HomeMy WebLinkAbout11-1718GREENBERG TRAURIG, LLP
Brian T. Feeney (I.D. No. 78574)
Charles L. Rombeau (I.D. No. 204859)
2700 Two Commerce Square
2001 Market Street
Philadelphia, PA 19103
TEL: 215-988-7800
FAX: 215-988-7801
EMAIL: feeneyb@gtlaw.com
rombeauc@gtlaw.com
KTR PA CENT LLC,
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PENNSYLVANIA
Attorneys for Plaintiff
KTR PA CENT LLC
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
Plaintiff,
V.
CARLISLE PARTNERS BUILDING C, LLC,
: CIVIL TERM
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Case No. 11 171 ? &,(Y'
Defendant.
NOTICE TO DEFEND
NOTICE
AVISO
Le ban demandado a usted en la cone. Si usted quiere defenderse de
estas demandas expuestas en las pAginas siguientes, usted tiene veinte (20)
dias de plazo al partir de la fecha de la demanda y la notificaci6n. Hace
falta asentar una comparencia escrita o en persona o con un abogado y
entregar a la corte en formaescrita sus defensas o sus objeciones a las
demandas en contra de su persona. Sea avisado que si usted no se
deftende, la corte tomara medidas y puede continuar la demanda en contra
suya sin previo aviso o notificaci6n. A demSs, la corte puede decidir a
favor del demandante y requiere que usted cumpla con todas las
provisiones de esta demanda. Usted puede perder dinero o sus
propiedades u otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE.
SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE
DE PAGAR TAL SERVICIO. VAYA EN PERSONA O LLAME POR
TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA
ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE
CONSEGUIR ASISTENCIA LEGAL.
You have been sued in court. If you wish to defend against the claims
set forth in the following pages, you must take action within (20) days
after this complaint and notice are served, by entering awritten
appearance personally or by attorney and filing in writing with the court
your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so, the case may proceed without you aid a
judgment may be entered against you by the court without further notice
for any money claimed in the complaint or for any other claim or relief
requested by the plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT
ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD
ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW
TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
34 S. Bedford Street
Carlisle, Pennsylvania 17013
Telephone: 717-249-3166
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GREENBERG TRAURIG, LLP
Brian T. Feeney (I.D. No. 78574)
Charles L. Rombeau (I.D. No. 204859)
2700 Two Commerce Square
2001 Market Street
Philadelphia, PA 19103
TEL: 215-988-7800
FAX: 215-988-7801
EMAIL: feeneyb@gtlaw.com
rombeauc@gtlaw.com
Attorneys for Plaintiff
KTR PA CENT LLC
KTR PA CENT LLC, CUMBERLAND COUNTY
COURT OF COMMON PLEAS
Plaintiff,
CIVIL TERM
V.
Case No.
CARLISLE PARTNERS BUILDING C, LLC,
Defendant.
COMPLAINT FOR MORTGAGE FORECLOSURE
Plaintiff KTR PA CENT LLC, by and through its undersigned counsel, hereby files this
complaint pursuant to Pennsylvania Rule of Civil Procedure 1147 for mortgage foreclosure and
avers the following:
1. Plaintiff KTR PA CENT LLC (the "Plaintiff"or "KTR") is a Delaware limited
liability company with an address of c/o KTR Capital Partners, 300 Barr Harbor Drive, Suite
150, Conshohocken, Pennsylvania 19248.
2. Defendant Carlisle Partners Building C, LLC ("Defendant") is an Indiana limited
liability company, with an address of c/o Lauth Property Group, 401 Pennsylvania Parkway,
Indianapolis, Indiana 46280, and is the owner of real property and facilities known as Unit C,
Key Logistics Industrial Park, located at 950 Centerville Road, Newville, Cumberland County,
Pennsylvania, 17241 (the "Property"). A true and correct copy of the Property description is
attached hereto as Exhibit A and is incorporated herein by reference.
JURISDICTION AND VENUE
Defendant is subject to personal jurisdiction in this Court, and venue is proper in
this Court, because, among other reasons, the Property is located in Cumberland County,
Pennsylvania. A true and correct copy of the Mortgage, as such term is defined herein, is
attached hereto as Exhibit B.
RELEVANT FACTS
4. On or about May 2, 2008, RBS Citizens, N.A., d/b/a Charter One and the
Huntington National Bank (collectively, "Charter One") made available to Defendant a loan (the
"Loan") pursuant to a certain Construction Loan Agreement dated as of May 2, 2008 (the
"Construction Loan Agreement"). A true and correct copy of the Construction Loan Agreement,
as amended by a First Amendment dated November 12, 2009, showing the signature of
Defendant, is attached hereto as Exhibit C.
5. Defendant's obligations to Charter One under the Construction Loan Agreement
are evidenced in part by two Promissory Notes each dated as of May 2, 2008 (the "Notes"), and
each in the original principal amount of Nineteen Million Two Hundred Twenty-Three Thousand
Eight Hundred Sixty-Five Dollars ($19,223,865.00). True and correct copies of the Notes,
showing the signature of Defendant, are attached hereto as Exhibit D.
6. In the aggregate, the two Notes evidencing the Loan were for Thirty-Eight
Million Four Hundred Forty-Seven Thousand Seven Hundred Thirty Dollars ($38,447,730.00).
To secure its obligations to Charter One under the Construction Loan Agreement
and the Notes, Defendant executed and delivered to Charter One an Open-End First Mortgage
2
(the "Mortgage" and together with the Construction Loan Agreement and the Note, collectively,
the "Loan Documents") dated as of May 1, 2008, which was recorded on May 15, 2008 in the
Cumberland County Recorder of Deeds at Instrument Number 200816093.
8. On January 11, 2011, Charter One assigned to KTR, and KTR assumed the
obligations of Charter One under the Mortgage and other Loan Documents (the "Assignment of
Mortgage"). The Assignment of Mortgage was duly recorded with the Cumberland County
Recorder of Deeds, and is attached hereto as Exhibit E. KTR and Charter One are therefore
referred to as the "Lender."
9. Under the Construction Loan Agreement, Defendant was required to pay to the
Lender monthly payments of accrued interest commencing upon satisfaction of a leasing
condition in the Construction Loan Agreement, and to pay to the Lender all outstanding principal
under the Loan plus all accrued and unpaid interest on the maturity date, which is May 31, 2011.
10. Lauth Investment Properties LLC ("Lauth Investment") and Lauth Group Inc.
("Lauth Group") (collectively, the "Guarantors") each executed guaranties in support of the Loan
Documents, pursuant to which Lauth Investment guarantied payment and performance of the
Defendant's obligations under the Loan Documents, and Lauth Group guarantied completion of
the construction of the improvements on the Property and all the costs thereof. Copies of the
guaranties executed by Lauth Investment and Lauth Group are attached hereto as Exhibit F.
11. The Construction Loan Agreement provides that "any material change in the
financial condition of the Borrower or any Guarantor to the effect that (i) the ability of the
Borrower or any Guarantor to perform their respective obligations under the Loan Documents
has been substantially and materially impaired and reduced below the level which exists as of the
effective date of this Agreement and (ii) such impairment and reduction materially increases the
likelihood that the Borrower or any Guarantor shall default under their respective obligations
under the Loan Documents" shall constitute an "Event of Default." See Construction Loan
Agmt. (Ex. C) § 8.01(n).
12. The Construction Loan Agreement further provides that it shall be an "Event of
Default" if either the "Borrower or any Guarantor shall file a voluntary petition for bankruptcy."
See Construction Loan Agmt. (Ex. C) § 8.01(p).
13. The Construction Loan Agreement further provides that it shall be an "Event of
Default" if "Lauth Investment does not maintain at all times Unencumbered Liquidity of at least
Five Million Dollars ($5,000,000)." See Construction Loan Agmt. (Ex. C) § 8.01(u).
14. The Construction Loan Agreement also provides that it shall be an "Event of
Default" if "Lauth Investment does not maintain at all times a Tangible Net Worth of at least
One Hundred Seventy-Five Million Dollars ($175,000,000)." See Construction Loan Agmt. (Ex.
C) § 8.01(v).
15. The First Amendment to the Construction Loan Agreement amended the original
loan agreement to provide for the payment to Lender of a "Deferred Fee," accruing from and
after January 1, 2010. See First Amendment to Construction Loan Agmt. (Ex. C) §§ 2(c), 2(i).
16. Upon the occurrence of an "Event of Default," the Lender is entitled to accelerate
the Maturity Date by declaring "all indebtedness secured hereby to be due and payable and the
same shall thereupon become immediately due and payable." See Mortgage (Ex. B) § 3.02. At
that time, all unpaid principal "shall bear interest at a rate per annum equal to the Default Rate
until the Loan is paid in full, principal and interest." See Construction Loan Agmt. (Ex. C)
§ 2.06. The Default Rate is 5% above the rate of interest otherwise in effect on the Loan. Id.
§ 1.01.
4
17. Pursuant to the terms of the Mortgage, if an "Event of Default" (as defined in the
Construction Loan Agreement) occurs, KTR, among other remedies, "may commence an action
to foreclose this Mortgage, appoint a receiver, or specifically enforce any of the covenants hereof
and to take all such other actions permitted by applicable law." See Mortgage (Ex. B) § 3.02(b).
18. Each of the "Events of Default" outlined in paragraphs 8.01(n), (p), (u) and (v) of
the Construction Loan Agreement occurred as set forth below:
(a) By May 1, 2009, the financial condition of the guarantor Lauth Investment
materially diminished, affecting Lauth Investment's obligations and increasing the likelihood
that Defendant would default.
(b) On May 1, 2009, guarantor Lauth Investment filed a voluntary petition for
bankruptcy.
(c) Upon information and belief, since May 1, 2009, guarantor Lauth
Investment has failed to maintain Unencumbered Liquidity of at least Five Million Dollars
($5,000,000), as that term is defined in the Construction Loan Agreement.
(d) Upon information and belief, since May 1, 2009, guarantor Lauth
Investment has failed to maintain a Tangible Net Worth of at least One Hundred Seventy-Five
Million Dollars ($175,000,000), as that term is defined in the Construction Loan Agreement.
19. The Lender notified Defendant of the occurrence and continuation of the Events
of Default set forth in paragraph 18 by letter dated May 13, 2009. A true and correct copy of the
May 13, 2009 letter is attached hereto as Exhibit G. Interest has accrued at the Default Rate
since May 1, 2009.
20. As a result of these Events of Default, on February 3, 2011, KTR made demand
on Defendant for payment of the full indebtedness then owing by no later than February 9, 2011.
5
A true and correct copy of the February 3, 2011 letter is attached hereto as Exhibit H.
Defendant did not comply with this demand.
21. As of the date hereof, Defendant has failed to cure, where applicable, any of the
aforementioned Events of Default.
22. Act 6 does not apply to the Construction Loan Agreement, the Notes, the
Mortgage and this foreclosure action because the original principal amount of the Loan exceeds
the maximum original principal amount to which Act 6 applies.
23. Act 91 does not apply to the Construction Loan Agreement, the Notes, the
Mortgage and this foreclosure action because Defendant's arrearage to KTR exceeds the
maximum arrearage amount to which Act 91 applies.
Count I: Cause of Action for Mortgage Foreclosure
24. KTR hereby incorporates by reference paragraphs 1 through 23 as if set forth
herein.
25. As of February 14, 2011, there was due and owing to KTR under the Notes the
following amounts:
Principal $35,366,431.19
Interest at the Note Rate $74,021.29
Deferred Fee $699,118.26
Interest at the Default Rate $3,029,208.46
Total Due as of February 14, 2011: $39,168,779.20
Total*
* Plus reasonable attorney's fees, costs and other expenses provided for under the Loan
Documents, and interest after February 14, 2011 accruing at the accrual rate of $9,099.97 per
diem, subject to applicable changes under the Construction Loan Agreement.
26. Plaintiff's rights and remedies under the Mortgage include collection of any costs
associated with an action in foreclosure including, but not limited to, reasonable attorney's costs
and fees. See Mortgage (Ex. B) § 3.03.
6
27. None of the Loan Documents has been assigned to any other party, except as set
forth above.
28. Judgment has not been entered against Defendant in any jurisdiction related to
this matter.
WHEREFORE, Plaintiff KTR prays the Court to:
(a) Enter judgment against Defendant in the amount of $39,168,779.20, plus
any additional interest and reasonable attorney's fees and costs; and
(b) Enter judgment against Defendant for foreclosure and directing the sale of
the Property.
GREENBERG TRAU G, UP
Dated: February 14, 2011
Brian T. Feeney (I.D. No. 78574)
Charles L. Rombeau (I.D. No. 204859)
2700 Two Commerce Square
2001 Market Street
Philadelphia, PA 19103
Tel: 215.988.7800
Fax: 215.988.7801
feeneyb@gtlaw.com
rombeauc@gtlaw.com
Attorneys for Plaintiff
KTR PA CENT LLC
7
VERIFICATION
I, A. Donald Chase, Senior Vice President at KTR Capital Partners am authorized to
execute this verification on Plaintiff KTR PA CENT LLC's behalf. I hereby verify that the
factual statements made in the foregoing Complaint are true and correct to the best of my
knowledge, information and belief. This verification is made subject to the penalties set forth in
18 Pa. C.S. § 4904 relating to unsworn falsification to authorities.
Dated: February _W, 2011
MIA 181,706,857v2 2-11-11
Exhibit A
Exhibit A
All that certain unit in the property known, named and identified in the Declaration
referred to below as "Key Logistics Park Condominium" located in the Township of
Penn, County of Cumberland and Commonwealth of Pennsylvania, which has been
heretofore submitted to the provisions of the Pennsylvania Uniform Condominium Act,
68 Pa.C.S. §3101 et seq., as amended, by the recording in the Office for the Recording of
Deeds in and for the County of Cumberland of a Declaration of Condominium of Key
Logistics Park Condominium dated May 1, 2008 and intended to be recorded
immediately prior to the recording of this Indenture, being and designated in such
Declaration as "Unit C", together with a proportionate undivided interest in the Common
Elements (as defined in such Declaration) of such condominium of 38.5757%.
Being designated as a portion of Tax Parcel No. 31-11-0298-037 in the Tax Assessment
Office of Cumberland County, Pennsylvania.
Together with an undivided interest in Common Area #1 and Common Area #2 as may
be provided for in the Declaration of Condominium Declaration of Condominium of Key
Logistics Park Condominium executed by Key Logistics Park, L.P., dated May 1, 2008
and recorded at Instrument Nqa?DD and Plat thereof attached thereto.
Together with beneficial easements created under Declaration of Condominium of Key
Logistics Park Condominium executed by Key Logistics Park, L.P., dated May 1, 2008
and recorded at Instrument No. , and Plat thereof attached thereto.
Together with rights and privileges set forth in the following beneficial easements:
a. Stormwater Discharge Easement Agreement between Key Real Estate, LLC and
Daniel C. Farwell et al., dated September 28, 2006 and recorded at Instrument No.
200803472.
b. Stormwater Discharge Easement Agreement between Key Real Estate, LLC and
Melvin S. Sensenig et al., dated September 28, 2006 and recorded at Instrument No.
200803473.
c. Stormwater Discharge Easement Agreement between Key Real Estate, LLC and
David E. Gettle et al., dated September 28, 2006 and recorded at Instrument No.
200803474.
d. Assignment and Assumption of Stormwater Discharge Easement Agreement
between Key Real Estate, LLC and Key Logistics Park, L.P., dated January 31, 2008 and
recorded at Instrument No. 200803475.
Exhibit B
This instrument was prepared by and
after recording should be returned to:
John B. Baxter, Attorney-at-law
Barnes & Thornburg LLP
11 S. Meridian Street
Indianapolis, Indiana 46204
UPI/Tax Parcel No. Part of Parcel No.
31-11-0298-037
OPEN-END MORTGAGE, SECURITY AGREEMENT
AND FIXTURE FILING
SI'his is an Oven-End Mortgage and secures future advances pursuant to
42 PA C.S. &58143 and 8144, Act No 126 of 1990.)
CERTAIN OF THE PROPERTY COVERED BY THIS MORTGAGE CONSISTS OF GOODS
THAT ARE OR WILL BECOME FIXTURES UPON REAL PROPERTY. ACCORDINGLY,
THIS MORTGAGE ALSO CONSTITUTES AND IS FILED AS A FIXTURE FILING UNDER
ARTICLE 9 OF THE PENNSYLVANIA UNIFORM COMMERCIAL CODE, AND SHALL
REMAIN IN EFFECT AS A FIXTURE FILING UNTIL RELEASED OR SATISFIED OF
RECORD OR THE EFFECTIVENESS OF. THIS MORTGAGE OTHERWISE TERMINATES.
THIS OPEN-END MORTGAGE AND SECURITY AGREEMENT (hereinafter called
the "Mo a e") is made this I' day of May, 2008, from CARLISLE PARTNERS BUILDING
C, LLC, an Indiana limited liability company having a notice address of 401 Pennsylvania
Parkway, Indianapolis, Indiana 46280 (hereinafter called ' Mortgagor" ), in favor of RBS
CITIZENS, NATIONAL ASSOCIATION, a national banking association d/b/a Charter One,
having a notice address of 10333 North Meridian Street, Suite 350, Indianapolis, Indiana 46290,
as agent for the Lenders (as hereinafter defined) (RBS Citizens, National Association, in its
capacity as agent for the Lenders, being hereinafter called "Mortgagee").
WITNESSETH:
FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein
recited, the receipt of which is hereby acknowledged, Mortgagor has mortgaged, granted,
bargained, conveyed, transferred, assigned and set over and hereby mortgages, grants, bargains,
conveys, transfers, assigns and sets over to Mortgagee, its successors and assigns, and grants it
and them a security interest in and lien upon all of their respective rights, title, interests and
estates in, to and under the following property, to-wit:
The parcel of real estate located in Cumberland County, Pennsylvania, which is
more particularly described on Exhibit A attached hereto and incorporated herein
by reference as though set forth herein in full ("Real Estate");
TOGETHER WITH, any and all buildings and improvements now or hereafter erected on
the Real Estate, including, but not limited to, building materials and supplies stored on the Real
Estate, fixtures, attachments, appliances, equipment, machinery and other articles attached to
INDS01 ]BAXTER 1033523x2
said buildings and improvements (but excluding any trade fixtures, attachments, appliances,
equipment, machinery and other articles of personal property owned by any tenant leasing the
Real Estate) (the "Improvements");
TOGETHER WITH, all rents, issues, profits, royalties, income and other benefits derived
from the Real Estate and/or the Improvements (collectively the "Rents"), subject to the right,
power, and authority hereinafter given to Mortgagor to collect and apply such Rents;
TOGETHER WITH, all estate, right, title and interest of Mortgagor in and to all leases or
subleases covering the Real Estate and/or the Improvements or any portion thereof now or
hereafter existing or entered into, and all right, title and interest of Mortgagor thereunder,
including, without limitation, all cash or security deposits, advance rentals, and deposits or
payments of similar nature.
TOGETHER WITH, all right, title and interest of Mortgagor in and to all options to
purchase or lease the Real Estate or any portion thereof or interest therein, and any greater estate
in the Real Estate owned or hereafter acquired;
TOGETHER WITH, all interests, estate or other claims, both in law and in equity, which
Mortgagor now has or may hereafter acquire in the Real Estate;
TOGETHER WITH, all easements, rights-of-way and rights used in connection therewith
or as a means of access thereto, and all tenements, hereditaments and appurtenances thereof and
thereto, and all water rights and shares of stock evidencing the same;
TOGETHER WITH, all rights, title and interest of Mortgagor, now owned or hereafter
acquired, in and to any land lying within the right-of-way of any street, open or proposed,
adjoining the Real Estate, and any and all sidewalks, alleys and strips and gores or land adjacent
to or used in connection with the Real Estate;
TOGETHER WITH, all tangible personal property now or hereafter owned by Mortgagor
and now or at any time hereafter located on or at the Real Estate or used in connection therewith
or with the Improvements (the "Personal Property"), including, but not limited to: all goods,
machinery, tools, insurance proceeds, trucks, fork-lifts, equipment (including fire sprinklers and
alarm systems, office air conditioning, heating, refrigerating, electronic monitoring,
entertainment, recreational, window or structural cleaning rigs, maintenance, exclusion of vermin
or insects, removal of dust, refuse or garbage and all other equipment of every kind), lobby and
all other indoor and outdoor furniture (including tables, chairs, planters, desks, sofas, shelves,
lockers and cabinets), storage racks, hydraulic lifts, wall beds, wall safes, furnishings, appliances
(including ice boxes, refrigerators, fans, heaters, stoves, water heaters and incinerators),
inventory, rugs, carpets and other floor coverings, draperies and drapery rods and brackets,
awnings, window shades, Venetian blinds, curtains, lamps, chandeliers and other lighting
fixtures and office maintenance and other supplies. All Personal Property hereinabove described
shall be deemed part and parcel of the Real Estate, appropriated to the use of the Real Estate and,
whether affixed or annexed thereto or not, shall for the purpose of this Mortgage be deemed
conclusively to be real estate and granted hereby;
INDS01 JBAXTER 1033523x2
2
TOGETHER WITH, all estate, interest, right, title and any other demand or claim, which
Mortgagor now has or may hereafter acquire in any plans and specifications, construction
contracts, construction management agreements, material purchase agreements, builder's and
manufacturer's warranties with respect to, the Real Estate, the Improvements or the Personal
Property;
TOGETHER WITH, all the estate, interest, right, title, other claim or demand, including
claims or demands with respect to the proceeds of insurance in effect with respect thereto, which
Mortgagor now has or may hereafter acquire in the Real Estate, the Improvements or the
Personal Property and any and all awards made for the taking by eminent domain, or by any
proceedings or purchase in lieu thereof, of the whole or any part of the Mortgaged Property,
including, without limitation, any awards resulting from a change of grade of streets and awards
for severance damages; and
TOGETHER WITH, all estate, interest, right, title, other claim or demand which
Mortgagor now has or may hereafter acquire as a "Unit Owner" under that certain Declaration of
Condominium of Key Logistics Park Condominium or any other document related to such
declaration.
The property and interest hereby conveyed to Mortgagee may hereafter be referred to as
the "Mortgaged Property."
Mortgagor covenants, represents and warrants that it is lawfully seized of the Mortgaged
Property, that it has good right to convey the same; that the same is free from all liens and
encumbrances (other than the encumbrances set forth on Exhibit B attached hereto); and that
Mortgagor will warrant and defend the title to the Mortgaged Property against all claims made
thereon.
Capitalized terms used herein, but not defined herein, shall have the meanings assigned
thereto in the Loan Agreement (as hereinafter defined).
FOR THE PURPOSE OF SECURING:
a. Payment of indebtedness in the original aggregate principal amount of Thirty-
Eight Million Four Hundred Forty-Seven Thousand Seven Hundred Thirty Dollars ($38,447,730)
with interest thereon, evidenced by those certain Promissory Notes of even date herewith in the
original aggregate principal amount of Thirty-Eight Million Four Hundred Forty-Seven
Thousand Seven Hundred Thirty Dollars ($38,447,730) described on Schedule 1 attached hereto,
as the same may be hereafter amended, restated, modified, extended or renewed (such
Promissory Notes, as the same may be hereafter amended, restated, modified, extended or
renewed, being referred to herein as the "Notes"). The Notes have an original maturity of
May 1, 2011, which maturity can be extended to May 1, 2012 in accordance with the terms of
the Loan Agreement. The Notes, by this reference, are hereby made a part hereof;
1NDS01 JBAXTER 1033523v2
3
b. Performance of all obligations of Mortgagor under that certain Construction Loan
Agreement of even date herewith by and among Mortgagor, Mortgagee and the other lenders
identified therein (the "Lenders"), as the same may be hereafter amended, restated, modified,
extended or renewed (such Construction Loan Agreement, as the same may be hereafter
amended, restated, modified, extended or renewed, being referred to herein as the "Loan
Agreement") and each agreement of Mortgagor incorporated by reference therein or herein;
C. Payment of all sums advanced or expended by Mortgagee pursuant to
Section 3.03 hereof;
d. Payment of all sums advanced by Mortgagee to protect the Mortgaged Property,
with interest thereon at the default rate of interest provided in the Notes (the "Default Rate");
e. Performance of all obligations of any guarantor of any of the obligations of
Mortgagor contained in this Mortgage, the Notes, the Loan Agreement or any other instrument
given to evidence or further secure the payment and the performance of the obligation secured
hereby; and
f. Payment of all other sums, with interest thereon,.which may hereafter be lent to
Mortgagor, or its successors or assigns, by Mortgagee, when evidenced by a promissory note or
notes reciting that they are secured by this Mortgage.
g. Payment of all Hedging Obligations (as hereinafter defined) of Mortgagor to
Mortgagee under Hedging Contracts (as hereinafter defined), provided by Mortgagee to
Mortgagor. As used herein, the term "Hedging Contracts" shall mean interest rate swap
agreements, interest rate cap agreements and interest rate collar agreements, or any other
agreements or arrangements entered into between the Mortgagor and Mortgagee and designed to
protect the Mortgagor against fluctuations in interest rates or currency exchange rates, and the
term "Hedging Obligations" shall mean, with respect to the Mortgagor, all liabilities of the
Mortgagor to Mortgagee under Hedging Contracts.
This Mortgage, the Notes, the Loan Agreement, any Hedging Contracts, any guaranty of
the indebtedness secured hereby and any other instrument given to evidence or further secure the
payment and performance of any obligation secured hereby may hereafter be referred to as the
"Loan Instruments."
MORTGAGOR HEREBY COVENANTS AND AGREES AS FOLLOWS:
ARTICLE I
COVENANTS AND AGREEMENTS OF MORTGAGOR
Mortgagor hereby covenants and agrees:
1.01. Payment of Secured Obligations. To pay when due the principal of, and the
interest on, the indebtedness evidenced by the Notes, charges, fees and all other sums as
INDS01 JBAXTER 1033523x2
4
provided in the Loan Instruments, and the principal of, and interest on, any future advances
secured by this Mortgage.
1.02. Maintenance, Repair, Alterations. To keep the Mortgaged Property in good
condition and repair; not to remove, except as herein provided, demolish or substantially alter
(except such alterations as may be required by laws, ordinances or regulations) any of the
Improvements without the prior written consent of the Mortgagee; to complete promptly and in
good and workmanlike manner any building or other improvement which may be constructed on
the Real Estate and promptly restore in like manner any Improvement which may be damaged or
destroyed thereon, and to pay when due, all claims for labor performed and materials furnished
therefor, to comply with all laws, ordinances, regulations, covenants, conditions and restrictions
now or hereafter affecting the Mortgaged Property or any part thereof or requiring any alterations
or improvements; not to commit or permit any waste or deterioration of the Mortgaged Property,
to keep and maintain abutting grounds, sidewalks, roads, parking and landscape areas in good
and neat order and repair; to comply with the provisions of any lease, if this Mortgage is on a
leasehold; not to commit, suffer or permit any act to be done in or upon the Mortgaged Property
in violation of any law, ordinance or regulation.
1.03. Required Insurance. To at all times provide, maintain and keep in force the
insurance required under the Loan Agreement.
1.04. Taxes and Impositions.
a. Mortgagor agrees to pay, at least ten (10) days prior to
delinquency, all real property taxes and assessments, general and special, and all
other taxes and assessments of any kind or nature whatsoever, including without
limitation, non-governmental levies or assessments such as maintenance charges,
owner association dues or charges or fees, levies or charges resulting from
covenants, conditions and restrictions affecting the Mortgaged Property, which
are assessed or imposed upon the Mortgaged Property, or become due and
payable, and which create, may create or appear to create a lien upon the
Mortgaged Property, or any part thereof, or upon any Personal Property,
equipment or other facility used in the operation or maintenance thereof (all of
which taxes, assessments and other governmental charges of like nature are
hereinafter referred to as "Impositions"); provided, however, that if, by law, any
such Imposition is payable, or may at the option of the taxpayer be paid, in
installments, Mortgagor may pay the same together with any accrued interest on
the unpaid balance of such Imposition in installments as the same become due and
before any fine, penalty, interest or cost may be added thereto for the nonpayment
of any such installment and interest;
b. If at any time after the date hereof there shall be assessed or
imposed (i) a tax or assessment on the Mortgaged Property in lieu of or in
addition to the Impositions payable by Mortgagor pursuant to subparagraph (a)
hereof, or (ii) a license fee, tax or assessment imposed on Mortgagee and
measured by or based in whole or in part upon the amount of the outstanding
iNDS01 )BAXTER 1033523v2
obligations secured hereby, then all such taxes, assessments or fees shall be
deemed to be included within the term "Impositions" as defined in subparagraph
(a) hereof, and Mortgagor shall pay and discharge the same as herein provided
with respect to the payment of Impositions or, at the option of Mortgagee, all
obligations secured hereby together with all accrued interest thereon, shall
immediately become due and payable. Anything to the contrary herein
notwithstanding, Mortgagor shall have no obligation to pay any franchise, estate,
inheritance, intangibles, income, excess profits or similar tax levied on Mortgagee
or on the obligations secured hereby;
C. Subject to the provisions of subparagraph (d) of this Section 1.04,
Mortgagor covenants to furnish Mortgagee within thirty (30) days after the date
upon which any such Imposition is due and payable by Mortgagor, official
receipts of the appropriate taxing authority, or other proof satisfactory to
Mortgagee, evidencing the payments thereof;
d. Mortgagor shall have the right before any delinquency occurs to
contest or object to the amount or validity of any such Imposition by appropriate
legal proceedings, but this shall not be deemed or construed in any way as
relieving, modifying or extending Mortgagor's covenant to pay any such
Imposition at the time and in the manner provided in this Section 1.04, unless
Mortgagor has given prior written notice to Mortgagee of Mortgagor's intent to so
contest or object to an Imposition, and unless, at Mortgagee's sole option, (i)
Mortgagor shall demonstrate to Mortgagee's satisfaction that the legal
proceedings shall conclusively operate to prevent the sale of the Mortgaged
Property, or any part thereof, to satisfy such Imposition prior to final
determination of such proceedings; or (ii) Mortgagor shall furnish a good and
sufficient bond or surety as requested by and satisfactory to Mortgagee; or (iii)
Mortgagor shall have provided a good and sufficient undertaking as may be
required or permitted by law to accomplish a stay of such proceedings;
e. At any time there exists an Event of Default under this Mortgage
or any other Loan Instrument (regardless of whether thereafter cured), at the
request of Mortgagee, Mortgagor shall pay to Mortgagee, on the day monthly
installments of principal and/or interest are payable under the Notes, until the
Notes are paid in full, an amount equal to one-twelfth (1/12) of the annual
Impositions reasonably estimated by Mortgagee to pay the installment of taxes
next due on the Mortgaged Property. In such event, Mortgagor further agrees to
cause all bills, statements or other documents relating to Impositions to be sent or
mailed directly to Mortgagee. Upon receipt of such bills, statements or other
documents, and providing Mortgagor has deposited sufficient funds with
Mortgagee pursuant to this Section 1.04, Mortgagee shall pay such amounts as
may be due thereunder out of the funds so deposited with Mortgagee. If at any
time and for any reason the funds deposited with Mortgagee are or will be
insufficient to pay such amounts as may then or subsequently be due, Mortgagee
shall notify Mortgagor and Mortgagor shall immediately deposit an amount equal
1NDSO1IBAXTER 1033523x2
to such deficiency with Mortgagee. Notwithstanding the foregoing, nothing
contained herein shall cause Mortgagee to be deemed a trustee of said funds or to
be obligated to pay any amounts in excess of the amount of funds deposited with
Mortgagee pursuant to this Section 1.04. Mortgagee shall not be obliged to pay or
allow any interest on any sums held by Mortgagee pending disbursement or
application hereunder, and Mortgagee may impound or reserve for future payment
of Impositions such portion of such payments as Mortgagee may in its absolute
discretion deem proper, applying the balance on the principal of or interest on the
obligations secured hereby. Should Mortgagor fail to deposit with Mortgagee
(exclusive of that portion of said payments which has been applied by Mortgagee
on the principal of or interest on the indebtedness secured by the Loan
Instruments) sums sufficient to fully pay such Impositions at least thirty (30) days
before delinquency thereof, Mortgagee may, at Mortgagee's election, but without
any obligation so to do, advance any amounts required to make up the deficiency,
which advances, if any, shall be secured hereby and shall be repayable to
Mortgagee as herein elsewhere provided, or at the option of Mortgagee the latter
may, without making any advance whatever, apply any sums held by it upon any
obligation of the Mortgagor secured hereby. Should any Event of Default occur
or exist on the part of the Mortgagor in the payment or performance of any of
Mortgagor's and/or any guarantor's obligations under the terms of the Loan
Instruments, Mortgagee may, at any time at Mortgagee's option, apply any sums
or amounts in its hands received pursuant hereto, or as rents or income of the
Mortgaged Property or otherwise, upon any indebtedness or obligation of the
Mortgagor secured hereby in such manner and order as Mortgagee may elect.
The receipt, use or application of any such sums paid by Mortgagor to Mortgagee
hereunder shall not be construed to affect the maturity of any indebtedness
secured by this Mortgage or any of the rights or powers of Mortgagee under the
terms of the Loan Instruments or any of the obligations of Mortgagor and/or any
guarantor under this Loan Instrument;
f. Mortgagor covenants and agrees not to suffer, permit or initiate the
joint assessment of the real and personal property, or any other procedure
whereby the lien of the real property taxes and the lien of the personal property
taxes shall be assessed, levied or charged to the Mortgaged Property as a single
lien.
1.05. Utilities. To pay, or cause to be paid, when due all utility charges which are
incurred by Mortgagor for the benefit of the Mortgaged Property or which may become a charge
or lien against the Mortgaged Property for gas, electricity, water or sewer services furnished to
the Mortgaged Property and all other assessments or charges of a similar nature, whether public
or private, affecting the Mortgaged Property or any portion thereof, whether or not such
assessments or charges are liens thereon.
1.06. Indemnification; Subrogation; Waiver of Offset.
INDSOI JBAX"TGR 1033523x2
7
a. If Mortgagee is made a party defendant to any litigation
concerning this Mortgage or the Mortgaged Property or any part thereof or
interest therein or the occupancy thereof by Mortgagor, then Mortgagor shall
indemnify, defend and hold Mortgagee harmless from all liability by reason of
said litigation, including reasonable attorneys' fees and expenses incurred by
Mortgagee in any such litigation, whether or not any such litigation is prosecuted
to judgment. If Mortgagee commences an action against Mortgagor to enforce
any of the terms hereof or because of the breach by Mortgagor of any of the terms
hereof, or for the recovery of any sum secured hereby, Mortgagor shall pay to
Mortgagee reasonable attorneys' fees and expenses, and the right to such
attorneys' fees and expenses shall be deemed to have accrued on the
commencement of such action, and shall be enforceable whether or not such
action is prosecuted to judgment. If Mortgagor breaches any term of this
Mortgage, Mortgagee may employ an attorney or attorneys to protect its rights
hereunder, and in the event of such employment following any breach by
Mortgagor, Mortgagor shall pay Mortgagee reasonable attorneys' fees and
expenses incurred by Mortgagee, whether or not an action is actually commenced
against Mortgagor by reason of breach;
b. Mortgagor waives any and all right to claim or recover against
Mortgagee, its officers, employees, agents and representatives, for loss of or
damage to Mortgagor, the Mortgaged Property, Mortgagor's property or the
property of others under Mortgagor's control from any cause insured against or
required to be insured against by the provisions of this Mortgage;
C. All sums payable by Mortgagor hereunder shall be paid without
notice, demand, counterclaim, setoff, deduction or defense and without
abatement, suspension, deferment, diminution or reduction, and the obligations
and liabilities of Mortgagor hereunder shall in no way be released, discharged or
otherwise affected (except as expressly provided herein) by reason of: (i) any
damage to or destruction of or any condemnation or similar taking of the
Mortgaged Property or any part thereof; (ii) any restriction or prevention of or
interference with any use of the Mortgaged Property or any part thereof; (iii) any
title defect or encumbrance or any eviction from the Mortgaged Property or any
part thereof by title paramount or otherwise; (iv) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceeding relating to Mortgagor, or any action taken with respect to this
Mortgage by any trustee or receiver of Mortgagor, or by any court, in any such
proceeding; (v) any claim which Mortgagor has or might have against Mortgagee,
or (vi) any default or failure on the part of Mortgagee to perform or comply with
any of the terms hereof or of any other agreement with Mortgagor; whether or not
Mortgagor shall have notice or knowledge of any of the foregoing. Except as
expressly provided herein, Mortgagor waives all rights now or hereafter conferred
by statute or otherwise to any abatement, suspension, deferment, diminution or
reduction of any sum secured hereby and payable by Mortgagor.
INDS01 JBAXTER 1033523v2
1.07. Actions Affecting Property. To appear in and contest any action or proceeding
purporting to affect the security hereof or the rights or powers of Mortgagee; and to pay all costs
and expenses, including costs of evidence of title and reasonable attorney's fees actually
incurred, in any such action or proceeding in which Mortgagee may appear.
1.08. Actions by Mortgagee to Preserve Property. That should Mortgagor fail to make
any payment or to do any act as and in the manner provided in any of the Loan Instruments, upon
prior notice to Mortgagee, Mortgagee in its own discretion, without obligation so to do and
without demand upon Mortgagor and without releasing Mortgagor from any obligation, may
make or do the same in such manner and to such extent as may be deemed necessary to protect
the security hereof. In connection therewith (without limiting its general powers), Mortgagee
shall have and is hereby given the right, but not the obligation, (a) to enter upon and take
possession of the Mortgaged Property, (b) to make additions, alterations, repairs and
improvements to the Mortgaged Property which it may consider necessary or proper to keep the
Mortgaged Property in good condition and repair; (c) to appear and participate in any action or
proceeding affecting or which may affect the security hereof or the rights or powers of
Mortgagee; (d) to pay, purchase, contest or compromise any encumbrance, claim, charge, lien
(including, without limitation, any lien for delinquent taxes) or debt which in the judgment of it
may affect or appears to affect the security of this Mortgage or be prior or superior hereto; and
(e) in exercising such powers, to pay necessary expenses, including employment of counsel or
other necessary or desirable consultants. Mortgagor shall, immediately upon demand therefor by
Mortgagee, pay all costs and expenses incurred by Mortgagee in connection with the exercise by
Mortgagee of the foregoing rights, including, without limitation, costs of evidence of title, court
costs, appraisals, surveys and reasonable attorneys' fees.
1.09. Survival of Warranties. To fully and faithfully satisfy and perform the obligations
of Mortgagor contained in the Mortgagor's loan application (if applicable) and any such
application between Mortgagor and any assignee of Mortgagee, and each agreement of
Mortgagor incorporated by reference therein or herein, and any modification or amendment
thereof. All representations, warranties and covenants of Mortgagor contained therein or
incorporated by reference shall survive the closing and funding of the loan evidenced by the
Notes and shall remain continuing obligations, warranties and representations of Mortgagor
during any time when any portion of the obligations secured by this Mortgage remain
outstanding.
1.10. Eminent Domain. That should the Mortgaged Property, or any part thereof or
interest therein, be taken or damaged by reason of any public improvement or condemnation
proceeding, or in any other manner ('Condemnation'), or should Mortgagor receive any notice
or other information regarding such proceeding, Mortgagor shall give prompt written notice
thereof to Mortgagee.
a. Mortgagee shall be entitled to all compensation, awards and other
payments or relief therefor, and shall be entitled at its option to appear in any
action or proceedings. During any period in which there exists an Event of
Default under this Mortgage or any other Loan Instrument, Mortgagee shall also
be entitled to make any compromise or settlement in connection with such
INDS01 JBAXTER 1033523v2
9
Condemnation after consultation with Mortgagor and with Mortgagor's consent,
which consent shall not be unreasonably withheld. All such compensation,
awards, damages, rights of action and proceeds awarded to Mortgagor (the
"Condemnation Proceeds") are hereby assigned to Mortgagee and Mortgagor
agrees to execute such further assignments of the Condemnation Proceeds as
Mortgagee may require; and
b. In the event any portion of the Mortgaged Property is so taken or
damaged, Mortgagee shall receive the entire Condemnation Proceeds. All such
Condemnation Proceeds, after deducting therefrom all costs and expenses
(regardless of the particular nature thereof and whether incurred with or without
suit), including reasonable attorneys' fees, incurred by Mortgagee in connection
with such Condemnation Proceeds (the "Condemnation Settlement Costs' , shall
be applied upon any indebtedness secured hereby; provided, however, all such
Condemnation Proceeds, after such deductions, shall be applied to the restoration
of the Mortgaged Property, provided:
No uncured Event of Default exists hereunder;
ii. The Improvements can be restored in accordance with
plans and specifications approved by Mortgagee prior to the maturity date
of the Notes, and the Improvements when restored will include at least the
number of square feet the Improvements had prior to the Condemnation;
iii. Mortgagor shall provide evidence satisfactory to Mortgagee
that the Condemnation Proceeds are sufficient to effect such restoration, or
if such Condemnation Proceeds are insufficient, evidence satisfactory to
Mortgagee of the availability from any source reasonably acceptable to the
Mortgagee of all additional funds necessary to complete such restoration;
iv. After the Condemnation there is sufficient parking on the
remaining Real Estate to comply with all applicable governmental laws,
rules, regulations and ordinances; and
v. Mortgagor shall provide evidence satisfactory to Mortgagee
that all necessary permits and approvals of applicable authorities for the
restoration of the Improvements in accordance with the plans and
specifications referenced in Section 1.10(b)(ii) hereof are available.
Such application or release shall not cure or waive any default or notice of default
hereunder or invalidate any act done pursuant to such notice. Any Condemnation Proceeds
which are made available to Mortgagor or its designee to restore the Improvements shall be
disbursed in accordance with the disbursement procedures for the disbursement of loan proceeds
under the Loan Agreement. If Mortgagor is not eligible to receive the Condemnation Proceeds
to rebuild the Improvements or Mortgagor elects not to rebuild the Improvements, then, after
deducting from the Condemnation Proceeds the Condemnation Settlement Costs, the remaining
INDSOI JBAXTER 1033523v2
10
Condemnation Proceeds shall be applied to the indebtedness secured hereby. Any
Condemnation Proceeds remaining after the payment of the Condemnation Settlement Costs and
the payment in full of the indebtedness secured hereby shall be paid to Mortgagor.
1.11. Additional Security. That in the event Mortgagee at any time holds additional
security for any of the obligations secured hereby, it may enforce the sale thereof or otherwise
realize upon the same, at its option, either before or concurrently herewith or after a sale is made
hereunder.
1.12. Successors and Assi ns. That this Mortgage applies to, inures to the benefit of,
and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors
and assigns.
1.13. Inspections. That Mortgagee, or its agents, representatives or workmen, are
authorized to enter at any reasonable time upon or in any part of the Mortgaged Property for the
purpose of inspecting the same and for the purpose of performing any of the acts it is authorized
to perform under the terms of any of the Loan Instruments.
1.14. Liens. To pay and promptly discharge, at Mortgagor's cost and expense, all liens,
encumbrances and charges upon the Mortgaged Property, or any part thereof or interest therein;
provided that the existence of any inchoate mechanic's, laborer's, materialman's, supplier's, or
vendor's lien shall not constitute a violation of this Section if payment is not yet due under the
contract which is the foundation thereof and if such contract does not postpone payment for more
than fifty-five (55) days after the performance thereof. Mortgagor shall have the right to contest
in good faith the validity of any such lien, encumbrance or charge, provided Mortgagor shall first
deposit with Mortgagee a bond or other security satisfactory to Mortgagee in such amounts as
Mortgagee shall reasonably require, but not more than one and one-half of the amount of the
claim, or provide affirmative title insurance with respect thereto, and provided further, that
Mortgagor shall thereafter diligently proceed to cause such lien, encumbrance or charge to be
removed and discharged. If Mortgagor shall fail to discharge any such lien, encumbrance or
charge, then, in addition to any other right or remedy of Mortgagee, Mortgagee may, but shall
not be obligated to, discharge the same, either by paying the amount claimed to be due, or by
procuring the discharge of such lien by depositing in court a bond for the amount claimed or
otherwise giving security for such claim, or in such manner as is or may be prescribed by law.
1.15. Mortgagee's Powers. Without affecting the liability of any other person liable for
the payment of any obligation herein mentioned, and without affecting the lien or charge of this
Mortgage upon any portion of the Mortgaged Property not then or theretofore released as
security for the full amount of all unpaid obligations, Mortgagee may, from time to time and
without notice (a) release any person so liable, (b) extend the maturity or alter any of the terms of
any such obligation, (c) grant other indulgences, (d) release or reconvey, or cause to be released
or reconveyed at any time at Mortgagee's option any parcel, portion or all of the Mortgaged
Property, (e) take or release any other or additional security for any obligation herein mentioned,
or (0 make compositions or other arrangements with debtors in relation thereto.
INDSOIIBAXTER 1033523v2
11
1.16. Financial Statements. Mortgagor will cause to be delivered to Mortgagee the
financial statements and other reports as provided for in the Loan Agreement.
1.17. Tradenames. At the request of Mortgagee, Mortgagor shall execute a certificate
in form satisfactory to Mortgagee listing the tradenames under which Mortgagor intends to
operate the Mortgaged Property, and representing and warranting that Mortgagor does business
under no other tradenames with respect to the Mortgaged Property. Mortgagor shall immediately
notify Mortgagee in writing of any change in said tradenames, and will, upon request of
Mortgagee, execute any additional financing statements and other certificates revised to reflect
the change in tradename.
ARTICLE 11
SECURITY AGREEMENT
2.01. Creation of Security Interest. Mortgagor hereby grants to Mortgagee a security
interest in the Personal Property located on or at the Mortgaged Property or used in connection
therewith or the improvements, including, without limitation, any and all property of similar type
or kind hereafter located on or at the Mortgaged Property or used in connection therewith or the
improvements for the purpose of securing all obligations of Mortgagor contained in any of the
Loan Instruments. Mortgagor further grants to Mortgagee a security interest in all fixtures
relating to the Real Estate and Improvements. This Mortgage specifically covers and encumbers
property which is or will become fixtures related to the Real Estate and constitutes a "fixture
filing" with respect to such property executed by Mortgagor, as debtor, in favor of Mortgagee, as
secured party.
2.02. Warranties, Representations and Covenants of Mortgagor. Mortgagor hereby
warrants, represents and covenants as follows:
a. Except for the security interest granted hereby, Mortgagor is, and,
as to portions of the Personal Property to be acquired after the date hereof, will
be, the sole owner of the Personal Property, free from any adverse lien, security
interest, encumbrance or adverse claims thereon of any kind whatsoever.
Mortgagor will notify Mortgagee of, and will defend the Personal Property
against all claims and demands of all persons at any time claiming the same or
any interest therein;
b. Except pursuant to Leases entered into in accordance with the
terms of the Loan Agreement, Mortgagor will not lease, sell, convey or in any
manner transfer the Personal Property without the prior written consent of
Mortgagee;
C. The Personal Property is not used or bought for personal, family or
household purposes;
INDSO1 1BAXTER 1033523v2
12
d. The Personal Property will be kept on or at the Mortgaged
Property and Mortgagor will not remove the Personal Property from the
Mortgaged Property without the prior written consent of Mortgagee, except such
portions or items of Personal Property which are consumed, replaced or worn out
in ordinary usage, all of which shall be promptly replaced by Mortgagor;
e. Mortgagor is an Indiana limited liability company, and shall not
change its state of formation without the written consent of Mortgagee;
f. All covenants and obligations of Mortgagor contained herein
relating to the Mortgaged Property shall be deemed to apply to the Personal
Property whether or not expressly referred to herein; and
g. This Mortgage constitutes a Security Agreement as that term is
used in the Uniform Commercial Code of Indiana and the Uniform Commercial
Code of Pennsylvania.
2.03 Additional Financing Statements. Mortgagor hereby authorizes Mortgagee to
file financing statements and renewals, continuations and amendments thereof covering the
Personal Property and any fixtures relating to the Real Estate or Improvements, and at the
request of Mortgagee, Mortgagor will join Mortgagee in executing one or more such financing
statements pursuant to the Uniform Commercial Code of Indiana and Pennsylvania in a form
satisfactory to Mortgagee, and Mortgagor will pay the cost of filing or recording the same or
filing or recording this Mortgage, as a financing statement, in all public offices at any time and
from time to time wherever Mortgagee deems filing or recording of any financing statements or
of this to be desirable or necessary.
ARTICLE III
REMEDIES UPON DEFAULT
3.01. Events of Default. Any of the following events shall be deemed an Event of
Default hereunder:
a. Except as permitted by the Loan Agreement, Mortgagor has sold,
assigned, conveyed, disposed of or otherwise transferred any part of its ownership
(legal or equitable) in the Mortgaged Property; or
b. The Mortgaged Property is further encumbered by a deed of trust,
mortgage, lien or encumbrance or other security instrument, without the consent
of Mortgagee; or
c. Mortgagor shall have given a notice to limit the indebtedness secured by
this Mortgage pursuant to the terms of 42 PA C.S.A. §8143; or
d. Any other "Event of Default" shall occur under the Loan Agreement.
1NDS01 JBAXTER 1033523x2
13
3.02. Acceleration Upon Default, Additional Remedies. Upon the occurrence of any
Event of Default hereunder, Mortgagee may declare all indebtedness secured hereby to be due
and payable and the same shall thereupon become immediately due and payable without any
presentment, demand, protest or notice of any kind. Thereafter, Mortgagee:
a. may, to the extent permitted by law, either in person or by agent,
with or without bringing any action or proceeding, enter upon and take possession
of the Mortgaged Property, or any part thereof, in its own name, and do any acts
which it deems necessary or desirable to preserve the value, marketability or
rentability of the Mortgaged Property or part thereof or interest therein, increase
the income therefrom or protect the security hereof and, with or without taking
possession of the Mortgaged Property, sue for or otherwise collect the rents,
issues and profits thereof, including those past due and unpaid, and apply the
same in accordance with Section 4.05 hereof. The entering upon and taking
possession of the Mortgaged Property, the collection of such rents, issues and
profits and the application thereof as aforesaid, shall not cure or waive any default
or notice of default hereunder or invalidate any act done in response to such
default or pursuant to such notice of default and notwithstanding the continuance
in possession of the Mortgaged Property or the collection, receipt and application
of rents, issues or profits, Mortgagee shall be entitled to exercise every right
provided for in any of the Loan Instruments or by law upon occurrence of any
event of default;
b. may commence an action to foreclose this Mortgage, appoint a
receiver, or specifically enforce any of the covenants hereof and to take all such
other actions permitted by applicable law; and
c. may exercise any or all of the remedies available to a secured party
under the Pennsylvania Uniform Commercial Code and the Indiana Uniform
Commercial Code, including, but not limited to:
i. Either personally or by means of a court appointed
receiver, take possession of all or any of the Personal Property and
exclude therefrom Mortgagor and all others claiming under
Mortgagor, and thereafter hold, store, use, operate, manage,
maintain and control, make repairs, replacements, alterations,
additions and improvements to and exercise all rights and powers
of Mortgagor in respect to the Personal Property or any part
thereof. In the event Mortgagee demands or attempts to take
possession of the Personal Property in the exercise of any rights
under any of the Loan Instruments, Mortgagor promises and agrees
to promptly turn over and deliver complete possession thereof to
Mortgagee;
INDSOIIBAXTER 1033523v2
14
ii. Without notice to or demand upon Mortgagor, make
such payments and do such acts as Mortgagee may deem necessary
to protect its security interest in the Personal Property, including,
without limitation, paying, purchasing, contesting, or
compromising any encumbrance, charge or lien which is prior to or
superior to the security interest granted hereunder, and in
exercising any such powers or authority to pay all expenses
incurred in connection therewith;
iii. Require Mortgagor to assemble the Personal
Property or any portion thereof, at a place designated by
Mortgagee and reasonably convenient to both parties, and
promptly to deliver such Personal Property to Mortgagee, or an
agent or representative designated by it. Mortgagee, and its agents
and representatives shall have the right to enter upon any or all of
Mortgagor's premises and property to exercise Mortgagee's rights
hereunder,
iv. Sell, lease or otherwise dispose of the Personal
Property at public sale, with or without having the Personal
Property at the place of sale, and upon such terms and in such
manner as Mortgagee may determine. Mortgagee may be a
purchaser at any such sale; or
v. Unless the Personal Property is perishable or
threatens to decline speedily in value or is of a type customarily
sold on a recognized market, Mortgagee shall give Mortgagor at
least ten (10) days prior written notice of the time and place of any
public sale of the Personal Property or other intended disposition
thereof. Such notice may be mailed to Mortgagor at the address
set forth at the beginning of this Mortgage.
The rights of Mortgagee under this Mortgage shall be separate, distinct and cumulative,
and none of them shall be in exclusion of the others.
3.03 Foreclosure, Expense of Litigation. When the indebtedness hereby secured, or
any part thereof, shall become due, whether by acceleration or otherwise, Mortgagee shall have
the right to foreclose the lien hereof for such indebtedness or part thereof. In any suit to
foreclose the security title hereof or enforce any other remedy of Mortgagee under this Mortgage
or the Notes, there shall be allowed and included as additional indebtedness in the decree for sale
or other judgment or decree all expenditures and expenses which may be paid or incurred by or
on behalf of Mortgagee for reasonable attorneys' costs and fees (including the costs and
reasonable fees of paralegals), survey charges, appraiser's fees, inspecting engineer's and/or
architect's fees, fees for environmental studies and assessments and all additional expenses
incurred by Mortgagee with respect to environmental matters, outlays for documentary and
expert evidence, stenographers' charges, publication costs, and costs (which may be estimated as
rNDS011BAX'TER 1033523v2
15
to items to be expended after entry of the decree) of procuring all such abstracts of title, title
searches and examinations, title insurance policies, Torrens certificates, and similar data and
assurances with respect to title as Mortgagee may deem reasonably necessary either to prosecute
such suit or to evidence to bidders at any sale which may be had pursuant to such decree the true
condition of the title to, the value of or the environmental condition of the Mortgaged Property.
All expenditures and expenses of the nature in this Section 3.03 mentioned, and such expenses
and fees as may be incurred in the protection of the Mortgaged Property and the maintenance of
the security title of this Mortgage, including the fees of any attorney employed by Mortgagee in
any litigation or proceeding affecting this Mortgage, the Notes or the Mortgaged Property,
including probate and bankruptcy proceedings, or in preparations for the commencement or
defense of any proceeding or threatened suit or proceeding, shall be immediately due and
payable by Mortgagor, with interest thereon at the Default Rate and shall be secured by this
Mortgage.
3.04. Application of Proceeds of Foreclosure Sale. The proceeds of any foreclosure
sale of the Mortgaged Property shall be distributed and applied in the following order of priority:
First, on account of all costs and expenses incident to the foreclosure proceedings, including all
such items as are mentioned in the preceding Section 3.03 hereof; second, all other items which
under the terms hereof constitute secured indebtedness additional to that evidenced by the Notes,
with interest thereon as herein provided; third, all principal and interest remaining unpaid on the
Notes in such order as Mortgagee may determine in its sole discretion; and fourth, any overplus
to Mortgagor, its successors or assigns, as their rights may appear.
3.05. Appointment of Receiver. Upon, or at any time after the filing of a complaint to
.foreclose this Mortgage, Mortgagee shall be entitled to the appointment of a receiver of the
Mortgaged Property by the court in which such complaint is filed, and Mortgagor hereby
consents to such appointment. Such appointment may be made either before or after sale,
without notice, without regard to the solvency or insolvency of Mortgagor at the time of
application for such receiver and without regard to the then value of the Mortgaged Property or
whether the same shall be then occupied as a homestead or not and Mortgagee hereunder or any
holder of the Notes may be appointed as such receiver. Such receiver shall have power: (a) to
collect the rents, issues and profits of the Mortgaged Property during the pendency of such
foreclosure suit and, in case of a sale and a deficiency, during the full statutory period of
redemption, whether there be redemption or not, as well as during any further times when
Mortgagor, except for the intervention of such receiver, would be entitled to collect such rents,
issues and profits; (b) to extend or modify any then existing leases and to make new leases,
which extensions, modifications and new leases may provide for terms to expire, or for options
to lessees to extend or renew terms to expire, beyond the maturity date of the indebtedness
hereunder and beyond the date of the issuance of a deed or deeds to a purchaser or purchasers at
a foreclosure sale, it being understood and agreed that any such leases, and the options or other
such provisions to be contained therein, shall be binding upon Mortgagor and all persons whose
interests in the Mortgaged Property are subject to the lien hereof and upon the purchaser or
purchasers at any foreclosure sale, notwithstanding any redemption from sale, discharge of the
Mortgage indebtedness, satisfaction of any foreclosure decree, or issuance of any certificate of
sale or deed to any purchaser; and (c) all other powers which may be necessary or are usual in
such cases for the protection, possession, control, management, and operation of the Mortgaged
INDSOI !BAXTER 1033523x2
16
Property during the whole of said period. The court from time to time may authorize the receiver
to apply the net income in his hands in payment in whole or in part of (x) the indebtedness
secured hereby, or by any decree foreclosing this Mortgage, or any tax, special assessment or
other lien which may be or become superior to the lien hereof or of such decree, provided such
application is made prior to foreclosure sale; or (y) the deficiency in case of a sale and
deficiency.
3.06. Remedies Not Exclusive. Mortgagee shall be entitled to enforce payment and
performance of any indebtedness or obligations secured hereby and to exercise all rights and
powers under this Mortgage or under any Loan Instrument or other agreement or any laws now
or hereafter in force, notwithstanding some or all of the said indebtedness and obligations
secured hereby may now or hereafter be otherwise secured, whether by mortgage, deed of trust,
pledge, lien, assignment or otherwise. Neither the acceptance of this Mortgage nor its
enforcement whether by court action or other powers herein contained, shall prejudice or in any
manner affect Mortgagee's right to realize upon or enforce any other security now or hereafter
held by Mortgagee, it being agreed that Mortgagee shall be entitled to enforce this Mortgage and
any other security now or hereafter held by Mortgagee in such order and manner as Mortgagee
may, in its absolute discretion determine. No remedy herein conferred upon or reserved to
Mortgagee is intended to be exclusive of any other remedy herein or by law provided or
permitted, but each shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy
given by any of the Loan Instruments to Mortgagee may be exercised, concurrently or
independently, from time to time and as often as may be deemed expedient by Mortgagee and
Mortgagee may pursue inconsistent remedies.
ARTICLE IV
MISCELLANEOUS
4.01. Governing Law. WITH RESPECT TO MATTERS RELATING TO THE
CREATION, PERFECTION, EFFECT OF PERFECTION, THE PRIORITY OF SECURITY
INTERESTS CREATED HEREBY, THE DETERMINATION OF DEFICIENCY
JUDGMENTS AND PROCEDURES RELATING TO THE ENFORCEMENT (INCLUDING
NON-JUDICIAL FORECLOSURE OF LIENS) OF THIS MORTGAGE, THIS MORTGAGE
SHALL BE GOVERNED BY, AND BE CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT REGARD TO
CONFLICT OF LAW PROVISIONS THEREOF, EXCEPT TO THE EXTENT THAT THE
UNIFORM COMMERCIAL CODE PROVIDES FOR THE APPLICATION OF THE LAW OF
ANOTHER STATE. MORTGAGOR AGREES THAT, EXCEPT AS EXPRESSLY SET
FORTH ABOVE IN THIS SECTION, THE LAW OF THE STATE OF INDIANA SHALL
GOVERN ALL MATTERS RELATING TO THIS MORTGAGE AND THE OTHER LOAN
INSTRUMENTS AND ALL OF THE INDEBTEDNESS OR OBLIGATIONS ARISING
HEREUNDER OR THEREUNDER. MORTGAGOR HEREBY SUBMITS TO PERSONAL
JURISDICTION IN THE STATE OF INDIANA AND THE COMMONWEALTH OF
PENNSYLVANIA AND THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA LOCATED IN THE STATE OF INDIANA AND THE COMMONWEALTH OF
rNDS01 JBAXTER 1033523x2
17
PENNSYLVANIA (AND ANY APPELLATE COURTS TAKING APPEALS THEREFROM)
FOR THE ENFORCEMENT OF MORTGAGOR'S OBLIGATIONS HEREUNDER AND
WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAW OF ANY OTHER
STATE TO OBJECT TO JURISDICTION WITHIN SUCH STATES FOR THE PURPOSES
OF SUCH ACTION, SUIT, PROCEEDING OR LITIGATION TO ENFORCE SUCH
OBLIGATIONS OF MORTGAGOR. MORTGAGOR HEREBY WAIVES AND AGREES
NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS MORTGAGE (a) THAT IT IS NOT SUBJECT TO SUCH
JURISDICTION OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE
BROUGHT OR IS NOT MAINTAINABLE IN THOSE COURTS OR THAT THIS
MORTGAGE MAY NOT BE ENFORCED IN OR BY THOSE COURTS OR THAT IT IS
EXEMPT OR IMMUNE FROM EXECUTION, (b) THAT THE ACTION, SUIT OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR (c) THAT THE VENUE
OF THE ACTION, SUIT OR PROCEEDING IS IMPROPER. NOTHING IN THIS SECTION
4.01 SHALL BE DEEMED TO PRECLUDE MORTGAGEE FROM FILING ANY ACTION,
SUIT OR PROCEEDING IN RESPECT OF THIS MORTGAGE IN THE STATE OF
INDIANA OR THE COMMONWEALTH OF PENNSYLVANIA OR THE FEDERAL
COURTS OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF
INDIANA OR THE COMMONWEALTH OF PENNSYLVANIA. In the event that any
provision or clause of any of the Loan Instruments conflicts with applicable laws, such conflicts
shall not affect other provisions of such Loan Instruments which can be given effect without the
conflicting provision, and to this end the provisions of the Loan Instruments are declared to be
severable. This instrument cannot be waived, changed, discharged or terminated orally, but only
by an instrument in writing signed by the party against whom enforcement of any waiver,
change, discharge or termination is sought or by payment of the obligations secured hereby in
full.
4.02. Mortgagor Waiver of Ri ts. To the full extent Mortgagor may do so under
applicable law, Mortgagor waives the benefit of all laws now existing or that hereafter may be
enacted providing for (i) any appraisement before sale of any portion of the Mortgaged Property,
and (ii) the benefit of all laws that may be hereafter enacted in any way extending the time for
the enforcement of the collection of the Notes or the debt evidenced thereby or creating or
extending a period of redemption from any sale made in collecting said debt. To the full extent
Mortgagor may do so under applicable law, Mortgagor agrees that Mortgagor will not at any
time insist upon, plead, claim or take the benefit or advantage of any law now or hereafter in
force providing for any appraisement, valuation, stay, extension or redemption, and Mortgagor,
for Mortgagor, Mortgagor's heirs, devisees, representatives, successors and assigns, and for any
and all persons ever claiming any interest in the Mortgaged Property, to the extent permitted by
law, hereby waives and releases all rights of redemption, valuation, appraisement, stay of
execution, notice of election to mature or declare due the whole of the secured indebtedness and
marshaling in the event of foreclosure of the liens hereby created. If any law referred to in this
Section 4.02 and now in force, of which Mortgagor, Mortgagor's heirs, devisees, representatives,
successors and assigns or other person might take advantage despite this Section 4.02, shall
hereafter be repealed or cease to be in force, such law shall not thereafter be deemed to preclude
the application of this Section. To the full extent Mortgagor may do so under applicable law,
Mortgagor expressly waives and relinquishes any and all rights and remedies which Mortgagor
INDS01 MAXTER I033523v2
18
may have or be able to assert by reason of the laws of the State of Indiana or the Commonwealth
of Pennsylvania pertaining to the rights and remedies of sureties.
4.03. Limitation of Interest. It is the intent of Mortgagor and Mortgagee in the
execution of this Mortgage and the Notes and all other instruments securing the Notes to contract
in strict compliance with the usury laws of the Commonwealth of Pennsylvania and the State of
Indiana governing the loan evidenced by the Notes. In furtherance thereof, Mortgagee and
Mortgagor stipulate and agree that none of the terms and provisions contained in the Loan
Instruments shall ever be construed to create a contract for the use, forbearance or detention of
money requiring payment of interest at a rate in excess of the maximum interest rate permitted to
be charged by the laws of the Commonwealth of Pennsylvania and the State of Indiana
governing the loan evidenced by the Notes. Mortgagor or any guarantor, endorser or other party
now or hereafter becoming liable for the payment of the Notes shall never be liable for unearned
interest on the Notes and shall never be required to pay interest on the Notes at a rate in excess of
the maximum interest that may be lawfully charged under the laws of the Commonwealth of
Pennsylvania and the State of Indiana and the provisions of this Section 4.03 shall control over
all other provisions of the Notes and any other instrument executed in connection herewith which
may be in apparent conflict herewith. In the event any holder of the Notes shall collect monies
which are deemed to constitute interest in excess of the maximum rate allowed by the laws of the
Commonwealth of Pennsylvania and the State of Indiana all such sums deemed to constitute
interest in excess of the legal rate shall be, at Mortgagee's discretion, immediately returned to the
Mortgagor upon such determination, or, to the extent permitted by law, applied to principal.
4.04. Statements by Mortgagor. Mortgagor, within ten (10) days after being given
written notice by mail, will furnish to Mortgagee a written statement stating the unpaid principal
of and interest on the Notes and any other amounts secured by this Mortgage and stating whether
any offset or defense exists against such principal and interest.
4.05. Notices. Whenever Mortgagee or Mortgagor shall desire to give or serve any
notice, demand, request or other communication with respect to this Mortgage, each such notice,
demand, request or other communication, including those given pursuant to 42 PA C.S.A.
§8143(c) or (d) shall be in writing and shall be effective only if the same is delivered by personal
service or mailed by registered mail, postage prepaid, (i) either by registered or certified mail,
return receipt requested or immediately upon personal delivery, or (ii) one day after delivered by
an overnight carrier which provides for a return receipt, addressed as follows:
If to the Mortgagee: RBS Citizens, National Association
d/b/a Charter One
10333 North Meridian Street, Suite 350
Indianapolis, Indiana 46290
Attention: Commercial Real Estate Department
INDS01 JBAXTER 1033523v2
19
With a copy to: Barnes & Thornburg LLP
11 South Meridian Street
Indianapolis, Indiana 46204
Attention: John B. Baxter, Esquire
If to the Mortgagor: Carlisle Partners Building C, LLC
c% Lauth Property Group
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: Michael S. Curless
With a copy to: Carlisle Partners Building C, LLC
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: General Counsel
Any party may at any time change its address for such notices by delivering or mailing to
the other parties hereto, as aforesaid, a notice of such change.
4.06. Captions. The captions or headings at the beginning of each Section hereof are
for the convenience of the parties and are not a part of this Mortgage.
4.07. Invalidity of Certain Provisions. If the security title created by this Mortgage is
invalid or unenforceable as to any part of the debt, or if the security title is invalid or
unenforceable as to any part of the Mortgaged Property, the unsecured or partially secured
portion of the debt shall be completely paid prior to the payment of the remaining and secured or
partially secured portion of the debt, and all payments made on the debt, whether voluntary or
under foreclosure or other enforcement action or procedure, shall be considered to have been
first paid on and applied to the full payment of that portion of the debt which is not secured or
fully secured by the security title created by this Mortgage.
4.08. No Merger. If both the lessor's and lessee's estates under any lease or any portion
thereof which constitutes a part of the Mortgaged Property shall at any time become vested in
one owner, this Mortgage and the lien created hereby shall not be destroyed or terminated by
application of the doctrine of merger and, in such event, Mortgagee shall continue to have and
enjoy all of the rights and privileges of Mortgagee as to the separate estates. In addition, upon
the foreclosure of the lien created by this Mortgage on the Mortgaged Property pursuant to the
provisions hereof, any leases or subleases then existing and created by Mortgagor shall not be
destroyed or terminated by application of the law of merger or as a matter of law or as a result of
such foreclosure unless Mortgagee or any purchaser at any such foreclosure sale shall so elect.
No act by or on behalf of Mortgagee or any such purchaser shall constitute a termination of any
lease or sublease unless Mortgagee or such purchaser shall give written notice thereof to such
tenant or subtenant.
4.09. Subrogation. To the extent that proceeds of the Notes are used to pay any
outstanding lien, charge or prior encumbrance against the Mortgaged Property, such proceeds
INDSOI JBAXTER 1033523x2
20
have been or will be advanced by Mortgagee at Mortgagor's request and Mortgagee shall be
subrogated to any and all rights and liens owned or held by any owner or holder of such
outstanding liens, charges and prior encumbrances, irrespective of whether said liens, charges or
encumbrances are released.
4.10. Environmental Matters.
a. Mortgagor hereby represents and warrants that, to the best of Mortgagor's
knowledge and belief, after due investigation and due inquiry and upon review of (1) that
certain Phase I Environmental Site Assessment prepared by Herbert Rowland & Grubic,
Inc. as HRG Project No. 4465.001, dated February, 2008 (the "Environmental
Assessment") (i) except as disclosed by the Environmental Assessment, neither
Mortgagor nor any previous owner, tenant, occupant or other user of the Mortgaged
Property has used, generated, stored, treated, produced, handled or disposed of in, on,
under, around or above the Mortgaged Property, any Hazardous Materials (as hereinafter
defined); (ii) except as disclosed by the Environmental Assessment, the Mortgaged
Property is not currently in violation of any Hazardous Materials Laws (as hereinafter
defined) or WetLands Laws (as hereinafter defined); (iii) except as disclosed by the
Environmental Assessment, the Mortgaged Property does not now contain and has not in
the past contained any Hazardous Materials; (iv) except as disclosed by the
Environmental Assessment, the Mortgaged Property does not now contain and has not in
the past contained any Storage Container (as hereinafter defined); (v) except as disclosed
by the Environmental Assessment, no event has occurred with respect to the Mortgaged
Property which, with the passage of time or the giving of notice or both, would constitute
a violation of any Hazardous Materials Laws or WetLands Laws; (vi) there are no
agreements, orders, determinations, permits or directives of or with any federal, state or
local governmental agency or authority relating to the Mortgaged Property that require
any work, repair, construction, containment, clean up, investigation, study, removal,
mitigation or other environmental remedial action with respect to the Mortgaged
Property; and (vii) there are no actions, suits, claims, proceedings or investigations,
pending or threatened, arising out of or relating to the Mortgaged Property and any
Hazardous Materials Laws or WetLands Laws.
b. Mortgagor covenants and agrees that (i) Mortgagor shall, and Mortgagor
shall cause all employees, agents, contractors and subcontractors of Mortgagor and all
other persons who now or hereafter are present on or occupying the Mortgaged Property,
to keep and maintain the Mortgaged Property, including, without limitation, the soil and
ground water thereof, in compliance with, and not cause or knowingly permit the
Mortgaged Property, including the soil and ground water thereof, to be in violation of,
any federal, state or local statutes, laws, ordinances, rules, guidelines, regulations, orders
or directives relating to industrial hygiene or to the environmental condition thereof
(including, but not limited to, any Hazardous Material Laws or WetLands Laws); and (ii)
neither Mortgagor nor any employees, agents, contractors or subcontractors of Mortgagor
nor any other persons who now or hereafter occupy or are present on the Mortgaged
Property shall (A) use, handle, generate, manufacture, store or dispose of, on, under,
around or above the Mortgaged Property or transport to or from the Mortgaged Property
INDSOI JBAXTER 1033523v2
21
any Hazardous Materials, except as such may be required to be used, handled, stored, or
transported in connection with the permitted uses of the Mortgaged Property and then
only to the extent permitted by law and in strict compliance with all applicable statutes,
laws, ordinances, rules, guidelines and regulations, including, but not limited to,
Hazardous Materials Laws, and only after obtaining and keeping in force all necessary
permits, approvals and licenses therefor; or (B) perform, cause to be performed or permit
any fill activities or other acts that would in any way fill, destroy, eliminate, alter,
obstruct, interfere with, or otherwise affect any "WetLands" in violation of any
WetLands Laws.
C. Mortgagor covenants and agrees immediately to notify Mortgagee in
writing of: (i) any notices (whether such notices are received from the Environmental
Protection Agency, or any other federal, state or local governmental agency or regional
office thereof) of an actual violation or potential violation that is received by Mortgagor
of any Hazardous Materials Laws or of any WetLands Laws; (ii) any enforcement,
cleanup, removal or other governmental or regulatory demands made or actions
threatened, instituted or completed pursuant to any Hazardous Materials Laws or
WetLands Laws; (iii) any claims or demands made or threatened by any third party
against Mortgagor or the Mortgaged Property relating to actual or alleged damage,
contribution obligations, cost recovery compensation, loss or injury resulting from any
Hazardous Materials or WetLands (the matters set forth in clauses (i), (ii) and (iii) above
are hereinafter referred to as "Hazardous Materials or WetLands Claims"); and (iv)
Borrower's discovery of any occurrence or condition in, on, under, around or above the
Mortgaged Property or any real property adjoining or in the vicinity of the Mortgaged
Property that could cause the Mortgaged Property or any part thereof to be classified as
"border zone property" under the provisions of any Hazardous Materials Laws, or to be
otherwise subject to any restrictions on the ownership, occupancy, transferability or use
of the Mortgaged Property under any Hazardous Materials Laws or WetLands Laws.
Mortgagee shall have the right, but not the obligation, to join and participate in, as a party
if Mortgagee so elects, if an Event of Default exists, any legal proceedings or actions
initiated in connection with any Hazardous Materials or Wetlands Claims and to have its
Mortgagee's reasonable attorneys' and consultants' fees in connection therewith paid by
Mortgagor upon demand.
d. Mortgagor shall be solely responsible for and agrees, at its sole cost, to
indemnify and hold harmless Mortgagee, its directors, officers, employees, agents,
successors and assigns ("Mortgagee Indemnified Parties") from and against, any claim,
action, cause of action, loss, damage, cost, (including, without limitation reasonable
attorneys' and consultants' fees) expense, liability, obligation, penalty, suit, proceeding
or disbursement directly or indirectly, in whole or in part, arising out of or attributable to
("Claims"): (i) the breach, violation or threatened violation of any applicable
environmental law, ordinance, regulation, rule, order, determination, directive or permit,
including, but not limited to, Hazardous Materials Laws and WetLands Laws, relating to
Mortgagor and/or the Mortgaged Property; (ii) the existence of any Storage Container on
or under the Mortgaged Property; and (iii) the use, handling, generation, storage, release,
INDS01 JBAXTER 1033523v2
22
threatened release, discharge or disposal of Hazardous Materials or WetLands in, on,
under or above the Mortgaged Property (whether by Mortgagor or a predecessor in title
or past, present or future tenant, occupant or other user or any employee, agent,
contractor or subcontractor of Mortgagor or any predecessor in title or any third persons
at any time occupying or present on the Mortgaged Property). For the purposes hereof,
Claims shall include, without limitation: (A) the cost of any required or necessary repair,
response, cleanup, remediation or detoxification of the Mortgaged Property or any
adjoining property, including the soil and ground water thereof, and the preparation and
implementation of any closure, remedial or other required plans incurred by Mortgagee;
(B) damage to any WetLands or natural resources; and (iv) all costs and expenses
incurred by Mortgagee in connection with clauses (A) and (B), including but not limited
to reasonable attorneys' and consultants' fees; provided, however, that nothing contained
in this Section shall be deemed to: (i) create or give any rights to any person other than
Mortgagee Indemnified Parties, it being intended that there shall be no third party
beneficiary of such provisions other than Mortgagee Indemnified Parties; or (ii) preclude
Mortgagor from seeking indemnification from, or otherwise proceeding against, any third
party including, without limitation, any tenant or predecessor in title to the Mortgaged
Property. Notwithstanding anything contained herein to the contrary, however,
Mortgagor and Guarantor shall not be responsible for any Claims which arise from or are
connected with the presence of any Hazardous Materials or other contaminants in
violation of any Hazardous Materials Laws, which presence (i) results solely from any
action by Mortgagee, its agents or its representatives, or any other Mortgagee
Indemnified Parties, while Mortgagee is in possession and control of the Mortgaged
Property, (ii) the violation of any Hazardous Materials Laws or WetLands Laws first
occurring subsequent to any voluntary or involuntary conveyance of title to the
Mortgaged Property from Mortgagor to Mortgagee, or to an unrelated third party with the
consent of Mortgagee, or pursuant to a foreclosure action or deed-in-lieu therefore, (iii)
any environmental contaminant or hazardous substance first arising or being created upon
the Mortgaged Property subsequent to any voluntary or involuntary conveyance of title to
the Mortgaged Property from Mortgagor to Mortgagee, or to an unrelated third party with
the consent of Mortgagee, or pursuant to a foreclosure action or deed-in-lieu thereof
e. Mortgagor agrees to indemnify and hold harmless Mortgagee from and
against any and all claims, demands, losses, costs, expenses, liabilities, suits or damages
of whatsoever kind or nature, including interest, assessments and reasonable attorneys'
fees, which arise, result from, or in any way relate to a breach or violation of, or any
failure of the Mortgaged Property or any owner, occupant or user thereof, to comply fully
with any Hazardous Materials Laws. Notwithstanding anything contained herein to the
contrary, however, Mortgagor and Guarantor shall not be responsible for any such
violation of Hazardous Materials Laws, which (i) results solely from any action by
Mortgagee, its agents or its representatives while Mortgagee is in possession and control
of the Mortgaged Property, or (ii) first occurs subsequent to any voluntary or involuntary
conveyance of title to the Mortgaged Property from Mortgagor to Mortgagee, or to an
unrelated third party with the consent of Mortgagee, or pursuant to a foreclosure action or
deed-in-lieu therefore. Mortgagor will immediately upon demand pay Mortgagee for the
cost and expense of any environmental inspection or assessment of the Mortgaged
INDS01 J13AXTER 1033523v2
23
Property obtained by Mortgagee on or after the date of this Mortgage, which appraisal or
environmental assessment may be obtained by Mortgagee if, in its reasonable judgment,
Mortgagee suspects that Hazardous Materials have been introduced into the Mortgaged
Property. Mortgagor acknowledges and agrees that the provisions, covenants, and
indemnity obligations set forth in this Paragraph are not subject to any exculpatory
provision contained in any of the Loan Instruments that might otherwise limit
Mortgagee's recourse to the Mortgaged Property or to any other security for the
indebtedness or that might otherwise limit Mortgagee's rights to a personal and/or
deficiency judgment against Mortgagor. Mortgagor further acknowledges and agrees that
the provisions of this Paragraph shall not be affected by the invalidity or unenforceability
of any term or provision of the Loan Instruments, by the death of Mortgagor (or in the
event that Mortgagor is an entity, the dissolution or termination of such entity) or by the
discharge, release or satisfaction of this Mortgage or the payment in full of the debt
secured hereby.
f. In the event this Mortgage is foreclosed or Mortgagor tenders a deed in
lieu of foreclosure, Mortgagor shall deliver the Mortgaged Property to Mortgagee free of
any and all Hazardous Materials so that the condition of the Mortgaged Property shall
conform with all applicable federal, state and local laws, ordinances, rules or regulations
affecting the Mortgaged Property.
g. The provisions of this Section shall be in addition to any and all other
obligations and liabilities Mortgagor may have to Mortgagee at common law and shall
survive the repayment of all sums due under the Notes and the other Loan Instruments
and the satisfaction of all the other obligations of Mortgagor hereunder and under the
other Loan Instruments. The term of the obligations to indemnify Mortgagee provided
for in this Section 4.10 will commence on the date hereof and continue until such time as
no legal action can be successfully brought against Mortgagee due to applicable statutes
of limitation.
h. The following terms shall have the following meanings:
(a) "Hazardous Constituent" shall have the meaning assigned thereto
under 40 C.F.R. §260.10.
(b) "Hazardous Materials" shall mean, collectively, Hazardous
Substances, Hazardous Constituent and Solid Wastes.
(c) "Hazardous Materials Laws" shall mean all laws, statutes,
ordinances, rules, regulations, permits, licenses, judgments, writs, injunctions,
decrees, orders, determinations, directives, awards and standards promulgated by
any governmental authority concerning Hazardous Materials or concerning the
protection of, or regulation of the discharge of substances into, the environment or
concerning the health or safety of persons with respect to environmental hazards,
and includes, without limitation, the Comprehensive Environmental Response,
Compensation and :Liability Act of 1980, as amended by the Superfund
iNDS01 )BAXTER 1033523v2
24
Amendments and Reauthorization Act of 1986, 42 U.S.C. §§9601 et seq., Solid
Waste Disposal Act, as amended by the Resource Conservation and Recovery Act
of 1976 and Solid and Hazardous Waste Amendments of 1984, 42 U.S.C. §§6901
et seq., Federal Water Pollution Control Act, as amended by the Clean Water Act
of 1977, 33 U.S.C. §§1251 et seq., Clean Air Act of 1966, as amended, 42 U.S.C.
§§7401 et seq., Toxic Substances Control Act of 1976, 15 U.S.C. §§2601 et seq.,
Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. §§651 et
seq., Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
§§11001 et seq., National Environmental Policy of 1975, 42 U.S.C. §§4321 et
seq., Safe Drinking Water Act of 1974, as amended, 42 U.S.C. §300(f) et seq., the
Hazardous Materials Transportation Act, 42, U.S.C. §1801 et seq., the Federal
Insecticide, Fungicide, and Rodenticide Act, U. S.C. §7401 et seq., and any
similar or implementing law of the State of Indiana or Commonwealth of
Pennsylvania, and all amendments, rules, and regulations promulgated thereunder
or implementing the same.
(d) "Hazardous Substances" shall mean at any time any substance,
waste, pollutant, contaminant or material, in solid, liquid or gaseous form, which:
(i) is a substance regulated or defined or designated as hazardous, extremely or
imminently hazardous, objectionable, dangerous, or toxic pursuant to any law, by
any local, state, territorial or federal governmental authority; (ii) is a substance
with respect to which such a governmental authority otherwise requires
environmental compliance, investigation, monitoring, reporting, or remediation;
including but not limited to, (A) all substances, wastes, pollutants, contaminants
and materials regulated, or defined or designated as hazardous, extremely or
imminently hazardous, dangerous, objectionable or toxic, under any Hazardous
Materials Law; (B) petroleum and petroleum based products including crude oil,
used oil and any fractions thereof; (C) natural gas, synthetic gas, and any mixtures
thereof; (D) radon; (E) radioactive substances and materials; (F) asbestos; (G)
urea formaldehyde; (H) polychlorinated biphenyls; (I) lead; (J) methane; (K)
flammable substances and materials ; and (L) explosives.
(e) "Solid Wastes" shall have the meaning assigned thereto in 40
C.F.R. §261.2.
(f) "Storage Containers" shall mean existing and future containers for
Hazardous Materials and above ground and underground storage tank systems
(including underground piping, conduits or sumps).
(g) "WetLands Laws" means, without limitation, 33 C.F.R. §328.3 and
any comparable state and local law, statute, ordinances, rule or regulation.
4.11. Construction Mortgage. This Mortgage is a construction Mortgage and it secures
a loan incurred to finance the site development of the Real Estate and the construction of
improvements on the Mortgaged Property including the acquisition cost of the Mortgaged
Property and certain costs incurred in planning, architectural and engineering studies, zoning and
INDS01 JBAXTER 1033523v2
25
similar expenses. Accordingly, this Mortgage is a construction Mortgage. It is understood and
agreed that funds to be advanced upon the Notes are to be used in the construction of such
Improvements on the Mortgaged Property in accordance with the Loan Agreement, which Loan
Agreement is incorporated herein by reference to the same extent as if fully set forth herein and
made a part of this Mortgage.
4.12. Waiver of Jury Trial. MORTGAGOR, AFTER CONSULTING OR HAVING
HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS
MORTGAGE OR ANY OTHER LOAN INSTRUMENTS OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS MORTGAGE OR ANY COURSE OF
CONDUCT, DEALING, STATEMENTS, WHETHER ORAL OR WRITTEN, OR ACTIONS
OF MORTGAGOR OR MORTGAGEE. MORTGAGOR SHALL NOT SEEK TO
CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY ACTION IN WHICH A
JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY
TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT
BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY
MORTGAGEE EXCEPT BY WRITTEN INSTRUMENT EXECUTED BY BOTH
MORTGAGOR AND MORTGAGEE.
4.13. Open-End Mortgage. This Mortgage is an Open-End Mortgage as defined in
Section 8143(f) of Title 42 of the Pennsylvania Consolidated Statues (the "Act") and as such, is
entitled to the benefits of the Act. The Mortgagor intends that, in addition to any other debt or
obligations secured hereby, this Mortgage shall secure unpaid balances of loan advances made
after this Mortgage is left for record with the Recorder's Office of Cumberland County,
Pennsylvania, whether such advances are made pursuant to an obligation of Mortgagee or
otherwise. The maximum amount of unpaid loan indebtedness (which shall consist of unpaid
balances after this Mortgage is left for record), which may be outstanding at any time is equal to
Seventy-Six Million Eight Hundred Ninety-Five Thousand Four Hundred Sixty Dollars
($76,895,460), plus accrued and unpaid interest thereon. In addition to the obligations of
Mortgagor secured hereby, this Mortgage secures unpaid balances of advances made with
respect to the Mortgaged Property, for the payment of taxes, assessments, maintenance charges,
insurance premiums or costs incurred for the protection of the Mortgaged Property or the lien of
this Mortgage and expenses (including but not limited to, costs and attorneys' fees) incurred by
Mortgagee by reason of default by the Mortgagor under this Mortgage or any of the other Loan
Instruments. Delivery to Mortgagee of any notice provided for in Section 8143(b) of the Act
shall relieve Mortgagee of any obligation to make any further advance of loan proceeds to
Mortgagor until such time as Mortgagee notifies Mortgagor in writing of Mortgagee's
willingness to make further loan advances. Notices sent to Mortgagee pursuant to the Act shall
be delivered at 10333 North Meridian Street, Suite 350, Indianapolis, Indiana 46290, Attention:
Commercial Real Estate Development or such other person or place as Mortgagee shall direct.
4.14. Fixture Filing. Mortgagor and Mortgagee agree that, as provided in the Code, this
Mortgage shall be effective from the date of its recording as a fixture filing with respect to all
rNDS01 JBAXTER 1033523v2
26
goods constituting part of the Mortgaged Property which are or are to become fixtures related to
the real estate described herein. For this purpose, the following information is set forth:
(a) Name and Address of Debtor:
Carlisle Partners Building C, LLC
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
(b) Name and Address of Secured Party:
RBS Citizens, National Association
d/b/a Charter One
10333 North Meridian Street, Suite 350
Indianapolis, Indiana 46290
Attention: Commercial Real Estate Development
(c) This document covers goods which are or are to become fixtures.
(d) The real estate to which such fixtures are or are to be attached is that
described in Exhibit A attached hereto, the record owner of which is Mortgagor.
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage UNDER SEAL as
of the day and year first above written.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
1NDS01 JBAXTER 1033523v2
27
SIGNATURE PAGE TO OPEN-END MORTGAGE AND SECURITY AGREEMENT
"MORTGAGOR"
CARLISLE PARTNERS BUILDING C, LLC,
an Indiana limited liability company
By:
Printed: Michael S. Curless
Executive Vice rest en
Title:
ACKNOWLEDGMENT
)
STATE OF_ an c4
COUNTY OF ) SS:
_?t
On this day of , 2008, before me, a Notary Public, personally
appeared 5.0465 who acknowledged himself/herself to be the
of Carlisle P rtners iding C, LLC, an Indiana limited liability company.
and that he/she as such E • , being authorized to do so, executed the foregoing
Open-End Mortgage, Security Agreement and Fixture Filing for the purposes therein contained
by signing the name of the limited liability company by himse*erselfa&-,-,uch officer.
IN WITNESS WHEREOF, I
My Com ' Sion xpires:
R4DS01 MAXTER 1033523
CERTIFICATE OF ADDRESS
I certify that the precise address of RBS Citizens, National Association, d/b/a Charter
One, Mortgagee within named, is 10333 North Meridian Street, Suite 350, Indianapolis, Indiana
46290.
WITNESS my hand this oZ ne/ day of 2008.
11
Jo B. Baxter, Agent - or Mortgagee
IlVDS01 JBAXTER 1033523
Exhibit A
All that certain unit in the property known, named and identified in the Declaration
referred to below as "Key Logistics Park Condominium" located in the Township of
Penn, County of Cumberland and Commonwealth of Pennsylvania, which has been
heretofore submitted to the provisions of the Pennsylvania Uniform Condominium Act,
68 Pa.C.S. §3101 et seq., as amended, by the recording in the Office for the Recording of
Deeds in and for the County of Cumberland of a Declaration of Condominium of Key
Logistics Park Condominium dated May 1, 2008 and intended to be recorded
immediately prior to the recording of this Indenture, being and designated in such
Declaration as "Unit C", together with a proportionate undivided interest in the Common
Elements (as defined in such Declaration) of such condominium of 38.5757%.
Being designated as a portion of Tax Parcel No. 31-11-0298-037 in the Tax Assessment
Office of Cumberland County, Pennsylvania.
Together with an undivided interest in Common Area #1 and Common Area #2 as may
be provided for in the Declaration of Condominium Declaration of Condominium of Key
Logistics Park Condominium executed by Key Logistics Park, L.P., dated May 1, 2008
and recorded at Instrument Noafl08&09lo, and Plat thereof attached thereto.
Together with beneficial easements created under Declaration of Condominium of Key
Logistics Park Condominium executed by Key Logistics Park, L.P., dated May 1, 2008
and recorded at Instrument No. , and Plat thereof attached thereto.
Together with rights and privileges set forth in the following beneficial easements:
a. Stormwater Discharge Easement Agreement between Key Real Estate, LLC and
Daniel C. Farwell et al., dated September 28, 2006 and recorded at Instrument No.
200803472.
b. Stormwater Discharge Easement Agreement between Key Real Estate, LLC and
Melvin S. Sensenig et al., dated September 28, 2006 and recorded at Instrument No.
200803473.
C. Stormwater Discharge Easement Agreement between Key Real Estate, LLC and
David E. Gettle et al., dated September 28, 2006 and recorded at Instrument No.
200803474.
d. Assignment and Assumption of Stormwater Discharge Easement Agreement
between Key Real Estate, LLC and Key Logistics Park, L.P., dated January 31, 2008 and
recorded at Instrument No. 200803475.
EXHIBIT B
Permitted Exceptions
Those exceptions set forth in Schedule B of the Loan Policy of Title Insurance issued by Chicago
Title Insurance Company under Commitment No. 08-0032.
WDS01 JBAXTER 1033523
ROBERT P. ZIEGLER
RECORDER OF DEEDS
CUMBERLAND COUNTY
1 COURTHOUSE SQUARE
CARLISLE, PA 17013
717-240-6370
Instrument Number - 200816093
Recorded On 5/15/2008 At 12:03:58 PM
* Instrument Type - MORTGAGE
Invoice Number - 20986 User ID - RAK
* Mortgagor - CARLISLE PARTNERS BUILDING C LLC
* Mortgagee - RBS CITIZENS
* Customer - CHICAGO TITLE INS
* FEES
STATE WRIT TAX $0.50
STATE JCS/ACCESS TO $10.00
JUSTICE
RECORDING FEES - $65.50
RECORDER OF DEEDS
AFFORDABLE HOUSING $11.50
COUNTY ARCHIVES FEE $2.00
ROD ARCHIVES FEE $3.00
TOTAL PAID $92.50
I Certify this to be recorded
in Cumberland County PA
* Total Pages - 32
Certification Page
DO NOT DETACH
This page is now part
of this legal document.
?y op CU
° RECORDER O D EDS
1739
* - Information denoted by an asterisk may change during
the verification process and may not be reflected on this page.
III iiiiiiuTiANiiouin
Exhibit C
CONSTRUCTION LOAN AGREEMENT
THIS CONSTRUCTION LOAN AGREEMENT, dated as of this 2°d day of May, 2008,
by and among CARLISLE PARTNERS BUILDING C, LLC, an Indiana limited liability
company, and I(BS CITIZENS, NATIONAL ASSOCIATION, a national banking association
d/b/a Charter One ("Charter One'), as a lender and as administrative agent, and THE
HUNTINGTON NATIONAL BANK, a national banking association ("Huntington").
WITNESSETH:
The parties hereto, in consideration of their mutual covenants hereinafter set forth and
intending to be legally bound hereby, agree as follows:
ARTICLE I.
1.01 Certain Definitions. The following words and terms shall have the following
meanings, respectively, unless the context hereof clearly otherwise requires:
"Adiusted LIBOR Rate" means, relative to a LIBOR Rate Loan, a rate per annum
determined by dividing (x) the LIBOR Rate for such LIBOR Interest Period by (y) a
percentage equal to one hundred percent (100%) minus the LIBOR Reserve Percentage.
"Advance" shall mean an advance to the Borrower on the account of the Loan.
"Affiliate" shall mean with respect to a specified person or entity, any individual,
partnership, corporation, limited liability company, trust, unincorporated organization,
association or other entity which, directly or indirectly, through one or more
intermediaries, controls or is controlled by or is under common control with such person
or entity, including, without limitation, any general or limited partnership in which such
person or entity is a partner.
"Agency Fee" shall mean an amount equal to Thirty-Eight Thousand Four
Hundred Forty-Eight Dollars ($38,448) to be paid by Borrower to Agent (for its sole
benefit).
"Agent" shall mean Charter One in its capacity as administrative agent for the
Lenders, its successors and assigns.
"Agreement" shall mean this Construction Loan Agreement, as the same may be
supplemented, modified or amended from time to time.
"Appraisal" shall have the meaning assigned thereto in Section 4.01(r), and any
update thereof.
"Architect" shall mean JRA Architecture, LLC, the architect for the Project.
"Architect's Letter" shall mean a letter in the form attached hereto as Exhibit J
furnished to the Agent by the Architect.
"Architectural Agreement" shall mean the agreement between the Borrower and
the Architect, as the same may be supplemented, modified or amended from time to time.
"Assignment and Acceptance" shall mean an Assignment and Acceptance
Agreement in the form of Exhibit O attached hereto and made a part hereof.
"Assignment of Management Agreement" shall mean an Assignment and
Subordination of Management Agreement in the form of Exhibit H attached hereto, with
blanks completed appropriately, given by Borrower to the Agent with respect to the
Project.
"Assignment of Rents" shall mean an Assignment of Rents and Leases in the
form attached hereto as Exhibit D, with blanks completed appropriately, given by the
Borrower to the Agent with respect to the Project as security for the Borrower's
obligations under the Loan, as the same may be supplemented, modified or amended
from time to time.
"Borrower" shall mean Carlisle Partners Building C, LLC, an Indiana limited
liability company.
"Borrower's Affidavit" shall mean a Borrower's Closing Affidavit in the form of
Exhibit I attached hereto, with blanks completed appropriately, given by the Borrower to
the Agent with respect to the Project.
"Building Contracts" shall mean the Construction Contracts, the Engineer's
Agreement and the Architectural Agreement.
"Business Day' shall mean:
a. Any day which is neither a Saturday or Sunday nor a legal holiday on
which commercial banks are authorized or required to be closed in Indianapolis, Indiana;
b. When such term is used to describe a day on which a borrowing, payment,
prepaying, or repaying is to be made in respect of any LIBOR Rate Loan, any day which
is: (i) neither a Saturday or Sunday nor a legal holiday on which commercial banks are
authorized or required to be closed in New York City; and (ii) a London Banking Day;
and
C. When such term is used to describe a day on which an interest rate
determination is to be made in respect of any LIBOR Rate Loan, any day which is a
London Banking Day.
"Change Order" shall mean any amendment, modification, or revision to the
Plans and Specifications or a Building Contract.
]NDS01 ]BAXTER 1031727x5
"Cl_ osigg" shall mean the execution and delivery of the Loan Documents by the
Borrower to the Lenders.
"Closing Date" shall mean the date of the Closing.
"Commitment" shall mean the maximum amount each Lender has agreed to lend
to Borrower (which amounts are set forth below on the signature line of each Lender).
"Commitment Fee" shall mean an amount equal to Two Hundred Eighty-Eight
Thousand Three Hundred Fifty-Eight and 00/100 Dollars ($288,358.00) to be paid by the
Borrower to Agent for the benefit of each of the Lenders in accordance with each
Lender's respective Percentage.
"Completion Date" shall mean the date twelve (12) months following the Closing
Date, subject to the provisions of Section 6.05 hereof, but in no event shall the
Completion Date be later than the Original Maturity Date.
"Completion Guaranty" shall mean a Guaranty of Completion of Improvements in
the form attached hereto as Exhibit N. with blanks completed appropriately, given by
Lauth Group to the Agent with respect to the Loan pursuant to which Lauth Group
guarantees certain obligations of Borrower under the Loan, as the same may be
supplemented, modified or amended from time to time.
"Conditional Default" shall mean any condition, event, act or omission which,
with the giving of notice or passage of time or both, would constitute an Event of Default.
"Construction Contract" shall mean a construction contract between the Borrower
and the Contractor for the Improvements, as the same may be supplemented, modified or
amended from time to time.
"Contract Assignment" shall mean the Collateral Assignment of Agreements and
Plans in the form attached hereto as Exhibit F, with blanks completed appropriately,
given by the Borrower to the Agent with respect to the Project as security for the
Borrower's obligation under the Loan, as the same may be supplemented, modified or
amended from time to time.
"Contractor" shall mean each contractor providing Materials, labor or services in
respect of the Improvements.
"Contractor's Letter" shall mean the letter in the form attached hereto as
Exhibit K furnished to the Agent by the Contractor.
"Cost Breakdown" shall mean the cost breakdown of all Project Costs attached
hereto as Schedule 1, as the same may be supplemented, modified or amended from time
to time.
"Default Rate" shall mean a rate of interest from time to time which is Five
Percent (5%) per annum above the rate(s) of interest otherwise in effect on the Loan.
INDS01 JBAXTER 1031727v5
"Defaulting Lenders" shall have the meaning set forth in Section 10.05(b) hereof.
"Direct Costs" shall mean all costs and expenses incurred or to be incurred by the
Borrower for work, labor or Materials furnished in connection with the construction and
development of the Improvements.
"Eligible Assignee" shall mean (i) any Lender; (ii) any commercial bank, savings
bank, savings and loan association or similar financial institution which (A) has total
assets of One Billion Dollars ($1,000,000,000) or more, (B) is "well capitalized" within
the meaning of such term under the regulations promulgated under the auspices of the
Federal Deposit Insurance Corporation Improvement Act of 1991, (C) in the sole
judgment of the Agent, is engaged in the business of lending money and extending credit,
and buying loans or participations in loans under credit facilities substantially similar to
those extended under this Agreement, and (D) in the sole judgment of the Agent, is
operationally and procedurally able to meet the obligations of a Lender hereunder to the
same degree as a commercial bank; (iii) any insurance company in the business of writing
insurance which (A) has total assets of One Billion Dollars ($1,000,000,000) or more (B)
is "best capitalized" within the meaning of such term under the applicable regulations of
the National Association of Insurance Commissioners, and (C) meets the requirements set
forth in subclauses (C) and (D) of clause (ii) above; and (iv) any other financial
institution having total assets of One Billion Dollars ($1,000,000,000) (including a
mutual fund or other fund under management of any investment manager having under
its management total assets of One Billion Dollars ($1,000,000,000) or more) which
meets the 'requirement set forth in subclauses (C) and (D) of clause (ii) above; provided
that each Eligible Assignee must (w) be organized under the Laws of the United States of
America, any state thereof or the District of Columbia, or, if a commercial bank, be
organized under the Laws of the United States of America, any state thereof or the
District of Columbia, the Cayman Islands or any country which is a member of the
Organization for Economic Cooperation and Development, or a political subdivision of
such a country, (x) act under the Loan Documents through a branch, agency or funding
office located in the United States of America, (y) be exempt from withholding of tax on
interest and deliver the documents related thereto pursuant to the Internal Revenue Code
as in effect from time to time and (z) not be the Borrower or an Affiliate of the Borrower.
"En keer" shall mean Metro Acquisitions One, LLC or such other engineering
company retained by Borrower with respect to the Project.
"Engineer's Agreement" shall mean the agreement between the Borrower and the
Engineer for the Project, as the same may be supplemented, modified or amended from
time to time.
"Engineer's Letter" shall mean the letter in the form attached hereto as Exhibit L
furnished to the Agent by the Engineer.
"Environmental Indemnity Agreement" shall mean an Environmental Indemnity
Agreement in the form attached hereto as Exhibit E, with blanks completed appropriately,
to be executed and delivered with respect to the Project by the Borrower and Lauth
MSOI IBAXTBR 1031727x5
4
Investment to Agent, as the same may be supplemented, modified or amended from time
to time.
"ERISA" shall mean Employee Retirement Income Security Act of 1974, as
amended, and the regulations promulgated thereunder from time to time.
"Event of Default" shall mean any of the events of default described in
Section 8.01 hereof.
"Extended Maturity Date 'shall mean May 1, 2012.
"Federal Funds Effective Rate" shall mean for any day, a fluctuating interest rate
equal for each day during such period to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent. The Agent's determination
of such rate shall be binding and conclusive absent manifest error.
"Fixtures" shall mean all personal property now or hereafter owned by the
Borrower and now or hereafter affixed to, incorporated into or to be incorporated into, or
used or useful in. connection with, the Project or any part thereof, all replacements
thereof, additions thereto and substitutions therefor.
"Force Majeure" shall mean strikes, lockouts, flood, fire, acts of war, weather,
acts of God and other events beyond the control of the Borrower.
"Governmental Authorities" shall mean the United States of America, the state
and local jurisdiction in which the Project is located and any political subdivision thereof,
and any agency, department, commission, board, bureau or instrumentality of any of
them.
"Governmental Requirement" shall mean any law, ordinance, order, rule or
regulation of any Governmental Authority, including but not limited to laws, ordinances,
orders, rules or regulations with regard to zoning, subdivision, building, safety, fire
protection or environmental matters applicable to the Project.
"Gross Revenues" shall mean for any period, all revenues of Borrower,
determined on a cash basis, derived from the ownership, operation, use, leasing and
occupancy of the Project during such period; provide however, that in no event shall
Gross Revenues include (a) any loan proceeds; (b) proceeds or payments under insurance
policies (except proceeds of business interruption insurance); (c) condemnation proceeds;
(d) any security deposits received from the Tenants, unless and until the same are applied
to rent or other obligations in accordance with the Leases; or (e) any other extraordinary
items, in Agent's reasonable discretion.
IIIDSO] JBAXTER 1031727x5
"Guarantors" shall mean Lauth Investment and Lauth Group. For the purposes
hereof each of the Guarantors shall be a "Guarantor".
"Hazardous Materials" shall mean any flammable explosives, radioactive
materials, hazardous or toxic chemicals, materials, wastes, by-products, pollutants,
contaminants, compounds, products or substances, including, without limitation,
asbestos, polychlorinated biphenyls, wastes, hydrocarbon or petroleum products,
hazardous, regulated or toxic substances or related materials defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (42 USC § 9601, et §N.), the Hazardous Materials Transportation Act, as
amended (49 USC § 1801, et gN.), the Resource Conservation and Recovery Act, as
amended (42 USC § 6901, et M.) and in the regulations adopted and publications
promulgated pursuant thereto, or any other federal, state or local governmental law,
ordinance, rule or regulation, and any other material, the exposure to, or manufacture,
possession, presence, use, generation, storage, transportation, release, disposal,
abatement, clean up, removal, remediation or handling of which is prohibited, controlled
or regulated by any Governmental Requirement.
"Hedging Contracts" shall mean interest rate swap agreements, interest rate cap
agreements and interest rate collar agreements, or any other agreements or arrangements
entered into between the Borrower and the Agent and designed to protect the Borrower
against fluctuations in interest rates or currency exchange rates.
"Hed ing Obligations" shall mean, with respect to the Borrower, all liabilities of
the Borrower to the Agent under Hedging Contracts.
"Improvements" shall mean an approximately 1,170,000 square foot bulk
distribution building and related improvements to be constructed by the Borrower upon
the Site in accordance with the applicable Plans and Specifications. The term
"Improvements" shall include all Tenant Work and related improvements required to be
performed by Borrower under the Leases.
"Indirect Costs" shall mean all costs and expenses for, incurred or to be incurred
by the Borrower in connection with or incidental to the acquisition of the Site and the
construction of the Improvements other than Direct Costs, including, without limitation,
the costs of acquisition of the Site, costs of title examination and insurance, .costs of
surveys, mortgage recording fees, real estate taxes and assessments, water and sewer
rents, insurance premiums, fees of the Architect, the Engineer and the Inspecting
Architect, attorneys' fees, the Commitment Fee and interest on the Loan.
"Inspecting Architect" shall mean the independent architectural or engineering
firm employed by the Agent with respect to the Project.
"Interest Payment Date" shall mean, relative to (a) any LIBOR Advantage Loan,
the LA Interest Payment Date, and (b) any LIBOR Rate Loan, the last Business Day of
each LIBOR Interest Period.
INDSOI JBAXTER 1031727x5
"Interest Reserve Account" shall mean an account with Agent to be established
and maintained by Borrower as provided in Section 2.11.
"LA Interest Payment Date" means, initially, the fifteenth (15`}') day of May,
2008, and thereafter the day of each succeeding month which numerically corresponds to
such date or, if a month does not contain a day that numerically corresponds to such date,
the LA Interest Payment Date shall be the last day of such month.
"LA Interest Period" means, with respect to any LIBOR Advantage Loan, the
period commencing on (and including) the date hereof (the "Start Date') and ending on
(but excluding) the date which numerically corresponds to such date one (1) month later,
and thereafter, each one (1) month period ending on the day of such month that
numerically corresponds to the Start Date. If an LA Interest Period is to end in a month
for which there is no day which numerically corresponds to the Start Date, the LA
Interest Period will end on the last day of such month. Notwithstanding the date of
commencement of any LA Interest Period, interest shall only begin to accrue as of the
date the initial LIBOR Advantage Loan is made hereunder.
"LA Margin" means 2.25% per annum; provided, in the event Borrower fails to
satisfy the Leasing Condition as provided in Section 2.04, the LA Margin shall mean
2.50% per annum.
"Lauth Group" shall mean Lauth (Troup, Inc.
"Lauth Investment" shall mean Lauth Investment Properties, LLC.
"Leasing Condition" shall mean fully executed Leases, acceptable to Agent, for
not less than 585,000 square feet of leaseable space in the Project, with base floor rental
rates of not less than $3.65 per square foot, and with total aggregate annual base rental of
not less than Two Million One Hundred Thirty-Five Thousand Dollars ($2,135,000).
"Lender" shall mean each of Charter One and Huntington, and "Lenders" shall
mean, collectively, Charter One and Huntington and their permitted successors and
assigns.
"LIBOR Advantage Loan" shall mean any loan or advance for which the
applicable rate of interest is based upon the LIBOR Advantage Rate.
"LIBOR Advantage Rate" means, relative to any LA Interest Period, the offered
rate for delivery in two London Banking Days of deposits of U.S. Dollars for a tern
coextensive with the designated LA Interest Period which the British Bankers'
Association fixes as its LIBOR rate as of 11:00 a.m. London time on the day on which
such LA Interest Period commences. If the first day of any Interest Period is not a day
which is both a (i) Business Day, and (ii) a London Banking Day, the LIBOR Advantage
Rate shall be determined by reference to the next preceding day which is both a Business
Day and a London Banking Day. If for any reason the LIBOR Advantage Rate is
unavailable and/or the Agent is unable to determine the LIBOR Advantage Rate for any
LA Interest Period, the Agent may, at its discretion, either: (a) select a replacement index
INDS01 JBAXTER 1031727x5
based on the arithmetic mean of the quotations, if any, of the interbank offered rate by
first class banks in London or New York for deposits with comparable maturities or
(b) accrue interest at a rate per annum equal to the Prime Rate as of the first day of any
LA Interest Period for which the LIBOR Advantage Rate is unavailable or cannot be
determined.
"LIBOR Interest Period" shall mean:
a. initially, the period beginning on (and including) the date on which
such LIBOR Rate Loan is made or continued as, or converted into, a LIBOR Rate
Loan and ending on (but excluding) the day which numerically corresponds to
such date one month thereafter (or, if such month has no numerically
corresponding day, on the last Business Day of such month); and
b. thereafter, each period commencing on the last day of the next
preceding LIBOR Interest Period and ending one month thereafter;
provided, however, that
a. if the Borrower has or may incur Hedging Obligations in
connection with the Loan, the LIBOR Interest Period shall be of the same
duration as the relevant period set under the applicable Hedging Contract;
b. if such LIBOR Interest Period would otherwise end on a day which
is not a Business Day, such LIBOR Interest Period shall end on the next following
Business Day unless such day falls in the next calendar month, in which case such
LIBOR Interest Period shall end on the first preceding Business Day; and
c. no LIBOR Interest Period may end later than the termination of
this agreement.
"LIBOR Rate" shall mean, relative to any LIBOR Interest Period for a LIBOR
Rate Loan, the offered rate for deposits of U.S. Dollars in an amount approximately equal
to the amount of the LIBOR Rate Loan for a one month period which the British
Bankers' Association fixes as its LIBOR rate as of 11:00 a.m. London time on the day
which is two London Banking Days prior to the beginning of such LIBOR Interest
Period. If the Agent cannot determine such offered rate by the British Bankers'
Association, the Agent may, in its discretion, select a replacement index based on the
arithmetic mean of the quotations, if any, of the interbank offered rate by first class banks
in London or New York for deposits in comparable amounts and maturities.
"LIBOR Rate Loan" shall mean any loan or advance for which the applicable rate
of interest is based upon the LIBOR Rate.
"LIBOR Rate Marvin" shall mean Two and One-Quarter Percent (2.25%) per
annum; provided, in the event Borrower fails to satisfy the Leasing Condition as provided
in Section 2.04, the LIBOR Rate Margin shall mean 2.50% per annum.
INDS01!BAXTER 1031727V5
"LIBOR Reserve Percentage" shall mean, relative to any day of any LIBOR
Interest Period, the maximum aggregate (without duplication) of the rates (expressed as a
decimal fraction) of reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional adjustments or other
scheduled changes in reserve requirements) under any regulations of the Board of
Governors of the Federal Reserve System (the `Board") or other governmental authority
having jurisdiction with respect thereto as issued from time to time and then applicable to
assets or liabilities consisting of "Eurocurrency Liabilities", as currently defined in
Regulation D of the Board, having a term approximately equal or comparable to such
LIBOR Interest Period.
"Lease" shall mean a lease of any portion of the Project.
"Loan" shall mean the construction loan in the original amount of Thirty-Eight
Million Four Hundred Forty-Seven Thousand Seven Hundred Thirty Dollars
($38,447,730) by the Lenders to the Borrower pursuant to the terms and conditions set
forth herein.
"Loan Documents" shall mean with respect to the Loan, this Agreement, the
Notes, the Mortgage, the Assignment of Rents, the Contract Assignment, the Completion
Guaranty, the Payment Guaranty, the Assignment of Management Agreement, the
Borrower's Affidavit, the Environmental Indemnity, any Interest Rate Agreement and
any and all other documents executed and/or delivered by or on behalf of the Borrower
under the Loan and the Guarantors in connection therewith, as the same may be
supplemented, modified or amended from time to time.
"London Banking Day' means a day on which dealings in US dollar deposits are
transacted in the London interbank market.
"Major Contract" shall mean a contract in respect of the Project entered into by
the Borrower or the Contractor for the furnishing of Materials, labor or services for the
Project for a cost in excess of Five Hundred Thousand Dollars ($500,000).
"Major Contractor" shall mean the party furnishing materials, labor or services to
the Project under a Major Contract.
"Materials" shall mean all materials, supplies, chattels, fixtures, machinery,
equipment or other articles of property furnished or to be furnished in connection with the
construction of, and incorporated or to be incorporated into, the Project, and shall include
all replacements thereof, additions thereto and substitutions therefor.
"Maturity Date" shall mean the Original Maturity Date, unless and until the
maturity of the Loan is extended to the Extended Maturity Date in accordance with the
hereof, in which case it shall thereafter mean the Extended Maturity Date.
"Mortgage" shall mean an Open-End Mortgage and Security Agreement (and
Fixture Filing) in the form of Exhibit C attached hereto, with blanks completed
appropriately, given by the Borrower to the Agent with respect to the Project as security
INDS01 MAXTER 1031727v5
for the Borrower's obligations under the Loan, as the same may be supplemented,
modified or amended from time to time.
"Notes" shall mean the Promissory Notes in the form of Exhibits B-1 and BB^2
attached hereto, with blanks completed appropriately, executed by the Borrower payable
to the order of each of the Lenders evidencing the Loan (and each Lender's respective
Commitment), as supplemented, modified or amended from time to time.
"Original Maturity Date" shall mean May 1, 2011.
"Payment Guaranty" shall mean a Guaranty of Payment in the form attached
hereto as Exhibit G. with blanks completed appropriately, given by Lauth Investment to
the Agent with respect to the Loan pursuant to which Lauth Investment guarantees
certain obligations of Borrower under the Loan, as the same may be supplemented,
modified or amended from time to time.
"Percentage" shall mean with respect to each Lender, the percentage that such
Lender's Commitment constitutes to the maximum amount of the Loan.
"Personal Propert y" shall mean all tangible personal property owned by the
Borrower and now or at any time hereafter located on or at the Site owned by the
Borrower or used in connection therewith or with the Improvements.
"Plans and Specifications" shall mean the plans and specifications for the
construction of the Improvements prepared by the Architect and initialed for
identification purposes on or prior to the date of the initial Advance for the Improvements
by the Borrower, the Agent and the Contractor, including all working drawings and shop
drawings prepared for use in connection therewith, as the same may be finalized,
supplemented, modified or amended from time to time by Change Orders permitted
hereunder.
"Prime Rate" shall mean a rate per annum equal to the rate of interest announced
by Agent in Indianapolis, Indiana from time to time as its "Prime Rate". Any change in
the Prime Rate shall be effective immediately from and after such change in the Prime
Rate. Interest accruing by reference to the Prime Rate shall be calculated on the basis of
actual days elapsed and a 360-day year. The Borrower acknowledges that the Agent and
Lenders may make loans to their customers above, at or below the Prime Rate.
"Prime Rate Loan" means the Loan for the period(s) when the rate of interest
applicable to the Loan is calculated by reference to the Prime Rate.
"Profroma Debt Service" shall mean the aggregate of debt service payments
(interest only) which would be payable during a twelve (12) month period on the
maximum principal amount of the Loan, assuming a per annum interest rate equal to the
greater of (a) Seven Percent (7%), (b) Two and One-Half Percent (2.50%) above the
Treasury Rate, or (c) the actual rate of interest then in effect under the Loan.
MS01 )BAXTER 1031727x5
10
"Proforma Debt Service Coverage Ratio" shall mean with respect to a particular
period, the ratio of (a) the Proforma Net Operating Income to (b) Proforma Debt Service.
"Proforma Net Operating Income" shall mean the proforma net operating income
from the ownership, operation, use, leasing and occupancy of the Project for a twelve
(12) month period determined by (a) multiplying (i) the aggregate of (A) the amount of
monthly rent payable under the Leases as of the date of calculation, and (B) one-twelfth
of the total of the other rent, reimbursements, fees, charges and amounts reasonably
estimated by the Borrower to be payable to the Borrower during the calendar year in
which such calculation is being made under the Leases; by (ii) 12, less (b) the greater of
(i) the appraised proforma operating costs for such twelve (12) month period, or (ii) the
"actual" operating costs reasonably estimated by Borrower for such twelve (12) month
period.
"Project" shall mean the Site and the Improvements.
"Project Costs" shall mean the Direct Costs and the Indirect Costs
"Request for Advance" shall mean a statement of the Borrower setting forth the
amount of an Advance being requested and containing such other information as is
required by Section 5.01(a) hereof.
"Required Lenders" shall mean Lenders'holding sixty-six and two-thirds percent
(66-2/3%) of the Loan or greater, provided that at all times when two (2) or more Lenders
are party to this Agreement, the term "Required Lenders" shall include not less than two
(2) Lenders. Commitments held by Defaulting Lenders shall be disregarded when
determining the Required Lenders.
"Retainage 'shall mean the percentage required by the Agent to be withheld from
the interim payments to the Contractor pursuant to Section 4.01(x).
"Site" shall mean an approximately 86.54 acre parcel of real estate in Cumberland
County, Pennsylvania, more particularly described on Exhibit A attached hereto and
made a part hereof.
"Subordination, Non-Disturbance and Attornment Agreement" shall mean a
Subordination, Non-Disturbance and Attornment Agreement in the form of Exhibit M
attached hereto.
"Tangible Net Worth" shall mean, with respect to Lauth Investment, Lauth
Investment's total assets excluding all intangible assets (i.e., goodwill, trademarks,
patents, copyrights, organizational expenses, and similar intangible items, but including
leaseholds and leasehold improvements), less such Lauth Investment's Total Debt.
"Tenant" shall mean any tenant entering into a Lease with Borrower for all or any
portion of the Project.
n DSO1 JBAXTER 1031727x5
"Tenant Work" shall mean tenant work/improvements that Borrower is obligated
to perform pursuant to a Lease.
"Title Company" shall mean the title insurer designated by the Borrower and
approved by the Agent which agrees to insure the priority of the lien of the Mortgage on
the Project.
"Title Policy" shall mean the policy of title insurance issued by the Title
Company to the Agent insuring the priority of the lien of the Mortgage on the Project.
"Total Debt" shall mean, with respect to Lauth Investment, all of Lauth
Investment's liabilities (excluding contingent liabilities under guaranties and
indemnification agreements).
"Treasury Rate" shall mean the weekly average of the yield to maturity of United
States Treasury Constant Maturities, having a ten (10) year maturity from the then most
recent available weekly average published by the Federal Reserve Board in Statistical
Releases Relating to Selected Interest Rates (or a similar publication selected by Agent in
its sole discretion in the event of the suspension of such publication) rounded upward to
the nearest one-sixteenth of one percent (1/16 of I%).
"Unencumbered Liquidity" shall mean, with respect to Lauth Investment, the sum
of unpledged . cash, stocks, bonds, and other near cash investments held in Lauth
Investment's name and immediately available with unimpaired value; but not including
pledged assets, IRA, 401(k), annuity or trust accounts.
Unless the context clearly otherwise requires, the foregoing definitions shall be equally
applicable to both the singular and plural forms.
ARTICLE II.
THE LOAN
2.01 Loan. Subject to the terms and conditions hereof, and relying upon the
representations and warranties herein set forth, the Lenders severally agree to make the Loan to
the Borrower up to the amount of each Lender's Commitment. The proceeds of the Loan will be
used to pay Project Costs. The proceeds of the Loan available for the payment of Project Costs
will be advanced to the Borrower as such construction progresses, in accordance with and
subject to the requirements and limitations set forth herein and in the other Loan Documents.
2.02 Notes. The Loan and all Advances thereunder shall be evidenced by the Notes.
2.03 Maturity Date. The term of the Loan shall expire on the Original Maturity Date,
unless the Loan is sooner paid pursuant to the terms hereof. Borrower shall have the option to
extend the term of the Loan to the Extended Maturity Date upon the satisfaction of the following
conditions: (a) no Event of Default (as of the date notice is given and as of the Original Maturity
Date) is then continuing in respect of Loan; (b) Borrower pays to the Agent for the benefit of
Lenders (in accordance with each Lenders' respective Percentage) an extension fee in an amount
equal to One Eighth of One Percent (1/8 of 1%) of the sum of the outstanding principal balance
INDS01 ]BAXTER 1031727v5
of the Loan as of the Original Maturity Date, plus the amount of the Loan then available for
borrowing; (c) the Improvements have been completed lien-free and all certificates of occupancy
(or the local equivalent) have been issued in respect of the Improvements by the applicable
Governmental Authorities; (d) the Project shall have achieved a Proforma Debt Service
Coverage Ratio of not less than 1.00 to 1.00; and (e) at the discretion of the Required Lenders,
the Agent shall have received an updated Appraisal providing a maximum loan to "as-is" value
ratio of the Project of Sixty-Five Percent (65%).
2.04 Interest Rate.
a. Interest Provisions. Interest on the outstanding principal amount of the
Loan, when classified as a: (i) LIBOR Rate Loan, shall accrue during each LIBOR
Interest Period at a rate per annum equal to the sum of the Adjusted LIBOR Rate for such
LIBOR Interest Period plus the LIBOR Rate Margin and shall be due and payable to
Agent on behalf of Lenders on each Interest Payment Date and on the Maturity Date, and
(ii) LIBOR Advantage Loan, shall accrue during the LA Interest Period applicable
thereto at a rate per annum equal to the sum of the L113OR Advantage Rate for such LA
Interest Period plus the LA Margin, and shall be due and payable to agent on behalf of
Lenders on each LA Interest Payment Date and on the Maturity Date. Interest shall be
calculated for the actual number of days elapsed on the basis of a 360-day year, including
the first date of the applicable period to, but not including, the date of repayment. In the
event Borrower fails to provide Agent with Leases which satisfy the Leasing Condition
on or before the date which is twenty-four (24) months following the Closing Date, the
LA Margin and the LIBOR Rate Margin (as applicable) shall be increased to 2.50% per
annum; provided, however, the LA Margin and the LIBOR Rate Margin (as applicable)
shall return to 2.25% per annum beginning on the first (1") LA Interest Period or LIBOR
Interest Period (as the case may be), following Borrower's satisfaction of the Leasing
Condition.
b. Automatic Rollover of LIBOR Rate Loan and Conversion of LIBOR
Advantage Loans to LIBOR Rate Loans. Upon the expiration of a LIBOR Interest
Period, the LIBOR Rate Loan shall automatically be continued as a LIBOR Rate Loan at
the then applicable Adjusted LIBOR Rate and in an amount equal to the principal amount
of the expiring LIBOR Rate Loan plus the amount of any outstanding LIBOR Advantage
Loan which is converted to a LIBOR Rate Loan; provided, however, that no portion of
the outstanding principal amount of a LIBOR Rate Loan may be continued as a LIBOR
Rate Loan when any Event of Default has occurred and is continuing. If any Event of
Default has occurred and is continuing (if the Agent does not otherwise elect to exercise
any right to accelerate the Loan hereunder), the LIBOR Rate Loan shall automatically be
continued as a LIBOR Advantage Loan on the first day of the next LIBOR Interest
Period.
2.05 Miscellaneous LIBOR Rate Loan Terms
a. Voluntary Prepayment of the LIBOR Rate Loan. When classified as a
LIBOR Rate Loan, the Loan may be prepaid upon the terms and conditions set forth
herein. The Borrower acknowledges that additional obligations may be associated with
1NDS01 JDAXTER 1031727v5
any such prepayment under the terms and conditions of any applicable Hedging
Contracts. The Borrower shall give the Agent, no later than 10:00 a.m., New York City
time, at least four (4) Business Days notice of any proposed prepayment of the LIBOR
Rate Loan, specifying the proposed date of payment and the principal amount to be paid.
Each partial prepayment of the principal amount of the LIBOR Rate Loan shall be in an
integral multiple of $500,000 and accompanied by the payment of all charges outstanding
on the LIBOR Rate Loan (including the LIBOR Breakage Fee) and of all accrued interest
on the principal repaid to the date of payment.
b. LIBOR Breakage Fee. Upon any prepayment of a LIBOR Rate Loan on
any day that is not the last day of the relevant LIBOR Interest Period (regardless of the
source of such prepayment and whether voluntary, by acceleration or otherwise), the
Borrower shall pay an amount ("LIBOR Breakage Fee'), as calculated by the Agent,
equal to the amount of any losses, expenses and liabilities (including without limitation
any loss of margin and anticipated profits) that Lenders may sustain as a result of such
default or payment. The Borrower understands, agrees and acknowledges that: (i) the
Lenders do not have any obligation to purchase, sell and/or match funds in connection
with the use of the LIBOR Rate as a basis for calculating the rate of interest on a LIBOR
Rate Loan, (ii) the LIBOR Rate may be used merely as a reference in determining such
rate, and (iii) the Borrower has accepted the LIBOR Rate as a reasonable and fair basis
for calculating the LIBOR Breakage Fee and other funding losses incurred by the
Lenders. Borrower further agrees to pay the LIBOR Breakage Fee and other funding
losses, if any, whether or not the Lenders elect to purchase, sell and/or match funds.
C. LIBOR Rate Lending Unlawful. If the Agent (or any Lender) shall
determine (which determination shall, upon notice thereof to the Borrower be conclusive
and binding on the Borrower) that the introduction of or any change in or in the
interpretation of any law, rule, regulation or guideline, (whether or not having the force
of law) makes it unlawful, or any central bank or other governmental authority asserts
that it is unlawful, for a Lender to make, continue or maintain the Loan as, or to convert
the Loan into, a LIBOR Rate Loan, then any such LIBOR Rate Loans shall, upon such
determination, forthwith be suspended until the Agent shall notify the Borrower that the
circumstances causing such suspension no longer exist, and all LIBOR Rate Loans of
such type shall automatically convert into LIBOR Advantage Loans at the end of the then
current LIBOR Interest Periods with respect thereto or sooner, if required by such law
and assertion.
d. Increased Costs. If, on or after the date hereof, the adoption of any
applicable law, rule or regulation or guideline (whether or not having the force of law), or
any change therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Agent (or any Lender) with
any request or directive (whether or not having the force of law) of any such authority,
central bank or comparable agency:
i. shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation, any
INDS01 JBAXTER )031727v5
such requirement imposed by the Board of Governors of the Federal
Reserve System of the United States) against assets of, deposits with or for
the account of, or credit extended by, the Agent (or any Lender) or shall
impose on the Agent (or any Lender) or on the London interbank market
any other condition affecting the LIBOR Rate Loan or its obligation to
make the LIBOR Rate Loan; or
ii. shall impose on Agent (or any Lender) any other condition
affecting the LIBOR Rate Loan or its obligation to make the LIBOR Rate
Loan,
and the result of any of the foregoing is to increase the cost to the Agent (or any Lender)
of making or maintaining the Loan as a L113OR Rate Loan, or to reduce the amount of
any sum received or receivable by the Agent (or any Lender) under this Agreement with
respect thereto, by an amount deemed by the Agent (or any Lender) to be material, then,
within 15 days after demand by the Agent (or any Lender), the Borrower shall pay to the
Agent (or any Lender) such additional amount or amounts as will compensate the Agent
or such Lender for such increased cost or reduction.
e. Increased Capital Costs. If any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation,
directive, guideline, decision or request (whether or not having the force of law) of any
court, central bank, regulator or other governmental authority affects or would affect the
amount of capital required or expected to be maintained by the Agent (or any Lender), or
person controlling the Agent (or any Lender), and the Agent (or any Lender) determines
(in its sole and absolute discretion) that the rate of return on its or such controlling
person's capital as a consequence of its commitments or the Loan made by the Agent (or
any Lender) is reduced to a level below that which the (or any Lender) or such
controlling person could have achieved but for the occurrence of any such circumstance,
then, in any such case upon notice from time to time by the Agent (or any Lender) to the
Borrower, the Borrower shall immediately pay directly to the Agent (or any Lender)
additional amounts sufficient to compensate the Agent (or 'any Lender) or such
controlling person for such reduction in rate of return. A statement of the Agent as to any
such additional amount or amounts (including calculations thereof in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on the Borrower. In
determining such amount, the Agent (or any Lender) may use any method of averaging
and attribution that it (in its sole and absolute discretion) shall deem applicable.
f. Taxes. All payments by the Borrower of principal of, and interest on, the
LIBOR Rate Loan and all other amounts payable hereunder shall be made free and clear
of and without deduction for any present or future income, excise, stamp or franchise
taxes and other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding franchise taxes and taxes
imposed on or measured by the Agent's (or any Lender's) net income or receipts (such
non-excluded items being called "Taxes"). In the event that any withholding or
deduction from any payment to be made by the Borrower hereunder is required in respect
of any Taxes pursuant to any applicable law, rule or regulation, then the Borrower will
WDS01 JBAXTER 1031727x5
i. pay directly to the relevant authority the full amount
required to be so withheld or deducted;
ii. promptly forward to the Agent (or any Lender) an official
receipt or other documentation satisfactory to the Agent (or any Lender)
evidencing such payment to such authority; and
iii. pay to the Agent (or any Lender) such additional amount or
amounts as is necessary to ensure that the net amount actually received by
the Agent (or any Lender) will equal the full amount the Agent (or any
Lender) would have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against the Agent (or any Lender) with
respect to any payment received by the Agent (or any Lender) hereunder, the Agent (or
any Lender) may pay such Taxes and the Borrower will promptly pay such additional
amount (including any penalties, interest or expenses) as is necessary in order that the net
amount received by the Agent (or any Lender) after the payment of such Taxes (including
any Taxes on such additional amount) shall equal the amount the Agent (or any Lender)
would have received had not such Taxes been asserted.
If the Borrower fails to pay any Taxes when due to the appropriate taxing authority or
fails to remit-to the Agent the required receipts or other required documentary evidence,
the Borrower shall indemnify the Agent and Lenders for any incremental Taxes, interest
or penalties that may become payable by the Agent (or any Lender) as a result of any
such failure
g. Unavailability of LIBOR Rate. In the event that Borrower shall have
requested a LIBOR Rate Loan in accordance with Section 2.04a or Section 2.04b and
Agent, in its sole discretion, shall have determined that U.S. dollar deposits in the
relevant amount and for the relevant LIBOR Interest Period are not available to the Agent
(or any Lender) in the London interbank market; or by reason of circumstances affecting
the Agent in the London interbank market, adequate and reasonable means do not exist
for ascertaining the LIBOR Rate applicable to the relevant LIBOR Interest Period; or the
LIBOR Rate no longer adequately and fairly reflects the Agent's (or any Lender's) cost
of funding loans; upon notice from the Agent to the Borrower, the obligations of the
Agent and Lenders under Section 2.04a and Section 2.04b to make or continue any loans
as, or to convert any loans into, LIBOR Rate Loans of such duration shall forthwith be
suspended and such loans shall be converted into Prime Rate Loan until the Agent shall
notify the Borrower that the circumstances causing such suspension no longer exist.
2.06 Default Interest. After maturity (whether by declaration, acceleration or
otherwise), the unpaid principal balance of the Loan shall bear interest at a rate per annum equal
to the Default Rate until the Loan is paid in full, principal and interest. All interest on the Loan
shall be calculated on the unpaid principal balance of the Loan at the time of reference, based on
a year of 360 days and on the actual number of days elapsed in each calendar year.
INDSOI ]BAXTER 1031727v5
2.07 Loan Payments.
a. Borrower shall pay all accrued unpaid interest on the Loan in the manner
described in Section 2.04a hereof; and
b. In any and all events, the entire outstanding principal balance of the Loan,
together with all accrued and unpaid interest thereon, shall be due and payable on the
Maturity Date.
2.08 Loan Prepayments. Borrower shall have the right to make prepayments of any
LIBOR Advantage Loan, in whole or in part, without prepayment penalty.
2.09 Late Fee. In the event that any installment of interest, principal, or principal and
interest due under the Loan is not paid within ten (10) days after the same is due and payable, a
"late charge" in an amount equal to the greater of Five Percent (5%) of such overdue payment or
Thirty-Five Dollars ($35.00) shall be paid by Borrower to Agent, for the benefit of Lenders in
accordance with their respective Percentage, for the purpose of defraying the expenses incident
to handling such delinquent payment, which "late charge" shall be payable on demand.
Notwithstanding anything expressed or implied herein to the contrary, no "late charge" shall be
payable with respect to any payments due on the Maturity Date, as from time to time extended,
or for any payments due upon an acceleration of the Notes.
2.10 Loan Balance. So long as Lenders are the holders of the Notes, the unpaid
principal balance thereof, the interest, if any, accrued thereon and the interest rate or rates
applicable to such balances shall be determined from the records of Lenders in the absence of
error. Lenders shall report such information as determined by its records to Borrower promptly
upon request of Borrower (in writing if requested).
2.11 Interest Reserve. Proceeds of the Loan shall be allocated to an interest reserve
(the "Interest Reserve') as set forth in the Cost Breakdown approved by the Agent. Borrower
hereby authorizes the Agent on the date on which interest is due under the Notes to disburse to
the Lenders from the undisbursed proceeds of the Interest Reserve to pay all then accrued and
unpaid interest on the Loan; provided, however, that such authorization shall not be deemed to
limit, reduce or otherwise affect Borrower's obligation to pay interest if (a) there are no
remaining amounts in the Interest Reserve, or (b) the Lenders are entitled to withhold
disbursement of the Interest Reserve for any reason. In addition, the Borrower covenants and
agrees that the Interest Reserve, plus the amount (if any) in the Interest Reserve Account, shall at
all times be an amount not less than an amount sufficient to cover six (6) months of interest
payments at the rate then in effect under the Loan. Borrower shall fund the Interest Reserve
Account from time to time in order to comply with the preceding sentence.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to Lenders that:
INDSOI JBAXTER 1031727v5
3.01 Organization and Qualification. The Borrower is a duly formed and validly
existing limited liability company under the laws of the State of Indiana, and is duly authorized
to transact business under the laws of the Commonwealth of Pennsylvania.
3.02 Right and Power. The Borrower has full right, power and authority to execute
and deliver each of the Loan Documents.
3.03 Conflict With Other Instruments. Neither the execution and delivery of the Loan
Documents nor consummation of the transactions contemplated thereby, nor compliance with the
terms, conditions and provisions thereof will conflict with or result in a breach of any of the
terms, conditions or provisions of the articles of organization or operating agreement of the
Borrower, or, to the best of Borrower's knowledge, any law or any regulation, order, writ,
injunction or decree of any court or Governmental Authority or any agreement or instrument to
which the Borrower is a party or by which the Borrower or its properties or assets (including the
Project) are subject to or bound, or constitute a default thereunder or result in the creation or
imposition of any lien, charge, security interest or encumbrance of any nature whatsoever upon
any of the property of the Borrower (including the Project) pursuant to the terms of any such
agreement or instrument, except as created by the Loan Documents.
3.04 AuthoritLValidity and Binding Effect. The execution and delivery of the Loan
Documents, the making of the borrowings contemplated by the provisions thereof and hereof, the
execution, issuance and delivery of the Notes to evidence such borrowings, and the execution
and delivery of the other Loan Documents to which the Borrower is a party have been duly
authorized by all necessary action on the part of the Borrower, and, to the best of Borrower's
knowledge, no authorization, approval or consent by, or filing with, any Governmental Authority
or public regulatory authority is necessary therefor. Each Loan Document to which the
Borrower is a party has been duly and validly executed and delivered by the Borrower and
constitutes a legal, valid and binding obligation of the Borrower, enforceable in accordance with
its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other
laws of general application affecting the enforcement of creditors' rights generally and by
principles of equity.
3.05 Financial Condition. The financial statements of the Borrower and, to the best of
Borrower's knowledge, the Guarantors famished to the Agent are complete and correct in all
material respects. Such financial statements were prepared in accordance with generally
accepted accounting principles or federal tax reporting basis, consistently applied. The financial
statements of the Borrower and, to the best of Borrower's knowledge, the Guarantors fairly
present their financial condition at the dates indicated therein. Since the dates of such financial
statements, there has been no material adverse change in the assets, liabilities or financial
condition of the Borrower and the Guarantors from that reflected thereon.
3.06 Litigation. There are no actions, suits or proceedings pending or to Borrower's
knowledge threatened, against or affecting the Borrower or, to the best of Borrower's
knowledge, the Guarantors before any court or Governmental Authority which might have a
material adverse affect on the Borrower or the Guarantors or their operations or financial
condition, or on the construction or operation of the Project.
INDS01 JBAXTHR 1031727x5
3.07 Compliance With Governmental Requirements. To the best of Borrower's
knowledge, the development and construction of the Improvements as contemplated by the Plans
and Specifications and the intended use of the Improvements will comply with all applicable
Governmental Requirements and all applicable restrictive covenants. To the extent required by
applicable law, the Plans and Specifications will be approved by all Governmental Authorities
prior to the commencement of construction of the Improvements and the Borrower will obtain all
required permits with respect to construction of the Improvements prior to the commencement of
construction thereof.
3.08 Building; Contracts. The copies of the Building Contracts furnished to the Agent
are true and correct copies thereof. The Building Contracts have not been modified or amended,
except by Change Orders approved by the Agent, and are in full force and effect. There is no
default under the Building Contracts by any party thereto. The Borrower has not assigned or
pledged any of its right, title or interest in the Building Contracts to anyone other than the Agent
and such right, title and interest is not subject to any liens, claims, encumbrances or security
interests.
3.09 Utility Services. All utility services necessary for the construction of the Project
and the operation thereof as a bulk distribution building are available at the boundaries of the
Site, or off-site utility services can be extended to the boundaries of the Site and the cost of
extending such utility services is reflected in the Cost Breakdown, and the Borrower will obtain
prior to the commencement of construction of the Improvements all permits from all
Governmental Authorities necessary for such extension and such utilities will have sufficient
capacity to serve the Project.
3.10 Hazardous Materials. The Borrower has not used Hazardous Materials on, from
or affecting the Site in any manner which violates federal, state or local laws, ordinances, rules,
regulations or policies governing the use, storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of Hazardous Materials, and, to the best of the
Borrower's knowledge, no prior owner of the Site or prior occupant thereof, has used Hazardous
Materials on, from or affecting the Site in any manner which violates federal, state or local laws,
ordinances, rules, regulations or policies governing the use, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of Hazardous Materials. The
Borrower further represents to the Lenders that the Borrower has not received any notice of any
violations of federal, state or local laws, ordinances, rules, regulations or policies governing the
use, storage, treatment, transportation, manufacture, refinement, handling, production or disposal
of Hazardous Materials at the Site and, to the best of the Borrower's knowledge, there have been
no actions commenced or threatened by any party for non-compliance with any such laws or
regulations at the Site.
3.11 Covenants and Restrictions. There are no covenants, conditions or restrictions of
record or of which the Borrower has knowledge that prohibit the construction of the
Improvements on the Site.
3.12 Flood Hazard. The Improvements will not be located in or on an "area of special
flood hazard," as that term is defined in the Flood Disaster Protection Act of 1973.
INDSOI JHAXTER 1031727x5
3.13 Independent Unit.
a. The Project is an independent unit which does not rely on any drainage,
sewer, access, parking, structural or other facilities located on any property not included
in the Site or on public or private utility easements for the fulfillment of any zoning,
building code or other requirement of any governmental authority that has jurisdiction
over the Project;
b. the Borrower, directly or indirectly, has the right to use all amenities,
easements, public or private utilities, parking, access routes or other items necessary or
currently used for the construction and development of the Improvements and the
operation of the Project;
C. all public utilities are or will be prior to the commencement and
development of the Improvements available at the boundaries of the Site in sufficient
quantities to support the ordinary use of the Improvements; and
d. the Site is either (i) contiguous to or (ii) benefits from an irrevocable
unsubordinated easement permitting access from the Site to a physically open, dedicated
public street. No building or other improvement not located on the Site relies on any part
of the Site to fulfill any zoning requirements, building code or other governmental or
municipal requirements for structural support or to famish to such building or
improvement any essential building systems or utilities.
3.14 Margin Stock. Borrower is not engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System).
3.15 ERISA. Borrower is not a party in interest to any plan defined or regulated under
ERISA, and the assets of Borrower are not "plan assets" of any employee benefit plan covered
by ERISA or Section 4975 of the Internal Revenue Code.
3.16 Foreim Person. Borrower is not a "foreign person" within the meaning of
Section 1445 or 7701 of the Internal Revenue Code.
ARTICLE N.
CONDITIONS OF LENDING
The Borrower agrees that the obligation of the Lenders to make an Advance is subject to
the accuracy in all material respects, as of the date hereof and the date of each Advance, of the
representations and warranties contained herein and under the other Loan Documents, to the
performance by the Borrower of its agreements to be performed hereunder and under the other
Loan Documents on or before the date of each Advance, and to the satisfaction of the following
further conditions:
4.01 Initial Loan Advance. Concurrently with or prior to the initial Advance by
Lenders:
INDSOI MAXTER 1031727v5
nn
a. Organizational Documents. There shall have been furnished to the Agent
by the Borrower:
i. A copy of the articles of organization of the Borrower,
together with any amendments to such agreement, filed with the
appropriate Governmental Authorities of the State of Indiana and a copy
of the operating agreement of the Borrower, together with any
amendments to such agreement;
ii. A copy of the consent of the members of the Borrower
authorizing the Loan;
iii. An original Certificate of Existence for the Borrower issued
by the Secretary of State of Indiana bearing a recent date;
iv. An original Certificate of Authority to Transact Business
for the Borrower issued by the Secretary of State of Pennsylvania bearing
a recent date;
V. A copy of the articles of organization of the Lauth
Investment, together with any amendments to such agreement, filed with
the appropriate Governmental Authorities of the State of Indiana and a
copy of the operating agreement of Lauth Investment, together with any
amendments to such agreement;
vi. A copy of the consent of the members of Lauth Investment
authorizing its guaranty of the Loan;
vii. An original Certificate of Existence for Lauth Investment
issued by the Secretary of State of Indiana bearing a recent date;
viii. A copy of the articles of incorporation of Lauth Group,
together with any amendments to such agreement, filed with the
appropriate Governmental Authorities of the State of Indiana and a copy
of the by-laws of Lauth Group, together with any amendments to such
agreement;
ix. A copy of the resolution of the board of directors of Lauth
Group authorizing its guaranty of the Loan; and
X. An original Certificate of Existence for the Borrower issued
by the Secretary of State of Indiana bearing a recent date.
b. Borrower's Counsel Opinion. The Borrower shall furnish to the Agent an
opinion of counsel for the Borrower and Guarantors in form and substance acceptable to
Agent.
INDSOI JBAXTER 10317270
C. Notes. The Borrower shall execute and deliver to Lenders their respective
Notes with blanks appropriately completed.
d. Security Documents. There shall have been executed and delivered to the
Agent the following security documents:
i. the Mortgage which shall constitute a first mortgage lien on
the Borrower's fee simple interest in the Project;
ii. the Assignment of Rents pursuant to which the Borrower
shall have collaterally assigned to the Agent all the right, title and interest
of the Borrower as landlord in and to all existing and future leases of space
in the Project and all rentals and other monies due and to become due
under said leases;
iii. the Contract Assignment pursuant to which the Borrower
shall have collaterally assigned to the Agent all the right, title and interest
of the Borrower in and to the Construction Contracts, the Architect's
Agreement and the Plans and Specifications, and any other trade contracts,
construction management agreements and construction contracts in respect
of the Improvements;
iv. the Assignment of Management Agreement pursuant to
which Borrower shall have assigned to the Agent all the right, title and
interest of Borrower in and to any management agreement for the Project;
and
v. such financing statements as are deemed necessary by the
Agent to perfect the security interests granted under the Loan Documents.
e. Payment Guaranty. Lauth Investment shall have executed and delivered
to Agent the Payment Guaranty.
f. Completion Guaranty. Lauth Group shall have executed and delivered to
Agent the Completion Guaranty.
g. Borrower's Affidavit. The Borrower shall have furnished to the Agent an
executed Borrower's Affidavit with respect to the Loan and the Project.
h. Environmental Indemnity. The Borrower and the Guarantors shall have
furnished to the Agent an executed Environmental Indemnity Agreement in respect of the
Project.
i. Title Policy. The Title Company shall have issued and delivered to the
Agent a policy of title insurance acceptable to the Agent insuring the priority of the lien
of the Mortgage in the amount thereof, and such portion thereof as shall be advanced
from time to time. The Title Policy shall provide such endorsements as are reasonably
required by Agent, and affirmative coverage with respect to filed or unfiled mechanic's
rNDS01 7BAXTER 1031727v5
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lien and shall be subject only to such exceptions as may be reasonably approved by the
Agent.
j. Survey. The Borrower shall have furnished to the Agent an Urban Class
ALTA/ACSM Minimum Standard Detail Survey (or such other survey as may be
sufficient for the Title Company to delete the standard survey exceptions in the Title
Policy) of the Site, made by a registered engineer or surveyor licensed by the state in
which the Project is located and reasonably satisfactory to the Agent and the Title
Company and certified to each of them as of a date not more than thirty (30) days prior to
the Closing Date showing the boundaries of the Site, all building setback lines,
easements, rights of way and encroachments affecting the Site and other matters apparent
thereon and the relation of the Site to public thoroughfares for access purposes, certifying
that the Site is not located within a special flood hazard area as defined by the Flood
Disaster Protection Act of 1973, as amended by the 1997 National Flood Insurance
Reform Act, and showing the number of the Flood Insurance Rate Map on which the Site
is shown and the date of such map, and shall specify the flood hazard zone in which the
Site is situated. Upon completion of the foundation for the Improvements, at the request
of the Agent, Borrower shall furnish to the Agent a similar survey which shall show the
actual location of the foundation for the Improvements. Upon completion of the
Improvements, Borrower shall furnish to the Agent an "as built" survey prepared by the
surveyor or engineer preparing the survey for the Closing.
k. Cost Breakdown. Borrower has furnished to the Agent for its review and
approval a Cost Breakdown reflecting all Project Costs. The Cost Breakdown shall
include an itemization of all such Project Costs. This itemization shall include (i) a
summary page indicating costs of the Site, and construction and soft costs on an AIA
G703 form, and (ii) detailed schedules supporting the site work and construction costs
shown on the AIA G703 form according to Construction Standards Institute Division.
1. Architectural Agreement; Engineer's Agpeement. The Borrower shall
have furnished to the Agent an executed copy of the Architectural Agreement and the
Engineer's Agreement.
M. Architect's Letter. The Borrower shall have furnished to the Agent an
executed copy of an Architect's Letter for the Project.
n. Contractor's Letter. The Borrower shall have furnished to the Agent an
executed copy of a Contractor's Letter for the Project.
o. Engineer's Letter. The Borrower shall have furnished to the Agent an
executed copy of an Engineer's Letter for the Project.
p. Development Schedule. Borrower shall have provided to Agent a
development schedule for the Improvements, satisfactory to Agent, prepared by Borrower
and its development supervisor setting forth the approximate start and finish dates of all
major stages of the Improvements.
INDSOI ;BAXTER 1031727x5
q. Plans and Specifications. The Borrower shall have furnished to the Agent
for its review and approval the Plans and Specifications.
r. Appraisal. The Agent shall have received an appraisal of the fair market
value of the Project on an assumed completion basis (the "Appraisal"). The appraiser
will be selected and directly engaged by the Agent. The cost of the Appraisal will be
charged to the Borrower at Closing. The Appraisal shall be prepared in accordance with
the Uniform Standards of Professional Appraisal Practice applicable to Federally Related
Transactions as set out in Appendix A to the real estate appraisal regulations adopted by
the Office of the Comptroller of the Currency pursuant to the Financial Institutions
Reform, Recovery and Enforcement Act of 1989 (Sub-part C of 12 C.F.R. 34) and shall
be prepared in response to an engagement letter to be issued by the Agent.
S. Architect's Report. The Agent shall have received a satisfactory report and
analysis of the Inspecting Architect with respect to the Plans and Specifications and the
Cost Breakdown.
t. Commitment Fee. The Borrower shall have paid to the Agent, for the
benefit of the Lenders (in accordance with each Lender's Percentage), the Commitment
Fee.
U. Soils Report. The Borrower shall have submitted to the Agent a
satisfactory geotechnical report of the Site.
V. Environmental Report. The Borrower shall have furnished to the Agent a
copy of an environmental report by an environmental consulting company acceptable to
the Agent giving satisfactory evidence that the Site is free of Hazardous Materials, that
the Site is not in violation of and does not cause the Borrower as owner or operator of the
Site to be in violation of any state, federal or local environmental, health, or safety law
(the `Environmental Report"). The Environmental Report shall be addressed to the
Agent, or, in the alternative, the Borrower shall provide to the Agent a letter of the
consulting company that prepared the Environmental Report pursuant to which such
consulting company authorizes the Agent to rely on the Environmental Report.
W. Lease. The Borrower shall have famished to the Agent a form of Lease
for the Project. Leases shall include the agreement of the Tenant thereunder to
subordinate its interest thereunder to any first mortgage upon the request of the
mortgagee thereunder and to attorn to such mortgagee, or any purchaser of the Project at
a foreclosure sale or pursuant to a deed in lieu of foreclosure, pursuant to a subordination,
non-disturbance and attornment agreement reasonably acceptable to Agent and Tenant.
X. Approvals. The Borrower shall submit to the Agent evidence reasonably
satisfactory to the Agent to the effect that:
i. The Site is presently zoned to permit its use as a 1,170,000
square fool bulk distribution building;
NDS01 IBAXTER 1031727v5
'I A
ii. Borrower has obtained such access easements and utility
easements, if any, as may be reasonably necessary for the contemplated
use of the Site and the Improvements and such easements are insured
under the Title Policy,
iii. All utility services necessary for the construction of the
Improvements and the operation thereof as a 1,170,000 square foot bulk
distribution building, are available at the boundaries of the Site or off-site
utilities can be extended to the boundaries of the Site at the cost thereof
reflected in the Cost Breakdown and all such utilities have the capacity
necessary to provide service to the Project;
iv. AD work contemplated by the Plans and Specifications will
conform to all applicable Governmental Requirements; and
V. All required permits, licenses and approvals for the
Improvements have been obtained from the applicable Governmental
Authorities.
Y- Construction Contract. Borrower shall have fiunished to the Agent for its
review and approval a copy of the executed Construction Contract for the Improvements.
The Construction Contract shall require the Contractor to complete the construction and
development of the Improvements in accordance with the Plans and Specifications on or
before the Completion Date for a maximum fixed price not exceeding an amount
approved by the Agent.
The Construction Contract shall further provide:
i. A provision that with final payment thereunder the
Contractor shall deliver to Borrower a complete release of liens signed by
the Contractor and all subcontractors;
ii. No change orders (A) involving an increase in costs of One
Hundred Thousand Dollars ($100,000) or more for a single change order
or Five Hundred Thousand Dollars ($500,000) or more in the aggregate,
or (B) involving any fundamental change in the design or quality of the
Improvements shall be effective without the prior written consent of the
Agent (this requirement shall be satisfied if the provision is included in the
Contractor's Letter); and
iii. A provision for not less than Ten Percent (10%) retainage
in connection with interim payments to each subcontractor (but not for
payments to suppliers unless Agent determines in its reasonable discretion
that such retainage as to suppliers is appropriate) until such subcontractor
has completed Fifty Percent (50%) of the work under its subcontract, and
thereafter retainage of Five Percent (5%).
INDSOI JSAXTER 1031727x5
7[
In addition, the Borrower shall use its best efforts furnish to the Agent a list of all
subcontractors furnishing labor, materials or supplies in connection with the
Improvements ("Subcontractors"), which list shall reflect the amount of the subcontracts
entered into with such subcontractors, and copies of all subcontracts in excess of Two
Hundred Fifty Thousand Dollars ($250,000) with Subcontractors furnishing labor,
materials or supplies in connection with the Improvements.
Z. Contractor's Letter. Borrower shall have famished to the Agent an
executed copy of the Contractor's Letter.
4.02 Subsequent Advances. Prior to any subsequent Advance:
a. Representations and Warranties. The representations and warranties
contained in Article III hereof and in the other Loan Documents shall be true in all
material respects on and as of the date of each Advance with the same effect as though
such representations and warranties had been made on and as of each such date, and on
each such date no Event of Default under the Loan shall have occurred and be continuing
or shall exist.
b. Dama e. On the date of each Advance, the Improvements shall not have
been materially injured or damaged by fire or other casualty, unless sufficient funds or
other collateral satisfactory to the Agent in cash or cash equivalents (including insurance
claims) for the restoration thereof have been deposited with the Agent pursuant to the
Mortgage.
C. Title Policy Endorsement. On the date of each Advance, the Agent shall
have received an endorsement to the Title Policy: (i) indicating that since the date of the
last Advance there has been no change in the state of title, except those matters approved
by the Agent, (ii) updating the Title Policy to the date of such Advance, and
(iii) increasing the coverage of the Title Policy by an amount equal to such Advance if
the Title Policy does not by its own terms provide for such an increase.
d. Contractor Receipts. On or prior to the date of each Advance, Borrower
shall have provided to the Agent receipts or lien waivers from the Contractor and lien
waivers from all other Major Contractors thereof relating to the last requested Advance
evidencing that all sums previously expended for Direct Costs have been expended for
Direct Costs and that the Borrower has received full credit against Direct Costs for
amounts so expended. All such receipts shall be available by the Borrower for inspection
by the Agent during the term of the Loan.
4.03 Last Advance for the Improvements. On or prior to the date of the last Advance
for Direct Costs for the Improvements, Agent shall have received from Borrower:
a. Architect's Certificate. A certificate from the Architect and the Inspecting
Architect that the Improvements have been completed substantially in accordance with
the Plans and Specifications, all applicable Governmental Requirements and all
applicable restrictive covenants.
MSOI JBA)CrBR 1031727v5
b. Release of Liens. A final affidavit and sworn statement of the Contractor
with respect to the Improvements and a complete release of liens signed by the
Contractor and every other Major Contractor with respect to the Improvements.
C. Governmental Approvals Evidence of approval (including permanent
occupancy permits or a certificate of occupancy, if required, and/or other permits, if
required) by all Governmental Authorities whose approval is required of the
Improvements, the permanent occupancy thereof (including tenant fixturing) and the
intended uses thereof
4.04 Proceedings and Documents. All legal details and proceedings in connection with
the transactions contemplated by this Agreement shall be in form and substance satisfactory to
counsel for the Agent, and the Agent shall have received all such counterpart originals or
certified or other copies of such documents and proceedings in connection with such
transactions, in form and substance, as to certification and otherwise, satisfactory to such
counsel, as the Agent or its counsel may request.
ARTICLE V.
DISBURSEMENTS
5.01 Advances. Subject to the terms and conditions hereof, and relying upon the
representations and warranties herein set forth, the Lenders agree to make Advances to the
Borrower in accordance with, and subject to the requirements and limitations set forth in, this
Article V. Borrower agrees that Advances shall be made in accordance with the following
requirements and limitations:
a. Requests for Advances. Not less than ten (10) business days prior to the
making of. any Advance, Borrower shall submit to Agent a Request for Advance on a
standard AIA Form G702 and G703 setting forth the total amount of Project Costs for
which such Advance is requested, broken down by the categories identified in the Cost
Breakdown, together with (i) receipted bills, bills, invoices, paid invoices, payroll records
or other evidence satisfactory to the Agent supporting each item of the Project Costs
covered by such Request for Advance, (ii) if the Request for Advance includes Direct
Costs, a certificate of the Borrower and the Contractor to the effect (x) that part of that
the construction and/or development to date of the Improvements performed by the
Contractor has been performed in a good and workmanlike manner and in accordance
with the Plans and Specifications, (y) the amount of the Direct Costs f r which such
Advance is requested either has been paid by the Borrower and/or is jus ly due to the
Contractor for work, labor or Materials furnished for the construction and/o development
of the lmprovements insofar as actually incorporated therein (but includ' g Materials
suitably stored on the Site in compliance with Sections 6.06 and 7.02 her f) up to the
date of such Request for Advance (in the case of the first Request for Adv ce) or to the
date of such Request for Advance from the date of the previous Request fo Advance (in
the case of any subsequent Request for Advance), and (z) no part of the oject Costs
described in such Request for Advance has been made the basis for any previous
Advance, and (iii) if the Request for Advance includes Direct Costs, a certificate of the
Inspecting Architect for the Project (x) to the effect that the construction of the
INDSOI ]BAXTER I031727v5
_ _ _ _ _ __ ._ _ __ __. J _ _ _. _ _ -_ - _ - ----
Improvements has been performed in a good and workmanlike manner and in accordance
with the Plans and Specifications and in compliance with all applicable Governmental
Requirements, (y) specifying the stage and percentage of completion which has been
achieved by each of the various trades engaged in the construction and development of
the Improvements, and (z) to the effect that the aggregate amount of such Advance is not
greater than the actual value of work and labor done on the Improvements and Materials
incorporated in the Improvements (or suitably stored on the Site in compliance with
Sections 6.06 and 7.02 hereof), less Retainage, up to the date of such certificate (in the
case of the first such certificate) or to the date of such certificate from the date of the
previous certificate (in the case of any subsequent such certificate). The Agent shall not
be required to make Advances more frequently than once each month. Each Request for
Advance and each receipt of the Advance requested thereby shall constitute a
certification by the Borrower of such Advance that the representations and warranties
contained in Article III hereof are true and correct on the date of such Request for
Advance or such receipt, as the case may be.
b. Borrowing Limitations. Unless otherwise permitted herein, advances for
the payment of Project Costs in each category of cost in the Cost Breakdown shall be
limited to the amount shown for such category in the column entitled "Balance to
Disburse." Advances shall be made only to defray Project Costs attributable to the
Project and described in the Cost Breakdown and actually incurred by the Borrower. The
aggregate amount of Advances for payment of Direct Costs shall be further limited to the
lesser of (i) the actual cost of work and labor done on the Improvements and Materials
incorporated in the Improvements (or suitably stored on the Site in compliance with
Sections 6.06 and 7.02 hereof), less Retainage, or (ii) the percentage of completion
reasonably determined by the Inspecting Architect of work and labor done on the
Improvements. and Materials incorporated in Improvements (or suitably stored on the Site
in compliance with Sections 6.06 and 7.02 hereof), less Retainage.
C. Deficiency in Cost Category Amounts. If any amount of the Loan
allocated for Project Costs in any category in the Cost Breakdown plus the amount in the
Contingency category which Lender determines, in its reasonable discretion, is available
to pay Project Costs in such category is at any time not sufficient in the reasonable
judgment of the Agent to pay in full such Project Costs in such category, the Lenders
shall not be obligated to- make further Advances and Borrower shall promptly pay such
amounts as may be required so that the sum of the unadvanced portion of `Balance to
Disburse," for such category is sufficient to pay such Project Costs in full. Any
previously achieved savings (as determined by the Agent) in any category of the Cost
Breakdown shall be added to the "Contingency" category in the Cost Breakdown and
shall be available to Borrower for borrowing as provided herein. Borrower shall be
entitled to advances from the Contingency category in the Cost Breakdown to pay Project
Costs, so long as at all times the amount remaining in the Contingency category is not
less than an amount which Lender reasonably determines is adequate to pay any
remaining overages in other categories on the Cost Breakdown which would be expected
to be incurred for the construction of a real estate development comparable to the Project.
INDS01 JBAXTER 1031727x5
d. Deficiency in Total Cost Amount. At all tunes the sum of the unadvanced
portion of the Loan shall be sufficient in the reasonable judgment of the Agent or the
Inspecting Architect to pay all Project Costs remaining unpaid. If at any time such sum is
not sufficient in the reasonable judgment of Agent to pay all such unpaid Project Costs,
the Borrower shall immediately upon request by the Agent deposit with the Agent either
cash or satisfactory letters of credit in an amount equal to such deficiency. In the event
the Borrower elects to deposit cash with the Agent, such deposit shall earn interest at
prevailing interest rates and shall be disbursed by the Agent to pay Project Costs in
accordance with the disbursement procedures of this Agreement governing the
disbursement of proceeds of the Loan.
e. Payment of Advances. Advances shall, at the option of the Agent, either
(i) be wire transferred to Borrower's demand deposit account with Agent; or (ii) during
the pendency of a Conditional Default or an Event of Default, be paid by the Agent after
notice to the Borrower and the failure of the Borrower to pay such amounts directly to the
party or parties who have actually supplied labor, Materials or services in connection
with or incidental to the construction and/or development of the Improvements or to the
party or parties to whom payment of any other Project Costs specified in the Request for
Advance is due. No further direction or authorization for such direct payment shall be
required, it being understood that any such payment shall satisfy pro tanto the
obligations of the Agent hereunder and shall be deemed an Advance evidenced by the
Notes and secured by the Mortgage and the other Loan Documents fully as if made to
Borrower, regardless of the actual disposition thereof by the party or parties to whom
such payment is made if such payment was made to the party and in the amount specified
in the Request for Advance. The making of any such Advance by the Agent shall not be
deemed an acceptance or approval by the Agent or Lenders (for the benefit of Borrower
or any third party) of any work done or Improvements constructed or Materials fiunished
or installed in connection with the construction and/or development of the Improvements.
f. Advances to Cure Defaults, etc. Notwithstanding the foregoing provisions
of this Section 5.01. and without receiving Requests for Advances for such Advances, the
Agent may at any time or from time to time (i) direct Lenders to make Advances to
satisfy any condition hereof with respect to the Loan or to cure any Event of Default or
Conditional Default to the extent any Guarantor has not previously cured such default
with regard to the construction and/or development of the Improvements, it being
understood that the Agent will accept a cure made by such Guarantor with respect to the
Loan, (ii) direct Lenders to make Advances to pay interest on the Loan, (iii) direct
Lenders to make Advances of the Loan to pay the reasonable fees and expenses of
counsel for the Agent and the Inspecting Architect; and (iv) direct Lenders to make
Advances to pay the reasonable fees and expenses payable to the Title Company for
endorsements to the Title Policy as required herein. Any Advances made pursuant to this
paragraph (f) shall be evidenced by the Notes and secured by the Mortgage and the other
Loan Documents, as fully as if made to Borrower to the extent any Guarantor has not
previously cured such Event of Default or Conditional Default with regard to the
construction and/or development of the Improvements, it being understood that the
Lenders will accept a cure made by such Guarantor.
NDSOI IBAXTER 10317270
29
g. Interim Income. Borrower shall make no distribution, payments or
allocations to or for the benefit of any person or entity having an interest in Borrower,
and shall use all net income from the Project to offset draw requests of Borrower or to
make payments in respect of the Loan as provided for herein; provided, however, so long
as no Event of Default is continuing and Borrower has achieved a Proforma Debt Service
Coverage Ratio of not less than 1.2 to 1.0, Borrower may distribute Gross Revenues not
needed to make payments in respect of the Loan as provided for herein or to pay
operating expenses of the Project.
h. Loan Amount. Notwithstanding any other provision contained herein to
the contrary, at all times prior to the Maturity Date, the maximum principal amount of the
Loan shall not exceed an amount equal to the lesser of (i) Sixty-Five Percent (65%) of the
appraised value of the Project, and (ii) Seventy Percent (70%) of the Project Costs. For
purposes of this subparagraph, the appraised value of the Pro ject shall be determined by
the Appraisal (or any update thereof).
i. Borrower's Investment. No Advance of the Loan shall be made by the
Agent until such time as the Borrower has f irnished satisfactory evidence to the Agent
that the Borrower has invested an amount not less than the greater of (i) Sixteen Million
Four Hundred Seventy-Seven Thousand Five Hundred Ninety-Eight Dollars
($16,477,598) and (ii) the total Project Costs, less the amount of the Loan ("Borrower's
Investment Amount'), as evidenced by copies of canceled checks, paid receipts, lien
waivers or other documentary evidence acceptable to Agent, or until such time as the
Borrower has deposited with the Agent in escrow an amount equal to the Borrower's
Investment Amount. In the event the Borrower elects to deposit such amounts with the
Agent, such deposit shall earn interest at prevailing interest rates and shall be disbursed
by the Agent to pay Project Costs in accordance with the disbursement procedures of this
Agreement governing the disbursement of proceeds of the Loan.
ARTICLE VI.
BORROWER'S AFFIItMATIVE COVENANTS
The Borrower covenants that until payment in full of the Loan and performance of all of
the Borrower's other obligations under the Loan Documents:
6.01 Financial Statements. Borrower, during the term of the Loan, will deliver or
cause to be delivered to the Agent:
a. Commencing December 31, 2007, as soon as practicable, but in any event
within one hundred twenty (120) days after the end of each calendar year, annual audited
financial statements of Lauth Investment for such year, all in reasonable detail and
satisfactory in scope to the Agent and prepared by a certified public accountant;
b. as soon as practicable, but in any event within forty-five (45) days after
the end of each calendar quarter, financial statements of Lauth Investment for such
quarter, as of the end of such quarter, all in reasonable detail and satisfactory in scope to
the Agent and certified to accuracy by an officer of Lauth Investment;
1NDS01 ]BAXTER 1031727v5
C. as soon as practicable, but in any event within one hundred twenty (120)
days after the end of each calendar year, annual compiled financial statements of Lauth
Group for such year, all in reasonable detail and satisfactory in scope to the Agent and
certified to accuracy by an officer of Lauth Group;
d. as soon as practicable, but in any event within forty-five (45) days after
the end of each calendar quarter, financial statements of Lauth Group for such quarter, as
of the end of such quarter, all in reasonable detail and satisfactory in scope to the Agent
and certified to accuracy by an officer of Lauth Group;
e. as soon as practical, but in any event within forty-five (45) days after the
end of each calendar quarter commencing June 30, 2009, financial statements of
Borrower for such quarter, including a rent roll, balance sheet, statement of income and
retained earnings and a statement of cash flows, which financial statements shall be
prepared and certified as to accuracy by an officer of the Borrower and shall otherwise be
in reasonable detail and satisfactory in scope to the Agent;
f. as soon as practicable, but in any event within forty-five (45) days after
the end of each calendar year, an annual rent roll of the Project, which shall be certified
as to accuracy by an officer of Borrower, and
g. Borrower will with reasonable promptness furnish to the Agent such
additional financial and other information respecting the financial condition, business or
operations of the Borrower as the Agent may from time to time reasonably request.
All such financial statements shall in reasonable detail and satisfactory in scope to Agent
and shall be prepared on a federal tax reporting basis applied on a basis consistent with prior
practice unless otherwise specifically noted thereon.
6.02 Notices. The Borrower will promptly give the Agent written notice of
a. the occurrence or existence of any Event of Default, together with a
written statement of the action being taken by the Borrower to remedy the Event of
Default;
b. all litigation or proceedings before any court or Governmental Authority
affecting the Borrower or the Project; and
c. any material difficulty in obtaining labor or Materials in a timely manner
or any other manner which would substantially impair Borrower's ability to complete
construction and development of the Improvements in accordance with the Plans and
Specifications by the Completion Date.
6.03 Access to Books and Inspection. The Borrower will give any officer or
representative of the Agent, upon two (2) days' prior written notice, access to, and permit such
representative to examine, copy or make extracts from, any and all books, records and
documents in the possession of the Borrower relating to the Project and the construction and
development of the Improvements, and to inspect the Improvements and all Materials to be used
INDS01 ]BAXTER 1031727v5
7 1
in the development and construction thereof, all at such times and as often as the Agent may
reasonably request; provided, however, that the Agent shall have no obligation to make any such
inspections nor any responsibility to the Borrower, or any person, firm or corporation for any
deficiency in construction or variance from the Plans and Specifications which may be or which
would have been revealed by any such inspection, whether or not discovered by the Agent.
6.04 Governmental Requirements. The Borrower will comply with all Governmental
Requirements and all restrictive covenants applicable to the Project.
6.05 Construction of the Improvements. The Borrower will prosecute the construction
and development of the Improvements with diligence and continuity to completion, and will
cause the Improvements to be completed in a good and workmanlike manner in accordance with
the Plans and Specifications and in compliance with all applicable Governmental Requirements
and all applicable restrictive covenants, free and clear of all uninsured or unbonded liens or
claims of liens for Materials supplied or work performed in connection therewith. Upon demand
of the Agent, the Borrower will correct any structural defect in the Improvements or any
departure from the Plans and Specifications, which materially decreases the value of the
Improvements. Borrower will commence construction and development of the Improvements by
July 31, 2008. Borrower shall complete the Improvements on or before the Completion Date. If
completion of the Improvements is delayed by reason of Force Majeure, the Completion Date
shall be extended by a period of time equal to the duration of such delay, but in no event shall the
Completion Date be extended beyond the Original Maturity Date.
6.06 Materials. The Borrower will cause all Materials acquired or furnished in
connection with the construction of, but not incorporated into, the Improvements to be stored at
the Site or in bonded warehouses to be selected by the Borrower and approved by the Agent or at
such other place as the Agent may reasonably approve under adequate insurance and under
adequate safeguards to minimize the possibility of loss, theft, damage or commingling with other
materials or projects, and shall deliver to the Agent, on demand, copies of any contracts, bills of
sale, statements, receipted vouchers or agreements under which the Borrower claims title to any
Materials used in the construction of, or incorporated or to be incorporated into, the
Improvements.
6.07 Maintenance. The Borrower will maintain the Project in good repair and safe
condition at all times and indemnify and defend and hold the Agent and Lenders harmless from
any and all claims relative to the use and occupancy of the Project.
6.08 Required Insurance. The Borrower shall at all times provide, maintain and keep
in force the policies of insurance described on Schedule I attached hereto and made a part hereof.
All policies of insurance required by the terms of this Agreement shall contain an
endorsement or agreement by the insurer that any loss shall be payable in accordance with the
terms of such policy notwithstanding any act or negligence of the Borrower which might
otherwise result in forfeiture of said insurance and the further agreement of the insurer waiving
all rights of set off, counterclaim or deductions against the Borrower.
DVDSO] IBAXI'ER 10317270
6.09 Delivery of Policies, Payment of Premiums. All policies of insurance shall be
issued by companies and in amounts in each company satisfactory to the Agent. All policies of
insurance shall have attached thereto a lender's loss payable endorsement for the benefit of the
Agent, for the benefit of Lenders, in form satisfactory to the Agent. The Borrower shall furnish
the Agent with an original policy of all policies of required insurance. If the Agent consents to
the Borrower providing any of the required insurance through blanket policies carried by the
Borrower and covering more than one location, then the Borrower shall furnish the Agent with a
certificate of insurance for each such policy setting forth the coverage, the limits of liability, the
name of the carrier, the policy number, and the expiration date. At least thirty (30) days prior to
the expiration of each such policy, the Borrower shall furnish the Agent with evidence
satisfactory to the Agent of the payment of premium and the reissuance of a policy continuing
insurance in force as required by this Agreement. All such policies shall contain a provision that
such policies will not be canceled, amended, altered, changed or modified, nor shall any
coverage therein be reduced, deleted, amended, modified, changed or canceled by either the
party named as the insured, or the insurance company issuing the policy without at least thirty
(30) days' prior written notice to the Agent. In the event the Borrower fails to provide, maintain,
keep in force or deliver and furnish to the Agent the policies of insurance required by this
Section 6.09, the Agent may procure such insurance or single-interest insurance for such risks
covering the Agent's and the Lenders' interest, and the Borrower will pay all premiums thereon
promptly upon demand by the Agent, and until such payment is made by the Borrower the
amount of all such premiums together with interest thereon at the Default Rate, shall be secured
by the Mortgage. During any period in which there exists an Event of Default, at the request of
the Agent, the Borrower shall pay to the Agent, on the fifteenth (15th) day of each calendar
month, until the Loan is paid in full, an amount equal to one-twelfth (1/12th) of the estimated
aggregate annual insurance premiums on all policies of insurance required by this Agreement.
The Borrower further agrees, upon the Agent's request, to cause all bills, statements or other
documents'relating to the foregoing insurance premiums to be sent or mailed directly to the
Agent. Upon receipt of such bills, statements or other documents, and providing the Borrower
has deposited sufficient funds with the Agent pursuant to this Section 6.09, the Agent shall pay
such amounts as may be due thereunder out of the funds so deposited with the Agent. If at any
time and for any reason the funds deposited with the Agent are or will be insufficient to pay such
amounts as may then or subsequently be due, the Agent shall notify the Borrower and the
Borrower shall immediately deposit an amount equal to such deficiency with the Agent.
Notwithstanding the foregoing, nothing contained herein shall cause the Agent to be deemed a
trustee of said funds or to be obligated to pay any amounts in excess of the amount of funds
deposited with the Agent pursuant to this Section 6.09. The Agent may commingle said reserve
with its own funds and the Borrower shall be entitled to no interest thereon.
6.10 Insurance Proceeds. After the happening of any casualty to the Project or any part
thereof, Borrower shall give prompt written notice thereof to Agent, and the following shall
apply; provided, however, in the event of a conflict between the provisions hereof and the Lease,
the terms and provisions of the Lease shall apply:
a. In the event of damage or destruction to the Improvements, Agent shall
receive the entire proceeds of any insurance payable on account thereof, (the "Insurance
Proceeds"). All such Insurance Proceeds, after deducting therefrom all costs and
expenses (regardless of the particular nature thereof and whether incurred with or without
IND501 JBAXTM 1031727x5
33
suit), including reasonable attorneys' fees, incurred by Agent in connection with such
Insurance Proceeds (the "Insurance Settlement Costs'), shall be made available to
Borrower or its designee for the repair of the Project, provided:
i. The damage or destruction to the Improvements can be
restored in accordance with plans and specifications approved by Agent
and any affected Tenants, prior to the Maturity Date, and the
Improvements after repair will include at least the number of square feet
the Improvements had prior to the casualty;
ii. Borrower shall provide evidence satisfactory to Agent that
the Insurance Proceeds are sufficient to effect such repair, or if such
Insurance Proceeds are insufficient, evidence satisfactory to Agent of the
availability from any source reasonably acceptable to the Agent of all
additional funds necessary to complete such repair;
iii. Borrower shall provide evidence satisfactory to Agent that
all necessary permits and approvals of applicable governmental authorities
for the restoration of the Improvements in accordance with the plans and
specifications referenced in Section 6.10(a)(i) are available; and
iv. No uncured Event of Default exists hereunder.
Any such Insurance Proceeds which are made available to Borrower or its
designee to restore the Improvements shall be disbursed in accordance with the
disbursement procedures for the disbursement of Advances hereunder. If Borrower is not
eligible to receive the Insurance Proceeds to rebuild the Improvements or Borrower elects
not to rebuild the Improvements, then, after deducting from the Insurance Proceeds the
Insurance Settlement Costs, the remaining Insurance Proceeds shall be applied to the
Loan. Any Insurance Proceeds remaining after the payment of the Insurance Settlement
Costs and the payment in full of the Loan shall be paid to Borrower.
b. In the event of such loss or damage, all proceeds of insurance shall be
payable to Agent, and Borrower hereby authorizes and directs any affected insurance
company to make payment of such proceeds directly to Agent. Borrower shall not settle,
adjust or compromise any claims for loss, damage or destruction under any policy or
policies of insurance without the prior consent of the Agent. During any period in which
there exists an Event of Default, Agent is hereby authorized and empowered by Borrower
to settle, adjust or compromise any claims for loss, damage or destruction under any
policy or policies of insurance. Notwithstanding anything contained herein to the
contrary, if the total net Insurance Proceeds payable with respect to a particular casualty
are One Hundred Thousand Dollars ($100,000.00) or less and there exists no Event of
Default at such time, then each insurance company is authorized and directed to make
payment for such loss directly to Borrower. In such event Borrower agrees to use such
proceeds to restore the Improvements to their original condition prior to such loss.
INDSOI JBAXTER 1031727v5
IA
C. Except to the extent that Insurance Proceeds are received by Agent and
applied in full to payment of the Loan, nothing herein contained shall be deemed to
excuse Borrower from repairing or maintaining the Project as provided herein or in the
Mortgage or restoring all damage or destruction to the Project, regardless of whether or
not there are insurance proceeds available or whether any such proceeds are sufficient in
amount, and the application or release by Agent of any insurance proceeds shall not cure
or waive any default or notice of default hereunder or invalidate any act done pursuant to
such notice.
d. In the event insurance proceeds are insufficient to effect any restoration
provided for hereunder, the Agent shall have no obligation to make such proceeds
available to restore the damaged or destroyed Improvements unless the Borrower
furnishes satisfactory evidence of the availability of funds to complete such restoration.
Provided, further, in the event that such insurance proceeds exceed the total cost of
restoration, such excess proceeds shall be retained by the Agent and applied to reduce the
then outstanding indebtedness evidenced by the Notes.
6.11 Assignment of Policies Upon Foreclosure. In the event of foreclosure of the
Mortgage or other transfer of title or assignment of the Project in extinguishment, in whole or in
part, of the debt secured by the Mortgage, all right, title and interest of the Borrower in and to all
policies of insurance required by this Section 6.11 shall inure to the benefit of and pass to the
successor in interest to the Agent or the purchaser or grantee of the Project.
6.12 Further Assurances. The Borrower will execute, acknowledge when appropriate,
and deliver from time to time at the request of the Agent, such instruments an d documents as in
the reasonable opinion of the Agent are necessary or desirable to perfect the security interests
required herein.
6.13 Failure to Perform. If the Borrower neglects or refuses to pay the costs,
premiums, liabilities or other charges incurred in connection with the Loan or the Project, or
otherwise fails to perform its covenants hereunder, and the same continues unpaid or otherwise
uncured after all applicable grace and cure periods, the Agent may do so and may add the cost
thereof to the Loan as indebtedness evidenced by the Notes, and may collect the same from the
Borrower upon demand with interest thereon at the Default Rate until paid thereunder.
6.14 Environmental. During the term of Loan the Borrower covenants and agrees to
keep or cause the Project to be kept free of Hazardous Materials, except in compliance with all
applicable Governmental Requirements, and, without limiting the foregoing, Borrower shall not
cause or permit the Project to be used to generate, manufacture, refine, transport, treat, store,
handle, dispose of, transfer, produce or process Hazardous Materials, except in compliance with
all applicable Governmental Regulations, nor shall Borrower cause or permit, as a result of any
intentional or unintentional act or omission on the part of the Borrower or any tenant, subtenant
or occupant, a release of Hazardous Materials onto the Project or onto any property. If any
structure on the Site is to be demolished and removed therefrom, Borrower shall cause such
demolition and removal to be performed in compliance with all applicable Governmental
Requirements. All wells and cisterns on the Site shall be closed in accordance with all
applicable Governmental Requirements. All storage tanks (underground and above ground),
IND901 JBAXTER 1031727v5
35
including without limitation, all septic tanks shall be closed and removed in accordance with all
applicable Governmental Requirements. Borrower shall cause all dumped debris and unsuitable
fill materials located on the Site to be removed therefrom and disposed of properly in accordance
with all applicable Governmental Regulations.
If Hazardous Materials are present at the Project in violation of the requirements of this
Section 6.14, the Borrower shall:
a. conduct and complete all investigations, studies, sampling and testing, and
all remedial, removal and other actions necessary to clean up and remove all Hazardous
Materials on, under or from the Site in accordance with all applicable federal, state and
local laws, ordinances, rules, regulations and policies, to the satisfaction of the Agent,
and in accordance with the orders and directives of all the federal, state and local
governmental authorities;
b, defend, indemnify and hold harmless the Agent and Lenders, their
employees, agents, officers and directors from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs or expenses of whatever kind or
nature, known or unknown, contingent or otherwise, arising out of or in any way related
to:
i. the presence, disposal, release or threatened release of any
Hazardous Materials on, over, under, from or affecting the Project or the
soil, water, vegetation, buildings, personal property, persons or animals
thereon;
ii. any personal injury (including wrongful death) or property
damage (real or personal) arising out of or related to such Hazardous
Materials;
iii. any lawsuit brought or threatened, settlement reached or
government order relating to such Hazardous Materials; and/or
iv. any violation of laws, orders, regulations, requirements or
demands of Governmental Authorities, which are based upon or in any
way related to such Hazardous Materials, including, without limitation,
reasonable attorney's and consultant's fees, investigation and laboratory
fees, court costs and litigation expenses.
Notwithstanding anything contained herein to the contrary, however, Borrower shall not be
responsible for any of the foregoing matters which (i) results solely from any action by Agent, its
agents or its representatives, while Agent is in possession and control of the Project, (ii) the
violation of any Governmental Regulations or Governmental Requirements first occurring
subsequent to any voluntary or involuntary conveyance of title to the Project from Borrower to
Agent, or to an unrelated third party with the consent of Agent, or pursuant to a foreclosure
action or deed-in-lieu therefore, (iii) any environmental contaminant or hazardous substance first
arising or being created upon the Project subsequent to any voluntary or involuntary conveyance
INDS01 JBAXTER 1031727v5
16
of title to the Project from Borrower to Agent, or to an unrelated third party with the consent of
Agent, or pursuant to a foreclosure action or deed-in-lieu thereof.
6.15 Personal Property. Except for the security interest granted by the Mortgage, the
Borrower is, and as to portions of the Personal Property to be acquired after the date hereof will
be, the sole owner of the Personal Property, free from any adverse lien, security interest,
encumbrance or adverse claims thereon of any kind whatsoever. The Borrower will notify the
Agent of, and will defend the Personal Property against, all claims and demands of all persons at
any time claiming the same or any interest therein. The Personal Property will not be used or
bought for personal, family or household purposes. The Personal Property will be kept on or at
the Project and the Borrower will not remove the Personal Property from the Project without the
prior written consent of the Agent, which consent shall not be unreasonably withheld, delayed or
conditioned, except such portions or items of the Personal Property which are consumed or worn
out in ordinary usage, all of which shall be promptly replaced by the Borrower. All covenants
and obligations of the Borrower contained herein and in the Loan Documents shall be deemed to
apply to the Personal Property whether or not expressly referred to herein or therein.
6.16 Financing Statements. Borrower hereby authorizes Agent to file one or more
financing statements from time to time as are required or necessary to perfect or continue the
perfection of the security interests granted to Agent pursuant to the Loan Documents, including,
without limitation, initial financing statements, renewals and amendments. Borrower will pay
the cost of filing the same in all public offices wherever filing is deemed by the Agent to be
necessay,or desirable. At the request of Agent, Borrower will join in the execution of any such
financing statements.
6.17 Lease Approval. Prior to the execution of a Lease for space in the Improvements,
Borrower shall submit to Agent a copy of such proposed Lease, which Lease and the proposed
Tenant thereunder shall be subject to Agent's approval. Agent, in determining the acceptability
of a Lease and the proposed Tenant thereunder, may consider the term of the Lease, the rent
payable thereunder, the credit quality of the proposed Tenant, cotenancy provisions and
cancellation provisions, the tenant finish allowance provided for therein, and all such other terns
as Agent reasonably determines are salient. Within ten (10) days after receipt of a proposed
Lease, Agent shall give Borrower written notice of Agent's approval of such Lease, or if Agent
disapproves such Lease, the correction of which would render the Lease acceptable to Agent.
Each Lease shall provide that it is junior and subordinate to the lien of the Mortgage and any
other first mortgage on the Project. Borrower shall use its best efforts to obtain the following
provisions in each Lease:
a. Such Lease shall include the agreement of the Tenant to give any lender
for whose benefit a mortgage then encumbers the Improvements (a "Mortgagee') by
registered mail, a copy of any notice of default served upon the landlord, provided that
prior to such notice of default tenant has been notified in writing, of the existence of such
mortgage and the address of such Mortgagee;
b. Such Lease shall include the agreement of the Tenant that if the landlord
has failed to cure any default within the time provided in the Lease, then the Mortgagee
shall have an additional thirty (30) days within which to cure such default, commencing
WDS01 JBAXTER 1031727v5
37
with its receipt of notice of the default, or if such default cannot be cured within that
time, then such additional time as may be necessary to effect such cure if within such
thirty (30) days the Mortgagee has commenced and is diligently pursuing the remedies
necessary to cure such default (including, but not limited to, commencement of
foreclosure proceedings, if necessary to effect such cure);
C. Such Lease shall include the agreement of the Tenant that it shall comply
with all state and federal environmental and hazardous materials statutes and
Governmental Regulations, and shall not improperly store any Hazardous Materials on
the Site. Within ten (10) days after the cancellation, rescission or termination of a Lease,
Borrower shall notify Agent of the same; and
d. Such Lease shall include the agreement of the Tenant that, at the request
of Agent, Borrower shall furnish to Agent upon the execution of a Lease a fully executed
Subordination, Non-Disturbance and Attornment Agreement in a form substantially
similar to the form attached hereto as Exhibit M.
ARTICLE VII.
BORROWER'S NEGATIVE COVENANTS
The Borrower covenants that until payment in full of the Loan and performance of all of
the Borrower's other obligations under the Loan Documents:
7.01 Prohibition upon Transfer. Secondary Financing, The Borrower shall not convey,
sell, lease (other than the leasing of the Project pursuant to the Leases in accordance with the
terms hereof) or otherwise dispose of all or any part of the Project or any interest therein (legal or
equitable), or grant any mortgage, deed of trust or security interest with respect to the Project
without the prior written consent of the Agent, unless in connection therewith the outstanding
principal balance of the Loan, together with all accrued and unpaid interest thereon is fully paid.
7.02 Materials. The Borrower will not purchase any Materials to be incorporated into
the Project in any manner that will result in the ownership thereof not vesting unconditionally in
the Borrower, free from all liens, charges, encumbrances and security interests upon delivery of
such Materials to the Site, or, if the only condition to such title is payment of the purchase price
therefor, upon the making of an Advance therefor.
7.03 Construction Contract. Borrower will not terminate any Construction Contract or
modify any Construction Contract in any respect without the Agent's consent, except pursuant to
Change Orders permitted under Section 7.04 hereof. Borrower will not assign or pledge any of
its right, title or interest in the Building Contracts to anyone other than the Agent and such right,
title and interest shall not be subject to any other liens, claims, encumbrances or security
interests.
7.04 Change Orders. Without the Agent's prior written consent, which consent shall
not be unreasonably withheld, Borrower will not execute, or permit the performance of work on
the Improvements or the furnishing of Materials therefor pursuant to any Change Order with
respect to the Improvements involving an increase in the Direct Costs of One Hundred Thousand
Dollars ($100,000) or more for single Change Orders or Five Hundred Thousand Dollars
INDS01 )BAXTER 10317270
39
($500,000) or more in the aggregate, or involving any fundamental change in the architectural,
mechanical or structural design of any portion of the Improvements, or involving any materially
adverse change in the quality of workmanship or Materials (known to exist at the time of such
Change Order) in the Improvements or causing any delay in the completion of the development
and construction of the Improvements beyond the Completion Date. Borrower will deliver
copies of all Change Orders to the Agent promptly after their execution. Notwithstanding the
foregoing, Agent agrees that it will not withhold its consent to any Change Order with respect to
the Improvements if a Tenant is solely responsible for the payment of the increase in the Direct
Costs effected thereby.
7.05 Easements. The Borrower will not enter into any easement affecting the Site
without first obtaining the Agent's written approval of such easement and the terms and
conditions thereof.
7.06 Lease. Once executed, Borrower will not terminate or cancel or materially
modify, amend or alter any Lease, or assign, transfer, pledge or encumber any of its right, title or
interest thereunder, without the Agent's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed.
7.07 Margin Stock. The Borrower shall not use or cause or permit any of the proceeds
of the Loan to be used, either directly or indirectly, for the purpose whether immediate,
incidental or remote of purchasing or carrying any margin stock within the meaning of
Regulation U or of extending credit to others for the purpose of purchasing or carrying any
margin stock, and the Borrower shall furnish *to the Agent, upon its request, a statement in
conformity with the requirements of Federal Reserve Board Form U-1 referred to in Regulation
U. Further, no part of the proceeds of the Loan will be used for any purpose that violates, or
which is inconsistent with, the provisions of Regulations G, T, U or X of the Board of Governors
of the Federal Reserve System.
ARTICLE VIII.
DEFAULTS
8.01 Events of Default. The Borrower agrees if one or more of the following described
events shall occur (an "Event of Default') and be continuing or shall exist:
a. The Borrower shall fail to make any payment under the Notes within ten
(10) days after the date the same is due and payable and in the event any such failure to
pay is the first such failure to occur in any calendar year, then the continuation of such
failure for a period of ten (10) days after written notice of such failure has been sent to
Borrower by Agent, provided, however, that Borrower shall be entitled to only one (1)
such notice from Agent in any calendar year and after one (1) notice has been sent to
Borrower in a calendar year, then Borrower shall not be entitled to any notice for any
subsequent payment defaults occurring in such calendar year-, or
b. Any representation or warranty made by the Borrower herein, in any other
Loan Document to which the Borrower is a party or in any certificate, financial statement
or other document furnished by the Borrower pursuant to the provisions hereof, shall
1NUS01 JBAXTER 1031727v5
39
prove to have been false or misleading in any material respect as of the time made or
furnished, and the Borrower does not, within fifteen (15) days after the earlier of
receiving written notice from Agent or the Borrower's own determination that such
representation or warranty is false or misleading, commence and complete such actions
as are necessary to make such warranty or representation true and accurate; provided,
however, that the Borrower shall not be entitled to the foregoing cure period if the
Borrower had actual knowledge that such representation or warranty was false or
misleading when made; or
c. The Borrower shall default in the performance or observance of any
covenant contained in Article VI and Section 7.02. Section 7.03, Section 7.04. Section
7.05 and Section 7.06 hereof and such default has not been cured or corrected within
thirty (30) days following written notice from Agent to the Borrower; provided, however,
that if such default is of such a nature that it cannot be cured or corrected within such
thirty (30) day period, the Borrower shall be entitled to such additional time as may be
necessary to cure or correct such default if the Borrower promptly commences such cure
or corrective action and diligently pursues such cure or corrective action to completion;
or
d. The Borrower shall default in the performance or observance of any
covenant contained in Section 7.01 or Section 7.07 hereof; or
e. The Borrower shall default in the performance or observance of any other
covenant, condition or provision herein contained and such default has not been cured or
corrected within thirty (30) days following written notice from Agent to the Borrower;
provided, however, that if such default is of such a nature that it cannot be cured or
corrected within such thirty (30) day period, the Borrower shall be entitled to such
additional time as may be necessary to cure or correct such default if the Borrower
promptly commences such cure or corrective action and diligently pursues such cure or
corrective action to completion; or
f. The Borrower shall default in the performance or observance of any
covenant, condition or provision contained in any other Loan Document to which the
Borrower is a party and such default shall continue uncured after any applicable grace or
cure period; or
g. Any party shall obtain an order or decree in any court of competent
jurisdiction enjoining or delaying the development or construction of the Improvements
or prohibiting the carrying out of the terms and conditions hereof and such order or
decree shall remain undismissed or unstayed and in effect for a period of ninety (90)
days; or
h. The Borrower shall neglect, refuse or fail to keep in full force and effect
any permit or approval issued by any Governmental Authority required for the
continuation of the construction, occupancy or use of the Project and the same is not
reinstated within thirty (30) days after the Borrower receives notice (from any source)
that such permit or approval is no longer in full force and effect; or
INDS01 JBAXTHR 1031727x5
i. The Borrower shall be unable to satisfy any condition to its right to the
receipt of an Advance for a period in excess of sixty (60) days beyond the date of the
Request for such Advance; or
j. The Borrower shall deliberately abandon the development or construction
of the Improvements and as a result of such abandonment the Agent reasonably
concludes that completion of development and construction of the Improvements will not
occur on or before the Completion Date, or by the required completion date for the
Improvements pursuant to the Lease; or
k. The Improvements shall not have been substantially completed in
accordance with the Plans and Specifications on or before the Completion Date, as the
Completion Date may be extended pursuant to Section 6.05 hereof, or by the required
completion date for the Improvements pursuant to the Lease; or
Text Intentionally Omitted;
M. An accurate survey of the Site at any time shall show that any of the
Improvements encroach upon any street, easement, right of way or adjoining property or
violate any set back requirement, unless such encroachment or violation is satisfactorily
insured against under the Title Policy or that any adjoining structure encroaches on the
Site to an extent deemed material by the Agent, unless such encroachment is cured within
30 days following receipt of notice thereof by Borrower; or
n. There is any material adverse change in the financial condition of the
Borrower or, any Guarantor to the effect that (i) the ability of the Borrower or any
Guarantor to perform their respective obligations under the Loan Documents has been
substantially and materially impaired and reduced below the level which exists as of the
effective date of this Agreement, and (ii) such impairment and reduction materially
increases the likelihood that the Borrower or any Guarantor shall default under their
respective obligations under the Loan Documents; or
o. A writ of execution or attachment or any similar process shall be issued or
levied against all or any part of or interest in the Project, or any judgment involving
monetary damages shall be entered against the Borrower which shall become a lien on
the Project or any portion thereof or interest therein and such execution, attachment or
similar process or judgment is not released, bonded, satisfied, vacated or stayed within
sixty (60) days after its entry or levy; or
p. The Borrower or any Guarantor shall file a voluntary petition in
bankruptcy or shall file any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, dissolution or
similar relief for itself, himself or herself under any present or future federal, state or
other statute, law or regulation relating to bankruptcy, insolvency or other relief for
debtors; or shall seek or consent to or acquiesce in the appointment of any trustee,
receiver, liquidator, assignee, custodian, sequestrator (or other similar official) of the
Borrower or any Guarantor, or of all or any part of the Project, or of any or all of the
INDSOI JBAXTER 10317270
royalties, revenues, rents, issues or profits thereof, or shall make any general assignment
for the benefit of creditors, or shall admit in writing its or his inability to pay its or his
debts, as the case may be, generally as they become due, or shall become insolvent or
unable to pay its or his debts as they mature, or shall make a general assignment for the
benefit of creditors, or shall voluntarily suspend transaction of its or his business or take
any corporate action in furtherance of the foregoing; or
q. A court of competent jurisdiction shall enter an order, judgment or decree
adjudicating the Borrower or any Guarantor a bankrupt or insolvent or approving a
petition filed against the Borrower or such Guarantor seeking any reorganization,
dissolution or similar relief under any present or future federal, state or other statute, law
or regulation relating to bankruptcy, insolvency, or other relief for debtors, and such
order, judgment or decree shall remain unvacated and unstayed for an aggregate of sixty
(60) days (whether or not consecutive) from the first date of entry thereof; or any trustee,
receiver or liquidator of the Borrower or any Guarantor or of all or any part of the
Project, or of any or all of the royalties, revenues, rents, issues or profits thereof, shall be
appointed without the consent or acquiescence of the Borrower or such Guarantor, as the
case may be, and such appointment shall remain unvacated and unstayed for an aggregate
period of sixty (60) days (whether or not consecutive); or
r. Except as otherwise permitted herein, any member of Borrower sells,
assigns, hypothecates or otherwise transfers its membership interest in the Borrower, or
any new member is admitted to Borrower; rovid however, the We, assignment,
hypothecation or transfer by a member of Borrower of its membership interest in
Borrower or the admission of a new member of Borrower shall not be an Event of
Default hereunder if all cash proceeds resulting from such sale, assignment,
hypothecation, transfer or admission are used to reduce the principal balance of the Loan
(provided however, for the admission of new members who are tenants or affiliated with
any tenant of the Project no such cash proceeds attributable to such new members shall
be payable to Lender to apply toward the Loan) and if after such sale, assignment,
hypothecation, transfer or admission Robert L. Lauth, Jr. or Gregory C. Gumik or an
affiliate controlled by them hold(s) the sole right and power to manage and control the
business assets and affairs of the Borrower; or
s. Text intentionally omitted; or
t. Robert L. Lauth, Jr., Gregory C. Gurnik, Michael S. Curless and/or
Lawrence B. Palmer do(es) not hold the sole right and power to manage and control the
business assets and affairs of the Borrower;
U. If Lauth Investment does not maintain at all times Unencumbered
Liquidity of at least Five Million Dollars ($5,000,000) (to be tested at the end of each
calendar year commencing December 31, 2007 (the determination of Lauth Investment's
compliance with such financial covenant for a calendar year shall occur by March 30 of
the succeeding calendar year based upon the financial statements provided by Lauth
Investment pursuant to Section 6.01 hereof)); or
INDS01 JBAXTER 1031727v5
42
V. If Lauth Investment does not maintain at all times a Tangible Net Worth
of at least One Hundred Seventy-Five Million Dollars ($175,000,000) (to be tested at the
end of each calendar year commencing December 31, 2007 (the determination of Lauth
Investment's compliance with such financial covenant for a calendar year shall occur by
March 30 of the succeeding calendar year based upon the financial statements provided
by Lauth Investment pursuant to Section 6.01 hereof));
then, and upon the occurrence of any such event, the Lenders shall be under no further obligation
to make any Advances and the Loan and interest accrued thereon and any penalty or premium
thereunder and all other liabilities of the Borrower hereunder, thereunder and under the other
Loan Documents shall thereupon become and be immediately due and payable without
presentment, demand, protest, or notice of any kind, all of which are hereby expressly waived.
Notwithstanding anything expressed or implied herein or in any of the other Loan Documents to
the contrary, the following shall be permitted without the requirement of any notice, consent,
approval or other requirements imposed by Agent: (i) a transfer of the membership interests of
Borrower, or of the stakeholder interest in any entity which directly or indirectly owns any
membership interests in Borrower, by the holder or holders thereof to an entity controlled
directly, or indirectly, by one or more of Robert L. Lauth, Jr., Gregory C. Gumik, Lawrence B.
Palmer and Michael S. Curless, and (ii) a transfer of the membership interests of Lauth
Investment, or of the stakeholder interest in any entity which directly or indirectly owns any
membership interests in Lauth Investment, provided that the managers or managing members of
Lauth Investment remain as one or more of Robert L. Lauth, Jr., Gregory C. Gurnik, Lawrence
B. Palmer and Michael S. Curless or as an entity which is directly, or indirectly, controlled by
one or more of Robert L. Lauth, Jr., Gregory C. Gurnik, Lawrence B. Palmer and Michael S.
Curless: Borrower shall be permitted to amend and restate its operating agreement, and any
entity which directly or indirectly owns any membership interests in Borrower shall be permitted
to amend and restate its organizational documents, as needed to effectuate the transfers permitted
by this section without the prior consent of Agent.
8.02 Rights of Set-Off. If an Event of Default shall occur the Agent and the Lenders
shall have the right, in addition to all other rights and remedies available to it, to set-off against
and to appropriate and apply to the unpaid balance of the Loan and all other obligations of the
Borrower thereunder or under any other Loan Documents executed by the Borrower in
connection therewith, any debt owing to, and any other funds held in any manner for the account
of, the Borrower by the Agent and the Lenders, including, without limitation, all funds in all
deposit accounts (general or special) now or hereafter maintained by the Borrower with the
Agent or the Lenders. Such right shall exist whether or not the Agent or the Lenders shall have
made demand under this Agreement or the Loan and whether or not the Loan or such other
obligations are matured or unmatured. The Borrower hereby confirms the foregoing
arrangements and the Agent's and the Lenders' right of banker's lien and set-off and nothing in
this Agreement shall be deemed a waiver of the Agent's or the Lenders' right of the banker's lien
or set-off.
8.03 Special Remedies. If an Event of Default shall occur, the Agent shall have the
right, in addition to any rights or remedies available to it under the Loan Documents or otherwise
available to it at law or in equity, to enter upon and take possession of the Project (and any
Materials not yet incorporated into the Improvements) and, to complete or cause to be completed
MS01 JBAMR 1031727v5
43
the Improvements, and all sums so expended by the Agent shall be deemed to be Advances. All
such Advances shall be evidenced by the Notes and secured by the lien of the Loan Documents.
For purposes of this Section 8.03, the Borrower agrees that the Agent shall have the right, and
hereby irrevocably constitutes and appoints the Agent its true and lawful attorney-in-fact,
coupled with an interest, with full power of substitution, to (i) use any funds of the Borrower
(including any funds which may be held in escrow and any funds which may remain unadvanced
hereunder) for the purpose of completing the Improvements; (ii) make such additions and
changes to and corrections of the Plans and Specifications as may be necessary or desirable to
complete the Improvements substantially in the manner contemplated by the Plans and
Specifications; (iii) employ such contractors, subcontractors, agents, architects, watchmen and
inspectors as shall be required in connection with the Project; (iv) pay, settle or compromise all
existing bills and claims which are or may be liens against the Project or may be necessary or
desirable for the completion of the work or the clearance of title; (v) execute all applications and
certificates in the name of the Borrower which may be required by the Building Contracts; (vi)
prosecute and defend all actions or proceedings in connection with the Project and to take such
action and require such performance as the Agent deems necessary in connection therewith; and
(vii) generally do any and every act with respect to the Loan, the Lease and the construction,
occupancy and use of the Improvements and the Project as the Borrower may do in its own
behalf. Should the unadvanced portion of the Loan be insufficient to pay the sums expended or
incurred by the Agent for any of the foregoing purposes, the amount of the deficiency shall be
added to the indebtedness evidenced by the Notes and in all events shall be secured by the lien of
the Loan Documents and shall be paid by the Borrower to the Agent on demand with interest
thereon at the Default Rate until paid.
ARTICLE IX.
ASSIGNMENTS AND PARTICIPATION
9.01 Assignments and Participations.
a. Each Lender shall have the right to assign, transfer, sell, negotiate, pledge
or otherwise hypothecate this Agreement and any of its rights and security hereunder and
under the other Loan Documents to any other Eligible Assignee with the prior written
consent of the Agent and with the prior written consent of Borrower, which consent by
the Borrower and the Agent shall not be unreasonably withheld, conditioned or delayed
(provided that no consent of Borrower or Agent shall be required if the Eligible Assignee
is also a Lender, or of Borrower if an Event of Default then exists); provided, however,
that (i) the parties to each such assignment shall execute and deliver to Agent, for its
approval and acceptance, an Assignment and Acceptance, (ii) each such assignment shall
be of a constant, and not a varying, percentage of the assigning Lender's rights and
obligations under this Agreement, (iii) unless the Agent and, so long as no Event of
Default exists, Borrower otherwise consent, the aggregate amount of the Commitment of
the assigning Lender being assigned pursuant to each such assignment shall in no event
be less than Five Million Dollars ($5,000,000), (iv) the Agent shall receive from the
assigning Lender a processing fee of Three Thousand Five Hundred Dollars ($3,500), and
(v) if the assignment is less than the assigning Lender's entire interest in the Loan, the
assigning Lender must retain at least Five Million Dollars ($5,000,000) (for any Lender
other than Agent, in Agent's discretion) interest in the Loan. The Agent may designate
DWS01 JBAXTER 1031727x5
any Eligible Assignee accepting an assignment of a specified portion of the Loan to be a
Co-Agent, an "Arranger" or similar title, but such designation shall not confer on such
Assignee the rights or duties of the Agent. Upon such execution, delivery, approval and
acceptance, and upon the effective date specified in the applicable Assignment and
Acceptance, (a) the Eligible Assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder and
under the other Loan Documents, and Borrower hereby agrees that all of the rights and
remedies of Lenders in connection with the interest so assigned shall be enforceable
against Borrower by an Eligible Assignee with the same force and effect and to the same
extent as the same would have been enforceable but for such assignment, and (b) the
assigning Lender thereunder shall, to the extent that rights and obligations hereunder and
under the other Loan Documents have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from its obligations hereunder and
thereunder.
b. By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the Eligible Assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) except as provided in such Assignment
and Acceptance, such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations made in or
in connection with this Agreement or any other Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other Loan Document or any other instrument or document furnished in connection
therewith; (ii) such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under any Loan
Document or any other instrument or document funnished in connection therewith; (iii)
such Eligible Assignee confirms that it has received a copy of this Agreement together
with such financial statements, Loan Documents and other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter into the
Assignment and Acceptance and to become a Lender hereunder; (iv) such Eligible
Assignee will, independently and without reliance upon Agent, the assigning Lender or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such Eligible Assignee appoints and authorizes the
Agent to take such action as the Agent on its behalf and to exercise such powers under
this Agreement and the other Loan Documents as are delegated to Agent by the terms
hereof and thereof, together with such powers as are reasonably incidental thereto; and
(vi) such Eligible Assignee agrees that it will perform in accordance with their terms all
of the obligations which by the terms of this Agreement are required to be performed by
it as a Lender.
C. Agent shall maintain a copy of each Assignment and Acceptance delivered
to and accepted by it and shall record in its records the names and address of each Lender
and the Commitment of, and Percentage of the Loan owing to, such Lender from time to
rNDS01 JBAXMR 1031727Y5
45
time. Borrower, the Agent and Lenders may treat each entity whose name is so recorded
as a Lender hereunder for all purposes of this Agreement.
d. Upon receipt of an Assignment and Acceptance executed by an assigning
Lender and an Eligible Assignee, Agent shall, if such Assignment and Acceptance has
been properly completed and consented to if required herein, accept such Assignment and
Acceptance, and record the information contained therein in its records, and the Agent
shall use its best efforts to give prompt notice thereof to Borrower (provided that neither
the Agent nor the Lenders shall be liable for any failure to give such notice).
e. Borrower shall use reasonable efforts to cooperate with Agent and each
Lender in connection with the assignment of interests under this Agreement or the sale of
participations herein.
f. Anything in this Agreement to the contrary notwithstanding, and without
the need to comply with any of the formal or procedural requirements of this Agreement,
including this Section, any Lender may at any time and from time to time pledge and
assign all or any portion of its rights under all or any of the Loan Documents to a Federal
Reserve Bank; provided that no such pledge or assignment shall release such Lender
from its obligations hereunder. To facilitate any such pledge or assignment, the Agent
shall, at the request of such Lender, enter into a letter agreement with the Federal Reserve
Bank in, or substantially in, the form of the exhibit to Appendix C to the Federal Reserve
Bank of New York Operating Circular No. 12.
g. Anything in this Agreement to the contrary notwithstanding, any Lender
may assign all or any portion of its rights and obligations under this Agreement to
another branch or Affiliate of such Lender without first obtaining the approval of any
Agent or the Borrower, provided that (i) such Lender remains liable hereunder unless the
Borrower and Agent shall otherwise agree, (ii) at the time of such assignment such
Lender is not a Defaulting Lender, (iii) such Lender gives the Agent and Borrower at
least fifteen (15) days prior written notice of any such assignment; (iv) the parties to each
such assignment execute and deliver to Agent an Assignment and Acceptance in a form
acceptable to Agent, and (v) the Agent receives from the assigning Lender a processing
fee of Three Thousand Five Hundred Dollars ($3,500); provided, however, such fee shall
be waived in connection with any assignment to an Affiliate of a Lender.
h. Each Lender shall have the right, without the consent of the Borrower, to
sell participations to one or more Eligible Assignees in or to all or a portion of its rights
and obligations under the Loan and the Loan Documents; provided, however, that (i)
such Lender's obligations under this Agreement (including without limitation its
Commitment to Borrower hereunder) shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such
obligations (iii) the Borrower, the Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and with regard to any and all payments to be made
under this Agreement and (iv) the holder of any such participation shall not be entitled to
voting rights under this Agreement or the other Loan Documents (but such holder may
INDS01 JBAXTER 1031727v5
AA
contract with the Lender selling such Eligible Assignee its interest in such Lender's share
of the Loan as to voting of such Lender's interest under Section 10.05 [but not under any
other section of this Agreement], provided that any such agreement by a Lender shall
bind only such Lender alone and not Borrower, the other Lenders or the Agent).
i. No Eligible Assignee of any rights and obligations under this Agreement
shall be permitted to subassign such rights and obligations. No participant in any rights
and obligations under this Agreement shall be permitted to sell subparticipations of such
rights and obligations.
j. Borrower acknowledges and agrees that Lenders may provide to any
Eligible Assignee or Participant originals or copies of this Agreement, any other Loan
Document and any other documents, instruments, certificates, opinions, insurance
policies, letters of credit, reports, requisitions and other materials and information of
every nature or description, and may communicate all oral information, at any time
submitted by or on behalf of Borrower or received by any Lender in connection with the
Loan or with respect to Borrower or a Guarantor, provided that prior to any such delivery
or communication, such Eligible Assignees or Participants shall agree to preserve the
confidentiality of any of the foregoing to the same extent that such Lender agreed to
preserve such confidentiality. In order to facilitate assignments to Eligible Assignees and
sales to Eligible Assignees, Borrower shall execute such further documents, instruments
or agreements as Lenders may reasonably require; provided, that Borrower shall not be
required (i) to execute any document or agreement which would materially decrease its
rights, or materially increase its obligations, relative to those set forth in this Agreement
or any of the other Loan Documents (including, without limitation, financial obligations,
personal recourse, representations and warranties and reporting requirements), or (ii) to
expend more than incidental sums of money or incidental administrative time for which it
does not receive reasonable reimbursement in order to comply with any requests or
requirements of any Lender in connection with such assignment or sale arrangement. In
addition, Borrower agrees to cooperate fully with Lenders in the exercise of Lenders'
rights pursuant to this Section, including providing such information and documentation
regarding Borrower as any Lender or any potential Eligible Assignee may reasonably
request and to meet with potential Eligible Assignees.
ARTICLE X.
APPOINTMENT
10.01 Appointment.
a. Charter One is hereby appointed as Agent hereunder and under each other
Loan Document, and each Lender hereby irrevocably authorizes the Agent to act as agent
for each Lender and to take such actions as Lenders are obligated or entitled to take under
the provisions of this Agreement and the other Loan Documents and to exercise such
powers as are set forth herein or therein, together with such other powers as are
reasonably incidental thereto. Agent agrees to act as such upon the express conditions
contained in this Article in substantially the same manner that it would act in dealing with
MSO17BAXTPR 1031727v5
47
a loan held for its own account. Agent shall not have a fiduciary relationship with respect
to any Lender by reason of this Agreement.
b. The provisions of this Article are solely for the benefit of the Agent and
the Lenders, and Borrower shall not have any rights to rely on or enforce any of the
provisions hereof except as provided in Section 10.02 below. In performing its functions
and duties under this Agreement, the Agent shall act solely as agent of Lenders and does
not assume, and shall not be deemed to have assumed, any obligations toward or
relationship of agency or trust with or for the Borrower.
10.02 Reliance on Agent. All acts of and communications by the Agent, as agent for the
Lenders, shall be deemed legally conclusive and binding; and Borrower or any third party
(including any court) shall rely on any and all communications or acts of the Agent with respect
to the exercise of any rights or the granting of any consent, waiver or approval on behalf of a
Lender in all circumstances where an action by such Lender is required or permitted pursuant to
this Agreement or the provisions of any other Loan Document or by applicable law without the
right or necessity of making any inquiry of any individual Lender as to the authority of Agent
with respect to such matter. In no event shall any of the foregoing limit the rights or obligations
of any Lender with respect to any other Lender pursuant to this Article X.
10.03 Powers. The Agent shall have and may exercise such powers under the Loan
Documents as are specifically delegated to the Agent by the terms of each thereof, together with
such.powers as are reasonably incidental thereto, and may exercise all other powers of -the-
Lenders as are not made subject to the consent of the Required Lenders pursuant to
Section 10.05(a) or to the consent of all Lenders pursuant to Section 10.05(b). The Agent shall
not be considered, or be deemed, a separate agent of the Lenders hereunder, but is, and shall be
deemed, acting in its contractual capacity as Agent, exercising such rights and powers under the
Loan Documents as are specifically delegated to the Agent or Agent is otherwise entitled to take
hereunder. Agent shall have no implied duties to the Lenders, or any obligation to the Lenders to
take any action except any action specifically provided by the Loan Documents to be taken by
the Agent.
10.04 Disbursements. At least two (2) Business Days (by 11:00 a.m. Indianapolis,
Indiana time) prior to each date a disbursement of the Loan is to be made hereunder pursuant to
this Agreement, the Agent shall notify each Lender of the proposed disbursement and provide
each Lender with a copy of the Request for Advance. Each Lender shall make available to
Agent (or the funding Lender or entity designated by the Agent), the amount of such Lender's
Percentage of such disbursement (with respect to such Lender, such amount being referred to
herein as a "Disbursement') in immediately available funds not later than 11:00 a.m.
(Indianapolis, Indiana time) on the date such disbursement is to be made (such date being
referred to herein as a "Funding Date"). Unless the Agent shall have been notified by any
Lender prior to such time for funding in respect of any Disbursement that such Lender does not
intend to make available to the Agent such Lender's Disbursement, the Agent may assume that
such Lender has made such amount available to the Agent and the Agent, in its sole discretion,
may, but shall not be obligated to, make available to Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Agent by such Lender on or prior to
the respective Funding Date, such Lender agrees to pay and Borrower agrees to repay to Agent
AJDSOI ]BAXTER 1031727v5
48
forthwith on demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to Borrower until the date such amount is paid or
repaid to Agent, at:
a. (i) in the case of such Lender, the Federal Funds Effective Rate, and (ii) in
the case of Borrower, the interest rate applicable at the time to a disbursement made on
such Funding Date. If such Lender shall pay to Agent such corresponding amount, such
amount so paid shall constitute such Lender's Disbursement, and if both such Lender and
Borrower shall have paid and repaid, respectively, such corresponding amount, Agent
shall promptly return to Borrower such corresponding amount in same day funds.
b. Requests by the Agent for funding by the Lenders of disbursements of the
Loan will be made by facsimile or other acceptable means. Each Lender shall make its
disbursement of the Loan available to the Agent in dollars and in immediately available
funds to such Lender and account as the Agent may designate, not later than Noon
(Indianapolis, Indiana time) on the Funding Date. Nothing in this Section shall be
deemed to relieve any Lender of its obligation hereunder to make any Disbursement on
any Funding Date, nor shall any Lender be responsible for the failure of any other Lender
to perform its obligations to make any Loan Disbursement hereunder, and the
Commitment of any Lender shall not be increased or decreased as a result of the failure
by any other Lender to perform its obligation to make any Disbursement hereunder.
C. As soon as practical Agent will promptly forward to each Lender copies of
the draw request documents described in Section 5.01(a) and cause the Inspecting
Architect to forward to each Lender a copy of the Inspecting Architect's most recent
.inspection. Delivery of the draw request documents and the Inspecting Architect's
inspection report shall not be a condition to funding any Loan Disbursement.
10.05 Distribution and Apportionment of Payments
a. Subject to Section 10.05(b), payments actually received by Agent for the
account of the Lenders shall be paid to them promptly after receipt thereof by Agent, but
in any event within one (1) Business Day, provided that, if any such payments are not
distributed to the Lenders within one Business Day after Agent's receipt thereof, Agent
shall pay to such Lenders interest thereon, at the Federal Funds Effective Rate, from the
date of receipt of such funds by Agent until such funds are paid in immediately available
funds to such Lenders provided such funds are received by Agent not later than 11:00
A.M. (Indianapolis, Indiana time) on the date of receipt. All payments of principal and
interest in respect of the Loan, all payments of the fees described in this Agreement (but
not in any separate fee letter except to the extent expressly set forth therein), and all
payments in respect of any other obligations of Borrower under the Loan Documents
shall be allocated among such of Lenders as are entitled thereto, in proportion of their
respective Percentages or otherwise as provided herein or in the other Loan Documents,
as the case may be. The Agent shall distribute to each Lender at its primary address set
forth herein, or at such other address as a Lender may request in writing, such funds as it
may be entitled to receive, provided that the Agent shall in any event not be bound to
inquire into or determine the validity, scope or priority of any interest or entitlement of
INDSOI JBAXTER 1031727v5
49
any Lender and may suspend all payments and seek appropriate relief (including without
limitation instructions from the Required Lenders, or all Lenders, as applicable, or an
action in the nature of interpleader) in the event of any doubt or dispute as to any
apportionment or distribution contemplated hereby. The order of priority herein is set
forth solely to determine the rights and priorities of the Lenders as among themselves and
may at any time or from time to time be changed by the Lenders as they may elect, in
writing, without necessity of notice to or consent of or approval by Borrower.
b. If a Lender (a "Defaulting Lender") defaults in making any Disbursement
or paying any other sum payable by it hereunder, such sum together with interest thereon
at the Default Rate from the date such amount was due until repaid (such sum and interest
thereon as aforesaid referred to, collectively, as the "Lender Default Obligation") shall be
payable by the Defaulting Lender (i) to any Lender(s) which elect, at their sole option
(and with no obligation to do so), to fund the amount which the Defaulting Lender failed
to fund or (ii) to Agent or any other Lender which under the terms of this Agreement is
entitled to reimbursement from the Defaulting Lender for the amounts advanced or
expended. Notwithstanding any provision hereof to the contrary, until such time as a
Defaulting Lender has repaid the Lender Default Obligation in full, all amounts which
would otherwise be distributed to the Defaulting Lender shall instead be applied first to
repay the Lender Default Obligation (to be applied first to interest at the Default Rate and
then to principal) until the Lender Default Obligation has been repaid in full (whether by
such application or by cure by the Defaulting Lender), whereupon such Lender shall no
longer be a Defaulting Lender. Any interest collected from Borrower on account of
principal advanced'by any Lender(s) on behalf of a Defaulting Lender shall be paid to the
Lender(s) who made such advance and shall be credited against the Defaulting Lender's
obligation to pay interest on the amount advanced at the Default Rate. If no other Lender
makes an advance a Defaulting Lender failed to fund, a portion of the indebtedness of
Borrower to the Defaulting Lender equal to the Lender Default Obligation shall be
subordinated to the indebtedness of Borrower to all other Lenders and shall be paid only
after the indebtedness of Borrower to all other Lenders is paid. The provisions of this
Section shall apply and be effective regardless of whether an Event of Default occurs and
is then continuing, and notwithstanding (i) any other provision of this Agreement to the
contrary or (ii) any instruction of Borrower as to its desired application of payments. No
Defaulting Lender shall have the right to vote on matters which are subject to the consent
or approval of Required Lenders or all Lenders and while any Lender is a Defaulting
Lender the requisite percentage of Lenders which constitutes the Required Lenders shall
be calculated exclusive of the Percentage of the Defaulting Lender. The Agent shall be
entitled to (i) withhold or set off, and to apply to the payment of the Lender Default
Obligation any amounts to be paid to such Defaulting Lender under this Agreement, and
(ii) bring an action or suit against such Defaulting Lender in a court of competent
jurisdiction to recover the Lender Default Obligation and, to the extent such recovery
would not fully compensate the Lenders for the Defaulting Lender's breach of this
Agreement, to collect damages. In addition, the Defaulting Lender shall indemnify,
defend and hold Agent and each of the other Lenders harmless from and against any and
all claims, actions, liabilities, damages, costs and expenses (including attorneys' fees and
expenses), plus interest thereon at the Default Rate, for funds advanced by Agent or any
other Lender on account of the Defaulting Lender or any other damages such persons
MDS01 ]BAXTER 1031727v5
50
may sustain or incur by reason of or as a direct consequence of the Defaulting Lender's
failure or refusal to abide by its obligations under this Agreement.
C. At least five Business Days prior to the first date on which interest or fees
are payable hereunder for the account of any Lender, each Lender that is not incorporated
under the laws of the United States of America, or a state thereof, agrees that it will
deliver to the Agent two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, certifying in either case that such Lender is entitled to
receive payments under this Agreement and the Notes without deduction or withholding
of any United States federal income taxes. Each Lender which so delivers a Form 1001
or 4224 further undertakes to deliver the Agent two additional copies of such form (or a
successor form) on or before the date that such form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent forms so delivered by
it, and such amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Agent, in each case certifying that such Lender is entitled to receive
payments under this Agreement and the Notes without deduction or withholding of any
United States federal income taxes, unless an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable or which
would prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender advises the Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income tax.
10.06 Consents and Approvals.
a. Each of the following shall require the approval or consent of the Required
Lenders (provided, however, Agent will notify all Lenders prior to taking any of the
following actions):
i. The exercise of any rights and remedies under the Loan
Documents following an Event of Default, provided that absent any
direction from the Required Lenders, Agent may exercise any right or
remedy under the Loan Documents as Agent may determine in good faith
to be necessary or appropriate to protect the Lenders or the collateral
securing the Loan;
ii. Appointment of a successor Agent;
iii. Approval of Post-Default Plan (as defined in and subject to
Section 10.07(d)); and
iv. Except as referred to in subsection (b) below, approval of
any amendment or modification of this Agreement or any of the other
Loan Documents, or issuance of any waiver of any provision of this
Agreement or any of the other Loan Documents;
b. Each of the following shall require the approval or consent of all of the
Lenders:
IWDSOI )BAXTER 1031727v5
i. Extension of any applicable Maturity Date (beyond any
extension permitted herein) or forgiveness of all or any portion of the
principal amount of the Loan or any accrued interest thereon, or any other
amendment of this Agreement or the other Loan Documents which would
reduce the interest rate or interest rate options or the rate at which fees are
calculated or forgive any loan fee, or extend the time of payment of any
principal, interest or fees;
ii. Reduction of the percentage specified in the definition of
Required Lenders;
iii. Reducing or increasing of the amount of the Loan or any
Lender's Commitment, or change the requirement that each Lender fund
in accordance with its Percentage;
iv. Release of any lien on any material collateral (except as
Borrower is entitled to under the Loan Documents);
V. Release of any Guarantor; and
vi. Amendment of the provisions of this Article X.
C. In addition to the required consents or approvals referred to in subsections
La,) and N above, the Agent may at any time request instructions from the Required
Lenders with respect to any actions or approvals which, by the terms of this Agreement
or of any of the Loan Documents, the Agent is permitted or required to take or to grant
without instructions from any Lenders, and if such instructions are promptly requested,
the Agent shall be absolutely entitled to refrain from taking any action or to withhold any
approval and shall not be under any liability whatsoever for refraining from taking any
action or withholding any approval under any of the Loan Documents until it shall have
received such instructions from the Required Lenders. Without limiting the foregoing, no
Lender shall have any right of action whatsoever against any Agent as a result of such
Agent acting or refraining from acting under this Agreement or any of the other Loan
Documents in accordance with the instructions of the Required Lenders or, where
applicable, all Lenders. The Agent shall promptly notify each Lender at any time that the
Required Lenders have instructed the Agent to act or refrain from acting pursuant hereto.
d. Each Lender authorizes and directs the Agent to enter into the Loan
Documents other than this Agreement for the benefit of the Lenders. Each Lender agrees
that any action taken by the Agent at the direction or with the consent of the Required
Lenders in accordance with the provisions of this Agreement or any other Loan
Document, and the exercise by the Agent at the direction or with the consent of the
Required Lenders of the powers set forth herein or therein, together with such other
powers as are reasonably incidental thereto, shall be authorized and binding upon all
Lenders, except for actions specifically requiring the approval of all Lenders. All
communications from the Agent to the Lenders requesting Lenders' determination,
consent, approval or disapproval (i) shall be given in the form of a written notice to each
INDS01 J13AXTER 1031727x5
G7
Lender, (ii) shall be accompanied by a description of the matter or item as to which such
determination, approval, consent or disapproval is requested, or shall advise each Lender
where such matter or item may be inspected, or shall otherwise describe the matter or
issue to be resolved, (iii) shall include, if reasonably requested by a Lender and to the
extent not previously provided to such Lender, written materials and a summary of all
oral information provided to the Agent by Borrower in respect of the matter or issue to be
resolved, and (iv) shall include the Agent's recommended course of action or
determination in respect thereof. Each Lender shall reply promptly, but in any event
within ten (10) Business Days after receipt of the request therefor from the Agent (the
"Lender Reply Period"). Unless a Lender shall give written notice to the Agent that it
objects to the recommendation or determination of the Agent (together with a written
explanation of the reasons behind such objection) within the Lender Reply Period, such
Lender shall be deemed to have approved of or consented to such recommendation or
determination. With respect to decisions requiring the approval of the Required Lenders
or all Lenders, the Agent shall upon receiving the required approval or consent follow
the course of action or determination recommended to the Lenders by the Agent or such
other course of action recommended by the Required Lenders.
10.07 Agency Provisions Relating to Collateral. a. The Agent is hereby authorized on behalf of all Lenders, without the
necessity of any notice to or fiuther consent from any Lender, at any time and from time
to time, to take any action with respect to any collateral for the Loan or any Loan
Document which may be necessary to preserve and maintain such collateral or to perfect
and maintain perfected the liens upon such collateral granted pursuant to this Agreement
and the other Loan Documents.
b. Except as provided in this Agreement, the Agent shall have no obligation
whatsoever to any Lender or to any other person or entity to assure that any collateral
exists or is owned by Borrower or is cared for, protected or insured or has been
encumbered or that the liens granted herein or in any of the other Loan Documents or
pursuant hereto or thereto have been properly or sufficiently or lawfully created,
perfected, protected or enforced or are entitled to any particular priority. .
C. Should the Agent commence any proceeding or in any way seek to enforce
the Agent's or the Lenders' rights or remedies under the Loan Documents, irrespective of
whether as a result thereof the Agent shall acquire title to any collateral, each Lender,
upon demand therefor from time to time, shall contribute its share (based on its
Percentage) of the reasonable costs and/or expenses of any such enforcement or
acquisition, including, but not limited to, fees of receivers or trustees, court costs, title
company charges, filing and recording fees, appraisers' fees and fees and expenses of
attorneys to the extent not otherwise reimbursed by Borrower. Without limiting the
generality of the foregoing, each Lender shall contribute its share (based on its
Percentage) of all reasonable costs and expenses incurred by the Agent (including
reasonable attorneys' fees and expenses) if the Agent employs counsel for advice or other
representation (whether or not any suit has been or shall be filed) with respect to any
collateral for the Loan or any part thereof, or any of the Loan Documents, or the attempt
INDS01 !BAX'T'ER I03I727v5
CZ
to enforce any security interest or lien on any collateral, or to enforce any rights of the
Agent or the Lenders or any of Borrower's or any other party's obligations under any of
the Loan Documents, but not with respect to any dispute between Agent and any other
Lender(s). It is understood and agreed that in the event the Agent determines it is
necessary to engage counsel for Lender from and after the occurrence of a Default or
Event of Default, said counsel shall be selected by the Agent and written notice .of such
selection, together with a copy of such counsel's engagement letter and fee estimate, shall
be delivered to the Lenders.
d. In the event that all or any portion of the collateral for the Loan is acquired
by the Agent as the result of the exercise of any remedies hereunder or under any other
Loan Document, or is retained in satisfaction of all or any part of Borrower's obligations
under the Loan Documents, title to any such collateral or any portion thereof shall be held
in the name of the Agent or a nominee or subsidiary of Agent, as agent, for the ratable
benefit of the Agent and the Lenders. The Agent shall prepare a recommended course of
action for such collateral (the 'Post-Default Plan', which shall be subject to the approval
of the Required Lenders. The Agent shall administer the collateral in accordance with
the Post-Default Plan, and upon demand therefor from time to time, each Lender will
contribute its share (based on its Percentage) of all reasonable costs and expenses
incurred by the Agent pursuant to the Post-Default Plan, including without limitation, any
operating losses and all necessary operating reserves. To the extent there is net operating
income from such collateral, the Agent shall, in accordance with the Post-Default Plan,
determine the amount and timing of distributions to Lenders. All such distributions shall
be made to Lenders in accordance with their respective Percentages. In no event shall the
provisions bf this subsection or the Post-Default Plan require the Agent or any Lender to
take an action which would cause such Lender to be in violation of any applicable
regulatory requirements.
10.08 Lender Actions Azainst Borrower or the Collateral Each Lender agrees that it
will not take any action, nor institute any actions or proceedings, against Borrower or any other
person hereunder or under any other Loan Documents with respect to exercising claims against
the Borrower or rights in any collateral without the consent of the Required Lenders. With
respect to any action by the Agent to enforce the rights and remedies of the Agent and Lenders
with respect to the Borrower and any collateral in accordance with the terms of this Agreement,
each Lender hereby consents to the jurisdiction of the court in which such action is maintained.
10.09 Assignment and Participation No Lender shall be permitted to assign or sell all
or any portion of its rights and obligations under this Agreement to Borrower or any affiliate of
Borrower.
10.10 Ratable Sharing. Subject to Sections 10.04 and 10.05, Lenders agree among
themselves that (i) with respect to all amounts received by them which are applicable to the
payment of the Loan, equitable adjustment will be made so that, in effect, all such amounts will
be shared among them ratably in accordance with their Percentages, whether received by
voluntary payment, by the exercise of the right of set-off or bankers' lien, by counterclaim or
cross action or by the enforcement of any or all of the Loan Documents or any collateral and (ii)
if any of them shall by voluntary payment or by the exercise of any right of counterclaim, set-off,
MS01 TBAXTER 1031727vS
54
bankers' lien or otherwise, receive payment of a proportion of the aggregate amount of the Loan
held by it which is greater than its Percentage of the payments on account of the Loan, the one
receiving such excess payment shall purchase, without recourse or warranty, an undivided
interest and participation (which it shall be deemed to have done simultaneously upon the receipt
of such payment) in such obligations owed to the others so that all such recoveries with respect
to such obligations shall be applied ratably in accordance with their Percentages; provided, that if
all or part of such excess payment received by the purchasing party is thereafter recovered from
it, those purchases shall be rescinded and the purchase prices paid for such participations shall be
returned to that party to the extent necessary to adjust for such recovery, but without interest
except to the extent the purchasing party is required to pay interest in connection with such
recovery. Borrower agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section may, to the fitllest extent permitted by law, exercise all its rights of a
Lender hereunder with respect to such participation as fully as if such Lender were the direct
creditor of Borrower in the amount of such participation.
10.11 General Immunity. Neither Agent nor any of its directors, officers, agents or
employees shall be liable to any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or therewith, except for
its or their own gross negligence or willful misconduct. In the absence of gross negligence, the
Agent shall not be liable for any apportionment or distribution of payments made by it in good
faith pursuant to Section 10.05, and if any such apportionment or distribution is subsequently
determined to have been made in error the sole recourse -of any Lender to whom payment was
due, but not made, shall be to recover from the recipients of such payments any payment in
excess of the amount to which they are determined to have been.entitled.
10.12 No Responsibility for Loan, Recitals etc. Neither Agent nor any of its directors,
officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into,
or verify (i) any statement, warranty or representation made in connection with any Loan
Document or any use of the Loan; (ii) the performance. or observance of any of the covenants or
agreements of any party to any Loan Document; (iii) the satisfaction of any condition specified
in this Agreement, except receipt of items purporting to be the items required to be delivered to
any Agent; or (iv) the validity, effectiveness or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith, provided that the foregoing shall not
release Agent from liability for its gross negligence or willful misconduct.
10.13 Action on Instructions of Lenders. The Agent shall in all cases be fully protected
in acting, or in refraining from acting, hereunder and under any other Loan Document in
accordance with written instructions signed by all the Lenders (or the Required Lenders, if such
action may be directed hereunder by the Required Lenders), and such instructions and any action
taken or failure to act pursuant thereto shall be binding on all of Lenders. Each Lender, severally
to the extent of its Percentage, hereby agrees to indemnify Agent against and hold it harmless
from any and all liability, cost and expense that it may incur by reason of taking or continuing to
take any such action, provided that the foregoing shall not release Agent from liability for its
gross negligence or willful misconduct.
10.14 Employment of Agents and Counsel The Agent may undertake any of its duties
as Agent hereunder and under any other Loan Document by or through employees, agents, and
INDSO] JBAXIER 1031727x5
cICZ
attorneys-in-fact and shall not be liable to Lenders, except as to money or securities received by
them or their authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its duties hereunder
and under any other Loan Document.
10.15 _Reliance on Documents, Counsel. The Agent shall be entitled to rely upon any
notice, consent, certificate, affidavit, letter, telegram, statement, paper or document believed by it
to be genuine and correct and to have been signed or sent by the proper person or persons, and,
in respect to legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be an employee of Agent, provided that the foregoing shall not release the Agent from
liability for its gross negligence or willful misconduct. Any such counsel shall be deemed to be
acting on behalf of Lender in assisting the Agent with respect to the Loan, but shall not be
precluded from also representing Agent in any matter in which the interests of Agent and the
other Lenders may differ.
10.16 Agent's Reimbursement and Indemnification Lenders agree to reimburse and
indemnify Agent ratably in accordance with their Percentage (i) for any amounts (excluding
principal and interest on the Loan and loan fees) not reimbursed by Borrower for which Agent is
entitled to reimbursement under the Loan Documents, (ii) for any other expenses incurred by
Agent on behalf of Lender, in connection with the preparation, execution, delivery,
administration and enforcement of the Loan Documents, if not paid by Borrower, (iii) for any
expenses incurred by Agent on behalf of Lender which may be necessary or desirable to preserve
and maintain collateral or to perfect and maintain perfected the liens upon the collateral granted
pursuant to this Agreement and the other Loan Documents, if not paid by Borrower, (iv) for any
amounts and other expenses incurred by Agent on behalf of Lender in connection with any
default by any Lender hereunder or under the other Loan Documents, if not paid by such Lender,
and (v) for any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the transactions
contemplated thereby, or the enforcement of any of the terms thereof or of any such other
documents, provided that no Lender shall be liable for any of the foregoing to the extent they
arise from the gross negligence or willful misconduct of Agent.
10.17 Rights as a Lender. With respect to its Commitment, Agent shall have the same
rights, powers and obligations hereunder and under any other Loan Document as any Lender and
may exercise such rights and powers as though it were not an Agent, and the tern "Lender" or
"Lenders" shall, unless the context otherwise indicates, include Agent in its individual capacities.
The Borrower and each Lender acknowledge and agree that Agent and/or its affiliates may
accept deposits from, lend money to, hold other investments in, and generally engage in any kind
of trust, debt, equity or other transaction or have other relationships, in addition to those
contemplated by this Agreement or any other Loan Document, with Borrower or any of its
affiliates in which Borrower or such affiliate is not restricted hereby from engaging with any
other person.
DVDSOI J13AXTFR 10317270
56
10. 18 Lenders' Credit Decisions. Each Lender acknowledges that it has, independently
and without reliance upon the Agent or any other Lender and based on the financial statements
and other information prepared by Borrower and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement and
the other Loan Documents. Each Lender also acknowledges that it will, independently and
without reliance upon Agent or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not
taking action under this Agreement and the other Loan Documents.
10.19 Notice of Events of Default. Should Agent receive any written notice of the
occurrence of a default or Event of Default, or should the Agent send Borrower a notice of
Default or Event of Default, the Agent shall promptly furnish a copy thereof to each Lender.
10.20 Successor Agent.
a. Agent may resign from the performance of all its functions and duties
hereunder at any time by giving at least thirty (30) days prior written notice to Lenders
and Borrower. Such resignation shall take effect on the date set forth in such notice or as
otherwise provided below. Such resignation by Agent as agent shall not affect its
obligations hereunder, if any, as a Lender.
b. Upon resignation by the Agent (or removal thereof), or any successor
Agent, the Required Lenders shall appoint a successor Agent with the consent of
Borrower,. which shall not be unreasonably withheld, conditioned or delayed (provided
that no consent of Borrower shall be required if the successor Agent is also a Lender or if
an Event of Default then exists). If no successor Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment within thirty (30) days
after the retiring Agent's giving notice of resignation, then the retiring Agent may appoint
a successor Agent with the consent of Borrower, which shall not be unreasonably
withheld, conditioned oT delayed (provided that no consent of Borrower shall be required
if the successor Agent is also a Lender or if an Event of Default then exists). Upon the
acceptance of any appointment as an Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the Agent and the Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents other than its liability, if any, for duties and obligations accrued prior to its
retirement. After any retiring Agent's resignation hereunder as an Agent, the provisions
of this Article X shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as an Agent hereunder and under the other
Loan Documents.
C. Notwithstanding anything contained herein to the contrary, Huntington
shall have the right to replace Charter One as Agent hereunder in the event that Charter
One reduces the amount of its Commitment, and as a result of such reduction,
Huntington's Commitment and Percentage are greater than Charter One's Commitment
and Percentage.
INDSOI JBAXTER 1031727v5
57
ARTICLE XI.
MISCELLANEOUS
11.01 No Implied Waiver, Cumulative Remedies, Writing Required. No delay or
failure of the Agent in exercising any right, power or privilege hereunder shall affect such right,
power or privilege, except as and to the extent that the assertion of any such right, power or
privilege shall be barred by an applicable statute of limitations, nor shall any single or partial
exercise thereof or any abandonment or discontinuance of steps to enforce such a right, power or
privilege preclude any further exercise thereof or of any other right, power or privilege. The
rights and remedies of the Agent hereunder and under the other Loan Documents are cumulative
and not exclusive of any rights or remedies which it would otherwise have. Any waiver, permit,
consent or approval of any kind or character on the part of the Agent of any breach or default
under this Agreement or any other Loan Document, or any waiver by the Agent of any provision
or condition of this Agreement or any other Loan Document, must be in writing and shall be
effective only to the extent as may be specifically set forth in such writing.
11.02 Taxes. The Borrower shall pay any and all stamp, document, transfer and
recording taxes, fees and similar impositions payable or hereafter determined to be payable in
connection with the execution, delivery and/or recording of the Loan Documents to which it is
party, and the Borrower agrees to save the Agent and Lenders harmless from and against any and
all present or future claims or liabilities with respect to, or resulting from, any delay in paying or
omitting to pay any such taxes, fees or similar impositions.
11.03 TEXT INTENTIONALLY OMITTED
11.04 Holidays. Except as otherwise provided herein, whenever any payment or action
to be made or taken under any of the Loan Documents shall be stated to be due or to be
performed on a day which is not a business day, such payment or action shall be made or taken
on the next-following business day and such extension of time shall be included in computing
interest or fees, if any, in connection with such payment or action.
11.05 Notices. All notices, statements, requests and demands given to or made upon
either party hereto in accordance with the provisions of this. Agreement shall be deemed to have
been given or made (j) two (2) days after the same are deposited in the United States mail,
postage prepaid, either by registered or certified mail, return receipt requested, or (ii)
immediately upon personal delivery, or (iii) one day after delivered by an overnight carrier
which provides for a return receipt, addressed as follows:
If to the Agent: RBS Citizens, National Association
d/b/a Charter One
10333 North Meridian Street, Suite 350
Indianapolis, Indiana 46290
Attention: Commercial Real Estate Department
WDSOI J13AXTER 1031727x5
58
With a copy to: Barnes & Thornburg LLP
11 South Meridian Street
Indianapolis, Indiana. 46204
Attention: John B. Baxter, Esquire
If to the Borrower: Carlisle Partners Building C, LLC
c/o Lauth Property Group
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: Michael S. Curless
With a copy to: Carlisle Partners Building C, LLC
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: General Counsel
or in accordance with the latest unrevoked written direction from either party to the other party
hereto. Failure of Agent to furnish Borrower's General Counsel or Borrower's attorney with a
copy of any notice provided to Borrower hereunder shall not be deemed a failure of the Agent to
provide Borrower with such notice and shall not affect, or any way prevent or estop the Agent
from exercising, any right or remedy of the Agent hereunder or under any of the other Loan
Documents.
11.06 Reimbursement for Certain Expenses All costs incidental to the Loan, including,
but not limited to, title insurance premiums, survey charges, appraisal fees, insurance premiums,
inspecting engineers' and/or architects' fees, attorneys' costs and fees (including the costs and
fees of paralegals) and any and all other incidental expenses of the Lenders, shall be paid by the
Borrower. All such fees and expenses shall be paid upon receipt of a statement therefor.
11.07 No Third Party Rights. Nothing in this Agreement, whether express or implied,
shall be construed to give to any person other than the parties hereto any legal or equitable right,
remedy or claim under or in respect of this Agreement or any other Loan Documents, which is
intended for the sole and exclusive benefit of the parties hereto and thereto.
11.08 Sign. The Agent (on behalf of the Lenders) may, at its option and expense,
(i) erect a sign on the Project in a location and in a manner acceptable to the Borrower and the
Agent indicating that the Lenders have provided financing with respect to the Project; and (ii)
otherwise publicize its involvement in the Project.
11.09 Interest Limitation. Notwithstanding anything to the contrary contained herein or
in any of the other Loan Documents, the obligations of the Borrower to the Lenders under this
Agreement and any other Loan Documents to which the Borrower is a party, are subject to the
limitation that payments of interest to the Lenders shall not be required to the extent that receipt
of any such payment by the Borrower would be contrary to provisions of governmental
requirements applicable to the Lenders which limit the maximum rate of interest which may be
charged or collected by the Lenders.
WDS01 JBAX7ER 1031727x5
59
I 1.10 Severability. The provisions of this Agreement are intended to be severable. If
any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any
jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.
11.11 Governing Law. EXCEPT AS EXPRESSLY SET FORTH IN THE
MORTGAGE AND THE ASSIGNMENT OF RENTS, THE LAWS OF THE STATE OF
INDIANA SHALL GOVERN ALL MATTERS RELATING TO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS AND ALL OF THE INDEBTEDNESS OR THE
OBLIGATIONS OF THE BORROWER ARISING HEREUNDER OR THEREUNDER.
11.12 Certain Fees. No broker's or finder's fee or commission will be payable with
respect to the Loan, this Agreement, or the other Loan Documents, or any of the transactions
contemplated hereby, and the Borrower hereby indemnifies Agent and the Lenders against, and
agrees that it will hold Agent and the Lenders harmless from, any claim, demand, or liability for
any such broker's or finder's fee or commission alleged to have been incurred in connection
herewith or therewith and any expenses (including reasonable fees, expenses, and disbursements
of counsel) arising in connection with any such claim, demand, or liability.
11.13 Survival. All representations, warranties, covenants,. agreements and obligations
of the Borrower contained in this Agreement, as amended or supplemented from time to time,
shall survive the making of Advances and shall continue in full force and effect so long as the
Loan is outstanding and until payment and performance in full of all of the Borrower's
obligations thereunder and under the Loan Documents.
11.14 Coun=arts. This Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which, when so executed and
delivered by the parties, shall constitute an original but all such counterparts together constituting
but one and the same instrument.
11.15 Successors and Assigns. This Agreement shall be binding upon and shall inure to
the benefit of the Lenders and the Borrower and their respective successors and assigns, except
that the Borrower may not assign or transfer its rights and obligations hereunder or any interest
herein without the prior written consent of the Lenders.
11.16 Waiver of Jury Trial. The Borrower and each Lender, after consulting or having
had the opportunity to consult with counsel, knowingly, voluntarily and intentionally waives any
right they may have to a trial by jury in any litigation based upon or arising out of the Loan, this
Agreement or any other Loan Documents or any of the transactions contemplated hereby or by
any other Loan Documents or any course of conduct, dealing, statements, whether oral or
written, or actions of the Borrower or the Lenders. Neither the Borrower nor the Lenders shall
seek to consolidate, by counterclaim or otherwise, any action in which a jury trial has been
waived with any other action in which a jury trial cannot be or has not been. waived. These
provisions shall not be deemed to have been modified in any respect or relinquished by the
Lenders or the Borrower except by written instrument executed by both the Lenders and the
Borrower.
WDS01 JBAXTER 1031727v5
60
11.17 Customer Identification - USA Patriot Act Notice. Lenders hereby notify
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L, 107-56,
signed into law October 26, 2001) (the "Act"), and Lenders' policies and practices, Lenders are
required to obtain, verify and record certain information and documentation that identifies
Borrower, which information includes the name and address of Borrower and such other
information that will allow Lenders to identify Borrower in accordance with the Act. In
addition, Borrower shall (a) ensure that no person who owns a controlling interest in or otherwise
controls Borrower or any subsidiary of Borrower is or shall be listed on the Specially Designated
Nationals and Blocked Person List or other similar lists maintained by the Office of Foreign
Assets Control ("OFAC"), the Department of the Treasury or included in any Executive Orders,
(b) not use or permit the use of the proceeds of the Loans to violate any of the foreign asset
control regulations of OFAC or any enabling statute or Executive Order relating thereto, and (c)
comply, and cause any of its subsidiaries to comply, with all applicable Agent Secrecy Act
(`BSA") laws and regulations, as amended.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
INDS01 JBAXTER 1031727x5
?1
SIGNA'ruRE PAGE OF BORROWER TO LOAN AGREEMENT
"BORROWER"
STATE OF INDIANA )
) SS:
COUNTY OF ?Wk lttf) )
CARLISLE PARTNERS BUILDING C, LLC,
an Indiana limited liability company
r•
By:
Printed: Michaels
Executive Vice President
Title:
Before me, a Notary Public in and for said County and State, personal) appeared
(?1 ,,,Z ore
S. I`l,f12? , known to me to be the d-7 of
CARLISLE PARTNERS BUILDING C, LLC, an Indiana limited liability company and
acknowledged the execution of the foregoing for and on behalf of said limited liability company.
Witness my hand
Name
My Commissio res:
? I
My County of ltrsidence:
M an,
2008.
INDS01 ]BAXTER 1031727
SIGNATURE PAGE OF CHARTER ONE TO LOAN AGREEMENT
"CHARTER ONE"
Commitment
Percentage:
$19,223,865
50%
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State, personally appeared
J. Michael Shockey, known to me to be a Vice President of RBS CITIZENS, NATIONAL
ASSOCIATION BANK, N.A., a national banking association d/b/a Charter One, and
acknowledged the execution of the foregoing for and on behalf of said national banking
association.
Witness my hand and notarial seal this 4l day of Me? , 2008.
L GRAHAM
Marlon Caa?r
My Ca m iWM EOU No y Public
December 12, 2015
Printed Name
My Commission Expires:
My County of Residence:
INDS01 JBAXTER 1031727
RBS CITIZENS, NATIONAL ASSOCIATION
BANK, N.A., a national banking association d/b/a
"HUNTINGTON"
THE HUNTINGTON NATIONAL BANK, a
national banking association, as a Lender
Commitment: $19,223,865 1 <1
By, (;),;,j z' Y-lz
Percentage: 50%
Printed: &A4 0 ??1FAt C!l
Title: 111 Cj?-' AL=?(lka-All
STATE OF INDIANA )
SS:
COUNTY OF )
Before me, a.Notary Public in and for said County and State, personally appeared
Dr9 li7 A/ 7F:-7X1L,t , known to me to be a 1WSiD,-A1,7bf THE HUNTINGTON
NATIONAL BANK, a national banking association,. and acknowledged the execution of the
foregoing for and on behalf of said national banking association.
Witness my hand and notarial seal this e-/ - day of 2008.
0
Notary Public
My Commission Expires:
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Lisa Lee, Notary Public
City Of Pittsburgh. Ategt>eny County
W Q"missiort EVIres Dec. 20.2011
'•Femh ,. prnnsylvania Association of Notaries
Printed Name
My County of Residence:
/?? 1 EG/?FiVy.
1NDS01 JBAXTER 1031727
AMENDMENT TO CONSTRUCTION LOAN AGREEME
"Amendment') dated as of the 12th day of November, 2009 by and among
- (this
RLISLE
having an address c/o Lauth Properly Grog, 401 Pennsylvania Parkway, India -; -
lies, Diana
46280 and RBS CITIZENS, NATIONAL ASSOCIATION, a national banki 3g association,
d/b/a Charter One Bank ("Charter One'), as a lender and as administrative age nt and THE
HUNTINGTON NATIONAL BANK, a national banking association ("Hun gton"). Each of
Charter One and Huntington, a "Lender" and, collectively, the "Lenders."
WITNESSETH:
WHEREAS, the Borrower and the Lenders entered into that ' Construction
Loan Agreement, dated as of May 2, 2008 (the "Original Loan Agreement," gether with this
Amendment, the "Loan Agreement'), pursuant to which a construction loan ' the stated
principal amount of Thirty Eight Million Four Hundred Forty Seven Thousand Seven Hundred
Thirty and 00/100 Dollars (538,447,730.00) was made to the Borrower, and
WHEREAS, capitalized teens used herein and not otherwise . de fined in this
Amendment have the meanings ascribed to them in the Original Loan Agreeme nt, and
WHEREAS, since the date of the Original Loan Agreement, the financial
condition of the Borrower and Guarantors has undergone a material adverse ch- ge and one or
more Events of Default have occurred, and are continuing, under the Loan Doc ents; and
WHEREAS, the Borrower and the Lenders have agreed to,arnei id and modify the
Original Loan Agreement, all in the manner hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenant 6 set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of 4 ch are hereby
acknowledged, the parties hereto agree that effective as of the date hereof, the riginal
Agreement is hereby amended and modified as follows:
1. Incorporation of Recitals. All of the recitals set forth above are h by incorporated
into this Amendment and made a part hereof.
2. Amendment of the Agreement. The Original Loan Agreement is h ereby amended
and modified as follows:
(a) The definition of "LA Margin" as set forth in Section 1.0 1 of the Original
Loan Agreement is hereby deleted in its entirety and replaced with the !lowing:
``4LA 'shall mean 2.25% per armum."
(b) The definition of "LIBOR Rate Margin" as set forth in on 1.01 of the
Original Loan Agreement is hereby deleted in its entirety and replaced 'th the
following:
c:Wocunerds end saWngMe026150oml ee*VsKemporm it atrtet fi 9d\ok871nyL422=_7_caAWe - mm 1. 1oen
agreement (2).doc t
i
'"`LIBOR Rate Ma_r&' shall mean Two and One-Quart?r Percent (2.25%)
per annum."
The following definition of "Deferred Fm" is hereby a4ed to Section
"Pg&Fee" shall mean a fee payable to the Agent, Qn behalf of the
Lenders, in an amount equal to the following: (i) for interest on any por, of the Loan
classified as a LIBOR Rate Loan, from and after January 1, 2010, the d$erence during a
? respect to the
LIBOR Interest Period of (a) the interest that would have been acmred with
LIBOR Rate Loan had the rate of interest been equal to the Adjusted L OR Rate plus
the Increased LIBOR Rate Margin and (b) the interest payable with to the LIBOR
Rate Loan at a rate of interest equal to the Adjusted LIBOR Rate plus a LIBOR Rate
Margin and (ii) for interest on any portion of the Loan classified as a L BOR Advantage
Loan, from and after January 1, 2010, the difference during an LA In Period of (a)
the interest that would have been accrued with respect to the LIBOR A vantage Loan had
the rate of interest been equal to the LIBOR Advantage Rate plus the h creased LA
Margin and (b) the interest payable with respect to the LIBOR Advan a Loan at a rate
of interest equal to the LIBOR Advantage Rate plus the LA Margin."
(d) The following definition of "Excess Cash Flow' is hereby added to
Section 1.01 of the Original Loan Agreement in alphabetical order:
`"`,Excess Cash Flow" shall mean the difference betw= (i) Gross
Revenues and (ii) the sum of (x) actual, out-of-pocket, operating e s for the Project
incurred and expended by the Borrower pursuant to an operating budget approved by the
Agent (including, but not limited to debt service payments with respect to the Loan), and
(y) the Management Fee."
(e) The following definition of "Increased LA Margin" is by added to
Section 1.01 of the Original Loan Agreement in alphabetical order:
'"'Increased LA 'shall mean 4.001/a per annum'
(f) The following definition of "Increased LIBOR Rate Margin" is hereby
added to Section 1.01 of the Original Loan Agreement in alphabetical grder.
'"'Increased LIBOR Rate Margin" shall mean Four Percent t (4.009/6) per
I
(g) The following definition of "Management Fee" is hereb added to Section
1.01 of the Original Loan Agreement in alphabetical order.
""Management Fee" shall mean a management fee equa; to the greater of
(a) 4.50% of Gross Revenues, per calendar month, to the extent that h management
fee is paid or reimbursed by the Tenants or (b) $2,500 per calendar moth. "
(h) The following definition of "Office Depot Lease" is herby added to
Section 1.01 of the Original Loan Agreement in alphabetical order.
""Office Depot Lease" shall mean that certain lease bet) veen Office
Depot, Inc., as tenant, and the Borrower, as landlord, for approximate! 600,000 square
feet of the Site."
entirety and replaced with the following:
"a. Interest Provisions. (i) Interest on the o principal
amount of the Loan, when classified as a: (x) LIBOR Rate Load, shall , and be
payable at an interest rate per annum during each LIBOR Interest Peri equal to the sum
of the Adjusted LIBOR Rate for such LIBOR Interest Period plus the IBOR Rate
Margin, and (y) LIBOR Advantage Loan, shall accrue and be payable an interest rate
per annum during each LA Interest Period equal to the sum of the LIBOR Advantage
Rate for such LA Interest Period plus the LA Margin. Interest shall be calculated for the
actual number of days elapsed on the basis of a 360-day year, including the first date of
the applicable period to, but not including, the date of repayment.
(ii) The Deferred Fee shall be due and payab a out of Gross
Revenues not needed to make payments in respect of the Loan as provi for herein or
to pay operating expenses of the Project prior to any the making of any distributions
pursuant to Section 5.01(8) of this Agreement and, to the extent that an amount of the
Deferred Fee remains outstanding, it shall be due and payable, in fidl, the earlier of the
(x) Maturity Date (including any accelerated maturity date), (y) sale of a Project or (z)
refinance of the Loan."
0) The following is hereby added to the end of Section 2.1 ? of the Original
Loan Agreement:
"The Borrower and the Lenders acknowledge and agreettliat the Agent
shall no longer disburse any portion of the Interest Reserve from and a#u such time as
Office Depot, Inc. has commenced making rent payments under the O ce Depot Lease
to the Borrower (the "Office QWt Lease Rent Commencement Date rovi
however. that in the event that the Borrower receives rent payments any Tenant
under any Lease for any remaining portion of the Site, the Lenders ma reduce or
terminate, as determined by the Lenders based upon the rent payments m any such
Tenant under any such Lease for any remaining portion of the Site and he then approved
operating expense budget for the Project, the disbursements from the terest Reserve
prior to the Office Depot Lease Rent Commencement Date."
(k) Section 5.01(g) of the Original Loan Agreement is herelty modified to
read as follows:
"8. Interim Income. Other than to the Management cc and/or state
and federal taxes, if any, the Borrower shall make no distribution, pa ents or
allocations to or for the benefit of any person or entity having an ' in the Borrower;
rovi however, that so long as (a) the Borrower has, in addition to the Office Depot
Lease, entered into one or more Leases with Tenants, (b) no Event of of tint shall be
continuing and (c) the Borrower shall have achieved a Proforma Debt ervice Coverage
Ratio of not less than 1.2 to 1.0, the Borrower may distribute Gross Revenues not needed
to make payments in respect of the Loan as provided for herein or to y operating
expenses of the Project"
Agreement:
"6.18 Cash Flow. On a monthly basis, at any time thai the Borrower is
not permitted to make distributions, payments or allocations pursuant Section 5.01(g)
of this Agreement, the Borrower shall deliver any and all Excess Cash ow to the Agent,
on behalf of the Lenders, and such funds shall be applied by the Lende first to reduce
any outstanding Deferred Fee and then to reduce the principal amount of the Loan."
(m) Bank's counsel's address as set forth in Section 11.05 o the Original Loan
Agreement is hereby deleted and replaced with the following:
"Jones Day
222 East 41" Street
New York, New York 10017
Attention: Steven C. Koppel"
3. Cost Breakdown. An amended Cost Breakdown is attached here? as Exhibit A.
4. Representations and Warranties of the Borrower. As a materi inducement to the
Lenders hereunder, the Borrower hereby warrants and represents to the Len as follows:
(a) Borrower has no defenses, offsets or counterclaims as ainst the
outstanding principal amount, all interest accrued and unpaid thereon and all o her sums due to
the Lenders in respect of the Loan.
(b) The Original Loan Agreement and all other Loan Docur ents, as amended
hereby, are in all respects the legal, valid and binding obligations of the Borro, enforceable
against the Borrower in accordance with their terms and free from any and all ties,
defenses or counterclaims of any nature whatsoever.
(c) Unless otherwise disclosed to the Agent in writing prior to the date hereof,
the representations and war anties contained in the Original Loan Agreement are true and correct
in all materials respects on and as of the date hereof and with the same effect if made on and
as of the date hereof.
5. Acknowledgment of Indebtedness. b tions and Liabilities finder the Loan
Documents. The Borrower and the Guarantors acknowledge and agree that ( that one or more
Events of Default have occurred and are continuing under the Loan Docum (b) as of the date
hereof, the Borrower is indebted to the Lenders in respect of the Loan m the cipal amount of
$31,117,334.37, plus accrued and unpaid interest (of which there is $59,823.3 outstanding as of.1 %
the date hereof), t' "?Ctl Y-due and payableinii1 -Ind c) the Borrower is ?-•
indebted to the Lender in respect of all legal and other flees, costs and ex ' i
pense? connection
with the Original Loan Agreement, this Amendment and any other Loan Doc eats including,
without limitation, all fees and expenses of legal counsel for the Lenders (toll ively, the
"Indebtedness').
6. Aclmowledgment of Liens and Secarity Interests. The Borrowet and the
hold, valid, unavoidable, enforceable and perfected first-priority liens upon, security
interests in, the collateral heretofore granted to the Lenders pursuant to the Documents or
otherwise granted to or held by the Lenders under the Loan Documents and/or applicable law
(collectively, the "Liens"), subject to permitted encumbrances, if any.
7. No Defenses. The Indebtedness is unconditionally owing by the mower. The
Borrower has no defenses, challenges, or objections to the Indebtedness or: i and no rights
of set off or recoupment, claim or counterclaim of any kind, nature or descri on whatsoever
against the Lender or the Indebtedness or the Liens. The Indebtedness and Li are
unavoidable. Neither the Borrower nor any Guarantor is aware of any facts any
allegation giving rise to any defense, challenge, claim, objection, right of set o recoupment,
claim, counterclaim, avoidance or subordination against the Indebtedness, the 'ens, or the
Lenders.
8. Acknowledvsxents Concerning Guaranties. Each Guarantor by acknowledges,
reaffirms and ratifies its obligations and restates and reaffirms as of the date f each and
every covenant, representation and warranty under any and all guaranties ex by the
Guarantors in favor of the Lenders with respect to the Loan (collectively, the unranties'),
consents to the execution and delivery of this Amendment, and agrees and ac wledges that its
liabilities under the Guaranties shall not be affected in any way by the execurti n and delivery of
this Amendment or by the consummation of any of the transactions contemp herein. Each
Guarantor warrants and represents that it has no defenses, setoffs, claims, co hums or
causes of action of any kind or nature whatsoever with respect to the Cnraranti its obligations
under the Guaranties, or any other Loan Documents to which it is a party and Amendment.
No GuWWWr has any defenses, challenges, or objections to the Indebtedness r the Liens, and
no rights of set off or recoupment, claim or counterclaim of any kind, nature o description
whatsoever against any Lender or its liabilities under the Guaranties with to the
Indebtedness or the Liens. The Indebtedness and the Liens are unavoidable. o Guarantor is
aware of any facts supporting any allegation giving rise to any defense, chall claim,
Objection, right of set off, recoupment, claim, counterclaim, avoidance or su 'on against
the Indebtedness, the Liens, or any Lender or any Guarantor's obligations to the Lenders.
Notwithstanding the foregoing, nothing in this Amendment or the timing of th execution of this
Amendment shall be, or be deemed, to convert any claims of the Lenders fim prepetition claims
into postpetition claims or to elevate any claim by the Lenders under any Gum ties to
administrative priority status within the context of the Guarantors' bankruptcy case.
9. Release of Claims against Lenders.
(a) In consideration of the agreements of the Lenders contaured herein and for
other good and valuable consideration, the receipt and sufficiency of which is wreby
acknowledged, the Borrower, on behalf of itself and its successors, assigns, an I other legal
representatives, and each Guarantor, on behalf of itself and its respective suca ssors, assigns, and
other legal representatives, hereby absolutely, unconditionally and irrevocably release, remise
and forever discharge the Lenders, their successors and assigns, and their affil
predecessors, partners, directors, officers, attorneys, employees, financial con
other representatives (the Lenders and all such other persons or entities being
to collectivel as the "RekaseW', and individually as a "Releasee'), of and fi
actions, causes of action suits, covenants, co ooutroverstes, -
of money, accounts, bills, reckonings, damages and any and all other claims, c
defenses, rights of set-0$ demands and liabilities whatsoever (individually, a
collectively, "Clalms") of every name and nature, known or unknown, suspec
both at law and in equity, which the Borrower and each of its successors, assil
representatives, and/or any Guarantor, and each of its respective successors, a
legal representatives may now or hereafter own, hold, have or claim to have a;
Releasees or any of them for, upon, or by reason of any circumstance, action,
whatsoever which arises at any time on or prior to the day and date of this An
account of; or in relation to, or in any way in connection with any of the Origi
Agreement, the Guaranty, the other Loan Documents or this Amendment or tr
thereunder or related thereto.
s, subsidiaries,
ants, agents and
:inafter referred
all demands,
Wm", and
or unsuspected,
or other legal
ns and other
ist the
se or thing
lment for or on
Loan
(b) Each of the Borrower and each Guarantor understands, knowledges and
agrees that the release set forth above may be pleaded as a full and complete d fense and may be
used as a basis for an injunction against any action, suit or other proceeding ch may be
instituted, prosecuted or attempted in breach of the provisions of such release.
(c) Each of the Borrower and each Guarantor agrees that n fact, event,
circumstance, evidence or transaction which could now be asserted or which y hereafter be
discovered shall affect in any manner the final, absolute and unconditional nat ire of the release
set forth above.
(d) Each of the Borrower and each Guarantor, on behalf of
successors, assigns, and other legal representatives, hereby absolutely, uncond
irrevocably, covenants and agrees with and in favor of each Releasee that it w
in equity, in any regulatory proceeding or otherwise) any Releasee on the basi
released, remised and discimlod by Borrower and any Guarantor pursuant to
Amendment. If the Borrower or any Guarantor or their respective successors,
legal representatives violates the foregoing covenant, the Borrower and each (
and its respective successors, assigns and legal representatives, agrees to pay,
other damages as any Releasee may sustain as a result of such violation, all ati
costs incurred by any Releasee as a result of such violation.
(e) EACH OF THE BORROWER AND EACH GUAI
THAT THE RELEASE SET FORTH ABOVE INCLUDES CLAIMS A]
RESULT OF THE NEGLIGENCE OR ALLEGED NEGLIGENCE OF
OF THE RELEASEES.
10. No Waivers and Reservation of Riahts.
self and its
ionaily and
1 not sue (at law,
of any Claim
ie terms of this
ssigns, and other
wantor for itself
i addition to such
rnevs' fees and
OR AGREES
fG AS A
OR MORE
(a) The Lenders and the Agent have not waived, and are no waiving, by the
execution of this Amendment, or by the acceptance by the Lenders of any pa ent(s) hereunder
or under the Loan Agreeement or any other Loan Documents, any default or E t of Default,
now existing or which may hereafter occur, and the Lenders and the Agent he e not agreed to
forbear with respect to any of their rights or remedies concerning any default r Event of Default
which may have occurred or is continuing as of the date hereof or which may ccur after the date
hereof.
(b) The Lenders and the Agent expressly reserve the right, the Lenders' and
the Agent's discretion, to exercise, or cause the exercise of, any or all of their 'ghts and
remedies under the Loan Agreement, the Loan Documents and applicable law a result of any
default or Event of Default now existing or which may hereafter occur.
(c) Without limiting the generality of the foregoing, neith the Borrower nor
any Guarantor will claim that any prior action or course of conduct by any Let der or the Agent
constitutes an agreement or obligation to continue such action or course of co duct in the future.
(d) Except as expressly provided herein, there has been no endment to the
Original Loan Agreement or any other Loan Document. The Loan Agreemen and the Loan
Documents are in full force and effect, and shall remain in full force and eff unless and until
an agreement modifying the Loan Agreement or such other Loan Document ' executed and
delivered by the applicable parties, and then only to the extent such agreemen actually modifies
such documents: The parties hereto further acknowledge and agree that this endment shall,
together with the Original Loan Agreement, constitute the Loan Agreement ar? such Loan
Agreement constitutes a Loan Document for all purposes.
11. No Other Changes. The Original Loan Agreement and this Ame dment shall be
read together as one instrument. Except as expressly set forth herein, each every term,
covenant, condition, warranty and provision of the Original Loan Agreement 1 remain in full
force and effect and the same are hereby ratified, confirmed and approved by parties hereto.
12. Binding. This Amendment shall be binding upon and inure to the benefit of
the parties hereto, their respective heirs, successors, legal representatives and/ assigns.
13. Counterparts. This Amendment may be executed in any number f counterparts and
by facsimile, each counterpart of which, when executed and delivered, shall deemed an
original, but all of which shall together constitute one and the same instrumea and the several
signature pages may be collected and annexed to one or more counterparts to rm a complete
counterpart.
14. Conflict. In the event of any conflict between the terms of this t and the
terms of the Original Agreement, the terms of this Amendment shall govern arid control.
15. Governing Law. This Amendment shall be governed by and in ted in
accordance with the laws of the State of Indiana, without giving effect to iples of conflicts
of laws.
16. Severabflity. If any clause or provision of this Agreement is dete ed to be illegal,
invalid, or unenforceable under any present or future law by the final judgm of a court of
competent jurisdiction, the remainder of this Agreement will not be affected by. It is the
intention of the parties that if any such provision is held to be illegal, invalid, r unenforceable,
7
there will be added in lieu thereof a provision as similar in terns to such provi on as is legal,
valid and enforceable.
17. Expenses. All reasonable expenses relating to this Amendment (including, but not
negotiation of this Amendment, and other documents required in connection v ith the
transactions contemplated hereunder) will be paid by the Borrower immediate}Y upon demand by
the Lenders.
[Remainder of Page Intentionally Left Blank]
I
IN WTTNESS wHEREOB, thepatd. hereto bave cmued this Amend' m to be
tithe dnv eed vmr first shove written,- -------------------
BORROWER:
CARUSI.S PARTNERS BUILD G C, LLC,
an Indiana limited liability oompanY
Name: t Awv'&v.cr, 15 • Yf-t p CAAr
Tide: T"s?tn/w a?ne? c ?GOU" ??
BANK:
RBS crnZENS, NATIONAL ASSPCIATION
By:
Name: _
Name:
Title:
HUNl'IPiGTON:
TOE HUNTINGTON NATIONAL{ BANK
I
By:
Name:
Title:
GUARANTORS:
LAUTH GROUP, INC.,
an Indiana emporation
.,--z;- ,a- (?5?
By:
Name: wvrw?- i3.
Tie. vcxw.a'.J
LAUTH INVESTMENT PRO , LLC,
an bdiana limited H"
By. ,
Name: i.avwx.,,M '$ . 0 1 CGV
Trtle:IVl nW0-r! d,-Ae-W(k ALEOU?,n J
IN WITNESS WHEREOF, the parties hereto have caused this Amen ent to be
executed the day and year first above written.
BORROWER:
CARLISLE PARTNERS BU"ING C, LLC,
an Indiana limited liability company
By:
Name:
Title:
BANK:
RBS CITIZENS,
By:
,(lo?ir} ?,Ji o.J
.s;„ i' a2.. ?i cE ter
HUNTINGTON:
THE HUNTINGTON NATIONAL BANK
By.
Name:
Title:
GUARANTORS: i
LAUTH GROUP, INC.,
an Indiana corporation
By: I
Name:
Title:
LAUTH INVFSTM M PROPERTIES, LLC,
an Indiana limited liability compalny
By:
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Amen4ent to be
executed the day and year first above written.
BORROWER: -
CARLISLE PARTNERS BUIL G C, LLC,
an Indiana limited liability compan
By:
Name:
Title:
BANK:
RBS CITIZENS, NATIONAL
By:
Name:
Title:
HUNTINGTON:
THE HUNTING N ATION BANK
By.
Name:
Title: Yip Psiclr,+f
GUARANTORS:
LAUTH GROUP, INC,
an Indiana corporation
By: I
Name:
Title:
LAUTH INVESTMENT PROPS TIES, LLC,
an Indiana limited liability compan4
By:
Name:
Title:
A
E &M
AMENDED COST BREAKDOWN
The remaining loan budget shall be reallocated as follows:
Tenant Improvements - Office Depot $1,200,000.00
Leasing Commissions - Office Depot $1,402,390.00
Interest Reserve $1,117,000.00
Operating Expenses for vacant space $705,000.00
Tenant Improvements - Vaunt Space $1,808,395.63
Leasing Commissions - Vacant Space $800,000.00
Contingency for Vacant Space $297,610.00
Total $7330.395.63
Exhibit D
?'f
- - - - - - - (CharterOne)
$19,223,865
May 2, 2008
FOR VALUE RECEIVED, the undersigned, CARLISLE PARTNERS BUILDING C,
LLC (the `Borrower"), hereby promises to pay to the order of RBS CITIZENS, NATIONAL
ASSOCIATION, d/b/a Charter One (the "Payee"), at its office in Indianapolis, Indiana, or at
such other address as may be specified in writing by the Agent to the Borrower, the principal
sum of NINETEEN MILLION TWO HUNDRED TWENTY-THREE THOUSAND EIGHT
HUNDRED SIXTY-FIVE DOLLARS ($19,223,865.00) (the "Loan's or so much thereof as may
be advanced from time to time, and interest from the date hereof on the balance of principal from
time to time outstanding, in United States currency, at the rates and at the times described in the
Loan Agreement (as hereinafter defined).
This Note is issued by Borrower pursuant to that certain Construction Loan Agreement of
even date herewith by and among Payee, as agent and a lender, The Huntington National Bank
and Borrower (the "Loan Agreement"). Payment of this Note is governed by the Loan
Agreement, the terms of which are incorporated herein by express reference as if fully set forth
herein. Capitalized terms used and not otherwise defined herein shall have the meanings given
to them in the Loan Agreement.
The Loan Agreement provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of the Loan upon the terms and conditions
specified therein.
Except as permitted by Section 9.01 of the Loan Agreement, this Note may not be
assigned by the Payee to any other person or entity.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF INDIANA APPLICABLE TO CONTRACTS
EXECUTED, AND TO BE FULLY PERFORMED IN SUCH STATE.
The Borrower hereby waives presentment for payment, demand, notice of demand, notice
of non-payment, protest, notice of protest and all other similar notices.
Time is of the essence for this Note.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Promissory
Note as of the date first written above.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
INDS01 ]BAXTER 1034061v2
I GE TO PROAUSSORY NOTE
(Charter One) -
"BORROWER"
CARLISLE PARTNERS BUILDING C, LLC,
an Indiana limited liability company
By:
Printed: Michael S. Curless
Executive We President
Title:
IN1DS01 JBA=R 1034061
$19,223,865 May 2, 2008
FOR VALUE RECEIVED, the undersigned, CARLISLE PARTNERS BUILDING C,
LLC (the `Borrower'), hereby promises to pay to the order of THE HUNIINGTON
NATIONAL BANK (the "Pa
at the principal office of RBS Citizens, National Association,
d/bla Charter One (the "Agent). in Indianapolis, Indiana, or at such other address as may be
specified in writing by the Agent to the Borrower, the principal sum of NINETEEN MILLION
TWO HUNDRED TWENTY-THREE THOUSAND EIGHT HUNDRED SIXTY-FIVE
DOLLARS. ($19,223,865.00) (the "Loan") or so much thereof as may be advanced from time to
time, and interest from the date hereof on the balance of principal from time to time outstanding,
in United States currency, at the rates and at the times described in the Loan Agreement (as
hereinafter defined).
This Note is issued by Borrower pursuant to that certain Construction Loan Agreement of
even date herewith by and among Payee, Agent, as agent and a lender, and Borrower (the "Loan
Agreement" ). Payment of this Note is governed by the Loan Agreement, the terms of which are
incorporated herein by express reference as if fully set forth herein. Capitalized terms used and
not otherwise defined herein shall have the meanings given to them in the Loan Agreement.
The Loan Agreement provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of the Loan upon the terms and conditions
specified therein.
Except as permitted by Section 9.01 of the Loan Agreement, this Note may not be
assigned by the Payee to any other person or entity.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE. LAWS OF THE STATE OF INDIANA APPLICABLE TO CONTRACTS
EXECUTED, AND TO BE FULLY PERFORMED IN SUCH STATE.
The Borrower hereby waives presentment for payment, demand, notice of demand, notice
of non-payment, protest, notice of protest and all other similar notices.
Time is of the essence for this Note.
. IN WITNESS WHEREOF, the undersigned has executed and delivered this Promissory
Note as of the date first written above.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
MS01 JBAXTER 1034Mv2
PAGE TO PROMISSORY NOTE
"BORROWER"
CARLISLE PARTNERS BUILDING C, LLC,
an Indiana limited liability company
By:
Printed: Michael S. Curless
Executive Vice President
Title:
INDS01 !BAXTER 1034068
Exhibit E
r'
I-Al b
G REQUESTED BY
nd Services USA, Inc
North Church Street, Ste 100
stChester, PA 19380
to- S&0 Z.
No.: 31-11-0298-037UC
ASSIGNMENT OF MORTGAGE
RBS CITIZENS, NATIONAL ASSOCIATION, d/b/a Charter One, having an address at
777 Franklin Road, Southfield, Michigan 48034 (the "Assignor"), the lawful owner and
lder of that certain mortgage (the "Mortgage") more particularly described in Exhibit A
ached hereto, for good and valuable consideration paid to it by KTR PA CENT LLC having an
dress c/o KTR Capital Partners, 300 Barr Harbor Drive, Suite 150, Conshohocken,
nnsylvania 19428, together with their successors and assigns (the "Assignee"), hereby assigns
to the Assignee, the Mortgage, together with the note or obligations described.in or secured by
d Mortgage and the money due and to become due thereunder with interest accrued thereon to
date hereof, said Mortgage covering premises more particularly described on Schedule A
ached hereto.
This Assignment is made without any representation or warranty whatsoever by the
gnor and upon the express condition, understanding and agreement by the Assignee, and by
successor to the interest of the Assignee in said Mortgage and the note or any other
ration secured thereby, that this Assignment is made without recourse to Assignor for any
e whatsoever.
IN WITNESS WHEREOF, the Assignor has duly executed this Agreement, dated
7, 2011, but intended to be effective on January 11, 2011.
[Remainder of Page Intentionally Left Blank]
[Signature Page to Assignment of Mortgage]
1WN Vi 1.1L.JL1\.N= 1\A 11V1\L1L CINNV ViL-111V1\?
d/b/a Curter On,En
By:
Joseph Dennison
Senior Vice President
'ATE OF M i c- 14 1 6-14 ---1 )
SS:
)LINTY OF CA K L,41J zj )
On the?t day of January in the year 2011 before me, the undersigned, a notary public in
d for said state, personally appeared Joseph Dennison, personally known to me or proved to
m 11 on the basis of satisfactory evidence to be the individual whose name is subscribed to the
thin instrument and acknowledged to me that he/she executed the same in his/her capacity and
th it by his/her signature on the instrument, the individual, or the person upon behalf of which the
in ividual acted, executed the instrument.
y?yypii3834:dei J
Fj
Notary Public
KAREN J. DUFF
^ < °? s )VOTARY PUBLIC - MICHIGAN
«c AJtACG":;? CVJi -(
Y i"Y
ti . 4, B coiv?IISS!ON EXP RES l N'i,-H 9, 2014
fr ;4 ACTING IN 0 A K L AD DCOUNTY
EXHIBIT A
pen=End -Mortgage- Security Agreement and Fixture Filing- dated -May _ 1, 2008, recorded on
ay 15, 2008 as Instrument Number 200816093 with the Recorder of Deeds, Cumberland
ounty, Pennsylvania, from Carlisle Partners Building C, LLC in favor of RBS Citizens,
ational Association, d/b/a Charter One, in the amount of $38,447,730.
SCHEDULE A
J
l?
First American Title Insurance Company
ExhibitA
File No.: PAFAID-5802 GD
ALL.THAT CERTAIN unit in the property known, named and identified in the Declaration referred to below as "Key
Logistics Park Condom num located in the Township of Penn, County of Dumberland and Commonwealth of
Pennsylvania, which has.been heretofore submitted to the provisions of the Pennsylvania Uniform Condominium Act, 68
Pa. C,B. §3101 et seq., as amended, by the recording in the Office for the Recording of Deeds in and for the County of
Cumberland of a Declaration of Condominium of Key Logistics Park Condominium dated May t, 2008 and recorded as
Instrument No. 200816086 and amended as in Instrument No. 200832278, being and designated in such Declaration as
"Unit C together with a proportionate undivided interest in the Common Elements (as defined in such Declaration) of
such condominium of 38.5757'/6.
BEING the same. Premises which Key Logistics Park, L.P., a Pennsylvania limited partnership by Deed dated May 01,
2008 and recorded May 15, 2008 in the.Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in
Instrument Number 200816088 granted and conveyed unto Carlisle Partners Building C, LLC, an Indiana limited liability
company.
-- ,:,, ,, >? rage b ors Multipurpose Exhibit A
*
*
*
*
*
S
S
ROBERT P. ZIEGLER
RECORDER OF DEEDS
CUMBERLAND COUNTY
-1 COURTHOUSE SQUARE---
CARLISLE, PA 17013
717-240-6370
ment Number - 201101799
led On 1/13/2011 At 11:34:32 AM
ment Type - ASSIGNMENT OF MORTGAGE
e Number - 80404 User ID - MSW
agor - RBS CITIZENS N A
agee - KTR PA CENT LLC
ner - LAND SERVICES USA INC
WRIT TAX $0.50
JCS/ACCESS TO $23.50
NG FEES - $13.50
R OF DEEDS
CERTIFICATION $10.00
TY ARCHIVES FEE $2.00
fFEE $3.00
PAID $52.50
3
a
* Total Pages - 6
Certification Page
DO NOT DETACH
This page is now part
of this legal document.
I Certify this to be recorded
in Cumberland County PA
cV: cuiyeF
0r ?v ?
4 RECORDER 0 S
r?so
* - Information denoted by an asterisk may change during
the verification process and may not be reflected on this page.
IIIIIIIIII'III? IIIIIIIII
Exhibit F
GUARANTY OF COMPLETION OF IMPROVEMENTS
PURSUANT TO CONSTRUCTION LOAN AGREEMENT
This Guaranty of Completion ("Guaranty") is made as of the 2nd day of May, 2008, by
LAUTH GROUP, INC., an Indiana corporation ("Guarantor") in favor of RBS CITIZENS,
NATIONAL ASSOCIATION, a national banking association d/b/a Charter One, its successors
and assigns, as. agent for the Lenders (as hereinafter defined) ("Agent"), to guarantee certain
obligations of CARLISLE PARTNERS BUILDING C, LLC, an Indiana liability company
("Borrower").
RECITALS:
A. Borrower, Agent and the lenders identified in the Loan Agreement (as hereinafter
defined) (the "Lenders ')are of even date herewith entering into that certain Construction Loan
Agreement (the "Loan Agreement"), pursuant to which Lenders have agreed to make to
Borrower and Borrower has agreed to accept from Lenders a certain Thirty-Eight Million Four
Hundred Forty-Seven Thousand Seven Hundred Thirty Dollar ($38,447,730) construction loan
(the "Loan").
B. The proceeds of the Loan will be used to finance the costs of constructing and
developing the Improvements (as defined in the Loan Agreement), upon certain real property
owned by Borrower and located at Cumberland County, Pennsylvania (the "Premises") (the
Premises and the Improvements are hereinafter referred to from time to time as, collectively, the
"Project" );
C. The Loan is evidenced by those certain Promissory Notes of even date herewith in
the aggregate principal amount Thirty-Eight Million Four Hundred Forty-Seven Thousand Seven
Hundred Thirty Dollars ($38,447,730) described on Schedule 1 attached hereto (the "Notes").
D. The Notes are secured, in part, by that certain Open-End Mortgage and Security
Agreement (and Fixture Filing) of even date herewith executed by Borrower in favor of Agent
(the "Mortear?e') (the Loan Agreement, the Notes, the Mortgage and all other documents
evidencing, governing and securing the Loan being referred to herein collectively as the "Loan
Documents"); and
E. Lenders are unwilling to enter into the Loan Agreement and to make the Loan
unless Guarantor delivers this Guaranty to Agent on behalf of Lenders.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and in order to induce Lenders to
enter into the Loan Agreement and to make the Loan to Borrower subject to the terms and
conditions of the Loan Agreement, and for other good and valuable consideration, the receipt and.
sufficiency of which are hereby acknowledged, and further acknowledging that Lenders intend to
rely on the guaranty of Guarantor hereunder, Guarantor hereby agrees as follows:
I4DS01 JBAXTER 1031696v2
DEFINITIONS AND INTERPRETATIONS. As used herein, the following
capitalized terms shall have the following meanings:
"Available Loan Proceeds" shall mean the principal amount of the Loan which has not
yet been advanced to or for the benefit of Borrower as of any point in time for the
payment of Project Costs (as defined in the Loan Agreement) in accordance with the Cost
Breakdown (as defined in the Loan Agreement).
"Borrower" shall mean Borrower and its successors and assigns.
"Debtor Relief Law" shall mean the United States Bankruptcy Code, and any other
applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, suspension of payments, or similar debtor relief
law, from time to time in effect affecting the rights of creditors generally.
"Plans and Specifications" shall have the meaning ascribed to it in the Loan Agreement.
"Project Costs" shall have the meaning ascribed to it in the Loan Agreement.
"Substantial Completion Date" shall mean the date that the bulk distribution building to
be constructed upon the Premises pursuant to the Loan Agreement has been constructed
and completed substantially in accordance with the Plans and Specifications, subject to
only minor deviations, and all requirements of any governmental authority (including the
issuance of a certificate of occupancy), provided however, substantial completion shall
not include any remaining tenant work/improvements that Borrower is obligated to
perform pursuant to any leases for the Project which were entered into by Borrower.
"UCC" shall mean the Uniform Commercial Code, as adopted in Indiana.
Capitalized words and phrases that are used herein and not defined shall have the meaning
ascribed to them in the Loan Documents. Any defined term used in the plural shall refer to all
members of the relevant class, and any defined term used in the singular shall refer to any of the
members of the relevant class. Any defined term used herein that is a document, instrument,
drawing, survey, map, plan, technical description or other writing, and any other reference herein
to a writing, shall include the original of such writing and any and all amendments, supplements,
modifications, renewals, extensions, restatements, reinstatements, rearrangements, enlargements,
or replacements of or to the same from time to time.
2. OBLIGATIONS GUARANTEED. In consideration of Lenders entering into
the Loan Agreement and agreeing to make the Loan, and upon the terms and provisions hereof,
Guarantor hereby irrevocably, absolutely and unconditionally warrants and guarantees to
Lenders the payment and performance of the following (the "Guaranteed Obligations 1), when
due, whether by their terms, by acceleration, or otherwise: (a) that Guarantor shall cause
construction and development of the Project to be completed on or before the Completion Date
(as defined in the Loan Agreement); (b) that Guarantor shall cause the Project to be constructed
and completed substantially in accordance with the Plans and Specifications, the Loan
INDS01 1BAMR 1031696x2
2
Documents and all requirements of any governmental authority without deviation unless
approved by Agent, in writing, or specifically permitted by applicable provisions of the Loan
Agreement; (c) that Guarantor shall cause the Project to be developed, constructed and
completed free and clear of all mechanics', materialmens' liens and other liens relating to any
work or materials provided for the development and construction of the Project other than those
in favor of the Agent or as otherwise specifically permitted under the terms of the Mortgage;
(d) that Guarantor shall cause all Project Costs to be paid when due, including all costs in excess
of those set forth in the budget whether resulting from: (i) change orders; (ii) delays in obtaining
any approvals from any governmental authority that are required for the construction,
development, use, or occupancy of the Project (the "Approvals'); or (iii) any changes in the
Plans and Specifications required as a condition to obtaining any Approval; and (e) that
Guarantor shall cause Borrower to fully perform (or that Guarantor shall perform for Borrower)
all obligations, covenants and agreements of Borrower under or pursuant to the Loan Documents
with respect to or in connection with the completion of the construction of the Project.
Guarantor further guarantees the payment and performance of the Guaranteed Obligations
whether or not the same arise during or after the time that Borrower is the owner of the Premises,
whether subsequent owners of the Premises acquire the Premises by voluntary or involuntary
means, by foreclosure or deed in lieu of foreclosure, or otherwise and notwithstanding that other
persons or entities may be the subsequent owners of the Premises. Notwithstanding anything
expressed or implied herein to the contrary, the following limitations shall apply with respect to
the amounts collectible under this Guaranty, and such matters shall not be deemed to be included
within the scope of the Guaranteed Obligations:
A. The Guaranteed Obligations shall not include the following: (i) any interest which
accrues under the Loan after the Substantial Completion Date, (ii) any operating
expenses or maintenance reserve requirements which accrue or are due and
payable in connection with the Project after the Substantial Completion Date, (iii)
any tenant improvements for the Project which are to be performed in connection
with any lease for the project which is not entered into by Borrower.
B. Upon the Substantial Completion Date, the Guaranteed Obligations with respect
to construction items shall be limited solely to (i) any site work for the Project
with remains unfinished as of such date and (ii) any remaining tenant
worklimprovements that Borrower is obligated to perform pursuant to any leases
for the Project which were entered into by Borrower.
C. Agent and Lenders may not recover any amounts under this Guaranty which are
attributable to any interest, expenses, costs or other items for which Agent or
Lenders have received or will receive payment from Lauth Investment Properties,
LLC under, or in connection with, that certain Guaranty of Payment of even date
herewith, executed by Lauth Investment Properties, LLC in favor of Agent in
connection with the Loan.
D. This Guaranty shall not be deemed to constitute a guaranty of the payment of any
of the principal from time to time outstanding under the Loan.
INDS01 JBAXTER 1031696v2
3. CONSIDERATION. Guarantor acknowledges that Guarantor has made this
Guaranty to induce Lenders to make advances to Borrower of the Loan and that Lenders are
making such advances to Borrower in reliance upon this Guaranty and would not make such
advances without the appropriate execution and delivery of this Guaranty.
Guarantor represents and warrants that Guarantor has a financial interest in Borrower and
will receive economic benefit by reason of Lenders extending the Loan to Borrower; provided,
however, that Guarantor's liability hereunder shall not be affected or impaired by Guarantor's
disposition or loss of its financial interest in Borrower or by reason of Lenders' refusal in
accordance with the terms of the Loan' Documents to make advances under the Loan to
Borrower.
4. OBLIGATIONS OF GUARANTOR UPON DEFAULT. If an Event of
Default should occur that is a failure by any party to pay or to perform any part of the
Guaranteed Obligations when due, Guarantor shall, within thirty (30) days after written demand
of Agent to Guarantor: (a) cure such failure to pay and/or commence to perform diligently,
continuously and in good faith the applicable part of the Guaranteed Obligations, in which event
the Guarantor, upon paying or performing same, shall be entitled, subject to the terms and
provisions of (i), (ii), and (iii) of this Section 4, then and thereafter to receive any Available Loan
Proceeds pursuant to the provisions of the Loan Agreement as if no Event of Default had
occurred; (b) diligently procure completion of the Improvements at Guarantor's sole cost and
expense; (c) fully pay and discharge all claims, including for labor performed and material and
services fiunished in connection with the construction of the Project, subject to the provisions of
the Loan Documents, including the right thereunder to contest such claims; and (d) pay Agent all
reasonable attorneys' fees and costs Agent incurs in enforcing the performance or the payment of
the Guaranteed Obligations in excess of the Available Loan Proceeds, with interest at the Default
Rate on all past due portions of, and/or sums Agent has advanced to satisfy portions of, the
Guaranteed Obligations pursuant to the Loan Agreement. Agent agrees that: (i) in the event that
and so long as Guarantor is not in default of the terns, conditions, provisions, and obligations
hereunder beyond applicable grace periods; (ii) in the event that and so long as Guarantor is
timely paying or performing the Guaranteed Obligations as required herein based on the written
request of Agent and without the requirement of any legal proceeding to enforce the same; and
(iii) after Guarantor commences and diligently and continuously continues, in good faith, to pay
or perform the Guaranteed Obligations after written request of Agent, there is no further failure
by Guarantor in payment or performance of the Guaranteed Obligations hereunder, Agent shall
continue to advance any Available Loan Proceeds then available pursuant to the provisions of the
Loan Agreement as if no Event of Default had occurred and shall not institute foreclosure
proceedings under the Mortgage or charge interest at the Default Rate under the Loan during the
period after which Guarantor first pays or performs a portion of the Guaranteed Obligations after
written request of Agent and prior to the date that one of the conditions described in items (i),
(ii), and (iii) is no longer met. It is expressly understood and agreed that Agent may institute
such foreclosure proceedings and/or charge interest at the Default Rate under the Loan,
notwithstanding Guarantor's compliance and timely performance hereunder, should any Event of
Default exist that is not cured promptly after: (a) receipt by Guarantor of notice thereof, or (b) a
demand by Agent to Guarantor pursuant to this Section 4. Anything in this Guaranty to the
contrary notwithstanding, Guarantor further agrees to indemnify and hold harmless Agent and
1NDS01 JBAXnM 10316%v2
4
Lenders against any loss, damage, cost or expense (including reasonable attorneys' fees and
costs) that Agent or Lenders may suffer or incur by reason of the breach or failure of Guarantor's
undertakings and agreements pursuant to this Guaranty. Notwithstanding anything expressed or
implied herein to the contrary, Guarantor's obligation to pay and perform the Guaranteed
Obligations is expressly contingent upon Lenders advancing any Available Loan Proceeds to
Guarantor to pay for the costs incurred by Guarantor in connection with Guarantor's payment
and performance of the Guaranteed Obligations. Such advancements shall be made in
accordance with the terms and conditions of the Loan Agreement, including, but not limited to,
the requirements and limitations set forth in Article V of the Loan Agreement, provided
however, that Lenders may not refuse to make any advancement of the Available Loan Proceeds
because of any Event of Default under the Loan Documents which is attributable to any party
other than Guarantor. If the Project is still owned by Borrower, then all Available Loan Proceeds
so advanced shall be deemed to be advancements made to or for the benefit of Borrower and
Guarantor shall have no personal liability for the repayment of any portion of the Loan. If the
Project is then owned by Agent, then all such funds so applied by Agent shall not be deemed to
be advancements made to or for the benefit of Borrower but rather payments made for the
account of Agent and neither Borrower nor Guarantor shall have any personal liability for the
repayment of any portion of such proceeds.
5. TERMINATION. The obligations of Guarantor hereunder shall terminate on the
earlier of the date that (a) all indebtedness of Borrower to Lenders in connection with the Loan
has been fully paid, or (b) all Guaranteed Obligations shall have been fully satisfied. For
purposes of determining if the obligations of Guarantor have terminated pursuant to this
paragraph, if the construction and development of the Project was completed at a point in time
after the Completion Date and all of the other Guaranteed Obligations have been fully satisfied,
then obligations of Guarantor hereunder shall be deemed to have terminated.
6. GUARANTY OF PAYMENT AND PERFORMANCE. This Guaranty is not a
guaranty of collection, but rather this Guaranty is an irrevocable, absolute, and unconditional
guarantee of payment and performance; and if any part of the Guaranteed Obligations becomes
payable or performable and is not paid or performed by Borrower as and when required in the
Loan Documents beyond the expiration of any grace or cure period provided for therein,
Guarantor shall pay or perform the same within thirty (30) days after written demand by Agent to
Guarantor; provided, however, that if the Guaranteed Obligation is non-monetary and is not
susceptible of being performed within thirty (30) days but is susceptible of being performed
within a reasonable period of time, as determined by Agent in its sole discretion, Guarantor shall
be deemed to be complying with its obligations hereunder if Guarantor commences performance
in good faith within such thirty (30) day period and thereafter diligently, without interruption,
continues to perform such Guaranteed Obligation and such performance is, in fact, completed
within a reasonable period of time, as determined by Agent in its sole discretion. Borrower and
Guarantor further acknowledge and agree that this Guaranty is not subject to any exculpatory
provision contained in any of the Loan Documents otherwise limiting Agent's recourse to the
Premises or to any other security for the Loan or limiting Agent's rights to a personal and/or
deficiency judgment against Borrower or any other guarantor.
rNDS01 ]BAXTER 10316%v2
5
7. JOINT AND SEVERAL OBLIGATIONS. If this Guaranty is made by more
than one Guarantor, then the liability of Guarantor hereunder shall be joint and several with
every other Guarantor, each provision hereof shall apply to Guarantor individually and all
guarantors collectively and Agent may seek to enforce this Guaranty against any one or more
guarantors (and less than all guarantors) without impairing the rights of Agent against any other
guarantors.
8. CONTINUING GUARANTY. This is a continuing Guaranty, and shall apply to
and cover all of the Guaranteed Obligations and all renewals and extensions thereof until the
termination date of Guarantor's obligations hereunder as established pursuant to Section 5
hereof.
9. INDEPENDENT OBLIGATION. The obligations of Guarantor hereunder are
independent of the obligations of Borrower, or any other person; and Agent may enforce any of
Agent's rights hereunder independently of any other right or remedy that Agent may at any time
hold with respect to the Guaranteed Obligations or any security or other guaranty therefor.
Without limiting the generality of the foregoing, Agent may bring a separate action against
Guarantor without first proceeding against Borrower, any other Guarantor or any other person, or
any security held by Agent, and regardless of whether Borrower or any other Guarantor or any
other Person is joined in any such action. Agent's rights hereunder shall not be exhausted by any
action taken by Agent until all Guaranteed Obligations have been fully paid and performed or
until the obligations of Guarantor hereunder terminate pursuant to Section 5 hereof. The liability
of Guarantor hereunder shall be reinstated and revived, and the rights of Agent shall continue,
with respect to any amount at any time paid on account of the Guaranteed Obligations that shall
thereafter be required to be restored or returned by Agent upon the bankruptcy, insolvency, or
reorganization of Borrower, any other Guarantor or any other person, or otherwise, all as though
such amount had not been paid.
10. RELATIONSHIP OF PARTIES. Guarantor hereby represents and warrants
that: (a) this Guaranty is executed at Borrower's request; (b) Guarantor has reviewed all of the
terms and provisions of the Plans and Specifications, the Loan Agreement, and the other Loan
Documents; (c) Agent has made no representation to Guarantor as to any of the matters
described in previous items (a) and (b); and (d) Guarantor has established adequate means of
obtaining from Borrower and from other sources, on a continuing basis, financial and other
information pertaining to Borrower's financial condition, the Project, and the progress of
construction.
11. REMEDIES. If Guarantor shall fail to perform Guarantor's obligations
hereunder, then Agent shall have the right to, in addition to and cumulative of any other remedies
Agent may have hereunder, under the Loan Documents or at law or in equity, at Agent's option
and without any obligation to do so, upon giving prior written notice to Guarantor, proceed to
pay and/or perform the Guaranteed Obligations on behalf of Guarantor and/or Borrower, and
Guarantor shall, upon demand, pay to Agent all such sums expended by Agent in the payment
and performance of the Guaranteed Obligations, with interest thereon at the Default Rate.
INDS01 JBAX M 10316%v2
6
12. APPLICATION OF PAYMENTS. Unless otherwise required by law or a
specific agreement to the contrary, all payments received by Agent from Borrower, or any party
other than Guarantor, with respect to the Guaranteed Obligations shall be applied by Agent to the
Guaranteed Obligations in such manner and order as Agent desires, in Agent's sole discretion.
Unless otherwise required by law or a specific agreement to the contrary, all payments received
by Agent from Guarantor shall be applied by Agent to the Guaranteed Obligations in such
manner and order as Agent desires in Agent's sole discretion.
13. WAIVER. Guarantor hereby expressly waives, to the extent permitted by
applicable law:
A. Notice of the acceptance of this Guaranty by Agent and Lenders;
B. Notice of any advances made or credit extended to Borrower on the faith of this
Guaranty and of the execution and delivery by Borrower of any documents
evidencing, securing, or pertaining to the Guaranteed Obligations;
C. Notice of, and the right to consent to, Agent's assignment of the benefits of this
Guaranty;
D. Except as otherwise specifically provided herein, (i) notice of the failure of
Borrower to pay or perform any of the Guaranteed Obligations when due; and (ii)
notice of any default by Borrower under any document evidencing, securing, or
pertaining to any of the Guaranteed Obligations;
E. The right to receive any notices allowed or required to be sent to Borrower under
any provision of any document evidencing, securing, or pertaining to the
Guaranteed Obligations;
F. Protest, demand, and dishonor, presentment, or any other notices or demands or
diligence of any kind that might otherwise be required by any statute or rule of
law now or hereafter in effect with respect to this Guaranty or any of the
Guaranteed Obligations;
G. All rights Guarantor might otherwise have to require Agent or Lenders, as a
condition to requiring Guarantor to perform hereunder, to first: (i) institute suit,
obtain a judgment, or exhaust any remedies against Borrower or any others liable
on such obligations, or against any of Borrower's properties or the properties of
anyone liable for such obligations; (ii) enforce any rights against any security that
shall ever have been given to secure such obligations; (iii) make any other efforts
at collection; or (iv) require Agent to join Borrower as a party in any suit on this
Guaranty;
H. Any defense based upon Agent's election of any remedy against Guarantor, any
or all of any other Guarantor or Borrower, or any combination of such parties,
including without limitation election by Agent to exercise its rights of foreclosure
INDS01 JBAXTER 1031696v2
7
set forth in the Mortgage and the consequent loss by Guarantor of the right to
recover any deficiency from Borrower;
I. Any defense based upon Agent's or Lenders' failure to disclose to Guarantor any
information concerning Borrower's financial condition or any other circumstances
bearing on Borrower's ability to pay and perform Borrower's obligations under
the Loan Agreement and the other Loan Documents;
J. The right to exercise any right of subrogation, any right to enforce any remedy
that Agent may have against Borrower and any right to participate in, or benefit
from, any security for the Note or the other Loan Documents now or hereafter
held by Agent, prior to the time that this Guaranty is fully paid; and
K. Any and all benefits that might otherwise be available to Guarantor under
applicable law.
14. GUARANTY UNIMPAIRED BY SUBSEQUENT EVENTS. Except as
otherwise provided herein, Guarantor hereby expressly waives the right to receive notice of, to
consent to, or receive any additional consideration on account of any of the following, and
Guarantor hereby agrees that its obligations under this Guaranty shall not be released,
diminished, impaired, reduced, or otherwise affected by the occurrence of any of the following
events (or the fact that any of such events have occurred):
A. The amendment, renewal, extension, restatement, or assignment of any part or all
of the Guaranteed Obligations or any of the Plans and Specifications, the Loan
Documents, or other documents evidencing, securing, or pertaining thereto, or any
other forbearance or agreement by Agent to accept a deferred payment or
performance of any Guaranteed Obligations;
B. The cancellation of any part of the Guaranteed Obligations or the release of
Borrower, Guarantor, or any other Person from liability for all or any part of the
Guaranteed Obligations; it being acknowledged and agreed by Guarantor that
Guarantor may be required to pay or perform the Guaranteed Obligations in full
without the assistance or support of any other party, and Guarantor has not been
induced to enter into this Guaranty on the basis of any contemplation, belief,
understanding, or agreement that any other party shall at all times be liable to pay
or perform the Guaranteed Obligations or that Agent shall look to other parties to
pay or perform the Guaranteed Obligations;
C. The failure to perfect a lien (or the unenforceability of any lien) in any collateral
intended as security for any part of the Guaranteed Obligations; or the release of,
the surrender of, the exchange of, or the substitution of all or any part of such
collateral; or the subordination of any lien securing any of the Guaranteed
Obligations to any other lien or liens covering such collateral; or the deterioration,
waste, loss, or impairment (including without limitation, negligent, willful,
unreasonable, or unjustifiable impairment) of any such collateral; it being
[NMI ]BAXTER 1031696x2
8
acknowledged by Guarantor that Guarantor is not entering into this Guaranty in
reliance on or in contemplation of the benefits of any collateral for the Guaranteed
Obligations, the value thereof, or the validity or enforceability of any security
interest therein;
D. The addition of any collateral as security for, or the addition of any Person as a
party with liability for, the payment or performance of all or any part of the
Guaranteed Obligations;
E. Any action with respect to any of the Guaranteed Obligations or any documents
evidencing, securing, or pertaining thereto, including but not limited to, any
settlement or compromise of any amount due thereunder, the pursuit of any
particular remedy before any other remedy or the exercise of, or waiver or failure
to timely exercise, any right conferred thereunder, the exercise of such rights
being wholly discretionary with Agent;
F. Any change in the composition, status, or form of organization, or the death,
insolvency, bankruptcy, disability, or lack of authority, of Borrower or any Person
at any time liable for the payment or performance of all or any part of the
Guaranteed Obligations;
0. Any neglect, delay, omission, failure, or refusal of Agent to foreclose on any
collateral for the Guaranteed Obligations or to sue or take any other action to
enforce the collection or performance of all or any part of the Guaranteed
Obligations or any right contained in any document evidencing, securing, or
pertaining thereto; or
H. The failure of Agent to exercise diligence, commercial reasonableness or
reasonable care in the preservation, protection, enforcement, sale, or other
handling of all or any part of the collateral for any of the Guaranteed Obligations
or in bringing suit against Borrower, other guarantor, or any other party to enforce
any of the Guaranteed Obligations or any other liability of any such party.
15. AUTHORITY TO MODIFY GUARANTEED OBLIGATIONS. Guarantor
authorizes Agent and Lenders, at any time and from time to time without notice and without
affecting the liability of Guarantor hereunder, (a) to alter, with Borrower's or Guarantor's
consent, the terms of all or any part of the Guaranteed Obligations (other than this Guaranty) and
any security and guaranties therefor, including without limitation modification of times for
payment and rates of interest; (b) to accept new or additional instruments, documents,
agreements, security, or guaranties in connection with all or any part of the Guaranteed
Obligations; (c) to accept partial payments on the Guaranteed Obligations; (d) to waive, release,
reconvey, terminate, abandon, subordinate, exchange, substitute, transfer, compound,
compromise, liquidate, and enforce all or any part of the Guaranteed Obligations and any
security or guaranties therefor, and apply any such security and direct the order or manner of sale
thereof (and bid and purchase at any such sale), as Agent, in Agent's sole discretion, may
determine; (e) to release Borrower, Guarantor, and/or any other Person from any personal
[NDS01 JBAXTER 1031696v2
9
liability with respect to all or any part of the Guaranteed Obligations; and (f) to assign this
Guaranty in whole or in part.
16. MISCELLANEOUS PROVISIONS.
A. Costs of Enforcement. If Agent incurs any reasonable attorneys' fees or costs in
enforcing or defending any provisions of this Guaranty and is the prevailing parry
with respect to the same or incurs any costs in collecting any amounts due
hereunder, with or without the hiring of an attorney or the filing of any legal
action or proceeding, Guarantor shall pay to Agent, immediately upon demand, all
such costs and the amount of all reasonable attorneys' fees incurred. Guarantor
also agree to pay interest at the Default Rate on the amount of any other payment
it is required to make hereunder that it fails to make when due.
B. Binding Effect. This Guaranty and all the terms, provisions, and conditions
hereof shall be binding upon Guarantor and Guarantor's successors, and assigns,
and this Guaranty shall inure to the benefit of Agent and its successors and
assigns and all subsequent holders of the Guaranteed Obligations.
C. Governing Law. This Guaranty is governed by the laws of the State of Indiana.
D. No Waiver. Any failure by Agent to insist, or any election by Agent not to insist,
upon strict performance by Guarantor of any of the terms, provisions, or
conditions of this Guaranty shall not be deemed to be a waiver of the same or of
any other terms, provisions, or conditions thereof; and Agent shall have the right
at any time or times thereafter to insist upon strict performance by Guarantor of
any and all of such terms, provisions, and conditions.
E. Agent Completion of Project. If Guarantor defaults in the performance of its
obligations hereunder, then Agent may elect to complete the Improvements. In
such event, Guarantor's liability under this Section 16E shall include the cost and
expense to Agent, which is in excess of the Available Loan Proceeds which can
be applied to such costs as contemplated herein, of completing the Project in
accordance with the Plans and Specifications and all requirements of any
governmental authority (including, without limitation, interest at the Default Rate,
reasonable attorneys' fees, costs, and expenses, all costs Agent may have
previously advanced to satisfy portions of the Guaranteed Obligations, and all
other sums and amounts the payment of which is guaranteed by Guarantor
hereunder). In connection with such completion, Agent may make such changes
to the Plans and Specifications and/or Budget as Agent reasonably deems
necessary or as may be required by any governmental authority, provided
however, Guarantor shall have no liability for any increases in the costs of the
development and construction of the Project which are attributable to any changes
made to the Plans and Specifications and/or Budget by Agent unless such changes
are consented to in writing by Borrower or Guarantor.
1NDS01 JBAX MR 1031696v2
10
F. Financial Information. Guarantor agrees to furnish financial information with
respect thereto as provided in the Loan Agreement. Guarantor agrees that the
failure to furnish such financial statements and information shall constitute a
default or Event of Default pursuant to this Guaranty and the Loan Agreement
after written notice from Agent and a failure to cure such default within ten (10)
days thereafter Agent provides Guarantor notice of such failure.
17. JURY TRIAL WAIVER. Guarantor waives any right to have a jury participate
in resolving any dispute, whether sounding in contract, tort, or otherwise, between Agent, and
Guarantor arising out of, in connection with, related to, or incidental to this Guaranty.
18. NOTICES. Any notice, demand, request or other communication which any
party hereto may be required to may desire to give hereunder shall be in writing and shall be
deemed to have been properly given (i) if hand delivered or if sent by telecopy, effective upon
receipt or (ii) if delivered by a nationally recognized overnight courier service, effective on the
first delivery day following delivery to such courier service, or (iii) if mailed by United States
registered or certified mail, postage prepaid, return receipt requested, effective two (2) postal
delivery days after deposit in the United States mails, addressed in each case as follows:
To Agent: RBS Citizens, National Association
d/b/a Charter One
10333 North Meridian Street, Suite 350
Indianapolis, Indiana 46290
Attn.: Commercial Real Estate Department
with a copy to: Bames & Thornburg LLP
11 South Meridian Street
Indianapolis, Indiana 46204
Attn: John B. Baxter, Esquire
if to Guarantor: Lauth Group, Inc.
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: Gregory C. Gumik
with a copy to: Lauth Group, Inc.
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: General Counsel
19. APPLICATION OF AVAILABLE LOAN PROCEEDS. Notwithstanding
anything expressed or implied herein to the contrary, in the event Agent, for the benefit of the
Lenders, elects to pay and/or perform any of the Guaranteed Obligations, Lenders shall advance
and/or apply any Available Loan Proceeds to pay for any costs and expenses incurred by Lenders
in connection with Lenders' efforts to pay and/or perform the Guaranteed Obligations. If the
Project is still owned by Borrower, then all Loan proceeds so advanced shall be deemed to be
advancements made to or for the benefit of Borrower and Guarantor shall have no personal
INDS01 JBA-VMR 1031696v2
11
liability for the repayment of any portion of the Loan. If the Project is then owned by Agent,
then all such funds so applied by Agent shall not be deemed to be advancements made to or for
the benefit of Borrower but rather payments made for the account of Agent and neither Borrower
nor Guarantor shall have any personal liability for the repayment of any portion of such
proceeds. Guarantor's aggregate liability hereunder to reimburse Agent for the costs and
expenses incurred by Agent at any time in connection with Agent's payment and/or performance
of the Guaranteed Obligations shall be equal to the difference between (i) the total costs incurred
by Agent in connection with Agent's payment and/or performance of the Guaranteed Obligations
minus (ii) the aggregate amount of the Available Loan Proceeds which can be used to pay and/or
perform the Guaranteed Obligations.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty of Completion of
Improvements Pursuant to Construction Loan Agreement as of the date first above written.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
INDS01 JBAXnM 1031696J2
12
SIGNATURE PAGE TO GUARANTY OF COMPLETION OF IMPROVEMENTS
PURSUANT TO CONSTRUCTION LOAN AGREEMENT
"GUARANTOR"
STATE OF INDIANA )
SS:
COUNTY OF )
LAUTH GROUP, INC., an Indiana corporation
By: Al
Printed: Michael S. Curless
Executive Vice President
Title:
Before me, a Notary Public in and for said Coun and State appeared
m
l Wil t?. known to me to be the 1? • • of
LAUTH GROUP, INC., an Indiana corporation and acknowledged the execution of the
foregoing for and on behalf of said corporation.
Witness my hand and notarial seal this y of 2008.
`%p111118/// •
? NgTARy 4i
o
s?
Public
Name
My Co ssio Expires:
My County of Residence:
Aw-foll-L
INDS01 ]BAXTER 1031696
GUARANTY OF PAYMENT
(Lauth Investment Properties, LLC)
THIS GUARANTY OF PAYMENT (this "Guarant ') is dated as of the 2"a day of May,
2008 by LAUTH INVESTMENT PROPERTIES, LLC, an Indiana limited liability company
("Guarantor') for the benefit of RBS CITIZENS, NATIONAL ASSOCIATION, a national
banking association d/b/a Charter One, its successors and assigns, as agent for the Lenders (as
hereinafter defined) ("Agent").
RECITALS:
A. Agent and the lenders identified in the Loan Agreement (as hereinafter defined)
(the "Lenders") agreed to make a construction loan in the original principal amount of THIRTY-
EIGHT MILLION FOUR HUNDRED FORTY-SEVEN THOUSAND SEVEN HUNDRED
THIRTY DOLLARS ($38,447,730) (the "Loan") to Carlisle Partners Building C, LLC, an
Indiana limited liability company ("Borrower") pursuant to the terms and conditions of a
Construction Loan Agreement of even date herewith (the "Loan Agreement") by and among
Borrower and Lenders. All terms not otherwise defined herein shall have the meanings set forth
in the Loan Agreement.
B. As a condition precedent to Lenders' making of the Loan pursuant to the Loan
Agreement and in consideration therefor, Lenders have required the execution and delivery of
this Guaranty by Guarantor.
C. Guarantor has a financial interest in Borrower and has agreed to execute and
deliver this Guaranty to Agent for the benefit of Lenders.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which hereby are acknowledged, Guarantor hereby agrees as follows:
1. Guaranty of Payment. Guarantor hereby unconditionally and irrevocably
guaranties to Agent the punctual payment and performance when due, whether at stated maturity
or by acceleration or otherwise, of the indebtedness and other obligations of Borrower to Agent
and Lenders due to be paid or performed under the Loan Agreement, as evidenced by the Notes,
and any other amounts that may become owing by Borrower under the Loan Documents (such
indebtedness, obligations and other amounts are hereinafter referred to as "Payment
ObligELfions" ), subject to the limitation set forth in Section 20 below. This Guaranty is a present
and continuing guaranty of payment and not of collectibility, and Agent shall not be required to
prosecute collection, enforcement or other remedies against Borrower or any other guarantor of
the Payment Obligations, or to enforce or resort to any collateral for the repayment of the
Payment Obligations or other rights or remedies pertaining thereto, before calling on Guarantor
for payment. If for any reason Borrower shall fail or be unable to pay, punctually and fully, any
of the Payment Obligations, Guarantor shall pay such obligations to Agent in full immediately
upon demand, subject to the limitation set forth in Section 20 below. One or more successive
actions may be brought against Guarantor, as often as Agent deems advisable, until all of the
Payment Obligations are paid and performed in full, subject to the limitation set forth in
1NDS01 1BAXTER 1031560v2
Section 20 below. The Payment Obligations, together with all other payment and performance
obligations of Guarantor hereunder, are referred to herein as "Obligations."
2. Text Intentionaliv Omitted.
3. Representations and Warranties. The following shall constitute representations
and warranties of Guarantor and Guarantor hereby acknowledges that Agent intends to make the
Loans in reliance thereon:
a. Guarantor is not in default and to the best of Guarantor's knowledge, no
event has occurred that with the passage of time and/or the giving of notice will
constitute a default under any agreement to which Guarantor is a party, the effect of
which will impair performance by Guarantor of its obligations under this Guaranty. To
the best of Guarantor's knowledge, neither the execution and delivery of this Guaranty
nor compliance with the terms and provisions hereof will violate any applicable law, rule,
regulation, judgment, decree or order, or will conflict with or result in any breach of any
of the terns, covenants, conditions or provisions of any indenture, mortgage, deed of trust,
instrument, document, agreement or contract of any kind that creates, represents,
evidences or provides for any lien, charge or encumbrance upon any of the property or
assets of Guarantor, or any other indenture, mortgage, deed of trust, instrument,
document, agreement or contract of any kind to which Guarantor is a party or to which
Guarantor or the property of Guarantor may be subject.
b. There is not any litigation, arbitration, governmental or administrative
proceedings, actions, examinations, claims or demands pending, or to Guarantor's
knowledge, threatened that could adversely affect performance by Guarantor of his, her
or its obligations under this Guaranty.
C. Neither this Guaranty nor any statement or certification as to facts
previously furnished or required herein to be furnished to Agent by Guarantor, contains
any material inaccuracy or untruth in any representation, covenant or warranty or omits to
state a fact material to this Guaranty.
4. Continuine Guaranty. Guarantor agrees that performance of the Obligations by
Guarantor shall be a primary obligation, shall not be subject to any counterclaim, set-off,
abatement, deferment or defense based upon any claim that Guarantor may have against Agent,
the Lenders, Borrower, any other guarantor of the Obligations or any other person or entity, and
shall remain in full force and effect without regard to, and shall not be released, discharged or
affected in any way by, any circumstance or condition (whether or not Guarantor shall have any
knowledge thereof), including without limitation:
a. any lack of validity or enforceability of any of the Loan Documents;
b. any termination, amendment, modification or other change in any of the
Loan Documents, including, without limitation, any modification of the interest rate(s)
described therein;
WDSOI JHAXM 1031560Y2
2
C. any furnishing, exchange, substitution or release of any collateral securing
repayment of the Loan, or any failure to perfect any lien in such collateral;
d. any failure, omission or delay on the part of Borrower, Guarantor, any
other guarantor of the Obligations or Agent to conform or comply with any term of any
of the Loan Documents or any failure of Agent to give notice of any Event of Default;
e. any waiver, compromise, release, settlement or extension of time of
payment or performance or observance of any of the obligations or agreements contained
in any of the Loan Documents;
f. any action or inaction by Agent under or in respect of any of the Loan
Documents, any failure, lack of diligence, omission or delay on the part of Agent to
perfect, enforce, assert or exercise any lien, security interest, right, power or remedy
conferred on it in any of the Loan Documents;
g. any voluntary or involuntary bankruptcy, insolvency, reorganization,
arrangement, readjustment, assignment for the benefit of creditors, composition,
receivership, liquidation, marshalling of assets and liabilities or similar events or
proceedings with respect to Borrower, Guarantor or any other guarantor of the
Obligations, as applicable, or any of their respective property or creditors, or any action
taken by any trustee or receiver or by any court in any such proceeding;
h. any merger or consolidation of Borrower into or with any entity, or any
sale, lease or transfer of any of the assets of Borrower, Guarantor or any other guarantor
of the Obligations to any other person or entity,
i. any change in the ownership of Borrower or any change in the relationship
between Borrower, Guarantor or any other guarantor of the Obligations, or any
termination of any such relationship;
j. any release or discharge by operation of law of Borrower, Guarantor or
any other guarantor of the Obligations from any obligation or agreement contained in any
of the Loan Documents; or
k. any other occurrence, circumstance, happening or event, whether similar
or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might
constitute a legal or equitable defense or discharge of the liabilities of a guarantor or
surety or which otherwise might limit recourse against Borrower or Guarantor to the
fullest extent permitted by law.
5. Waivers. Guarantor expressly and unconditionally waives (i) notice of any of the
matters referred to in Section 4 above, (ii) all notices which may be required by statute, rule of
law or otherwise, now or hereafter in effect, to preserve intact any rights against Guarantor,
including, without limitation, any demand, presentment and protest, proof of notice of non-
payment under any of the Loan Documents and notice of any Event of Default or any failure on
the part of Borrower, Guarantor or any other guarantor of the Obligations to perform or comply
with any covenant, agreement, term or condition of any of the Loan Documents, (iii) any right to
INDS01 JBAXTER 1031560x2
3
the enforcement, assertion or exercise against Borrower, Guarantor or any other guarantor of the
Obligations of any right or remedy conferred under any of the Loan Documents, (iv) any
requirement of diligence on the part of any person or entity, (v) to the fullest extent permitted by
law and except as otherwise expressly provided in this Guaranty or the other Loan Documents,
any claims based on allegations that Agent has failed to act in a commercially reasonable manner
or failed to exercise Agent's so-called obligation of good faith and fair dealing, (vi) any
requirement to exhaust any remedies or to mitigate the damages resulting from any default under
any of the Loan Documents, and (vii) any notice of any sale, transfer or other disposition of any
right, title or interest of Agent under any of the Loan Documents.
6. Subordination. Guarantor agrees that any and all present and future debts and
obligations of Borrower to Guarantor hereby are subordinated to the claims of Agent and hereby
are assigned by Guarantor to Agent as security for the Obligations and Guarantor's obligations
under this Guaranty.
7. Subrouation Waiver. Until the Obligations are paid in full and all periods under
applicable bankruptcy law for the contest of any payment by Guarantor or Borrower as a
preferential or fraudulent payment have expired, Guarantor knowingly, and with advice of
counsel, waives, relinquishes, releases and abandons all rights and claims to indemnification,
contribution, reimbursement, subrogation and payment which Guarantor may now or hereafter
have by and from Borrower and the successors and assigns of Borrower, for any payments made
by Guarantor to Agent, including, without limitation, any rights which might allow Borrower,
Borrower's successors, a creditor of Borrower, or a trustee in bankruptcy of Borrower to claim in
bankruptcy or any other similar proceedings that any payment made by Borrower or Borrower's
successors and assigns to Agent was on behalf of or for the benefit of Guarantor and that such
payment is recoverable by Borrower, a creditor or trustee in bankruptcy of Borrower as a
preferential payment, fraudulent conveyance, payment of an insider or any other classification of
payment which may otherwise be recoverable from Agent.
8. Reinstatement. The obligations of Guarantor pursuant to this Guaranty shall
continue to be effective or automatically be reinstated, as the case may be, if at any time payment
of any of the Obligations or Guarantor's obligations under this Guaranty is rescinded or
otherwise must be restored or returned by Agent upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of Guarantor or Borrower or otherwise, all as though such payment
had not been made.
9. Financial Statements. Guarantor represents and warrants to Agent that (a) the
financial statements of Guarantor previously submitted to Agent are true, complete and correct in
all material respects, disclose all actual and contingent material liabilities, and fairly present the
financial condition of Guarantor, and do not contain any untrue statement of a material fact or
omit to state a fact material to the financial statements submitted or this Guaranty and (b) no
material adverse change has occurred in the financial statements from the dates thereof until the
date hereof.
10. Transfers, Sales, Etc. Guarantor shall not sell, lease, transfer, convey or assign
any of its assets, unless such sale, lease, transfer, conveyance or assignment is performed in the
ordinary course of its business consistent with past practices, and will not have a material
INDMI IsAXM 1091WO
4
adverse effect on the business or financial condition of the Guarantor or its ability to perform its
obligations hereunder. In addition, the Guarantor shall neither become a party to any merger or
consolidation, nor, except in the ordinary course of its business consistent with past practices,
acquire all or substantially all of the assets of, a controlling interest in the stock of, or a
partnership or joint venture interest in, any other entity.
11. Enforcement Costs. If. (a) after the occurrence of an Event of Default under the
Loan Agreement, this Guaranty is placed in the hands of one or more attorneys for collection or
is collected through any legal proceeding; (b) one or more attorneys is retained to represent
Agent in any bankruptcy, reorganization, receivership or other proceedings affecting creditors'
rights and involving a claim under this Guaranty, or (c) one or more attorneys is retained to
represent Agent in any other proceedings whatsoever in connection with this Guaranty, then
Guarantor shall pay to Agent upon demand all fees, costs and expenses incurred by Agent in
connection therewith, including, without limitation, reasonable attorney's fees, court costs and.
filing fees (all of which are referred to herein as "Enforcement Costs"), in addition to all other
amounts due hereunder.
12. Successors and Assi¢ns: Joint and Several Liability. This Guaranty shall inure
to the benefit of Agent for the benefit of Lenders and their respective successors and assigns.
This Guaranty shall be binding on Guarantor and the heirs, legatees, successors and assigns of
Guarantor. If this Guaranty is executed by more than one person, it shall be the joint and several
undertaking of each of the undersigned. Regardless of whether this Guaranty is executed by
more than one person, it is agreed that the undersigned's liability hereunder is several and
independent of any other guarantees or other obligations at any time in effect with respect to the
Obligations or any part thereof and that Guarantor's liability hereunder may be enforced
regardless of the existence, validity, enforcement or non-enforcement of any such other
guarantees or other obligations.
13. No Waiver of Rights. No delay or failure on the part of Agent to exercise any
right, power or privilege under this Guaranty or any of the other Loan Documents shall operate
as a waiver thereof, and no single or partial exercise of any right, power or privilege shall
preclude any other or further exercise thereof or the exercise of any other power or right, or be
deemed to establish a custom or course of dealing or performance between the parties hereto.
The rights and remedies herein provided are cumulative and not exclusive of any rights or
remedies provided by law. No notice to or demand on Guarantor in any case shall entitle
Guarantor to any other or further notice or demand in the same, similar or other circumstance.
14. Modification. The terms of this Guaranty may be waived, discharged, or
terminated only by an instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought. No amendment, modification, waiver or
other change of any of the terms of this Guaranty shall be effective without the prior written
consent of Agent.
15. Joinder. Any action to enforce this Guaranty may be brought against Guarantor
without any reimbursement or joinder of Borrower or any other guarantor of Borrower's
Obligations in such action.
INM01 )BAXTER 1031560W1
5
16. Severability. If any provision of this Guaranty is deemed to be invalid by reason
of the operation of law, or by reason of the interpretation placed thereon by any administrative
agency or any court, Guarantor and Agent shall negotiate an equitable adjustment in the
provisions of the same in order to effect, to the maximum extent permitted by law, the purpose of
this Guaranty and the validity and enforceability of the remaining provisions, or portions or
applications thereof, shall not be affected thereby and shall remain in full force and effect.
17. Applicable Law. This Guaranty is governed as to validity, interpretation, effect
and in all other respects by laws and decisions of the State of Indiana.
18. Notice. All notices, communications and waivers under this Guaranty shall be in
writing and shall be (i) delivered in person or (ii) mailed, postage prepaid, either by registered or
certified mail, return receipt requested, or (iii) by overnight express carrier, addressed in each
case as follows:
To Agent: RBS Citizens, National Association
d/b/a Charter One
10333 North Meridian Street, Suite 350
Indianapolis, Indiana 46290
Attn.: Commercial Real Estate Department
with a copy to: Barnes & Thornburg LLP
11 South Meridian Street
Indianapolis, Indiana 46204
Attn: John B. Baxter, Esquire
if to Guarantor: Lauth Investment Properties, LLC
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: Michael S. Curless
with a copy to: Lauth Investment Properties, LLC
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: General Counsel
or to any other address as to any of the parties hereto, as such party shall designate in a written
notice to the other party hereto. All notices sent pursuant to the terms of this Section 18 shall be
deemed received (i) if personally delivered, then on the date of delivery, (ii) if sent by overnight,
express carrier, then on the next federal banking day immediately following the day sent, or (iii)
if sent by registered or certified mail, then on the earlier of the third federal banking day
following the day sent or when actually received.
19. Guarantor Covenants. So long as this Guaranty remains in force and effect,
Guarantor shall maintain (a) Unencumbered Liquidity of not less than Five Million Dollars
($5,000,000) at the end of each calendar year commencing December 31, 2007; and (b) a
Tangible Net Worth of not less than One Hundred Seventy-Five Million Dollars ($175,000,000)
QJDS01 !BAXTER 1031560x2
6
at the end of each calendar year commencing December 31, 2007. The determination of
compliance by Guarantor with the financial covenants set forth above for a calendar year shall be
based upon the financial statements provided by Guarantor to Lender and the submission of a
covenant compliance certificate acceptable to Lender.
20. Limitation. The Payment Obligations of the Guarantor shall be limited to the
sum of (a) Nine Million Six Hundred Eleven Thousand Nine Hundred Thirty-Two Dollars
($9,611,932), plus (b) the amount of all accrued and unpaid interest on the Loan and all other
amounts due and payable by Borrower under the Loan Documents (other than principal on the
Loan), lus (c) Enforcement Costs.
21. CONSENT TO JURISDICTION. TO INDUCE AGENT TO ACCEPT THIS
GUARANTY, GUARANTOR IRREVOCABLY AGREES THAT, SUBJECT TO
AGENT'S SOLE AND ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS
IN ANY WAY ARISING OUT OF OR RELATED TO THIS GUARANTY WILL BE
LITIGATED IN COURTS HAVING SITUS IN INDIANAPOLIS, INDIANA.
GUARANTOR HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF
ANY COURT LOCATED WITHIN INDIANAPOLIS, INDIANA, WAIVES PERSONAL
SERVICE OF PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS
MAY BE MADE BY REGISTERED MAIL DIRECTED TO GUARANTOR AT THE
ADDRESS STATED HEREIN AND SERVICE SO MADE WILL BE DEEMED TO BE
COMPLETED UPON ACTUAL RECEIPT.
22. WAIVER OF JURY TRIAL. GUARANTOR AND AGENT (BY
ACCEPTANCE HEREOF), HAVING BEEN REPRESENTED BY COUNSEL, EACH
KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
UNDER THIS GUARANTY OR UNDER ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH AND AGREES THAT ANY SUCH
ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date first above
written.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
INDS01 !BAXTER 1031560x2
7
SIGNATURE PAGE TO GUARANTY OF PAYMENT
"GUARANTOR"
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
LAUTH INVESTMENT PROPERTIES, LLC,
an Indiana limited liability company
By:
Printed: Michael S. Curless
Executive Vice rest e
Title:
efore me, a Notary Public in and for said Couni?L and State, perso y appeared
L ^It ej-. ( known to me to be the SIG` ?? . of
UTH INVESTMENT PROPERTIES, LLC, an Indiana limited liability company and
acknowledged the execution of the foregoing for and on behalf of said limited liability company.
Witness my hand and notarial seal this
My Commission Expires:
Ply County of Residence:
M a /I CY/)
MS01 JBAXTER 1031560
Exhibit G
Cl/i
JONES DAY WCEWD
222 EAST 41ST STREET • NEW YORK, NEW YORK 10017.6702 MAY 19 2009
JP013218
688870-635004
May 13, 2009
BY CERTIFIED MAIL RETURN RECEIPT REQUESTED
Carlisle Partners Building C, LLC
c/o Lauth Property Group
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: Michael S. Curless
Carlisle Partners Building C, LLC
c/o Lauth Property Group
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: General Counsel
Direct Number. (212) 326-3845
skoppel@jonesday.com
Re: $38,447,730.00 Mortgage Loan (the "Loan") made to
Carlisle Partner s Building C, LLC (the "Borrower") by
RBS Citizens, National Association, as a lender and
administrative agent and Huntington National Bank, a
national banking association (collectively, the "Lender"),
and secured by, inter alia, real property located in
Cumberland County, Pennsylvania (the "Premises")
Ladies and Gentlemen:
This firm represents the Lender in connection with the Loan which is evidenced by,
among other things, those certain promissory notes each in the amount of $19,223,865.00 made
by the Borrower in favor of each Lender, respectively, each dated May 2, 2008 (the `Note"),
which Note is secured by that certain open-end mortgage, security agreement and fixture filing
encumbering the Premises, dated May 2, 2008 (the "Mortgage"). Reference is also hereby made
to that certain construction loan agreement entered into between the Borrower and the Lender,
dated as of May 2, 2008 (the "Construction Loan Agreement"). All capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the Construction Loan
Agreement.
N Y I-{ I K2516v l
ATLANTA • BEIJING • BRUSSELS • CHICAGO • CLEVELAND • COLUMBUS • DALLAS • FRANKFURT • HONG KONG HOUSTON
IRVINE • LONDON • LOS ANGELES • MADRID • MILAN • MOSCOW • MUNICH • NEW DELHI • NEW YORK • PARIS • PITTSBURGH
SAN DIEGO • SAN FRANCISCO • SHANGHAI • SILICON VALLEY • SINGAPORE • SYDNEY • TAIPEI • TOKYO • WASHINGTON
Carlisle Partners Bui
Page 2
This letter will serve as notice to you that the Borrower is in material default as a result of
the occurrence of Events of Default under the Note, the Mortgage, the Construction Loan
Agreement and other Loan Documents, including, but not limited to:
1. Pursuant to Section 8.01(n) of the Construction Loan Agreement, there has
occurred a material adverse change in the financial condition of the Borrower and
the Guarantors; and
2. Pursuant to Section 8.01(p) of the Construction Loan Agreement, the Lauth
Investment, a Guarantor, has filed a voluntary petition in bankruptcy.
By copy of this letter served upon Lauth Investment Properties, LLC and Lauth Group,
Inc. (collectively, the "Guarantors"), the Lender is providing the Guarantors with notice of the
above-described Events of Default, in their capacity as guarantors of the repayment obligations
with respect to the Loan and the completion obligations with respect to the Improvements.
Nothing contained herein, nor in any prior or subsequent correspondence nor as a result
of the acceptance of any payment on account of any sums due under any of the Loan Documents
shall be construed to (i) waive, limit, prejudice or otherwise adversely affect, or evidence any
intention to forbear in the exercise of, any of the Lender's rights, remedies or powers under the
Note, the Mortgage, the Construction Loan Agreement or any of the other Loan Documents and
with respect to the Borrower and the Guarantors, at law, in equity, or otherwise, all of which
rights, remedies and powers are expressly reserved, and may be exercised at any time, (ii)
constitute a waiver, or extension of time for the cure or performance, of any Event of Default,
default or obligation under the Note, the Mortgage, the Construction Loan Agreement or any of
the other Loan Documents, (iii) waive, limit, prejudice or otherwise affect any rights, remedies
or powers of the Lender with respect to any defaults which may exist under the Note, the
Mortgage, the Construction Loan Agreement or any of the other Loan Documents which are not
expressly described in this letter, whether or not now known by the Lender, or (iv) waive,
modify, amend or otherwise affect the provisions of the Note, the Mortgage, the Construction
Loan Agreement or any of the Loan Documents.
Lender intends and hereby reserves the right to exercise any and all remedies available to
Lender under the Loan Documents and under law as a result of the occurrence of the Event of
Default including, without limitation. Lender's right to foreclose its security title in and to the
"Mortgaged Property" (as defined in the Mortgage).
You are hereby advised that all costs and expenses incurred by the Lender pertaining to
the preparation of this letter, any matters related thereto, any exercise of any rights or remedies
NY 14 1 x25 16v I
Carlisle Partners Buildink C LLC
Page 3
by the Lender and any litigation, actions or proceedings with respect to the Loan (including,
without limitation, attorneys' fees and expenses) shall constitute additional indebtedness of the
Borrower (and as such are guaranteed by each Guarantor of the Loan).
You are hereby further advised that no oral communication from or on behalf of the
Lender shall constitute any agreement, promise, commitment or evidence of any assurance or
intention of the Lender with respect to any aspect of the Loan or the Note, the Mortgage, the
Construction Loan Agreement or any of the other Loan Documents. Any agreement, promise,
commitment, assurance or intention of the Lender with respect to any aspect of the Loan or the
Note, the Mortgage, the Construction Loan Agreement or any of the other Loan Documents shall
be effective only if in writing and duly executed and delivered by an authorized officer of the
Lender.
Very trulY Y urs,
Steven C. Koppel
cc:
Lauth Investment Properties, LLC
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: Michael S. Curless
(By Certified Mail, Return Receipt Requested)
Lauth Investment Properties, LLC
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: General Counsel
(By Certified Mail, Return Receipt Requested)
Lauth Group, Inc.
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: Michael S. Curless
(By Certified Mail. Return Receipt Requested)
NYI-4182516v1
- May-1-1 -1-2009-- - -- - -- - - -------- - - --- -- - - --
Page 4
Lauth Group, Inc.
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: General Counsel
(By Certified Mail, Return Receipt Requested)
Reed Smith LLP
435 Sixth Avenue
Pittsburgh, Pennsylvania 15219
Attention: Ronald Krasnow, Esq.
(By Certified Mail, Return Receipt Requested)
RBS Citizens, National Association
d/b/a/ Charter One
10333 North Meridien Street, Suite 350
Indianapolis, Indiana 46290
Attention: Commercial Real Estate Department
(By Certified Mail, Return Receipt Requested)
RBS Citizens, National Association
d/b/a/ Charter One
,/27777 Franklin Road
Southfield, Michigan 48034
Attention: Joseph Dennison
(By Certified Mail, Return Receipt Requested)
NY[4182516v]
Exhibit H
S Green bergTrau rig
Fax 215.9U.7901
KipwAftiaw.com
February 3, 2011
BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED
Carlisle Partners Building C, LLC
c/o Lauth Property Group
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: Michael Garvey
Carlisle Partners Building C, LLC
c/o Lauth Property Group
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: General Counsel
Re: $38,447,730.00 Mortgage Loan (the "Loan") to Carlisle Partners Building C, LLC
(the "Borrower"} and secured by, inter alia, real property located .in Cumberland
County, Pennsvlvania (the "Premises")
Ladies and Gentlemen:
This firm represents KTR PA CENT LLC (the "Lender"), the holder of the above-captioned
Loan.
By letter dated May 13, 2009, you and the Guarantors were notified that the Borrower is in
material default of its obligations under the Loan Document as a result of the occurrence of Events
of Default under the Note, the Mortgage, the Construction Loan Agreement and the other Loan
Documents. By letter dated January 12, 2011„ you and the Guarantors were notified that the Events
of Default were continuing, and you were requested to provide financial information required to be
submitted under the Loan Documents. The Events of Default which are continuing uncured as of
the date of this letter include, but are not limited to:
The Loan is evidenced by, among other things, those certain promissory notes, each in the
amount of $19,223,865.00, made by the Borrower in favor of the Lender, each dated May 2, 2008
(the "Note"), which Note is secured by that certain open-end mortgage, security agreement and
fixture filing encumbering the Premises, dated May 2, 2008 (the "Mortgage"). Reference is also
hereby made to that certain construction loan agreement entered into between the Borrower and the
Lender, dated as of May 2, 2008, as amended by First Amendment dated as of November 12, 2009
(the "Construction Loan Agreement"). All capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Construction Loan Agreement.
Carlisle Partners Building C, LLC
February 3, 2011
Page 2
1. a material adverse change in the financial condition of the Borrower and the
Guarantors;
2. the filing of a voluntary petition in bankruptcy by Lauth Investment
Properties LLQ and
3. the failure to provide financial statements and evidence that Lauth Investment
has Unencumbered Liquidity of $5,000,000.00 and Tangible Net Worth of
$175,000,000.00.
As a result of the occurrence and continuation of these Events of Default, the Loan has been
accelerated and interest at the Default Rate has been accruing. Furthermore, the Lender has no
further obligation to advance loan proceeds, and the Borrower has not met the conditions for an
extension of the Original Maturity Date.
As of February 2, 2011, the sum due and owing under the Loan Documents are as follows:
Principal Amount: $35,366,431.19
Accrued Interest: 44,396.01
Deferred Fee (1/1/10 - 2/2/11): 678,487.84
Additional Interest at the Default Rate (5/13/09 - 2/2/11): 2,970,264.40
Total .Indebtedness: $39,059,579.44
The Lender hereby demands. payment of the Total Indebtedness in full, such payment to be
made on or before the close of business on Wednesday, February 9, 2011, by wire transfer in
accordance with the wire instructions attached to this letter. Because both interest at the Default
Rate and the Deferred Fee continue to accrue at a total current amount of $6,631.21 per diem, which
amount will vary in accordance with Loan Documents, please contact Tariq Khan (212-710-5060)
prior to sending the wire to confirm the amount owed.. In addition, under the Loan Documents, the
Borrower is responsible for all costs, fees (including attorneys' fees) and expenses incurred by the
Lender in connection with the enforcement of the Loan Documents and the collection of the
indebtedness.
If payment is not made as required, the Lender intends to exercise any and all remedies
available to the Lender under the Loan Documents and under law as a result of the occurrence of the
Events of Default.
Nothing contained herein, nor in any prior or subsequent correspondence nor as a result of
the acceptance of any payment on account of any sums due under any of the Loan Documents shall
be construed to (i) waive, limit, prejudice or otherwise adversely affect, or evidence any intention to
forbear in the exercise of any of the Lender's rights, remedies or powers under the Note, the
Mortgage, the Construction Loan Agreement or any of the other Loan Documents and with respect
to the.Borrower and the Guarantors, at law, in equity, or otherwise, all of which rights, remedies and
powers are expressly reserved, and may be exercised at any time, (ii) constitute a waiver, or
extension of time for the cure or performance, of any Event of Default, default or obligation under
the Note, the Mortgage, the Construction Loan Agreement or any of the other Loan Documents, (iii)
waive, limit, prejudice or otherwise affect any rights, remedies or powers of the Lender with respect
Carlisle Partners Building C, LLC
February 3, 2011
Page 3
to any defaults which may exist under the Note, the Mortgage, the Construction Loan Agreement or
any of the other Loan Documents which are not expressly described in this letter, whether or not.
now known by the Lender, or (iv) waive, modify, amend or otherwise affect the provisions of the
Note, the Mortgage, the Construction Loan Agreement or any of the Loan Documents.
Verily truly yours,
'' 4-15 ,6 t? "
Rachel Kipnes
cc:
Lauth Investment Properties, LLC
401 Pennsylvania Parkway
Indianapolis,.Indiana 46280
Attention: Michael Garvey
(By Certified Mail, Return Receipt Requested)
Lauth Investment Properties, LLC
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: General Counsel
(By Certified Mail, Return Receipt Requested)
Lauth Group, Inc.
401 Pennsylvania Parkway
Indianapolis. Indiana 46280
Attention: Michael Garvey
(By Certified Mail, Return Receipt. Requested)
Lauth Group, Inc.
401 Pennsylvania Parkway
Indianapolis, Indiana 46280
Attention: General Counsel
(By Certified Mail, Return Receipt Requested)
KTR PA CENT .LLC
c/o KTR Capital Partners
300 Barr Harbor Drive, Suite 150
Conshohocken, PA 19428
Attention: A. Donald Chase
(By Electronic Transmission)
c/o KTR Capital Partners
140 Broadway, 43"d Floor
New York, NY 10005
Attention: Tariq Khan
(By Electronic Transmission)
MIA 181686713v2
GREENBERG TRAURIG, LLP
Brian T. Feeney (I.D. No. 78574)
Charles L. Rombeau (I.D. No. 204859)
2700 Two Commerce Square
2001 Market Street
Philadelphia, PA 19103
TEL: 215-988-7800
FAX: 215-988-7801
EMAIL: feeneyb@gtlaw.com
rombeauc@gtlaw.com
KTR PA CENT LLC,
Plaintiff,
11 U; IJ l :
I I P 28 FPM 8b
`'UMBERLAND COUNTY
PENNSYLVANIA
Attorneys for Plaintiff
KTR PA CENT LLC
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL TERM
V.
CARLISLE PARTNERS BUILDING C, LLC,
Defendant.
: Case No. 11-1718
PRAECIPE TO MARK ACTION SETTLED DISCONTINUED AND ENDED
TO THE PROTHONOTARY:
Pursuant to Pennsylvania Rule of Civil Procedure 229, please mark the above action
settled, discontinued and ended.
Dated: March 25, 2011
G ER G, LLP
Brian T. Feeney (I.D. No. 78574)
Charles L. Rombeau (I.D. No. 204859)
2700 Two Commerce Square
2001 Market Street
Philadelphia, PA 19103
Tel: 215.988.7800
Fax: 215.988.7801
feeneyb@gtlaw.com
rombeauc@gtlaw.com
Attorneys for Plaintiff
KTR PA CENT LLC
CERTIFICATE OF SERVICE
I, Charles L. Rombeau, hereby certify that on the 25th day of March 2011,1 caused a true
and correct copy of the foregoing Praecipe to Mark Action Settled, Discontinued and Ended to
be served via First Class Mail upon the following unrepresented party:
Carlisle Partners Building C, LLC
c/o Lauth Property Group
11595 North Meridian Street, Suite 250
Carmel, Indiana 46032
Charles L. Rombeau