\n Section 9.4 Exculpation……………………………………………………………….. 79
\n Section 9.5 Termination of Manager……………………………………………………… 80
\n Section 9.6 Servicer………………………………………………………………….. 81<\/p>\nX. MISCELLANEOUS……………………………………………………………………….. 81
\n Section 10.1 Survival………………………………………………………………….. 81
\n Section 10.2 Lender’s Discretion………………………………………………………… 81
\n Section 10.3 Governing Law……………………………………………………………… 81
\n Section 10.4 Modification, Waiver in Writing……………………………………………… 83
\n Section 10.5 Delay Not a Waiver…………………………………………………………. 83
\n Section 10.6 Notices…………………………………………………………………… 83
\n Section 10.7 Trial by Jury……………………………………………………………… 85
\n Section 10.8 Headings………………………………………………………………….. 85
\n Section 10.9 Severability………………………………………………………………. 85
\n Section 10.10 Preferences……………………………………………………………….. 85
\n Section 10.11 Waiver of Notice…………………………………………………………… 85
\n Section 10.12 Remedies of Borrower……………………………………………………….. 86
\n Section 10.13 Expenses; Indemnity………………………………………………………… 86
\n Section 10.14 Schedules Incorporated……………………………………………………… 87
\n Section 10.15 Offsets, Counterclaims and Defenses………………………………………….. 87
\n Section 10.16 No Joint Venture or Partnership; No Third Party Beneficiaries…………………… 87
\n Section 10.17 Publicity…………………………………………………………………. 88
\n Section 10.18 Cross-Default; Cross-Collateralization;Waiver of Marshalling of Assets…………… 88
\n Section 10.19 Waiver of Counterclaim……………………………………………………… 89
\n Section 10.20 Conflict; Construction of Documents; Reliance…………………………………. 89
\n Section 10.21 Brokers and Financial Advisors………………………………………………. 89
\n Section 10.22 Prior Agreements…………………………………………………………… 89
\n<\/c><\/c><\/s><\/table>\n
SCHEDULES
\n ———<\/p>\n
Schedule I – Properties – Allocated Loan Amounts
\nSchedule II – Rent Rolls
\nSchedule III – Intentionally Omitted
\nSchedule IV – Form of Collateral Assignment of Interest Rate Cap Agreement
\nSchedule V – Form of Confidentiality and Non-Disclosure Agreement
\nSchedule VI – Form of Master Lease for 4650 and 4700 Ironsides Drive<\/p>\n
v<\/p>\n
LOAN AGREEMENT<\/p>\n
THIS LOAN AGREEMENT, dated as of March 30, 2001 (as amended, restated,
\nreplaced, supplemented or otherwise modified from time to time, this
\n“Agreement”), between LEHMAN BROTHERS BANK FSB, having an address at 921 North
\nOrange Street, Wilmington, Delaware 19801 (“Lender”) and EXODUS COMMUNICATIONS
\nREAL PROPERTY I, LLC, a Delaware limited liability company, having its address
\nat 2831 Mission College Boulevard, Suite C, Santa Clara, California 95054-1838
\n(“California Borrower”) and EXODUS COMMUNICATIONS REAL PROPERTY I, LP, a Texas
\nlimited partnership, having its address at 2831 Mission College Boulevard, Suite
\nA, Santa Clara, California 95054-1838 (“Texas Borrower, and together with
\nCalifornia Borrower, “Borrower”).<\/p>\n
W I T N E S S E T H :
\n – – – – – – – – – – <\/p>\n
WHEREAS, Borrower desires to obtain the Loan (as hereinafter defined)
\nfrom Lender; and<\/p>\n
WHEREAS, Lender is willing to make the Loan to Borrower, subject to
\nand in accordance with the terms of this Agreement and the other Loan Documents
\n(as hereinafter defined).<\/p>\n
NOW, THEREFORE, in consideration of the making of the Loan by Lender
\nand the covenants, agreements, representations and warranties set forth in this
\nAgreement, the parties hereto hereby covenant, agree, represent and warrant as
\nfollows:<\/p>\n
I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION
\n —————————————<\/p>\n
Section 1.1 Definitions.
\n ———– <\/p>\n
For all purposes of this Agreement, except as otherwise expressly
\nrequired or unless the context clearly indicates a contrary intent:<\/p>\n
“Acceptable Counterparty” means any Counterparty to the Interest Rate
\n ———————–
\nCap Agreement that has and shall maintain, until the expiration of the
\napplicable Interest Rate Cap Agreement, a long-term unsecured debt rating of not
\nless than “AAA” by S&P Fitch and “Aaa” by Moody’s.<\/p>\n
“Affiliate” shall mean, as to any Person, any other Person that,
\n ———
\ndirectly or indirectly, is in control of, is controlled by or is under common
\ncontrol with such Person or is a director or officer of such Person or of an
\nAffiliate of such Person.<\/p>\n
“Agent” shall mean Wells Fargo Bank, National Association or such
\n —–
\nother institution as Lender may approve in its discretion or any successor
\nEligible Institution acting as Agent under the Cash Management Agreement.<\/p>\n
“ALTA” shall mean American Land Title Association, or any successor
\n —-
\nthereto.<\/p>\n
“Annual Budget” shall mean the operating budget, including all planned
\n ————-
\nCapital Expenditures, for the Properties prepared by Borrower for the applicable
\nFiscal Year or other period.<\/p>\n
“Applicable Interest Rate” shall mean, as to each Component, a
\n ————————
\nfluctuating rate per annum equal to LIBOR plus the Spread applicable to such
\nComponent, as such rate may change on each Determination Date for the next
\nsucceeding Interest Period; provided, however, that the Applicable Interest Rate
\n ——– ——-
\nfor the Interest Period ending April 9, 2001 shall be (i) 9.57875% with respect
\nto Component A, (ii) 9.57875% with respect to Component B, (iii) 9.57875% with
\nrespect to Component C, and (iv) 9.57875% with respect to Component D.<\/p>\n
“Approved Annual Budget” shall have the meaning set forth in Section
\n ———————-
\n5.1.11(d).<\/p>\n
“Assignment of Interest Rate Cap” shall mean that certain Collateral
\n ——————————-
\nAssignment of Interest Rate Cap Agreement made by Borrower when required by this
\nAgreement in favor of Lender as security for the Loan, consented to by the
\nCounterparty, as the same may be amended, restated, replaced, supplemented or
\notherwise modified from time to time.<\/p>\n
“Assignment of Leases” shall mean, with respect to each Individual
\n ——————–
\nProperty, that certain first priority Assignment of Leases and Rents, dated as
\nof the date hereof, from California Borrower or Texas Borrower, as assignor, as
\nthe case may be, to Lender, as assignee, assigning to Lender all of such
\nBorrower’s interest in and to the Leases and Rents of such Individual Property
\nas security for the Loan, as the same may be amended, restated, replaced,
\nsupplemented or otherwise modified from time to time.<\/p>\n
“Assignment of Management Agreement” shall mean, with respect to each
\n ———————————-
\nIndividual Property, any Assignment of Management Agreement and Subordination of
\nManagement Fees to be made among Lender, California Borrower or Texas Borrower,
\nas the case may be, and Manager, with respect to any Management Agreement
\nentered into in accordance with the terms and provisions of this Agreement, as
\nthe same may be amended, restated, replaced, supplemented or otherwise modified
\nfrom time to time.<\/p>\n
“Award” shall mean any compensation paid by any Governmental Authority
\n —–
\nin connection with a Condemnation in respect of all or any part of any
\nIndividual Property.<\/p>\n
“Bankruptcy Code” shall mean 11 U.S.C. (S) 101 et seq., as amended
\n —————
\nfrom time to time.<\/p>\n
“Basic Carrying Costs” shall mean, with respect to each Individual
\n ——————–
\nProperty, the sum of the following costs associated with such Individual
\nProperty for the relevant Fiscal Year or payment period: (i) Taxes and (ii)
\nInsurance Premiums.<\/p>\n
“Borrower” shall mean, collectively, the California Borrower and the
\n ——–
\nTexas Borrower, together with their respective successors and assigns.<\/p>\n
2<\/p>\n
“Business Day” shall mean any day other than a Saturday, Sunday or any
\n ————
\nother day on which national banks in New York, New York and San Francisco,
\nCalifornia are not open for business.<\/p>\n
“California Borrower” shall mean Exodus Communications Real Property
\n ——————–
\nI, LLC, a Delaware limited liability company, together with its successors and
\nassigns.<\/p>\n
“Capital Expenditures” shall mean, for any period, the amount expended
\n ——————–
\nfor items capitalized under GAAP (including expenditures for building
\nimprovements or major repairs, leasing commissions and tenant improvements).<\/p>\n
“Capital Lease Obligations” of any Person means the obligations of
\n ————————-
\nsuch Person to pay rent or other amounts under any lease of (or other
\narrangement conveying the right to use) real or personal property, or a
\ncombination thereof, which obligations are required to be classified and
\naccounted for as capital leases on a balance sheet of such Person under GAAP,
\nand the amount of such obligations shall be the capitalized amount thereof
\ndetermined in accordance with GAAP.<\/p>\n
“Cash Management Agreement” shall mean that certain Cash Management
\n ————————-
\nAgreement by and among Borrower, Agent and Lender, as the same may be amended,
\nrestated, replaced, supplemented or otherwise modified from time to time,
\nrelating to funds deposited in the Lockbox Account.<\/p>\n
“Casualty” shall have the meaning specified in Section 6.2 hereof.
\n ——– <\/p>\n
“Casualty Consultant” shall have the meaning set forth in Section
\n ——————-
\n6.4(b)(iii) hereof.<\/p>\n
“Casualty Retainage” shall have the meaning set forth in Section
\n ——————
\n6.4(b)(iv) hereof.<\/p>\n
“Chase Credit Agreement” shall mean that certain Credit Agreement,
\n ———————-
\ndated as of October 31, 2001 by and among Exodus Communications, Inc., a
\nDelaware corporation, The Chase Manhattan Bank, as Administrative Agent and
\nCollateral Agent, and the Lenders party thereto.<\/p>\n
“Chase Facility” shall mean that certain Credit Facility established
\n ————–
\npursuant to the Chase Credit Agreement.<\/p>\n
“Closing Date” shall mean the date of the funding of the Initial
\n ————
\nAdvance.<\/p>\n
“Code” shall mean the Internal Revenue Code of 1986, as amended, as it
\n —-
\nmay be further amended from time to time, and any successor statutes thereto,
\nand applicable U.S. Department of Treasury regulations issued pursuant thereto
\nin temporary or final form.<\/p>\n
“Component” shall mean, individually, any one of Component A,
\n ———
\nComponent B, Component C or Component D.<\/p>\n
3<\/p>\n
“Component A” shall mean that certain portion of the Loan in the
\n ———–
\ninitial principal amount of * Dollars ($*).<\/p>\n
“Component B” shall mean that certain portion of the Loan in the
\n ———–
\ninitial principal amount of * Dollars ($*).<\/p>\n
“Component C” shall mean that certain portion of the Loan in the
\n ———–
\ninitial principal amount of * Dollars ($*).<\/p>\n
“Component D” shall mean that certain portion of the Loan in the
\n ———–
\ninitial principal amount of * Dollars ($*).<\/p>\n
“Condemnation” shall mean a temporary or permanent taking by any
\n ————
\nGovernmental Authority as the result or in lieu or in anticipation of the
\nexercise of the right of condemnation or eminent domain, of all or any part of
\nany Individual Property, or any interest therein or right accruing thereto,
\nincluding any right of access thereto or any change of grade affecting such
\nIndividual Property or any part thereof.<\/p>\n
“Condemnation Proceeds” shall have the meaning set forth in Section
\n ———————
\n6.4(b).<\/p>\n
“Confidentiality and Non-Disclosure Agreement” shall have the meaning
\n ——————————————–
\nset forth in Section 5.1.4 hereof.<\/p>\n
“control” (and the correlative terms “controlled by” and
\n ——- ————-
\n“controlling”) shall mean the possession, directly or indirectly, of the power
\n ———–
\nto direct or cause the direction of management and policies of the business and
\naffairs of the entity in question by reason of the ownership of beneficial
\ninterests, by contract or otherwise.<\/p>\n
“Counterparty” shall mean the Person which is the issuer of the
\n ————
\nInterest Rate Cap Agreement.<\/p>\n
“Debt” shall mean the outstanding principal amount set forth in, and
\n —-
\nevidenced by, this Agreement and the Note together with all interest accrued and
\nunpaid thereon and all other sums (including the Prepayment Fee) due to Lender
\nin respect of the Loan under the Note, this Agreement, the Mortgages or any
\nother Loan Document.<\/p>\n
“Debt Service” shall mean, with respect to any particular period of
\n ————
\ntime, scheduled principal and\/or interest payments due under the Note.<\/p>\n
“Debt Service Coverage Ratio” shall mean a ratio for the applicable
\n —————————
\nperiod in which:<\/p>\n
(a) the numerator is the Net Operating Income (excluding interest on
\ncredit accounts) for such period as set forth in the statements required
\nhereunder, without deduction for amounts paid to the Reserve Funds; and<\/p>\n
4<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
(b) the denominator is the aggregate amount of principal and interest
\ndue and payable on the Note for such period.<\/p>\n
“Default” shall mean the occurrence of any event hereunder or under
\n ——-
\nany other Loan Document which, but for the giving of notice or passage of time,
\nor both, would be an Event of Default.<\/p>\n
“Default Rate” shall mean, with respect to each Component, a rate per
\n ————
\nannum equal to the lesser of (a) the Maximum Legal Rate, or (b) four percent
\n(4%) above the Applicable Interest Rate for such Component.<\/p>\n
“Determination Date” means, in connection with any Interest Period,
\n ——————
\nthe LIBOR Business Day immediately preceding the commencement of such Interest
\nPeriod.<\/p>\n
“Disclosure Document” shall have the meaning set forth in Section
\n ——————-
\n9.2(a) hereof.<\/p>\n
“Eligible Account” shall mean a separate and identifiable account from
\n —————-
\nall other funds held by the holding institution that is either (a) an account or
\naccounts maintained with a federal or state-chartered depository institution or
\ntrust company which complies with the definition of Eligible Institution or (b)
\na segregated trust account or accounts maintained with a federal or state
\nchartered depository institution or trust company acting in its fiduciary
\ncapacity which, in the case of a state chartered depository institution or trust
\ncompany, is subject to regulations substantially similar to 12 C.F.R.
\n(S)9.10(b), having in either case a combined capital and surplus of at least
\n$50,000,000 and subject to supervision or examination by federal and state
\nauthority. An Eligible Account will not be evidenced by a certificate of
\ndeposit, passbook or other instrument.<\/p>\n
“Eligible Institution” shall mean a depository institution or trust
\n ——————–
\ncompany insured by the Federal Deposit Insurance Corporation, the short term
\nunsecured debt obligations or commercial paper of which are rated at least A-1
\nby S&P, P-1 by Moody’s and F-1+ by Fitch in the case of accounts in which funds
\nare held for 30 days or less (or, in the case of accounts in which funds are
\nheld for more than 30 days, the long term unsecured debt obligations of which
\nare rated at least “AA” by Fitch and S&P and “Aaa” by Moody’s).<\/p>\n
“Environmental Indemnity” shall mean, with respect to each Individual
\n ———————–
\nProperty, that certain Environmental and Hazardous Substance Indemnification
\nAgreement affecting such Individual Property executed by California Borrower or
\nTexas Borrower, as the case may be, in connection with the Loan for the benefit
\nof Lender, as the same may be amended, restated, replaced, supplemented or
\notherwise modified from time to time.<\/p>\n
“ERISA” shall mean the Employee Retirement Income Security Act of
\n —–
\n1974, as amended.<\/p>\n
“Event of Default” shall have the meaning set forth in Section 8.1(a)
\n —————-
\nhereof.<\/p>\n
“Exchange Act” shall have the meaning set forth in Section 9.2(a)
\n ————
\nhereof.<\/p>\n
5<\/p>\n
“Exodus 4650 Ironsides Lease” shall mean that certain Lease Agreement
\n —————————
\nin the form of Schedule VI attached hereto to be made between California
\n ———–
\nBorrower, as landlord, and Exodus Communications, as tenant, with respect to the
\nIndividual Property located at 4650 Ironsides Drive, Santa Clara, California, as
\nthe same may be amended, modified or supplemented from time to time.<\/p>\n
“Exodus 4700 Ironsides Lease” shall mean that certain Lease Agreement
\n —————————
\nin the form of Schedule VI attached hereto to be made between California
\n ———–
\nBorrower, as landlord, and Exodus Communications, as tenant, with respect to the
\nIndividual Property located at 4700 Ironsides Drive, Santa Clara, California, as
\nthe same may be amended, modified or supplemented from time to time.<\/p>\n
“Exodus Austin Lease” shall mean that certain Lease Agreement dated as
\n ——————-
\nof the date hereof between Texas Borrower, as landlord, and Exodus
\nCommunications, as tenant, with respect to the Individual Property located at
\n1418 Park Center Drive, Austin, Texas, 78753, as the same may be amended,
\nmodified or supplemented from time to time.<\/p>\n
“Exodus Communications” shall mean Exodus Communications, Inc., a
\n ———————
\nDelaware corporation, together with its successors and permitted assigns.<\/p>\n
“Exodus Data Center #4\/5 Lease” shall mean that certain Lease
\n —————————–
\nAgreement dated as of the date hereof between California Borrower, as landlord,
\nand Exodus Communications, as tenant, with respect to the Individual Property
\nlocated at 2401 and 2403 Walsh Avenue, Santa Clara, California, as the same may
\nbe amended, modified or supplemented from time to time.<\/p>\n
“Exodus Guaranty” shall mean that certain Guaranty of even date
\n —————
\nherewith from Exodus Communications for the benefit of Lender.<\/p>\n
“Extended Maturity Date” shall have the meaning set forth in Section
\n ———————-
\n2.2.5(c).<\/p>\n
“Extension Fee” shall have the meaning set forth in Section 2.2.5(c).
\n ————- <\/p>\n
“Extraordinary Expense” shall have the meaning set forth in Section
\n ———————
\n5.1.11(e) hereof.<\/p>\n
“First Extended Maturity Date” shall have the meaning set forth in
\n —————————-
\nSection 2.2.5(c).<\/p>\n
“Fiscal Year” shall mean each twelve (12) month period commencing on
\n ———–
\nJanuary 1 and ending on December 31 during each year of the term of the Loan.<\/p>\n
“GAAP” shall mean generally accepted accounting principles in the
\n —-
\nUnited States of America as of the date of the applicable financial report.<\/p>\n
“Governmental Authority” shall mean any court, board, agency,
\n ———————-
\ncommission, office or other authority of any nature whatsoever for any
\ngovernmental unit (federal, state, county, district, municipal, city or
\notherwise) whether now or hereafter in existence.<\/p>\n
6<\/p>\n
“Gross Income from Operations” shall mean all income, computed in
\n —————————-
\naccordance with GAAP, derived from the ownership and operation of the Properties
\nfrom whatever source, including, but not limited to, Rents, utility charges,
\n ———
\nescalations, forfeited security deposits, interest on credit accounts, service
\nfees or charges, license fees, parking fees, rent concessions or credits, and
\nother required pass-throughs but excluding sales, use and occupancy or other
\n ———
\ntaxes on receipts required to be accounted for by Borrower to any Governmental
\nAuthority, refunds and uncollectible accounts, sales of furniture, fixtures and
\nequipment, Insurance Proceeds (other than business interruption or other loss of
\nincome insurance), Awards, unforfeited security deposits, utility and other
\nsimilar deposits and any disbursements to Borrower from the Reserve Funds.
\nGross Income from Operations shall not be diminished as a result of the
\nMortgages or the creation of any intervening estate or interest in the
\nProperties or any part thereof.<\/p>\n
“Guarantee” of or by and Person (the “guarantor”) means any
\n ———
\nobligation, contingent or otherwise, of the guarantor guaranteeing or having the
\neconomic effect of guaranteeing any Indebtedness of any other person (the
\n“primary obligor”) in any manner, whether directly or indirectly, and including
\nany obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
\nadvance or supply funds for the purchase or payment of) such Indebtedness or
\nother obligation or to purchase (or to advance or supply funds for the purchase
\nof) any security for the payment thereof, (b) to purchase or lease property,
\nsecurities or services for the purpose of assuring the owner of such
\nIndebtedness or other obligation of the payment thereof, (c) to maintain working
\ncapital, equity capital or any other financial statement condition or liquidity
\nof the primary obligor so as to enable the primary obligor to pay such
\nIndebtedness or other obligation or (d) as an account party in respect of any
\nletter of credit or letter of guaranty issued to support such Indebtedness or
\nobligation; provided, that the term Guarantee shall not include endorsements for
\n ——–
\ncollection or deposit in the ordinary course of business.<\/p>\n
“Improvements” shall have the meaning set forth in the granting clause
\n ————
\nof the related Mortgage with respect to each Individual Property.<\/p>\n
“Indebtedness” of any Person means, without duplication, (a) all
\n ————
\nobligations of such Person for borrowed money or with respect to deposits or
\nadvances of any kind, (b) all obligations of such Person evidenced by bonds,
\ndebentures, notes or similar instruments, (c) all obligations of such Person
\nunder conditional sale or other title retention agreements relating to property
\nacquired by such Person, (d) all obligations of such Person in respect of the
\ndeferred purchase price of property or services (excluding current accounts
\npayable incurred in the ordinary course of business), (e) all Indebtedness of
\nothers secured by (or for which the holder of such Indebtedness has an existing
\nright, contingent or otherwise, to be secured by) any Lien on property owned or
\nacquired by such Person, whether or not the Indebtedness secured thereby has
\nbeen assumed, (f) all Guarantees by such Person of Indebtedness of others, (g)
\nall Capital Lease Obligations of such Person, (h) all obligations, contingent or
\notherwise, of such Person as an account party in respect of letters of credit
\nand letters of guaranty and (i) all obligations, contingent or otherwise, of
\nsuch Person in respect of bankers’ acceptances. The Indebtedness of any Person
\nshall include the Indebtedness of any other entity (including any partnership in
\nwhich such Person is a general partner) to the extent such Person is liable
\ntherefor as a result of such Person’s ownership interest in or other
\nrelationship with such entity, except to the extent the terms of such
\nIndebtedness provide that such Person is not liable therefor.<\/p>\n
7<\/p>\n
“Independent Director” shall have the meaning set forth in Section
\n ——————–
\n4.1.30(p).<\/p>\n
“Individual Property” shall mean each parcel of real property, the
\n ——————-
\nImprovements thereon and all personal property owned by California Borrower or
\nTexas Borrower, as the case may be, and encumbered by a Mortgage, together with
\nall rights pertaining to such property and Improvements, as more particularly
\ndescribed in the Granting Clauses of each Mortgage and referred to therein as
\nthe “Property”.<\/p>\n
“Initial Advance” shall mean Lender’s initial advance of proceeds of
\n —————
\nthe Loan in the amount of * Dollars ($*).<\/p>\n
“Initial Maturity Date” shall mean the Payment Date occurring on April
\n ———————
\n10, 2004.<\/p>\n
“Insolvency Opinion” shall mean that certain opinion letter dated the
\n ——————
\ndate hereof delivered by Gnazzo Thill in connection with the Loan.<\/p>\n
“Insurance Premiums” shall have the meaning set forth in Section
\n ——————
\n6.1(b) hereof.<\/p>\n
“Insurance Proceeds” shall have the meaning set forth in Section
\n ——————
\n6.4(b) hereof.<\/p>\n
“Interest Period” means, in connection with the calculation of
\n —————
\ninterest accrued with respect to any specified Payment Date, the period from and
\nincluding the tenth (10th) day of prior calendar month to and including the
\nninth day of the calendar month in which the applicable Payment Date occurs;
\nprovided, however, that with respect to the Payment Date occurring in April,
\n——– ——-
\n2001, the Interest Period shall be the period commencing on the Closing Date to
\nand including April 9, 2001.<\/p>\n
“Interest Rate Cap Agreement” shall mean the Interest Rate Cap
\n —————————
\nAgreement (together with the confirmation and schedules relating thereto),
\nbetween the Counterparty and Borrower obtained by Borrower as and when required
\npursuant to Section 2.5. After delivery of a Replacement Interest Rate Cap
\nAgreement to Lender, the term “Interest Rate Cap Agreement” shall be deemed to
\nmean such Replacement Interest Rate Cap Agreement.<\/p>\n
“Interest Rate Cap Event” shall mean (i) LIBOR is equal to or greater
\n ———————–
\nthan *% or (ii) notice from Lender that a Securitization is expected to occur
\nwithin the next twenty (20) days.<\/p>\n
“Lease” shall mean any lease (including, without limitation the Master
\n —–
\nLeases), sublease or subsublease, letting, license, concession or other
\nagreement (whether written or oral and whether now or hereafter in effect)
\npursuant to which any Person is granted a possessory interest in, or right to
\nuse or occupy all or any portion of any space in any Individual Property of
\nBorrower, and every modification, amendment or other agreement relating to such
\nlease, sublease, subsublease, or other agreement entered into in connection with
\nsuch lease, sublease, subsublease, or other agreement and every guarantee of the
\nperformance and observance of the covenants, conditions and agreements to be
\nperformed and observed by the other party thereto.<\/p>\n
8<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
“Legal Requirements” shall mean, with respect to each Individual
\n ——————
\nProperty, all federal, state, county, municipal and other governmental statutes,
\nlaws, rules, orders, regulations, ordinances, judgments, decrees and injunctions
\nof Governmental Authorities affecting such Individual Property or any part
\nthereof, or the construction, use, alteration or operation thereof, or any part
\nthereof, whether now or hereafter enacted and in force, and all permits,
\nlicenses and authorizations and regulations relating thereto, and all covenants,
\nagreements, restrictions and encumbrances contained in any instruments, either
\nof record or known to Borrower, at any time in force affecting such Individual
\nProperty or any part thereof, including, without limitation, any which may (a)
\nrequire repairs, modifications or alterations in or to such Individual Property
\nor any part thereof, or (b) in any way limit the use and enjoyment thereof.<\/p>\n
“Lehman” shall have the meaning set forth in Section 9.2(b) hereof.
\n —— <\/p>\n
“Lehman Group” shall have the meaning set forth in Section 9.2(b)
\n ————
\nhereof.<\/p>\n
“Lender” shall mean Lehman Brothers Bank FSB, together with its
\n ——
\nsuccessors and assigns.<\/p>\n
“Lender’s Notice” shall have the meaning set forth in Section 2.2.3(c)
\n —————
\nhereof.<\/p>\n
“Liabilities” shall have the meaning set forth in Section 9.2(b)
\n ———–
\nhereof.<\/p>\n
“LIBOR” shall mean, with respect to each Interest Period, the rate
\n —–
\n(expressed as a percentage per annum and rounded upward, if necessary, to the
\nnext nearest 1\/1000 of 1%) for deposits in U.S. dollars, for a one-month period,
\nthat appears on Telerate Page 3750 (or the successor thereto) as of 11:00 a.m.,
\nLondon time, on the related Determination Date. If such rate does not appear on
\nTelerate Page 3750 as of 11:00 a.m., London time, on such Determination Date,
\nLIBOR shall be the arithmetic mean of the offered rates (expressed as a
\npercentage per annum) for deposits in U.S. dollars for a one-month period that
\nappear on the Reuters Screen Libor Page as of 11:00 a.m., London time, on such
\nDetermination Date, if at least two such offered rates so appear. If fewer than
\ntwo such offered rates appear on the Reuters Screen Libor Page as of 11:00 a.m.,
\nLondon time, on such Determination Date, Lender shall request the principal
\nLondon Office of any four major reference banks in the London interbank market
\nreasonably selected by Lender, to provide such bank’s offered quotation
\n(expressed as a percentage per annum) to prime banks in the London interbank
\nmarket for deposits in U.S. dollars for a one-month period as of 11:00 a.m.,
\nLondon time, on such Determination Date for the then outstanding principal
\namount of the Loan. If at least two such offered quotations are so provided,
\nLIBOR shall be the arithmetic mean of such quotations. If fewer than two such
\nquotations are so provided, Lender shall request any three major banks in New
\nYork City reasonably selected by Lender, to provide such bank’s rate (expressed
\nas a percentage per annum) for loans in U.S. dollars to leading European banks
\nfor a one-month period as of approximately 11:00 a.m., New York City time on the
\napplicable Determination Date for the then outstanding principal amount of the
\nLoan. If at least two such rates are so provided, LIBOR shall be the arithmetic
\nmean of such rates. LIBOR shall be determined by Lender or its agent.<\/p>\n
9<\/p>\n
“LIBOR Business Day” shall mean any day other than a Saturday, Sunday
\n ——————
\nor any other day on which commercial banks in London, England or New York, New
\nYork are not open for business.<\/p>\n
“Licenses” shall have the meaning set forth in Section 4.1.22 hereof.
\n ——– <\/p>\n
“Lien” shall mean, with respect to each Individual Property, any
\n —-
\nmortgage, deed of trust, lien, pledge, hypothecation, assignment, security
\ninterest, or any other encumbrance, charge or transfer of, on or affecting
\nBorrower, the related Individual Property, any portion thereof or any interest
\ntherein, including, without limitation, any conditional sale or other title
\nretention agreement, any financing lease having substantially the same economic
\neffect as any of the foregoing, the filing of any financing statement, and
\nmechanic’s, materialmen’s and other similar liens and encumbrances.<\/p>\n
“Loan” shall mean the loan made by Lender to Borrower pursuant to this
\n —-
\nAgreement.<\/p>\n
“Loan Documents” shall mean, collectively, this Agreement, the Note,
\n ————–
\nthe Mortgages, the Assignments of Leases, each Environmental Indemnity, each
\nAssignment of Management Agreement, if any, the Cash Management Agreement and
\nall other documents executed and\/or delivered in connection with the Loan.<\/p>\n
“Loan Fee” shall mean any origination or structuring fee payable by
\n ——–
\nBorrower to Lender as consideration for making the Loan to Borrower.<\/p>\n
“Loan Taxes” shall have the meaning set forth in Section 2.2.3(a)
\n ———-
\nhereof.<\/p>\n
“Lockbox Account” shall mean the account, if any, specified in the
\n —————
\nCash Management Agreement for deposit of Rents and other receipts from the
\nProperties.<\/p>\n
“Management Agreement” shall mean, with respect to any Individual
\n ——————–
\nProperty, any management agreement entered into by and between California
\nBorrower or Texas Borrower, as the case may be, and the Manager, pursuant to
\nwhich the Manager is to provide management and other services with respect to
\nsuch Individual Property.<\/p>\n
“Manager” shall mean the manager under a Management Agreement, if any.
\n ——- <\/p>\n
“Master Leases” shall mean, collectively, the Exodus 4650 Ironsides
\n ————-
\nLease, the Exodus 4700 Ironsides Lease, the Exodus Austin Lease and the Exodus
\nData Center #4\/5 Lease.<\/p>\n
“Maturity Date” shall mean the Initial Maturity Date or, upon the
\n ————-
\nexercise by Borrower of the option set forth in Section 2.2.5(c), the Extended
\nMaturity Date, or such other date on which the final payment of principal of the
\nNote becomes due and payable as therein or herein provided, whether at such
\nstated maturity date, by declaration of acceleration, or otherwise.<\/p>\n
“Maximum Legal Rate” shall mean the maximum nonusurious interest rate,
\n ——————
\nif any, that at any time or from time to time may be contracted for, taken,
\nreserved, charged or<\/p>\n
10<\/p>\n
received on the indebtedness evidenced by the Note and as provided for herein or
\nthe other Loan Documents, under the laws of such state or states whose laws are
\nheld by any court of competent jurisdiction to govern the interest rate
\nprovisions of the Loan.<\/p>\n
“Monthly Debt Service Payment Amount” shall mean the applicable
\n ———————————–
\nmonthly installment of principal and interest payable under the Loan Documents
\nin an amount equal to (i) interest at the Applicable Interest Rate on each
\nComponent computed in accordance with Section 2.2.2 hereof and (ii) principal
\nsufficient to fully amortize the Loan over the balance of the period beginning
\non the first Payment Date following the Closing Date and ending on the twentieth
\n(20th) anniversary thereof.<\/p>\n
“Mortgage” shall mean, with respect to each Individual Property, that
\n ——–
\ncertain first priority Deed of Trust, Assignment of Leases and Rents and
\nSecurity Agreement executed and delivered by California Borrower or Texas
\nBorrower, as the case may be, as security for the Loan and encumbering such
\nIndividual Property, as the same may be amended, restated, replaced,
\nsupplemented or otherwise modified from time to time.<\/p>\n
“Net Cash Flow” for any period shall mean the amount obtained by
\n ————-
\nsubtracting Operating Expenses and Capital Expenditures for such period from
\nGross Income from Operations for such period.<\/p>\n
“Net Cash Flow After Debt Service” for any period shall mean the
\n ——————————–
\namount obtained by subtracting Debt Service for such period from Net Cash Flow
\nfor such period.<\/p>\n
“Net Cash Flow Schedule” shall have the meaning set forth in Section
\n ———————-
\n5.1.11(b) hereof.<\/p>\n
“Net Operating Income” means the amount obtained by subtracting
\n ——————–
\nOperating Expenses from Gross Income from Operations.<\/p>\n
“Net Proceeds” shall have the meaning set forth in Section 6.4(b)
\n ————
\nhereof.<\/p>\n
“Net Proceeds Deficiency” shall have the meaning set forth in Section
\n ———————–
\n6.4(b)(vi) hereof.<\/p>\n
“Note” shall mean that certain note of even date herewith in the
\n —-
\nprincipal amount of One Hundred Five Million and No\/100 Dollars ($105,000,000),
\nmade by Borrower in favor of Lender, as the same may be amended, restated,
\nreplaced, supplemented or otherwise modified from time to time.<\/p>\n
“Officers’ Certificate” shall mean a certificate delivered to Lender
\n ———————
\nby California Borrower or Texas Borrower, as the case may be, which is signed by
\nan authorized senior officer of the general partner of Texas Borrower or the
\nmanaging member of California Borrower, as the case may be.<\/p>\n
“Operating Expenses” shall mean the total of all expenditures,
\n ——————
\ncomputed in accordance with GAAP, of whatever kind relating to the operation,
\nmaintenance and management of the Properties that are incurred on a regular
\nmonthly or other periodic basis, <\/p>\n
11<\/p>\n
including, without limitation, utilities, ordinary repairs and maintenance,
\ninsurance, license fees, property taxes and assessments, advertising expenses,
\nmanagement fees, payroll and related taxes, computer processing charges,
\noperational equipment or other lease payments as approved by Lender, and other
\nsimilar costs, but excluding depreciation, Debt Service, Capital Expenditures
\nand contributions to the Reserve Funds.<\/p>\n
“Other Charges” shall mean all ground rents, maintenance charges,
\n ————-
\nimpositions other than Taxes, and any other charges, including, without
\nlimitation, vault charges and license fees for the use of vaults, chutes and
\nsimilar areas adjoining any Individual Property, now or hereafter levied or
\nassessed or imposed against such Individual Property or any part thereof.<\/p>\n
“Outside Closing Date” shall mean the date which is thirty (30) days
\n ——————–
\nafter the date hereof.<\/p>\n
“Partial Release Date” shall have the meaning set forth in Section
\n ——————–
\n2.4.<\/p>\n
“Payment Date” shall mean the tenth (10th) day of each calendar month
\n ————
\nduring the term of the Loan or, if such day is not a Business Day, the
\nimmediately succeeding Business Day.<\/p>\n
“Permitted Encumbrances” shall mean, with respect to an Individual
\n ———————-
\nProperty, collectively, (a) the Liens and security interests created by the Loan
\nDocuments, (b) all Liens, encumbrances and other matters disclosed in the Title
\nInsurance Policies relating to such Individual Property, (c) Liens, if any, for
\nTaxes imposed by any Governmental Authority not yet due or delinquent, and (d)
\nsuch other title and survey exceptions as Lender has approved or may approve in
\nwriting in Lender’s sole discretion, which Permitted Encumbrances in the
\naggregate do not materially adversely affect the value or use of such Individual
\nProperty or Borrower’s ability to repay the Loan.<\/p>\n
“Permitted Investments” shall mean any one or more of the following
\n ———————
\nobligations or securities acquired at a purchase price of not greater than par,
\nincluding those issued by Servicer, the trustee under any Securitization or any
\nof their respective Affiliates, (provided, however, that in no event shall
\nBorrower direct Agent, in accordance with the Cash Management Agreement, to make
\na Permitted Investment if the maturity date of the Permitted Investment is later
\nthan the date on which the invested sums are required for the payment of an
\nobligation for which the Account was created) and meeting one of the appropriate
\nstandards set forth below:<\/p>\n
(i) obligations of, or obligations fully guaranteed as to payment of
\nprincipal and interest by, the United States or any agency or instrumentality
\nthereof provided such obligations are backed by the full faith and credit of the
\nUnited States of America including, without limitation, obligations of: the U.S.
\nTreasury (all direct or fully guaranteed obligations), the Farmers Home
\nAdministration (certificates of beneficial ownership), the General Services
\nAdministration (participation certificates), the U.S. Maritime Administration
\n(guaranteed Title XI financing), the Small Business Administration (guaranteed
\nparticipation certificates and guaranteed pool certificates), the U.S.
\nDepartment of Housing and Urban Development (local authority bonds) and the
\nWashington Metropolitan Area Transit Authority (guaranteed transit<\/p>\n
12<\/p>\n
bonds); provided, however, that the investments described in this clause must
\n ——– ——-
\n(A) have a predetermined fixed dollar of principal due at maturity that cannot
\nvary or change, (B) if rated by S&P, must not have an “r” highlighter affixed to
\ntheir rating, (C) if such investments have a variable rate of interest, such
\ninterest rate must be tied to a single interest rate index plus a fixed spread
\n(if any) and must move proportionately with that index, and (D) such investments
\nmust not be subject to liquidation prior to their maturity;<\/p>\n
(ii) Federal Housing Administration debentures;<\/p>\n
(iii) obligations of the following United States government sponsored
\nagencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit
\nSystem (consolidated systemwide bonds and notes), the Federal Home Loan Banks
\n(consolidated debt obligations), the Federal National Mortgage Association (debt
\nobligations), the Student Loan Marketing Association (debt obligations), the
\nFinancing Corp. (debt obligations), and the Resolution Funding Corp. (debt
\nobligations); provided, however, that the investments described in this clause
\n ——– ——-
\nmust (A) have a predetermined fixed dollar of principal due at maturity that
\ncannot vary or change, (B) if rated by S&P, must not have an “r” highlighter
\naffixed to their rating, (C) if such investments have a variable rate of
\ninterest, such interest rate must be tied to a single interest rate index plus a
\nfixed spread (if any) and must move proportionately with that index, and (D)
\nsuch investments must not be subject to liquidation prior to their maturity;<\/p>\n
(iv) federal funds, unsecured certificates of deposit, time deposits,
\nbankers’ acceptances and repurchase agreements with maturities of not more than
\n365 days of any bank, the short term obligations of which at all times are rated
\nin the highest short term rating category by each Rating Agency (or, if not
\nrated by all Rating Agencies, rated by at least one Rating Agency in the highest
\nshort term rating category and otherwise acceptable to each other Rating Agency,
\nas confirmed in writing that such investment would not, in and of itself, result
\nin a downgrade, qualification or withdrawal of the initial, or, if higher, then
\ncurrent ratings assigned to the Securities); provided, however, that the
\n ——– ——-
\ninvestments described in this clause must (A) have a predetermined fixed dollar
\nof principal due at maturity that cannot vary or change, (B) if rated by S&P,
\nmust not have an “r” highlighter affixed to their rating, (C) if such
\ninvestments have a variable rate of interest, such interest rate must be tied to
\na single interest rate index plus a fixed spread (if any) and must move
\nproportionately with that index, and (D) such investments must not be subject to
\nliquidation prior to their maturity;<\/p>\n
(v) fully Federal Deposit Insurance Corporation-insured demand and
\ntime deposits in, or certificates of deposit of, or bankers’ acceptances issued
\nby, any bank or trust company, savings and loan association or savings bank, the
\nshort term obligations of which at all times are rated in the highest short term
\nrating category by each Rating Agency (or, if not rated by all Rating Agencies,
\nrated by at least one Rating Agency in the highest short term rating category
\nand otherwise acceptable to each other Rating Agency, as confirmed in writing
\nthat such investment would not, in and of itself, result in a downgrade,
\nqualification or withdrawal of the initial, or, if higher, then current ratings
\nassigned to the Securities); provided, however, that the investments described
\n ——– ——-
\nin this clause must (A) have a predetermined fixed dollar of principal due at
\nmaturity that cannot vary or change, (B) if rated by S&P, must not have an “r”
\nhighlighter affixed to their rating, (C) if such investments have a variable
\nrate of interest, such interest rate must be tied to a single interest rate
\nindex plus a fixed spread (if any) and must move proportionately with that
\nindex, and (D) such investments must not be subject to liquidation prior to
\ntheir maturity;<\/p>\n
13<\/p>\n
(vi) debt obligations with maturities of not more than 365 days and at
\nall times rated by each Rating Agency (or, if not rated by all Rating Agencies,
\nrated by at least one Rating Agency and otherwise acceptable to each other
\nRating Agency, as confirmed in writing that such investment would not, in and of
\nitself, result in a downgrade, qualification or withdrawal of the initial, or,
\nif higher, then current ratings assigned to the Securities) in its highest long-
\nterm unsecured rating category; provided, however, that the investments
\n ——– ——-
\ndescribed in this clause must (A) have a predetermined fixed dollar of principal
\ndue at maturity that cannot vary or change, (B) if rated by S&P, must not have
\nan “r” highlighter affixed to their rating, (C) if such investments have a
\nvariable rate of interest, such interest rate must be tied to a single interest
\nrate index plus a fixed spread (if any) and must move proportionately with that
\nindex, and (D) such investments must not be subject to liquidation prior to
\ntheir maturity;<\/p>\n
(vii) commercial paper (including both non-interest-bearing discount
\nobligations and interest-bearing obligations payable on demand or on a specified
\ndate not more than one year after the date of issuance thereof) with maturities
\nof not more than 365 days and that at all times is rated by each Rating Agency
\n(or, if not rated by all Rating Agencies, rated by at least one Rating Agency
\nand otherwise acceptable to each other Rating Agency, as confirmed in writing
\nthat such investment would not, in and of itself, result in a downgrade,
\nqualification or withdrawal of the initial, or, if higher, then current ratings
\nassigned to the Securities) in its highest short-term unsecured debt rating;
\nprovided, however, that the investments described in this clause must (A) have a
\n——– ——-
\npredetermined fixed dollar of principal due at maturity that cannot vary or
\nchange, (B) if rated by S&P, must not have an “r” highlighter affixed to their
\nrating, (C) if such investments have a variable rate of interest, such interest
\nrate must be tied to a single interest rate index plus a fixed spread (if any)
\nand must move proportionately with that index, and (D) such investments must not
\nbe subject to liquidation prior to their maturity;<\/p>\n
(viii) units of taxable money market funds or mutual funds, which
\nfunds are regulated investment companies, seek to maintain a constant net asset
\nvalue per share and invest solely in obligations backed by the full faith and
\ncredit of the United States, which funds have the highest rating available from
\neach Rating Agency (or, if not rated by all Rating Agencies, rated by at least
\none Rating Agency and otherwise acceptable to each other Rating Agency, as
\nconfirmed in writing that such investment would not, in and of itself, result in
\na downgrade, qualification or withdrawal of the initial, or, if higher, then
\ncurrent ratings assigned to the Securities) for money market funds or mutual
\nfunds; and<\/p>\n
(ix) any other security, obligation or investment which has been
\napproved as a Permitted Investment in writing by (a) Lender and (b) each Rating
\nAgency, as evidenced by a written confirmation that the designation of such
\nsecurity, obligation or investment as a Permitted Investment will not, in and of
\nitself, result in a downgrade, qualification or withdrawal of the initial, or,
\nif higher, then current ratings assigned to the Securities by such Rating
\nAgency;<\/p>\n
provided, however, that no obligation or security shall be a Permitted
\n——– ——-
\nInvestment if (A) such obligation or security evidences a right to receive only
\ninterest payments or (B) the right to receive principal and interest payments on
\nsuch obligation or security are derived from an <\/p>\n
14<\/p>\n
underlying investment that provides a yield to maturity in excess of 120% of the
\nyield to maturity at par of such underlying investment.<\/p>\n
“Permitted Owner” shall mean a Person who satisfies (i) or (ii) or
\n —————
\n(iii) below:<\/p>\n
(i) a Qualified Transferee;<\/p>\n
(ii) any Person, prior to a Securitization, approved by Lender (such
\napproval not to be unreasonably withheld) or, regarding which, after a
\nSecuritization, Lender has received confirmation from the Rating Agencies that
\nsuch transfer shall not result in a downgrade, qualification or withdrawal of
\nthe then-current ratings assigned to the Securities; or<\/p>\n
(iii) Sponsor.<\/p>\n
“Permitted Prepayment Date” *.
\n ————————- <\/p>\n
“Person” shall mean any individual, corporation, partnership, joint
\n ——
\nventure, limited liability company, estate, trust, unincorporated association,
\nany federal, state, county or municipal government or any bureau, department or
\nagency thereof and any fiduciary acting in such capacity on behalf of any of the
\nforegoing.<\/p>\n
“Personal Property” shall have the respective meanings set forth in
\n —————–
\nthe granting clause of each Mortgage.<\/p>\n
“Physical Conditions Report” shall mean, with respect to each
\n ————————–
\nIndividual Property, a report prepared by a company satisfactory to Lender
\nregarding the physical condition of such Individual Property, satisfactory in
\nform and substance to Lender in its sole discretion, which report shall, among
\nother things, (a) confirm that such Individual Property and its use complies, in
\nall material respects, with all applicable Legal Requirements (including,
\nwithout limitation, zoning, subdivision and building laws) and (b) include a
\ncopy of a final certificate of occupancy with respect to all Improvements on
\nsuch Individual Property.<\/p>\n
“Policies” or “Policy” shall have the meaning specified in Section
\n ——– ——
\n6.1(b) hereof.<\/p>\n
“Prepayment Date” shall have the meaning set forth in Section 2.3.1(a)
\n —————
\nhereof.<\/p>\n
“Prepayment Fee” shall mean an amount equal to * percent (*%) of the
\n ————–
\namount of principal being prepaid, if such prepayment occurs prior to the
\nPermitted Prepayment Date and thereafter there shall be no Prepayment Fee
\npayable with respect to the Loan.<\/p>\n
“Properties” shall mean, collectively, each and every Individual
\n ———-
\nProperty which is subject to the terms of this Agreement.<\/p>\n
“Provided Information” shall have the meaning set forth in Section
\n ——————–
\n9.1(a) hereof.<\/p>\n
“Qualified Transferee” shall mean any one of the following Persons:
\n ——————– <\/p>\n
15<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
(i) a pension fund, pension trust or pension account that (a) has
\n total real estate assets of at least $1 Billion and (b) is
\n managed by a Person who controls at least $1 Billion of real
\n estate equity assets; or<\/p>\n
(ii) a pension fund advisor who (a) immediately prior to such
\n transfer, controls at least $1 Billion of real estate equity
\n assets and (b) is acting on behalf of one or more pension funds
\n that, in the aggregate, satisfy the requirements of clause (i)
\n of this definition; or<\/p>\n
(iii) an insurance company which is subject to supervision by the
\n insurance commissioner, or a similar official or agency, of a
\n state or territory of the United States (including the District
\n of Columbia) (a) with a net worth, as of a date no more than six
\n (6) months prior to the date of the transfer of at least $500
\n Million and (b) who, immediately prior to such transfer,
\n controls real estate equity assets of at least $1 Billion; or<\/p>\n
(iv) a corporation organized under the banking laws of the United
\n States or any state or territory of the United States (including
\n the District of Columbia) (a) with a combined capital and
\n surplus of at least $500 Million and (b) who, immediately prior
\n to such transfer, controls real estate equity assets of at least
\n $1 Billion; or<\/p>\n
(v) any Person (a) with a long-term unsecured debt rating from
\n each of the Rating Agencies (provided such Person is rated by
\n such Rating Agencies) of at least investment grade (provided,
\n however, such Person shall be rated by the Rating Agencies that
\n have rated the Securities) and (b) who (i) owns or operates at
\n least 500,000 square feet of gross leasable area of space
\n comparable to the Properties, (ii) has a net worth, as of a date
\n no more than six (6) months prior to the date of such transfer,
\n of at least $500 Million and (iii) immediately prior to such
\n transfer, controls real estate equity assets of at least $1
\n Billion.<\/p>\n
“Rating Agencies” shall mean each of Standard & Poor’s Ratings Group,
\n —————
\na division of McGraw-Hill, Inc. (“S&P”), Moody’s Investors Service, Inc.
\n —
\n(“Moody’s”) and Fitch IBCA, Inc. (“Fitch”), or any other nationally-recognized
\n——— —–
\nstatistical rating agency which has been approved by Lender.<\/p>\n
“Rating Surveillance Charge” shall have the meaning set forth in
\n ————————–
\nSection 9.3 hereof.<\/p>\n
“Registration Statement” shall have the meaning set forth in Section
\n ———————-
\n9.2(b) hereof.<\/p>\n
“Release Amount” shall mean for an Individual Property the amount
\n ————–
\ndetermined by Lender in its sole discretion upon receipt of a satisfactory
\nappraisal with respect to such Individual Property, but in no event shall such
\nRelease Amount exceed one hundred twenty-five percent (125%) of the portion of
\nthe Loan which is allocated to such Individual Property.<\/p>\n
16<\/p>\n
“REMIC Trust” shall mean a “real estate mortgage investment conduit”
\n ———–
\nwithin the meaning of Section 860D of the Code that holds the Note.<\/p>\n
“Rents” shall mean, with respect to each Individual Property, all
\n —–
\nrents, rent equivalents, moneys payable as damages or in lieu of rent or rent
\nequivalents, royalties (including, without limitation, all oil and gas or other
\nmineral royalties and bonuses), income, receivables, receipts, revenues,
\ndeposits (including, without limitation, security, utility and other deposits),
\naccounts, cash, issues, profits, charges for services rendered, and other
\nconsideration of whatever form or nature received by or paid to or for the
\naccount of or benefit of California Borrower or Texas Borrower, as the case may
\nbe, or their agents or employees from any and all sources arising from or
\nattributable to the Individual Property, and proceeds, if any, from business
\ninterruption or other loss of income insurance.<\/p>\n
“Replacement Interest Rate Cap Agreement” means an interest rate cap
\n —————————————
\nagreement from an Acceptable Counterparty with terms identical to the Interest
\nRate Cap Agreement except that the same shall be effective in connection with
\nreplacement of the Interest Rate Cap Agreement following a downgrade, withdrawal
\nor qualification of the long-term unsecured debt rating of the Counterparty;
\nprovided that to the extent any such interest rate cap agreement does not meet
\nthe foregoing requirements, a “Replacement Interest Rate Cap Agreement” shall be
\nsuch interest rate cap agreement approved in writing by each of the Rating
\nAgencies with respect thereto.<\/p>\n
“Replacement Reserve Account” shall have the meaning set forth in
\n —————————
\nSection 7.3.1.<\/p>\n
“Replacement Reserve Fund” shall have the meaning set forth in Section
\n ————————
\n7.3.1 hereof.<\/p>\n
“Replacement Reserve Monthly Deposit” shall have the meaning set forth
\n ———————————–
\nin Section 7.3.1 hereof.<\/p>\n
“Replacements” shall have the meaning set forth in Section 7.3.1(a)
\n ————
\nhereof.<\/p>\n
“Reserve Funds” shall mean the Tax and Insurance Escrow Fund, the
\n ————-
\nReplacement Reserve Fund or any other escrow fund established by the Loan
\nDocuments.<\/p>\n
“Restoration” shall have the meaning set forth in Section 6.2 hereof.
\n ———– <\/p>\n
“Second Extended Maturity Date” shall have the meaning set forth in
\n —————————–
\nSection 2.2.5(c).<\/p>\n
“Securities” shall have the meaning set forth in Section 9.1 hereof.
\n ———- <\/p>\n
“Securities Act” shall have the meaning set forth in Section 9.2(a)
\n ————–
\nhereof.<\/p>\n
“Securitization” shall have the meaning set forth in Section 9.1
\n ————–
\nhereof.<\/p>\n
“Servicer” shall have the meaning set forth in Section 9.6 hereof.
\n ——– <\/p>\n
17<\/p>\n
“Servicing Agreement” shall have the meaning set forth in Section 9.6
\n ——————-
\nhereof.<\/p>\n
“Severed Loan Documents” shall have the meaning set forth in Section
\n ———————-
\n8.2(c) hereof.<\/p>\n
“SPC Party” shall have the meaning set forth in Section 4.1.30(o)
\n ———
\nhereof.<\/p>\n
“Sponsor” shall mean Exodus Communications, Inc. or any successor
\n ——-
\napproved by Lender.<\/p>\n
“Spread” shall mean (a) *% with respect to Component A, (b) *%
\n ——
\nwith respect to Component B, (c) *% with respect to Component C, and (d)
\n*% with respect to Component D.<\/p>\n
“State” shall mean, with respect to an Individual Property, the State
\n —–
\nor Commonwealth in which such Individual Property or any part thereof is
\nlocated.<\/p>\n
“Strike Price” shall mean *%.
\n ———— <\/p>\n
“Subsequent Advance Closing Date” shall mean the date of the funding
\n ——————————-
\nof any subsequent advance of a portion of the proceeds of the Loan pursuant to
\nSection 2.1.5(b).<\/p>\n
“Subsequent Advance Request” shall have the meaning set forth in
\n ————————–
\nSection 2.1.5(b).<\/p>\n
“Subsidiary” of any Person means any corporation, partnership, joint
\n ———-
\nventure, limited liability company, trust or estate of which (or in which) more
\nthan 50% of (a) the issued and outstanding capital stock having ordinary voting
\npower to elect a majority of the board of directors of such corporation
\n(irrespective of whether at the time capital stock of any other class or classes
\nof such corporation shall or might have voting power upon the occurrence of any
\ncontingency), (b) the interest in the capital or profits of such limited
\nliability company, partnership or joint venture or (c) the beneficial interest
\nin such trust or estate is at the time directly or indirectly owned or
\ncontrolled by such Person, by such Person and one or more of its other
\nSubsidiaries or by one or more of such Person’s other Subsidiaries.<\/p>\n
“Substitute Rate” shall have the meaning set forth in Section 2.2.3(c)
\n —————
\nhereof<\/p>\n
“Substitute Spread” shall have the meaning set forth in Section
\n —————–
\n2.2.3(c) hereof.<\/p>\n
“Survey” shall mean a survey of the Individual Property in question
\n ——
\nprepared by a surveyor licensed in the State and satisfactory to Lender and the
\ncompany or companies issuing the Title Insurance Policies, and containing a
\ncertification of such surveyor satisfactory to Lender.<\/p>\n
“Tax and Insurance Escrow Fund” shall have the meaning set forth in
\n —————————–
\nSection 7.2.1 hereof.<\/p>\n
18<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
“Taxes” shall mean all real estate and personal property taxes,
\n —–
\nassessments, water rates or sewer rents, now or hereafter levied or assessed or
\nimposed against any Individual Property or part thereof.<\/p>\n
“Telerate Page 3750” means the display designated as “Page 3750” on
\n ——————
\nthe Dow Jones Telerate Service (or such other page as may replace Page 3750 in
\nthat service or such other service as may be nominated by the British Bankers’
\nAssociation as the information vendor for the purpose of displaying British
\nBankers’ Association Interest Settlement Rates for U.S. Dollar deposits).<\/p>\n
“Texas Borrower” shall mean Exodus Communications Real Property I, LP,
\n —————
\na Texas limited partnership, together with its successors and assigns.<\/p>\n
“Title Insurance Policies” shall mean, with respect to each Individual
\n ————————
\nProperty, an ALTA mortgagee title insurance policy in the form (acceptable to
\nLender) (or, if an Individual Property is in a State which does not permit the
\nissuance of such ALTA policy, such form as shall be permitted in such State and
\nacceptable to Lender) issued with respect to such Individual Property and
\ninsuring the lien of the Mortgage encumbering such Individual Property.<\/p>\n
“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial
\n — ———————–
\nCode as in effect in the State.<\/p>\n
“Underwriter Group” shall have the meaning set forth in Section 9.2(b)
\n —————–
\nhereof.<\/p>\n
Section 1.2 Principles of Construction.
\n ————————– <\/p>\n
All references to sections and schedules are to sections and schedules
\nin or to this Agreement unless otherwise specified. All uses of the word
\n“including” shall mean “including, without limitation” unless the context shall
\nindicate otherwise. Unless otherwise specified, the words “hereof,” “herein”
\nand “hereunder” and words of similar import when used in this Agreement shall
\nrefer to this Agreement as a whole and not to any particular provision of this
\nAgreement. Unless otherwise specified, all meanings attributed to defined terms
\nherein shall be equally applicable to both the singular and plural forms of the
\nterms so defined.<\/p>\n
II. GENERAL TERMS
\n ————-<\/p>\n
Section 2.1 Loan Commitment; Disbursement to Borrower.
\n —————————————– <\/p>\n
2.1.1 The Loan. Subject to and upon the terms and conditions set forth
\n ——–
\nherein, Lender hereby agrees to make and Borrower hereby agrees to accept the
\nLoan on the Closing Date.<\/p>\n
2.1.2 Disbursement to Borrower. Borrower may request and receive only
\n ————————
\none borrowing hereunder in respect of the Loan, which borrowing may be advanced
\nin any number of disbursements in accordance with the terms hereof, and any
\namount borrowed and repaid hereunder in respect of the Loan may not be
\nreborrowed. Borrower shall, on the Closing Date, receive the Initial Advance
\nwith respect to the Properties located at 2401 Walsh Avenue, Santa Clara,
\nCalifornia, 2403 Walsh Avenue, Santa Clara, California and 1418 Park Center
\nDrive,<\/p>\n
19<\/p>\n
Austin, Texas, subject to the direction given by Borrower as to the application
\nof the proceeds of the Loan to pay certain closing costs and to fund the Tax and
\nInsurance Escrow Fund and any other reserve or escrow fund required hereunder,
\nall in accordance with the provisions of this Agreement. Borrower shall, on any
\nSubsequent Advance Closing Date, receive the related Subsequent Advance with
\nrespect to the Properties located at 4650 Ironsides Drive, Santa Clara,
\nCalifornia and 4700 Ironsides Drive, Santa Clara, California, subject to the
\ndirection given by Borrower as to the application of the proceeds of the Loan to
\npay certain closing costs and to fund the Tax and Insurance Escrow Fund and any
\nother reserve or escrow fund required hereunder.<\/p>\n
2.1.3 The Note, Mortgages and Loan Documents. The Loan shall be
\n ————————————–
\nevidenced by the Note and secured by each Mortgage, each Assignment of Leases
\nand the other Loan Documents.<\/p>\n
2.1.4 Use of Proceeds. Borrower shall use the proceeds of the Loan to
\n —————
\n(a) acquire the Properties, (b) pay all past-due Basic Carrying Costs, if any,
\nin respect of the Properties, (c) make deposits into the Reserve Funds on the
\nClosing Date in the amounts provided herein, (d) pay costs and expenses incurred
\nin connection with the closing of the Loan, as approved by Lender, (e) fund any
\nworking capital requirements of the Properties, and (f) distribute the balance,
\nif any, to Borrower.<\/p>\n
2.1.5 Advances.
\n ——–<\/p>\n
(a) On the Closing Date, Lender shall make, and Borrower shall
\naccept, the Initial Advance subject to and upon the conditions and terms
\ncontained herein including, without limitation, the conditions contained in
\nSection 3.1. hereof.
\n————<\/p>\n
(b) In addition to the Initial Advance, Borrower may request and
\nreceive not more than one (1) subsequent advance of a portion of the proceeds of
\nthe Loan not previously advanced (the “Subsequent Advance”); provided, however,
\n ——————
\nthat Borrower shall have satisfied each of the conditions contained in Section
\n ——-
\n3.2. Lender shall not be obligated to make a Subsequent Advance after the
\n—
\nOutside Closing Date. Borrower may submit to Lender, at any time after the
\nClosing Date and not later than ten (10) days prior to the Outside Closing Date,
\na written request for the Subsequent Advance in form and substance acceptable to
\nLender (the “Subsequent Advance Request”). The Subsequent Advance Request shall,
\n ————————–
\namong other things, (i) request an advance of Loan proceeds in an amount no less
\nthan Five Hundred Thousand Dollars ($500,000), and (ii) set forth the proposed
\nSubsequent Advance Closing Date with respect to the Subsequent Advance
\nrequested, which Subsequent Advance Closing Date shall be a Payment Date
\noccurring no less than ten (10) days subsequent to the later of (x) the date on
\nwhich the Subsequent Advance Request is received by Lender or (y) the date on
\nwhich the Borrower has satisfied all of the conditions contained in Section 3.2.
\n ———– <\/p>\n
Section 2.2 Interest; Loan Payments; Late Payment Charge.
\n ——————————————– <\/p>\n
2.2.1 Interest Generally. Interest on the outstanding principal
\n ——————
\nbalance of the Loan shall accrue from the Closing Date to but excluding the
\nMaturity Date at the Applicable<\/p>\n
20<\/p>\n
Interest Rate for each such Component as applied to the outstanding principal
\nbalance of such Component.<\/p>\n
2.2.2 Interest Calculation. Interest on the outstanding principal
\n ——————–
\nbalance of the Loan shall be calculated by multiplying (a) the actual number of
\ndays elapsed in the period for which the calculation is being made by (b) a
\ndaily rate based on a three hundred sixty (360) day year by (c) the outstanding
\nprincipal balance.<\/p>\n
2.2.3 Loan Taxes; Substitute Interest Rate.
\n ————————————<\/p>\n
(a) All payments made by Borrower hereunder shall be made free and
\nclear of, and without reduction for or on account of, income, stamp or other
\ntaxes, levies, imposts, duties, charges, fees, deductions, reserves or
\nwithholdings imposed, levied, collected, withheld or assessed by any
\nGovernmental Authority, which are imposed, enacted or become effective after the
\ndate hereof (such non-excluded taxes being referred to collectively as “Loan
\n —-
\nTaxes”), excluding income and franchise taxes and taxes of a similar nature
\n—–
\nbased, imposed on or measured by Lender’s net income by the United States of
\nAmerica or any political subdivision or taxing authority thereof or therein
\n(including Puerto Rico and the U.S. Virgin Islands) or by any other jurisdiction
\nor Governmental Authority. If any Loan Taxes are required to be withheld from
\nany amounts payable to Lender hereunder, the amounts so payable to Lender shall
\nbe increased to the extent necessary to yield to Lender (after payment of all
\nLoan Taxes) interest or any such other amounts payable hereunder at the rate or
\nin the amounts specified hereunder. Whenever any Loan Tax is payable pursuant to
\napplicable law by Borrower, as promptly as possible thereafter, Borrower shall
\nsend to Lender an original official receipt, if available, or certified copy
\nthereof showing payment of such Loan Tax. Borrower hereby indemnifies Lender for
\nany incremental taxes, interest or penalties that may become payable by Lender
\nwhich may result from any failure by Borrower to pay any such Loan Tax when due
\nto the appropriate taxing authority or any failure by Borrower to remit to
\nLender the required receipts or other required documentary evidence.<\/p>\n
(b) In the event that any change in any requirement of law or in the
\ninterpretation or application thereof, or compliance by Lender with any request
\nor directive (whether or not having the force of law) hereafter issued from any
\ncentral bank or other Governmental Authority:<\/p>\n
(i) shall hereafter impose, modify or hold applicable any reserve,
\n special deposit, compulsory loan or similar requirement against
\n assets held by, or deposits or other liabilities in or for the
\n account of, advances or loans by, or other credit extended by, or
\n any other acquisition of funds by, any office of Lender which is
\n not otherwise included in the determination of LIBOR hereunder
\n (but only to the extent that the same relate to LIBOR-based
\n loans);<\/p>\n
(ii) shall hereafter have the effect of reducing the rate of return on
\n Lender’s capital as a consequence of its obligations hereunder to
\n a level below that which Lender could have achieved but for such
\n adoption, change or compliance (taking into consideration
\n Lender’s policies with respect to capital adequacy) by any amount
\n deemed by Lender to be material; or<\/p>\n
21<\/p>\n
(iii) shall hereafter impose on Lender any other condition on the
\n making or origination of LIBOR-based loans and the result of any
\n of the foregoing is to increase the cost to Lender of making,
\n renewing or maintaining LIBOR-based real estate secured loans or
\n extensions of credit or to reduce any amount receivable
\n hereunder;<\/p>\n
then, in any such case, Borrower shall promptly pay Lender, upon demand, any
\nadditional amounts necessary to compensate Lender for such additional cost or
\nreduced amount receivable which Lender deems to be material as reasonably
\ndetermined by Lender. If Lender becomes entitled to claim any additional
\namounts pursuant to this Section 2.2.3(b), Lender shall provide Borrower with
\nnot less than thirty (30) days written notice specifying in reasonable detail
\nthe event by reason of which it has become so entitled and the additional amount
\nrequired to fully compensate Lender for such additional cost or reduced amount.
\nA certificate as to any additional costs or amounts payable pursuant to the
\nforegoing sentence submitted by Lender to Borrower shall be conclusive in the
\nabsence of manifest error. This provision shall survive payment of the Note and
\nthe satisfaction of all other obligations of Borrower under this Agreement and
\nthe Loan Documents.<\/p>\n
(c) In the event that Lender shall have determined on a non-
\ndiscriminatory basis (which determination shall be conclusive and binding upon
\nBorrower absent manifest error), that by reason of circumstances affecting the
\ninterbank eurodollar market, adequate and reasonable means do not exist for
\nascertaining LIBOR, then Lender shall, by notice to Borrower (“Lender’s
\n ——–
\nNotice”), which notice shall set forth in reasonable detail such circumstances,
\n——
\nreasonably establish the Applicable Interest Rate at Lender’s then customary
\nspread (the “Substitute Spread”), taking into account the size of the Loan and
\n —————–
\nthe creditworthiness of Borrower, above a published index used for variable rate
\nloans as reasonably determined by Lender (the “Substitute Rate”). If any change
\n —————
\nin law, or any change in the interpretation of any existing law or future law or
\napplication thereof, shall hereafter make it unlawful for Lender to make or
\nmaintain the Loan at LIBOR plus the Spread applicable to each Component as
\ncontemplated hereunder, (i) the obligation of Lender hereunder to make the Loan
\nat LIBOR plus the Spread applicable to each Component shall be cancelled
\nforthwith and (ii) Lender may give Borrower a Lender’s Notice, establishing the
\nApplicable Interest Rate at the Substitute Rate plus the Substitute Spread as
\napplied to each Component, in which case the Applicable Interest Rate shall be a
\nrate equal to the Substitute Rate in effect from time to time plus the
\nSubstitute Spread applicable to each Component. If permitted by law, any change
\npursuant to this Section 2.2.3(c) shall not become effective until the
\nexpiration of the then current Interest Period.<\/p>\n
2.2.4 Intentionally Omitted.
\n ———————<\/p>\n
2.2.5 Payment Before Maturity Date; Payment on Maturity Date;
\n ——————————————————-
\nExtension of Maturity Date.
\n————————–<\/p>\n
(a) Borrower shall make a payment to Lender of interest only on the
\ndate hereof for the initial Interest Period commencing on the date hereof and
\nending on the ninth day of the next succeeding calendar month. Borrower shall
\nmake a payment to Lender of interest and principal in an amount equal to the
\nMonthly Debt Service Payment Amount on the Payment Date occurring on May 10,
\n2001 and on each Payment Date thereafter to and including the Maturity<\/p>\n
22<\/p>\n
Date, each such payment to be applied (a) first, the interest portion of the
\nMonthly Debt Service Payment Amount to the payment of all accrued and unpaid
\ninterest at the Applicable Interest Rate with respect to Component A on the
\noutstanding principal amount of Component A for such Interest Period; (b)
\nsecond, the principal portion of the Monthly Debt Service Payment Amount to the
\npayment of the outstanding principal amount of Component A until such principal
\namount is reduced to zero; (c ) third, the interest portion of the Monthly Debt
\nService Payment Amount to the payment of all accrued and unpaid interest at the
\nApplicable Interest Rate with respect to Component B on the outstanding
\nprincipal amount of Component B for such Interest Period; (d) fourth, the
\nprincipal portion of the Monthly Debt Service Payment Amount to the payment of
\nthe outstanding principal amount of Component B until such principal amount is
\nreduced to zero; (e) fifth, the interest portion of the Monthly Debt Service
\nPayment Amount to the payment of all accrued and unpaid interest at the
\nApplicable Interest Rate with respect to Component C on the outstanding
\nprincipal amount of Component C for such Interest Period; (f) sixth, the
\nprincipal portion of the Monthly Debt Service Payment Amount to the payment of
\nthe outstanding principal amount of Component C until such principal amount is
\nreduced to zero; (g) seventh, the interest portion of the Monthly Debt Service
\nPayment Amount to the payment of all accrued and unpaid interest at the
\nApplicable Interest Rate with respect to Component D on the outstanding
\nprincipal amount of Component D for such Interest Period; and (h) eighth, the
\nprincipal portion of the Monthly Debt Service Payment Amount to the payment of
\nthe outstanding principal amount of Component D until such principal amount is
\nreduced to zero. The Applicable Interest Rate shall be revised monthly on each
\nDetermination Date to become effective on the first day of the next Interest
\nPeriod based on LIBOR as of the Determination Date. Each determination by Lender
\nof LIBOR shall be conclusive and binding for all purposes absent manifest error.<\/p>\n
(b) Borrower shall pay to Lender on the Maturity Date the outstanding
\nprincipal balance, all accrued and unpaid interest and all other amounts due
\nhereunder and under the Note, each Mortgage and other the Loan Documents.<\/p>\n
(c) Borrower shall have two (2) one-year options to extend the
\nMaturity Date of the Loan to April 10, 2005 (the “First Extended Maturity Date”)
\n —————————-
\nand April 10, 2006 (the “Second Extended Maturity Date”; either of the First
\n —————————–
\nExtended Maturity Date or the Second Extended Maturity Date may hereafter be
\nreferred to as an “Extended Maturity Date”) upon satisfaction of the following
\n ———————-
\nterms and conditions:<\/p>\n
(i) no Event of Default shall have occurred and be continuing;<\/p>\n
(ii) if an Interest Rate Cap Event is then in effect, Borrower shall
\nobtain and deliver to Lender not later than one (1) Business Day prior to the
\nfirst day of the term of the Loan as extended one or more Replacement Interest
\nRate Cap Agreements from an Acceptable Counterparty which Replacement Interest
\nRate Cap Agreement shall be effective commencing on the date of such extension
\nand shall have a maturity date not earlier than the first anniversary thereof;<\/p>\n
(iii) Borrower shall notify Lender of its irrevocable election to
\nextend the Maturity Date as aforesaid not later than thirty (30) days prior to
\nthe Initial Maturity Date or the First Extended Maturity Date, as the case may
\nbe;<\/p>\n
23<\/p>\n
(iv) Borrower shall pay to Lender a non-refundable extension fee (the
\n“Extension Fee”) in an amount equal to * percent (*%) of the then
\n ————-
\noutstanding principal amount of the Loan not later than one (1) Business Day
\nprior to the first day of the term of the Loan as extended;<\/p>\n
(v) *; and<\/p>\n
(vi) with respect to extending the Loan to the Second Extended
\nMaturity Date, Borrower shall have previously extended the Loan to the First
\nExtended Maturity Date in accordance with this Section 2.2.5(c).
\n —————-<\/p>\n
2.2.6 Payments after Default. In the event that, and for so long as,
\n ———————-
\nany Event of Default shall have occurred and be continuing, (a) the outstanding
\nprincipal balance of the Loan shall accrue interest at the Default Rate,
\ncalculated from the date the Default occurred which led to such an Event of
\nDefault without regard to any grace or cure periods contained herein other than
\nthe grace period with respect to payments of Debt Service set forth in Section
\n8.1(a)(i) and (b) notwithstanding anything to the contrary contained herein,
\npayments of Net Cash Flow After Debt Service required to be made by Borrower
\npursuant to Section 7.3 hereof may be applied by Lender to the payment of the
\nDebt in such order as Lender shall determine in its sole discretion, including,
\nwithout limitation, alternating applications thereof between interest and
\nprincipal. Interest at the Default Rate and Net Cash Flow After Debt Service
\nshall both be computed from the occurrence of the Event of Default until the
\nactual receipt and collection of the Debt (or that portion thereof that is then
\ndue). To the extent permitted by applicable law, interest at the Default Rate
\nshall be added to the Debt, shall itself accrue interest at the weighted average
\nof the Applicable Interest Rate with respect to each of the Components and be
\nsecured by the Mortgage. This paragraph shall not be construed as an agreement
\nor privilege to extend the date of the payment of the Debt, nor as a waiver of
\nany other right or remedy accruing to Lender by reason of the occurrence of any
\nEvent of Default; the acceptance of any payment of Net Cash Flow After Debt
\nService shall not be deemed to cure or constitute a waiver of any Event of
\nDefault; and Lender retains its rights under the Note to accelerate and to
\ncontinue to demand payment of the Debt upon the happening of any Event of
\nDefault, despite any payment of Net Cash Flow After Debt Service. If all or any
\npart of the principal amount of the Loan is prepaid upon acceleration of the
\nLoan following the occurrence of an Event of Default prior to the Permitted
\nPrepayment Date, Borrower shall be required to pay Lender, in addition to all
\nother amounts then payable hereunder, the Prepayment Fee calculated with respect
\nto the amount of principal being repaid.<\/p>\n
2.2.7 Late Payment Charge. If any principal, interest or any other
\n ——————-
\nsums due under the Loan Documents is not paid by Borrower on or before the date
\non which it is due, Borrower shall pay to Lender, upon demand, an amount equal
\nto the lesser of five percent (5%) of such unpaid sum or the maximum amount
\npermitted by applicable law in order to defray the expense incurred by Lender in
\nhandling and processing such delinquent payment and to compensate Lender for the
\nloss of the use of such delinquent payment. Any such amount shall be secured by
\nthe Mortgages and the other Loan Documents to the extent permitted by applicable
\nlaw.<\/p>\n
24<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
2.2.8 Usury Savings. This Agreement and the Note are subject to the
\n ————-
\nexpress condition that at no time shall Borrower be obligated or required to pay
\ninterest on the principal balance of the Loan at a rate which could subject
\nLender to either civil or criminal liability as a result of being in excess of
\nthe Maximum Legal Rate. If, by the terms of this Agreement or the other Loan
\nDocuments, Borrower is at any time required or obligated to pay interest on the
\nprincipal balance due hereunder at a rate in excess of the Maximum Legal Rate,
\nthe Applicable Interest Rate or the Default Rate, as the case may be, shall be
\ndeemed to be immediately reduced to the Maximum Legal Rate and all previous
\npayments in excess of the Maximum Legal Rate shall be deemed to have been
\npayments in reduction of principal and not on account of the interest due
\nhereunder. All sums paid or agreed to be paid to Lender for the use,
\nforbearance, or detention of the sums due under the Loan, shall, to the extent
\npermitted by applicable law, be amortized, prorated, allocated, and spread
\nthroughout the full stated term of the Loan until payment in full so that the
\nrate or amount of interest on account of the Loan does not exceed the Maximum
\nLegal Rate of interest from time to time in effect and applicable to the Loan
\nfor so long as the Loan is outstanding.<\/p>\n
Section 2.3 Prepayments.
\n ———–<\/p>\n
2.3.1 Voluntary Prepayments. (a) Except as otherwise provided herein,
\n ———————
\nBorrower shall not have the right to prepay the Loan prior to the Permitted
\nPrepayment Date. Borrower shall have the right to prepay the outstanding
\nprincipal balance of the Loan in whole or in part on any Payment Date on or
\nafter the Permitted Prepayment Date upon satisfaction of the following
\nconditions:<\/p>\n
(i) Borrower shall provide prior written notice to Lender specifying
\nthe date (the “Prepayment Date”) upon which the prepayment is to be made, which
\n —————
\nnotice shall be delivered to Lender not less than ten (10) Business Days prior
\nto such payment; and<\/p>\n
(ii) if the Prepayment Date is not a Payment Date, Borrower shall pay
\nto Lender, simultaneously with such prepayment, all interest on the principal
\nbalance of the Note then being prepaid which would have accrued through the end
\nof the Interest Period then in effect.<\/p>\n
(b) Any prepayment pursuant to this Section 2.3.1 shall be applied (i)
\nfirst, to the payment of all accrued and unpaid interest on Component A at the
\nApplicable Interest Rate with respect to Component A through the end of the
\nInterest Period then in effect; (ii) second, to the payment of all accrued and
\nunpaid interest on Component B at the Applicable Interest Rate with respect to
\nComponent B through the end of the Interest Period then in effect; (iii) third,
\nto the payment of all accrued and unpaid interest on Component C at the
\nApplicable Interest Rate with respect to Component C through the end of the
\nInterest Period then in effect; (iv) fourth, to the payment of all accrued and
\nunpaid interest on Component D at the Applicable Interest Rate with respect to
\nComponent D through the end of the Interest Period then in effect; (v) fifth, to
\nthe payment of the outstanding principal amount of Component A until such
\nprincipal amount is reduced to zero; (vi) sixth, to the payment of the
\noutstanding principal amount of Component B until such principal amount is
\nreduced to zero; (vii) seventh, to the payment of the outstanding principal
\namount of Component C until such principal amount is reduced to zero; and (viii)<\/p>\n
25<\/p>\n
eighth, to the payment of the outstanding principal amount of Component D until
\nsuch principal amount is reduced to zero.<\/p>\n
Lender shall not be obligated to accept any prepayment unless it is accompanied
\nby the Prepayment Fee, if any, due in connection therewith.<\/p>\n
2.3.2 Mandatory Prepayments. On the date on which Borrower actually
\n ———————
\nreceives any Net Proceeds, if Lender is not obligated to make such Net Proceeds
\navailable to Borrower for the restoration of the Property, Borrower or its
\nnominee shall prepay the Note in an amount equal to one hundred percent (100%)
\nof such Net Proceeds. No Prepayment Fee shall be due in connection with any
\nprepayment made pursuant to this Section 2.3.2. Any partial prepayment under
\nthis Section shall be applied (a) first, to the payment of all accrued and
\nunpaid interest on Component A at the Applicable Interest Rate with respect to
\nComponent A through the end of the Interest Period then in effect; (b) second,
\nto the payment of all accrued and unpaid interest on Component B at the
\nApplicable Interest Rate with respect to Component B through the end of the
\nInterest Period then in effect; (c) third, to the payment of all accrued and
\nunpaid interest on Component C at the Applicable Interest Rate with respect to
\nComponent C through the end of the Interest Period then in effect; (d) fourth,
\nto the payment of all accrued and unpaid interest on Component D at the
\nApplicable Interest Rate with respect to Component D through the end of the
\nInterest Period then in effect; (e) fifth, to the payment of the outstanding
\nprincipal amount of Component A until such principal amount is reduced to zero;
\n(f) sixth, to the payment of the outstanding principal amount of Component B
\nuntil such principal amount is reduced to zero; (g) seventh, to the payment of
\nthe outstanding principal amount of Component C until such principal amount is
\nreduced to zero; and (h) eighth, to the payment of the outstanding principal
\namount of Component D until such principal amount is reduced to zero. Any
\nprepayment received by Lender pursuant to this Section 2.3.2 on the date other
\nthan a Payment Date shall be held by Lender as collateral security for the Loan
\nin an interest bearing account, with such interest accruing to the benefit of
\nBorrower, and shall be applied by Lender on the next Payment Date.<\/p>\n
Section 2.4 Partial Release; Release on Payment in Full. (a) Borrower
\n ——————————————-
\nshall have the right, on any Payment Date from and after the Permitted
\nPrepayment Date, to obtain (A) the release of an Individual Property from the
\nLien of the Mortgage thereon (and related Loan Documents) and (B) the release of
\nBorrower’s obligations under the Loan Documents with respect to such Individual
\nProperty (other than those expressly stated to survive), upon satisfaction of
\neach of the following conditions:<\/p>\n
(i) Borrower shall provide Lender with written notice thirty (30) days
\nprior to the date (the “Partial Release Date”) on which the proposed release is
\nto occur;<\/p>\n
(ii) No Event of Default shall have occurred and be continuing on the
\nPartial Release Date.<\/p>\n
(iii) Borrower shall have (A) prepaid the Loan in the amount of the
\nRelease Amount for such Individual Property to be released and (B) paid to
\nLender all interest accrued and unpaid with respect to the Loan and any other
\namounts then due and owing to Lender <\/p>\n
26<\/p>\n
pursuant to this Agreement or the other Loan Documents up to and including the
\nPartial Release Date;<\/p>\n
(iv) All payments of principal of, and interest on, the Loan
\ntheretofore, if any, or at such time required to be paid shall have been paid
\nand all other amounts theretofore or at such time required to be paid under the
\nLoan Documents shall have been received by Lender (including, without
\nlimitation, all reasonable out-of-pocket costs and expenses incurred by Lender
\nin connection with such release);<\/p>\n
(v) Borrower shall submit to Lender, not less than twenty (20) days
\nprior to the date of such release, a release of Lien (and related Loan
\nDocuments) for such Individual Property to be released for execution by Lender.
\nSuch release shall be in a form appropriate for each jurisdiction in which the
\nIndividual Property to be released is located and reasonably satisfactory to
\nLender. In addition, Borrower shall provide all other documentation Lender
\nreasonably requires to be delivered by Borrower in connection with such release,
\ntogether with an Officer’s Certificate of the applicable Borrower certifying
\nthat such documentation (A) is in compliance in all material respects with all
\nLegal Requirements, (B) will effect such release in accordance with the terms of
\nthis Agreement, and (C) will not impair or otherwise adversely affect the Liens,
\nsecurity interests and other rights of Lender under the Loan Documents in, to
\nand under any other Property not being released;<\/p>\n
(vi) Borrower shall have delivered an Officer’s Certificate to Lender
\n(A) at least twenty (20) days prior to the date such Individual Property is to
\nbe released from the Lien of the Mortgage thereon (and related Loan Documents)
\nand (B) on the date of such release, certifying in each case that the conditions
\nin this Section have been satisfied (or will be satisfied on the date of such
\nrelease), with detailed calculations indicating the derivation of the amounts
\nthen payable in connection with such release; and<\/p>\n
(vii) Immediately after giving effect to the release, the Debt Service
\nCoverage Ratio with respect to the remaining Properties shall be no less than
\nthe greater of (A) the Debt Service Coverage Ratio as of the date hereof or (b)
\nthe Debt Service Coverage Ratio immediately preceding the release.<\/p>\n
(b) Lender shall, upon the written request and at the expense of
\nBorrower, upon payment in full of all principal and interest on the Loan and all
\nother amounts due and payable under the Loan Documents in accordance with the
\nterms and provisions of the Note and this Loan Agreement, release the Lien of
\nthe Mortgage on each Individual Property not theretofore released.<\/p>\n
Section 2.5 Interest Rate Cap Agreement. (a) Within ten (10) Business
\n —————————
\nDays after notice from Lender that an Interest Rate Cap Event has occurred,
\nBorrower shall obtain, and shall thereafter maintain in effect, an interest rate
\ncap agreement (the “Interest Rate Cap Agreement”), which shall be coterminous
\n —————————
\nwith the Loan and have a notional amount which shall not at any time be less
\nthan the outstanding principal balance of the Loan and which shall at all times
\nhave a strike rate equal to the Strike Price. The notional amount of the
\nInterest Rate Cap Agreement may be reduced from time to time in amounts equal to
\nany prepayment of the principal of the Loan in accordance with Section 2.3
\nhereof.<\/p>\n
27<\/p>\n
(b) Borrower shall collaterally assign to Lender pursuant to a
\nCollateral Assignment of Interest Rate Cap Agreement substantially in the form
\nannexed hereto as Schedule IV, all of its right, title and interest to receive
\n ———–
\nany and all payments under the Interest Rate Cap Agreement (and any related
\nguarantee, if any) and shall deliver to Lender an executed counterpart of such
\nInterest Rate Cap Agreement and notify the Counterparty of such collateral
\nassignment (either in such Interest Rate Cap Agreement or by separate
\ninstrument). At such time as the Loan is repaid in full, all of Lender’s right,
\ntitle and interest in the Interest Rate Cap Agreement shall terminate and Lender
\nshall promptly execute and deliver at Borrower’s sole cost and expense, such
\ndocuments as may be required to evidence Lender’s release of the Interest Rate
\nCap Agreement and to notify the Counterparty of such release.<\/p>\n
(c) Borrower shall comply with all of its obligations under the terms
\nand provisions of the Interest Rate Cap Agreement. All amounts paid by the
\nCounterparty under the Interest Rate Cap Agreement to Borrower or Lender shall
\nbe deposited immediately into the Lockbox Account or if the Lockbox Account is
\nnot then required to be in effect, into such account as specified by Lender.
\nBorrower shall take all actions reasonably requested by Lender to enforce
\nLender’s rights under the Interest Rate Cap Agreement in the event of a default
\nby the Counterparty and shall not waive, amend or otherwise modify any of its
\nrights thereunder.<\/p>\n
(d) In the event of any downgrade, withdrawal or qualification of the
\nrating of the Counterparty below “AAA” by S&P or “Aaa” by Moody’s, Borrower
\nshall replace the Interest Rate Cap Agreement with a Replacement Interest Rate
\nCap Agreement not later than ten (10) Business Days following receipt of notice
\nfrom Lender or Servicer of such downgrade, withdrawal or qualification.<\/p>\n
(e) In the event that Borrower fails to purchase and deliver to Lender
\nthe Interest Rate Cap Agreement or any replacement Interest Rate Cap Agreement
\nas and when required hereunder, Lender may purchase such Interest Rate Cap
\nAgreement and the cost incurred by Lender in purchasing such Interest Rate Cap
\nAgreement shall be paid by Borrower to Lender with interest thereon at the
\nDefault Rate from the date such cost was incurred by Lender until such cost is
\npaid by Borrower to Lender.<\/p>\n
(f) In connection with an Interest Rate Cap Agreement, Borrower shall
\nobtain and deliver to Lender an opinion of counsel from counsel (which counsel
\nmay be in-house counsel for the Counterparty) for the Counterparty (upon which
\nLender and its successors and assigns may rely) which shall provide, in relevant
\npart, that:<\/p>\n
(1) the Counterparty is duly organized, validly existing, and in good
\nstanding under the laws of its jurisdiction of incorporation and has the
\norganizational power and authority to execute and deliver, and to perform its
\nobligations under, the Interest Rate Cap Agreement;<\/p>\n
(2) the execution and delivery of the Interest Rate Cap Agreement by
\nthe Counterparty, and any other agreement which the Counterparty has executed
\nand delivered pursuant thereto, and the performance of its obligations
\nthereunder have been and remain duly authorized by all necessary action and do
\nnot contravene any provision of its certificate of incorporation or by-laws (or
\nequivalent organizational documents) or any law, regulation or contractual
\nrestriction binding on or affecting it or its property;<\/p>\n
28<\/p>\n
(3) all consents, authorizations and approvals required for the
\nexecution and delivery by the Counterparty of the Interest Rate Cap Agreement,
\nand any other agreement which the Counterparty has executed and delivered
\npursuant thereto, and the performance of its obligations thereunder have been
\nobtained and remain in full force and effect, all conditions thereof have been
\nduly complied with, and no other action by, and no notice to or filing with any
\ngovernmental authority or regulatory body is required for such execution,
\ndelivery or performance; and<\/p>\n
(4) the Interest Rate Cap Agreement, and any other agreement which the
\nCounterparty has executed and delivered pursuant thereto, has been duly executed
\nand delivered by the Counterparty and constitutes the legal, valid and binding
\nobligation of the Counterparty, enforceable against the Counterparty in
\naccordance with its terms, subject to applicable bankruptcy, insolvency and
\nsimilar laws affecting creditors’ rights generally, and subject, as to
\nenforceability, to general principles of equity (regardless of whether
\nenforcement is sought in a proceeding in equity or at law) and such other
\nqualifications as are customary in enforceability opinions.<\/p>\n
Section 2.6 Manner of Making Payments; Cash Management.
\n —————————————— <\/p>\n
2.6.1 Deposits into Lockbox Account. Borrower shall cause all Rents
\n —————————–
\nfrom the Properties to be deposited into the Lockbox Account in accordance with
\nthe Cash Management Agreement. Without limitation of the foregoing, Borrower
\nshall, and shall cause Manager to, (a) deliver irrevocable written instructions
\nto all Tenants under Leases to deliver all Rents payable thereunder directly to
\nthe Lockbox Account, and (b) deposit all amounts received by Borrower or Manager
\nconstituting Rents or other revenue of any kind from the Properties into the
\nLockbox Account within one (1) Business Day of receipt thereof. Disbursements
\nfrom the Lockbox Account will be made in accordance with the terms and
\nconditions of this Agreement and the Cash Management Agreement. Lender shall
\nhave sole dominion and control over the Lockbox Account and, except as set forth
\nin the Cash Management Agreement, Borrower shall have no rights to make
\nwithdrawals therefrom.<\/p>\n
2.6.2 Making of Payments. Each payment by Borrower hereunder or under
\n ——————
\nthe Note shall be made in funds settled through the New York Clearing House
\nInterbank Payments System or other funds immediately available to Lender by 2:00
\np.m., New York City time, on the date such payment is due, to Lender by deposit
\nto such account as Lender may designate by written notice to Borrower. Whenever
\nany payment hereunder or under the Note shall be stated to be due on a day which
\nis not a Business Day, such payment shall be made on the first Business Day
\npreceding such scheduled due date.<\/p>\n
2.6.3 Payments Received in the Lockbox Account. Notwithstanding
\n —————————————-
\nanything to the contrary contained in this Agreement or the other Loan
\nDocuments, and provided no Event of Default has occurred and is continuing,
\nBorrower’s obligations with respect to the monthly payment of principal and
\ninterest and amounts due for the Reserve Funds shall be deemed satisfied to the
\nextent sufficient amounts are deposited in the Lockbox Account to satisfy such
\nobligations on the dates each such payment is required, regardless of whether
\nany of such amounts are so applied by Lender.<\/p>\n
29<\/p>\n
2.6.4 No Deductions, etc. All payments made by Borrower hereunder or
\n ——————
\nunder the Note or the other Loan Documents shall be made irrespective of, and
\nwithout any deduction for, any setoff, defense or counterclaims.<\/p>\n
III. CONDITIONS PRECEDENT
\n ——————–<\/p>\n
Section 3.1 Conditions Precedent to Closing.
\n ——————————- <\/p>\n
The obligation of Lender to make the Initial Advance hereunder is
\nsubject to the fulfillment by Borrower or waiver by Lender of the following
\nconditions precedent no later than the Closing Date:<\/p>\n
3.1.1 Representations and Warranties; Compliance with Conditions. The
\n ———————————————————-
\nrepresentations and warranties of Borrower contained in this Agreement and the
\nother Loan Documents shall be true and correct in all material respects on and
\nas of the Closing Date with the same effect as if made on and as of such date,
\nand no Default or an Event of Default shall have occurred and be continuing; and
\nBorrower shall be in compliance in all material respects with all terms and
\nconditions set forth in this Agreement and in each other Loan Document on its
\npart to be observed or performed.<\/p>\n
3.1.2 Loan Agreement and Note. Lender shall have received a copy of
\n ———————–
\nthis Agreement and the Note, in each case, duly executed and delivered on behalf
\nof Borrower.<\/p>\n
3.1.3 Delivery of Loan Documents; Title Insurance; Reports; Leases.
\n ————————————————————<\/p>\n
(a) Mortgages, Assignments of Leases. Lender shall have received from
\n ——————————–
\nBorrower fully executed and acknowledged counterparts of the Mortgages and the
\nAssignments of Leases and evidence that counterparts of the Mortgages and
\nAssignments of Leases have been delivered to the title company for recording, in
\nthe reasonable judgment of Lender, so as to effectively create upon such
\nrecording valid and enforceable Liens upon each Individual Property, of the
\nrequisite priority, in favor of Lender (or such other trustee as may be required
\nor desired under local law), subject only to the Permitted Encumbrances and such
\nother Liens as are permitted pursuant to the Loan Documents. Lender shall have
\nalso received from Borrower fully executed counterparts of each Environmental
\nIndemnity, Cash Management Agreement and each Assignment of Management
\nAgreement, if any.<\/p>\n
(b) Title Insurance. Lender shall have received Title Insurance
\n —————
\nPolicies with respect to each of the Properties issued by a title company
\nacceptable to Lender and dated as of the Closing Date, with reinsurance and
\ndirect access agreements acceptable to Lender. Such Title Insurance Policies
\nshall (i) provide coverage in amounts satisfactory to Lender, (ii) insure Lender
\nthat the relevant Mortgage creates a valid lien on the Individual Property
\nencumbered thereby of the requisite priority, free and clear of all exceptions
\nfrom coverage other than Permitted Encumbrances and standard exceptions and
\nexclusions from coverage (as modified by the terms of any endorsements), (iii)
\ncontain such endorsements and affirmative coverages as Lender may reasonably
\nrequest, and (iv) name Lender as the insured. The Title Insurance Policies shall
\nbe assignable. Lender also shall have received evidence that all premiums in
\nrespect of the Title Insurance Policies have been paid.<\/p>\n
30<\/p>\n
(c) Survey. Lender shall have received a current title survey for each
\n ——
\nIndividual Property, certified to the title company and Lender and their
\nsuccessors and assigns, in form and content satisfactory to Lender and prepared
\nby a professional and properly licensed land surveyor satisfactory to Lender in
\naccordance with the 1999 Minimum Standard Detail Requirements for ALTA\/ACSM Land
\nTitle Surveys. Each survey shall meet the classification of an “Urban Survey”
\nand the following additional items from the list of “Optional Survey
\nResponsibilities and Specifications” (Table A) should be added to each survey:
\n2, 3, 4, 6, 8, 9, 10, 11 and 13. Each such survey shall reflect the same legal
\ndescription contained in the Title Insurance Policies relating to such
\nIndividual Property referred to in clause (b) above and shall include, among
\nother things, a metes and bounds description of the real property comprising
\npart of such Individual Property reasonably satisfactory to Lender. The
\nsurveyor’s seal shall be affixed to each survey and the surveyor shall provide a
\ncertification for each survey in form and substance acceptable to Lender.<\/p>\n
(d) Insurance. Lender shall have received valid certificates of
\n ———
\ninsurance for the policies of insurance required hereunder, satisfactory to
\nLender in its sole discretion, and evidence of the payment of all premiums
\npayable for the existing policy period.<\/p>\n
(e) Environmental Reports. Lender shall have received an environmental
\n ———————
\nreport in respect of each Individual Property satisfactory to Lender.<\/p>\n
(f) Zoning. With respect to each Individual Property, Lender shall
\n ——
\nhave received, at Lender’s option, (i) letters or other evidence with respect to
\neach Individual Property from the appropriate municipal authorities (or other
\nPersons) concerning applicable zoning and building laws, (ii) an ALTA 3.1 zoning
\nendorsement for the applicable Title Insurance Policy or (iii) a zoning opinion
\nletter, in each case in substance reasonably satisfactory to Lender.<\/p>\n
(g) Encumbrances. Borrower shall have taken or caused to be taken such
\n ————
\nactions in such a manner so that Lender has a valid and perfected first Lien as
\nof the Closing Date with respect to each Mortgage on the applicable Individual
\nProperty, subject only to applicable Permitted Encumbrances and such other Liens
\nas are permitted pursuant to the Loan Documents, and Lender shall have received
\nsatisfactory evidence thereof.<\/p>\n
3.1.4 Related Documents. Each additional document not specifically
\n —————–
\nreferenced herein, but relating to the transactions contemplated herein, shall
\nhave been duly authorized, executed and delivered by all parties thereto and
\nLender shall have received and approved certified copies thereof.<\/p>\n
3.1.5 Delivery of Organizational Documents. On or before the Closing
\n ————————————
\nDate, Borrower shall deliver or cause to be delivered to Lender copies certified
\nby Borrower of all organizational documentation related to Borrower and\/or the
\nformation, structure, existence, good standing and\/or qualification to do
\nbusiness, as Lender may request in its sole discretion, including, without
\nlimitation, good standing certificates, qualifications to do business in the
\nappropriate jurisdictions, resolutions authorizing the entering into of the Loan
\nand incumbency certificates as may be requested by Lender.<\/p>\n
31<\/p>\n
3.1.6 Opinions of Borrower’s Counsel. Lender shall have received
\n ——————————
\nopinions of Borrower’s counsel (a) with respect to non-consolidation, and (b)
\nwith respect to due execution, authority, enforceability of the Loan Documents
\nand such other matters as Lender may require, all such opinions in form, scope
\nand substance satisfactory to Lender and Lender’s counsel in their sole
\ndiscretion.<\/p>\n
3.1.7 Budgets. Borrower shall have delivered, and Lender shall have
\n ——-
\napproved, the Annual Budget for the current Fiscal Year.<\/p>\n
3.1.8 Basic Carrying Costs. Borrower shall have paid all Basic
\n ——————–
\nCarrying Costs relating to the Properties which are in arrears, including,
\nwithout limitation, (a) accrued but unpaid Insurance Premiums relating to the
\nProperties, (b) currently due Taxes (including any in arrears) relating to the
\nProperties, and (c) currently due Other Charges relating to the Properties,
\nwhich amounts shall be funded with proceeds of the Loan.<\/p>\n
3.1.9 Completion of Proceedings. All corporate and other proceedings
\n ————————-
\ntaken or to be taken in connection with the transactions contemplated by this
\nAgreement and other Loan Documents and all documents incidental thereto shall be
\nsatisfactory in form and substance to Lender, and Lender shall have received all
\nsuch counterpart originals or certified copies of such documents as Lender may
\nreasonably request.<\/p>\n
3.1.10 Payments. All payments, deposits or escrows required to be made
\n ——–
\nor established by Borrower under this Agreement, the Note and the other Loan
\nDocuments on or before the Closing Date shall have been paid.<\/p>\n
3.1.11 Loan Fee. Lender shall have received payment of the Loan Fee
\n ——–
\nfrom or on behalf of Borrower.<\/p>\n
3.1.12 Tenant Estoppels. Lender shall have received executed tenant
\n —————-
\nestoppel letters, which shall be in form and substance satisfactory to Lender,
\nfrom Exodus Communications with respect to each of the Master Leases.<\/p>\n
3.1.13 Transaction Costs. Borrower shall have paid or reimbursed
\n —————–
\nLender for all title insurance premiums, recording and filing fees, costs of
\nenvironmental reports, Physical Conditions Reports, appraisals and other
\nreports, the fees and costs of Lender’s counsel and all other third party
\nout-of-pocket expenses incurred in connection with the origination of the Loan.<\/p>\n
3.1.14 Material Adverse Change. There shall have been no material
\n ———————–
\nadverse change in the financial condition or business condition of Borrower or
\nthe Properties since the date of the most recent financial statements delivered
\nto Lender. The income and expenses of the Properties, the occupancy leases
\nthereof, and all other features of the transaction shall be as represented to
\nLender without material adverse change. Neither Borrower nor any of its
\nconstituent Persons shall be the subject of any bankruptcy, reorganization, or
\ninsolvency proceeding.<\/p>\n
3.1.15 Leases and Rent Roll. Lender shall have received copies of all
\n ——————–
\ntenant leases (including, without limitation, the Master Leases) and certified
\ncopies of the Master <\/p>\n
32<\/p>\n
Leases and any other tenant leases as requested by Lender. Lender shall have
\nreceived a current certified rent roll of the Properties, reasonably
\nsatisfactory in form and substance to Lender.<\/p>\n
3.1.16 Subordination and Attornment. Lender shall have received
\n —————————-
\nappropriate instruments acceptable to Lender subordinating all of the Leases
\naffecting the Properties designated by Lender to the applicable Mortgage.
\nLender shall have received an agreement to attorn to Lender satisfactory to
\nLender from any tenant under a Lease that does not provide for such attornment
\nby its terms.<\/p>\n
3.1.17 Tax Lot. Lender shall have received evidence that each
\n ——-
\nIndividual Property constitutes one (1) or more separate tax lots, which
\nevidence shall be reasonably satisfactory in form and substance to Lender.<\/p>\n
3.1.18 Physical Conditions Report. Lender shall have received a
\n ————————–
\nPhysical Conditions Report with respect to each Individual Property, which
\nreports shall be reasonably satisfactory in form and substance to Lender.<\/p>\n
3.1.19 Intentionally Omitted.
\n ———————<\/p>\n
3.1.20 Appraisal. Lender shall have received an appraisal of each
\n ———
\nIndividual Property, which shall be satisfactory in form and substance to
\nLender.<\/p>\n
3.1.21 Financial Statements. Lender shall have received a balance
\n ——————–
\nsheet with respect to each Individual Property for the two most recent Fiscal
\nYears and statements of income and statements of cash flows with respect to each
\nIndividual Property for the three most recent Fiscal Years, each in form and
\nsubstance satisfactory to Lender.<\/p>\n
3.1.22 Further Documents. Lender or its counsel shall have received
\n —————–
\nsuch other and further approvals, opinions, documents and information as Lender
\nor its counsel may have reasonably requested, including the Loan Documents in
\nform and substance satisfactory to Lender and its counsel.<\/p>\n
Section 3.2 Conditions Precedent to Subsequent Advance.
\n —————————————— <\/p>\n
The obligation of Lender to make the Subsequent Advance hereunder is
\nsubject to the fulfillment by Borrower or waiver by Lender of the following
\nconditions precedent no later than the Subsequent Advance Closing Date with
\nrespect to such Subsequent Advance:<\/p>\n
3.2.1 Subsequent Advance Request. Lender shall have received a
\n ————————–
\nSubsequent Advance Request in accordance with Section 2.1.5(b).
\n —————-
\n 3.2.2 Representations and Warranties; Defaults. The representations
\n —————————————-
\nand warranties of Borrower contained in this Agreement and the other Loan
\nDocuments shall be true and correct in all material respects on and as of the
\nSubsequent Advance Closing Date with respect to Borrower, the Properties and
\neach Individual Property to be encumbered with a Mortgage in connection with
\nsuch Subsequent Advance with the same effect as if made on and as of such date,
\nno Default or Event of Default shall have occurred and be continuing and
\nBorrower shall be in compliance in all material respects with all terms and
\nconditions set forth in <\/p>\n
33<\/p>\n
this Agreement and in each Loan Document on Borrower’s part to be observed or
\nperformed. Lender shall have received an Officer’s Certificate confirming the
\nforegoing and any other representations and warranties with respect to Borrower,
\nthe Properties, any Individual Property to be encumbered with a Mortgage in
\nconnection with such Subsequent Advance or the Loan as Lender may require, such
\ncertificate to be in form and substance satisfactory to Lender.<\/p>\n
3.2.3 Additional Loan Documents. Borrower shall have acquired title to
\n ————————-
\nany Individual Property to be added as security for the Loan in connection with
\nsuch Subsequent Advance and Borrower shall have executed, acknowledged and
\ndelivered to Lender (i) a Mortgage, an Assignment of Leases and one or more UCC-
\n1 Financing Statements with respect to each such Individual Property and
\nevidence that counterparts of such Mortgage, Assignment of Leases and UCC-1
\nFinancing Statements have been delivered to the title company for recording or
\nfiling, as applicable, so as to effectively create upon such recording valid and
\nenforceable Liens upon such Individual Property, of the requisite priority, in
\nfavor of Lender (or such other trustee as may be desired under local law),
\nsubject only to the Permitted Encumbrances and such other Liens as are permitted
\npursuant to the Loan Documents and (ii) any other additional document that
\nLender may reasonably require with respect to the addition of each Individual
\nProperty as security for the Loan in connection with such Subsequent Advance.<\/p>\n
3.2.4 Title Insurance. Lender shall have received (i) (A) any
\n —————
\nendorsement to, or other modifications of, each Title Insurance Policy insuring
\nthe Lien of an existing Mortgage delivered in connection with any prior advance
\nof the proceeds of the Loan as Lender determines is necessary or advisable to
\nensure the continued priority of the Lien of such existing Mortgage as amended
\nor modified in connection with such Subsequent Advance and (B) any “tie-in” or
\nsimilar endorsement to each such Title Insurance Policy available with respect
\nto any Title Insurance Policy insuring the Lien of any Mortgage encumbering an
\nIndividual Property delivered to Lender in connection with such Subsequent
\nAdvance and (ii) a Title Insurance Policy (or a marked, signed and redated
\ncommitment to issue such Title Insurance Policy) insuring the Lien of any
\nMortgage encumbering an Individual Property delivered to Lender in connection
\nwith such Subsequent Advance, issued by a title company acceptable to Lender and
\ndated as of the Subsequent Advance Closing Date, with reinsurance and direct
\naccess agreements acceptable to Lender. Such Title Insurance Policies shall (1)
\nprovide coverage in an amount equal to the amount of the Release Amount of the
\nIndividual Property securing the Subsequent Advance if the tie-in or similar
\nendorsement described above is available, or, if such endorsement is not
\navailable, in an amount equal to one hundred twenty-five percent (125%) of the
\nRelease Amount of such Individual Property, (2) insure Lender that the relevant
\nMortgage creates a valid lien on such Individual Property encumbered thereby of
\nthe requisite priority, free and clear of all exceptions from coverage other
\nthan Permitted Encumbrances and standard exceptions and exclusions from coverage
\n(as modified by the terms of any endorsements), (3) contain such endorsements
\nand affirmative coverages as Lender may reasonably request, and (4) name Lender
\nas the insured. Such Title Insurance Policies shall be assignable. Lender also
\nshall have received evidence that all premiums in respect of such endorsements,
\nmodifications and Title Insurance Policies have been paid.<\/p>\n
3.2.5 Survey. Lender shall have received a current title survey for
\n ——
\neach Individual Property to be encumbered by a Mortgage in connection with such
\nSubsequent Advance, certified to the title company and Lender and their
\nsuccessors and assigns, in form and <\/p>\n
34<\/p>\n
substance satisfactory to Lender and prepared by a professional and properly
\nlicensed land surveyor satisfactory to Lender in accordance with the 1992
\nMinimum Standard Detail Requirements for ALTA\/ACSM Land Title Surveys. The
\nSurvey shall meet the classification of an “Urban Survey” and the following
\nadditional items from the list of “Optional Survey Responsibilities and
\nSpecifications” (Table A) shall be added to each survey: 2, 3, 4, 6, 8, 9, 10,
\n11 and 13. Such survey shall reflect the same legal description contained in the
\nTitle Insurance Policy relating to such Individual Property and shall include,
\namong other things, a metes and bounds description of the real property
\ncomprising part of such Individual Property reasonably satisfactory to Lender.
\nThe surveyor’s seal shall be affixed to each survey and the surveyor shall
\nprovide a certification for each survey in form and substance acceptable to
\nLender.<\/p>\n
3.2.6 Related Documents. Each additional document not specifically
\n —————–
\nreferenced in this Section 3.2, but relating to the transactions contemplated
\n ———–
\nherein, shall have been duly authorized, executed and delivered by all parties
\nthereto and Lender shall have received and approved certified copies thereof.<\/p>\n
3.2.7 Opinions of Borrower’s Counsel. Lender shall have received
\n ——————————
\nopinions of Borrower’s counsel, which counsel shall be reasonably acceptable to
\nLender, with respect to due execution, authority, enforceability of any of the
\ndocuments described in Section 3.2.3 above and such other matters as Lender may
\n ————-
\nreasonably require in connection with the Subsequent Advance, all such updates
\nand opinions in form, scope and substance customary and satisfactory to Lender
\nin its reasonable discretion and, if required in connection with a proposed sale
\nor assignment by Lender of all or an portion of the Loan, shall address such
\nmatters as are reasonably customary in the secondary mortgage or commercial
\nmortgage-backed securities market.<\/p>\n
3.2.8 Escrows. Borrower shall make such additional deposits to the Tax
\n ——-
\nand Insurance Escrow Fund and the Replacement Reserve Fund as required pursuant
\nto the terms and provisions of this Agreement with respect to each Individual
\nProperty to be encumbered by a Mortgage in connection with such Subsequent
\nAdvance, which amounts may be funded from the proceeds of such Subsequent
\nAdvance.<\/p>\n
3.2.9 Completion of Proceedings. All corporate and other proceedings
\n ————————-
\ntaken or to be taken in connection with such Subsequent Advance contemplated by
\nthis Agreement and other Loan Documents and all documents incidental thereto
\nshall be satisfactory in form and substance to Lender, and Lender shall have
\nreceived all such counterpart originals or certified copies of such documents as
\nLender may reasonably request.<\/p>\n
3.2.10 Payments. All payments, deposits or escrows required to be made
\n ——–
\nor established by Borrower under this Agreement, the Note and the other Loan
\nDocuments on or before the Subsequent Advance Closing Date with respect to such
\nSubsequent Advance shall have been paid.<\/p>\n
3.2.11 Utility Services and Parking. Lender shall have received
\n —————————-
\nevidence satisfactory to Lender that each Individual Property to be encumbered
\nwith a Mortgage in connection with such Subsequent Advance is served by all
\npublic utilities and contains adequate parking necessary or convenient for the
\nfull use and enjoyment of such Individual Property.<\/p>\n
35<\/p>\n
3.2.12 Underlying Asset Documentation. Lender shall have received a
\n ——————————
\ncopy of each deed conveying each Individual Property to be encumbered with a
\nMortgage in connection with such Subsequent Advance to Borrower, each of which
\nshall be satisfactory in form and substance to Lender in its sole discretion.<\/p>\n
3.2.13 Estoppel Certificates. Borrower shall have delivered to Lender
\n ———————
\nan estoppel certificate, which shall be in form and substance satisfactory to
\nLender, executed by Exodus Communications with respect to the Master Lease at
\neach Individual Property to be encumbered with a Mortgage in connection with
\nsuch Subsequent Advance.<\/p>\n
3.2.14 Subordination and Attornment. Lender shall have received
\n —————————-
\nappropriate instruments acceptable to Lender subordinating all of the Leases
\naffecting each Individual Property to be encumbered with a Mortgage in
\nconnection with such Subsequent Advance designated by Lender to the related
\nMortgage. Lender shall have received an agreement to attorn to Lender
\nsatisfactory to Lender from any tenant under a Lease that does not provide for
\nsuch attornment by its terms.<\/p>\n
3.2.15 Tax Lot. Lender shall have received evidence that each
\n ——-
\nIndividual Property to be encumbered with a Mortgage in connection with such
\nSubsequent Advance constitutes a separate tax lot, which evidence shall be
\nsatisfactory in form and substance to Lender.<\/p>\n
3.2.16 Intentionally Omitted.
\n ———————<\/p>\n
3.2.17 Additional Documentation. Lender shall have received any
\n ————————
\nadditional reports, documentation, site inspections, title insurance, property,
\nCasualty and liability insurance reviews, surveys and other due diligence items
\ncustomarily requested by Lender in connection with the origination of mortgage
\nloans comparable to the Loan and any other information that Lender may deem
\nappropriate in order to comply with Lender’s due diligence procedures with
\nrespect to such Subsequent Advance and each Individual Property to be encumbered
\nwith a Mortgage in connection with such Subsequent Advance.<\/p>\n
3.2.18 Material Adverse Change. The income and expenses of the
\n ———————–
\nProperties and each Individual Property to be encumbered with a Mortgage in
\nconnection with such Subsequent Advance, the financial statements of Borrower,
\nthe Leases and rent roll with respect to the Properties and each such Individual
\nProperty and all other features of the Loan and such Subsequent Advance shall be
\nas represented to Lender and all documents and communications delivered to
\nLender in order to induce Lender to make the Loan or such Subsequent Advance
\nshall be without material change and Lender shall have received an Officer’s
\nCertificate as to the foregoing. No portion of the Properties or Individual
\nProperty to be encumbered with a Mortgage in connection with such Subsequent
\nAdvance shall have been damaged and not repaired to Lender’s satisfaction unless
\na reserve or other provision for repair of such damage satisfactory to Lender
\nhas been established or made. No portion of any Individual Property shall have
\nbeen taken in condemnation or other similar proceeding. No condemnation or
\nother similar proceeding shall be pending with respect to the Properties or the
\nIndividual Property to be encumbered with a Mortgage in connection with such
\nSubsequent Advance. No structural change in the physical condition of any
\nportion of the Properties or the Individual Property to be encumbered with a
\nMortgage in connection with such Subsequent Advance shall have occurred since
\nthe date of the related structural engineering report delivered to Lender. No
\nBorrower, general or limited partners or members of Borrower, Affiliates of
\nBorrower, or tenants under any Leases deemed by Lender to be material to the
\nsecurity for such Subsequent Advance or the Loan or guarantors of any such
\nLeases shall be the subject of any bankruptcy, reorganization or insolvency
\nproceeding. No Affiliate of Borrower shall be in default under any loan or
\nfinancing provided to such Affiliate. No asbestos or other hazardous substances
\nshall have been discovered at the Properties or the Individual Property to be<\/p>\n
36<\/p>\n
encumbered with a Mortgage in connection with such Subsequent Advance other than
\nas disclosed in the related Phase I environmental report delivered to Lender
\nand, if applicable, Phase II environmental report delivered to Lender.<\/p>\n
IV. REPRESENTATIONS AND WARRANTIES
\n ——————————<\/p>\n
Section 4.1 Borrower Representations.
\n ———————— <\/p>\n
Borrower represents and warrants as of the date hereof and as of the
\nClosing Date that:<\/p>\n
4.1.1 Organization. Each of California Borrower and Texas Borrower has
\n ————
\nbeen duly organized and is validly existing and in good standing with requisite
\npower and authority to own its respective properties and to transact the
\nbusinesses in which it is now engaged. Each of California Borrower and Texas
\nBorrower is duly qualified to do business and is in good standing in each
\njurisdiction where it is required to be so qualified in connection with its
\nrespective properties, businesses and operations. Each of California Borrower
\nand Texas Borrower possesses all rights, licenses, permits and authorizations,
\ngovernmental or otherwise, necessary to entitle it to own its respective
\nproperties and to transact the businesses in which it is now engaged, and the
\nsole business of California Borrower and Texas Borrower is the ownership,
\nmanagement and operation of its respective Properties.<\/p>\n
4.1.2 Proceedings. Borrower has taken all necessary action to
\n ———–
\nauthorize the execution, delivery and performance of this Agreement and the
\nother Loan Documents. This Agreement and such other Loan Documents have been
\nduly executed and delivered by or on behalf of Borrower and constitute legal,
\nvalid and binding obligations of Borrower enforceable against Borrower in
\naccordance with their respective terms, subject only to applicable bankruptcy,
\ninsolvency and similar laws affecting rights of creditors generally, and
\nsubject, as to enforceability, to general principles of equity (regardless of
\nwhether enforcement is sought in a proceeding in equity or at law).<\/p>\n
4.1.3 No Conflicts. The execution, delivery and performance of this
\n ————
\nAgreement and the other Loan Documents by Borrower will not conflict with or
\nresult in a breach of any of the terms or provisions of, or constitute a default
\nunder, or result in the creation or imposition of any lien, charge or
\nencumbrance (other than pursuant to the Loan Documents) upon any of the property
\nor assets of Borrower pursuant to the terms of any indenture, mortgage, deed of
\ntrust, loan agreement, partnership agreement or other agreement or instrument to
\nwhich Borrower is a party or by which any of Borrower’s property or assets is
\nsubject, nor will such action result in any violation of the provisions of any
\nstatute or any order, rule or regulation of any court or <\/p>\n
37<\/p>\n
governmental agency or body having jurisdiction over Borrower or any of
\nBorrower’s properties or assets, and any consent, approval, authorization,
\norder, registration or qualification of or with any court or any such regulatory
\nauthority or other governmental agency or body required for the execution,
\ndelivery and performance by Borrower of this Agreement or any other Loan
\nDocuments has been obtained and is in full force and effect.<\/p>\n
4.1.4 Litigation. There are no actions, suits or proceedings at law or
\n ———-
\nin equity by or before any Governmental Authority or other agency now pending or
\nthreatened against or affecting Borrower or any Individual Property, which
\nactions, suits or proceedings, if determined against Borrower or any Individual
\nProperty, might materially adversely affect the condition (financial or
\notherwise) or business of Borrower or the condition or ownership of any
\nIndividual Property.<\/p>\n
4.1.5 Agreements. Borrower is not a party to any agreement or
\n ———-
\ninstrument or subject to any restriction which might materially and adversely
\naffect Borrower or any Individual Property, or Borrower’s business, properties
\nor assets, operations or condition, financial or otherwise. Borrower is not in
\ndefault in any material respect in the performance, observance or fulfillment of
\nany of the obligations, covenants or conditions contained in any agreement or
\ninstrument to which it is a party or by which Borrower or any of the Properties
\nare bound. Borrower has no material financial obligation under any indenture,
\nmortgage, deed of trust, loan agreement or other agreement or instrument to
\nwhich Borrower is a party or by which Borrower or the Properties are otherwise
\nbound, other than (a) obligations incurred in the ordinary course of the
\noperation of the Properties and (b) obligations under the Loan Documents.<\/p>\n
4.1.6 Title. California Borrower has good, marketable and insurable
\n —–
\nfee simple title to the real property comprising part of each Individual
\nProperty located at 2401 and 2403 Walsh Avenue, Santa Clara, California and good
\ntitle to the balance of such Individual Property, free and clear of all Liens
\nwhatsoever except the Permitted Encumbrances, such other Liens as are permitted
\npursuant to the Loan Documents and the Liens created by the Loan Documents.
\nTexas Borrower has good, marketable and insurable fee simple title to the real
\nproperty comprising part of the Individual Property located at 1418 Park Center
\nDrive, Austin, Texas and good title to the balance of such Individual Property,
\nfree and clear of all Liens whatsoever except the Permitted Encumbrances, such
\nother Liens as are permitted pursuant to the Loan Documents and the Liens
\ncreated by the Loan Documents. Each Mortgage, when properly recorded in the
\nappropriate records, together with any Uniform Commercial Code financing
\nstatements required to be filed in connection therewith, will create (a) a
\nvalid, perfected lien on the applicable Individual Property, subject only to
\nPermitted Encumbrances and the Liens created by the Loan Documents and (b)
\nperfected security interests in and to, and perfected collateral assignments of,
\nall personalty (including the Leases), all in accordance with the terms thereof,
\nin each case subject only to any applicable Permitted Encumbrances, such other
\nLiens as are permitted pursuant to the Loan Documents and the Liens created by
\nthe Loan Documents. There are no claims for payment for work, labor or
\nmaterials affecting the Properties which are or may become a lien prior to, or
\nof equal priority with, the Liens created by the Loan Documents.<\/p>\n
4.1.7 No Bankruptcy Filing. Neither Borrower, Exodus Communications
\n ——————–
\nnor any of their constituent Persons are contemplating either the filing of a
\npetition by it under any <\/p>\n
38<\/p>\n
state or federal bankruptcy or insolvency laws or the liquidation of all or a
\nmajor portion of Borrower’s or Exodus Communications’ assets or property, and
\nBorrower has no knowledge of any Person contemplating the filing of any such
\npetition against it, Exodus Communications or such constituent Persons.<\/p>\n
4.1.8 Full and Accurate Disclosure. No statement of fact made by
\n —————————-
\nBorrower in this Agreement or in any of the other Loan Documents contains any
\nuntrue statement of a material fact or omits to state any material fact
\nnecessary to make statements contained herein or therein not misleading. There
\nis no material fact presently known to Borrower which has not been disclosed to
\nLender which adversely affects, nor as far as Borrower can foresee, might
\nadversely affect, any Individual Property or the business, operations or
\ncondition (financial or otherwise) of Borrower.<\/p>\n
4.1.9 No Plan Assets. Borrower is not an “employee benefit plan,” as
\n ————–
\ndefined in Section 3(3) of ERISA, subject to Title I of ERISA, and none of the
\nassets of Borrower constitutes or will constitute “plan assets” of one or more
\nsuch plans within the meaning of 29 C.F.R. Section 2510.3-101. In addition, (a)
\nBorrower is not a “governmental plan” within the meaning of Section 3(32) of
\nERISA and (b) transactions by or with Borrower are not subject to state statutes
\nregulating investment of, and fiduciary obligations with respect to,
\ngovernmental plans similar to the provisions of Section 406 of ERISA or Section
\n4975 of the Code currently in effect, which prohibit or otherwise restrict the
\ntransactions contemplated by this Loan Agreement.<\/p>\n
4.1.10 Compliance. Borrower and the Properties and the use thereof
\n ———-
\ncomply in all material respects with all applicable Legal Requirements,
\nincluding, without limitation, building and zoning ordinances and codes.
\nBorrower is not in default or violation of any order, writ, injunction, decree
\nor demand of any Governmental Authority. There has not been committed by
\nBorrower or, to the best of Borrower’s knowledge, any other Person in occupancy
\nof or involved with the operation or use of the Properties any act or omission
\naffording the federal government or any other Governmental Authority the right
\nof forfeiture as against any Individual Property or any part thereof or any
\nmonies paid in performance of Borrower’s obligations under any of the Loan
\nDocuments.<\/p>\n
4.1.11 Financial Information. All financial data, including, without
\n ———————
\nlimitation, the statements of cash flow and income and operating expense, that
\nhave been delivered to Lender in respect of the Properties (i) are true,
\ncomplete and correct in all material respects, (ii) accurately represent the
\nfinancial condition of the Properties as of the date of such reports, and (iii)
\nto the extent prepared or audited by an independent certified public accounting
\nfirm, have been prepared in accordance with GAAP throughout the periods covered,
\nexcept as disclosed therein. Borrower does not have any contingent liabilities,
\nliabilities for taxes, unusual forward or long-term commitments or unrealized or
\nanticipated losses from any unfavorable commitments that are known to Borrower
\nand reasonably likely to have a materially adverse effect on any Individual
\nProperty or the operation thereof, except as referred to or reflected in said
\nfinancial statements. Since the date of such financial statements, there has
\nbeen no materially adverse change in the financial condition, operations or
\nbusiness of Borrower from that set forth in said financial statements.<\/p>\n
39<\/p>\n
4.1.12 Condemnation. No Condemnation or other proceeding has been
\n ————
\ncommenced or, to Borrower’s best knowledge, is contemplated with respect to all
\nor any portion of any Individual Property or for the relocation of roadways
\nproviding access to any Individual Property.<\/p>\n
4.1.13 Federal Reserve Regulations. No part of the proceeds of the
\n —————————
\nLoan will be used for the purpose of purchasing or acquiring any “margin stock”
\nwithin the meaning of Regulation U of the Board of Governors of the Federal
\nReserve System or for any other purpose which would be inconsistent with such
\nRegulation U or any other Regulations of such Board of Governors, or for any
\npurposes prohibited by Legal Requirements or by the terms and conditions of this
\nAgreement or the other Loan Documents.<\/p>\n
4.1.14 Utilities and Public Access. Each Individual Property has
\n —————————
\nrights of access to public ways and is served by water, sewer, sanitary sewer
\nand storm drain facilities adequate to service such Individual Property for its
\nrespective intended uses. All public utilities necessary or convenient to the
\nfull use and enjoyment of each Individual Property are located either in the
\npublic right-of-way abutting such Individual Property (which are connected so as
\nto serve such Individual Property without passing over other property) or in
\nrecorded easements serving such Individual Property and such easements are set
\nforth in and insured by the Title Insurance Policies. All roads necessary for
\nthe use of each Individual Property for its current purposes have been completed
\nand dedicated to public use and accepted by all Governmental Authorities.<\/p>\n
4.1.15 Not a Foreign Person. Neither California Borrower nor Texas
\n ——————–
\nBorrower is a “foreign person” within the meaning of (S)1445(f)(3) of the Code.<\/p>\n
4.1.16 Separate Lots. Each Individual Property is comprised of one (1)
\n ————-
\nor more parcels which constitute a separate tax lot or lots and does not
\nconstitute a portion of any other tax lot not a part of such Individual
\nProperty.<\/p>\n
4.1.17 Assessments. There are no pending or, to the best of Borrower’s
\n ———–
\nknowledge, proposed special or other assessments for public improvements or
\notherwise affecting any Individual Property, nor are there any contemplated
\nimprovements to any Individual Property that may result in such special or other
\nassessments.<\/p>\n
4.1.18 Enforceability. The Loan Documents are not subject to any right
\n ————–
\nof rescission, set-off, counterclaim or defense by Borrower, including the
\ndefense of usury, nor would the operation of any of the terms of the Loan
\nDocuments, or the exercise of any right thereunder, render the Loan Documents
\nunenforceable, and Borrower has not asserted any right of rescission, set-off,
\ncounterclaim or defense with respect thereto.<\/p>\n
4.1.19 No Prior Assignment. There are no prior assignments of the
\n ——————-
\nLeases or any portion of the Rents due and payable or to become due and payable
\nwhich are presently outstanding.<\/p>\n
4.1.20 Insurance. Borrower has obtained and has delivered to Lender
\n ———
\ncertified copies of all insurance policies reflecting the insurance coverages,
\namounts and other requirements set forth in this Agreement. No claims have been
\nmade under any such policy, and <\/p>\n
40<\/p>\n
no Person, including Borrower, has done, by act or omission, anything which
\nwould impair the coverage of any such policy.<\/p>\n
4.1.21 Use of Properties. Each Individual Property is used exclusively
\n —————–
\nas a data center and appurtenant and related uses.<\/p>\n
4.1.22 Certificates of Occupancy; Licenses. All certifications,
\n ———————————–
\npermits, licenses and approvals, including, without limitation, certificates of
\ncompletion and occupancy permits required for the current legal use, occupancy
\nand operation of each Individual Property (collectively, the “Licenses”), have
\nbeen obtained and are in full force and effect. Borrower shall keep and
\nmaintain all Licenses. The use being made of each Individual Property is in
\nconformity with the certificate of occupancy issued for such Individual
\nProperty.<\/p>\n
4.1.23 Flood Zone. None of the Improvements on any Individual Property
\n ———-
\nare located in an area as identified by the Federal Emergency Management Agency
\nas an area having special flood hazards.<\/p>\n
4.1.24 Physical Condition. To the best of Borrower’s knowledge, each
\n ——————
\nIndividual Property, including, without limitation, all buildings, improvements,
\nparking facilities, sidewalks, storm drainage systems, roofs, plumbing systems,
\nHVAC systems, fire protection systems, electrical systems, equipment, elevators,
\nexterior sidings and doors, landscaping, irrigation systems and all structural
\ncomponents, are in good condition, order and repair in all material respects;
\nthere exists no structural or other material defects or damages in any
\nIndividual Property, whether latent or otherwise, and Borrower has not received
\nnotice from any insurance company or bonding company of any defects or
\ninadequacies in any Individual Property, or any part thereof, which would
\nadversely affect the insurability of the same or cause the imposition of
\nextraordinary premiums or charges thereon or of any termination or threatened
\ntermination of any policy of insurance or bond.<\/p>\n
4.1.25 Boundaries. All of the improvements which were included in
\n ———-
\ndetermining the appraised value of each Individual Property lie wholly within
\nthe boundaries and building restriction lines of such Individual Property, and
\nno improvements on adjoining properties encroach upon such Individual Property,
\nand no easements or other encumbrances upon the applicable Individual Property
\nencroach upon any of the improvements, so as to affect the value or
\nmarketability of the applicable Individual Property except those which are
\ninsured against by title insurance.<\/p>\n
4.1.26 Leases. The Properties are not subject to any Leases other than
\n ——
\nthe Leases described in Schedule II attached hereto. No Person has any
\n ———–
\npossessory interest in any Individual Property or right to occupy the same
\nexcept under and pursuant to the provisions of the Leases. The current Leases
\nare in full force and effect and there are no defaults thereunder by either
\nparty and there are no conditions that, with the passage of time or the giving
\nof notice, or both, would constitute defaults thereunder. No Rent (including
\nsecurity deposits) has been paid more than one (1) month in advance of its due
\ndate. All work to be performed by Borrower under each Lease has been performed
\nas required and has been accepted by the applicable tenant, and any payments,
\nfree rent, partial rent, rebate of rent or other payments, credits, allowances
\nor abatements required to be given by Borrower to any tenant has already been
\nreceived by such <\/p>\n
41<\/p>\n
tenant. There has been no prior sale, transfer or assignment, hypothecation or
\npledge of any Lease or of the Rents received therein. No tenant listed on
\nSchedule II has assigned its Lease or sublet all or any portion of the premises
\n———–
\ndemised thereby, no such tenant holds its leased premises under assignment or
\nsublease, nor does anyone except such tenant and its employees occupy such
\nleased premises. No tenant under any Lease has a right or option pursuant to
\nsuch Lease or otherwise to purchase all or any part of the Properties. No tenant
\nunder any Lease has any right or option for additional space in the
\nImprovements. No hazardous wastes or toxic substances, as defined by applicable
\nfederal, state or local statutes, rules and regulations, have been disposed,
\nstored or treated by any tenant under any Lease on or about the leased premises
\nnor does Borrower have any knowledge of any tenant’s intention to use its leased
\npremises for any activity which, directly or indirectly, involves the use,
\ngeneration, treatment, storage, disposal or transportation of any petroleum
\nproduct or any toxic or hazardous chemical, material, substance or waste, except
\nin such amounts as may be permitted and maintained in accordance with all
\napplicable Legal Requirements.<\/p>\n
4.1.27 Survey. The Survey for each Individual Property delivered to
\n ——
\nLender in connection with this Agreement has been prepared in accordance with
\nthe provisions of Section 3.1.3(c) hereof, and does not fail to reflect any
\nmaterial matter affecting such Individual Property or the title thereto.<\/p>\n
4.1.28 Loan to Value. The maximum principal amount of the Loan does
\n ————-
\nnot exceed one hundred twenty-five percent (125%) of the fair market value of
\nthe Properties.<\/p>\n
4.1.29 Filing and Recording Taxes. All transfer taxes, deed stamps,
\n ————————–
\nintangible taxes or other amounts in the nature of transfer taxes required to be
\npaid by any Person under applicable Legal Requirements currently in effect in
\nconnection with the transfer of the Properties to Borrower have been paid. All
\nmortgage, mortgage recording, stamp, intangible or other similar tax required to
\nbe paid by any Person under applicable Legal Requirements currently in effect in
\nconnection with the execution, delivery, recordation, filing, registration,
\nperfection or enforcement of any of the Loan Documents, including, without
\nlimitation, the Mortgages, have been paid, and, under current Legal
\nRequirements, each of the Mortgages is enforceable in accordance with their
\nrespective terms by Lender (or any subsequent holder thereof).<\/p>\n
4.1.30 Single Purpose Entity\/Separateness. Borrower represents,
\n ———————————-
\nwarrants and covenants as follows:<\/p>\n
(a) The purpose for which Borrower is organized is and shall be
\nlimited solely to (i) owning, operating, leasing, selling, mortgaging,
\nfinancing, refinancing and maintaining the Properties, (ii) entering into this
\nLoan Agreement with Lender, (iii) refinancing the Properties in connection with
\na permitted repayment of the Loan and (iv) transacting any and all lawful
\nbusiness for which a Borrower may be organized under its constitutive law that
\nis incident, necessary and appropriate to accomplish the foregoing.<\/p>\n
(b) Borrower does not own and will not own any asset or property other
\nthan (i) the Properties, and (ii) incidental personal property necessary for and
\nused or to be used in connection with the ownership or operation of the
\nProperties.<\/p>\n
42<\/p>\n
(c) Borrower will not engage in any business unrelated to the
\nownership, management and operation of the Properties.<\/p>\n
(d) Borrower will not enter into any contract or agreement with any
\nAffiliate of Borrower, any constituent party of Borrower, any owner of Borrower,
\nany guarantors of the obligations of Borrower or any Affiliate of any
\nconstituent party, owner or guarantor (collectively, the “Related Parties”),
\nexcept upon terms and conditions that are intrinsically fair, commercially
\nreasonable and substantially similar to those that would be available on an
\narms-length basis with third parties not so affiliated with Borrower or such
\nRelated Parties.<\/p>\n
(e) Borrower has not incurred and will not incur any Indebtedness
\nother than (i) the Loan, (ii) to the extent included in the definition of
\nIndebtedness hereunder, trade and operational debt incurred in the ordinary
\ncourse of business with trade creditors in amounts as are normal and reasonable
\nunder the circumstances, provided such debt is not evidenced by a note and is
\nnot in excess of sixty days past due, unless contested in good faith, and (iii)
\nCapital Expenditures having a cost in the aggregate (taking into account all
\nCapital Expenditures which are ongoing or which have not been paid for in full)
\nnot in excess of five percent (5%) of the unpaid principal balance of the Loan
\nfrom time to time. No Indebtedness other than the Debt may be secured (senior,
\nsubordinate or pari passu) by the Properties.
\n —- —–<\/p>\n
(f) Borrower has not made and will not make any loans or advances to
\nany Person and shall not acquire obligations or securities of any Related Party.<\/p>\n
(g) Borrower is and will remain solvent and Borrower will pay its
\ndebts and liabilities (including, as applicable, shared personnel and overhead
\nexpenses) from its assets as the same shall become due.<\/p>\n
(h) Borrower has done or caused to be done and will do all things
\nnecessary to observe organizational formalities and preserve its existence, and
\nBorrower will not, nor will Borrower permit any Related Party to, amend, modify
\nor otherwise change the partnership certificate, partnership agreement, articles
\nof incorporation and bylaws, operating agreement, trust or other organizational
\ndocuments of Borrower or such Related Party without the prior consent of Lender.<\/p>\n
(i) Borrower will maintain all of its books, records, financial
\nstatements and bank accounts separate from those of any other Person and
\nBorrower’s assets will not be listed as assets on the financial statement of any
\nother Person. Borrower will file its own tax returns and will not file a
\nconsolidated federal income tax return with any other Person. Borrower shall
\nmaintain its books, records, resolutions and agreements as official records.<\/p>\n
(j) Borrower will be, and at all times will hold itself out to the
\npublic as, a legal entity separate and distinct from any other Person (including
\nany Affiliate or other Related Party), shall correct any known misunderstanding
\nregarding its status as a separate entity, shall conduct business in its own
\nname, shall not identify itself or any of<\/p>\n
43<\/p>\n
its Affiliates as a division or part of the other and shall maintain and utilize
\na separate telephone number and separate stationery, invoices and checks.<\/p>\n
(k) Borrower will maintain adequate capital for the normal obligations
\nreasonably foreseeable in a business of its size and character and in light
\nof its contemplated business operations.<\/p>\n
(l) Neither Borrower nor any Related Party will seek the dissolution,
\nwinding up, liquidation, consolidation or merger in whole or in part, or the
\nsale of material assets of Borrower.<\/p>\n
(m) Borrower will not commingle its assets with those of any other
\nPerson and will hold all of its assets in its own name;<\/p>\n
(n) Borrower will not guarantee or become obligated for the debts of
\nany other Person and does not and will not hold itself out as being responsible
\nfor the debts or obligations of any other Person.<\/p>\n
(o) If Borrower is a limited partnership or a limited liability
\ncompany with more than one member, at least one general partner or member, or if
\nBorrower is a general partnership at least two general partners (each, an “SPC
\nParty”) shall be a corporation or a limited liability company whose sole asset
\nis its interest in Borrower and each such SPC Party will at all times comply,
\nand will cause Borrower to comply, with each of the representations, warranties,
\nand covenants contained in this Section 4.1.30 as if such representation,
\nwarranty or covenant was made directly by such SPC Party. Upon the withdrawal or
\nthe disassociation of the SPC Party from Borrower, Borrower shall immediately
\nappoint a new member whose articles of incorporation or certificate of formation
\nand limited liability company agreement are substantially similar to those of
\nthe SPC Party satisfactory to the Rating Agency or Rating Agencies, as
\napplicable, and deliver a new Insolvency Opinion to the Rating Agency or Rating
\nAgencies, as applicable, satisfactory to the Rating Agency or Rating Agencies,
\nas applicable, with respect to the new SPC Party and its equity owners.
\nNotwithstanding anything herein contained to the contrary, if Borrower is a
\nsingle member Delaware limited liability company, Borrower shall not be required
\nto have an SPC Party provided that Borrower’s organizational documents comply
\nwith Lender’s and the Rating Agencies’ requirements for single member limited
\nliability companies. If at any time Borrower shall be notified that its
\norganizational documents do not comply with such requirements, Borrower shall
\nhave a reasonable period after such notice, not to exceed thirty (30) days,
\nwithin which to amend its organizational documents in order to so comply with
\nsuch requirements.<\/p>\n
(p) Borrower shall at all times cause there to be at least one duly
\nappointed member of the board of directors of Borrower (if a corporation) or at
\nleast one duly appointed independent manager of each SPC Party (if Borrower is a
\nlimited partnership or a limited liability company with more than one member) or
\none independent manager (if Borrower is a single member Delaware limited
\nliability company) (each, an “Independent Director”) reasonably satisfactory to
\nLender who is not at the time of initial appointment and has not been at any
\ntime during the preceding five (5) years and <\/p>\n
44<\/p>\n
shall not be while serving as an Independent Director: (i) a stockholder,
\ndirector, officer, employee, partner, attorney or counsel of Borrower or such
\nSPC Party or any Affiliate of either of them; (ii) a customer, supplier or other
\nPerson who derives any of its purchases or revenues from its activities with
\nBorrower or such SPC Party or any Affiliate of either of them; (iii) a Person
\ncontrolling or under common control with any such stockholder, partner,
\ncustomer, supplier or other Person; or (iv) a member of the immediate family of
\nany such stockholder, director, officer, employee, partner, customer, supplier
\nor other Person.<\/p>\n
(q) Borrower shall not cause or permit the board of directors of an
\nSPC Party to take any action which, under the terms of any certificate of
\nincorporation, by-laws or any voting trust agreement with respect to any common
\nstock, requires the vote of any SPC Party unless at the time of such action
\nthere shall be at least one member who is an Independent Director.<\/p>\n
(r) Borrower shall allocate fairly and reasonably any overhead
\nexpenses that are shared with an Affiliate, including paying for office space
\nand services performed by any employee of an Affiliate or Related Party.<\/p>\n
(s) Borrower shall not pledge its assets for the benefit of any other
\nPerson other than with respect to the Loan.<\/p>\n
(t) Borrower shall maintain a sufficient number of employees in light
\nof its contemplated business operations and pay the salaries of its own
\nemployees from its own funds.<\/p>\n
(u) Borrower shall conduct its business so that the assumptions made
\nwith respect to Borrower in the Insolvency Opinion shall be true and correct in
\nall respects.<\/p>\n
4.1.31 Management Agreement. The Properties are self-managed by
\n ——————–
\nBorrower and no Management Agreement or similar agreement with respect to the
\noperation or maintenance of the Properties has been entered into.<\/p>\n
4.1.32 Illegal Activity. No portion of any Individual Property has
\n —————-
\nbeen or will be purchased with proceeds of any illegal activity.<\/p>\n
4.1.33 No Change in Facts or Circumstances; Disclosure. All
\n ———————————————–
\ninformation submitted by Borrower to Lender and in all financial statements,
\nrent rolls, reports, certificates and other documents submitted in connection
\nwith the Loan or in satisfaction of the terms thereof and all statements of fact
\nmade by Borrower in this Agreement or in any other Loan Document, are accurate,
\ncomplete and correct in all material respects. There has been no material
\nadverse change in any condition, fact, circumstance or event that would make any
\nsuch information inaccurate, incomplete or otherwise misleading in any material
\nrespect or that otherwise materially and adversely affects or might materially
\nand adversely affect the Properties or the business operations or the financial
\ncondition of Borrower or Exodus Communications. Borrower has disclosed to Lender
\nall material facts and has not failed to disclose any material fact that could
\ncause any representation or warranty made herein to be materially misleading.<\/p>\n
45<\/p>\n
Section 4.2 Survival of Representations.
\n ————————— <\/p>\n
Borrower agrees that all of the representations and warranties of
\nBorrower set forth in Section 4.1 and elsewhere in this Agreement and in the
\nother Loan Documents shall survive for so long as any amount remains owing to
\nLender under this Agreement or any of the other Loan Documents by Borrower. All
\nrepresentations, warranties, covenants and agreements made in this Agreement or
\nin the other Loan Documents by Borrower shall be deemed to have been relied upon
\nby Lender notwithstanding any investigation heretofore or hereafter made by
\nLender or on its behalf.<\/p>\n
V. BORROWER COVENANTS
\n ——————<\/p>\n
Section 5.1 Affirmative Covenants.
\n ——————— <\/p>\n
From the date hereof and until payment and performance in full of all
\nobligations of Borrower under the Loan Documents or the earlier release of the
\nLiens of all Mortgages encumbering the Properties (and all related obligations)
\nin accordance with the terms of this Agreement and the other Loan Documents,
\nBorrower hereby covenants and agrees with Lender that:<\/p>\n
5.1.1 Existence; Compliance with Legal Requirements; Insurance.
\n ——————————————————–
\nBorrower shall do or cause to be done all things necessary to preserve, renew
\nand keep in full force and effect its existence, rights, licenses, permits and
\nfranchises and comply with all Legal Requirements applicable to it and the
\nProperties. There shall never be committed by Borrower or any other Person in
\noccupancy of or involved with the operation or use of the Properties any act or
\nomission affording the federal government or any state or local government the
\nright of forfeiture as against any Individual Property or any part thereof or
\nany monies paid in performance of Borrower’s obligations under any of the Loan
\nDocuments. Borrower hereby covenants and agrees not to commit, permit or suffer
\nto exist any act or omission affording such right of forfeiture. Borrower shall
\nat all times maintain, preserve and protect all franchises and trade names and
\npreserve all the remainder of its property used or useful in the conduct of its
\nbusiness and shall keep the Properties in good working order and repair, and
\nfrom time to time make, or cause to be made, all reasonably necessary repairs,
\nrenewals, replacements, betterments and improvements thereto, all as more fully
\nprovided in the Mortgages. Borrower shall, or shall cause Exodus Communications
\nunder each of the Master Leases to, keep the Properties insured at all times by
\nfinancially sound and reputable insurers, to such extent and against such risks,
\nand maintain liability and such other insurance, as is more fully provided in
\nthis Agreement.<\/p>\n
5.1.2 Taxes and Other Charges. Borrower shall pay or cause to be paid
\n ———————–
\nall Taxes and Other Charges now or hereafter levied or assessed or imposed
\nagainst the Properties or any part thereof as the same become due and payable;
\nprovided, however, Borrower’s obligation to directly pay Taxes shall be
\n——– ——-
\nsuspended for so long as Borrower complies with the terms and provisions of
\nSection 7.2 hereof. Borrower will deliver to Lender receipts for payment or
\nother evidence satisfactory to Lender that the Taxes and Other Charges have been
\nso paid or are not then delinquent no later than ten (10) days prior to the date
\non which the Taxes and\/or Other Charges would otherwise be delinquent if not
\npaid. Borrower shall furnish to Lender receipts for the payment of the Taxes and
\nthe Other Charges prior to the date the same shall<\/p>\n
46<\/p>\n
become delinquent (provided, however, that Borrower is not required to furnish
\n ——– ——-
\nsuch receipts for payment of Taxes in the event that such Taxes have been paid
\nby Lender pursuant to Section 7.2 hereof). Borrower shall not suffer and shall
\npromptly cause to be paid and discharged any Lien or charge whatsoever which may
\nbe or become a Lien or charge against the Properties, and shall promptly pay for
\nall utility services provided to the Properties. After prior written notice to
\nLender, Borrower, at its own expense, may contest by appropriate legal
\nproceeding, promptly initiated and conducted in good faith and with due
\ndiligence, the amount or validity or application in whole or in part of any
\nTaxes or Other Charges, provided that (i) no Default or Event of Default has
\noccurred and remains uncured; (ii) Borrower is permitted to do so under the
\nprovisions of any mortgage or deed of trust superior in lien to the applicable
\nMortgage; (iii) such proceeding shall be permitted under and be conducted in
\naccordance with the provisions of any other instrument to which Borrower is
\nsubject and shall not constitute a default thereunder and such proceeding shall
\nbe conducted in accordance with all applicable statutes, laws and ordinances;
\n(iv) neither the Individual Property nor any part thereof or interest therein
\nwill be in danger of being sold, forfeited, terminated, cancelled or lost; (v)
\nBorrower shall promptly upon final determination thereof pay the amount of any
\nsuch Taxes or Other Charges, together with all costs, interest and penalties
\nwhich may be payable in connection therewith; (vi) such proceeding shall suspend
\nthe collection of such contested Taxes or Other Charges from the applicable
\nIndividual Property; and (vii) Borrower shall furnish such security as may be
\nrequired in the proceeding, or as may be requested by Lender, to insure the
\npayment of any such Taxes or Other Charges, together with all interest and
\npenalties thereon. Lender may pay over any such cash deposit or part thereof
\nheld by Lender to the claimant entitled thereto at any time when, in the
\njudgment of Lender, the entitlement of such claimant is established.<\/p>\n
5.1.3 Litigation. Borrower shall give prompt written notice to Lender
\n ———-
\nof any litigation or governmental proceedings pending or threatened against
\nBorrower which might materially adversely affect Borrower’s condition (financial
\nor otherwise) or business or any Individual Property.<\/p>\n
5.1.4 Access to Properties. Borrower shall permit agents,
\n ——————–
\nrepresentatives and employees of Lender to inspect the Properties or any part
\nthereof at reasonable hours upon reasonable advance notice provided that each of
\nsuch persons entering the Properties executes Borrower’s standard
\nConfidentiality and Non-Disclosure Agreement attached hereto as Schedule V
\n(“Confidentiality and Non-Disclosure Agreement”).
\n ——————————————— <\/p>\n
5.1.5 Notice of Default. Borrower shall promptly advise Lender of any
\n —————–
\nmaterial adverse change in Borrower’s condition, financial or otherwise, or of
\nthe occurrence of any Default or Event of Default of which Borrower has
\nknowledge.<\/p>\n
5.1.6 Cooperate in Legal Proceedings. Borrower shall cooperate fully
\n ——————————
\nwith Lender with respect to any proceedings before any court, board or other
\nGovernmental Authority which may in any way affect the rights of Lender
\nhereunder or any rights obtained by Lender under any of the other Loan Documents
\nand, in connection therewith, permit Lender, at its election, to participate in
\nany such proceedings.<\/p>\n
5.1.7 Perform Loan Documents. Borrower shall observe, perform and
\n ———————-
\nsatisfy all the terms, provisions, covenants and conditions of, and shall pay
\nwhen due all costs, fees and <\/p>\n
47<\/p>\n
expenses to the extent required under the Loan Documents executed and delivered
\nby, or applicable to, Borrower.<\/p>\n
5.1.8 Insurance Benefits. Borrower shall cooperate with Lender in
\n ——————
\nobtaining for Lender the benefits of any Insurance Proceeds lawfully or
\nequitably payable in connection with any Individual Property, and Lender shall
\nbe reimbursed for any expenses incurred in connection therewith (including
\nattorneys’ fees and disbursements, and the payment by Borrower of the expense of
\nan appraisal on behalf of Lender in case of a fire or other casualty affecting
\nany Individual Property or any part thereof) out of such Insurance Proceeds.<\/p>\n
5.1.9 Further Assurances. Borrower shall, at Borrower’s sole cost and
\n ——————
\nexpense:<\/p>\n
(a) furnish to Lender all instruments, documents, boundary surveys,
\nfooting or foundation surveys, certificates, plans and specifications,
\nappraisals, title and other insurance reports and agreements, and each and every
\nother document, certificate, agreement and instrument required to be furnished
\nby Borrower pursuant to the terms of the Loan Documents or reasonably requested
\nby Lender in connection therewith;<\/p>\n
(b) execute and deliver to Lender such documents, instruments,
\ncertificates, assignments and other writings, and do such other acts necessary
\nor desirable, to evidence, preserve and\/or protect the collateral at any time
\nsecuring or intended to secure the obligations of Borrower under the Loan
\nDocuments, as Lender may reasonably require including, without limitation, the
\nexecution and delivery of all such writings necessary to transfer any Licenses
\ninto the name of Lender or its designee after the occurrence of any Event of
\nDefault; and<\/p>\n
(c) do and execute all and such further lawful and reasonable acts,
\nconveyances and assurances for the better and more effective carrying out of the
\nintents and purposes of this Agreement and the other Loan Documents, as Lender
\nshall reasonably require from time to time.<\/p>\n
5.1.10 Mortgage Taxes. As of the date hereof, Borrower represents that
\n ————–
\nit has paid all state, county and municipal recording and all other taxes
\nimposed upon the execution and recordation of the Mortgages.<\/p>\n
5.1.11 Financial Reporting.
\n ——————-<\/p>\n
(a) Borrower will keep and maintain or will cause to be kept and
\nmaintained on a Fiscal Year basis, in accordance with GAAP (or such other
\naccounting basis acceptable to Lender), proper and accurate books, records and
\naccounts reflecting all of the financial affairs of Borrower and all items of
\nincome and expense in connection with the operation on an individual basis of
\nthe Properties. Lender shall have the right from time to time at all times
\nduring normal business hours upon reasonable notice to examine such books,
\nrecords and accounts at the office of Borrower or other Person maintaining such
\nbooks, records and accounts and to make such copies or extracts thereof as
\nLender shall desire. After the occurrence of an Event of Default, Borrower shall
\npay any costs and expenses incurred by Lender to examine Borrower’s accounting
\nrecords with respect to the Properties, as Lender shall determine to be
\nnecessary or appropriate in the protection of Lender’s interest.<\/p>\n
48<\/p>\n
(b) Borrower will furnish to Lender annually, within one hundred
\ntwenty (120) days following the end of each Fiscal Year of Borrower, a complete
\ncopy of Borrower’s annual financial statements audited by a “Big Five”
\naccounting firm or other independent certified public accountant acceptable to
\nLender in accordance with GAAP (or such other accounting basis acceptable to
\nLender) covering the Properties on a combined basis as well as each Individual
\nProperty for such Fiscal Year and containing statements of profit and loss for
\nBorrower and the Properties and a balance sheet for Borrower. Such statements
\nshall set forth the financial condition and the results of operations for the
\nProperties for such Fiscal Year, and shall include, but not be limited to,
\namounts representing annual Net Cash Flow, Net Operating Income, Gross Income
\nfrom Operations and Operating Expenses. Borrower’s annual financial statements
\nshall be accompanied by (i) a comparison of the budgeted income and expenses and
\nthe actual income and expenses for the prior Fiscal Year, (ii) a certificate
\nexecuted by the chief financial officer of Borrower or the general partner or
\nmanaging member of Borrower, as applicable, stating that each such annual
\nfinancial statement presents fairly the financial condition and the results of
\noperations of Borrower and the Properties being reported upon and has been
\nprepared in accordance with GAAP, (iii) an unqualified opinion of a “Big Five”
\naccounting firm or other independent certified public accountant reasonably
\nacceptable to Lender, (iv) a list of tenants, if any, occupying more than twenty
\n(20%) percent of the total floor area of the Improvements, (v) a breakdown
\nshowing the year in which each Lease then in effect expires and the percentage
\nof total floor area of the Improvements and the percentage of base rent with
\nrespect to which Leases shall expire in each such year, each such percentage to
\nbe expressed on both a per year and cumulative basis, and (vi) a schedule
\naudited by such independent certified public accountant reconciling Net
\nOperating Income to Net Cash Flow (the “Net Cash Flow Schedule”), which shall
\nitemize all adjustments made to Net Operating Income to arrive at Net Cash Flow
\ndeemed material by such independent certified public accountant. Together with
\nBorrower’s annual financial statements, Borrower shall furnish to Lender an
\nOfficer’s Certificate certifying as of the date thereof whether there exists an
\nevent or circumstance which constitutes a Default or Event of Default under the
\nLoan Documents executed and delivered by, or applicable to, Borrower, and if
\nsuch Default or Event of Default exists, the nature thereof, the period of time
\nit has existed and the action then being taken to remedy the same.<\/p>\n
(c) Borrower will furnish, or cause to be furnished, to Lender on or
\nbefore thirty (30) days after the end of each calendar quarter the following
\nitems, accompanied by a certificate of the chief financial officer of Borrower
\nor the general partner or managing member of Borrower, as applicable, stating
\nthat such items are true, correct, accurate, and complete and fairly present the
\nfinancial condition and results of the operations of Borrower and the Properties
\non a combined basis as well as each Individual Property (subject to normal year-
\nend adjustments): (i) a rent roll accompanied by an Officer’s Certificate with
\nrespect thereto; (ii) monthly and year-to-date operating statements (including
\nCapital Expenditures) prepared for each calendar month, noting Net Operating
\nIncome, Gross Income from Operations, and Operating Expenses (not including any
\ncontributions to the Replacement Reserve Fund), and other information necessary
\nand sufficient to fairly represent the financial position and results of
\noperation of the Properties during such calendar quarter, and containing a
\ncomparison of budgeted income and expenses and the actual income and expenses
\ntogether with a detailed explanation of any variances of ten percent (10%) or
\nmore between budgeted and actual amounts for such periods (provided, such
\ndetailed explanation of variances shall not be required in the <\/p>\n
49<\/p>\n
event that the amount of income and\/or expenses does not exceed $25,000), all in
\nform satisfactory to Lender; (iii) a calculation reflecting the annual Debt
\nService Coverage Ratio for the immediately preceding twelve (12) month period as
\nof the last day of such month accompanied by an Officer’s Certificate with
\nrespect thereto; and (iv) a Net Cash Flow Schedule. In addition, such
\ncertificate shall also be accompanied by a certificate of the chief financial
\nofficer of Borrower or the general partner or managing member of Borrower, as
\napplicable, stating that the representations and warranties of Borrower set
\nforth in Section 4.1.30(e) are true and correct as of the date of such
\ncertificate and that there are no trade payables outstanding for more than sixty
\n(60) days.<\/p>\n
(d) For the partial year period commencing on the date hereof, and for
\neach Fiscal Year thereafter, Borrower shall submit to Lender an Annual Budget
\nnot later than sixty (60) days prior to the commencement of such period or
\nFiscal Year in form reasonably satisfactory to Lender. The Annual Budget shall
\nbe subject to Lender’s written approval (each such Annual Budget, an “Approved
\nAnnual Budget”). In the event that Lender objects to a proposed Annual Budget
\nsubmitted by Borrower, Lender shall advise Borrower of such objections within
\nfifteen (15) days after receipt thereof (and deliver to Borrower a reasonably
\ndetailed description of such objections) and Borrower shall promptly revise such
\nAnnual Budget and resubmit the same to Lender. Lender shall advise Borrower of
\nany objections to such revised Annual Budget within ten (10) days after receipt
\nthereof (and deliver to Borrower a reasonably detailed description of such
\nobjections) and Borrower shall promptly revise the same in accordance with the
\nprocess described in this subsection until Lender approves the Annual Budget.
\nUntil such time that Lender approves a proposed Annual Budget, the most recently
\nApproved Annual Budget shall apply; provided that, such Approved Annual Budget
\nshall be adjusted to reflect actual increases in real estate taxes, insurance
\npremiums and utilities expenses.<\/p>\n
(e) In the event that Borrower must incur an extraordinary operating
\nexpense or capital expense not set forth in the Approved Annual Budget (each an
\n“Extraordinary Expense”), then Borrower shall promptly deliver to Lender a
\nreasonably detailed explanation of such proposed Extraordinary Expense for
\nLender’s approval.<\/p>\n
(f) Borrower shall furnish to Lender, within ten (10) Business Days
\nafter request (or as soon thereafter as may be reasonably possible), such
\nfurther detailed information with respect to the operation of the Properties and
\nthe financial affairs of Borrower as may be reasonably requested by Lender.<\/p>\n
(g) Any reports, statements or other information required to be
\ndelivered under this Agreement shall be delivered in electronic form and
\nprepared using a Microsoft Word for Windows, WordPerfect for Windows or Excel
\nfiles (which files may be prepared using a spreadsheet program and saved as word
\nprocessing files) or in paper form if a signature is required or electronic form
\nis impracticable.<\/p>\n
5.1.12 Business and Operations. Borrower will continue to engage in
\n ———————–
\nthe businesses presently conducted by it as and to the extent the same are
\nnecessary for the ownership, maintenance, management and operation of the
\nProperties. Borrower will qualify to do business and will remain in good
\nstanding under the laws of each jurisdiction as and to the <\/p>\n
50<\/p>\n
extent the same are required for the ownership, maintenance, management and
\noperation of the Properties.<\/p>\n
5.1.13 Title to the Properties. California Borrower or Texas Borrower,
\n ———————–
\nas the case may be, will warrant and defend (a) the title to each Individual
\nProperty and every part thereof, subject only to Liens permitted hereunder
\n(including Permitted Encumbrances) and (b) the validity and priority of the
\nLiens of the Mortgages and the Assignments of Leases on the Properties, subject
\nonly to Liens permitted hereunder (including Permitted Encumbrances), in each
\ncase against the claims of all Persons whomsoever. Borrower shall reimburse
\nLender for any losses, costs, damages or expenses (including reasonable
\nattorneys’ fees and court costs) incurred by Lender if an interest in any
\nIndividual Property, other than as permitted hereunder, is claimed by another
\nPerson.<\/p>\n
5.1.14 Costs of Enforcement. In the event (a) that any Mortgage
\n ——————–
\nencumbering any Individual Property is foreclosed in whole or in part or that
\nany such Mortgage is put into the hands of an attorney for collection, suit,
\naction or foreclosure, (b) of the foreclosure of any mortgage prior to or
\nsubsequent to any Mortgage encumbering any Individual Property in which
\nproceeding Lender is made a party, or (c) of the bankruptcy, insolvency,
\nrehabilitation or other similar proceeding in respect of Borrower or any of its
\nconstituent Persons or an assignment by Borrower or any of its constituent
\nPersons for the benefit of its creditors, Borrower, its successors or assigns,
\nshall be chargeable with and agrees to pay all costs of collection and defense,
\nincluding attorneys’ fees and costs, incurred by Lender or Borrower in
\nconnection therewith and in connection with any appellate proceeding or post-
\njudgment action involved therein, together with all required service or use
\ntaxes.<\/p>\n
5.1.15 Estoppel Statement. (a) After request by Lender, Borrower shall
\n ——————
\nwithin ten (10) days furnish Lender with a statement, duly acknowledged and
\ncertified, setting forth (i) the amount of the original principal amount of the
\nNote, (ii) the unpaid principal amount of the Note, (iii) the Applicable
\nInterest Rate of the Note, (iv) the date installments of interest and\/or
\nprincipal were last paid, (v) any offsets or defenses to the payment of the
\nDebt, if any, and (vi) that the Note, this Agreement, the Mortgages and the
\nother Loan Documents are valid, legal and binding obligations and have not been
\nmodified or if modified, giving particulars of such modification.<\/p>\n
(b) Borrower shall deliver to Lender upon request, tenant estoppel
\ncertificates from each commercial tenant leasing space at the Properties in form
\nand substance reasonably satisfactory to Lender provided that, except with
\nrespect to each of the Master Leases, Borrower shall not be required to deliver
\nsuch certificates more frequently than two (2) times in any calendar year.<\/p>\n
5.1.16 Loan Proceeds. Borrower shall use the proceeds of the Loan
\n ————-
\nreceived by it on the Closing Date only for the purposes set forth in Section
\n2.1.4.<\/p>\n
5.1.17 Performance by Borrower. Borrower shall in a timely manner
\n ———————–
\nobserve, perform and fulfill each and every covenant, term and provision of each
\nLoan Document executed and delivered by, or applicable to, Borrower, and shall
\nnot enter into or otherwise suffer or permit any amendment, waiver, supplement,
\ntermination or other modification of any Loan <\/p>\n
51<\/p>\n
Document executed and delivered by, or applicable to, Borrower without the prior
\nconsent of Lender.<\/p>\n
5.1.18 Confirmation of Representations. Borrower shall deliver, in
\n ——————————-
\nconnection with any Securitization, (a) one or more Officer’s Certificates
\ncertifying as to the accuracy of all representations made by Borrower in the
\nLoan Documents as of the date of the closing of such Securitization in all
\nrelevant jurisdictions, and (b) certificates of the relevant Governmental
\nAuthorities in all relevant jurisdictions indicating the good standing and
\nqualification of Borrower and its general partner with respect to the Texas
\nBorrower and its managing member with respect to the California Borrower as of
\nthe date of the Securitization.<\/p>\n
5.1.19 No Joint Assessment. Borrower shall not suffer, permit or
\n ——————-
\ninitiate the joint assessment of any Individual Property (a) with any other real
\nproperty constituting a tax lot separate from such Individual Property, and (b)
\nwhich constitutes real property with any portion of such Individual Property
\nwhich may be deemed to constitute personal property, or any other procedure
\nwhereby the lien of any taxes which may be levied against such personal property
\nshall be assessed or levied or charged to such real property portion of the
\nIndividual Property.<\/p>\n
5.1.20 Leasing Matters. Any Leases with respect to an Individual
\n —————
\nProperty written after the date hereof for more than 10,000 square feet and any
\namendments or modifications to any Leases of more than 10,000 square feet shall
\nbe approved by Lender, which approval shall not be unreasonably withheld. Upon
\nrequest, Borrower shall furnish Lender with executed copies of all Leases. All
\nrenewals of Leases and all proposed Leases shall provide for rental rates
\ncomparable to existing local market rates. All proposed Leases shall be on
\ncommercially reasonable terms and shall not contain any terms which would
\nmaterially affect Lender’s rights under the Loan Documents. All Leases executed
\nafter the date hereof shall provide that they are subordinate to the Mortgage
\nencumbering the applicable Individual Property and that the lessee agrees to
\nattorn to Lender or any purchaser at a sale by foreclosure or power of sale.
\nBorrower (i) shall observe and perform the obligations imposed upon the lessor
\nunder the Leases in a commercially reasonable manner; (ii) shall enforce and may
\namend or terminate the terms, covenants and conditions contained in the Leases
\nupon the part of the lessee thereunder to be observed or performed in a
\ncommercially reasonable manner and in a manner not to impair the value of the
\nIndividual Property involved (provided Borrower shall not amend or modify a
\nMaster Lease without the prior consent of Lender) except that no termination by
\nBorrower or acceptance of surrender by a tenant of any Leases shall be permitted
\nunless by reason of a tenant default and then only in a commercially reasonable
\nmanner to preserve and protect the Individual Property provided, however, that
\n ——– ——-
\nno such termination or surrender of any Lease covering more than 10,000 square
\nfeet will be permitted without the consent of Lender, which consent shall not be
\nunreasonably withheld; (iii) shall not collect any of the rents more than one
\n(1) month in advance (other than security deposits); (iv) shall not execute any
\nother assignment of lessor’s interest in the Leases or the Rents (except as
\ncontemplated by the Loan Documents); (v) shall not alter, modify or change the
\nterms of the Leases in a manner inconsistent with the provisions of the Loan
\nDocuments; and (vi) shall execute and deliver at the request of Lender all such
\nfurther assurances, confirmations and assignments in connection with the Leases
\nas Lender shall from time to time reasonably require. In the event that Lender
\nfails to respond to a request for Lender’s approval pursuant to this Section
\n5.1.20 within five (5) Business Days of Borrower’s request, Borrower may deliver
\na second request for such approval <\/p>\n
52<\/p>\n
and, provided that such second request contains a bold faced, conspicuous legend
\nat the top of the first page thereof to the effect that “IF YOU FAIL TO RESPOND
\nTO THIS REQUEST FOR APPROVAL IN WRITING WITHIN TEN (10) BUSINESS DAYS, YOUR
\nAPPROVAL SHALL BE DEEMED GIVEN,” and Lender fails to respond to such request for
\napproval ten (10) Business Days after Lender has received from Borrower such
\nsecond request and all information reasonably required by Lender in order to
\nadequately review such request, Lender shall be deemed to have given such
\napproval.<\/p>\n
5.1.21 Alterations. Borrower shall obtain Lender’s prior consent to
\n ———–
\nany alterations to any Improvements, which consent shall not be unreasonably
\nwithheld except with respect to alterations that may have a material adverse
\neffect on Borrower’s financial condition, the value of the applicable Individual
\nProperty or the Net Operating Income. Notwithstanding the foregoing, Lender’s
\nconsent shall not be required in connection with any alterations that will not
\nhave a material adverse effect on Borrower’s financial condition, the value of
\nthe applicable Individual Property or the Net Operating Income, provided that
\nsuch alterations are made in connection with (a) tenant improvement work
\nperformed pursuant to the terms of any Lease executed on or before the date
\nhereof, (b) tenant improvement work performed pursuant to the terms and
\nprovisions of a Lease and not adversely affecting any structural component of
\nany Improvements, any utility or HVAC system contained in any Improvements or
\nthe exterior of any building constituting a part of any Improvements, or (c)
\nalterations performed in connection with the restoration of an Individual
\nProperty after the occurrence of a casualty in accordance with the terms and
\nprovisions of this Agreement. If the total unpaid amounts with respect to
\nalterations to the Improvements at any Individual Property (other than such
\namounts to be paid or reimbursed by tenants under the Leases) shall at any time
\nexceed * Dollars ($*) (the “Threshold Amount”), Borrower shall promptly deliver
\n ——————
\nto Lender as security for the payment of such amounts and as additional security
\nfor Borrower’s obligations under the Loan Documents any of the following: (A)
\ncash, (B) U.S. Obligations, (C) other securities having a rating acceptable to
\nLender and that the applicable Rating Agencies have confirmed in writing will
\nnot, in and of itself, result in a downgrade, withdrawal or qualification of the
\ninitial, or, if higher, then current ratings assigned in connection with any
\nSecuritization, or (D) a completion bond or letter of credit issued by a
\nfinancial institution having a rating by S&P of not less than A-1+ if the term
\nof such bond or letter of credit is no longer than three (3) months or, if such
\nterm is in excess of three (3) months, issued by a financial institution having
\na rating that is acceptable to Lender and that the applicable Rating Agencies
\nhave confirmed in writing will not, in and of itself, result in a downgrade,
\nwithdrawal or qualification of the initial, or, if higher, then current ratings
\nassigned in connection with any Securitization. Such security shall be in an
\namount equal to the excess of the total unpaid amounts with respect to
\nalterations to the Improvements on the applicable Individual Property (other
\nthan such amounts to be paid or reimbursed by tenants under the Leases) over the
\nThreshold Amount and applied from time to time at the option of Lender to pay
\nfor such alterations or to terminate any of the alterations and restore the
\napplicable Individual Property to the extent necessary to prevent any material
\nadverse effect on the value of such Individual Property.<\/p>\n
53<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
Section 5.2 Negative Covenants.
\n —————— <\/p>\n
From the date hereof until payment and performance in full of all
\nobligations of Borrower under the Loan Documents or the earlier release of the
\nLiens of all Mortgages encumbering the Properties in accordance with the terms
\nof this Agreement and the other Loan Documents, Borrower covenants and agrees
\nwith Lender that it will not do, directly or indirectly, any of the following:<\/p>\n
5.2.1 Operation of Property. Neither California Borrower nor Texas
\n ———————
\nBorrower, as the case may be, shall, without the prior consent of Lender (which
\nconsent shall not be unreasonably withheld), terminate the Management Agreement
\nor otherwise replace the Manager or enter into any other management agreement
\nwith respect to any Individual Property.<\/p>\n
5.2.2 Liens. Borrower shall not, without the prior consent of Lender,
\n —–
\ncreate, incur, assume or suffer to exist any Lien on any portion of any
\nIndividual Property or permit any such action to be taken, except:<\/p>\n
(i) Permitted Encumbrances;<\/p>\n
(ii) Liens created by or permitted pursuant to the Loan Documents;
\n and<\/p>\n
(iii) Liens for Taxes or Other Charges not yet due.<\/p>\n
5.2.3 Dissolution. Borrower shall not (a) engage in any dissolution,
\n ———–
\nliquidation or consolidation or merger with or into any other business entity,
\n(b) engage in any business activity not related to the ownership and operation
\nof the Properties, (c) transfer, lease or sell, in one transaction or any
\ncombination of transactions, the assets or all or substantially all of the
\nproperties or assets of Borrower except to the extent permitted by the Loan
\nDocuments, (d) modify, amend, waive or terminate its organizational documents or
\nits qualification and good standing in any jurisdiction or (e) cause the SPC
\nParty to (i) dissolve, wind up or liquidate or take any action, or omit to take
\nan action, as a result of which the SPC Party would be dissolved, wound up or
\nliquidated in whole or in part, or (ii) amend, modify, waive or terminate the
\ncertificate of incorporation or bylaws of the SPC Party, in each case, without
\nobtaining the prior consent of Lender or Lender’s designee.<\/p>\n
5.2.4 Change In Business. Borrower shall not enter into any line of
\n ——————
\nbusiness other than the ownership and operation of the Properties, or make any
\nmaterial change in the scope or nature of its business objectives, purposes or
\noperations, or undertake or participate in activities other than the continuance
\nof its present business.<\/p>\n
5.2.5 Debt Cancellation. Borrower shall not cancel or otherwise
\n —————–
\nforgive or release any claim or debt (other than termination of Leases in
\naccordance herewith) owed to Borrower by any Person, except for adequate
\nconsideration and in the ordinary course of Borrower’s business.<\/p>\n
5.2.6 Affiliate Transactions. Borrower shall not enter into, or be a
\n ———————-
\nparty to, any transaction with an Affiliate of Borrower or any of the partners
\nof Borrower except in the ordinary course of business and on terms which are
\nfully disclosed to Lender in advance and are <\/p>\n
54<\/p>\n
no less favorable to Borrower or such Affiliate than would be obtained in a
\ncomparable arm’s-length transaction with an unrelated third party.<\/p>\n
5.2.7 Zoning. Borrower shall not initiate or consent to any zoning
\n ——
\nreclassification of any portion of any Individual Property or seek any variance
\nunder any existing zoning ordinance or use or permit the use of any portion of
\nany Individual Property in any manner that could result in such use becoming a
\nnon-conforming use under any zoning ordinance or any other applicable land use
\nlaw, rule or regulation, without the prior consent of Lender.<\/p>\n
5.2.8 Assets. Borrower shall not purchase or own any property other
\n ——
\nthan the Properties.<\/p>\n
5.2.9 Debt. Borrower shall not create, incur or assume any
\n —-
\nIndebtedness other than the Debt except to the extent expressly permitted
\nhereby.<\/p>\n
5.2.10 No Joint Assessment. Borrower shall not suffer, permit or
\n ——————-
\ninitiate the joint assessment of any Individual Property with (a) any other real
\nproperty constituting a tax lot separate from such Individual Property, or (b)
\nany portion of such Individual Property which may be deemed to constitute
\npersonal property, or any other procedure whereby the Lien of any taxes which
\nmay be levied against such personal property shall be assessed or levied or
\ncharged to such Individual Property.<\/p>\n
5.2.11 Principal Place of Business. Borrower shall not change its
\n —————————
\nprincipal place of business set forth on the first page of this Agreement
\nwithout first giving Lender thirty (30) days prior written notice.<\/p>\n
5.2.12 ERISA. (a) Borrower shall not engage in any transaction which
\n —–
\nwould cause any obligation, or action taken or to be taken, hereunder (or the
\nexercise by Lender of any of its rights under the Note, this Agreement or the
\nother Loan Documents) to be a non-exempt (under a statutory or administrative
\nclass exemption) prohibited transaction under ERISA.<\/p>\n
(b) Borrower further covenants and agrees to deliver to Lender such
\ncertifications or other evidence from time to time throughout the term of the
\nLoan, as requested by Lender in its sole discretion, that (A) Borrower is not
\nand does not maintain an “employee benefit plan” as defined in Section 3(3) of
\nERISA, which is subject to Title I of ERISA, or a “governmental plan” within the
\nmeaning of Section 3(3) of ERISA; (B) Borrower is not subject to state statutes
\nregulating investments and fiduciary obligations with respect to governmental
\nplans; and (C) one or more of the following circumstances is true:<\/p>\n
(i) Equity interests in Borrower are publicly offered securities,
\n within the meaning of 29 C.F.R. (S)2510.3-101(b)(2);<\/p>\n
(ii) Less than twenty-five percent (25%) of each outstanding class of
\n equity interests in Borrower are held by “benefit plan
\n investors” within the meaning of 29 C.F.R. (S)2510.3-101(f)(2);
\n or<\/p>\n
(iii) Borrower qualifies as an “operating company” or a “real estate
\n operating company” within the meaning of 29 C.F.R. (S)2510.3-
\n 101(c) or (e).<\/p>\n
55<\/p>\n
5.2.13 Transfers. (a) Except as otherwise permitted by the provisions
\n ———
\nof this Section 5.2.13 or except to the extent permitted elsewhere in the Loan
\nDocuments, Borrower will not (i) permit or suffer (by operation of law or
\notherwise) any sale, assignment, conveyance, transfer or other disposition of
\nlegal or equitable interest in all or any part of the Properties, (ii) permit or
\nsuffer (by operation of law or otherwise) any sale, assignment, conveyance,
\ntransfer or other disposition of any direct or indirect interest in Borrower,
\n(iii) permit or suffer (by operation of law or otherwise) any mortgage, lien or
\nother encumbrance of all or any part of any Individual Property, (iv) permit or
\nsuffer (by operation of law or otherwise) any pledge, hypothecation, creation of
\na security interest in or other encumbrance of any direct or indirect interests
\nin Borrower, or (v) file a declaration of condominium with respect to any
\nIndividual Property.<\/p>\n
(b) A sale or conveyance by Borrower of all of the Properties (but not
\na mortgage, lien or other encumbrance) is permitted provided that each of the
\nfollowing conditions have been satisfied:<\/p>\n
(i) (A) prior to a Securitization, Borrower has obtained the prior
\n consent of Lender to such sale or conveyance which consent shall not be
\n unreasonably withheld and (B) after a Securitization, the Rating Agencies
\n shall have confirmed that such sale or conveyance shall not, in itself,
\n result in a downgrade, qualification or withdrawal of the then current
\n ratings assigned to the Securities; (ii) no Event of Default shall have
\n occurred and be continuing;<\/p>\n
(iii) the Person to whom the Properties are sold or conveyed
\n satisfies the requirements of a SPC Party and not less than 50% of the
\n direct or indirect interests are owned and controlled by a Permitted Owner;<\/p>\n
(iv) Lender has received a non-consolidation opinion which may be
\n relied upon by Lender, the Rating Agencies and their respective counsel,
\n successors and assigns, with respect to the sale or conveyance, which
\n opinion shall be reasonably acceptable to Lender and, after a
\n Securitization, the Rating Agencies;<\/p>\n
(v) the transferee of the Properties shall execute an assumption of
\n all of the obligations of the Borrower under this Agreement, each Mortgage
\n and the other Loan Documents, subject, however, to the provisions of
\n Section 9.4 of this Agreement; and<\/p>\n
(vi) Borrower shall give written notice to Lender of the proposed
\n sale or conveyance not later than thirty (30) days prior thereto, which
\n notice shall set forth the name of the proposed transferee, identify the
\n owners of such direct and indirect interests of the proposed transferee
\n and set forth the date the sale or conveyance is expected to be effective.<\/p>\n
(c) A transfer or sale (but not a pledge, hypothecation, creation of a
\nsecurity interest in or other encumbrance) of direct or indirect ownership
\ninterest in Borrower is permitted provided the following conditions have been
\nsatisfied:<\/p>\n
(i) such transfer or sale is to a Permitted Owner;<\/p>\n
56<\/p>\n
(ii) in connection with such a transfer or sale, if prior to a
\n Securitization, Borrower shall have obtained the prior consent of Lender
\n which consent shall not be unreasonably withheld and, if after a
\n Securitization, the Rating Agencies shall have confirmed that such transfer
\n or sale, in itself, shall not result in downgrade, withdrawal or
\n qualification of the then current rating assigned to the Securities;<\/p>\n
(iii) prior to any such transfer or sale of direct or indirect
\n ownership interests in Borrower, if as a result of either of which (and
\n after giving effect to such transfer or sale), more than 49% of the direct
\n or indirect ownership interests in Borrower shall have been transferred to
\n a person or entity not owning at least 49% of the direct or indirect
\n ownership interests in Borrower on the date of closing, Borrower shall
\n deliver to Lender a non-consolidation opinion which may be relied upon by
\n Lender, the Rating Agencies and their respective counsel, successors and
\n assigns, with respect to the proposed transfer or sale, which opinion shall
\n be reasonably acceptable to Lender and, after a Securitization, the Rating
\n Agencies;<\/p>\n
(iv) immediately prior to such transfer or sale no Event of Default
\n has occurred and is continuing; and<\/p>\n
(v) Borrower shall give or cause to be given written notice to Lender
\n of the proposed transfer or sale not later than thirty (30) days prior
\n thereto, which notice shall set forth the name of the Person to which the
\n interest in Borrower is to be transferred or sold, identify the proposed
\n transferee and set forth the date the transfer or sale is expected to be
\n effective.<\/p>\n
(d) Notwithstanding the provisions set forth in this Section 5.2.13,
\nLender hereby acknowledges that, as part of the Chase Facility, Exodus
\nCommunications and various Affiliates of Exodus Communications have pledged
\ndirect and indirect ownership interests in Borrower and Exodus Communications,
\nas well as in other Subsidiaries (as such term is defined in the Chase Credit
\nAgreement), pursuant to the Security Agreement and the Pledge Agreement (as such
\nterms are defined in the Chase Credit Agreement).<\/p>\n
(e) Borrower agrees to bear and shall reimburse Lender on demand all
\nreasonable expenses incurred by Lender in connection with any transaction
\ndescribed in subsections (b) and (c) of this Section 5.2.13.<\/p>\n
(f) Lender shall not be required to demonstrate any actual impairment
\nof its security or any increased risk of default hereunder in order to declare
\nthe Debt immediately due and payable upon any violation of this Section 5.2.13.<\/p>\n
(g) The provisions of this Section 5.2.13 shall not be modified or
\namended by Borrower and Lender unless the Rating Agencies have confirmed that
\nsuch amendment or modification will not result in a downgrade, qualification or
\nwithdrawal of the then current ratings assigned to the Securities.<\/p>\n
57<\/p>\n
VI. INSURANCE; CASUALTY; CONDEMNATION; REQUIRED REPAIRS
\n —————————————————<\/p>\n
Section 6.1 Insurance.
\n ——— <\/p>\n
(a) Borrower shall obtain and maintain, or cause to be maintained,
\ninsurance for Borrower and the Properties providing at least the following
\ncoverages:<\/p>\n
(i) comprehensive all risk insurance on the Improvements and the
\nPersonal Property, including contingent liability from Operation of Building
\nLaws, Demolition Costs and Increased Cost of Construction Endorsements, in each
\ncase (A) in an amount equal to one hundred percent (100%) of the “Full
\nReplacement Cost,” which for purposes of this Agreement shall mean actual
\nreplacement value (exclusive of costs of excavations, foundations, underground
\nutilities and footings) with a waiver of depreciation, but the amount shall in
\nno event be less than the outstanding principal balance of the Loan; (B)
\ncontaining an agreed amount endorsement with respect to the Improvements and
\nPersonal Property waiving all co-insurance provisions; (C) *; and (D)
\ncontaining an “Ordinance or Law Coverage” or “Enforcement” endorsement if any of
\nthe Improvements or the use of the Individual Property shall at any time
\nconstitute legal non-conforming structures or uses. In addition, Borrower shall
\nobtain: (y) if any portion of the Improvements is currently or at any time in
\nthe future located in a federally designated “special flood hazard area”, flood
\nhazard insurance in an amount equal to the lesser of (1) the outstanding
\nprincipal balance of the Note or (2) the maximum amount of such insurance
\navailable under the National Flood Insurance Act of 1968, the Flood Disaster
\nProtection Act of 1973 or the National Flood Insurance Reform Act of 1994, as
\neach may be amended or such greater amount as Lender shall require; and (z)
\nearthquake insurance in amounts and in form and substance satisfactory to Lender
\nin the event the Individual Property is located in an area with a high degree of
\nseismic activity, provided that the insurance pursuant to clauses (y) and (z)
\nhereof shall be on terms consistent with the comprehensive all risk insurance
\npolicy required under this subsection (i).<\/p>\n
(ii) commercial general liability insurance against claims for
\npersonal injury, bodily injury, death or property damage occurring upon, in or
\nabout the Individual Property, such insurance (A) to be on the so-called
\n“occurrence” form with a combined limit, including umbrella coverage, of not
\nless than * Dollars ($*); (B) to continue at not less than the aforesaid limit
\nuntil required to be changed by Lender in writing by reason of changed economic
\nconditions making such protection inadequate; and (C) to cover at least the
\nfollowing hazards: (1) premises and operations; (2) products and completed
\noperations on an “if any” basis; (3) independent contractors; (4) blanket
\ncontractual liability for all legal contracts; and (5) contractual liability
\ncovering the indemnities contained in Article 9 of the Mortgages to the extent
\nthe same is available;<\/p>\n
(iii) business income interruption insurance (A) with loss payable to
\nLender; (B) covering all risks required to be covered by the insurance provided
\nfor in subsection (i) above; and (C) containing an extended period of indemnity
\nendorsement which provides that after the physical loss to the Improvements and
\nPersonal Property has been repaired, the continued loss of income will be
\ninsured on a Gross Earnings form until such income either <\/p>\n
58<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
returns to the same level it was at prior to the loss, or the expiration of *
\nfrom the date that the applicable Individual Property is repaired or replaced
\nand operations are resumed, whichever first occurs, and notwithstanding that the
\npolicy may expire prior to the end of such period. The amount of such business
\nincome interruption insurance shall be determined prior to the date hereof and
\nat least once each year thereafter based on Borrower’s reasonable estimate of
\nthe gross earnings from each Individual Property (but not less than the Rent for
\nsuch Individual Property) for * period. All proceeds payable to Lender pursuant
\nto this subsection shall be held by Lender and shall be applied to the
\nobligations secured by the Loan Documents from time to time due and payable
\nhereunder and under the Note; provided, however, that nothing herein contained
\n ——– ——-
\nshall be deemed to relieve Borrower of its obligations to pay the obligations
\nsecured by the Loan Documents on the respective dates of payment provided for in
\nthe Note and the other Loan Documents except to the extent such amounts are
\nactually paid out of the proceeds of such business income insurance;<\/p>\n
(iv) at all times during which structural construction, repairs or
\nalterations are being made with respect to the Improvements, and only if the
\nIndividual Property coverage form does not otherwise apply, (A) owner’s
\ncontingent or protective liability insurance covering claims not covered by or
\nunder the terms or provisions of the above mentioned commercial general
\nliability insurance policy; and (B) the insurance provided for in subsection (i)
\nabove written in a so-called builder’s risk completed value form (1) on a non-
\nreporting basis, (2) against all risks insured against pursuant to subsection
\n(i) above, (3) including permission to occupy the Individual Property, and (4)
\nwith an agreed amount endorsement waiving co-insurance provisions;<\/p>\n
(v) workers’ compensation, subject to the statutory limits of the
\nState, and employer’s liability insurance with a limit of at least One Million
\nand No\/100 Dollars ($1,000,000) per accident and per disease per employee, and
\nOne Million and No\/100 Dollars ($1,000,000) for disease aggregate in respect of
\nany work or operations on or about the Individual Property, or in connection
\nwith the Individual Property or its operation (if applicable);<\/p>\n
(vi) comprehensive boiler and machinery insurance, if applicable, in
\namounts as shall be reasonably required by Lender on terms consistent with the
\ncommercial property insurance policy required under subsection (i) above;<\/p>\n
(vii) umbrella liability insurance in an amount not less than *
\nDollars ($*) per occurrence on terms consistent with the commercial general
\nliability insurance policy required under subsection (ii) above;<\/p>\n
(viii) motor vehicle liability coverage for all owned and non-owned
\nvehicles, including rented and leased vehicles containing minimum limits per
\noccurrence, including umbrella coverage, of One Million and No\/100 Dollars
\n($1,000,000); and<\/p>\n
(ix) upon sixty (60) days’ written notice, such other reasonable
\ninsurance and in such reasonable amounts as Lender from time to time may
\nreasonably request against such other insurable hazards which at the time are
\ncommonly insured against for property similar to the Individual Property located
\nin or around the region in which the Individual Property is located.<\/p>\n
59<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
(b) All insurance provided for in Section 6.1(a) shall be obtained
\nunder valid and enforceable policies (collectively, the “Policies” or in the
\nsingular, the “Policy”), and shall be subject to the approval of Lender as to
\ninsurance companies, amounts, deductibles, loss payees and insureds. The
\nPolicies shall be issued by financially sound and responsible insurance
\ncompanies authorized to do business in the State and having a claims paying
\nability rating of “AA” or better by at least two (2) of the Rating Agencies one
\nof which shall be Standard & Poor’s Ratings Group. The Policies described in
\nSection 6.1 (other than those strictly limited to liability protection) shall
\ndesignate Lender as loss payee. Not less than ten (10) days prior to the
\nexpiration dates of the Policies theretofore furnished to Lender, certificates
\nof insurance evidencing the Policies accompanied by evidence satisfactory to
\nLender of payment of the premiums due thereunder (the “Insurance Premiums”),
\nshall be delivered by Borrower to Lender.<\/p>\n
(c) Any blanket insurance Policy shall specifically allocate to the
\nIndividual Property the amount of coverage from time to time required hereunder
\nand shall otherwise provide the same protection as would a separate Policy
\ninsuring only the Properties in compliance with the provisions of Section
\n6.1(a).<\/p>\n
(d) All Policies of insurance provided for or contemplated by Section
\n6.1(a), except for the Policy referenced in Section 6.1(a)(v), shall name
\nBorrower, or the Tenant, as the insured and Lender as the additional insured, as
\nits interests may appear, and in the case of property damage, boiler and
\nmachinery, flood and earthquake insurance, shall contain a non-contributing
\nmortgagee clause in favor of Lender providing that the loss thereunder shall be
\npayable to Lender.<\/p>\n
(e) All Policies of insurance provided for in Section 6.1(a)(v) shall
\ncontain clauses or endorsements to the effect that:<\/p>\n
(i) no act or negligence of Borrower, or anyone acting for
\nBorrower, or of any Tenant or other occupant, or failure to comply with the
\nprovisions of any Policy, which might otherwise result in a forfeiture of the
\ninsurance or any part thereof, shall in any way affect the validity or
\nenforceability of the insurance insofar as Lender is concerned;<\/p>\n
(ii) the Policy shall not be materially changed (other than to
\nincrease the coverage provided thereby) or canceled without at least thirty (30)
\ndays’ written notice to Lender and any other party named therein as an
\nadditional insured;<\/p>\n
(iii) the issuers thereof shall give written notice to Lender if
\nthe Policy has not been renewed fifteen (15) days prior to its expiration; and<\/p>\n
(iv) Lender shall not be liable for any Insurance Premiums
\nthereon or subject to any assessments thereunder.<\/p>\n
(f) If at any time Lender is not in receipt of written evidence that
\nall insurance required hereunder is in full force and effect, Lender shall have
\nthe right, without notice to Borrower, to take such action as Lender deems
\nnecessary to protect its interest in the Properties, including, without
\nlimitation, the obtaining of such insurance coverage as Lender in its sole
\ndiscretion deems appropriate. All premiums incurred by Lender in connection with
\nsuch action <\/p>\n
60<\/p>\n
or in obtaining such insurance and keeping it in effect shall be paid by
\nBorrower to Lender upon demand and, until paid, shall be secured by the
\nMortgages and shall bear interest at the Default Rate.<\/p>\n
Section 6.2 Casualty. If an Individual Property shall be damaged or
\n ——–
\ndestroyed, in whole or in part, by fire or other casualty (a “Casualty”),
\nBorrower shall give prompt notice of such damage to Lender and shall promptly
\ncommence and diligently prosecute the completion of the repair and restoration
\nof the Individual Property as nearly as possible to the condition the Individual
\nProperty was in immediately prior to such fire or other casualty, with such
\nalterations as may be reasonably approved by Lender (a “Restoration”) and
\notherwise in accordance with Section 6.4. Borrower shall pay or cause Exodus
\nCommunications, as tenant under the Master Leases, to pay all costs of such
\nRestoration whether or not such costs are covered by insurance. Lender may, but
\nshall not be obligated to make proof of loss if not made promptly by Borrower.<\/p>\n
Section 6.3 Condemnation. Borrower shall promptly give Lender notice
\n ————
\nof the actual or threatened commencement of any proceeding for the Condemnation
\nof any Individual Property and shall deliver to Lender copies of any and all
\npapers served in connection with such proceedings. Lender may participate in any
\nsuch proceedings, and Borrower shall from time to time deliver to Lender all
\ninstruments requested by it to permit such participation. Borrower shall, at its
\nexpense, diligently prosecute any such proceedings, and shall consult with
\nLender, its attorneys and experts, and cooperate with them in the carrying on or
\ndefense of any such proceedings. Notwithstanding any taking by any public or
\nquasi-public authority through Condemnation or otherwise (including but not
\nlimited to any transfer made in lieu of or in anticipation of the exercise of
\nsuch taking), Borrower shall continue to pay the Debt at the time and in the
\nmanner provided for its payment in the Note and in this Agreement and the Debt
\nshall not be reduced until any Award shall have been actually received and
\napplied by Lender, after the deduction of expenses of collection, to the
\nreduction or discharge of the Debt. Lender shall not be limited to the interest
\npaid on the Award by the condemning authority but shall be entitled to receive
\nout of the Award interest at the rate or rates provided herein or in the Note.
\nIf any Individual Property or any portion thereof is taken by a condemning
\nauthority, Borrower shall promptly commence and diligently prosecute the
\nRestoration of the applicable Individual Property and otherwise comply with the
\nprovisions of Section 6.4. If any Individual Property is sold, through
\nforeclosure or otherwise, prior to the receipt by Lender of the Award, Lender
\nshall have the right, whether or not a deficiency judgment on the Note shall
\nhave been sought, recovered or denied, to receive the Award, or a portion
\nthereof sufficient to pay the Debt.<\/p>\n
Section 6.4 Restoration. The following provisions shall apply in
\n ———–
\nconnection with the Restoration of any Individual Property:<\/p>\n
(a) If the Net Proceeds shall be less than * Dollars ($*) and the
\ncosts of completing the Restoration shall be less than * Dollars ($*), the Net
\nProceeds will be disbursed by Lender to Borrower upon receipt, provided that all
\nof the conditions set forth in Section 6.4(b)(i) are met and Borrower delivers
\nto Lender a written undertaking to expeditiously commence and to satisfactorily
\ncomplete with due diligence the Restoration in compliance with all applicable<\/p>\n
61<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
governmental laws, rules and regulations (including all applicable environmental
\nlaws) and in accordance with the terms of this Agreement.<\/p>\n
(b) If the Net Proceeds are equal to or greater than * Dollars ($*)
\nor the costs of completing the Restoration is equal to or greater than * Dollars
\n($*) Lender shall make the Net Proceeds available for the Restoration in
\naccordance with the provisions of this Section 6.4. The term “Net Proceeds” for
\npurposes of this Section 6.4 shall mean: (i) the net amount of all insurance
\nproceeds received by Lender pursuant to Section 6.1 (a)(i), (iv), (vi) and (ix)
\nas a result of such damage or destruction, after deduction of its reasonable
\ncosts and expenses (including, but not limited to, reasonable counsel fees), if
\nany, in collecting same (“Insurance Proceeds”), or (ii) the net amount of the
\nAward, after deduction of its reasonable costs and expenses (including, but not
\nlimited to, reasonable counsel fees), if any, in collecting same (“Condemnation
\nProceeds”), whichever the case may be.<\/p>\n
(i) The Net Proceeds shall be made available to Borrower for
\n Restoration provided that each of the following conditions are met:<\/p>\n
(A) no Event of Default shall have occurred and be continuing;<\/p>\n
(B) (1) in the event the Net Proceeds are Insurance Proceeds,
\n less than * percent (*%) of the total floor area of the
\n Improvements on the Individual Property has been damaged, destroyed
\n or rendered unusable as a result of such fire or other casualty or
\n (2) in the event the Net Proceeds are Condemnation Proceeds, less
\n than * percent (*%) of the land constituting the Individual
\n Property is taken, and such land is located along the perimeter or
\n periphery of the Individual Property, and no portion of the
\n Improvements is located on such land;<\/p>\n
(C) Leases demising in the aggregate a percentage amount equal
\n to or greater than the Rentable Space Percentage of the total
\n rentable space in the Individual Property which has been demised
\n under executed and delivered Leases in effect as of the date of the
\n occurrence of such fire or other casualty or taking, whichever the
\n case may be, shall remain in full force and effect during and after
\n the completion of the Restoration, notwithstanding the occurrence
\n of any such fire or other casualty or taking, whichever the case
\n may be, and will make all necessary repairs and restorations
\n thereto at their sole cost and expense. The term “Rentable Space
\n ————–
\n Percentage” shall mean (1) in the event the Net Proceeds are
\n ———-
\n Insurance Proceeds, a percentage amount equal to * percent (*%)
\n and (2) in the event the Net Proceeds are Condemnation Proceeds, a
\n percentage amount equal to seventy five percent (75%);<\/p>\n
(D) Borrower shall commence the Restoration as soon as
\n reasonably practicable (but in no event later than sixty (60) days
\n after such damage or destruction or taking, whichever the case may
\n be, occurs) and shall diligently pursue the same to satisfactory
\n completion;<\/p>\n
62<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
(E) Lender shall be satisfied that any operating deficits,
\n including all scheduled payments of principal and interest under
\n the Note, which will be incurred with respect to the Individual
\n Property as a result of the occurrence of any such fire or other
\n casualty or taking, whichever the case may be, will be covered out
\n of (1) the Net Proceeds, (2) the insurance coverage referred to in
\n Section 6.1(a)(iii), if applicable, or (3) by other funds of
\n Borrower;<\/p>\n
(F) Lender shall be satisfied that the Restoration will be
\n completed on or before the earliest to occur of (1) the Maturity
\n Date, (2) the earliest date required for such completion under the
\n terms of any Leases, (3) such time as may be required under
\n applicable zoning law, ordinance, rule or regulation in order to
\n repair and restore the applicable Individual Property to the
\n condition it was in immediately prior to such fire or other
\n casualty or to as nearly as possible the condition it was in
\n immediately prior to such taking, as applicable or (4) the
\n expiration of the insurance coverage referred to in Section
\n 6.1(a)(iii);<\/p>\n
(G) the Individual Property and the use thereof after the
\n Restoration will be in compliance with and permitted under all
\n applicable zoning laws, ordinances, rules and regulations;<\/p>\n
(H) the Restoration shall be done and completed by Borrower in
\n an expeditious and diligent fashion and in compliance with all
\n applicable governmental laws, rules and regulations (including,
\n without limitation, all applicable environmental laws); and<\/p>\n
(I) such fire or other casualty or taking, as applicable, does
\n not result in the loss of access to the Individual Property or the
\n related Improvements.<\/p>\n
(ii) The Net Proceeds shall be held by Lender in an interest-
\n bearing account and, until disbursed in accordance with the provisions of
\n this Section 6.4(b), shall constitute additional security for the Debt and
\n other obligations under the Loan Documents. The Net Proceeds shall be
\n disbursed by Lender to, or as directed by, Borrower from time to time
\n during the course of the Restoration, upon receipt of evidence satisfactory
\n to Lender that (A) all materials installed and work and labor performed
\n (except to the extent that they are to be paid for out of the requested
\n disbursement) in connection with the Restoration have been paid for in
\n full, and (B) there exist no notices of pendency, stop orders, mechanic’s
\n or materialman’s liens or notices of intention to file same, or any other
\n liens or encumbrances of any nature whatsoever on the Individual Property
\n which have not either been fully bonded to the satisfaction of Lender and
\n discharged of record or in the alternative fully insured to the
\n satisfaction of Lender by the title company issuing the Title Insurance
\n Policy.<\/p>\n
(iii) All plans and specifications required in connection with the
\n Restoration shall be subject to prior review and acceptance in all respects
\n by Lender and by an<\/p>\n
63<\/p>\n
independent consulting engineer selected by Lender (the “Casualty
\n Consultant”). Lender shall have the use of the plans and specifications and
\n all permits, licenses and approvals required or obtained in connection with
\n the Restoration. The identity of the contractors, subcontractors and
\n materialmen engaged in the Restoration, as well as the contracts under
\n which they have been engaged, shall be subject to prior review and
\n acceptance by Lender and the Casualty Consultant. All costs and expenses
\n incurred by Lender in connection with making the Net Proceeds available for
\n the Restoration including, without limitation, reasonable counsel fees and
\n disbursements and the Casualty Consultant’s fees, shall be paid by
\n Borrower.<\/p>\n
(iv) In no event shall Lender be obligated to make disbursements
\n of the Net Proceeds in excess of an amount equal to the costs actually
\n incurred from time to time for work in place as part of the Restoration, as
\n certified by the Casualty Consultant, minus the Casualty Retainage. The
\n —–
\n term “Casualty Retainage” shall mean an amount equal to ten percent (10%)
\n of the costs actually incurred for work in place as part of the
\n Restoration, as certified by the Casualty Consultant, until the Restoration
\n has been completed. The Casualty Retainage shall in no event, and
\n notwithstanding anything to the contrary set forth above in this Section
\n 6.4(b), be less than the amount actually held back by Borrower from
\n contractors, subcontractors and materialmen engaged in the Restoration. The
\n Casualty Retainage shall not be released until the Casualty Consultant
\n certifies to Lender that the Restoration has been completed in accordance
\n with the provisions of this Section 6.4(b) and that all approvals necessary
\n for the re-occupancy and use of the Individual Property have been obtained
\n from all appropriate governmental and quasi-governmental authorities, and
\n Lender receives evidence satisfactory to Lender that the costs of the
\n Restoration have been paid in full or will be paid in full out of the
\n Casualty Retainage; provided, however, that Lender will release the portion
\n ——– ——-
\n of the Casualty Retainage being held with respect to any contractor,
\n subcontractor or materialman engaged in the Restoration as of the date upon
\n which the Casualty Consultant certifies to Lender that the contractor,
\n subcontractor or materialman has satisfactorily completed all work and has
\n supplied all materials in accordance with the provisions of the
\n contractor’s, subcontractor’s or materialman’s contract, the contractor,
\n subcontractor or materialman delivers the lien waivers and evidence of
\n payment in full of all sums due to the contractor, subcontractor or
\n materialman as may be reasonably requested by Lender or by the title
\n company issuing the Title Insurance Policy, and Lender receives an
\n endorsement to the Title Insurance Policy insuring the continued priority
\n of the lien of the related Mortgage and evidence of payment of any premium
\n payable for such endorsement. If required by Lender, the release of any
\n such portion of the Casualty Retainage shall be approved by the surety
\n company, if any, which has issued a payment or performance bond with
\n respect to the contractor, subcontractor or materialman.<\/p>\n
(v) Lender shall not be obligated to make disbursements of the Net
\n Proceeds more frequently than once every calendar month.<\/p>\n
(vi) If at any time the Net Proceeds or the undisbursed balance
\n thereof shall not, in the opinion of Lender in consultation with the
\n Casualty Consultant, be sufficient to pay in full the balance of the costs
\n which are estimated by the Casualty Consultant to be<\/p>\n
64<\/p>\n
incurred in connection with the completion of the Restoration, Borrower
\n shall deposit the deficiency (the “Net Proceeds Deficiency”) with Lender
\n before any further disbursement of the Net Proceeds shall be made. The Net
\n Proceeds Deficiency deposited with Lender shall be held by Lender and shall
\n be disbursed for costs actually incurred in connection with the Restoration
\n on the same conditions applicable to the disbursement of the Net Proceeds,
\n and until so disbursed pursuant to this Section 6.4(b) shall constitute
\n additional security for the Debt and other obligations under the Loan
\n Documents.<\/p>\n
(vii) The excess, if any, of the Net Proceeds and the remaining
\n balance, if any, of the Net Proceeds Deficiency deposited with Lender after
\n the Casualty Consultant certifies to Lender that the Restoration has been
\n completed in accordance with the provisions of this Section 6.4(b), and the
\n receipt by Lender of evidence satisfactory to Lender that all costs
\n incurred in connection with the Restoration have been paid in full, shall
\n be remitted by Lender to Borrower, provided no Event of Default shall have
\n occurred and shall be continuing under the Note, this Agreement or any of
\n the other Loan Documents.<\/p>\n
(c) All Net Proceeds not required (i) to be made available for the
\nRestoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant
\nto Section 6.4(b)(vii) may be retained and applied by Lender toward the payment
\nof the Debt whether or not then due and payable in such order, priority and
\nproportions as Lender in its sole discretion shall deem proper, or, at the
\ndiscretion of Lender, the same may be paid, either in whole or in part, to
\nBorrower for such purposes as Lender shall designate, in its discretion.<\/p>\n
(d) In the event of foreclosure of the Mortgage with respect to the
\nIndividual Property, or other transfer of title to the Individual Property in
\nextinguishment in whole or in part of the Debt all right, title and interest of
\nBorrower in and to the Policies that are not blanket Policies then in force
\nconcerning the Individual Property and all proceeds payable thereunder shall
\nthereupon vest in the purchaser at such foreclosure or Lender or other
\ntransferee in the event of such other transfer of title.<\/p>\n
VII. RESERVE FUNDS
\n ————-<\/p>\n
Section 7.1 Intentionally Omitted
\n ———————<\/p>\n
Section 7.2 Tax and Insurance Escrow Fund
\n —————————–<\/p>\n
Borrower shall pay to Lender on each Payment Date (a) one-twelfth of
\nthe Taxes that Lender estimates will be payable during the next ensuing twelve
\n(12) months in order to accumulate with Lender sufficient funds to pay all such
\nTaxes at least thirty (30) days prior to their respective due dates, and (b)
\none-twelfth of the Insurance Premiums that Lender estimates will be payable for
\nthe renewal of the coverage afforded by the Policies upon the expiration thereof
\nin order to accumulate with Lender sufficient funds to pay all such Insurance
\nPremiums at least thirty (30) days prior to the expiration of the Policies (said
\namounts in (a) and (b) above hereinafter called the “Tax and Insurance Escrow
\nFund”). The Tax and Insurance Escrow Fund and the payments of interest or
\nprincipal or both, payable pursuant to the Note, shall be added together and
\nshall be paid as an aggregate sum by Borrower to Lender. Lender will apply<\/p>\n
65<\/p>\n
the Tax and Insurance Escrow Fund to payments of Taxes and Insurance Premiums
\nrequired to be made by Borrower pursuant to Section 5.1.2 hereof and under the
\nMortgages. In making any payment relating to the Tax and Insurance Escrow Fund,
\nLender may do so according to any bill, statement or estimate procured from the
\nappropriate public office (with respect to Taxes) or insurer or agent (with
\nrespect to Insurance Premiums), without inquiry into the accuracy of such bill,
\nstatement or estimate or into the validity of any tax, assessment, sale,
\nforfeiture, tax lien or title or claim thereof. If the amount of the Tax and
\nInsurance Escrow Fund shall exceed the amounts due for Taxes and Insurance
\nPremiums pursuant to Section 5.1.2 hereof, Lender shall, in its reasonable
\ndiscretion, return any excess to Borrower or credit such excess against future
\npayments to be made to the Tax and Insurance Escrow Fund. Any amount remaining
\nin the Tax and Insurance Escrow Fund after the Debt has been paid in full shall
\nbe returned to Borrower. If at any time Lender reasonably determines that the
\nTax and Insurance Escrow Fund is not or will not be sufficient to pay Taxes and
\nInsurance Premiums by the dates set forth in (a) and (b) above, Lender shall
\nnotify Borrower of such determination and Borrower shall increase its monthly
\npayments to Lender by the amount that Lender estimates is sufficient to make up
\nthe deficiency at least thirty (30) days prior to delinquency of the Taxes
\nand\/or thirty (30) days prior to expiration of the Policies, as the case may be.<\/p>\n
Section 7.3 *
\n 66<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
*<\/p>\n
67<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
*<\/p>\n
68<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
*<\/p>\n
69<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
*<\/p>\n
70<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
*<\/p>\n
Section 7.4 Reserve Funds, Generally.
\n ———————— <\/p>\n
Borrower grants to Lender a first-priority perfected security interest
\nin each of the Reserve Funds and any and all monies now or hereafter deposited
\nin each Reserve Fund as additional security for payment of the Debt. Until
\nexpended or applied in accordance herewith, the Reserve Funds shall constitute
\nadditional security for the Debt. Upon the occurrence of an Event of Default,
\nLender may, in addition to any and all other rights and remedies available to
\nLender, apply any sums then present in any or all of the Reserve Funds to the
\npayment of the Debt in any order in its sole discretion. The Reserve Funds
\nshall not constitute trust funds and may be commingled with other monies held by
\nLender. The Reserve Funds shall be held in interest bearing accounts and all
\nearnings or interest on a Reserve Fund shall be added to and become a part of
\nsuch Reserve Fund and shall be disbursed in the same manner as other monies
\ndeposited in such Reserve Fund. Borrower shall not, without obtaining the prior
\nconsent of Lender, further pledge, assign or grant any security interest in any
\nReserve Fund or the monies deposited therein or permit any lien or encumbrance
\nto attach thereto, or any levy to be made thereon, or any UCC-1 Financing
\nStatements, except those naming Lender as the secured party, to be filed with
\nrespect thereto. Lender shall not be liable for any loss sustained on the
\ninvestment of any funds constituting the Replacement Reserve Fund.<\/p>\n
VIII. DEFAULTS
\n ——–<\/p>\n
Section 8.1 Event of Default.
\n —————-
\n (a) Each of the following events shall constitute an event of default
\nhereunder (an “Event of Default”):<\/p>\n
(i) if any portion of the Debt is not paid when due;<\/p>\n
(ii) if any of the Taxes or Other Charges are not paid when the
\nsame are due and payable;<\/p>\n
(iii) if the Policies are not kept in full force and effect, or if
\ncertified copies of the Policies are not delivered to Lender upon request;<\/p>\n
(iv) if Borrower transfers or encumbers any portion of the
\nProperties without Lender’s prior consent or otherwise violates the provisions
\nof Article 5.2.13 of this Agreement;<\/p>\n
(v) if any representation or warranty made by Borrower herein or
\nin any other Loan Document, or in any report, certificate, financial statement
\nor other instrument, agreement or document furnished to Lender shall have been
\nfalse or misleading in any material respect as of the date the representation or
\nwarranty was made;<\/p>\n
(vi) if Borrower or any guarantor under any guaranty issued in
\nconnection with the Loan shall make an assignment for the benefit of creditors;<\/p>\n
71<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
(vii) if a receiver, liquidator or trustee shall be appointed for
\nBorrower or Exodus Communications or if Borrower or Exodus Communications shall
\nbe adjudicated a bankrupt or insolvent, or if any petition for bankruptcy,
\nreorganization or arrangement pursuant to federal bankruptcy law, or any similar
\nfederal or state law, shall be filed by or against, consented to, or acquiesced
\nin by, Borrower or Exodus Communications, or if any proceeding for the
\ndissolution or liquidation of Borrower or Exodus Communications shall be
\ninstituted; provided, however, if such appointment, adjudication, petition or
\n ——– ——-
\nproceeding was involuntary and not consented to by Borrower or Exodus
\nCommunications, upon the same not being discharged, stayed or dismissed within
\nsixty (60) days;<\/p>\n
(viii) if Borrower attempts to assign its rights under this
\nAgreement or any of the other Loan Documents or any interest herein or therein
\nin contravention of the Loan Documents;<\/p>\n
(ix) if Borrower breaches any of its respective negative covenants
\ncontained in Section 5.2 or any covenant contained in Section 4.1.30 hereof;<\/p>\n
(x) with respect to any term, covenant or provision set forth
\nherein which specifically contains a notice requirement or grace period, if
\nBorrower shall be in default under such term, covenant or condition after the
\ngiving of such notice or the expiration of such grace period;<\/p>\n
(xi) if any of the assumptions contained in the Insolvency
\nOpinion, or in any other “non-consolidation” opinion delivered to Lender in
\nconnection with the Loan, or in any other “non-consolidation” delivered
\nsubsequent to the closing of the Loan, is or shall become untrue in any material
\nrespect;<\/p>\n
(xii) if Borrower shall continue to be in Default under any of the
\nother terms, covenants or conditions of this Agreement not specified in
\nsubsections (i) to (xi) above, for ten (10) days after notice to Borrower from
\nLender, in the case of any Default which can be cured by the payment of a sum of
\nmoney, or for thirty (30) days after notice from Lender in the case of any other
\nDefault; provided, however, that if such non-monetary Default is susceptible of
\n ——– ——-
\ncure but cannot reasonably be cured within such 30-day period and provided
\nfurther that Borrower shall have commenced to cure such Default within such 30-
\nday period and thereafter diligently and expeditiously proceeds to cure the
\nsame, such 30-day period shall be extended for such time as is reasonably
\nnecessary for Borrower in the exercise of due diligence to cure such Default,
\nsuch additional period not to exceed one hundred twenty (120) days;<\/p>\n
(xiii) if there shall be a default under any of the other Loan
\nDocuments beyond any applicable cure periods contained in such documents,
\nwhether as to Borrower or any Individual Property, or if any other such event
\nshall occur or condition shall exist, if the effect of such event or condition
\nis to accelerate the maturity of any portion of the Debt or to permit Lender to
\naccelerate the maturity of all or any portion of the Debt;<\/p>\n
(xiv) if there shall occur any “Event of Default” under any of
\nthe Master Leases (as such term is defined therein);<\/p>\n
72<\/p>\n
(xv) if any Master Lease is surrendered, canceled, modified,
\nchanged, supplemented, altered or amended without the prior consent of Lender;
\nor<\/p>\n
(xvi) (a) if Exodus Communications or any of its Subsidiaries
\nshall fail to make any payment of any principal of or premium or interest on any
\nIndebtedness that is outstanding in a principal or notional amount of at least
\n$* in the aggregate (but excluding Indebtedness outstanding hereunder)
\nwhen the same becomes due and payable (whether by scheduled maturity, required
\nprepayment, acceleration, demand or otherwise), and such failure shall continue
\nafter the applicable grace period, if any, specified in the agreement or
\ninstrument relating to such Indebtedness; or (b) any other event shall occur or
\ncondition shall exist under any agreement or instrument relating to any such
\nIndebtedness and shall continue after the applicable grace period, if any,
\nspecified in such agreement or instrument if the effect of such event or
\ncondition is to accelerate, or to permit the acceleration of, the maturity of
\nsuch Indebtedness; or (c) any such Indebtedness shall be declared to be due and
\npayable, or required to be prepaid or redeemed (other than by a regularly
\nscheduled required prepayment or redemption), purchased or defeased, or an offer
\nto prepay, redeem, purchase or defease such Indebtedness shall be required to be
\nmade, in each case prior to the stated maturity thereof; provided that this
\n ——–
\nclause (xvi) shall not apply to secured Indebtedness that becomes due and
\npayable solely as a result of a voluntary sale or transfer of the property and
\nassets securing such Indebtedness.<\/p>\n
(b) Upon the occurrence of an Event of Default (other than an Event of
\nDefault described in clauses (vi), (vii) or (viii) above) and at any time
\nthereafter, in addition to any other rights or remedies available to it pursuant
\nto this Agreement and the other Loan Documents or at law or in equity, Lender
\nmay take such action, without notice or demand, that Lender deems advisable to
\nprotect and enforce its rights against Borrower and in and to all or any
\nIndividual Property, including, without limitation, declaring the Debt to be
\nimmediately due and payable, and Lender may enforce or avail itself of any or
\nall rights or remedies provided in the Loan Documents against Borrower and any
\nor all of the Properties, including, without limitation, all rights or remedies
\navailable at law or in equity; and upon any Event of Default described in
\nclauses (vi), (vii) or (viii) above, the Debt and all other obligations of
\nBorrower hereunder and under the other Loan Documents shall immediately and
\nautomatically become due and payable, without notice or demand, and Borrower
\nhereby expressly waives any such notice or demand, anything contained herein or
\nin any other Loan Document to the contrary notwithstanding.<\/p>\n
Section 8.2 Remedies.
\n ——–
\n (a) Upon the occurrence of an Event of Default, all or any one or more
\nof the rights, powers, privileges and other remedies available to Lender against
\nBorrower under this Agreement or any of the other Loan Documents executed and
\ndelivered by, or applicable to, Borrower or at law or in equity may be exercised
\nby Lender at any time and from time to time, whether or not all or any of the
\nDebt shall be declared due and payable, and whether or not Lender shall have
\ncommenced any foreclosure proceeding or other action for the enforcement of its
\nrights and remedies under any of the Loan Documents with respect to all or any
\nIndividual Property. Any such actions taken by Lender shall be cumulative and
\nconcurrent and may be pursued independently, singly, successively, together or
\notherwise, at such time and in such order as Lender may determine in its sole
\ndiscretion, to the fullest extent permitted by law, <\/p>\n
73<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
without impairing or otherwise affecting the other rights and remedies of Lender
\npermitted by law, equity or contract or as set forth herein or in the other Loan
\nDocuments. Without limiting the generality of the foregoing, Borrower agrees
\nthat if an Event of Default is continuing (i) Lender is not subject to any “one
\naction” or “election of remedies” law or rule, and (ii) all liens and other
\nrights, remedies or privileges provided to Lender shall remain in full force and
\neffect until Lender has exhausted all of its remedies against the Properties and
\neach Mortgage has been foreclosed, sold and\/or otherwise realized upon in
\nsatisfaction of the Debt or the Debt has been paid in full.<\/p>\n
(b) With respect to Borrower and the Properties, nothing contained
\nherein or in any other Loan Document shall be construed as requiring Lender to
\nresort to any Individual Property for the satisfaction of any of the Debt in
\npreference or priority to any other Individual Property, and Lender may seek
\nsatisfaction out of all of the Properties or any part thereof, in its absolute
\ndiscretion in respect of the Debt. In addition, Lender shall have the right from
\ntime to time to partially foreclose the Mortgages in any manner and for any
\namounts secured by the Mortgages then due and payable as determined by Lender in
\nits sole discretion including, without limitation, the following circumstances:
\n(i) in the event Borrower defaults beyond any applicable grace period in the
\npayment of one or more scheduled payments of principal and interest, Lender may
\nforeclose one or more of the Mortgages to recover such delinquent payments, or
\n(ii) in the event Lender elects to accelerate less than the entire outstanding
\nprincipal balance of the Loan, Lender may foreclose one or more of the Mortgages
\nto recover so much of the principal balance of the Loan as Lender may accelerate
\nand such other sums secured by one or more of the Mortgages as Lender may elect.
\nNotwithstanding one or more partial foreclosures, the Properties shall remain
\nsubject to the Mortgages to secure payment of sums secured by the Mortgages and
\nnot previously recovered.<\/p>\n
(c) Lender shall have the right from time to time to sever the Note
\nand the other Loan Documents into one or more separate notes, mortgages and
\nother security documents (the “Severed Loan Documents”) in such denominations as
\nLender shall determine in its sole discretion for purposes of evidencing and
\nenforcing its rights and remedies provided hereunder. Borrower shall execute and
\ndeliver to Lender from time to time, promptly after the request of Lender, a
\nseverance agreement and such other documents as Lender shall request in order to
\neffect the severance described in the preceding sentence, all in form and
\nsubstance reasonably satisfactory to Lender. Borrower hereby absolutely and
\nirrevocably appoints Lender as its true and lawful attorney, coupled with an
\ninterest, in its name and stead to make and execute all documents necessary or
\ndesirable to effect the aforesaid severance, Borrower ratifying all that its
\nsaid attorney shall do by virtue thereof; provided, however, Lender shall not
\n ——– ——-
\nmake or execute any such documents under such power until three (3) days after
\nnotice has been given to Borrower by Lender of Lender’s intent to exercise its
\nrights under such power. Except as may be required in connection with a
\nsecuritization pursuant to Section 9.1 hereof, (i) Borrower shall not be
\nobligated to pay any costs or expenses incurred in connection with the
\npreparation, execution, recording or filing of the Severed Loan Documents, and
\n(ii) the Severed Loan Documents shall not contain any representations,
\nwarranties or covenants not contained in the Loan Documents and any such
\nrepresentations and warranties contained in the Severed Loan Documents will be
\ngiven by Borrower only as of the Closing Date.<\/p>\n
74<\/p>\n
Section 8.3 Remedies Cumulative; Waivers.
\n —————————- <\/p>\n
The rights, powers and remedies of Lender under this Agreement shall
\nbe cumulative and not exclusive of any other right, power or remedy which Lender
\nmay have against Borrower pursuant to this Agreement or the other Loan
\nDocuments, or existing at law or in equity or otherwise. Lender’s rights,
\npowers and remedies may be pursued singly, concurrently or otherwise, at such
\ntime and in such order as Lender may determine in Lender’s sole discretion. No
\ndelay or omission to exercise any remedy, right or power accruing upon an Event
\nof Default shall impair any such remedy, right or power or shall be construed as
\na waiver thereof, but any such remedy, right or power may be exercised from time
\nto time and as often as may be deemed expedient. A waiver of one Default or
\nEvent of Default with respect to Borrower shall not be construed to be a waiver
\nof any subsequent Default or Event of Default by Borrower or to impair any
\nremedy, right or power consequent thereon.<\/p>\n
IX. SPECIAL PROVISIONS
\n ——————<\/p>\n
Section 9.1 Sale of Notes and Securitization.
\n ——————————– <\/p>\n
At the request of the holder of the Note and to the extent not already
\nrequired to be provided by Borrower under this Agreement, Borrower shall use
\ncommercially reasonable efforts to provide information and modify or supplement
\nthe Loan Documents so as to satisfy the market standards to which the Lender
\ncustomarily adheres and which may be reasonably required by the Rating Agencies
\nin connection with the sale of the Note or participations therein or the first
\nsuccessful securitization (such sale and\/or securitization, the
\n“Securitization”) of rated single or multi-class securities (the “Securities”)
\nsecured by or evidencing ownership interests in the Note and the Mortgages,
\nincluding, without limitation, to:<\/p>\n
(a) (i) provide such financial and other information with respect to
\n the Properties, Borrower and the Manager, (ii) provide
\n budgets relating to the Properties and (iii) to perform or
\n permit or cause to be performed or permitted such site
\n inspections and other due diligence investigations of the
\n Properties, as may be reasonably requested by the holder of
\n the Note or the Rating Agencies as may be necessary or
\n appropriate in connection with the Securitization (the
\n “Provided Information”), together, if customary, with
\n appropriate verification and\/or consents of the Provided
\n Information through letters of auditors or opinions of
\n counsel of independent attorneys acceptable to Lender and the
\n Rating Agencies;<\/p>\n
(b) cause counsel to render opinions, which may be relied upon
\n by the parties to the Securitization and the Rating Agencies,
\n as to non-consolidation, fraudulent conveyance, and true sale
\n and\/or lease or any other opinion customary in securitization
\n transactions, which counsel and opinions shall be reasonably
\n satisfactory to the Lender and the Rating Agencies;<\/p>\n
(c) make such representations and warranties as of the closing
\n date of the Securitization with respect to the Properties,
\n Borrower, and the Loan Documents as are customarily provided
\n in securitization transactions and <\/p>\n
75<\/p>\n
as may be reasonably requested by the Lender or the Rating
\n Agencies and consistent with the facts covered by such
\n representations and warranties as they exist on the date
\n thereof, including the representations and warranties made in
\n the Loan Documents; and<\/p>\n
(d) execute such amendments to the Loan Documents and
\n organizational documents, as may be reasonably requested by
\n the Lender or as may be requested by the Rating Agencies or
\n otherwise to effect the Securitization; including splitting
\n the Note into two notes and splitting the Mortgage into two
\n mortgages, including a first priority mortgage and a second
\n priority mortgage or otherwise as determined by and
\n acceptable to Lender, creating additional Components,
\n reducing the number of Components, revising the interest rate
\n for each Component, reallocating the principal balances of
\n each Component, increasing or decreasing the Monthly Debt
\n Service Payments for each Component or eliminating the
\n Component structure of the Loan or entering into a Management
\n Agreement (provided that Borrower shall enter into a
\n Management Agreement if otherwise expressly obligated
\n pursuant to this Agreement); provided, however, that Borrower
\n ——– ——-
\n shall not be required to modify or amend any Loan Document if
\n such modification or amendment would (i) change the overall
\n effective interest rate, the stated maturity or the aggregate
\n amount of amortization of principal set forth in the Note,
\n (ii) modify or amend any other material economic term of the
\n Loan to its detriment, (iii) materially increase the
\n obligations or materially reduce any rights of Borrower under
\n the Loan Documents, or (iv) require or result in any material
\n alteration of any tax or accounting treatment of Borrower or
\n any of its Affiliates.<\/p>\n
*<\/p>\n
Section 9.2 Securitization Indemnification.
\n —————————— <\/p>\n
(a) Borrower understands that certain of the Provided Information may
\nbe included in disclosure documents in connection with the Securitization,
\nincluding, without limitation, a prospectus, prospectus supplement or private
\nplacement memorandum (each, a “Disclosure Document”) and may also be included in
\nfilings with the Securities and Exchange Commission pursuant to the Securities
\nAct of 1933, as amended (the “Securities Act”), or the Securities and Exchange
\nAct of 1934, as amended (the “Exchange Act”), or provided or made available to
\ninvestors or prospective investors in the Securities, the Rating Agencies, and
\nservice providers relating to the Securitization. In the event that the
\nDisclosure Document is required to be revised prior to the sale of all
\nSecurities, Borrower will cooperate with the holder of the Note in updating the
\nDisclosure Document by providing all current information necessary to keep the
\nDisclosure Document accurate and complete in all material respects.<\/p>\n
76<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
*<\/p>\n
77<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
(d) Promptly after receipt by an indemnified party under this Section
\n9.2 of notice of the commencement of any action, such indemnified party will, if
\na claim in respect thereof is to be made against the indemnifying party under
\nthis Section 9.2, notify the indemnifying party in writing of the commencement
\nthereof, but the omission to so notify the indemnifying party will not relieve
\nthe indemnifying party from any liability which the indemnifying party may have
\nto any indemnified party hereunder except to the extent that failure to notify
\ncauses prejudice to the indemnifying party. In the event that any action is
\nbrought against any indemnified party, and it notifies the indemnifying party of
\nthe commencement thereof, the indemnifying party will be entitled, jointly with
\nany other indemnifying party, to participate therein and, to the extent that it
\n(or they) may elect by written notice delivered to the indemnified party
\npromptly after receiving the aforesaid notice from such indemnified party, to
\nassume the defense thereof with counsel satisfactory to such indemnified party.
\nAfter notice from the indemnifying party to such indemnified party under this
\nSection 9.2 the indemnifying party shall not be responsible for any legal or
\nother expenses subsequently incurred by such indemnified party in connection
\nwith the defense thereof other than reasonable costs of investigation; provided,
\nhowever, if the defendants in any such action include both the indemnified party
\nand the indemnifying party and the indemnified party shall have reasonably
\nconcluded that there are any legal defenses available to it and\/or other
\nindemnified parties that are different from or additional to those available to
\nthe indemnifying party, the indemnified party or parties shall have the right to
\nselect separate counsel to assert such legal defenses and to otherwise
\nparticipate in the defense of such action on behalf of such indemnified party to
\nparties. The indemnifying party shall not be liable for the expenses of more
\nthan one such separate counsel unless an indemnified party shall have reasonably
\nconcluded that there may be legal defenses available to it that are different
\nfrom or additional to those available to another indemnified party.<\/p>\n
(e) In order to provide for just and equitable contribution in
\ncircumstances in which the indemnity agreements provided for in Section 9.2(b)
\nor (c) is or are for any reason held to be unenforceable by an indemnified party
\nin respect of any Liabilities (or action in respect thereof) referred to therein
\nwhich would otherwise be indemnifiable under Section 9.2(b) or (c), the
\nindemnifying party shall contribute to the amount paid or payable by the
\nindemnified party as a result of such losses, claims, damages or liabilities (or
\naction in respect thereof); provided, however, that no Person guilty of
\n ——– ——-
\nfraudulent misrepresentation (within the meaning of Section 11(f) of the
\nSecurities Act) shall be entitled to contribution from any Person who was not
\nguilty of such fraudulent misrepresentation. In determining the amount of
\ncontribution to which the respective parties are entitled, the following factors
\nshall be considered: (i) Lehman’s and Borrower’s relative knowledge and access
\nto information concerning the matter with respect to which claim was asserted;
\n(ii) the opportunity to correct and prevent any statement or omission; and (iii)
\nany other equitable considerations appropriate in the circumstances. Lender and
\nBorrower hereby agree that it would not be equitable if the amount of such
\ncontribution were determined by pro rata or per capita allocation.<\/p>\n
(f) The liabilities and obligations of both Borrower and Lender under
\nthis Section 9.2 shall survive the termination of this Agreement and the
\nsatisfaction and discharge of the Debt.<\/p>\n
78<\/p>\n
Section 9.3 Rating Surveillance.
\n ——————- <\/p>\n
Borrower will retain the Rating Agencies to provide rating
\nsurveillance services on any certificates issued in a Securitization. *<\/p>\n
Section 9.4 Exculpation.
\n ———– <\/p>\n
Subject to the qualifications below, Lender shall not enforce the
\nliability and obligation of Borrower to perform and observe the obligations
\ncontained in the Note, this Agreement, the Mortgages or the other Loan Documents
\nby any action or proceeding wherein a money judgment shall be sought against
\nBorrower (provided further that except to the extent provided by law or as
\nexpressly provided in the Loan Documents, no Affiliate shall be personally
\nobligated for any debt, obligation or liability of the Borrower whether arising
\nin contract, tort or otherwise), except that Lender may bring a foreclosure
\naction, an action for specific performance or any other appropriate action or
\nproceeding to enable Lender to enforce and realize upon its interest under the
\nNote, this Agreement, the Mortgages and the other Loan Documents, or in the
\nProperties, the Rents, or any other collateral given to Lender pursuant to the
\nLoan Documents; provided, however, that, except as specifically provided herein,
\n ——– ——-
\nany judgment in any such action or proceeding shall be enforceable against
\nBorrower only to the extent of Borrower’s interest in the Properties, in the
\nRents and in any other collateral given to Lender, and Lender, by accepting the
\nNote, this Agreement, the Mortgages and the other Loan Documents, agrees that it
\nshall not sue for, seek or demand any deficiency judgment against Borrower in
\nany such action or proceeding under or by reason of or under or in connection
\nwith the Note, this Agreement, the Mortgages or the other Loan Documents. The
\nprovisions of this section shall not, however, (a) constitute a waiver, release
\nor impairment of any obligation evidenced or secured by any of the Loan
\nDocuments; (b) impair the right of Lender to name Borrower as a party defendant
\nin any action or suit for foreclosure and sale under any of the Mortgages; (c)
\naffect the validity or enforceability of any guaranty made in connection with
\nthe Loan or any of the rights and remedies of Lender thereunder; (d) impair the
\nright of Lender to obtain the appointment of a receiver; (e) impair the
\nenforcement of any of the Assignments of Leases; (f) constitute a prohibition
\nagainst Lender to seek a deficiency judgment against Borrower in order to fully
\nrealize the security granted by each of the Mortgages or to commence any other
\nappropriate action or proceeding in order for Lender to exercise its remedies
\nagainst all of the Properties; or (g) constitute a waiver of the right of Lender
\nto enforce the liability and obligation of Borrower, by money judgment or
\notherwise, to the extent of any loss, damage, cost, expense, liability, claim or
\nother obligation incurred by Lender (including attorneys’ fees and costs
\nreasonably incurred) arising out of or in connection with the following:<\/p>\n
(i) fraud or intentional misrepresentation by Borrower or any
\n guarantor in connection with the Loan;<\/p>\n
(ii) the gross negligence or willful misconduct of Borrower;<\/p>\n
(iii) the breach of any representation, warranty, covenant or
\n indemnification provision in the Environmental Indemnity or in
\n the Mortgages concerning <\/p>\n
79<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
environmental laws, hazardous substances and asbestos and any
\n indemnification of Lender with respect thereto in either
\n document;<\/p>\n
(iv) the removal or disposal by Borrower of any portion of the
\n Properties after an Event of Default;<\/p>\n
(v) the misapplication or conversion by Borrower of (A) any
\n insurance proceeds paid by reason of any loss, damage or
\n destruction to the Properties, (B) any awards or other amounts
\n received in connection with the condemnation of all or a
\n portion of the Properties, or (C) any Rents following an Event
\n of Default;<\/p>\n
(vi) failure to pay charges for labor or materials or other charges
\n that can create liens on any portion of the Properties;<\/p>\n
(vii) any security deposits, advance deposits or any other deposits
\n collected with respect to the Properties which are not
\n delivered to Lender upon a foreclosure of the Properties or
\n action in lieu thereof, except to the extent any such security
\n deposits were applied in accordance with the terms and
\n conditions of any of the Leases prior to the occurrence of the
\n Event of Default that gave rise to such foreclosure or action
\n in lieu thereof; and<\/p>\n
(viii) Borrower’s indemnifications of Lender set forth in Section 9.2
\n hereof.<\/p>\n
Notwithstanding anything to the contrary in this Agreement, the Note
\nor any of the Loan Documents, (A) Lender shall not be deemed to have waived any
\nright which Lender may have under Section 506(a), 506(b), 1111(b) or any other
\nprovisions of the U.S. Bankruptcy Code to file a claim for the full amount of
\nthe Debt secured by the Mortgages or to require that all collateral shall
\ncontinue to secure all of the Debt owing to Lender in accordance with the Loan
\nDocuments, and (B) the Debt shall be fully recourse to Borrower in the event
\nthat: (i) the first full monthly payment of principal and interest under the
\nNote is not paid when due; (ii) Borrower fails to permit on-site inspections of
\nthe Properties, fails to provide financial information, fails to maintain its
\nstatus as a single purpose entity or fails to appoint a new property manager
\nupon the request of Lender after an Event of Default, each as required by, and
\nin accordance with the terms and provisions of, this Loan Agreement and the
\nMortgages; (iii) Borrower fails to obtain Lender’s prior consent to any
\nsubordinate financing or other voluntary Lien encumbering any Individual
\nProperty; (iv) Borrower fails to obtain Lender’s prior consent to any
\nassignment, transfer, or conveyance of any Individual Property or any interest
\ntherein as required by the Mortgage or hereunder; or (v) any petition for
\nbankruptcy, reorganization or arrangement pursuant to federal bankruptcy,
\nreorganization or arrangement pursuant to federal bankruptcy law, or any similar
\nfederal or state law, shall be filed by or consented to by Borrower.<\/p>\n
Section 9.5 Termination of Manager.
\n ———————- <\/p>\n
If (a) an Event of Default shall have occurred and be continuing
\nhereunder, (b) at the Maturity Date, the Debt is not repaid in full, (c) the
\nManager shall become insolvent, or (d) a default shall have occurred by Manager
\nunder the Management Agreement which shall not have <\/p>\n
80<\/p>\n
not been remedied within the grace or cure periods provided therein, Borrower
\nshall, at the request of Lender, terminate the Management Agreement and replace
\nthe Manager with a manager approved by Lender on terms and conditions
\nsatisfactory to Lender, it being understood and agreed that the management fee
\nfor such replacement manager shall not exceed then prevailing market rates. In
\naddition and in the event no Management Agreement shall then be in existence, if
\n(a) the Master Lease with respect to the Individual Property shall no longer be
\nin effect or (b) at the Maturity Date, the Debt is not repaid in full, Borrower
\nshall, at the request of Lender, enter into a management agreement on terms and
\nconditions reasonably satisfactory to Lender with a manager reasonably approved
\nby Lender, it being understood and agreed that the management fee for such
\nmanager shall not exceed the then prevailing market rates. Notwithstanding the
\nforegoing, prior to the Maturity Date, Borrower shall have no obligation to
\nenter into any management agreement so long as the Master Leases remain in full
\nforce and effect.<\/p>\n
Section 9.6 Servicer.
\n ——– <\/p>\n
At the option of Lender and at no cost to Borrower, the Loan may be
\nserviced by a servicer\/trustee (the “Servicer”) selected by Lender and Lender
\nmay delegate all or any portion of its responsibilities under this Agreement and
\nthe other Loan Documents to the Servicer pursuant to a servicing agreement (the
\n“Servicing Agreement”) between Lender and Servicer.<\/p>\n
X. MISCELLANEOUS
\n ————-<\/p>\n
Section 10.1 Survival.
\n ——– <\/p>\n
This Agreement and all covenants, agreements, representations and
\nwarranties made herein and in the certificates delivered pursuant hereto shall
\nsurvive the making by Lender of the Loan and the execution and delivery to
\nLender of the Note, and shall continue in full force and effect so long as all
\nor any of the Debt is outstanding and unpaid unless a longer period is expressly
\nset forth herein or in the other Loan Documents. Whenever in this Agreement any
\nof the parties hereto is referred to, such reference shall be deemed to include
\nthe legal representatives, successors and assigns of such party. All covenants,
\npromises and agreements in this Agreement, by or on behalf of Borrower, shall
\ninure to the benefit of the legal representatives, successors and assigns of
\nLender.<\/p>\n
Section 10.2 Lender’s Discretion.
\n ——————- <\/p>\n
Whenever pursuant to this Agreement, Lender exercises any right given
\nto it to approve or disapprove, or any arrangement or term is to be satisfactory
\nto Lender, the decision of Lender to approve or disapprove or to decide whether
\narrangements or terms are satisfactory or not satisfactory shall (except as is
\notherwise specifically herein provided) be in the sole discretion of Lender and
\nshall be final and conclusive.<\/p>\n
Section 10.3 Governing Law.
\n ————- <\/p>\n
(A) THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, THE LOAN
\nWAS MADE BY LENDER AND ACCEPTED BY BORROWER IN THE STATE OF NEW YORK, AND THE
\nPROCEEDS OF THE NOTE <\/p>\n
81<\/p>\n
DELIVERED PURSUANT HERETO WERE DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE
\nTHE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE
\nUNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT
\nLIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND
\nPERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE
\nGOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
\nAPPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO
\nPRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF
\nAMERICA, EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE CREATION, PERFECTION,
\nAND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS CREATED PURSUANT HERETO AND
\nPURSUANT TO THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED
\nACCORDING TO THE LAW OF THE STATE IN WHICH THE APPLICABLE INDIVIDUAL PROPERTY IS
\nLOCATED, IT BEING UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED BY THE LAW OF
\nSUCH STATE, THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE CONSTRUCTION,
\nVALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS AND ALL OF THE OBLIGATIONS
\nARISING HEREUNDER OR THEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW,
\nBORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT
\nTHE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT AND THE NOTE, AND THIS
\nAGREEMENT AND THE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
\nLAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL
\nOBLIGATIONS LAW.<\/p>\n
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER
\nARISING OUT OF OR RELATING TO THIS AGREEMENT MAY AT LENDER’S OPTION BE
\nINSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, COUNTY OF NEW
\nYORK, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND
\nBORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE
\nAND\/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER
\nHEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT,
\nACTION OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:<\/p>\n
CT CORPORATION
\n 111 EIGHTH AVENUE
\n 13\/TH\/ FLOOR
\n NEW YORK, NEW YORK 10011<\/p>\n
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY
\nAND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
\nANY FEDERAL OR STATE COURT IN NEW <\/p>\n
82<\/p>\n
YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID
\nADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO BORROWER IN
\nTHE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF
\nPROCESS UPON BORROWER IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW
\nYORK. BORROWER (I) SHALL GIVE PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS OF
\nITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME
\nDESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK
\n(WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS
\nFOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF
\nITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS
\nDISSOLVED WITHOUT LEAVING A SUCCESSOR.<\/p>\n
Section 10.4 Modification, Waiver in Writing.
\n ——————————- <\/p>\n
No modification, amendment, extension, discharge, termination or
\nwaiver of any provision of this Agreement, or of the Note, or of any other Loan
\nDocument, nor consent to any departure by Borrower therefrom, shall in any event
\nbe effective unless the same shall be in a writing signed by the party against
\nwhom enforcement is sought, and then such waiver or consent shall be effective
\nonly in the specific instance, and for the purpose, for which given. Except as
\notherwise expressly provided herein, no notice to, or demand on Borrower, shall
\nentitle Borrower to any other or future notice or demand in the same, similar or
\nother circumstances.<\/p>\n
Section 10.5 Delay Not a Waiver.
\n —————— <\/p>\n
Neither any failure nor any delay on the part of Lender in insisting
\nupon strict performance of any term, condition, covenant or agreement, or
\nexercising any right, power, remedy or privilege hereunder, or under the Note or
\nunder any other Loan Document, or any other instrument given as security
\ntherefor, shall operate as or constitute a waiver thereof, nor shall a single or
\npartial exercise thereof preclude any other future exercise, or the exercise of
\nany other right, power, remedy or privilege. In particular, and not by way of
\nlimitation, by accepting payment after the due date of any amount payable under
\nthis Agreement, the Note or any other Loan Document, Lender shall not be deemed
\nto have waived any right either to require prompt payment when due of all other
\namounts due under this Agreement, the Note or the other Loan Documents, or to
\ndeclare a default for failure to effect prompt payment of any such other amount.<\/p>\n
Section 10.6 Notices.
\n ——- <\/p>\n
All notices, consents, approvals and requests required or permitted
\nhereunder or under any other Loan Document shall be given in writing and shall
\nbe effective for all purposes if hand delivered or sent by (a) certified or
\nregistered United States mail, postage prepaid, return receipt requested or (b)
\nexpedited prepaid delivery service, either commercial or United States Postal
\nService, with proof of attempted delivery, and by telecopier (with answer back<\/p>\n
83<\/p>\n
acknowledged), addressed as follows (or at such other address and Person as
\nshall be designated from time to time by any party hereto, as the case may be,
\nin a written notice to the other parties hereto in the manner provided for in
\nthis Section):<\/p>\n
If to Lender: Lehman Brothers Bank FSB
\n 921 North Orange Street
\n Wilmington, Delaware 19801
\n Attention: *
\n Facsimile No. *<\/p>\n
with a copy to: Cadwalader, Wickersham & Taft
\n 100 Maiden Lane
\n New York, New York 10038
\n Attention: Fredric L. Altschuler, Esq.
\n Facsimile No. (212) 504-6666<\/p>\n
If to Borrower: Exodus Communications Real Property I, LLC
\n 2831 Mission College Boulevard
\n Santa Clara, California 95054-1838
\n Attention: General Counsel
\n Facsimile No. (408) 346-2420<\/p>\n
with a copy to: Exodus Communications Real Property I, LLC
\n 2831 Mission College Boulevard
\n Santa Clara, California 95054-1838
\n Attention: Treasurer
\n Facsimile No. (408) 346-2052<\/p>\n
and<\/p>\n
Exodus Communications Real Property I, LP
\n 2831 Mission College Boulevard
\n Santa Clara, California 95054-1838
\n Attention: General Counsel
\n Facsimile No. (408) 346-2420<\/p>\n
with a copy to: Exodus Communications Real Property I, LP
\n 2831 Mission College Boulevard
\n Santa Clara, California 95054-1838
\n Attention: Treasurer
\n Facsimile No. (408) 346-2052<\/p>\n
A notice shall be deemed to have been given: (a) in the case of hand delivery,
\nat the time of delivery; (b) in the case of registered or certified mail, when
\ndelivered or the first attempted delivery on a Business Day; (c) in the case of
\nexpedited prepaid delivery and telecopy, upon the first attempted delivery on a
\nBusiness Day and (d) in the case of telecopy, when delivered, if delivered
\nbefore 5:00 p.m. New York City time on a Business Day (with answer back
\nacknowledged) or else the next Business Day.<\/p>\n
84<\/p>\n
* Confidential treatment has been requested for certain portions of this
\n document pursuant to an application for confidential treatment sent to the
\n Securities and Exchange Commission. Such portions are omitted from this
\n filing and are filed separately with the Securities and Exchange Commission.<\/p>\n
Section 10.7 Trial by Jury.
\n ————- <\/p>\n
BORROWER AND LENDER EACH HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF
\nANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY
\nTO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO
\nTHE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN
\nCONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY
\nAND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS
\nINDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
\nJURY WOULD OTHERWISE ACCRUE. BORROWER AND LENDER ARE EACH HEREBY AUTHORIZED TO
\nFILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS
\nWAIVER.<\/p>\n
Section 10.8 Headings.
\n ——– <\/p>\n
The Article and\/or Section headings and the Table of Contents in this
\nAgreement are included herein for convenience of reference only and shall not
\nconstitute a part of this Agreement for any other purpose.<\/p>\n
Section 10.9 Severability.
\n ———— <\/p>\n
Wherever possible, each provision of this Agreement shall be
\ninterpreted in such manner as to be effective and valid under applicable law,
\nbut if any provision of this Agreement shall be prohibited by or invalid under
\napplicable law, such provision shall be ineffective to the extent of such
\nprohibition or invalidity, without invalidating the remainder of such provision
\nor the remaining provisions of this Agreement.<\/p>\n
Section 10.10 Preferences.
\n ———– <\/p>\n
Lender shall have the continuing and exclusive right to apply or
\nreverse and reapply any and all payments by Borrower to any portion of the
\nobligations of Borrower hereunder. To the extent Borrower makes a payment or
\npayments to Lender, which payment or proceeds or any part thereof are
\nsubsequently invalidated, declared to be fraudulent or preferential, set aside
\nor required to be repaid to a trustee, receiver or any other party under any
\nbankruptcy law, state or federal law, common law or equitable cause, then, to
\nthe extent of such payment or proceeds received, the obligations hereunder or
\npart thereof intended to be satisfied shall be revived and continue in full
\nforce and effect, as if such payment or proceeds had not been received by
\nLender.<\/p>\n
Section 10.11 Waiver of Notice.
\n —————- <\/p>\n
Borrower shall not be entitled to any notices of any nature whatsoever
\nfrom Lender except with respect to matters for which this Agreement or the other
\nLoan Documents specifically and expressly provide for the giving of notice by
\nLender to Borrower and except with respect to matters for which Borrower is not,
\npursuant to applicable Legal Requirements, permitted to waive the giving of
\nnotice. Borrower hereby expressly waives the right to receive <\/p>\n
85<\/p>\n
any notice from Lender with respect to any matter for which this Agreement or
\nthe other Loan Documents do not specifically and expressly provide for the
\ngiving of notice by Lender to Borrower.<\/p>\n
Section 10.12 Remedies of Borrower.
\n ——————– <\/p>\n
In the event that a claim or adjudication is made that Lender or its
\nagents have acted unreasonably or unreasonably delayed acting in any case where
\nby law or under this Agreement or the other Loan Documents, Lender or such
\nagent, as the case may be, has an obligation to act reasonably or promptly,
\nBorrower agrees that neither Lender nor its agents shall be liable for any
\nmonetary damages, and Borrower’s sole remedies shall be limited to commencing an
\naction seeking injunctive relief or declaratory judgment, unless Lender shall be
\nadjudged to have acted in an arbitrary or capricious manner or in bad faith.
\nThe parties hereto agree that any action or proceeding to determine whether
\nLender has acted reasonably shall be determined by an action seeking declaratory
\njudgment.<\/p>\n
Section 10.13 Expenses; Indemnity.
\n ——————-
\n (a) Borrower covenants and agrees to pay or, if Borrower fails to pay,
\nto reimburse, Lender upon receipt of written notice from Lender for all
\nreasonable costs and expenses (including reasonable attorneys’ fees and
\ndisbursements) incurred by Lender in connection with (i) the preparation,
\nnegotiation, execution and delivery of this Agreement and the other Loan
\nDocuments and the consummation of the transactions contemplated hereby and
\nthereby and all the costs of furnishing all opinions by counsel for Borrower
\n(including without limitation any opinions requested by Lender as to any legal
\nmatters arising under this Agreement or the other Loan Documents with respect to
\nthe Properties); (ii) Borrower’s ongoing performance of and compliance with
\nBorrower’s respective agreements and covenants contained in this Agreement and
\nthe other Loan Documents on its part to be performed or complied with after the
\nClosing Date, including, without limitation, confirming compliance with
\nenvironmental and insurance requirements; (iii) the negotiation, preparation,
\nexecution, delivery and administration of any consents, amendments, waivers or
\nother modifications to this Agreement and the other Loan Documents and any other
\ndocuments or matters requested by Lender; (iv) securing Borrower’s compliance
\nwith any requests made pursuant to the provisions of this Agreement; (v) the
\nfiling and recording fees and expenses, title insurance and reasonable fees and
\nexpenses of counsel for providing to Lender all required legal opinions, and
\nother similar expenses incurred in creating and perfecting the Liens in favor of
\nLender pursuant to this Agreement and the other Loan Documents; (vi) enforcing
\nor preserving any rights, in response to third party claims or the prosecuting
\nor defending of any action or proceeding or other litigation, in each case
\nagainst, under or affecting Borrower, this Agreement, the other Loan Documents,
\nthe Properties, or any other security given for the Loan; and (vii) enforcing
\nany obligations of or collecting any payments due from Borrower under this
\nAgreement, the other Loan Documents or with respect to the Properties or in
\nconnection with any refinancing or restructuring of the credit arrangements
\nprovided under this Agreement in the nature of a “work-out” or of any insolvency
\nor bankruptcy proceedings; provided, however, that Borrower shall not be liable
\n ——– ——-
\nfor the payment of any such costs and expenses to the extent the same arise by
\nreason of the gross negligence, illegal acts, fraud or willful misconduct of
\nLender. Any cost and expenses due and payable to Lender may be paid from any
\namounts in the Lockbox Account.<\/p>\n
86<\/p>\n
(b) Borrower shall indemnify, defend and hold harmless Lender from and
\nagainst any and all other liabilities, obligations, losses, damages, penalties,
\nactions, judgments, suits, claims, costs, expenses and disbursements of any kind
\nor nature whatsoever (including, without limitation, the reasonable fees and
\ndisbursements of counsel for Lender in connection with any investigative,
\nadministrative or judicial proceeding commenced or threatened, whether or not
\nLender shall be designated a party thereto), that may be imposed on, incurred
\nby, or asserted against Lender in any manner relating to or arising out of (i)
\nany breach by Borrower of its obligations under, or any material
\nmisrepresentation by Borrower contained in, this Agreement or the other Loan
\nDocuments, or (ii) the use or intended use of the proceeds of the Loan
\n(collectively, the “Indemnified Liabilities”); provided, however, that Borrower
\n ——– ——-
\nshall not have any obligation to Lender hereunder to the extent that such
\nIndemnified Liabilities arise from the gross negligence, illegal acts, fraud or
\nwillful misconduct of Lender. To the extent that the undertaking to indemnify,
\ndefend and hold harmless set forth in the preceding sentence may be
\nunenforceable because it violates any law or public policy, Borrower shall pay
\nthe maximum portion that it is permitted to pay and satisfy under applicable law
\nto the payment and satisfaction of all Indemnified Liabilities incurred by
\nLender.<\/p>\n
Section 10.14 Schedules Incorporated.
\n ———————- <\/p>\n
The Schedules annexed hereto are hereby incorporated herein as a part
\nof this Agreement with the same effect as if set forth in the body hereof.<\/p>\n
Section 10.15 Offsets, Counterclaims and Defenses.
\n ———————————– <\/p>\n
Any assignee of Lender’s interest in and to this Agreement, the Note
\nand the other Loan Documents shall take the same free and clear of all offsets,
\ncounterclaims or defenses which are unrelated to such documents which Borrower
\nmay otherwise have against any assignor of such documents, and no such unrelated
\ncounterclaim or defense shall be interposed or asserted by Borrower in any
\naction or proceeding brought by any such assignee upon such documents and any
\nsuch right to interpose or assert any such unrelated offset, counterclaim or
\ndefense in any such action or proceeding is hereby expressly waived by Borrower.<\/p>\n
Section 10.16 No Joint Venture or Partnership; No Third Party Beneficiaries.
\n ————–<\/p>\n
(a) Borrower and Lender intend that the relationships created
\nhereunder and under the other Loan Documents be solely that of borrower and
\nlender. Nothing herein or therein is intended to create a joint venture,
\npartnership, tenancy-in-common, or joint tenancy relationship between Borrower
\nand Lender nor to grant Lender any interest in the Properties other than that of
\nmortgagee, beneficiary or lender.<\/p>\n
(b) This Agreement and the other Loan Documents are solely for the
\nbenefit of Lender and Borrower and nothing contained in this Agreement or the
\nother Loan Documents shall be deemed to confer upon anyone other than Lender and
\nBorrower any right to insist upon or to enforce the performance or observance of
\nany of the obligations contained herein or therein. All conditions to the
\nobligations of Lender to make the Loan hereunder are imposed solely and
\nexclusively for the benefit of Lender and no other Person shall have standing to
\nrequire<\/p>\n
87<\/p>\n
satisfaction of such conditions in accordance with their terms or be entitled to
\nassume that Lender will refuse to make the Loan in the absence of strict
\ncompliance with any or all thereof and no other Person shall under any
\ncircumstances be deemed to be a beneficiary of such conditions, any or all of
\nwhich may be freely waived in whole or in part by Lender if, in Lender’s sole
\ndiscretion, Lender deems it advisable or desirable to do so.<\/p>\n
Section 10.17 Publicity.
\n ——— <\/p>\n
All news releases, publicity or advertising by Borrower or its
\nAffiliates through any media intended to reach the general public which refers
\nto the Loan Documents or the financing evidenced by the Loan Documents, to
\nLender, Lehman, or any of their Affiliates shall be subject to the prior written
\napproval of Lender.<\/p>\n
Section 10.18 Cross-Default; Cross-Collateralization; Waiver of
\n ————————————————-
\n Marshalling of Assets.
\n ———————<\/p>\n
(a) Borrower acknowledges that Lender has made the Loan to Borrower
\nupon the lsecurity of its collective interest in the Properties and in reliance
\nupon the aggregate of the Properties taken together being of greater value as
\ncollateral security than the sum of each Individual Property taken separately.
\nBorrower agrees that the Mortgages are and will be cross-collateralized and
\ncross-defaulted with each other so that (i) an Event of Default under any of the
\nMortgages shall constitute an Event of Default under each of the other Mortgages
\nwhich secure the Note; (ii) an Event of Default under the Note or this Loan
\nAgreement shall constitute an Event of Default under each Mortgage; and (iii)
\neach Mortgage shall constitute security for the Note as if a single blanket lien
\nwere placed on all of the Properties as security for the Note.<\/p>\n
(b) To the fullest extent permitted by law, Borrower, for itself and
\nits successors and assigns, waives all rights to a marshalling of the assets of
\nBorrower, Borrower’s partners and others with interests in Borrower, and of the
\nProperties, or to a sale in inverse order of alienation in the event of
\nforeclosure of all or any of the Mortgages, and agrees not to assert any right
\nunder any laws pertaining to the marshalling of assets, the sale in inverse
\norder of alienation, homestead exemption, the administration of estates of
\ndecedents, or any other matters whatsoever to defeat, reduce or affect the right
\nof Lender under the Loan Documents to a sale of the Properties for the
\ncollection of the Debt without any prior or different resort for collection or
\nof the right of Lender to the payment of the Debt out of the net proceeds of the
\nProperties in preference to every other claimant whatsoever. In addition,
\nBorrower, for itself and its successors and assigns, waives in the event of
\nforeclosure of any or all of the Mortgages, any equitable right otherwise
\navailable to Borrower which would require the separate sale of the Properties or
\nrequire Lender to exhaust its remedies against any Individual Property or any
\ncombination of the Properties before proceeding against any other Individual
\nProperty or combination of Properties; and further in the event of such
\nforeclosure Borrower does hereby expressly consents to and authorizes, at the
\noption of Lender, the foreclosure and sale either separately or together of any
\ncombination of the Properties.<\/p>\n
88<\/p>\n
Section 10.19 Waiver of Counterclaim.
\n ———————- <\/p>\n
Borrower hereby waives the right to assert a counterclaim, other than
\na compulsory counterclaim, in any action or proceeding brought against it by
\nLender or its agents.<\/p>\n
Section 10.20 Conflict; Construction of Documents; Reliance.
\n ——————————————— <\/p>\n
In the event of any conflict between the provisions of this Loan
\nAgreement and any of the other Loan Documents, the provisions of this Loan
\nAgreement shall control. The parties hereto acknowledge that they were
\nrepresented by competent counsel in connection with the negotiation, drafting
\nand execution of the Loan Documents and that such Loan Documents shall not be
\nsubject to the principle of construing their meaning against the party which
\ndrafted same. Borrower acknowledges that, with respect to the Loan, Borrower
\nshall rely solely on its own judgment and advisors in entering into the Loan
\nwithout relying in any manner on any statements, representations or
\nrecommendations of Lender or any parent, subsidiary or Affiliate of Lender.
\nLender shall not be subject to any limitation whatsoever in the exercise of any
\nrights or remedies available to it under any of the Loan Documents or any other
\nagreements or instruments which govern the Loan by virtue of the ownership by it
\nor any parent, subsidiary or Affiliate of Lender of any equity interest any of
\nthem may acquire in Borrower, and Borrower hereby irrevocably waives the right
\nto raise any defense or take any action on the basis of the foregoing with
\nrespect to Lender’s exercise of any such rights or remedies. Borrower
\nacknowledges that Lender engages in the business of real estate financings and
\nother real estate transactions and investments which may be viewed as adverse to
\nor competitive with the business of Borrower or its Affiliates.<\/p>\n
Section 10.21 Brokers and Financial Advisors.
\n —————————— <\/p>\n
Borrower hereby represents that it has dealt with no financial
\nadvisors, brokers, underwriters, placement agents, agents or finders in
\nconnection with the transactions contemplated by this Agreement. Borrower
\nhereby agrees to indemnify, defend and hold Lender harmless from and against any
\nand all claims, liabilities, costs and expenses of any kind (including Lender’s
\nattorneys’ fees and expenses) in any way relating to or arising from a claim by
\nany Person that such Person acted on behalf of Borrower or Lender in connection
\nwith the transactions contemplated herein. The provisions of this Section 10.21
\nshall survive the expiration and termination of this Agreement and the payment
\nof the Debt.<\/p>\n
Section 10.22 Prior Agreements.
\n —————- <\/p>\n
This Agreement and the other Loan Documents contain the entire
\nagreement of the parties hereto and thereto in respect of the transactions
\ncontemplated hereby and thereby, and all prior agreements among or between such
\nparties, whether oral or written, including, without limitation, the Mortgage
\nLoan Application dated February 16, 2001 between Borrower and Lender are
\nsuperseded by the terms of this Agreement and the other Loan Documents.<\/p>\n
89<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
\nbe duly executed by their duly authorized representatives, all as of the day and
\nyear first above written.<\/p>\n
EXODUS COMMUNICATIONS REAL PROPERTY I, LLC, a
\n Delaware limited liability company<\/p>\n
By: Exodus Communications Real Property
\n Managers I, LLC, a Delaware limited
\n liability company, its managing member<\/p>\n
By: Exodus Communications, Inc., a
\n Delaware corporation, its sole member<\/p>\n
By: \/s\/ R. Marshall Case
\n —————————–
\n Name: R. Marshall Case
\n Title: Executive Vice President,
\n Finance and Chief Financial
\n Officer<\/p>\n
EXODUS COMMUNICATIONS REAL PROPERTY I, LP, a
\n Texas limited partnership<\/p>\n
By: Exodus Communications Real Property
\n Managers I, LLC, a Delaware limited
\n liability company, its general partner<\/p>\n
By: Exodus Communications, Inc., a
\n Delaware corporation, its sole member<\/p>\n
By: \/s\/ R. Marshall Case
\n —————————-
\n Name: R. Marshall Case
\n Title: Executive Vice President,
\n Finance and Chief Financial
\n Officer<\/p>\n
LEHMAN BROTHERS BANK FSB<\/p>\n
By: \/s\/ Larry Kravetz
\n ———————————–
\n Name: Larry Kravetz
\n Title: Senior Vice President<\/p>\n
2<\/p>\n
SCHEDULE I
\n ———-<\/p>\n
PROPERTIES – ALLOCATED RELEASE AMOUNTS<\/p>\n
To be determined by Lender<\/p>\n
SCHEDULE II
\n ———–<\/p>\n
RENT ROLL<\/p>\n
(see attached)<\/p>\n
SCHEDULE III
\n ————<\/p>\n
INTENTIONALLY OMITTED<\/p>\n
SCHEDULE IV
\n ———–<\/p>\n
COLLATERAL ASSIGNMENT OF INTEREST RATE CAP AGREEMENT<\/p>\n
THIS COLLATERAL ASSIGNMENT OF INTEREST RATE CAP AGREEMENT, dated as of
\n_________ ___, 200__ (this “Assignment”) is made by ____________________, a
\n ———-
\n_____________, having an address at _____________________ (“Assignor”) in favor
\n ——–
\nof LEHMAN BROTHERS BANK FSB, a federal stock savings bank, having an address at
\n921 North Orange Street, Wilmington, Delaware 19801 (together with its
\nsuccessors and assigns, “Assignee”). Capitalized terms used but not otherwise
\n ——–
\ndefined herein shall have the meanings assigned such terms in the Loan Agreement
\ndated as of __________ ___, 2001 (as amended, modified or supplemented and in
\neffect from time to time, the “Loan Agreement”) by and between Assignor and
\n ————–
\nAssignee.<\/p>\n
1. Assignor hereby collaterally assigns and transfers to Assignee, as
\ncollateral, all of its interest, whether now owned or hereafter acquired, now
\nexisting or hereafter arising, wherever located, in, to and under the [ISDA
\nMaster Agreement], dated _________ ___, 2000, between Assignor and
\n_______________________________, as counterparty (the “Counterparty”), as
\n ————
\nsupplemented by the related confirmations, as amended from time to time
\n(collectively, the “Interest Rate Cap Agreement”), and the Assignor hereby
\n —————————
\ngrants to Assignee a security interest in and to the Interest Rate Cap
\nAgreement and all proceeds (as defined in Section 9-306 of the Uniform
\nCommercial Code adopted in the State of New York (the “UCC”)) thereof, to have
\n —
\nand to hold the same, unto Assignee, its successors and assigns. This
\nAssignment constitutes additional security for the obligations of the Assignor
\narising pursuant to the Loan Documents.<\/p>\n
2. Each party to the Interest Rate Cap Agreement, by its execution of
\nthis Assignment, hereby consents to the above collateral assignment and the
\nother terms hereof (including, without limitation, the second sentence of
\nParagraph 4 hereof), and Assignor and Counterparty agree that, so long as any
\nDebt exists (provided that Debt shall be deemed to exist if the Property is
\ntransferred by judicial or non-judicial foreclosure or deed-in-lieu thereof),
\nCounterparty will make any payments to become payable under or pursuant to the
\nInterest Rate Cap Agreement directly to the Assignee until such time as this
\nAssignment is terminated or otherwise canceled, at which time the Counterparty
\nwill be instructed to make payments to or on behalf of Assignor. All amounts
\npaid to Assignee pursuant to the terms hereof arising out of the assignment of
\nthe Interest Rate Cap Agreement shall be deposited into the Lockbox Account and
\ndistributed in accordance with the provisions of the Loan Agreement.<\/p>\n
3. Notwithstanding the last sentence of paragraph 2 hereof, upon the
\noccurrence of an Event of Default and for so long as such Event of Default is
\ncontinuing, Assignee shall be entitled to exercise all remedies provided in the
\nUCC.<\/p>\n
4. Assignor hereby covenants and agrees that Assignor shall not,
\nwithout first obtaining Assignee’s or its successor’s or assign’s consent,
\nconvey, assign, sell, mortgage, encumber, pledge, hypothecate, grant a security
\ninterest in, grant an option or options with respect to, or otherwise dispose of
\n(directly or indirectly, voluntarily or involuntarily, by <\/p>\n
operation of law or otherwise, and whether or not for consideration) the
\nInterest Rate Cap Agreement. Assignor and Counterparty hereby covenant and agree
\nthat until such time as this Assignment is terminated or otherwise canceled
\npursuant to paragraph 5 hereof the Assignor and Counterparty shall not, without
\nfirst obtaining Assignee’s or its successor’s or assign’s consent, amend,
\nmodify, cancel or terminate the Interest Rate Cap Agreement.<\/p>\n
5. This Assignment shall terminate upon the earlier to occur of (i)
\nthe termination or expiration of the Interest Rate Cap Agreement and (ii) the
\npayment in full of the Debt, and upon such termination Assignee shall promptly
\nrelease this Assignment pursuant to a release executed and delivered by Assignee
\nat the sole cost and expense of Assignor.<\/p>\n
6. This Assignment shall be governed by and construed in accordance
\nwith the laws of the State of New York, without reference to choice of law
\ndoctrine.<\/p>\n
7. This Assignment shall be binding upon and shall inure to the
\nbenefit of Assignor and Assignee and their respective successors and assigns.<\/p>\n
8. This Assignment may be amended or modified only by a written
\ninstrument signed by the parties hereto.<\/p>\n
9. This Assignment may be executed in any number of counterparts, each
\nof which shall be an original but all of which shall constitute one instrument.<\/p>\n
10. The provisions of Section 9.4 of the Loan Agreement are hereby
\nincorporated by reference into this Assignment to the same extent and with the
\nsame force as if fully set forth herein.<\/p>\n
2<\/p>\n
IN WITNESS WHEREOF, Assignor and Assignee have executed this
\nAssignment as of the day and year first above written.<\/p>\n
ASSIGNOR:<\/p>\n
BORROWER<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
ASSIGNEE:<\/p>\n
LEHMAN BROTHERS BANK FSB<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
The provisions of this Assignment are
\nhereby acknowledged:<\/p>\n
[COUNTERPARTY SIGNATURE BLOCK TO BE ADDED]<\/p>\n
——————————–,
\na
\n ——————————-<\/p>\n
By:
\n —————————–
\n Name:
\n Title:<\/p>\n
3<\/p>\n
SCHEDULE V
\n ———-<\/p>\n
FORM OF CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT<\/p>\n
1. “Proprietary Information” is technical or business information describing
\n or related to the activities of Exodus Communications, Inc. (“Exodus”)
\n which: (1) Exodus has generated at private expense and holds in
\n confidence, or (2) Exodus has received from third parties under an
\n obligation to maintain as confidential.<\/p>\n
2. Visitor agrees not to disclose the Proprietary Information to any third
\n party. Visitor agrees to use the Proprietary Information only for purposes
\n expressly authorized in writing by Exodus and not use it for Visitor’s own
\n use.<\/p>\n
3. The Visitor agrees that disclosure of Proprietary Information received from
\n Exodus shall be limited only to those of Visitor’s (or Visitor’s employers)
\n employees with a strict need to know for purposes expressly authorized in
\n writing by Exodus.<\/p>\n
4. The obligations and duties set forth thereunder shall continue for a period
\n of three (3) years from receipt by Visitor.<\/p>\n
5. Visitor shall not expose Exodus to any of Visitor’s proprietary or
\n confidential information, or to the confidential or proprietary information
\n of any third party.<\/p>\n
6. The terms of a confidential nondisclosure agreement previously executed by
\n Exodus and Visitor (or Visitor’s employer), if any, will supersede the
\n terms of this agreement.<\/p>\n
Your signature on this line indicates that you have read the above
\nconfidential non-disclosure agreement and have agreed to abide by its contents.<\/p>\n
VISITOR:<\/p>\n
Signature:<\/p>\n
Name:<\/p>\n
Title:<\/p>\n
SCHEDULE VI
\n ———–<\/p>\n
FORM OF MASTER LEASE FOR 4650 AND 4700 IRONSIDES DRIVE,
\n SANTA CLARA, CALIFORNIA<\/p>\n
(see attached)<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7490,8042],"corporate_contracts_industries":[9513,9418],"corporate_contracts_types":[9560,9567],"class_list":["post-41108","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-exodus-communications-inc","corporate_contracts_companies-lehman-brothers-holdings-inc","corporate_contracts_industries-technology__software","corporate_contracts_industries-financial__securities","corporate_contracts_types-finance","corporate_contracts_types-finance__loan"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41108","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41108"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41108"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41108"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41108"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}