DEFINITIONS........................................................................1
ARTICLE
_____________
CEDAR INCOME FUND
PARTNERSHIP, – Jersey corporation, having an
office at Two University Plaza, Hackensack, New Jersey 07601 (together with its
successors, assigns and/or participants, "Lender"), and CEDAR INCOME FUND
PARTNERSHIP, L.P., a Delaware limited partnership, having an office c/o Cedar
Bay Realty Advisors, Inc., 44 South Bayles Avenue, Suite 304,
_____________
Cedar Income Fund Partnership, – copy to:
Solomon and Weinberg LLP
685 Third Avenue
New York, New York 10017
Attention: Jay Stark, Esq.
Facsimile: (212) 605-0999
Borrower:
Cedar Income Fund Partnership, L.P.
c/o Cedar Bay Realty Advisors, Inc.
44 South Bayles Avenue, Suite 304
Port Washington, New York 11050
Attention: Brenda
_____________
CEDAR INCOME FUND PARTNERSHIP, – day and year first above written.
LENDER:
SWH FUNDING CORP.,
a New Jersey corporation
By:
---------------------------------
Name: Sanford S. Herrick
Title: Vice President
BORROWER:
CEDAR INCOME FUND PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Cedar Income Fund, Ltd.,
a Maryland corporation,
General Partner
By:
---------------------------
Name: Leo S. Ullman
Title:
_____________
dt 109108
;
More... |
Preview
Full Doc
| 2001 |
Loan Agreement
Loan Agreement (374K)
Doc #254873: Click preview link for longer preview.
{DOCUMENT}
{TYPE}EX-10.16
{SEQUENCE}19
{FILENAME}ex10-16.txt
{DESCRIPTION}EX-10.16
{TEXT}
{PAGE}
===============================================================================
LOAN AGREEMENT
BY AND BETWEEN
SWH FUNDING CORP.,
AS LENDER
AND
CEDAR INCOME FUND PARTNERSHIP, L.P.,
AS BORROWER
AS OF OCTOBER ___, 2001
===============================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
{S} {C}
Page
----
ARTICLE 1 -- PARTICULAR TERMS; DEFINITIONS........................................................................1
ARTICLE 2 -- THE LOAN............................................................................................23
2.1 Loan Funding..............................................................................................23
2.2 Interest Rate.............................................................................................24
2.3 Payments..................................................................................................24
2.3.1 Basic Interest...................................................................................24
2.3.2 Principal Payments...............................................................................24
2.3.3 Repayment of Outstanding Principal Balance.......................................................25
2.3.4 Fees.............................................................................................25
2.3.5 General..........................................................................................25
2.3.6 Net Proceeds.....................................................................................25
2.4 Loan Term.................................................................................................26
2.5 Change In Law, Etc........................................................................................27
2.6 Prepayment................................................................................................28
2.7 Default Interest; Late Charge.............................................................................28
2.8 Maximum Amount of Interest................................................................................29
2.9 Loan Taxes................................................................................................30
2.10 Servicing.................................................................................................31
ARTICLE 3 -- CERTAIN REPRESENTATIONS AND WARRANTIES OF BORROWER..................................................32
3.1 Borrower Organization, Enforceability, Etc................................................................32
3.1.1 Borrower Status..................................................................................32
3.1.2 Guarantor/General Partner Status.................................................................32
3.1.3 Status of Limited Partners.......................................................................33
3.1.4 No Other Partners................................................................................33
3.1.5 Structure of Borrower............................................................................33
3.1.6 Guarantor........................................................................................33
3.2 Borrower Address..........................................................................................33
3.3 Organizational Documents..................................................................................33
3.4 Guarantor's Organizational Documents......................................................................33
3.5 Title.....................................................................................................34
3.6 Valid Liens...............................................................................................34
3.7 Uses......................................................................................................34
3.8 No Structural Defects.....................................................................................34
{/TABLE}
i
{PAGE}
{TABLE}
{CAPTION}
{S} {C}
Page
----
3.9 Compliance with Zoning, Etc...............................................................................34
3.10 No Condemnation...........................................................................................35
3.11 No Casualty...............................................................................................35
3.12 Purchase Options..........................................................................................35
3.13 No Encroachments..........................................................................................35
3.14 Litigation................................................................................................35
3.15 No Conflict with Law or Agreements........................................................................35
3.16 Personal Property.........................................................................................36
3.17 Easements; Access; Utilities..............................................................................36
3.18 No Flood Hazard, Etc......................................................................................36
3.19 Premises Taxed as a Separate Tax Lot......................................................................36
3.20 Leases....................................................................................................37
3.21 Environmental.............................................................................................38
3.22 Access Laws...............................................................................................38
3.23 No Default................................................................................................38
3.24 No Offsets................................................................................................38
3.25 Financial Statements......................................................................................38
3.26 No Insolvency.............................................................................................38
3.27 Fraudulent Conveyance.....................................................................................38
3.28 Broker....................................................................................................39
3.29 Fiscal Year...............................................................................................39
3.30 No Other Financing........................................................................................39
3.31 ERISA.....................................................................................................39
3.32 FIRPTA....................................................................................................40
3.33 PUHCA.....................................................................................................40
3.34 Insurance.................................................................................................40
3.35 Securities Laws...........................................................................................40
3.36 Investment Company Act....................................................................................40
3.37 Taxes; Impositions........................................................................................40
3.38 Full and Accurate Disclosure..............................................................................40
3.39 Contracts.................................................................................................41
3.40 Other Obligations and Liabilities.........................................................................41
3.41 Documents.................................................................................................41
3.42 No Strikes................................................................................................41
{/TABLE}
ii
{PAGE}
{TABLE}
{CAPTION}
{S} {C}
Page
----
3.43 Consumer Credit Laws; Usury...............................................................................41
3.44 SC Affiliate Organization, Enforceability, Etc............................................................42
3.44.1 SC Affiliate Status..............................................................................42
3.44.2 Structure of SC Owners...........................................................................42
254873
|
CSFB Mortgage
As referenced in this Loan Agreement:
Credit Suisse First Boston Mortgage
Capital – 2(a)
hereof.
"Washington Center Loan" shall mean that certain loan in the original
principal amount of $6,200,000.00, made by Credit Suisse First Boston Mortgage
Capital LLC to Washington Center Shops, L.P., which loan (a) is secured by,
inter alia, a mortgage encumbering the Shopping Center commonly known
_____________
dt 113024
;
Brentway
As referenced in this Loan Agreement:
Brentway Management – or similar occurrence) the result of which is either (a)
that Guarantor no longer controls, directly or indirectly, Borrower and/or (b)
that Brentway Management LLC no longer manages the Premises or the Shopping
Centers and/or (c) Leo Ullman no longer controls, directly or indirectly,
Brentway Management
_____________
Brentway Management – Brentway Management LLC no longer manages the Premises or the Shopping
Centers and/or (c) Leo Ullman no longer controls, directly or indirectly,
Brentway Management LLC.
"Claim" shall have the meaning ascribed thereto in Section 7.5(b)
hereof.
"Clearing Account" shall have the meaning ascribed thereto in
_____________
Brentway Management – to a management agreement with the Manager approved by
Lender (the "Management Agreement"), such approval not to be unreasonably
withheld. Lender hereby approves Brentway Management LLC as the initial Manager.
56
{PAGE}
Notwithstanding anything to the contrary herein contained, any third party
managing agent, and the terms and
_____________
Brentway Management – management agreement with the
SC Manager approved by Lender (the "SC Management Agreement"), such approval not
to be unreasonably withheld. Lender hereby approves Brentway Management LLC as
the initial SC Manager. Notwithstanding anything to the contrary herein
67
{PAGE}
contained, any third party managing agent, and the terms
_____________
dt 112452
;
Cedar Bay Realty
As referenced in this Loan Agreement:
Cedar
Bay Realty Advisors, – its
successors, assigns and/or participants, "Lender"), and CEDAR INCOME FUND
PARTNERSHIP, L.P., a Delaware limited partnership, having an office c/o Cedar
Bay Realty Advisors, Inc., 44 South Bayles Avenue, Suite 304, Port Washington,
New York 11050 ("Borrower").
W I T N E S S E T
_____________
Cedar Bay Realty Advisors, – New York 10017
Attention: Howard R. Shapiro, Esq.
Facsimile: (212) 605-0999
90
{PAGE}
Borrower:
Cedar Income Fund Partnership, L.P.
c/o Cedar Bay Realty Advisors, Inc.
44 South Bayles Avenue, Suite 304
Port Washington, New York 11050
Attention: Brenda J. Walker
Facsimile: (516) 767-6497
with a
_____________
Cedar Bay Realty Advisors, – 44 South Bayles Avenue, Suite 304
Port Washington, New York 11050
Attention: Brenda J. Walker
Facsimile: (516) 767-6497
with a copy to:
Cedar Bay Realty Advisors, Inc.
44 South Bayles Avenue, Suite 304
Port Washington, New York 11050
Attention: Stuart H. Widowski, Esq.
Facsimile: (516) 767-6497
Any
_____________
dt 112652
;
|
CIFP
As referenced in this Loan Agreement:
CEDAR INCOME FUND PARTNERSHIP, – SEQUENCE}19
{FILENAME}ex10-16.txt
{DESCRIPTION}EX-10.16
{TEXT}
{PAGE}
===============================================================================
LOAN AGREEMENT
BY AND BETWEEN
SWH FUNDING CORP.,
AS LENDER
AND
CEDAR INCOME FUND PARTNERSHIP, L.P.,
AS BORROWER
AS OF OCTOBER ___, 2001
===============================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
{S} {C}
Page
----
ARTICLE 1 -- PARTICULAR TERMS;
_____________
CEDAR INCOME FUND
PARTNERSHIP, – Jersey corporation, having an
office at Two University Plaza, Hackensack, New Jersey 07601 (together with its
successors, assigns and/or participants, "Lender"), and CEDAR INCOME FUND
PARTNERSHIP, L.P., a Delaware limited partnership, having an office c/o Cedar
Bay Realty Advisors, Inc., 44 South Bayles Avenue, Suite 304,
_____________
Cedar Income Fund Partnership, – and Weinberg LLP
685 Third Avenue
New York, New York 10017
Attention: Howard R. Shapiro, Esq.
Facsimile: (212) 605-0999
90
{PAGE}
Borrower:
Cedar Income Fund Partnership, L.P.
c/o Cedar Bay Realty Advisors, Inc.
44 South Bayles Avenue, Suite 304
Port Washington, New York 11050
Attention: Brenda
_____________
CEDAR INCOME FUND PARTNERSHIP, – of the day and year first above written.
LENDER:
SWH FUNDING CORP.,
a New Jersey corporation
By:
-----------------------------
Name: Sanford S. Herrick
Title:
BORROWER:
CEDAR INCOME FUND PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Cedar Income Fund, Ltd.,
a Maryland corporation,
General Partner
By:
-------------------------
Name:
Title:
103
{PAGE}
ACKNOWLEDGMENTS
_____________
dt 109160
;
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| 2002 |
Loan Agreement
Loan Agreement (311K)
Doc #262957: Click preview link for longer preview.
LOAN AGREEMENT
Dated as of April 4, 2002
Between
PR BEAVER VALLEY LIMITED PARTNERSHIP,
as Borrower
and
COLUMN FINANCIAL, INC.,
as Lender
================================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION..................................................................1
Section 1.1. Definitions..........................................................................1
Section 1.2. Principles of Construction..........................................................15
II. GENERAL TERMS...........................................................................................16
Section 2.1. Loan Commitment; Disbursement to Borrower...........................................16
Section 2.2. Interest Rate.......................................................................16
Section 2.3. Loan Payment........................................................................17
Section 2.4. Prepayments.........................................................................18
Section 2.5. Defeasance..........................................................................19
Section 2.6. Release of Property.................................................................21
Section 2.7. Cash Management.....................................................................21
III. CONDITIONS PRECEDENT....................................................................................23
Section 3.1. Conditions Precedent to Closing.....................................................23
IV. REPRESENTATIONS AND WARRANTIES..........................................................................26
Section 4.1. Borrower Representations............................................................26
Section 4.2. Survival of Representations.........................................................32
V. BORROWER COVENANTS......................................................................................32
Section 5.1. Affirmative Covenants...............................................................32
Section 5.2. Negative Covenants..................................................................40
VI. INSURANCE; CASUALTY; CONDEMNATION; REQUIRED REPAIRS.....................................................44
Section 6.1. Insurance...........................................................................44
Section 6.2. Casualty............................................................................47
Section 6.3. Condemnation........................................................................48
Section 6.4. Restoration.........................................................................48
VII. RESERVE FUNDS...........................................................................................52
Section 7.1. Required Repair Funds...............................................................52
Section 7.2. Tax and Insurance Escrow Fund.......................................................53
Section 7.3. Replacements and Replacement Reserve................................................53
Section 7.4. Rollover Reserve....................................................................54
Section 7.5. Sears Reserve.......................................................................55
Section 7.6. Reserve Funds Generally.............................................................56
VIII. DEFAULTS................................................................................................57
Section 8.1. Event of Default....................................................................57
Section 8.2. Remedies............................................................................59
{/TABLE}
-i-
{PAGE}
{TABLE}
{CAPTION}
{S} {C}
IX. SPECIAL PROVISIONS......................................................................................60
Section 9.1. Sale of Notes and Securitization....................................................60
Section 9.2. Securitization Indemnification......................................................61
Section 9.3. Achievements........................................................................64
Section 9.4. Exculpation.........................................................................64
Section 9.5. Matters Concerning Manager..........................................................66
Section 9.6. Servicer............................................................................67
X. MISCELLANEOUS...........................................................................................67
Section 10.1. Survival............................................................................67
Section 10.2. Lender's Discretion.................................................................67
Section 10.3. Governing Law.......................................................................67
Section 10.4. Modification, Waiver in Writing.....................................................68
Section 10.5. Delay Not a Waiver..................................................................68
Section 10.6. Notices.............................................................................69
Section 10.7. Trial by Jury.......................................................................70
Section 10.8. Headings............................................................................70
Section 10.9. Severability........................................................................70
Section 10.10. Preferences.........................................................................70
Section 10.11. Waiver of Notice....................................................................71
Section 10.12. Remedies of Borrower................................................................71
Section 10.13. Expenses; Indemnity.................................................................71
Section 10.14. Schedules Incorporated..............................................................72
Section 10.15. Offsets, Counterclaims and Defenses.................................................72
Section 10.16. No Joint Venture or Partnership; No Third Party Beneficiaries.......................72
Section 10.17. Publicity...........................................................................73
Section 10.18. Waiver of Marshalling of Assets.....................................................73
Section 10.19. Waiver of Counterclaim..............................................................73
Section 10.20. Conflict; Construction of Documents; Reliance.......................................73
Section 10.21. Brokers and Financial Advisors......................................................73
Section 10.22. Prior Agreements....................................................................73
SCHEDULES
Schedule 1 - Legal Description of Property
Schedule 2 - Rent Roll
Schedule 3 - Required Repairs
Schedule 3.1 Parking Diagram
Schedule 4.1.26 Unpaid Borrower Obligations
{/TABLE}
-ii-
{PAGE}
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of April 4, 2002 (as amended,
restated, replaced, supplemented or otherwise modified from time to time, this
"Agreement"), is between COLUMN FINANCIAL, INC., having an address at 11 Madison
Avenue, New York, New York 10010-3629, Attention: Edmund Taylor (together with
its successors and assigns, "Lender"), and PR BEAVER VALLEY LIMITED PARTNERSHIP,
a Pennsylvania limited partnership, having its principal place of business at
200 S. Broad Street, 3rd Floor, Philadelphia, Pennsylvania 19102 ("Borrower").
W I T N E S S E T H:
WHEREAS, Borrower desires to obtain the Loan (as hereinafter
defined) from Lender; and
WHEREAS, Lender is willing to make the Loan to Borrower,
subject to and in accordance with the terms of this Agreement and the other Loan
Documents (as hereinafter defined).
NOW, THEREFORE, in consideration of the making of the Loan by
Lender and the covenants, agreements, representations and warranties set forth
in this Agreement, the parties hereto hereby covenant, agree, represent and
warrant as follows:
I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1. Definitions. For all purposes of this Agreement,
except as otherwise expressly required or unless the context clearly indicates a
contrary intent:
"Additional Insolvency Opinion" shall have the meaning set
forth in Section 4.1.30(c) hereof.
"Affiliate" shall mean, as to any Person, any other Person
that, directly or indirectly, is in control of, is controlled by or is under
common control with such Person or is a director or officer of such Person or of
an Affiliate of such Person.
"Affiliated Manager" shall mean any managing agent in which
Borrower, Principal, or any Guarantor has, directly or indirectly, any legal,
beneficial or economic interest.
"ALTA" shall mean American Land Title Association, or any
successor thereto.
"Annual Budget" shall mean the operating budget, including all
planned Capital Expenditures, for the Property prepared by Borrower for the
applicable Fiscal Year or other period.
"Anticipated Repayment Date" shall mean April 11, 2012.
"Applicable Interest Rate" shall mean (a) prior to the
Anticipated Repayment Date, the Initial Term Interest Rate and (b) on and after
the Anticipated Repayment Date, the Extended Term Interest Rate.
"Approved Annual Budget" shall have the meaning set forth in
Section 5.1.11(d).
{PAGE}
"Assignment of Leases" shall mean that certain first priority
Assignment of Leases and Rents, dated as of the date hereof, from Borrower, as
assignor, to Lender, as assignee, assigning to Lender all of Borrower's interest
in and to the Leases and Rents of the Property as security for the Loan, as the
same may be amended, restated, replaced, supplemented or otherwise modified from
time to time.
"Assignment of Management Agreement" shall mean that certain
Assignment of Management Agreement and Subordination of Management Fees dated as
of the date hereof, among Lender, Borrower and Manager, as the same may be
amended, restated, replaced, supplemented or otherwise modified from time to
time.
"Award" shall mean any compensation paid by any Governmental
Authority in connection with a Condemnation in respect of all or any part of the
Property.
"Basic Carrying Costs" shall mean the sum of the following
costs associated with the Property for the relevant Fiscal Year or payment
period: (a) Taxes and (b) Insurance Premiums.
"Borrower" shall have the meaning set forth in the
introductory paragraph hereto, together with its successors and assigns.
"Business Day" shall mean any day other than a Saturday,
Sunday or any other day on which national banks in New York, New York are not
open for business.
"Capital Expenditures" shall mean, for any period, the amount
expended for items capitalized under GAAP (including expenditures for building
improvements or major repairs, leasing commissions and tenant improvements).
"Cash Expenses" shall mean, for any period, the operating
expenses for the operation of the Property as set forth in an Approved Annual
Budget to the extent that such expenses are actually incurred by Borrower minus
any payments into the Tax and Insurance Escrow Fund.
"Cash Management Account" shall have the meaning specified in
Section 2.7.2(a) hereof.
"Cash Management Agreement" shall mean that certain Cash
Management Agreement, dated as of the date hereof, by and among Borrower,
Manager and Lender, as the same may be amended, restated, replaced, supplemented
or otherwise modified from time to time, relating to funds deposited in the
Lockbox Account.
"Casualty" shall have the meaning specified in Section 6.2
hereof.
"Casualty Consultant" shall have the meaning set forth in
Section 6.4(b)(iii) hereof.
"Casualty Retainage" shall have the meaning set forth in
Section 6.4(b)(iv) hereof.
"Closing Date" shall mean the date of the funding of the Loan.
"Code" shall mean the Internal Revenue Code of 1986, as
heretofore amended and as it may be further amended from time to time, and any
successor statutes thereto, and applicable U.S. Department of Treasury
regulations issued pursuant thereto in temporary or final form.
262957
|
CSFB Mortgage
As referenced in this Loan Agreement:
Credit Suisse First Boston Mortgage Capital – Floor
New York, New York 10010-3629
Attention: Edmund Taylor
Facsimile No.: (212) 325-8106
Re: Beaver Valley Mall
with a copy to: Credit Suisse First Boston Mortgage Capital LLC
Legal & Compliance Department
One Madison Avenue, 7th Floor
New York, New York 10010
Attention: Pamela L. McCormack, Esq.
Facsimile No. (917) 326-
_____________
dt 145728
;
PREIT
As referenced in this Loan Agreement:
Pennsylvania Real Estate Investment Trust – shall itemize all material
adjustments made to Net Operating Income to arrive at Net Cash Flow, and (vii) a
certification issued by the Pennsylvania Real Estate Investment Trust certifying
that it remains the general partner of PREIT Associates, L.P. and that it
maintains at least a fifty-one percent (51%)
_____________
Pennsylvania Real Estate Investment Trust – pay all of the fees and expenses incurred by Lender in
connection therewith, including, without limitation, reasonable
attorneys' fees;
(iii) So long as Pennsylvania Real Estate Investment Trust remains
a publicly traded and listed entity on a nationally recognized stock
exchange, the sale or transfer of shares of stock in Pennsylvania
_____________
Pennsylvania Real
Estate Investment Trust; – Trust remains
a publicly traded and listed entity on a nationally recognized stock
exchange, the sale or transfer of shares of stock in Pennsylvania Real
Estate Investment Trust; and
(iv) The sale or transfer of partnership interests in PREIT
Associates, L.P., provided, however, that Pennsylvania Real Estate
Investment Trust
_____________
Pennsylvania Real Estate
Investment Trust – in Pennsylvania Real
Estate Investment Trust; and
(iv) The sale or transfer of partnership interests in PREIT
Associates, L.P., provided, however, that Pennsylvania Real Estate
Investment Trust remains the general partner of PREIT Associates, L.P.
and maintains at all times at least a fifty-one percent (51%) interest
in
_____________
Pennsylvania Real Estate Investment
Trust, – LLC,
a Delaware limited liability company,
its sole general partner
By: PREIT Associates, L.P.,
a Delaware limited partnership,
its sole member
By: Pennsylvania Real Estate Investment
Trust,
a Pennsylvania business trust,
its general partner
By: /s/ Jeffrey A. Linn
-----------------------------------
Name: Jeffrey A. Linn
Title: Executive Vice President
COLUMN FINANCIAL,
_____________
dt 145251
;
Column Financial
As referenced in this Loan Agreement:
COLUMN FINANCIAL, – 2
{TEXT}
{PAGE}
Exhibit 2.2
================================================================================
LOAN AGREEMENT
Dated as of April 4, 2002
Between
PR BEAVER VALLEY LIMITED PARTNERSHIP,
as Borrower
and
COLUMN FINANCIAL, INC.,
as Lender
================================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION..................................................................1
Section 1.1. Definitions..........................................................................
_____________
COLUMN FINANCIAL, – AGREEMENT, dated as of April 4, 2002 (as amended,
restated, replaced, supplemented or otherwise modified from time to time, this
"Agreement"), is between COLUMN FINANCIAL, INC., having an address at 11 Madison
Avenue, New York, New York 10010-3629, Attention: Edmund Taylor (together with
its successors and
_____________
Column Financial, – be under the sole
dominion and control of Lender. The Cash Management Account shall be entitled
"ORIX Capital Markets, LLC, as servicer of Column Financial, Inc. as mortgagee
of PR Beaver Valley Limited Partnership, Cash Collateral Account". Borrower
hereby grants to Lender a first priority security interest
_____________
Column Financial, – case may be, in a written notice to the
other parties hereto in the manner provided for in this Section):
If to Lender: Column Financial, Inc.
11 Madison Avenue, 5th Floor
New York, New York 10010-3629
Attention: Edmund Taylor
Facsimile No.: (212) 325-8106
Re: Beaver
_____________
COLUMN FINANCIAL, – Estate Investment
Trust,
a Pennsylvania business trust,
its general partner
By: /s/ Jeffrey A. Linn
-----------------------------------
Name: Jeffrey A. Linn
Title: Executive Vice President
COLUMN FINANCIAL, INC.
By: /s/ Edmund Taylor
------------------------------
Name: Edmund Taylor
Title: Vice President
SCH. 3-1
{/TEXT}
{/DOCUMENT}
_____________
dt 141048
;
|
Wells Fargo Bank
As referenced in this Loan Agreement:
Wells Fargo Bank, Na – acquiesced in
by Borrower; provided, further, that so long as PREIT Associates, L.P. maintains
in effect that certain line of credit with Wells Fargo Bank, Na tional
Association, as agent, dated December 28, 2000 (or another financing arrangement
containing market standard financial covenants for net worth, leverage and
liquidity),
_____________
dt 158897
;
 Drinker Biddle
As referenced in this Loan Agreement:
Drinker Biddle – of one percent (7.36%) per annum.
"Insolvency Opinion" shall mean that certain non-consolidation
opinion letter dated the date hereof delivered by Drinker Biddle & Reath LLP.
"Insurance Premiums" shall have the meaning set forth in
Section 6.1(b) hereof.
"Insurance Proceeds" shall have the meaning
_____________
Drinker Biddle – to: PREIT Associates, L.P.
200 S. Broad St., #300
Philadelphia, PA 19102
Attention: Bruce Goldman, Esq.
Facsimile No. (215) 546-7311
and: Drinker Biddle & Reath, LLP
Suite 300, 1000 West Lakes Drive
Berwyn, Pennsylvania 19312
Attention: John W. Fischer, Esq.
Facsimile No. (610) 993-8585
A
_____________
dt 159147
;
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Loan Agreement
Loan Agreement (339K)
Doc #336633: Click preview link for longer preview.
LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of December 23, 1997 (as amended,
restated, replaced, supplemented or otherwise modified from time to time, this
"AGREEMENT"), between Credit Suisse First Boston Mortgage Capital LLC, a
Delaware limited liability company having an address at 11 Madison Avenue, New
York, New York 10010 ("LENDER") and the Persons identified on Exhibit A, having
an address at c/o Donatelli & Klein, Inc., 7200 Wisconsin Avenue, Suite 310,
Bethesda, Maryland 20814 ("BORROWER").
All capitalized terms used herein shall have the respective meanings
set forth in Article I hereof.
W I T N E S S E T H :
WHEREAS, Borrower desires to obtain the Loan from Lender;
WHEREAS, Lender is willing to make the Loan to Borrower, subject to and
in accordance with the terms of this Agreement and the other Loan Documents;
NOW, THEREFORE, in consideration of the making of the Loan by Lender
and the covenants, agreements, representations and warranties set forth in this
Agreement, the parties hereto hereby covenant, agree, represent and warrant as
follows:
I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION
SECTION 1.1 DEFINITIONS.
For all purposes of this Agreement, except as otherwise expressly
required or unless the context clearly indicates a contrary intent:
"ACM" shall mean any asbestos-containing materials.
"ADDITIONAL BORROWER" shall mean any Person under common control with
the Borrower assuming the Loan and the Loan Documents and either (a) encumbering
its Individual Property with a Mortgage or (b) executing and delivering to
Lender a Pledge Agreement in connection with an Advance pursuant to the terms
and provisions hereof. Upon the funding of the related Advance in accordance
with the terms and provisions hereof, an Additional Borrower assuming the Loan
and the Loan Documents and encumbering its Individual Property or executing a
Pledge Agreement in connection with such Advance shall constitute an Individual
Borrower.
"ADDITIONAL INTEREST" shall have the meaning ascribed thereto in the
Note.
"ADDITIONAL PROPERTY" shall have the meaning set forth in Section
2.1.4(b).
{PAGE}
"ADDITIONAL RELEASE AMOUNT" shall have the meaning set forth in Section
2.4.2(i).
"ADJUSTED RELEASE AMOUNT" shall mean, for an Individual Property, the
product of the Allocated Loan Amount for such Individual Property and one
hundred twenty-five percent (125%), which amount shall be applied by Lender
first to repay all sums due with respect to such Individual Property including
the portion of the Loan allocated to such Individual Property, accrued and
unpaid interest thereon, and the balance shall be applied by Lender to reduce
the outstanding principal balance of the Loan.
"ADVANCE" shall mean disbursement of a portion of the Loan to Borrower
in accordance with the terms and provision hereof.
"AFFILIATE" shall mean, with respect to any Person, (x) any Person
controlling, controlled by or under common control with, whether by virtue of
ownership or otherwise, such Person and (y) any spouse, parent or sibling of any
such Person who is a natural person, and any ancestor or lineal descendent of
such spouse, parent or sibling. For purposes of this Agreement and the other
Loan Documents, Affiliates of Borrower shall include, but not be limited to, (i)
any partners, members or shareholders, as the case may be (other than in their
capacity as shareholders of any company whose stock is publicly traded, where
such shareholders do not control such company) of Borrower, (ii) any Guarantor,
and any shareholders, members or partners, if any, as the case may be of such
Guarantor (other than in their capacity as shareholders of any company whose
stock is publicly traded, where such shareholders do not control such company),
and (iii) any Person which would constitute an Affiliate of any Person described
above pursuant to clause (x) or (y) above.
"AFFIRMATIVE COVENANT" shall mean a promise or covenant by any Person
to perform, act, suffer, permit or consent to.
"AGREEMENT" shall mean this Loan Agreement, as the same may be amended,
restated, replaced, supplemented, or otherwise modified from time to time.
"ALLOCATED LOAN AMOUNT" shall mean, for an Individual Property, the
amount set forth on Exhibit H hereto.
"ALTA" shall mean American Land Title Association, or any successor
thereto.
"APPLICABLE INTEREST RATE" shall mean the rate of interest, adjusted
from time to time, applicable to the outstanding principal balance of the Loan
from time to time, calculated in accordance with the terms of the Note.
"APPROVAL PERIOD" shall have the meaning set forth in Section 8.4(b).
"APPROVED ACCOUNTANT" shall mean one of the so-called "Big Six"
accounting firms or such other independent certified public accountant of
nationally recognized standing
2
{PAGE}
selected by the Person required to deliver the applicable Financial Statements
and other reports specified herein, which Approved Accountant shall be approved
by Lender, which consent shall not be unreasonably withheld, delayed or
conditioned.
"APPROVED APPRAISAL" shall mean, with respect to an Individual
Property, an appraisal of such Individual Property (a) executed and delivered to
Lender by a qualified MAI appraiser having no direct or indirect interest in
such Individual Property or any loan secured in whole or in part thereby and
whose compensation is not affected by the approval or disapproval of such
appraisal by Lender; (b) addressed to Lender and its successor and assigns; (c)
satisfying the requirements of the Federal National Mortgage Association or the
Federal Home Loan Mortgage Corporation and Title XI of the Federal Institutions
Reform, Recovery and Enforcement Act of 1989 (FIRREA) and the regulations
promulgated thereunder, all as in effect on the date of such calculation, with
respect to the appraisal and the appraiser preparing same; and (d) otherwise
satisfactory to Lender in all respects in Lender's reasonable discretion.
"APPROVED BUDGET" shall have the meaning ascribed to such term in the
Cash Management Agreement.
"APPROVED CONTRACTS" shall mean (i) any agreement which satisfies the
criteria of a "Contract" and is added to Exhibit B after the date hereof and
(ii) the contracts and other agreements set forth on Exhibit B on the date
hereof.
"APPROVED LEASES" shall mean (i) the leases and other occupancy
agreements set forth on Exhibit L and (ii) all Leases entered into by Borrower
after the date of this Agreement in accordance with Section 5.5.
"ASSIGNEES" shall have the meaning set forth in Section 7.8.1.
"ASSIGNMENT OF LEASES" shall mean, with respect to each Individual
Property, a first priority Assignment of Leases and Rents from the applicable
Individual Borrower, as assignor, to Lender, as assignee (substantially in the
form of the Assignment of Leases and Rents attached hereto as Exhibit M),
336633
|
CSFB Mortgage
As referenced in this Loan Agreement:
Credit Suisse First Boston Mortgage Capital – LOAN AGREEMENT, dated as of December 23, 1997 (as amended,
restated, replaced, supplemented or otherwise modified from time to time, this
"AGREEMENT"), between Credit Suisse First Boston Mortgage Capital LLC, a
Delaware limited liability company having an address at 11 Madison Avenue, New
York, New York 10010 ("LENDER") and the Persons identified
_____________
Credit Suisse First Boston Mortgage Capital – or to such Individual Property
or any part thereof, or (ii) in any way limit the use and enjoyment thereof.
"LENDER" shall mean Credit Suisse First Boston Mortgage Capital LLC,
together with its successors and assigns.
"LENDER'S COUNSEL" shall mean Cadwalader, Wickersham & Taft, located
in New York, new York, and any
_____________
Credit Suisse First Boston Mortgage Capital – any of clauses
(a)-(c) above, in each case, to the party intended to receive the same at the
following address(es):
Lender: Credit Suisse First Boston Mortgage Capital LLC
Principal Transactions Group
11 Madison Avenue
New York, New York 10010
Attention: Edmund Taylor
Re: CSFB/Donatelli & Klein/Anthony Poll - PTG
Telecopie: (
_____________
CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL – 101
{PAGE}
IN WITNESS WHEREOF, the parties have executed under seal this Agreement as
of the day and year first above written.
LENDER
CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL LLC., a Delaware limited
liability company
By: [ILLEGIBLE]
------------------------------------
Name:
Title:
BORROWER
FPR REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: FPR-GP REALTY,
_____________
CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL – 101
{PAGE}
IN WITNESS WHEREOF, the parties have executed under seal this Agreement as
of the day and year first above written.
LENDER
CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL LLC., a Delaware limited
liability company
By:
------------------------------------
Name:
Title:
BORROWER
FPR REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: FPR-GP REALTY, Inc.,
_____________
dt 704982
;
Fannie Mae
As referenced in this Loan Agreement:
Federal National Mortgage Association – approval or disapproval of such
appraisal by Lender; (b) addressed to Lender and its successor and assigns; (c)
satisfying the requirements of the Federal National Mortgage Association or the
Federal Home Loan Mortgage Corporation and Title XI of the Federal Institutions
Reform, Recovery and Enforcement Act of 1989 (FIRREA)
_____________
Federal National Mortgage Association – direct obligations of, and obligations fully guaranteed as to
payment of principal and interest by, the United States, Federal Home Loan
Mortgage Corporation, Federal National Mortgage Association or any agency or
instrumentality of the United States of America provided such obligations are
backed by the full faith and credit
_____________
dt 702294
;
|
LaSalle National
As referenced in this Loan Agreement:
LaSalle National Bank
– by
12:00 noon, New York City time, on the date such payment is due, to Lender by
deposit to the following account:
LaSalle National Bank
Chicago, IL 60603
ABA #0701000505
Account #67-7866-70-9
Account Name: FRP Realty LP
Attn: Mary Collier
(312) 904-7815
Notwithstanding
_____________
dt 651736
;
Arnold & Porter
As referenced in this Loan Agreement:
Arnold & Porter – o Donatelli & Klein, Inc.
7200 Wisconsin Avenue, Suite 310
Bethesda, Maryland 20814
Attention: Douglas Donatelli
Telecopier: (301) 654-7675
with a copy to: Arnold & Porter
555 12th Street, N.W.
Washington, DC 20004
Attention: S. Lee Narrow, Esq.
Telecopier: (202) 942-5999
Any party may change the
_____________
dt 699900
;
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Lease Agreement
Lease Agreement (277K)
Doc #166889: Click preview link for longer preview.
LEASE AGREEMENT
BETWEEN
HCRI DRUM HILL PROPERTIES, LLC
AND
EMERITUS PROPERTIES IX, LLC
SEPTEMBER 29, 2003
{PAGE}
SECTION PAGE
------- ----
TABLE OF CONTENTS
-----------------
SECTION PAGE
------- ----
ARTICLE 1: LEASED PROPERTY, TERM AND DEFINITIONS 1
1.1 Leased Property 1
1.2 Term 1
1.3 Definitions 1
ARTICLE 2: RENT 9
2.1 Base Rent 9
2.1.1 Base Rent Adjustment 9
2.2 Additional Rent 9
2.3 Place of Payment of Rent 9
2.4 Net Lease 9
2.5 No Termination, Abatement, Etc. 10
2.6 Transaction Fee 10
ARTICLE 3: IMPOSITIONS AND UTILITIES 10
3.1 Payment of Impositions 10
3.2 Definition of Impositions 11
3.3 Escrow of Impositions 12
3.4 Utilities 12
3.5 Discontinuance of Utilities 13
3.6 Business Expenses 13
3.7 Permitted Contests 13
ARTICLE 4: INSURANCE 13
4.1 Property Insurance 13
4.2 Liability Insurance 14
4.3 Builder's Risk Insurance 15
4.4 Insurance Requirements 15
4.5 Replacement Value 16
4.6 Blanket Policy 16
4.7 No Separate Insurance 16
4.8 Waiver of Subrogation 16
4.9 Mortgages 17
4.10 Escrows 17
ARTICLE 5: INDEMNITY 17
5.1 Tenant's Indemnification 17
5.1.1 Notice of Claim 18
5.1.2 Survival of Covenants 18
5.1.3 Reimbursement of Expenses 18
5.2 Environmental Indemnity; Audits 18
5.3 Limitation of Landlord's Liability 18
ARTICLE 6: USE AND ACCEPTANCE OF PREMISES 19
6.1 Use of Leased Property 19
6.2 Acceptance of Leased Property 19
6.3 Conditions of Use and Occupancy 19
ARTICLE 7: MAINTENANCE AND MECHANICS' LIENS 20
7.1 Maintenance 20
7.2 Required Alterations 20
7.3 Mechanic's Liens 20
7.4 Replacements of Fixtures and Landlord's Personal Property 21
7.5 Lender Maintenance Reserve Escrow 21
ARTICLE 8: DEFAULTS AND REMEDIES 21
8.1 Events of Default 21
8.2 Remedies 23
8.3 Right of Setoff 26
8.4 Performance of Tenant's Covenants 26
8.5 Late Payment Charge 26
8.6 Default Rent 27
8.7 Attorneys' Fees 27
8.8 Escrows and Application of Payments 27
8.9 Remedies Cumulative 27
8.10 Waivers 27
8.11 Obligations Under the Bankruptcy Code 28
ARTICLE 9: DAMAGE AND DESTRUCTION 28
9.1 Notice of Casualty 28
9.2 Substantial Destruction 28
9.3 Partial Destruction 29
9.4 Restoration 29
9.5 Insufficient Proceeds 30
9.6 Not Trust Funds 30
9.7 Landlord's Inspection 30
9.8 Landlord's Costs 30
9.9 No Rent Abatement 31
ARTICLE 10: CONDEMNATION 31
10.1 Total Taking 31
10.2 Partial Taking 31
10.3 Condemnation Proceeds Not Trust Funds 31
ARTICLE 11: TENANT'S PROPERTY 32
11.1 Tenant's Property 32
11.2 Requirements for Tenant's Property 32
ARTICLE 12: RENEWAL OPTIONS 33
12.1 Renewal Options 33
12.2 Effect of Renewal 33
ARTICLE 13: RIGHT OF FIRST OPPORTUNITY 34
13.1 Right of First Opportunity 34
13.2 Closing 35
ARTICLE 14: NEGATIVE COVENANTS 36
14.1 No Debt 36
14.2 No Liens 36
14.3 No Guaranties 36
14.4 No Transfer 36
14.5 No Dissolution 36
14.6 Subordination of Payments to Affiliates 36
14.7 Change of Location or Name 36
ARTICLE 15: AFFIRMATIVE COVENANTS 37
15.1 Perform Obligations 37
15.2 Proceedings to Enjoin or Prevent Construction 37
15.3 Documents and Information 37
15.3.1 Furnish Documents 37
15.3.2 Furnish Information 37
15.3.3 Further Assurances and Information 37
15.3.4 Material Communications 38
15.3.5 Requirements for Financial Statements 38
15.4 Compliance With Laws 38
15.5 Broker's Commission 38
15.6 Existence and Change in Ownership 38
15.7 Financial Covenants 39
15.7.1 Definitions 39
15.7.2 Coverage Ratio 39
15.8 Facility Licensure and Certification 39
15.9 Transfer of License and Facility Operations 39
15.9.1 Licensure 39
15.9.2 Facility Operations 39
15.10 Bed Operating Rights 40
15.11 Power of Attorney 40
15.12 Compliance with Loan Documents 41
ARTICLE 16: ALTERATIONS, CAPITAL IMPROVEMENTS, AND SIGNS 42
16.1 Prohibition on Alterations and Improvements 42
16.2 Approval of Alterations 42
16.3 Permitted Alterations 43
16.4 Requirements for Permitted Alterations 43
16.5 Ownership and Removal of Permitted Alterations 44
16.6 Minimum Qualified Capital Expenditures 44
16.7 Signs 44
ARTICLE 17: RESERVED 44
ARTICLE 18: ASSIGNMENT AND SALE OF LEASED PROPERTY 44
18.1 Prohibition on Assignment and Subletting 44
18.2 Requests for Landlord's Consent to Assignment, Sublease or Management
Agreement 45
18.3 Agreements with Residents 46
18.4 Sale of Leased Property 46
18.5 Assignment by Landlord 46
ARTICLE 19: HOLDOVER AND SURRENDER 46
19.1 Holding Over 46
19.2 Surrender 47
19.3 Indemnity 47
ARTICLE 20: RESERVED 47
ARTICLE 21: QUIET ENJOYMENT, SUBORDINATION, ATTORNMENT AND ESTOPPEL
CERTIFICATES 47
21.1 Quiet Enjoyment 47
21.2 Subordination 47
21.3 Attornment 48
21.4 Estoppel Certificates 48
ARTICLE 22: REPRESENTATIONS AND WARRANTIES 49
22.1 Organization and Good Standing 49
22.2 Power and Authority 49
22.3 Enforceability 49
22.4 Government Authorizations 49
22.5 Financial Statements 49
22.6 Condition of Facility 50
22.7 Compliance with Laws 50
22.8 No Litigation 50
22.9 Consents 50
22.10 No Violation 51
22.11 Reports and Statements 51
22.12 ERISA 51
22.13 Chief Executive Office 51
22.14 Other Name or Entities 51
22.15 Parties in Possession 51
22.16 Access 52
22.17 Utilities 52
22.18 Condemnation and Assessments 52
22.19 Zoning 52
22.20 Pro Forma Statement 52
22.21 Environmental Matters 52
22.22 Leases and Contracts 53
22.23 No Default 53
22.24 Tax Status 53
ARTICLE 23: RESERVED 53
ARTICLE 24: SECURITY INTEREST 53
24.1 Collateral 53
24.2 Additional Documents 54
24.3 Notice of Sale 54
24.4 Recharacterization 55
24.5 Subordination 55
ARTICLE 25: MISCELLANEOUS 55
25.1 Notices 55
25.2 Advertisement of Leased Property 55
25.3 Entire Agreement 55
25.4 Severability 55
25.5 Captions and Headings 56
25.6 Governing Law 56
25.7 Memorandum of Lease 56
25.8 Waiver 56
25.9 Binding Effect 56
25.10 No Offer 56
25.11 Modification 56
25.12 Landlord's Modification 57
25.13 No Merger 57
25.14 Laches 57
25.15 Limitation on Tenant's Recourse 57
25.16 Construction of Lease 57
25.17 Counterparts 57
25.18 Custody of Escrow Funds 57
25.19 Landlord's Status as a REIT 57
25.20 Exhibits 58
25.21 WAIVER OF JURY TRIAL 58
25.22 CONSENT TO JURISDICTION 58
25.23 Attorney's Fees and Expenses 58
25.24 Survival 59
25.25 Time 59
SCHEDULE 1: INITIAL RENT SCHEDULE
EXHIBIT A: LEGAL DESCRIPTIONS
EXHIBIT B: PERMITTED EXCEPTIONS
EXHIBIT C: FACILITY INFORMATION
EXHIBIT D: LANDLORD'S PERSONAL PROPERTY
EXHIBIT E: DOCUMENTS TO BE DELIVERED
EXHIBIT F: TENANT'S CERTIFICATE AND FACILITY FINANCIAL REPORTS
EXHIBIT G: GOVERNMENT AUTHORIZATIONS TO BE OBTAINED; ZONING PERMITS
EXHIBIT H: PENDING LITIGATION
EXHIBIT I: LIST OF LEASES AND CONTRACTS
EXHIBIT J: WIRE TRANSFER INSTRUCTIONS
EXHIBIT K: BASE PRICE
{PAGE}
LEASE AGREEMENT
This Lease Agreement ("Lease") is made effective as of September 29,
2003 (the "Effective Date") between HCRI DRUM HILL PROPERTIES, LLC, a limited
liability company organized under the laws of the State of Delaware ("Landlord"
as further defined in 1.3 below), having its principal office located at One
SeaGate, Suite 1500, P.O. Box 1475, Toledo, Ohio 43603-1475, and EMERITUS
PROPERTIES IX, LLC, a limited liability company organized under the laws of the
State of Washington ("Tenant"), having its chief executive office located at
3131 Elliott Avenue, Suite 500, Seattle, Washington 98121.
R E C I T A L S
A. As of the date hereof, Landlord acquired the Leased Property (defined
below) from Tenant and paid the Acquisition Payment (defined below) towards the
purchase price for the Leased Property. The amount paid by Tenant for the costs
incurred by Landlord in connection with its acquisition from Tenant of the
Leased Property, if any, shall be considered Tenant's contribution.
B. Landlord desires to lease the Leased Property to Tenant and Tenant
desires to lease the Leased Property from Landlord upon the terms set forth in
this Lease.
NOW, THEREFORE, Landlord and Tenant agree as follows:
ARTICLE 1: LEASED PROPERTY, TERM AND DEFINITIONSLEASED PROPERTY, TERM AND
DEFINITIONS
1.1 Leased PropertyLeased Property. Landlord hereby leases to Tenant and
--------------------------------
Tenant hereby leases from Landlord the Leased Property, subject, however, to the
Permitted Exceptions and subject to the terms and conditions of this Lease.
1.2 TermTerm. The initial term ("Initial Term") of this Lease commences on
--------
the Effective Date and expires at 12:00 Midnight Eastern Time on the day before
the 15th anniversary of the Commencement Date (the "Expiration Date"); provided,
however, that Tenant has one or more options to renew the Lease pursuant to
Article 12.
1.3 DefinitionsDefinitions. Except as otherwise expressly provided, [i] the
----------------------
terms defined in this section have the meanings assigned to them in this
section and include the plural as well as the singular; [ii] all accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles as of the time
applicable; and [iii] the words "herein", "hereof" and "hereunder" and similar
words refer to this Lease as a whole and not to any particular section.
"$4,400,000 Note" means the note granted by Guarantor to HCN dated as of
August 28, 2003, as amended or restated.
"Acquisition Payment" means any payment by Landlord to acquire Leased Property.
"ADA" means the federal statute entitled Americans with Disabilities Act, 42
U.S.C. 12101, et seq.
"Additional Rent" has the meaning set forth in 2.2.
"Affiliate" means Guarantor and any person, corporation, partnership, limited
liability company, trust, or other legal entity that, directly or indirectly,
controls, or is controlled by, or is under common control with Tenant or
Guarantor. "Control" (and the correlative meanings of the terms "controlled by"
and "under common control with") means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such entity. "Affiliate" includes, without limitation, each Guarantor. An
Affiliate of Tenant shall specifically exclude Columbia Pacific Management, Inc.
or any Affiliate thereof and Holiday Retirement Corporation or any Affiliate
thereof and, prior to the date of its acquisition thereof, Alterra Healthcare
Corporation or any Affiliate thereof.
"Annual Company Budget" means Tenant's projection of its financial statement for
the next fiscal year (or the 12-month rolling forward period, if applicable),
which shall include the balance sheet, statement of income, statement of cash
flows, statement of shareholders' equity and statement of capital expenditures
for the applicable period.
"Annual Financial Statements" means [i] an audited Facility Financial Statement
for the most recent fiscal year; and [ii] for Guarantor, if Guarantor is or
includes a corporation, partnership or limited liability company, an audited
balance sheet and statement of income for the most recent fiscal year.
"Bankruptcy Code" means the United States Bankruptcy Code set forth in 11 U.S.C.
101, et seq., as amended from time to time.
"Base Price" has the meaning set forth on Exhibit K.
"Base Rent" has the meaning set forth in 2.1, as increased from time to time
pursuant to 2.2.
"Business Day" means any day other than a Saturday, Sunday, or national holiday.
"Casualty" has the meaning set forth in 9.1.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended from time to time.
"Closing" means the closing of the lease of the Leased Property to Tenant.
"Collateral" has the meaning set forth in 24.1.
"Commencement Date" means the Effective Date if such date is the first day of a
month, and if it is not, the first day of the first month following the
Effective Date.
"Commitment" means the Commitment Letter for the Lease dated March 5, 2002 as
modified by the letter dated March 31, 2003.
"CPI" means the United States Department of Labor, Bureau of Labor Statistics
Revised Consumer Price Index for All Urban Consumers (1982-84=100), U.S. City
Average, All Items, or, if that index is not available at the time in question,
the index designated by such Department as the successor to such index, and if
there is no index so designated, an index for an area in the United States that
most closely corresponds to the entire United States, published by such
Department, or if none, by any other instrumentality of the United States.
"Default Rent" has the meaning set forth in 8.6.
"Effective Date" means the date of this Lease.
"Environmental Laws" means all federal, state, and local laws, ordinances and
policies the purpose of which is to protect human health and the environment, as
amended from time to time, including, but not limited to, [i] CERCLA; [ii] the
Resource Conservation and Recovery Act; [iii] the Hazardous Materials
Transportation Act; [iv] the Clean Air Act; [v] Clean Water Act; [vi] the Toxic
Substances Control Act; [vii] the Occupational Safety and Health Act; [viii] the
Safe Drinking Water Act; and [ix] analogous state laws and regulations.
"Event of Default" has the meaning set forth in 8.1.
"Expiration Date" has the meaning set forth in 1.2.
"Facility" means the Facility located on the Land, including the Facility
Property.
"Facility Cash Flow" has the meaning set forth in 15.7.1.
"Facility Coverage Ratio" has the meaning set forth in 15.7.1.
"Facility Financial Statement" means a financial statement for the Facility
which shall include the balance sheet, statement of income, statement of cash
flows, statement of shareholders' equity, occupancy census data (including payor
mix), statement of capital expenditures and a comparison of the actual financial
data versus the Annual Company Budget for the applicable period.
"Facility Name" means the name under which the Facility has done business during
the Term. The Facility Name in use by the Facility on the Effective Date is set
forth on the attached Exhibit C.
"Facility Property" means the Land on which the Facility is located, the legal
description of which is set forth on Exhibit A, the Improvements on the Land,
the Related Rights, and Landlord's Personal Property.
"Facility State" means the State in which the Facility is located.
"Facility Uses" means the uses relating to the operation of the Facility as a
facility of the type and operating the number of beds and units set forth on
Exhibit C.
166889
|
CSFB Mortgage
As referenced in this Lease Agreement:
Credit Suisse First Boston
Mortgage Capital, – to
Amresco Capital, L.P., dated September 29, 1999, recorded with said Deeds, Book
10436, page 268, as affected by an Assignment to Credit Suisse First Boston
Mortgage Capital, LLC, dated September 22, 1999, recorded with said Deeds, Book
10437, page 21, as further assigned to The Chase Manhattan Bank, as
_____________
Credit Suisse First Boston
Mortgage Capital, – to
Amresco Capital, L.P., dated September 29, 1999, recorded with said Deeds, Book
10437, page 1, as affected by an Assignment to Credit Suisse First Boston
Mortgage Capital, LLC, dated September 22, 1999, recorded with said Deeds, Book
10437, page 21, as further assigned to The Chase Manhattan Bank, as
_____________
dt 113013
;
Health Care REIT
As referenced in this Lease Agreement:
Health Care REIT, – of "hazardous substance", "hazardous material",
"hazardous waste", "toxic substance", "regulated substance", "solid waste" or
"pollutant" as defined in any Environmental Law.
"HCN" means Health Care REIT, Inc., a Delaware corporation.
"HIPDB" means the Healthcare Integrity and Protection Data Bank maintained by
the Department of Health and Human Services.
"
_____________
Health Care REIT, – authorized officers as
of the date first set forth above.
Signed and acknowledged in the presence of:
HCRI DRUM HILL PROPERTIES, LLC
By: Health Care REIT, Inc.
Signature Rita J. Rogge Its: Sole Member
Print Name Rita J. Rogge
By: Erin C. Ibele
Signature Kathleen A. Sullivan
Print
_____________
Health Care REIT, – OHIO )
) SS:
COUNTY OF LUCAS )
The foregoing instrument was acknowledged before me this ___ day of
September, 2003 by _________________________, the _________________________ of
Health Care REIT, Inc., a Delaware corporation, the sole member of HCRI Drum
Hill Properties, LLC, a Delaware limited liability company, on behalf of the
_____________
HEALTH CARE REIT, – LUDD, ESQ.
SHUMAKER, LOOP & KENDRICK, LLP
1000 JACKSON STREET
TOLEDO, OHIO 43624-1573
{PAGE}
SCHEDULE 1: INITIAL RENT SCHEDULE
EMERITUS CORPORATION - CHELMSFORD, MA
-----------------------------------------
HEALTH CARE REIT, INC.
EFFECTIVE DATE 09/29/03
INITIAL TERM DATE 10/01/03
INITIAL TERM 15 Yrs
INITIAL TERM EXPIRATION DATE 09/30/
_____________
Health Care REIT, – dated April 18, 2003 from Anthony Zagzoug, Inspector of Buildings,
Town of Chelmsford, Building Department, 50 Billerica Road, Chelmsford,
Massachusetts 01824 addressed to Health Care REIT, Inc.; HCRI Massachusetts
Properties Trust II; and HCRI Mississippi Properties, Inc., One SeaGate, Suite
1500, P.O. Box 1475, Toledo, Ohio 43603-
_____________
dt 111525
;
Wang Labs
As referenced in this Lease Agreement:
Wang Laboratories, Inc. – corner of the herein described
parcel:
Thence N 39 41' 46" W Four Hundred Seventy Seven and 72/100 feet (477.72')
bounded Northeasterly by land now or formerly of Wang Laboratories, Inc. to a
point;
Thence N 55 52' 37" E Seventy Four and 69/100 (74.69') bounded Northwesterly by
land now or formerly of Joseph and Bertha E. Sadowski
_____________
Wang Laboratories, Inc. – Bertha E. Sadowski to a point;
Thence N 55 53' 48" E Three Hundred Fifty Six and 34/100 feet (356.34') bounded
Northwesterly by land now or formerly of Wang Laboratories, Inc. to a point;
Thence S 34 06' 12" E Forty and 20/100 (40.20') bounded Northeasterly by land
now or formerly of Wang Laboratories, Inc. a Forty Food
_____________
Wang Laboratories, Inc. – now or formerly of Wang Laboratories, Inc. to a point;
Thence S 34 06' 12" E Forty and 20/100 (40.20') bounded Northeasterly by land
now or formerly of Wang Laboratories, Inc. a Forty Food Wide Utility Easement to
a Point;
Thence N 89 02' 55" E Five Hundred Sixty One and 61/100 feet (561.61') bounded
Northwesterly by land
_____________
Wang Laboratories, Inc. – Wide Utility Easement to
a Point;
Thence N 89 02' 55" E Five Hundred Sixty One and 61/100 feet (561.61') bounded
Northwesterly by land now or formerly of Wang Laboratories, Inc. and Forty Foot
Wide Utility Easement to a Point;
Thence S 13 00' 17" E One Hundred Sixty and 40/100 feet (160.04') bounded
Easterly by land now
_____________
Wang Laboratories, Inc. – Foot
Wide Utility Easement to a Point;
Thence S 13 00' 17" E One Hundred Sixty and 40/100 feet (160.04') bounded
Easterly by land now or formerly of Wang Laboratories, Inc. and a Thirty Foot
Wide Utility Easement to a Point;
Thence S 52 47' 37" W One Hundred Thirty Six and 01/100 feet (136.01') bounded
Southeasterly by
_____________
dt 1316029
;
|
Chase Manhattan
As referenced in this Lease Agreement:
Chase Manhattan Bank) – and [vii] requirements,
conditions and standards for participation in third-party payor insurance
programs.
"Lender" means JPMorgan Chase Bank (formerly known as the Chase Manhattan Bank) ,
trustee for the registered certificateholders of Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
2000-PS4.
"Letter
_____________
Chase Manhattan Bank, – Suisse First Boston
Mortgage Capital, LLC, dated September 22, 1999, recorded with said Deeds, Book
10437, page 21, as further assigned to The Chase Manhattan Bank, as Trustee,
dated April 6, 2001, recorded with said Deeds, Book 12049, page 238.
2. Assignment of Leases and Rents from Emeritus
_____________
Chase Manhattan Bank, – Suisse First Boston
Mortgage Capital, LLC, dated September 22, 1999, recorded with said Deeds, Book
10437, page 21, as further assigned to The Chase Manhattan Bank, as Trustee,
dated April 6, 2001, recorded with said Deeds, Book 12049, page 232.
3. UCC Financing Statement from Emeritus Properties IX
_____________
Chase Manhattan Bank, – Book 10437, page 13, as assigned to
Credit Suisse First Boston Capital, LLC, recorded therewith, as further affected
by and Assignment to The Chase Manhattan Bank, as Trustee, recorded with said
Deeds, Book 11698, page 290.
4. Plan entitled "ALTA/ACSM Land Title Plan 4 Technology Drive, Chelmsford,
_____________
dt 101874
;
CSFB Mortgage
As referenced in this Lease Agreement:
Credit Suisse First Boston
Mortgage Securities – third-party payor insurance
programs.
"Lender" means JPMorgan Chase Bank (formerly known as the Chase Manhattan Bank),
trustee for the registered certificateholders of Credit Suisse First Boston
Mortgage Securities Corp. Commercial Mortgage Pass-Through Certificates, Series
2000-PS4.
"Letter of Credit" shall mean on the Effective Date the letter of credit
required
_____________
dt 90458
;
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Full Doc
| 2003 |
Master Program Agreement
Master Program Agreement (77K)
Doc #172259: Click preview link for longer preview.
MASTER PROGRAM AGREEMENT
This Master Program Agreement dated as of August 1, 2003 (this Agreement) by and among CapitalSource Finance LLC, a Delaware limited liability company (CapitalSource), Credit Suisse First Boston Mortgage Capital, LLC, a Delaware limited liability company (Repo Counterparty), Credit Suisse First Boston LLC, a Delaware limited liability company (CSFB), and Column Financial, Inc., a Delaware corporation (Column and, collectively with Repo Counterparty and CSFB, the CSFB Parties).
W I T N E S S E T H:
WHEREAS, CapitalSource and Column intend to originate and/or purchase mortgage loans secured by skilled nursing facilities (the Loans) and subsequently securitize such Loans from time to time;
WHEREAS, CapitalSource Funding II LLC (CapitalSource Funding) and Repo Counterparty intend to enter into that certain Master Repurchase Agreement dated August 1, 2003 (the Repo Agreement) pursuant to which CapitalSource Funding will be able to finance the origination of certain of such Loans;
WHEREAS, CapitalSource and the CSFB Parties wish to agree on the criteria that will make Loans originated by CapitalSource eligible to be financed under the Repo Agreement and subsequently securitized;
WHEREAS, CapitalSource and the CSFB Parties wish to agree on the criteria that will make Loans originated by Column eligible for CapitalSource to purchase a subordinate participation interest and to be subsequently securitized;
WHEREAS, CapitalSource wishes to purchase certain securities issued in connection with the securitization of such Loans; and
WHEREAS, CapitalSource and the CSFB Parties wish to agree on certain other terms of the intended future securitizations of certain of such Loans.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. As used in this Agreement, the following terms shall have the following meanings:
Accrued Interest Amount shall mean, with respect to a Sub-pool Securitization, the aggregate amount of interest assumed to accrue on each class of securities assumed to be
172259
|
CSFB Mortgage
As referenced in this Master Program Agreement:
Credit Suisse First Boston Mortgage Capital, – Master Program Agreement dated as of August 1, 2003 (this Agreement) by and among CapitalSource Finance LLC, a Delaware limited liability company (CapitalSource), Credit Suisse First Boston Mortgage Capital, LLC, a Delaware limited liability company (Repo Counterparty), Credit Suisse First Boston LLC, a Delaware limited liability company (CSFB), and Column Financial,
_____________
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL – duly authorized, as of the date first above written.
CAPITALSOURCE FINANCE LLC
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON LLC
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC
By:
Name:
Title:
COLUMN FINANCIAL, INC.
By:
Name:
Title:
SCHEDULE I
ELIGIBILITY CRITERIA
In order to satisfy the Eligibility Criteria, a Loan
_____________
dt 113016
;
McGraw-Hill Companies
As referenced in this Master Program Agreement:
McGraw-Hill Companies, Inc – have the meaning given such term in Section 2.02(b).
S&P shall mean Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc .
SEC shall mean the Securities and Exchange Commission, or any successor thereto.
Securitization shall have the meaning given such term in Section
_____________
dt 311054
;
|
CapitalSource
As referenced in this Master Program Agreement:
CapitalSource Finance LLC, – EXHIBIT 10.2
EXECUTION COPY
MASTER PROGRAM AGREEMENT
This Master Program Agreement dated as of August 1, 2003 (this Agreement) by and among CapitalSource Finance LLC, a Delaware limited liability company (CapitalSource), Credit Suisse First Boston Mortgage Capital, LLC, a Delaware limited liability company (Repo Counterparty), Credit Suisse
_____________
CAPITALSOURCE FINANCE LLC
– parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
CAPITALSOURCE FINANCE LLC
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON LLC
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC
By:
Name:
Title:
COLUMN
_____________
dt 259586
;
Column Financial
As referenced in this Master Program Agreement:
Column Financial, – Boston Mortgage Capital, LLC, a Delaware limited liability company (Repo Counterparty), Credit Suisse First Boston LLC, a Delaware limited liability company (CSFB), and Column Financial, Inc., a Delaware corporation (Column and, collectively with Repo Counterparty and CSFB, the CSFB Parties).
W I T N E S S
_____________
COLUMN FINANCIAL, – FINANCE LLC
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON LLC
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC
By:
Name:
Title:
COLUMN FINANCIAL, INC.
By:
Name:
Title:
SCHEDULE I
ELIGIBILITY CRITERIA
In order to satisfy the Eligibility Criteria, a Loan must:
1.
be secured by
_____________
dt 126090
;
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Full Doc
| 2004 |
Promissory Note Secured by Deed of Trust [Amended and Restated]
Promissory Note Secured by Deed of Trust [Amended and Restated] (42K)
Doc #336570: Click preview link for longer preview.
AMENDED AND RESTATED PROMISSORY NOTE SECURED BY DEED OF TRUST
$7,597,441
August 28, 1998
For value received, BUTERA PROPERTIES, LLC, a Delaware limited liability company (hereinafter referred to as ?Maker?), promises to pay to the order of CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC, a Delaware limited liability company (?Lender? and also sometimes ?Payee?), having its principal office at 11 Madison Avenue, New York, New York 10010, or at such place as the holder hereof may . . .
336570
|
CSFB Mortgage
As referenced in this Promissory Note Secured by Deed of Trust [Amended and Restated]:
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL – For value received, BUTERA PROPERTIES, LLC, a Delaware limited liability company (hereinafter referred to as Maker), promises to pay to the order of CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC, a Delaware limited liability company (Lender and also sometimes Payee), having its principal office at 11 Madison Avenue, New York, New York
_____________
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL – LLC,
a Delaware limited liability company,
Manager
By:
-s- T. Richard Butera
T. Richard Butera,
Manager
Pay to the order of ,
without recourse.
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC,
a Delaware limited liability company
By:
Name:
Title:
-15-
_____________
dt 704976
;
| |
Preview
Full Doc
| 2004 |
Agreement of Purchase and Sale of Membership Interests and Properties and Escrow Instructions
Agreement of Purchase and Sale of Membership Interests and Properties and Escrow Instructions (369K)
Doc #336573: Click preview link for longer preview.
AGREEMENT OF PURCHASE AND SALE OF
MEMBERSHIP INTERESTS AND PROPERTIES
AND ESCROW INSTRUCTIONS
9631, 9633, 9635 and 9637 Liberty Road, Randallstown, Baltimore County, MD
115 and 125 Airport Place, and 1135 Business Parkway, Westminster, Carroll County, MD
6900 English Muffin Way, Frederick County, MD
4451 Georgia Pacific Boulevard, Frederick County, MD
15 Wormans Mill Court, Frederick, Frederick County, MD
9315 Largo Drive West, Largo, Prince Georges County, MD
1291 Edwin Miller Boulevard, Martinsburg, Berkeley County, WV
7561 Lindbergh Drive, Gaithersburg, Montgomery County, MD
811 and 831 Russell Avenue, Gaithersburg, Montgomery County, MD
200 and 220 Girard Street, and 504 East Diamond Avenue,
Gaithersburg, Montgomery County, MD
602, 620, 630 and 640 East Diamond Avenue, Gaithersburg, Montgomery County, MD
20270 Goldenrod Lane, Germantown, Montgomery County, MD
1129 Business Parkway South, Westminster, Carroll County, MD
10 North Jefferson Street, Frederick, Frederick County, MD
30 West Patrick Street, Frederick, Frederick County, MD
THIS AGREEMENT OF PURCHASE AND SALE OF MEMBERSHIP INTERESTS AND PROPERTIES AND ESCROW INSTRUCTIONS (this Agreement) is made and entered into as of May 27, 2004, by and among the following person and entities:
(A) for the Deer Park Property, the Gateway West Property, the Wedgewood Property, the Georgia Pacific Boulevard Property, the Radtech Property, and the Woodlands Property (all as hereinafter defined): (i) Butera Properties, Inc., in its capacity as Manager and a member of, and Butera Equity, LLC and Kimmel Equity, LLC, in their capacities as the members of, Butera Properties, LLC (individually a Butera Properties Member and collectively, the Butera Properties Members); and (ii) First Potomac Realty Investment Limited Partnership, a Delaware limited partnership (FP-LP) and FP Realty Investment Manager, Inc. (FP Manager) (FP-LP and FP Manager being collectively referred to as the FP LLC Buyers); and
(B) for the Old Courthouse Square Property and the Lindbergh Property (both as hereinafter defined): (i) Butera Properties II, Inc., in its capacity as Manager and a member of, and Butera Equity, LLC and Kimmel Equity, LLC, in their capacities as the members of, Butera Properties II, LLC (individually a Butera Properties II Member and collectively, the Butera Properties II Members); and (ii) FP LLC Buyers; and
(C) for the Gateway Center Property (as hereinafter defined): (i) Butera Gateway Center, Inc, in its capacity as Manager and a member of, and Butera Equity, LLC and Kimmel Equity, LLC, in their capacities as the members of, Butera Gateway Center, LLC (individually a Butera Gateway Center Member and collectively, the Butera Gateway Center Members); and (ii) FP LLC Buyers; and
(D) for the Girard Business Center Property (as hereinafter defined): (i) Butera Girard Business Center, Inc., in its capacity as Manager and a member of, and Butera Equity, LLC and Kimmel Equity, LLC, in their capacities as the members of, Butera Girard Business Center, LLC (individually a Butera Girard Business Center Member and collectively, the Butera Girard Business Center Members); and (ii) FP LLC Buyers; and
(E) for the Girard Place Property (as hereinafter defined): (i) Butera Girard Place, Inc, in its capacity as Manager and a member of, and Butera Equity, LLC and Kimmel Equity, LLC, in their capacities as the members of, Butera Girard Place, LLC (individually a Butera Girard Place Member and collectively, the Butera Girard Place Members); and (ii) FP LLC Buyers; and
(F) for the Goldenrod Lane Property (as hereinafter defined): (i) Butera Goldenrod Lane, Inc, in its capacity as Manager and a member of, and Butera Equity, LLC and Kimmel Equity, LLC, in their capacities as the members of, Butera Goldenrod Lane, LLC (individually a Butera Goldenrod Lane Member and collectively, the Butera Goldenrod Lane Members); and (ii) FP LLC Buyers; and
(G) for the Gateway West II Property (as hereinafter defined): (i) T. Richard Butera and RIP Investments LP, in their capacities as the members of Butera Gateway West II, LLC (individually a Butera Gateway West II Member and collectively, the Butera Gateway West II Members); and (ii) FP LLC Buyers; and
(H) for the Westpark Property (as hereinafter defined): (i) TRB, Inc., a Colorado corporation (TRB, Inc.); and (ii) FP Westpark, LLC (FP Westpark); and
(I) for the Patrick Center Property (as hereinafter defined): (i) TRB, Inc., Woodstone Associates, a Colorado general partnership (Woodstone), and Thirty Pat, LLC, a Maryland limited liability company (Thirty Pat); and (ii) FP Patrick Center, LLC (FP Patrick Center).
(FP LLC Buyers, FP Westpark and FP Patrick Center are referred to herein collectively as Buyer. Butera Properties, LLC, Butera Properties II, LLC, Butera Gateway Center, LLC, Butera Girard Business Center, LLC, Butera Girard Place, LLC, Butera Goldenrod Lane, LLC, and Butera Gateway West II, LLC, are referred to herein collectively as the LLCs. TRB, Inc., Woodstone and Thirty Pat are referred to herein collectively as the Patrick Center Sellers. Butera Properties, LLC, Butera Properties Members, Butera Properties II, LLC, Butera Properties II Members, Butera Gateway Center, LLC, Butera Gateway Center Members, Butera Girard Business Center LLC, Butera Girard Business Center Members, Butera Girard Place, LLC, Butera Girard Place Members, Butera Goldenrod Lane, LLC, Butera Goldenrod Lane Members, Butera Gateway West II, LLC, Butera Gateway West II Members, TRB, Inc., and the Patrick Center Sellers, are referred to herein collectively as Seller or Seller Parties.)
RECITALS:
R-1. Butera Properties, LLC is the owner of (i) the Deer Park Property located in
2
Baltimore County, Maryland, as legally and more particularly described on Exhibit A-1 attached hereto; (ii) the Gateway West Property located in Carroll County, Maryland, as legally and more particularly described on Exhibit A-2 attached hereto; (iii) the Wedgewood Property located in Frederick County, Maryland, as legally and more particularly described on Exhibit A-3 attached hereto; (iv) the Georgia Pacific Boulevard Property located in Frederick County, Maryland, as legally and more particularly described on Exhibit A-4 attached hereto; (v) the Radtech Property located in Frederick County, Maryland, as legally and more particularly described on Exhibit A-5 attached hereto; and (vi) the Woodlands Property located in Prince Georges County, Maryland, as legally and more particularly described on Exhibit A-6 attached hereto.
R-2. FP LLC Buyers wish to purchase, and the Butera Properties Members wish to sell, all of the membership interests in Butera Properties, LLC on the terms and conditions set forth herein.
R-3. Butera Properties II, LLC is the owner of (i) the Old Courthouse Square Property located in Berkeley County, West Virginia, as legally and more particularly described on Exhibit A-7 attached hereto; and (ii) the Lindbergh Property located in Montgomery County, Maryland, as legally and more particularly described on Exhibit A-8 attached hereto.
R-4. FP LLC Buyers wish to purchase, and the Butera Properties II Members wish to sell, all of the membership interests in Butera Properties II, LLC on the terms and conditions set forth herein.
R-5. Butera Gateway Center, LLC is the owner of the Gateway Center Property located in Montgomery County, Maryland, as legally and more particularly described on Exhibit A-9 attached hereto.
R-6. FP LLC Buyers wish to purchase, and the Butera Gateway Center Members wish to sell, all of the membership interests in Butera Gateway Center, LLC on the terms and conditions set forth herein.
R-7. Butera Girard Business Center, LLC is the owner of the Girard Business Center Property located in Montgomery County, Maryland, as legally and more particularly described on Exhibit A-10 attached hereto.
R-8. FP LLC Buyers wish to purchase, and the Butera Girard Business Center Members wish to sell, all of the membership interests in Butera Girard Business Center, LLC on the terms and conditions set forth herein.
R-9. Butera Girard Place, LLC is the owner of the Girard Place Property located in Montgomery County, Maryland, as legally and more particularly described on Exhibit A-11 attached hereto.
R-10. FP LLC Buyers wish to purchase, and the Butera Girard Place Members wish to sell, all of the membership interests in Butera Girard Place, LLC on the terms and conditions set forth herein.
3
R-11. Butera Goldenrod Lane, LLC is the owner of the Goldenrod Lane Property located in Montgomery County, Maryland, as legally and more particularly described on Exhibit A-12 attached hereto.
R-12. FP LLC Buyers wish to purchase, and the Butera Goldenrod Lane Members wish to sell, all of the membership interests in Butera Goldenrod Lane, LLC on the terms and conditions set forth herein.
R-13. Butera Gateway West II, LLC is the owner of the Butera Gateway West II Property located in Carroll County, Maryland, as legally and more particularly described on Exhibit A-13 attached hereto.
R-14. FP LLC Buyers wish to purchase, and the Butera Gateway West II Members wish to sell, all of the membership interests in Butera Gateway West II, LLC on the terms and conditions set forth herein.
R-15. TRB, Inc. is the owner of the Westpark Property located in Frederick County, Maryland, as legally and more particularly described on Exhibit A-14 attached hereto.
R-16. FP Westpark wishes to purchase, and TRB, Inc. wishes to sell, the Westpark Property on the terms and conditions set forth herein.
R-17. The Patrick Center Sellers are the owners of the Patrick Center Property located in Frederick County, Maryland, as legally and more particularly described on Exhibit A-15 attached hereto.
R-18. FP Patrick Center wishes to purchase, and the Patrick Center Sellers wish to sell, the Patrick Center Property on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, and good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Seller Parties and Buyer hereby agree as follows:
Article 1 of this Agreement consists of definitions for certain of the defined terms that are used throughout this Agreement.
Article 2 of this Agreement constitutes instructions to Escrow Agent (as such term is defined below), as well as agreements between Buyer and the Seller Parties.
Article 3 of this Agreement consists of further agreements between Buyer and the Seller Parties, with which Escrow Agent need not be concerned (except as otherwise directed in Article 2). Escrow Agent may rely entirely on the instructions contained in Article 2; however, as between Buyer and the Seller Parties, the provisions of Article 3 shall control if there is any inconsistency between those provisions and the instructions in Article 2.
4
ARTICLE 1 DEFINITIONS
The following terms, wherever used in this Agreement, shall have the respective meanings set forth below:
1.1. Actual Knowledge. Actual Knowledge means the actual (and not the constructive) current knowledge of the person or entity making a representation or warranty in this Agreement to his or its Actual Knowledge, and does not imply any inspection, examination or other inquiry undertaken by such person or entity to determine the accuracy of any representation, warranty or other statement made to such persons or entitys Actual Knowledge in this Agreement or in any of Sellers Closing Documents or Buyers Closing Documents, as applicable.
1.2. Agreement. Agreement has the meaning set forth in the first paragraph of the preamble.
1.3. Assignment of Membership Interests. Assignment of Membership Interests means an assignment of membership interests in form and substance reasonably acceptable to the Parties to be executed and delivered by each of the Selling Members at Closing, pursuant to which, each Selling Member shall assign and transfer to Buyer the applicable Membership Interest in accordance with the terms and conditions contained herein. The Assignment of Membership Interests shall contain an express warranty from each Selling Member that such Selling Member is the sole owner and holder of the entire legal and beneficial interest in and to the Membership Interest transferred thereby, that the Membership Interest is free and clear of any liens, pledges, claims or encumbrances, that the Membership Interest has not been previously transferred, conveyed or assigned, that such Selling Member has granted no options or rights to purchase the Membership Interest, that no person or entity has an option or right to acquire such Membership Interest, and that the Selling Member has full power and authority to make such assignment without joinder by or consent or approval of any other party, except the Existing Lender (as hereinafter defined). Pursuant to each Assignment of Membership Interests, Buyer shall assume all obligations of the Selling Member that is a party thereto to the applicable LLC arising from and after the Closing Date.
1.4. Broker. Broker means Matan Realty, LLLP.
1.5. Butera Gateway Center, LLC Membership Interests. Butera Gateway Center, LLC Membership Interests means one hundred percent (100%) of the membership interests in Butera Gateway Center, LLC, as owned by the Butera Gateway Center Members in the percentages reflected on Exhibit B-3 attached hereto.
1.6. Butera Gateway Center Manager. Butera Gateway Center Manager means Butera Gateway Center, Inc., manager of Butera Gateway Center, LLC.
1.7. Butera Gateway West II, LLC Membership Interests. Butera Gateway West II, LLC Membership Interests means one hundred percent (100%) of the membership interests in Butera Gateway West II, LLC, as owned by the Butera Gateway West II Members in the
5
percentages reflected on Exhibit B-7 attached hereto.
1.8. Butera Gateway Center II Manager. Butera Gateway Center II Manager means T. Richard Butera, manager of Butera Gateway West II, LLC.
1.9. Butera Girard Business Center, LLC Membership Interests. Butera Girard Business Center, LLC Membership Interests means one hundred percent (100%) of the membership interests in Butera Girard Business Center, LLC, as owned by the Butera Girard Business Center Members in the percentages reflected on Exhibit B-4 attached hereto.
1.10. Butera Girard Business Center Manager. Butera Girard Business Center Manager means Butera Girard Business Center, Inc., manager of Butera Girard Business Center, LLC.
1.11. Butera Girard Place, LLC Membership Interests. Butera Girard Place, LLC Membership Interests means one hundred percent (100%) of the membership interests in Butera Girard Place, LLC, as owned by the Butera Girard Place Members in the percentages reflected on Exhibit B-5 attached hereto.
1.12. Butera Girard Place Manager. Butera Girard Place Manager means Butera Girard Place, Inc., manager of Butera Girard Place, LLC.
1.13. Butera Goldenrod Lane, LLC Membership Interests. Butera Goldenrod Lane, LLC Membership Interests means one hundred percent (100%) of the membership interests in Butera Goldenrod Lane, LLC, as owned by the Butera Goldenrod Lane Members in the percentages reflected on Exhibit B-6 attached hereto.
1.14. Butera Goldenrod Lane Manager. Butera Goldenrod Lane Manager means Butera Goldenrod Lane, Inc., manager of Butera Goldenrod Lane, LLC.
1.15. Butera Properties, LLC Membership Interests. Butera Properties, LLC Membership Interests means one hundred percent (100%) of the membership interests in Butera Properties, LLC, as owned by the Butera Properties Members in the percentages reflected on Exhibit B-1 attached hereto.
1.16. Butera Properties Manager. Butera Properties Manager means Butera Properties, Inc., manager of Butera Properties, LLC.
1.17. Butera Properties II, LLC Membership Interests. Butera Properties II, LLC Membership Interests means one hundred percent (100%) of the membership interests in Butera Properties II, LLC, as owned by the Butera Properties II Members in the percentages reflected on Exhibit B-2 attached hereto.
1.18. Butera Properties II Manager. Butera Properties II Manager means Butera Properties II, Inc., manager of Butera Properties II, LLC.
336573
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CSFB Mortgage
As referenced in this Agreement of Purchase and Sale of Membership Interests and Properties and Escrow Instructions:
Credit Suisse First Boston Mortgage Capital – Policy).
(n) That certain lenders policy of title insurance for the Westpark Real Property (Policy No. C291255), dated September 25, 1998, issued to Credit Suisse First Boston Mortgage Capital LLC by Commercial Title Group, Ltd., as Agent for First American Title Insurance Company (Westpark Existing Title Policy).
(o) That certain owners policy
_____________
Credit Suisse First Boston Mortgage Capital – Properties are currently encumbered by and subject to the liens of the Existing Deeds of Trust securing two (2) loans previously advanced by Credit Suisse First Boston Mortgage Capital LLC, with one (1) Existing Deed of Trust being in the original principal amount of Seventy Five Million Four Hundred Two Thousand Five
_____________
dt 704979
;
Chicago Title
As referenced in this Agreement of Purchase and Sale of Membership Interests and Properties and Escrow Instructions:
Chicago Title Insurance – are identified in the Schedule of Environmental Reports attached hereto as a part of Exhibit M.
1.30. Escrow Agent. Escrow Agent means Chicago Title Insurance Company having an address at 19 East Fayette Street, Suite 300, Baltimore, Maryland 21202, Attn: Albert E. Sikorsky, III.
1.31. Escrow. Escrow
_____________
Chicago Title Insurance – No. 21 0288 106 00000016), dated April 24, 1998, issued to Butera Properties II, LLC by Mark W. Kugler, Esquire, as Agent for Chicago Title Insurance Company (Lindbergh Existing Title Policy).
(i) That certain owners policy of title insurance for the Gateway Center Real Property (Policy No. Z545165), dated
_____________
Chicago Title Insurance – Center Real Property and the issuance of the Patrick Center Title Policy (Patrick Center Title Commitment).
1.63. Title Company. Title Company means Chicago Title Insurance Company.
1.64. Title Policies. Title Policies means, collectively, all of the following:
(a) Deer Park Title Policy means an ALTA owners policy
_____________
Chicago Title Insurance – Vice President
The undersigned agrees to serve as Escrow Agent in accordance with
the terms and conditions set forth under the foregoing Agreement:
Chicago Title Insurance Company
By:
Date of Escrow Agents Execution:
, 2004
_____________
dt 685526
;
|
First Potomac
As referenced in this Agreement of Purchase and Sale of Membership Interests and Properties and Escrow Instructions:
First Potomac Realty Trust
– Topper, Jr., Esq.
Fax No.: 301-696-0858
Phone: 301-696-9780
Email: PhilTopper@aol.com (for informational purposes only)
If to Buyer:
First Potomac Realty Trust
7200 Wisconsin Avenue, Suite 310
Bethesda, Maryland 20814
Attention: Nicholas R. Smith
Fax No.: 301-986-5554
Phone: 301-986-9200
Email:
_____________
First Potomac Realty Trust, – LLC
By:
/s/ T. Richard Butera
T. Richard Butera
Manager
WITNESS:
BUYER:
FIRST POTOMAC REALTY INVESTMENT
LIMITED PARTNERSHIP, a Delaware
limited partnership
By: First Potomac Realty Trust, a Maryland
real estate investment trust,
its general partner
By:
/s/ Nicholas R. Smith
Print Name:
Nicholas R. Smith
Title:
Executive Vice
_____________
First Potomac Realty Trust, – Title:
Executive Vice President
FP WESTPARK, LLC
By:
First Potomac Realty
Investment Limited Partnership,
a Delaware limited partnership,
its sole member/manager
By:
First Potomac Realty Trust, a
Maryland real estate investment
trust, its general partner
By:
/s/ Nicholas R. Smith
Print Name:
Nicholas R. Smith
Title:
Executive Vice
_____________
First Potomac Realty Trust, – Executive Vice President
FP PATRICK CENTER, LLC
By:
First Potomac Realty
Investment Limited Partnership,
a Delaware limited partnership,
its sole member/manager
By:
First Potomac Realty Trust, a Maryland
real estate investment trust,
its general partner
By:
/s/ Nicholas R. Smith
Print Name:
Nicholas R. Smith
Title:
Executive Vice
_____________
dt 654868
|
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Full Doc
| 2002 |
Forbearance Agreement Relating to 1997 D&O Loans
Forbearance Agreement Relating to 1997 D&O Loans (33K)
Doc #150017: Click preview link for longer preview.
FORBEARANCE AGREEMENT RELATING TO
1997 D&O LOANS
FORBEARANCE AGREEMENT, dated as of October 16, 2002 (this
"Agreement"), among Conseco, Inc., an Indiana corporation ("Conseco"), CIHC,
Incorporated, a Delaware corporation ("CIHC" and, together with Conseco, the
"Obligors"), the financial institutions named on the signature pages hereto (the
"Participant Banks") and Bank of America, N.A., individually and as agent for
the Banks referred to below (the "Agent").
WITNESSETH:
A. WHEREAS, Conseco and the Agent are parties to a Guaranty dated as
of November 22, 2000 (as heretofore amended, the "Conseco Guaranty"), and
Conseco, various financial institutions party thereto (the "Banks") and the
Agent are parties to the Agreement dated as of September 22, 2000, Re 1997 D&O
Loans (the "Refinancing Agreement"), each entered into in connection with the
Credit Agreement dated as of November 22, 2000 (as heretofore amended, the
"Credit Agreement") among the borrowers party thereto (the "Borrowers"), the
Banks and the Agent relating to the refinancing of certain loans under an
Amended and Restated Credit Agreement dated as of August 26, 1997 among the
Borrowers, certain other borrowers, the Banks and the Agent;
B. WHEREAS, Conseco has advised the Agent and the Banks that, as of
the date hereof, certain defaults (as referred to below, the "Specified
Defaults") have occurred and are continuing or are expected to occur under the
Conseco Guaranty and the Refinancing Agreement; and
C. WHEREAS, Conseco has asked the Agent and the Banks, and the Agent
and the Participant Banks are willing, to forbear from exercising certain
default-related remedies against the Obligors under the Refinancing Agreement,
the Conseco Guaranty and the CIHC Guaranty (together, the "Guaranty Documents")
on account of the Specified Defaults for a limited period of time and upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the covenants and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Conseco Guaranty
150017
|
CSFB Mortgage
As referenced in this Forbearance Agreement Relating to 1997 D&O Loans:
Credit Suisse First Boston
Mortgage Capital – Green Tree Residual Finance
Corp I and Lehman Brothers Inc., and related documents entered
into in connection therewith.
5. Master Repurchase Agreement between Credit Suisse First Boston
Mortgage Capital LLC and Green Tree Financial Corp. dated March
26, 1999, and related documents entered into in connection
therewith.
6. Credit Agreement between Conseco
_____________
dt 113006
;
Conseco
As referenced in this Forbearance Agreement Relating to 1997 D&O Loans:
Conseco, Inc – Exhibit 10.8.37
FORBEARANCE AGREEMENT RELATING TO
1997 D&O LOANS
FORBEARANCE AGREEMENT, dated as of October 16, 2002 (this
"Agreement"), among Conseco, Inc ., an Indiana corporation ("Conseco"), CIHC,
Incorporated, a Delaware corporation ("CIHC" and, together with Conseco, the
"Obligors"), the financial institutions named on the
_____________
CONSECO, INC – 7
{PAGE}
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
CONSECO, INC .
By: /s/ David K. Herzog
---------------------------------------------
Name: David K. Herzog
Title: Executive Vice President,
General Counsel and Secretary
8
{PAGE}
CIHC, INCORPORATED
By: /
_____________
Conseco, Inc – between Lehman
and CFC
3. Current cash balance update (as of October 18, 2002) with respect
to each of the following entities:
i. Conseco, Inc .,
ii. CCM, Services,
iii. other non-CIHC and non-insurance entities,
iv. CIHC (stand alone), and
v. CIHC (consolidated but excluding insurance
_____________
Conseco, Inc – Business plan / strategic plan for Conseco Finance
2. Daily and weekly cash balance updates with respect to each of the
following entities:
i. Conseco, Inc .,
ii. CCM, Services,
iii. other non-CIHC and non-insurance entities,
iv. CIHC (stand alone), and
v. CIHC (consolidated but excluding insurance
_____________
dt 220268
;
BofA
As referenced in this Forbearance Agreement Relating to 1997 D&O Loans:
Bank of America, – the
"Obligors"), the financial institutions named on the signature pages hereto (the
"Participant Banks") and Bank of America, N.A., individually and as agent for
the Banks referred to below (the "Agent").
BANK OF AMERICA, – William T. Devanney, Jr.
---------------------------------------------
Name: William T. Devanney, Jr.
Title: Senior Vice President
9
{PAGE}
BANK OF AMERICA, N.A., as
Administrative Agent and as a Bank
By: /s/ Bridget Garavalia
---------------------------------------------
Name:
dt 40054
;
|
Fleet National
As referenced in this Forbearance Agreement Relating to 1997 D&O Loans:
FLEET NATIONAL BANK
– s/ Mark B. Cohen
--------------------------------------------
Name: Mark B. Cohen
Title: Managing Director
Head of Workout
{PAGE}
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
--------------------------------------------
Name:
Title:
{PAGE}
FLEET NATIONAL BANK
By:
--------------------------------------------
Name:
Title:
{PAGE}
SUN TRUST BANK
By: /s/ Byron P. Kurtgis
--------------------------------------------
Name: Byron P. Kurtgis
Title: Director
{PAGE}
GENERAL ELECTRIC CAPITAL
_____________
dt 103929
;
Lehman Brothers
As referenced in this Forbearance Agreement Relating to 1997 D&O Loans:
Lehman Brothers Inc – February 13,
1998, and related documents entered into in connection therewith.
4. Master Repurchase Agreement between Green Tree Residual Finance
Corp I and Lehman Brothers Inc ., and related documents entered
into in connection therewith.
5. Master Repurchase Agreement between Credit Suisse First Boston
Mortgage Capital LLC and Green
_____________
dt 104970
;
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Full Doc
| 2002 |
Forbearance Agreement Relating to 1998 (Non-Refinanced) D&O Loans
Forbearance Agreement Relating to 1998 (Non-Refinanced) D&O Loans (32K)
Doc #150019: Click preview link for longer preview.
FORBEARANCE AGREEMENT RELATING TO
1998 (NON-REFINANCED) D&O LOANS
FORBEARANCE AGREEMENT, dated as of October 16, 2002 (this
"Agreement"), among Conseco, Inc., an Indiana corporation ("Conseco"), CIHC,
Incorporated, a Delaware corporation ("CIHC" and, together with Conseco, the
"Obligors"), the financial institutions named on the signature pages hereto (the
"Participant Banks") and Bank of America, N.A., individually and as agent for
the Banks referred to below (the "Agent").
WITNESSETH:
A. WHEREAS, Conseco and the Agent are parties to a Guaranty dated as
of August 21, 1998 (as heretofore amended, the "Conseco Guaranty"), and Conseco,
various financial institutions party thereto (the "Banks") and the Agent are
parties to the Agreement dated as of September 22, 2000, Re 1998 D&O Loans (the
"Refinancing Agreement"), each entered into in connection with the Credit
Agreement dated as of August 21, 1998 (as heretofore amended, the "Credit
Agreement") among the borrowers party thereto (the "Borrowers"), the Banks and
the Agent;
B. WHEREAS, Conseco has advised the Agent and the Banks that, as of
the date hereof, certain defaults (as referred to below, the "Specified
Defaults") have occurred and are continuing or are expected to occur under the
Conseco Guaranty and the Refinancing Agreement; and
C. WHEREAS, Conseco has asked the Agent and the Banks, and the Agent
and the Participant Banks are willing, to forbear from exercising certain
default-related remedies against the Obligors under the Refinancing Agreement,
the Conseco Guaranty and the Guaranty and Subordination Agreement dated as of
September 22, 2000 (as heretofore amended, the "CIHC Guaranty") by CIHC and
Conseco in favor of the Agent ("Guaranty Documents") on account of the Specified
Defaults for a limited period of time and upon the terms and conditions set
forth herein.
NOW, THEREFORE, in consideration of the foregoing, the covenants and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
150019
|
CSFB Mortgage
As referenced in this Forbearance Agreement Relating to 1998 (Non-Refinanced) D&O Loans:
Credit Suisse First Boston
Mortgage Capital – Green Tree Residual Finance
Corp I and Lehman Brothers Inc., and related documents entered
into in connection therewith.
5. Master Repurchase Agreement between Credit Suisse First Boston
Mortgage Capital LLC and Green Tree Financial Corp. dated March
26, 1999, and related documents entered into in connection
therewith.
6. Credit Agreement between Conseco
_____________
dt 113007
;
Conseco
As referenced in this Forbearance Agreement Relating to 1998 (Non-Refinanced) D&O Loans:
Conseco, Inc – 8.39
FORBEARANCE AGREEMENT RELATING TO
1998 (NON-REFINANCED) D&O LOANS
FORBEARANCE AGREEMENT, dated as of October 16, 2002 (this
"Agreement"), among Conseco, Inc ., an Indiana corporation ("Conseco"), CIHC,
Incorporated, a Delaware corporation ("CIHC" and, together with Conseco, the
"Obligors"), the financial institutions named on the
_____________
CONSECO, INC – 8
{PAGE}
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
CONSECO, INC .
By: /s/ David K. Herzog
---------------------------------------------
Name: David K. Herzog
Title: Executive Vice President, General
Counsel and Secretary
9
{PAGE}
CIHC, INCORPORATED
By: /
_____________
Conseco, Inc – between Lehman
and CFC
3. Current cash balance update (as of October 18, 2002) with respect
to each of the following entities:
i. Conseco, Inc .,
ii. CCM, Services,
iii. other non-CIHC and non-insurance entities,
iv. CIHC (stand alone), and
v. CIHC (consolidated but excluding insurance
_____________
Conseco, Inc – Business plan / strategic plan for Conseco Finance
2. Daily and weekly cash balance updates with respect to each of the
following entities:
i. Conseco, Inc .,
ii. CCM, Services,
iii. other non-CIHC and non-insurance entities,
iv. CIHC (stand alone), and
v. CIHC (consolidated but excluding insurance
_____________
dt 220269
;
BofA
As referenced in this Forbearance Agreement Relating to 1998 (Non-Refinanced) D&O Loans:
Bank of America, – the
"Obligors"), the financial institutions named on the signature pages hereto (the
"Participant Banks") and Bank of America, N.A., individually and as agent for
the Banks referred to below (the "Agent").
BANK OF AMERICA, – William T. Devanney, Jr.
---------------------------------------------
Name: William T. Devanney, Jr.
Title: Senior Vice President
10
{PAGE}
BANK OF AMERICA, N.A., as
Administrative Agent and as a Bank
By: /s/ Bridget A. Garavalia
---------------------------------------------
dt 40055
;
|
BNY
As referenced in this Forbearance Agreement Relating to 1998 (Non-Refinanced) D&O Loans:
BANK OF NEW YORK
– Mark B. Cohen
--------------------------------------------
Name: Mark B. Cohen
Title: Managing Director
Head of Workout
{PAGE}
THE BANK OF NEW YORK
By: /s/ Stephen C. Brennan
--------------------------------------------
Name: Stephen C. Brennan
Title: Vice President
{PAGE}
SCHEDULE
dt 41811
;
JPMorgan Chase
As referenced in this Forbearance Agreement Relating to 1998 (Non-Refinanced) D&O Loans:
JPMORGAN CHASE – a Bank
By: /s/ Bridget A. Garavalia
---------------------------------------------
Name: Bridget A. Garavalia
Title: Managing Director
{PAGE}
JPMORGAN CHASE BANK
By: /s/ Helen L. Newcomb
--------------------------------------------
Name: Helen L. Newcomb
Title: Vice President
{PAGE}
DEUTSCHE
dt 45837
;
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Forbearance Agreement Relating to $1,500,000,000 Five-Year Credit Agreement
Forbearance Agreement Relating to $1,500,000,000 Five-Year Credit Agreement (55K)
Doc #162418: Click preview link for longer preview.
FORBEARANCE AGREEMENT RELATING TO
$1,500,000,000 FIVE-YEAR CREDIT AGREEMENT
FORBEARANCE AGREEMENT, dated as of October 16, 2002 (this
"Agreement"), among Conseco, Inc., an Indiana corporation (the "Borrower"),
CIHC, Incorporated, a Delaware corporation ("CIHC" and, together with the
Borrower, the "Obligors"), the financial institutions named on the signature
pages hereto (the "Participant Banks") and Bank of America, N.A., individually
and as agent for the Banks (the "Agent").
WITNESSETH:
A. WHEREAS, the Borrower, the Participant Banks, certain other
financial institutions and the Agent are parties to a $1,500,000,000 Five-Year
Credit Agreement dated as of September 25, 1998 (as heretofore amended, the
"Credit Agreement");
B. WHEREAS, the Borrower has advised the Agent and the Banks that, as
of the date hereof, certain Events of Default (as defined below, the "Specified
Defaults") have occurred and are continuing or are expected to occur under the
Credit Agreement; and
C. WHEREAS, the Borrower has asked the Banks, and the Participant
Banks are willing, to forbear from exercising certain default-related remedies
against the Obligors under the Loan Documents and the CIHC Guaranty on account
of the Specified Defaults for a limited period of time and upon the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the covenants and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1 . Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement.
SECTION 2 . Obligor Acknowledgements and Undertakings.
(a) Each Obligor acknowledges and agrees that the aggregate principal
amount of the outstanding Loans under the Credit Agreement as of October 17,
1
{PAGE}
2002 and the aggregate accrued and unpaid interest on the Loans through October
17, 2002 will be as follows:
Principal amount of the Loans
as of October 17, 2002: $1,493,275,217.39
Accrued and unpaid interest on
the Loans through October 17, 2002: $23,365,185.16
The foregoing amounts do not include unpaid interest, fees, expenses and other
amounts (other than accrued and unpaid interest on the Loans through October 17,
2002) that are chargeable or otherwise reimbursable under the Loan Documents.
(b) Each Obligor agrees and acknowledges that Events of Default under
clauses (a), (c) and (e) of Article 5 of the Appendix (incorporated by reference
into the Credit Agreement), including, without limitation, (i) the failure by
the Borrower (and CIHC as guarantor) to pay interest on the Loans on October 17,
2002 and October 31, 2002 pursuant to Section 2.12(b) of the Credit Agreement or
within the applicable grace period, (ii) the failure by the Borrower to comply
with the financial covenants set forth in Section 4.13 of the Appendix as of
June 30, 2002 and September 30, 2002, (iii) the failure by the Borrower and CIHC
(as guarantor of the Borrower's obligations with respect to the New Notes (as
defined in Schedule I)) to make the interest payment (and, in the case of the
October 2002 Notes (as defined in Schedule I), to repay the principal amount) in
respect of any Indebtedness set forth on Schedule I hereto on the payment date
set forth with respect to such Indebtedness on such Schedule or within any
applicable grace or notice period, (iv) the failure by the Obligors (as
guarantors) to make the interest payment in respect of the D&O Facilities on the
applicable interest payment dates in October 2002 or within any applicable grace
period and (v) Events of Default under clause (e) of the Appendix solely as a
result of any of the foregoing constituting a default under any other
Indebtedness (collectively, the "Specified Defaults") constitute material Events
of Default that have occurred and are continuing or are expected to occur on or
before October 31, 2002.
(c) The Borrower shall, on or prior to October 18, 2002 (or, in the
case of the Milliman Information (as defined in Schedule IV hereto) October 22,
2002), deliver or cause to be delivered to Ernst & Young Corporate Finance
("EYCF") the information listed on Part 1 of Schedule IV hereto, such
information to be in form and substance satisfactory to EYCF. The Borrower
shall, on an ongoing basis, promptly upon the preparation or receipt thereof,
deliver or cause to be delivered to EYCF the information listed on Part 2 of
Schedule IV hereto, such information to be in form and substance satisfactory to
EYCF.
(d) The Borrower shall, promptly upon obtaining knowledge thereof,
notify the Agent and the Banks in writing of the occurrence of any event or
condition described in clauses (ii), (iv) or (v) of Section 3(b) below.
162418
|
CSFB Mortgage
As referenced in this Forbearance Agreement Relating to $1,500,000,000 Five-Year Credit Agreement:
Credit Suisse First Boston
Mortgage Capital – Green Tree Residual Finance Corp I
and Lehman Brothers Inc., and related documents entered into in
connection therewith.
5. Master Repurchase Agreement between Credit Suisse First Boston
Mortgage Capital LLC and Green Tree Financial Corp. dated March 26,
1999, and related documents entered into in connection therewith.
6. Credit Agreement between Conseco
_____________
dt 113010
;
Bear, Stearns
As referenced in this Forbearance Agreement Relating to $1,500,000,000 Five-Year Credit Agreement:
BEAR STEARNS & CO – INT'L LTD.
By:
----------------------------------------
Name:
Title:
{PAGE}
JPMORGAN CHASE BANK
By: /s/ Helen L. Newcomb
----------------------------------------
Name: Helen L. Newcomb
Title: Vice President
{PAGE}
BEAR STEARNS & CO INC.
By: /s/ John E. McDermott
----------------------------------------
Name: John E. McDermott
Title: Senior Managing Director
{PAGE}
DEUTSCHE BANK, AG, NEW YORK
AND/OR CAYMAN
_____________
dt 246549
;
Conseco
As referenced in this Forbearance Agreement Relating to $1,500,000,000 Five-Year Credit Agreement:
Conseco, Inc – FORBEARANCE AGREEMENT RELATING TO
$1,500,000,000 FIVE-YEAR CREDIT AGREEMENT
FORBEARANCE AGREEMENT, dated as of October 16, 2002 (this
"Agreement"), among Conseco, Inc ., an Indiana corporation (the "Borrower"),
CIHC, Incorporated, a Delaware corporation ("CIHC" and, together with the
Borrower, the "Obligors"), the financial institutions named
_____________
CONSECO, INC – 7
{PAGE}
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
CONSECO, INC .
By: /s/ David K. Herzog
----------------------------------------
Name: David K. Herzog
Title: Executive Vice President, General
Counsel and Secretary
8
{PAGE}
CIHC, INCORPORATED
By: /
_____________
Conseco, Inc – Lehman and
Conseco Finance
3. Current cash balance update (as of October 18, 2002) with respect to
each of the following entities:
i. Conseco, Inc .,
ii. CCM, Services,
iii. other non-CIHC and non-insurance entities,
iv. CIHC (stand alone), and
v. CIHC (consolidated but excluding insurance
_____________
Conseco, Inc – Business plan / strategic plan for Conseco Finance
2. Daily and weekly cash balance updates with respect to each of the
following entities:
i. Conseco, Inc .,
ii. CCM, Services,
iii. other non-CIHC and non-insurance entities,
iv. CIHC (stand alone), and
v. CIHC (consolidated but excluding insurance
_____________
dt 220270
;
|
Harvard
As referenced in this Forbearance Agreement Relating to $1,500,000,000 Five-Year Credit Agreement:
FELLOWS OF
HARVARD – Manager
By: /s/ Louis Koven
----------------------------------------
Name: Louis Koven
Title: Executive Vice President - CFO
{PAGE}
PRESIDENT & FELLOWS OF
HARVARD
By:
----------------------------------------
Name:
Title:
{PAGE}
DE SHAW LAMINAR PORTFOLIOS
LLC
By:
----------------------------------------
Name:
Title:
{PAGE}
CANPARTNERS
dt 64375
;
BofA
As referenced in this Forbearance Agreement Relating to $1,500,000,000 Five-Year Credit Agreement:
Bank of America, – the "Obligors"), the financial institutions named on the signature
pages hereto (the "Participant Banks") and Bank of America, N.A., individually
and as agent for the Banks (the "Agent").
WITNESSETH:
A. WHEREAS,
BANK OF AMERICA, – William T. Devanney, Jr.
----------------------------------------
Name: William T. Devanney, Jr.
Title: Senior Vice President
1
{PAGE}
BANK OF AMERICA, N.A., as
Administrative Agent and as a Bank
By: /s/ Bridget A. Garavalia
----------------------------------------
BANK OF AMERICA, – Name: David B. Forer
Title: General Partner
{PAGE}
US BANK NA
By:
----------------------------------------
Name:
Title:
{PAGE}
BANK OF AMERICA, N.A. DEBT TRADING
By: /s/ Edward Harmon
----------------------------------------
Name: Edward Harmon
Title: Vice President
{
dt 40237
;
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| 2002 |
Forbearance Agreement Relating to 1998 D&O Loans
Forbearance Agreement Relating to 1998 D&O Loans (32K)
Doc #162420: Click preview link for longer preview.
FORBEARANCE AGREEMENT RELATING TO
1998 D&O LOANS
FORBEARANCE AGREEMENT, dated as of October 16, 2002 (this
"Agreement"), among Conseco, Inc., an Indiana corporation ("Conseco"), CIHC,
Incorporated, a Delaware corporation ("CIHC" and, together with Conseco, the
"Obligors"), the financial institutions named on the signature pages hereto (the
"Participant Banks") and Bank of America, N.A., individually and as agent for
the Banks referred to below (the "Agent").
WITNESSETH:
A. WHEREAS, Conseco and the Agent are parties to a Guaranty dated as
of November 22, 2000 (as heretofore amended, the "Conseco Guaranty"), and
Conseco, various financial institutions party thereto (the "Banks") and the
Agent are parties to the Agreement dated as of September 22, 2000, Re 1998 D&O
Loans (the "Refinancing Agreement"), each entered into in connection with the
Credit Agreement dated as of November 22, 2000 (as heretofore amended, the
"Credit Agreement") among the borrowers party thereto (the "Borrowers"), the
Banks and the Agent relating to the refinancing of certain loans under a Credit
Agreement dated as of August 21, 1998 among the Borrowers, certain other
borrowers, the Banks and the Agent;
B. WHEREAS, Conseco has advised the Agent and the Banks that, as of
the date hereof, certain defaults (as referred to below, the "Specified
Defaults") have occurred and are continuing or are expected to occur under the
Conseco Guaranty and the Refinancing Agreement; and
C. WHEREAS, Conseco has asked the Agent and the Banks, and the Agent
and the Participant Banks are willing, to forbear from exercising certain
default-related remedies against the Obligors under the Refinancing Agreement,
the Conseco Guaranty and the CIHC Guaranty (together, the "Guaranty Documents")
on account of the Specified Defaults for a limited period of time and upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the covenants and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1
{PAGE}
SECTION 1. Defined Terms; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Conseco Guaranty
has the meaning assigned to such term in the Conseco Guaranty (including by
reference to the Credit Agreement).
SECTION 2. Obligor Acknowledgements and Undertakings.
(a) Each Obligor acknowledges and agrees that the aggregate principal
amount of the outstanding Loans under the Credit Agreement as of October 17,
2002 and the aggregate accrued and unpaid interest on the Loans through October
17, 2002 will be as follows:
Principal amount of the Loans
as of October 17, 2002: $129,818,945.47
Accrued and unpaid interest on
the Loans through October 17, 2002: $1,463,240.40
The foregoing amounts do not include unpaid interest, fees, expenses and other
amounts (other than accrued and unpaid interest on the Loans through October 17,
2002) that are chargeable or otherwise reimbursable under the Loan Documents.
(b) Each Obligor acknowledges and agrees that the aggregate accrued
and unpaid Waiver Consideration (as defined in Waiver No. 2 dated as of
September 8, 2002 to the Conseco Guaranty and the Refinancing Agreement) through
October 17, 2002 is equal to $429,616.63.
The foregoing amount does not include any Waiver Consideration (other than
Waiver Consideration accrued and unpaid through October 17, 2002) that is
chargeable under the above referenced Waiver No. 2.
(c) Each Obligor agrees and acknowledges that events of default under
clauses (a), (c) and (e) of Article 5 of the Appendix (incorporated by reference
into the Conseco Guaranty and the Refinancing Agreement), including, without
limitation, (i) the failure by the Obligors (as guarantors) to pay interest on
the Loans under the Credit Agreement on October 17, 2002 pursuant to the
applicable Guaranty Documents or within the applicable grace period, (ii) the
failure by Conseco to comply with the financial covenants set forth in Section
4.13 of the Appendix as of June 30, 2002 and September 30, 2002, (iii) the
failure by Conseco and CIHC (as guarantor of Conseco's obligations with respect
to the New Notes (as defined in Schedule I) and the Revolving Credit Agreement)
to make the interest payment (and, in the case of the October 2002 Notes (as
defined in Schedule 1), to repay the principal amount) in respect of any
Indebtedness set forth on Schedule I hereto on the payment date set forth with
respect to such Indebtedness on such Schedule or within any applicable grace or
162420
|
CSFB Mortgage
As referenced in this Forbearance Agreement Relating to 1998 D&O Loans:
Credit Suisse First Boston
Mortgage Capital – Green Tree Residual Finance
Corp I and Lehman Brothers Inc., and related documents entered
into in connection therewith.
5. Master Repurchase Agreement between Credit Suisse First Boston
Mortgage Capital LLC and Green Tree Financial Corp. dated March
26, 1999, and related documents entered into in connection
therewith.
6. Credit Agreement between Conseco
_____________
dt 113011
;
Conseco
As referenced in this Forbearance Agreement Relating to 1998 D&O Loans:
Conseco, Inc – Exhibit 10.8.38
FORBEARANCE AGREEMENT RELATING TO
1998 D&O LOANS
FORBEARANCE AGREEMENT, dated as of October 16, 2002 (this
"Agreement"), among Conseco, Inc ., an Indiana corporation ("Conseco"), CIHC,
Incorporated, a Delaware corporation ("CIHC" and, together with Conseco, the
"Obligors"), the financial institutions named on the
_____________
CONSECO, INC – 8
{PAGE}
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
CONSECO, INC .
By: /s/ David K. Herzog
-------------------------------------------
Name: David K. Herzog
Title: Executive Vice President, General
Counsel and Secretary
9
{PAGE}
CIHC, INCORPORATED
By: /
_____________
Conseco, Inc – between Lehman
and CFC
3. Current cash balance update (as of October 18, 2002) with respect
to each of the following entities:
i. Conseco, Inc .,
ii. CCM, Services,
iii. other non-CIHC and non-insurance entities,
iv. CIHC (stand alone), and
v. CIHC (consolidated but excluding insurance
_____________
Conseco, Inc – Business plan / strategic plan for Conseco Finance
2. Daily and weekly cash balance updates with respect to each of the
following entities:
i. Conseco, Inc .,
ii. CCM, Services,
iii. other non-CIHC and non-insurance entities,
iv. CIHC (stand alone), and
v. CIHC (consolidated but excluding insurance
_____________
dt 220271
;
BofA
As referenced in this Forbearance Agreement Relating to 1998 D&O Loans:
Bank of America, – the
"Obligors"), the financial institutions named on the signature pages hereto (the
"Participant Banks") and Bank of America, N.A., individually and as agent for
the Banks referred to below (the "Agent").
BANK OF AMERICA, – William T. Devanney, Jr.
-------------------------------------------
Name: William T. Devanney, Jr.
Title: Senior Vice President
10
{PAGE}
BANK OF AMERICA, N.A., as
Administrative Agent and as a Bank
By: /s/ Bridget A. Garavalia
-------------------------------------------
dt 40238
;
|
BNY
As referenced in this Forbearance Agreement Relating to 1998 D&O Loans:
BANK OF NEW YORK
– Mark B. Cohen
-------------------------------------------
Name: Mark B. Cohen
Title: Managing Director
Head of Workout
{PAGE}
THE BANK OF NEW YORK
By: /s/ Stephen C. Brennan
-------------------------------------------
Name: Stephen C. Brennan
Title: Vice Persident
{PAGE}
SCHEDULE
dt 42098
;
JPMorgan Chase
As referenced in this Forbearance Agreement Relating to 1998 D&O Loans:
JPMORGAN CHASE – a Bank
By: /s/ Bridget A. Garavalia
-------------------------------------------
Name: Bridget A. Garavaia
Title: Managing Director
{PAGE}
JPMORGAN CHASE BANK
By: /s/ Helen L. Newcomb
-------------------------------------------
Name: Helen L. Newcomb
Title: Vice President
{PAGE}
DEUTSCHE
dt 45961
;
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| 2002 |
Forbearance Agreement
Forbearance Agreement (41K)
Doc #290251: Click preview link for longer preview.
EXHIBIT 99.2
Exhibit 99.2
FORBEARANCE AGREEMENT RELATING TO
1997 D&O LOANS
FORBEARANCE AGREEMENT, dated as of November 22, 2002 (this
"Agreement"), among Conseco, Inc., an Indiana corporation ("Conseco"), CIHC,
Incorporated, a Delaware corporation ("CIHC" and, together with Conseco, the
"Obligors"), the financial institutions named on . . .
290251
|
CSFB Mortgage
As referenced in this Forbearance Agreement:
Credit Suisse First Boston Mortgage
Capital – Green Tree Residual Finance Corp I and
Lehman Brothers Inc., and related documents entered into in connection
therewith.
5. Master Repurchase Agreement between Credit Suisse First Boston Mortgage
Capital LLC and Green Tree Financial Corp. dated March 26, 1999, and
related documents entered into in connection therewith.
6. Credit Agreement between Conseco
_____________
dt 248483
;
Conseco
As referenced in this Forbearance Agreement:
Conseco, Inc – TEXT}
Exhibit 99.2
FORBEARANCE AGREEMENT RELATING TO
1997 D&O LOANS
FORBEARANCE AGREEMENT, dated as of November 22, 2002 (this
"Agreement"), among Conseco, Inc ., an Indiana corporation ("Conseco"), CIHC,
Incorporated, a Delaware corporation ("CIHC" and, together with Conseco, the
"Obligors"), the financial institutions named on the
_____________
CONSECO, INC – 9
{PAGE}
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
CONSECO, INC .
By: /s/ Eugene M. Bullis
------------------------------------------
Name: Eugene M. Bullis
Title: Executive Vice President and
Chief Financial Officer
10
{PAGE}
CIHC, INCORPORATED
By: /
_____________
Conseco, Inc – value
2. Review and analysis of how the monthly cash flow models for Conseco
Services LLC and American Life Marketing Group flow into Conseco, Inc .
3. Rollup of 2002 cash flows specifically as it relates to the termination of
the Hawthorne Agreement as provided in the business
_____________
Conseco, Inc – operating metrics (by product line)
7. Claim balances by class of claim as provided in the most recent
restructuring term sheet produced by Conseco, Inc .
8. List of executory contracts for Conseco, Inc. and CIHC
{PAGE}
Part 2:
1. Daily and weekly cash balance updates with respect
_____________
Conseco, Inc – by class of claim as provided in the most recent
restructuring term sheet produced by Conseco, Inc.
8. List of executory contracts for Conseco, Inc . and CIHC
{PAGE}
Part 2:
1. Daily and weekly cash balance updates with respect to each of the following
entities:
i. Conseco,
_____________
dt 248131
;
BofA
As referenced in this Forbearance Agreement:
Bank of America, N.A. – Conseco, the
"Obligors"), the financial institutions named on the signature pages hereto
(together with their respective successors and assigns, the "Participant Banks")
and Bank of America, N.A. , individually and as agent for the Banks referred to
below (the "Agent").
WITNESSETH:
A. WHEREAS, Conseco and the Agent are parties to
_____________
BANK OF AMERICA, N.A. – 10
{PAGE}
CIHC, INCORPORATED
By: /s/ Eugene M. Bullis
-------------------------------------------
Name: Eugene M. Bullis
Title: Executive Vice President and
Chief Financial Officer
11
{PAGE}
BANK OF AMERICA, N.A. , as Administrative
Agent and as a Bank
By: /s/ Bridget Garavalia
-------------------------------------------
Name: Bridget Garavalia
Title: Managing Director
{PAGE}
DEUTSCHE BANK AG, New
_____________
Bank of America, N.A. – as of November 22, 2000 (re:
1997 D&O Loans) (as amended) among the borrowers party thereto, various
financial institutions signatory thereto and Bank of America, N.A. , as Agent.
Capitalized terms used but not defined herein shall have the meaning ascribed to
such terms in the Agreement.
The Assignee
_____________
dt 235194
;
|
Fleet National
As referenced in this Forbearance Agreement:
FLEET NATIONAL BANK
– B. Cohen
Title: Managing Director
Head of Workout
{PAGE}
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ John Anderson
-------------------------------------------
Name: John Anderson
Title: Director
{PAGE}
FLEET NATIONAL BANK
By:
-------------------------------------------
Name:
Title:
{PAGE}
SUN TRUST BANK
By: /s/ Byron P. Kurtgis
-------------------------------------------
Name: Byron P. Kurtgis
Title: Director
{PAGE}
GENERAL ELECTRIC CAPITAL
_____________
dt 245836
;
Lehman Brothers
As referenced in this Forbearance Agreement:
Lehman Brothers Inc – February 13, 1998, and related
documents entered into in connection therewith.
4. Master Repurchase Agreement between Green Tree Residual Finance Corp I and
Lehman Brothers Inc ., and related documents entered into in connection
therewith.
5. Master Repurchase Agreement between Credit Suisse First Boston Mortgage
Capital LLC and Green
_____________
dt 246240
;
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| 2002 |
Forbearance Agreement
Forbearance Agreement (41K)
Doc #290252: Click preview link for longer preview.
EXHIBIT 99.3
Exhibit 99.3
FORBEARANCE AGREEMENT RELATING TO
1998 D&O LOANS
FORBEARANCE AGREEMENT, dated as of November 22, 2002 (this
"Agreement"), among Conseco, Inc., an Indiana corporation ("Conseco"), CIHC,
Incorporated, a Delaware corporation ("CIHC" and, together with Conseco, the
"Obligors"), the financial institutions . . .
290252
|
CSFB Mortgage
As referenced in this Forbearance Agreement:
Credit Suisse First Boston Mortgage
Capital – Green Tree Residual Finance Corp I
and Lehman Brothers Inc., and related documents entered into in
connection therewith.
5. Master Repurchase Agreement between Credit Suisse First Boston Mortgage
Capital LLC and Green Tree Financial Corp. dated March 26, 1999, and
related documents entered into in connection therewith.
6. Credit Agreement between Conseco
_____________
dt 248484
;
Conseco
As referenced in this Forbearance Agreement:
Conseco, Inc – TEXT}
Exhibit 99.3
FORBEARANCE AGREEMENT RELATING TO
1998 D&O LOANS
FORBEARANCE AGREEMENT, dated as of November 22, 2002 (this
"Agreement"), among Conseco, Inc ., an Indiana corporation ("Conseco"), CIHC,
Incorporated, a Delaware corporation ("CIHC" and, together with Conseco, the
"Obligors"), the financial institutions named on the
_____________
CONSECO, INC – 9
{PAGE}
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
CONSECO, INC .
By: /s/ Eugene M. Bullis
-------------------------------------------
Name: Eugene M. Bullis
Title: Executive Vice President and
Chief Financial Officer
10
{PAGE}
CIHC, INCORPORATED
By: /
_____________
Conseco, Inc – value
2. Review and analysis of how the monthly cash flow models for Conseco
Services LLC and American Life Marketing Group flow into Conseco, Inc .
3. Rollup of 2002 cash flows specifically as it relates to the termination
of the Hawthorne Agreement as provided in the business
_____________
Conseco, Inc – operating metrics (by product line)
7. Claim balances by class of claim as provided in the most recent
restructuring term sheet produced by Conseco, Inc .
8. List of executory contracts for Conseco, Inc. and CIHC
{PAGE}
Part 2:
1. Daily and weekly cash balance updates with respect
_____________
Conseco, Inc – by class of claim as provided in the most recent
restructuring term sheet produced by Conseco, Inc.
8. List of executory contracts for Conseco, Inc . and CIHC
{PAGE}
Part 2:
1. Daily and weekly cash balance updates with respect to each of the
following entities:
i. Conseco,
_____________
dt 248133
;
BofA
As referenced in this Forbearance Agreement:
Bank of America, N.A. – Conseco, the
"Obligors"), the financial institutions named on the signature pages hereto
(together with their respective successors and assigns, the "Participant Banks")
and Bank of America, N.A. , individually and as agent for the Banks referred to
below (the "Agent").
WITNESSETH:
A. WHEREAS, Conseco and the Agent are parties to
_____________
BANK OF AMERICA, N.A. – 10
{PAGE}
CIHC, INCORPORATED
By: /s/ Eugene M. Bullis
-------------------------------------------
Name: Eugene M. Bullis
Title: Executive Vice President and
Chief Financial Officer
11
{PAGE}
BANK OF AMERICA, N.A. , as Administrative
Agent and as a Bank
By: /s/ Bridget Garavalia
-------------------------------------------
Name: Bridget Garavalia
Title: Managing Director
{PAGE}
JPMORGAN CHASE BANK
By: /
_____________
Bank of America, N.A. – as of November 22, 2000 (re:
1998 D&O Loans) (as amended) among the borrowers party thereto, various
financial institutions signatory thereto and Bank of America, N.A. , as Agent.
Capitalized terms used but not defined herein shall have the meaning ascribed to
such terms in the Agreement.
The Assignee
_____________
dt 235195
;
|
BNY
As referenced in this Forbearance Agreement:
BANK OF NEW YORK
– Robert M. Wood, Jr.
Title: Director
By: /s/ Mark B. Cohen
-------------------------------------------
Name: Mark B. Cohen
Title: Managing Director
Head of Workout
{PAGE}
THE BANK OF NEW YORK
By: /s/ Stephen C. Brennan
-------------------------------------------
Name: Stephen C. Brennan
Title: Vice President
{PAGE}
SCHEDULE I
Indebtedness
{TABLE}
{CAPTION}
------------------------------------------------------------------------------------- -------------------------------
Indebtedness Payment Date
{S} {
_____________
dt 236115
;
JPMorgan Chase
As referenced in this Forbearance Agreement:
JPMORGAN CHASE BANK
– BANK OF AMERICA, N.A., as Administrative
Agent and as a Bank
By: /s/ Bridget Garavalia
-------------------------------------------
Name: Bridget Garavalia
Title: Managing Director
{PAGE}
JPMORGAN CHASE BANK
By: /s/ Helen L. Newcomb
-------------------------------------------
Name: Helen L. Newcomb
Title: Vice President
{PAGE}
DEUTSCHE BANK AG, New York and/or Cayman Island
_____________
dt 244232
;
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| 2002 |
Forbearance Agreement
Forbearance Agreement (41K)
Doc #290253: Click preview link for longer preview.
EXHIBIT 99.4
Exhibit 99.4
FORBEARANCE AGREEMENT RELATING TO
1998 (NON-REFINANCED) D&O LOANS
FORBEARANCE AGREEMENT, dated as of November 22, 2002 (this
"Agreement"), among Conseco, Inc., an Indiana corporation ("Conseco"), CIHC,
Incorporated, a Delaware corporation ("CIHC" and, together with Conseco, the
"Obligors"), the financial . . .
290253
|
CSFB Mortgage
As referenced in this Forbearance Agreement:
Credit Suisse First Boston Mortgage
Capital – Green Tree Residual Finance Corp I
and Lehman Brothers Inc., and related documents entered into in
connection therewith.
5. Master Repurchase Agreement between Credit Suisse First Boston Mortgage
Capital LLC and Green Tree Financial Corp. dated March 26, 1999, and
related documents entered into in connection therewith.
6. Credit Agreement between Conseco
_____________
dt 248485
;
Conseco
As referenced in this Forbearance Agreement:
Conseco, Inc – 99.4
FORBEARANCE AGREEMENT RELATING TO
1998 (NON-REFINANCED) D&O LOANS
FORBEARANCE AGREEMENT, dated as of November 22, 2002 (this
"Agreement"), among Conseco, Inc ., an Indiana corporation ("Conseco"), CIHC,
Incorporated, a Delaware corporation ("CIHC" and, together with Conseco, the
"Obligors"), the financial institutions named on the
_____________
CONSECO, INC – satisfied.
{PAGE}
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
CONSECO, INC .
By: /s/ Eugene M. Bullis
-------------------------------------------
Name: Eugene M. Bullis
Title: Executive Vice President and
Chief Financial Officer
{PAGE}
CIHC, INCORPORATED
By: /s/
_____________
Conseco, Inc – value
2. Review and analysis of how the monthly cash flow models for Conseco
Services LLC and American Life Marketing Group flow into Conseco, Inc .
3. Rollup of 2002 cash flows specifically as it relates to the termination
of the Hawthorne Agreement as provided in the business
_____________
Conseco, Inc – operating metrics (by product line)
7. Claim balances by class of claim as provided in the most recent
restructuring term sheet produced by Conseco, Inc .
8. List of executory contracts for Conseco, Inc. and CIHC
{PAGE}
Part 2:
1. Daily and weekly cash balance updates with respect
_____________
Conseco, Inc – by class of claim as provided in the most recent
restructuring term sheet produced by Conseco, Inc.
8. List of executory contracts for Conseco, Inc . and CIHC
{PAGE}
Part 2:
1. Daily and weekly cash balance updates with respect to each of the
following entities:
i. Conseco,
_____________
dt 248134
;
BofA
As referenced in this Forbearance Agreement:
Bank of America, N.A. – Conseco, the
"Obligors"), the financial institutions named on the signature pages hereto
(together with their respective successors and assigns, the "Participant Banks")
and Bank of America, N.A. , individually and as agent for the Banks referred to
below (the "Agent").
WITNESSETH:
A. WHEREAS, Conseco and the Agent are parties to
_____________
BANK OF AMERICA, N.A. – Financial Officer
{PAGE}
CIHC, INCORPORATED
By: /s/ Eugene M. Bullis
-------------------------------------------
Name: Eugene M. Bullis
Title: Executive Vice President and
Chief Financial Officer
{PAGE}
BANK OF AMERICA, N.A. , as Administrative
Agent and as a Bank
By: /s/ Bridget Garavalia
-------------------------------------------
Name: Bridget Garavalia
Title: Managing Director
{PAGE}
JPMORGAN CHASE BANK
By: /
_____________
Bank of America, N.A. – to the Credit Agreement dated as of August 21, 1998 (as
amended) among the borrowers party thereto, various financial institutions
signatory thereto and Bank of America, N.A. , as Agent. Capitalized terms used
but not defined herein shall have the meaning ascribed to such terms in the
Agreement.
The Assignee
_____________
dt 235196
;
|
BNY
As referenced in this Forbearance Agreement:
BANK OF NEW YORK
– Robert M. Wood, Jr.
Title: Director
By: /s/ Mark B. Cohen
-------------------------------------------
Name: Mark B. Cohen
Title: Managing Director
Head of Workout
{PAGE}
THE BANK OF NEW YORK
By: /s/ Stephen C. Brennan
-------------------------------------------
Name: Stephen C. Brennan
Title: Vice President
{PAGE}
SCHEDULE I
Indebtedness
{TABLE}
{CAPTION}
------------------------------------------------------------------------------------- -------------------------------
Indebtedness Payment Date
{S} {
_____________
dt 236116
;
JPMorgan Chase
As referenced in this Forbearance Agreement:
JPMORGAN CHASE BANK
– BANK OF AMERICA, N.A., as Administrative
Agent and as a Bank
By: /s/ Bridget Garavalia
-------------------------------------------
Name: Bridget Garavalia
Title: Managing Director
{PAGE}
JPMORGAN CHASE BANK
By: /s/ Helen L. Newcomb
-------------------------------------------
Name: Helen L. Newcomb
Title: Vice President
{PAGE}
DEUTSCHE BANK AG, New York and/or Cayman Island
_____________
dt 244235
;
More... |
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Full Doc
| 2002 |
Forbearance Agreement
Forbearance Agreement (40K)
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EXHIBIT 99.5
Exhibit 99.5
FORBEARANCE AGREEMENT RELATING TO
1999 D&O LOANS
FORBEARANCE AGREEMENT, dated as of November 22, 2002 (this
"Agreement"), among Conseco, Inc., an Indiana corporation ("Conseco"), CIHC,
Incorporated, a Delaware corporation ("CIHC" and, together with Conseco, the
"Obligors"), the financial institutions . . .
290254
|
CSFB Mortgage
As referenced in this Forbearance Agreement:
Credit Suisse First Boston Mortgage
Capital – Green Tree Residual Finance Corp I
and Lehman Brothers Inc., and related documents entered into in
connection therewith.
5. Master Repurchase Agreement between Credit Suisse First Boston Mortgage
Capital LLC and Green Tree Financial Corp. dated March 26, 1999, and
related documents entered into in connection therewith.
6. Credit Agreement between Conseco
_____________
dt 248486
;
Conseco
As referenced in this Forbearance Agreement:
Conseco, Inc – TEXT}
Exhibit 99.5
FORBEARANCE AGREEMENT RELATING TO
1999 D&O LOANS
FORBEARANCE AGREEMENT, dated as of November 22, 2002 (this
"Agreement"), among Conseco, Inc ., an Indiana corporation ("Conseco"), CIHC,
Incorporated, a Delaware corporation ("CIHC" and, together with Conseco, the
"Obligors"), the financial institutions named on the
_____________
CONSECO, INC – 9
{PAGE}
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
CONSECO, INC .
By: /s/ Eugene M. Bullis
-------------------------------------------
Name: Eugene M. Bullis
Title: Executive Vice President and
Chief Financial Officer
10
{PAGE}
CIHC, INCORPORATED
By: /
_____________
Conseco, Inc – value
2. Review and analysis of how the monthly cash flow models for Conseco
Services LLC and American Life Marketing Group flow into Conseco, Inc .
3. Rollup of 2002 cash flows specifically as it relates to the termination
of the Hawthorne Agreement as provided in the business
_____________
Conseco, Inc – operating metrics (by product line)
7. Claim balances by class of claim as provided in the most recent
restructuring term sheet produced by Conseco, Inc .
8. List of executory contracts for Conseco, Inc. and CIHC
{PAGE}
Part 2:
1. Daily and weekly cash balance updates with respect
_____________
Conseco, Inc – by class of claim as provided in the most recent
restructuring term sheet produced by Conseco, Inc.
8. List of executory contracts for Conseco, Inc . and CIHC
{PAGE}
Part 2:
1. Daily and weekly cash balance updates with respect to each of the
following entities:
i. Conseco,
_____________
dt 248135
;
BofA
As referenced in this Forbearance Agreement:
BANK OF AMERICA, N.A. – JPMORGAN CHASE BANK, as Administrative
Agent and as a Bank
By: /s/ Helen L. Newcomb
-------------------------------------------
Name: Helen L. Newcomb
Title: Vice President
{PAGE}
BANK OF AMERICA, N.A.
By: /s/ Bridget Garavalia
-------------------------------------------
Name: Bridget Garavalia
Title: Managing Director
{PAGE}
SCHEDULE I
Indebtedness
{TABLE}
{CAPTION}
------------------------------------------------------------------------------------- -------------------------------
Indebtedness Payment Date
{S} {C}
------------------------------------------------------------------------------------- -------------------------------
------------------------------------------------------------------------------------- -------------------------------
"Old"
_____________
dt 235197
;
|
JPMorgan Chase
As referenced in this Forbearance Agreement:
JPMorgan Chase Bank. – Conseco, the
"Obligors"), the financial institutions named on the signature pages hereto
(together with their respective successors and assigns, the "Participant Banks")
and JPMorgan Chase Bank. , individually and as agent for the Banks referred to
below (the "Agent").
WITNESSETH:
A. WHEREAS, Conseco and the Agent are parties to
_____________
JPMORGAN CHASE BANK, – 10
{PAGE}
CIHC, INCORPORATED
By: /s/ Eugene M. Bullis
-------------------------------------------
Name: Eugene M. Bullis
Title: Executive Vice President and
Chief Financial Officer
11
{PAGE}
JPMORGAN CHASE BANK, as Administrative
Agent and as a Bank
By: /s/ Helen L. Newcomb
-------------------------------------------
Name: Helen L. Newcomb
Title: Vice President
{PAGE}
BANK OF
_____________
JPMorgan Chase Bank, – as of November 22, 2000 (re:
1999 D&O Loans) (as amended) among the borrowers party thereto, various
financial institutions signatory thereto and JPMorgan Chase Bank, as Agent.
Capitalized terms used but not defined herein shall have the meaning ascribed to
such terms in the Agreement.
The Assignee
_____________
dt 244237
;
|