facilities,
waste product and sewage disposal regulations), restrictions of record,
easements, reciprocal easements, declarations or other agreements affecting the
use of a Project or any part thereof.
"Welfare Plan" shall mean an employee welfare benefit plan as defined in
Section 3(1) of ERISA established or maintained by Borrower, Guarantor or any
ERISA Affiliate or that covers any current or former employee of Borrower,
Guarantor or any ERISA Affiliate.
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"Work" shall have the meaning set forth in Section 3.04(a)(i) hereof.
"Yield Maintenance Premium" shall have the meaning set forth in Section 13.03
hereof.
ARTICLE II
LOAN TERMS; REPRESENTATIONS, WARRANTIES
AND COVENANTS OF BORROWER
Section 2.01
The Loan. (a) Lender is making a loan (the "Loan") to
Borrower on the date hereof, in the Principal Amount of $90,286,551.00, which
shall mature on the Maturity Date. Borrower acknowledges receipt of the Loan,
the proceeds of which are being and shall be used to (i) refinance the existing
debt encumbering the Projects, (ii) fund certain of the Escrow Accounts, and
(iii) pay transaction costs. No excess proceeds may be distributed to the direct
or indirect members of Borrower. No amount repaid in respect of the Loan may be
reborrowed.
(B)
BORROWER WILL PAY THE DEBT AT THE TIME AND IN THE MANNER PROVIDED
IN THE NOTE, THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, ALL IN LAWFUL MONEY OF
THE UNITED STATES OF AMERICA IN IMMEDIATELY AVAILABLE FUNDS.
(C)
ON THE DATE HEREOF, BORROWER SHALL PAY TO LENDER AN ORIGINATION
FEE IN THE AMOUNT OF $451,432.76 (THE "ORIGINATION FEE").
(D)
UPON ANY PAYMENT, REPAYMENT OR PREPAYMENT OF PRINCIPAL, INCLUDING,
BUT NOT LIMITED TO, A PAYMENT MADE IN CONNECTION WITH A RELEASE AND THE
REPAYMENT OF THE LOAN ON THE MATURITY DATE, BORROWER SHALL PAY TO LENDER, THE
EXIT FEE. UPON THE REPAYMENT OF THE LOAN IN FULL, THE BORROWER SHALL PAY TO
LENDER THE AMOUNT BY WHICH (I) $225,716.37 EXCEEDS (II) THE TOTAL AMOUNT OF EXIT
FEES THERETOFORE PAID, IF ANY, BY BORROWER PURSUANT TO THIS SECTION 2.01(D). ALL
EXIT FEES HEREUNDER SHALL BE DEEMED TO BE EARNED BY LENDER UPON THE FUNDING OF
THE LOAN.
Section 2.02
Representations, Warranties and Covenants of Borrower.
Borrower represents, warrants and covenants to Lender (each of which
representations shall, as the context requires, refer to each entity comprising
Borrower and to each Project and shall be deemed made by each such Borrower with
respect to each such Project):
(A)
ORGANIZATION AND AUTHORITY. BORROWER (I) IS A LIMITED LIABILITY
COMPANY, DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS OF
THE JURISDICTION OF ITS FORMATION, (II) HAS ALL REQUISITE POWER AND AUTHORITY
AND ALL NECESSARY LICENSES AND PERMITS TO OWN AND OPERATE THE PROJECT AND TO
CARRY ON ITS BUSINESS AS NOW CONDUCTED AND AS PRESENTLY PROPOSED TO BE CONDUCTED
AND (III) IS DULY QUALIFIED, AUTHORIZED TO DO BUSINESS AND IN GOOD STANDING IN
THE JURISDICTION WHERE THE PROJECT IS LOCATED AND IN EACH OTHER JURISDICTION
WHERE THE CONDUCT OF ITS BUSINESS OR THE NATURE