Exhibit 10.1
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LOAN AGREEMENT
by and among
VICTORIA WARD, LIMITED
and the other Entities included in the definition of "Borrower",
as Borrower,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Administrative Agent,
and
THE FINANCIAL INSTITUTIONS NOW OR HEREAFTER SIGNATORIES HERETO AND THEIR
ASSIGNEES PURSUANT TO SECTION 15.14, as Lenders,
WELLS FARGO SECURITIES, L.L.C.,
as Sole Lead Arranger and Sole Bookrunner,
Entered into as of September 29, 2011
WFB LOAN NO. 1004573
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS
1
1.1 DEFINED TERMS
1
1.2 SCHEDULES AND EXHIBITS INCORPORATED
15
ARTICLE 2. LOAN
15
2.1 LOAN
15
(a) Initial Facility Amount; Initial Advance
15
(b) Earnout Holdback; Subsequent Advances
15
2.2 LOAN FEES
16
2.3 LOAN DOCUMENTS
16
2.4 EFFECTIVE DATE
16
2.5 MATURITY DATE
16
2.6 INTEREST ON THE LOAN
16
(a) Interest Payments
16
(b) Default Interest
16
(c) Late Fee
16
(d) Computation of Interest
17
(e) Effective Rate
17
(f) One-Month LIBO Rate Taxes, Regulatory Costs and Reserve Percentages
18
(g) One-Month LIBO Price Adjustment
18
(h) Purchase, Sale and Matching of Funds
19
(i) Usury
19
2.7 PAYMENTS
20
(a) Manner and Time of Payment
20
(b) Payments on Non-Business Days
20
(c) Prepayment
20
2.8 COLLATERAL POOL; REMARGIN RIGHT
22
(a) Collateral Pool
22
(b) Remargin Right
22
2.9 FULL REPAYMENT AND RECONVEYANCE
23
2.10 LENDERS' ACCOUNTING
23
2.11 PROPERTY RELEASES
23
ARTICLE 3. DISBURSEMENT
25
3.1 CONDITIONS PRECEDENT
25
3.2 CONDITIONS PRECEDENT TO ADVANCES OF UNFUNDED INITIAL FACILITY
25
3.3 CONDITIONS PRECEDENT TO ADVANCES OF EARNOUT HOLDBACK
26
3.4 ACCOUNT, PLEDGE AND ASSIGNMENT, AND DISBURSEMENT AUTHORIZATION
27
3.5 LOAN DISBURSEMENTS
27
3.6 FUNDS TRANSFER DISBURSEMENTS
27
ARTICLE 4. IMPOUNDS
28
4.1 TAX IMPOUND
28
4.2 INSURANCE IMPOUND.
29
4.3 GENERAL
29
4.4 GRANT OF SECURITY INTEREST IN IMPOUNDS, ACCOUNTS; APPLICATION OF FUNDS
29
ARTICLE 5. CONSTRUCTION
30
5.1 CONSTRUCTION OF ADDITIONAL IMPROVEMENTS
30
5.2 CONTRACTOR/CONSTRUCTION INFORMATION
30
i
Page
5.3 PROHIBITED CONTRACTS
30
5.4 LIENS AND STOP NOTICES
31
5.5 ASSESSMENTS AND COMMUNITY FACILITIES DISTRICTS
31
5.6 DELAY
31
5.7 INSPECTIONS
31
5.8 SURVEYS
31
ARTICLE 6. INSURANCE
31
6.1 TITLE INSURANCE
31
6.2 PROPERTY INSURANCE
32
6.3 FLOOD HAZARD INSURANCE
32
6.4 LIABILITY INSURANCE
32
6.5 OTHER COVERAGE
32
6.6 GENERAL
32
6.7 COLLATERAL PROTECTION INSURANCE NOTICE
32
ARTICLE 7. REPRESENTATIONS AND WARRANTIES
33
7.1 AUTHORITY/ENFORCEABILITY
33
7.2 BINDING OBLIGATIONS
33
7.3 FORMATION AND ORGANIZATIONAL DOCUMENTS
33
7.4 NO VIOLATION
33
7.5 COMPLIANCE WITH LAWS; USE
33
7.6 LITIGATION
34
7.7 FINANCIAL CONDITION
34
7.8 NO MATERIAL ADVERSE CHANGE
34
7.9 ACCURACY
34
7.10 TAX LIABILITY
34
7.11 TITLE TO ASSETS; NO LIENS
34
7.12 MANAGEMENT AGREEMENT
34
7.13 UTILITIES
34
7.14 COMPLIANCE
35
7.15 AMERICANS WITH DISABILITIES ACT COMPLIANCE
35
7.16 BUSINESS LOAN
35
7.17 OFAC
35
ARTICLE 8. REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING SPECIAL PURPOSE
ENTITY ("SPE") STATUS
35
8.1 REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING SPECIAL PURPOSE ENTITY
("SPE") STATUS
35
(a) Limited Purpose
35
(b) Limitations on Debt, Actions
35
(c) Separateness Covenants
36
(d) SPE