event such payment is not made on a
Payment Date), over (ii) the principal amount being prepaid.
Section 1.2
Principles of Construction.
All references to sections
and schedules are to sections and schedules in or to this Agreement unless
otherwise specified.
All uses of the word "including" shall mean "including,
without limitation" unless the context shall indicate otherwise.
Unless
otherwise specified, the words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
Unless otherwise
specified, all meanings attributed to defined terms herein shall be equally
applicable to both the singular and plural forms of the terms so defined.
ARTICLE 2 - GENERAL TERMS
SECTION 2.1
LOAN MODIFICATION; DISBURSEMENT TO BORROWER.
2.1.1
THE LOAN.
SUBJECT TO AND UPON THE TERMS AND CONDITIONS SET FORTH
HEREIN, LENDER AND BORROWER HEREBY AGREES MODIFY THE TERMS OF THE LOAN ON THE
MODIFICATION DATE.
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NOTHING CONTAINED IN THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL (A) IN ANY
WAY WAIVE LENDER'S RIGHTS, POWERS OR REMEDIES UNDER THE LOAN DOCUMENTS, (B) IN
ANY WAY LIMIT, IMPAIR OR PREJUDICE LENDER FROM EXERCISING ANY PAST, PRESENT OR
FUTURE RIGHT, POWER OR REMEDY FROM AND AFTER THE DATE HEREOF UNDER THE LOAN
DOCUMENTS OR (C) CONSTITUTE OR BE DEEMED TO BE A NOVATION OF THE DEBT OR OTHER
OBLIGATIONS UNDER THE LOAN DOCUMENTS.
2.1.2
DISBURSEMENT TO BORROWER.
BORROWER ACKNOWLEDGES THAT (A) THE
PROCEEDS OF THE LOAN HAVE BEEN FULLY DISBURSED TO BORROWER BY ORIGINAL LENDER,
(B) THE OUTSTANDING PRINCIPAL BALANCE OF THE LOAN AS OF THE MODIFICATION DATE IS
$100,000,000 AND (C) THERE ARE NO DEFENSES, OFFSETS OR COUNTERCLAIMS TO THE
PAYMENT OF THE LOAN.
ANY AMOUNT BORROWED AND REPAID HEREUNDER IN RESPECT OF THE
LOAN MAY NOT BE REBORROWED.
2.1.3
THE NOTE, MORTGAGE AND LOAN DOCUMENTS.
FROM AND AFTER THE
MODIFICATION DATE, THE LOAN SHALL BE EVIDENCED BY THE NOTE AND SECURED BY THE
MORTGAGE, THE ASSIGNMENT OF LEASES AND THE OTHER LOAN DOCUMENTS.
2.1.4
USE OF PROCEEDS.
BORROWER REPRESENTS THAT IT USED THE PROCEEDS OF
THE LOAN TO ACQUIRE THE PROPERTY AND TO PAY COSTS AND EXPENSES INCURRED IN
CONNECTION THEREWITH.
SECTION 2.2
INTEREST RATE.
2.2.1
INTEREST RATE.
INTEREST ON THE OUTSTANDING PRINCIPAL BALANCE OF
THE LOAN SHALL ACCRUE FROM (AND INCLUDE) THE MODIFICATION DATE TO BUT EXCLUDING
THE MATURITY DATE AT THE INTEREST RATE (UNLESS THE DEFAULT RATE SHALL BE IN
EFFECT).
2.2.2
INTEREST CALCULATION.
INTEREST ON THE OUTSTANDING PRINCIPAL
BALANCE OF THE LOAN SHALL BE CALCULATED BY MULTIPLYING (A) THE ACTUAL NUMBER OF
DAYS ELAPSED IN THE PERIOD FOR WHICH THE CALCULATION IS BEING MADE BY (B) A
DAILY RATE BASED ON A THREE HUNDRED SIXTY (360) DAY YEAR BY (C) THE OUTSTANDING
PRINCIPAL BALANCE.
2.2.3
DEFAULT RATE.
IN THE EVENT THAT, AND FOR SO LONG AS, ANY EVENT OF
DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING, THE OUTSTANDING PRINCIPAL BALANCE
OF THE LOAN AND, TO THE EXTENT PERMITTED BY LAW,