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Exhibit 10.24
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CREDIT AGREEMENT
(Capital One Services, Inc.)
among
First Security Bank, National Association,
not individually, except as
expressly stated herein,
but solely as Owner Trustee
for Capital One Realty Trust 1998-1
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
and
BANK OF AMERICA, N.A.
as Administrative Agent
Dated as of September 3, 1999
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TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS........................................................................................ 1
1.1 Definitional Provisions............................................................................... 1
SECTION 2 AMOUNT AND TERMS OF COMMITMENTS.................................................................... 2
2.1 Commitments........................................................................................... 2
2.2 Notes................................................................................................. 2
2.3 Procedure for Borrowing............................................................................... 3
2.4 Facility Fee.......................................................................................... 3
2.5 Termination or Reduction of Commitments............................................................... 4
2.6 Prepayments and Payments.............................................................................. 4
2.7 Conversion and Continuation Options................................................................... 5
2.8 Interest Rates and Payment Dates...................................................................... 6
2.9 Computation of Interest............................................................................... 6
2.10 Pro Rata Treatment and Payments...................................................................... 7
2.11 Increased Costs, Illegality, etc..................................................................... 8
2.12 Funding Indemnity.................................................................................... 9
2.13 Taxes................................................................................................ 10
2.14 Notice of Amounts Payable; Mandatory Assignment...................................................... 12
SECTION 3 REPRESENTATIONS AND WARRANTIES..................................................................... 12
3.1 Due Organization, etc................................................................................ 13
3.2 Authorization; No Conflict........................................................................... 13
3.3 Enforceability, Etc.................................................................................. 13
3.4 Litigation........................................................................................... 14
3.5 Lessor Liens......................................................................................... 14
3.6 Assignment........................................................................................... 14
3.7 Defaults............................................................................................. 14
3.8 Documentation........................................................................................ 14
3.9 Use of Proceeds...................................................................................... 14
3.10 Securities Act....................................................................................... 14
3.11 Chief Place of Business.............................................................................. 15
3.12 Federal Reserve Regulations.......................................................................... 15
3.13 Investment Company Act............................................................................... 15
SECTION 4 CONDITIONS PRECEDENT............................................................................... 15
4.1 Conditions to Effectiveness........................................................................... 15
4.2 Conditions to Each Loan............................................................................... 15
SECTION 5 COVENANTS.......................................................................................... 16
5.1 Other Activities...................................................................................... 16
5.2 Ownership of Properties, Indebtedness................................................................. 16
5.3 Disposition of Assets................................................................................. 17
5.4 Compliance with Operative Agreements.................................................................. 17
5.5 Further Assurances.................................................................................... 17
5.6 Notices............................................................................................... 17
5.7 Discharge of Liens.................................................................................... 17
5.8 Trust Agreement....................................................................................... 18
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SECTION 6 EVENTS OF DEFAULT................................................................................... 18
SECTION 7 THE ADMINISTRATIVE AGENT............................................................................ 20
7.1 Appointment............................................................................................ 20
7.2 Delegation of Duties................................................................................... 21
7.3 Exculpatory Provisions................................................................................. 21
7.4 Reliance by Administrative Agent....................................................................... 21
7.5 Notice of Default...................................................................................... 22
7.6 Non-Reliance on Administrative Agent and Other Lenders................................................. 22
7.7 Indemnification........................................................................................ 23
7.8 Administrative Agent in Its Individual Capacity........................................................ 23
7.9 Successor Administrative Agent......................................................................... 23
7.10 Actions of Administrative Agent on Behalf of Holders................................................... 24
SECTION 8 MATTERS RELATING TO PAYMENT AND COLLATERAL.......................................................... 24
8.1 Collection of Payments and Other Amounts............................................................... 24
8.2 Certain Remedial Matters............................................................................... 27
8.3 Release of Properties, etc............................................................................. 28
8.4 Excepted Payments...................................................................................... 28
SECTION 9 MISCELLANEOUS....................................................................................... 28
9.1 Amendments and Waivers................................................................................. 28
9.2 Notices................................................................................................ 30
9.3 No Waiver; Cumulative Remedies......................................................................... 31
9.4 Survival of Representations and Warranties............................................................. 31
9.5 Payment of Expenses and Taxes.......................................................................... 31
9.6 Successors and Assigns; Participations and Assignments................................................. 31
9.7 Participations......................................................................................... 31
9.8 Assignments............................................................................................ 32
9.9 The Register; Disclosure; Pledges to Federal Reserve Banks............................................. 34
9.10 Adjustments; Set-off................................................................................... 35
9.11 Counterparts........................................................................................... 36
9.12 Severability........................................................................................... 36
9.13 Integration............................................................................................ 36
9.14 GOVERNING LAW.......................................................................................... 36
9.15 Submission To Jurisdiction; Waivers.................................................................... 36
9.16 Acknowledgments........................................................................................ 37
9.17 WAIVERS OF JURY TRIAL.................................................................................. 37
9.18 Nonrecourse............................................................................................ 37
9.19 USURY SAVINGS PROVISION................................................................................ 38
SCHEDULES
Schedule 1.1......Commitments and Addresses of Lenders
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EXHIBITS
Exhibit A-1 Form of Tranche A Note
Exhibit A-2 Form of Tranche B Note
Exhibit B Form of Assignment and Acceptance
iii
CREDIT AGREEMENT
(Capital One Services, Inc.)
THIS CREDIT AGREEMENT (Capital One Services, Inc.), dated as of September
3, 1999, is among FIRST SECURITY BANK, NATIONAL ASSOCIATION, not individually,
except as expressly stated herein, but solely as Owner Trustee for Capital One
Realty Trust 1998-1 (the "Owner Trustee" or the "Borrower"), the several banks
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and other financial institutions from time to time parties to this Agreement
(the "Lenders") and BANK OF AMERICA, N.A., a national banking association, as a
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Lender and as Administrative Agent.
The parties hereto hereby agree as follows:
SECTION 1 DEFINITIONS
1.1 Definitional Provisions.
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(a) Each capitalized term used in this Agreement and not otherwise
defined herein shall have the meaning ascribed thereto in Appendix A to that
certain Participation Agreement dated as of September 3, 1999 (the
"Participation Agreement") among Capital One Services, Inc., as the Construction
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Agent and the Lessee, Capital One Financial Corporation, as the Guarantor, First
Security Bank, National Association, not individually, except as expressly
stated therein, but solely as Owner Trustee under the Capital One Realty Trust
1998-1, the various banks and other lending institutions which are parties
thereto from time to time, as Holders, the various banks and other lending
institutions which are parties thereto from time to time, as Lenders and Bank of
America, N.A., as Agent for the Lenders and respecting the Security Documents,
as Agent for the Lenders and the Holders to the extent of their interests.
(b) Unless otherwise specified therein, all terms described in this
Agreement shall have the defined meanings when used in the other Credit
Documents or any certificate or other document made or delivered pursuant hereto
or thereto.
(c) 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, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d) All accounting terms used herein shall have the respective
meanings given to them in accordance with GAAP, unless otherwise provided
herein. All computations and determinations for purposes of determining
compliance with the financial requirements of this Agreement shall be made in
accordance with GAAP, unless otherwise provided herein.
(e) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms or such terms.
SECTION 2 AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments.
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(a) Subject to the terms and conditions hereof, each of the Lenders
agrees to make the portion of the Tranche A Loans and the Tranche B Loans to the
Borrower from time to time during the Commitment Period as is set forth adjacent
to such Lender's name for the purpose of enabling the Borrower to purchase the
Properties and to pay Property Acquisition Costs, Property Costs and Transaction
Expenses provided that the aggregate principal amount at any one time
outstanding with respect to each of the Tranche A Loans and the Tranche B Loans
shall not exceed the amount of the Tranche A Commitments and the Tranche B
Commitments respectively. Any prepayments of the Loans, whether mandatory or at
Borrower's election, shall not be subject to reborrowing.
(b) The Loans may from time to time be (i) Eurodollar Loans, (ii) ABR
Loans, or (iii) a combination thereof, as determined by the Borrower and
notified to the Administrative Agent in accordance with Section 2.3 and 2.7. In
the event the Borrower fails to provide notice pursuant to Section 2.3, the Loan
shall be an ABR Loan. Further, any Loan by any Lender in an amount less than
$100,000 shall be an ABR Loan, unless the remaining Available Commitment for
such Lender is less than $100,000, in which case, the Borrower may elect a
Eurodollar Loan for such remaining amount.
2.2 Notes.
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The Loans made by each Lender shall be evidenced by promissory notes
of the Borrower, substantially in the form of Exhibit A-1 in the case of the
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Tranche A Loans (each, a "Tranche A Note") or Exhibit A-2 in the case of the
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Tranche B Loans (each, a "Tranche B Note," and with the Tranche A Notes, the
"Notes"), with appropriate insertions as to payee, date and principal amount,
payable to the order of such Lender and in a principal amount equal to the
Tranche A Commitment or Tranche B Commitment, as the case may be, of such
Lender. Each Lender is hereby authorized to record the date, Type and amount of
each Loan made by such Lender, each continuation thereof, each conversion of all
or a portion thereof to another Type, and the date and amount of each payment or
prepayment of principal thereof on the schedule annexed to and constituting a
part of its Note, and any such recordation shall constitute prima facie evidence
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of the accuracy of the information so recorded, provided that the failure to
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make any such recordation or any error in such recordation shall not affect the
Borrower's obligations hereunder or under such Note. Each Note shall be dated
the Closing Date, be stated to mature on the Maturity Date and (iii) provide
for the payment of interest in accordance with Section 2.8.
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2.3 Procedure for Borrowing.
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(a) The Borrower may borrow under the Commitments during the
Commitment Period on any Business Day that an Advance may be requested pursuant
to the terms of Section 5.2 of the Participation Agreement, provided that the
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Borrower shall give the Administrative Agent irrevocable notice (which must be
received by the Administrative Agent (i) prior to 12:00 Noon, Dallas, Texas
time, three Business Days prior to the requested Borrowing Date if all or any
part of the requested Loans are to be Eurodollar Loans, or (ii) prior to 10:00
a.m. Dallas, Texas time three Business Days prior to the requested Borrowing
Date with respect to any Loans that are to be ABR Loans) specifying (A) the
amount to be borrowed (which on any date shall not be in excess of the then
Available Commitments), (B) the requested Borrowing Date, (C) whether the
borrowing is to be of Eurodollar Loans, ABR Loans or a combination thereof, (D)
if the borrowing is to be a combination of Eurodollar Loans and ABR Loans, the
respective amounts of each Type of Loan and (E) the Interest Period applicable
to any Eurodollar Loan; provided, however, that during the Commitment Period (1)
there shall be only one Interest Period applicable for all amounts outstanding
hereunder bearing interest based on the Eurodollar Rate, (2) such Interest
Period shall commence on the date that the first Eurodollar Loan hereunder is
extended and (3) any amounts thereafter borrowed or converted hereunder during
the Commitment Period which are to bear interest based on the Eurodollar Rate
may only be borrowed or converted on the first day of the Interest Period
applicable to Eurodollar Loans. Pursuant to the terms of the Participation
Agreement, the Borrower shall be deemed to have delivered such notice upon the
delivery of a notice by the Construction Agent or the Lessee containing such
required information. Upon receipt of any such notice from the Borrower, the
Administrative Agent shall promptly notify each Lender thereof. Each Lender
will make the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in Section 9.2 prior to 12:00 Noon, Dallas, Texas
time, on the Borrowing Date requested by the Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent crediting an account
designated, subject to Section 11.1 of the Participation Agreement, by the
Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent. No amount of any Loan which is repaid or
prepaid by the Borrower may be reborrowed hereunder.
(b) Interest accruing on each Loan during the Construction Period
with respect to any Property shall, subject to the limitations set forth in
Section 5.1(b) of the Participation Agreement be added to the principal amount
of such Loan on the relevant Scheduled Interest Payment Date. On each such
Scheduled Interest Payment Date, the Loan Property Cost and Construction Loan
Property Cost shall be increased by the amount of interest added to the Loans.
2.4 Facility Fee.
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(a) Promptly after receipt of the payment of the Facility Fee payable
pursuant to Section 9.4 of the Participation Agreement, the Agent shall
distribute such payments to the
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Lenders and the Holders pro rata in accordance with their respective Commitments
and Holder Commitments.
(b) On each Facility Fee Payment Date during the Construction Period,
the Loan Property Cost and Construction Loan Property Cost of each Property
shall be increased by a pro rata share of any Facility Fees funded on such date
with the proceeds of Loans in accordance with the Operative Agreements.
2.5 Termination or Reduction of Commitments.
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(a) The Borrower shall have the right, upon not less than five (5)
Business Days' written notice to the Administrative Agent, to terminate the
Commitments or, from time to time, to reduce the amount of the Commitments,
provided, that (i) after giving effect to such reduction, the aggregate
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outstanding principal amount of the Loans shall not exceed the aggregate
Commitments and (ii) such notice shall be accompanied by a certificate of the
Construction Agent stating that the amount equal to 97% of aggregate remaining
Budgeted Total Loan Property Costs as of the date of such reduction does not
exceed the aggregate amount of Available Commitments as of such date after
giving effect to such reduction. Any such reduction shall be in an amount equal
to the lesser of (A) $10,000,000 (or such greater amount in multiples of
$1,000,000 as the Borrower shall elect) or (B) the remaining Available
Commitments, and shall reduce permanently the Commitments then in effect.
(b) On any date on which the Commitments shall automatically be
reduced to zero pursuant to Section 6, the Borrower shall prepay all outstanding
Loans, together with accrued unpaid interest thereon and all other amounts owing
thereunder.
2.6 Prepayments and Payments.
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(a) Subject to Sections 2.11, 2.12 and 2.13, the Borrower may at any
time and from time to time prepay the Loans, in whole or in part, without
premium or penalty, upon at least three (3) Business Days' irrevocable notice to
the Administrative Agent, specifying the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans, ABR Loans or a combination
thereof, and, if a combination thereof, the amount allocable to each. Upon
receipt of any such notice the Administrative Agent shall promptly notify each
Lender thereof. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein. Amounts prepaid
may not be reborrowed.
(b) If on any date the Administrative Agent or the Lessor shall
receive any payment in respect of (i) any Casualty or Condemnation pursuant to
Section 15.1(a) or 15.1(g) of the Lease (excluding any payments in respect
thereof which are payable to Lessee in accordance with the Lease or held by
Lessor as security for performance of Lessee's obligations under the Lease), or
(ii) the Termination Value of any Property in connection with the delivery of a
Termination Notice pursuant to Article XVI of the Lease, or (iii) the
Termination Value of any Property in connection with the exercise of the
Purchase Option under Section 20.1 of the Lease or the exercise of the option of
the Lessor to transfer the Properties to the Lessee pursuant to
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Section 20.3 of the Lease, or (iv) any payment in an amount equal to the
Termination Value for any and all Construction Period Properties required to be
made or elected to be made by the Construction Agent to the Lessor pursuant to
the terms of the Agency Agreement, then in each case, such amounts shall be
applied and allocated in the manner contemplated by Section 8.1(b)(ii).
(c) Each prepayment of the Loans pursuant to Section 2.6(b) shall be
allocated to reduce the Loan Property Cost of the applicable Property. Each
prepayment of the Loans pursuant to Section 2.6(a) shall be allocated to reduce
the respective Loan Property Costs of all Properties pro rata according to the
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Loan Property Costs of such Properties immediately before giving effect to such
prepayment. Any amounts applied to reduce the Loan Property Cost of any
Construction Period Property pursuant to this paragraph (c) shall also be
applied to reduce the Construction Loan Property Cost of such Property until
such Construction Loan Property Cost has been reduced to zero.
2.7 Conversion and Continuation Options.
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(a) The Borrower may elect from time to time to convert Eurodollar
Loans to ABR Loans by giving the Agent at least three Business Days' prior
irrevocable notice of such election, provided that any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. The Borrower may elect from time to time to convert ABR Loans
to Eurodollar Loans by giving the Agent at least three (3) Business Days' prior
irrevocable notice of such election. Upon receipt of any such notice, the Agent
shall promptly notify each Lender thereof. All or any part of outstanding
Eurodollar Loans or ABR Loans may be converted as provided herein, provided that
(i) no ABR Loan may be converted into a Eurodollar Loan after the date that is
one month prior to the Maturity Date or when an Event of Default exists, (ii)
during the Commitment Period such conversion may only occur on the first day of
the single Interest Period for Eurodollar Loans permitted pursuant to the terms
of Section 2.3 hereof and (iii) after the Commitment Period such notice of
conversion shall contain an election by the Borrower of an Interest Period for
such Eurodollar Loan to be created by such conversion and such Interest Period
shall be in accordance with the terms of subparagraph (b) of the definition of
the term "Interest Period".
(b) Subject to the restrictions set forth in Section 2.3 hereof, any
Eurodollar Loan may be continued as such upon the expiration of the current
Interest Period with respect thereto by the Borrower giving irrevocable notice
to the Agent in accordance with the applicable provisions of the term "Interest
Period" of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurodollar Loan may be continued as such after the date
that is one month prior to the Maturity Date or when an Event of Default exists
and provided, further, that if the Borrower shall fail to give any required
notice as described above or otherwise herein, or if such continuation is not
permitted pursuant to the proceeding proviso, such Loan shall automatically be
converted to an ABR Loan on the last day of such then expiring Interest Period.
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2.8 Interest Rates and Payment Dates.
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(a) The Loans outstanding hereunder from time to time shall bear
interest for each day during each Interest Period with respect thereto at a rate
per annum equal to either (i) the Eurodollar Rate determined for such day plus
the Applicable Percentage or (ii) the ABR, as selected by the Borrower in
accordance with the provisions hereof; provided, however, (A) upon delivery by
the Administrative Agent of the notice described in Section 2.9(c), the Loans of
each of the Lenders shall bear interest at the ABR applicable from time to time
from and after the dates and during the periods specified in Section 2.9(c), (B)
upon the delivery by a Lender of the notice described in Section 2.11(d), the
Loans of such Lender shall bear interest at the ABR applicable from time to time
from and after the dates and during the periods specified in Section 2.11(d) and
(C) in such other circumstances as expressly provided herein, the Loans shall
bear interest at the ABR.
(b) If all or a portion of (i) the principal amount of any Loan, (ii)
any interest payable thereon or (iii) any other amount payable hereunder shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum which is
the lesser of (x) then current rate of interest respecting such payment plus 2%
and (y) the highest interest rate permitted by applicable law, in each case from
the date of such non-payment until such amount is paid in full (whether after or
before judgment).
(c) Interest shall be payable in arrears on the applicable Scheduled
Interest Payment Date (but for any Loan having an Interest Period of six (6)
months or longer, interest shall be payable in arrears on each applicable three
(3) month anniversary date of the commencement of such Loan), provided that (i)
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interest accruing pursuant to paragraph (b) of this Section 2.8 shall be payable
from time to time on demand and (ii) each prepayment of the Loans shall be
accompanied by accrued interest to the date of such prepayment on the amount
prepaid.
2.9 Computation of Interest.
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(a) Whenever it is calculated on the basis of the Prime Lending Rate,
interest shall be calculated on the basis of a 365- (or 366-, as the case may
be) day year for the actual days elapsed; and, otherwise, interest shall be
calculated on the basis of a 360-day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Borrower and the
Lenders of each determination of a Eurodollar Rate. Any change in the interest
rate on a Loan resulting from a change in the ABR or the Eurocurrency Reserve
Requirements shall become effective as of the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error.
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(c) If the Eurodollar Rate cannot be determined by the Administrative
Agent in the manner specified in the definition of the term "Eurodollar Rate"
contained in Appendix A to the Participation Agreement, the Administrative Agent
shall give telecopy or telephonic notice thereof to the Borrower and the Lenders
as soon as practicable thereafter. Until such time as the Eurodollar Rate can
be determined by the Administrative Agent in the manner specified in the
definition of such term, no further Eurodollar Loans shall be made or shall be
continued as such at the end of the then current Interest Period nor shall the
Borrower have the right to convert ABR Loans to Eurodollar Loans.
2.10 Pro Rata Treatment and Payments.
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(a) Each borrowing by the Borrower from the Lenders hereunder and any
reduction of the Commitments of the Lenders shall be made pro rata according to
their respective Commitments. Subject to the provisions of Section 8 hereof,
each payment (including each prepayment) by the Borrower on account of principal
of and interest on the Loans shall be made pro rata according to the respective
outstanding principal amounts on the Loans then held by the Lenders. All
payments (including prepayments) to be made by the Borrower hereunder and under
the Notes, whether on account of principal, interest or otherwise, shall be made
without setoff or counterclaim and shall be made prior to 12:00 Noon, Dallas,
Texas time, on the due date thereof to the Administrative Agent, for the account
of the Lenders, at the Administrative Agent's office specified in Section 9.2,
in Dollars and in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder becomes due and payable on a day other than
a Business Day, such payment shall be extended to the next succeeding Business
Day; provided, however, if such payment includes an amount of interest
calculated with reference to the Eurodollar Rate and the result of such
extension would be to extend such payment into another calendar month, then such
payment shall be made on the immediately preceding Business Day. In the case of
any extension of any payment of principal pursuant to the preceding two
sentences, interest thereon shall be payable at the then applicable rate during
such extension.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make its
share of such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Lender is making such amount available
to the Administrative Agent, and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Administrative Agent by the required time on
the Borrowing Date therefor, such Lender shall pay to the Administrative Agent,
on demand, such amount with interest thereon at a rate equal to the daily
average Federal Funds Effective Rate for the period until such Lender makes such
amount immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this Section 2.10(b) shall be conclusive in the absence of manifest error.
Nothing in this Section 2.10(b) or in any other provision in any Operative
Agreement shall require the Administrative Agent to make any borrowing available
to the Borrower unless such amounts have been made available to the
Administrative Agent by the Lenders.
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2.11 Increased Costs, Illegality, etc.
--------------------------------
(a) If, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation or (ii) the compliance with any
guideline or request hereafter adopted, promulgated or made by any central bank
or other governmental authority (whether or not having the force of law), there
shall be any increase in the cost to any Lender of agreeing to make or making,
funding or maintaining Loans, then the Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to the Administrative Agent
but subject to the terms of Section 2.14), pay (with funds provided by the
Lessee as Supplemental Rent pursuant to Section 3.3 of the Lease after the Basic
Term Commencement Date or pursuant to Article IX or Section 13.6 of the
Participation Agreement prior to the Basic Term Commencement Date) to the
Administrative Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A certificate as
to the amount of such increased cost, submitted to the Borrower and the
Administrative Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law, but in each case
promulgated or made after the date hereof) affects or would affect the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is increased by or
based upon the existence of such Lender's commitment to lend hereunder and other
commitments of this type or upon the Loans, then, upon demand by such Lender
(with a copy of such demand to the Administrative Agent but subject to the terms
of Section 2.14), the Borrower shall pay (with funds provided by the Lessee as
Supplemental Rent pursuant to Section 3.3 of the Lease after the Basic Term
Commencement Date or pursuant to Article IX or Section 13.6 of the Participation
Agreement prior to the Basic Term Commencement Date) to the Administrative Agent
for the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder or upon the Loans. A certificate as to
such amounts submitted to the Borrower and the Administrative Agent by such
Lender shall be conclusive and binding for all purposes, absent manifest error.
(c) Without limiting the effect of the foregoing, the Borrower shall
pay to each Lender on the last day of the Interest Period therefor so long as
such Lender is maintaining reserves against "Eurocurrency liabilities" under
Regulation D an additional amount (determined by such Lender and notified to the
Borrower through the Administrative Agent) equal to the product of the following
for each Eurodollar Loan for each day during such Interest Period:
(i) the principal amount of such Eurodollar Loan outstanding on
such day; and
(ii) the remainder of (x) a fraction the numerator of which is
the rate (expressed as a decimal) at which interest accrues on such
Eurodollar Loan for such
8
Interest Period as provided in this Credit Agreement (less the Applicable
Percentage) and the denominator of which is one minus the effective rate
(expressed as a decimal) at which such reserve requirements are imposed
on such Lender on such day minus (y) such numerator; and
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(iii) 1/360.
(d) Without affecting its rights under Section 2.11(a) or 2.11(b) or
any other provision of this Agreement, each Lender agrees that if there is any
increase in any cost to or reduction in any amount receivable by such Lender
with respect to which the Borrower would be obligated to compensate such Lender
pursuant to Sections 2.11(a) or 2.11(b), such Lender shall use reasonable
efforts to select an alternative lending office which would not result in any
such increase in any cost to or reduction in any amount receivable by such
Lender; provided, however, that no Lender shall be obligated to select an
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alternative lending office if such Lender determines that (i) as a result of
such selection such Lender would be in violation of any applicable law,
regulation, treaty, or guideline, or would incur additional costs or expenses or
(ii) such selection would be inadvisable for regulatory reasons or inconsistent
with the interests of such Lender.
(e) Notwithstanding any other provision of this Agreement, if any
Lender shall notify the Administrative Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is unlawful,
for any Lender to perform its obligations hereunder to make or maintain
Eurodollar Loans, then (i) each Eurodollar Loan will automatically, at the
earlier of the end of the Interest Period for such Eurodollar Loan or the date
required by law, convert into an ABR Loan and (iii) the obligation of the
Lenders to make, convert or continue Eurodollar Loans shall be suspended until
the Administrative Agent shall notify the Borrower that such Lender has
determined that the circumstances causing such suspension no longer exist.
2.12 Funding Indemnity.
-----------------
Subject to the provisions of Section 2.14(a), the Borrower agrees,
subject to and in accordance with the provisions of the Participation Agreement,
to indemnify each Lender and to hold each Lender harmless from any loss or
reasonable expense which such Lender may sustain or incur as a consequence of
default by the Borrower in making a borrowing of any Loan hereunder after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, default by the Borrower in making any prepayment
after the Borrower has given a notice thereof in accordance with the provisions
of this Agreement or the making of a voluntary or involuntary prepayment of
Eurodollar Loans on a day which is not the last day of an Interest Period with
respect thereto. Such indemnification shall be in an amount equal to the
excess, if any, of the amount of interest which would have accrued on the
amount so prepaid, or not so borrowed, converted or continued for the period
from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of such Interest Period (or, in the case of a failure
to borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable Eurodollar Rate for
9
such Loan for such Interest Period over the amount of interest (as determined
by such Lender) which would have accrued to such Lender on such amount by
reemploying such funds in loans of the same type and amount during the period
from the date of prepayment or failure to borrow to the last day of the then
applicable Interest Period (or, in the case of a failure to borrow, the Interest
Period that would have commenced on the date of such failure). This covenant
shall survive the termination of this Agreement and the payment of all other
amounts payable hereunder.
2.13 Taxes.
-----
(a) All payments made by the Borrower to both U.S. and non-U.S.
Persons under this Agreement and the Notes shall be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding net income taxes and franchise
taxes (imposed in lieu of net income taxes) imposed on the Administrative Agent
or any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or the
Notes). If any such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions or withholdings ("Non-Excluded Taxes") are required to be withheld
------------------
from any amounts payable to the Administrative Agent or any Lender hereunder or
under the Notes, the amounts so payable to the Administrative Agent or such
Lender shall be increased to the extent necessary to yield to the Administrative
Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement and the Notes, provided, however, that the foregoing obligations
-------- -------
of the Borrower shall not apply:
(i) to any payment to any Lender hereunder unless such Lender is, on
the date hereof (or on the date it becomes a Lender hereunder as provided
in Section 9.8 hereof) and on the date of any change in the Lending Office
of such Lender, either entitled to submit a Form 1001 (relating to such
Lender and entitling it to a complete exemption from withholding on all
interest to be received by it hereunder in respect of the Loans) or Form
4224 (relating to all interest to be received by such Lender hereunder in
respect of the Loans), or
(ii) to any U.S. Taxes imposed solely by reason of the failure by a
non-U.S. Person to comply with applicable certification, information,
documentation or other reporting requirements concerning the nationality,
residence, identity or connections with the United States of America of
such non-U.S. Person if such compliance is required by statute or
regulation of the United States of America as a precondition to relief or
exemption from such U.S. Taxes.
10
For the purposes of this Section 2.13(a), (A) "U.S. Person" shall mean a
-----------
citizen, national or resident of the United States of America, a corporation,
partnership or other entity created or organized in or under any laws of the
United States of America or any State thereof, or any estate or trust that is
subject to Federal income taxation regardless of the source of its income, (B)
"U.S. Taxes" shall mean any present or future tax, assessment or other charge or
----------
levy imposed by or on behalf of the United States of America or any taxing
authority thereof or therein, (C) "Form 1001" shall mean Form 1001 (Ownership,
---------
Exemption, or Reduced Rate Certificate) of the Department of the Treasury of the
United States of America and (D) "Form 4224" shall mean Form 4224 (Exemption
---------
from Withholding of Tax on Income Effectively Connected with the Conduct of a
Trade or Business in the United States) of the Department of Treasury of the
United States of America (or in relation to either such Form such successor and
related forms as may from time to time be adopted by the relevant taxing
authorities of the United States of America to document a claim to which such
Form relates). Each of the Forms referred to in the foregoing clauses (C) and
(D) shall include such successor and related forms as may from time to time be
adopted by the relevant taxing authorities of the United States of America to
document a claim to which such Form relates.
(b) Within 30 days after paying any amount to the Administrative
Agent or any Lender from which it is required by law to make any deduction or
withholding, and within 30 days after it is required by law to remit such
deduction or withholding to any relevant taxing authority, the Borrower shall
deliver to the Administrative Agent for delivery to such non-U.S. Person
evidence satisfactory to such Person of such deduction, withholding or payment
(as the case may be).
(c) If a Lender or an affiliate with whom such Lender files a
consolidated tax return (or equivalent) subsequently receives the benefit in any
country of a tax credit or an allowance resulting from U.S. Taxes with respect
to which it has received a payment of an additional amount under this Section
2.13, such Lender will pay to the Borrower such part of that benefit as in the
opinion of such Lender will leave it (after such payment) in a position no more
and no less favorable than it would have been in if no additional payment had
been required to be paid, provided always that (i) such Lender will be the sole
judge of the amount of any such benefit and of the date on which it is received,
(ii) such Lender will have the absolute discretion as to the order and manner in
which it employs or claims tax credits and allowances available to it and (iii)
such Lender will not be obliged to disclose to the Borrower any information
regarding its tax affairs or tax computations other than the nature and amount
of any tax credit pursuant to this Section 2.13(c).
(d) Each non-U.S. Person that shall become a Participant pursuant to
Section 9.7 or a Lender pursuant to Section 9.8 shall, upon the effectiveness of
the related transfer, be required to provide all of the forms and statements
referenced under subsection 2.13(a)(i), provided that in the case of a
Participant such Participant shall furnish all such required forms and
statements to the Lender from which the related participation shall have been
purchased.
11
2.14 Notice of Amounts Payable; Mandatory Assignment.
-----------------------------------------------
(a) Notice. In the event that any Lender becomes aware that any
------
amounts are or will be owed to it pursuant to Section 2.11, 2.12 or 2.13 or that
it is unable to make Eurodollar Loans, then it shall promptly notify the
Borrower and the Administrative Agent thereof and, as soon as possible
thereafter, such Lender shall submit to the Borrower (with a copy to the
Administrative Agent) a certificate indicating the amount owing to it and the
calculation thereof. The amounts set forth in such certificate shall be prima
facie evidence of the obligations of the Borrower hereunder.
(b) Mandatory Assignment. In the event that any Lender delivers to
--------------------
the Borrower a certificate in accordance with Section 2.14(a) in connection with
amounts payable pursuant to Section 2.11, Section 2.12 or Section 2.13 or such
Lender is required to make Loans as ABR Loans in accordance with Section 2.11(d)
then, subject to Section 11.1 of the Participation Agreement, the Borrower may,
at its own expense and in its sole discretion, (i) require such Lender to
transfer or assign, in whole, without recourse (in accordance with Section 9.8),
all of its interests, rights (except for rights to be indemnified for actions
taken while a party hereunder) and obligations under this Agreement to a
replacement bank or institution if the Borrower (subject to Section 11.1 of the
Participation Agreement), with the full cooperation of such Lender, can identify
a Person who is ready, willing and able to be such replacement bank or
institution with respect thereto and such replacement bank or institution (which
may be another Lender) shall assume such assigned obligations, or (ii) during
such time as no Default or Event of Default has occurred and is continuing,
terminate the Commitment of such Lender and prepay all outstanding Loans and
such Lender; provided, however, that (x) subject to Section 11.1 of the
-------- -------
Participation Agreement, the Borrower or such replacement bank or institution,
as the case may be, shall have paid to such Lender in immediately available
funds the principal of and interest accrued to the date of such payment on all
the Loans made by it hereunder and all other amounts owed to it hereunder (and,
if such Lender is also a Holder, all Holder Fundings and Holder Yield accrued
and unpaid thereon), (y) any termination of Commitments shall be subject to the
terms of Section 2.5(a) and (z) such assignment or termination of the Commitment
of such Lender and prepayment of Loans does not conflict with any law, rule or
regulation or order of any court or Governmental Authority.
SECTION 3 REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, each of the Trust Company and the Owner Trustee
hereby represents and warrants to the Administrative Agent and each Lender as
follows (provided that the representations in Sections 3.8, 3.9. 3.10, 3.12 and
3.13 are made solely by the Owner Trustee in its capacity as such):
12
3.1 Due Organization, etc.
---------------------
It is a national banking association duly organized and validly existing
and in good standing under the laws of the United States of America and has the
power and authority to enter into and perform its obligations under the Trust
Agreement and (assuming due authorization, execution and delivery of the Trust
Agreement by the Holders) has the corporate and trust power and authority to act
as the Owner Trustee and to enter into and perform the obligations under each of
the other Operative Agreements to which the Trust Company or the Owner Trustee,
as the case may be, is or will be a party and each other agreement, instrument
and document to be executed and delivered by it on or before the date this
representation is made or deemed made in connection with or as contemplated by
each such Operative Agreement to which the Trust Company or the Owner Trustee,
as the case may be, is or will be a party.
3.2 Authorization; No Conflict.
--------------------------
The execution, delivery and performance of each Operative Agreement to
which it is or will be a party, either in its individual capacity or (assuming
due authorization, execution and delivery of the Trust Agreement by the Holders)
as the Owner Trustee, as the case may be, has been duly authorized by all
necessary action on its part and neither the execution and delivery thereof, nor
the consummation of the transactions contemplated thereby, nor compliance by it
with any of the terms and provisions thereof does or will require any approval
or consent of any trustee or holders of any of its indebtedness or obligations,
does or will contravene any current law, governmental rule or regulation
relating to its banking or trust powers, does or will contravene or result in
any breach of or constitute any default under, or result in the creation of any
Lien upon any of its property under, its charter or by-laws, or any indenture,
mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan
or credit agreement or other agreement or instrument to which it is a party or
by which it or its properties may be bound or affected (other than as
contemplated by the Operative Agreements) which contravention, breach, default
or Lien under clause (ii) would materially and adversely affect its ability, in
its individual capacity or as Owner Trustee, to perform its obligations under
the Operative Agreements to which it is a party or does or will require any
Governmental Action by any Governmental Authority regulating its banking or
trust powers.
3.3 Enforceability, Etc.
-------------------
The Trust Agreement and, assuming the Trust Agreement is the legal,
valid and binding obligation of the Holder, each other Operative Agreement to
which the Trust Company or the Owner Trustee, as the case may be, is or will be
party have been, or on or before the date this representation is made or deemed
made will be, duly executed and delivered by the Trust Company or the Owner
Trustee, as the case may be, and the Trust Agreement and each such other
Operative Agreement to which the Trust Company or the Owner Trustee, as the case
may be, is a party constitutes, or upon execution and delivery will constitute,
a legal, valid and binding obligation enforceable against the Trust Company or
the Owner Trustee, as the case may be, in accordance with the terms thereof.
13
3.4 Litigation.
----------
There is no action or proceeding pending or, to its knowledge,
threatened to which it is or will be a party, either in its individual capacity
or as the Owner Trustee, before any Governmental Authority that concerns any
Property being purchased or leased or Construction Advance being funded on the
date this representation is made or deemed made or that, if adversely
determined, would materially and adversely affect its ability, in its individual
capacity or as Owner Trustee, to perform its obligations under the Operative
Agreements to which it is a party or would question the validity or
enforceability of any of the Operative Agreements to which it is or will become
a party.
3.5 Lessor Liens.
------------
Each Property is free and clear of all Lessor Liens attributable to it
in its individual capacity.
3.6 Assignment.
----------
It has not assigned or transferred any of its right, title or interest
in or under the Lease, the Agency Agreement or its interest in any Property or
any portion thereof, except as provided in the Operative Agreements.
3.7 Defaults.
--------
No Default or Event of Default under any Operative Agreement
attributable to it has occurred and is continuing.
3.8 Documentation.
-------------
The Owner Trustee, in its trust capacity, is a party to no documents,
instruments or agreements other than the Operative Agreements (and any other
documents delivered in connection with the Operative Agreements).
3.9 Use of Proceeds.
---------------
The proceeds of the Loans shall be applied by the Owner Trustee solely
in accordance with the terms of the Operative Agreements.
3.10 Securities Act.
--------------
Neither the Owner Trustee nor any Person authorized by the Owner
Trustee to act on its behalf has offered or sold any interest in the COSI Trust
Estate or the Notes, or in any similar security relating to a Property, or in
any security the offering of which for the purposes of the Securities Act of
1933, as amended, would be deemed to be part of the same offering as the
offering of the aforementioned securities to, or solicited any offer to acquire
any of the same
14
from, any Person other than in the case of the Notes, the Lenders, and neither
the Owner Trustee nor any Person authorized by the Owner Trustee to act on its
behalf will take any action which would subject, as a direct result of such
action alone, the issuance or sale of any interest in the COSI Trust Estate or
the Notes to the provisions of Section 5 of the Securities Act of 1933, as
amended, or require the qualification of any Operative Agreement under the Trust
Indenture Act of 1939, as amended.
3.11 Chief Place of Business.
-----------------------
The Owner Trustee's chief place of business, chief executive office
and office where the documents, accounts and records relating to the
transactions contemplated by this Agreement and each other Operative Agreement
are kept are each located at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇.
3.12 Federal Reserve Regulations.
---------------------------
The Owner Trustee is not engaged principally in, and does not have as
one of its important activities, the business of extending credit for the
purpose of purchasing or carrying any margin stock (within the meaning of
Regulation U of the Board), and no part of the proceeds of the Loans will be
used by it to purchase or carry any margin stock or to extend credit to others
for the purpose of purchasing or carrying any such margin stock or for any
purpose that violates, or is inconsistent with, the provisions of Regulations T,
U or X of the Board.
3.13 Investment Company Act.
----------------------
The Owner Trustee is not an "investment company" or a company
controlled by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 4 CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness.
---------------------------
The effectiveness of this Agreement is subject to the satisfaction of
all conditions precedent set forth in Section 6 of the Participation Agreement
required by said Section to be satisfied on or prior to the Initial Closing
Date.
4.2 Conditions to Each Loan.
-----------------------
The agreement of each Lender to make any Loan requested to be made by
it on any date is subject to the satisfaction of the following conditions
precedent:
15
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties made by the Borrower in or pursuant to the Operative Agreements shall
be true and correct in all material respects on and as of such date as if made
on and as of such date.
(b) No Default. No Default or Event of Default shall have occurred
----------
and be continuing on such date or after giving effect to the Loans requested to
be made on such date.
(c) Participation Agreement Conditions. With respect to each
----------------------------------
Acquisition Loan and each Construction Loan, the applicable conditions
precedent to the Advance associated therewith specified in Section 5 of the
Participation Agreement shall have been satisfied.
(d) Holder Contribution. With respect to each Loan, the
-------------------
Administrative Agent shall be satisfied that the Lessor shall receive from the
Holders on the relevant Borrowing Date an amount equal to the Holder Fundings
associated with such Loan.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such Loan that the conditions
contained in this Section 4.2 have been satisfied.
SECTION 5 COVENANTS
So long as any Loan or Note remains outstanding and unpaid or any
other amount is owing to any Lender or the Administrative Agent hereunder:
5.1 Other Activities.
----------------
The Borrower shall not conduct, transact or otherwise engage in, or
commit to transact, conduct or otherwise engage in, any business or operations
other than the entry into, and exercise of rights and performance of obligations
in respect of, the Operative Agreements and other activities incidental or
related to the foregoing.
5.2 Ownership of Properties, Indebtedness.
-------------------------------------
The Borrower shall not own, lease, manage or otherwise operate any
properties or assets other than in connection with the activities described in
Section 5.1, or incur, create, assume or suffer to exist any Indebtedness or
other consensual liabilities or financial obligations other than as may be
incurred, created or assumed or as may exist in connection with the activities
described in Section 5.1 (including, without limitation, the Loans and other
obligations incurred by the Borrower hereunder).
16
5.3 Disposition of Assets.
---------------------
The Borrower shall not convey, sell, lease, assign, transfer or
otherwise dispose of any of its property, business or assets, whether now owned
or hereafter acquired, except to the extent expressly contemplated by the
Operative Agreements.
5.4 Compliance with Operative Agreements.
------------------------------------
The Borrower shall at all times observe and perform all of the
covenants, conditions and obligations required to be performed by it (whether in
its capacity as Lessor, Owner Trustee or otherwise) under each Operative
Agreement to which it is a party and (b) observe and perform, or cause to be
observed and performed, all of the covenants, conditions and obligations of the
Lessor under the Lease, even in the event that the Lease is terminated at stated
expiration following a Lease Event of Default or otherwise.
5.5 Further Assurances.
------------------
At any time and from time to time, upon the written request of the
Administrative Agent, and at the sole expense of the Borrower, the Borrower will
promptly and duly execute and deliver such further instruments and documents and
take such further action as the Administrative Agent or the Majority Lenders may
reasonably request for the purpose of obtaining or preserving the full benefits
of this Agreement and the other Operative Agreements and of the rights and
powers herein or therein granted.
5.6 Notices.
-------
If on any date, a Responsible Officer of the Borrower shall obtain
actual knowledge of the occurrence of a Default or Event of Default, the
Borrower will give written notice thereof to the Administrative Agent within
five Business Days after such date.
5.7 Discharge of Liens.
------------------
Neither the Borrower nor the Trust Company will create or permit to
exist at any time, and will, at its own expense, promptly take such action as
may be necessary duly to discharge, or cause to be discharged, all Lessor Liens
attributable to it, provided, that the Borrower and the Trust Company shall not
--------
be required to discharge any Lessor Lien while the same is being contested in
good faith by appropriate proceedings diligently prosecuted so long as such
proceedings shall not involve any material danger of impairment of any of the
Liens contemplated by the Security Documents or of the sale, forfeiture or loss
of, and shall not materially interfere with the disposition of, any Property or
title thereto or any interest therein or the payment of Rent.
17
5.8 Trust Agreement.
---------------
Without prejudice to any right under the Trust Agreement of the Owner
Trustee to resign, the Owner Trustee (a) agrees not to terminate or revoke the
trust created by the Trust Agreement except as permitted by Article VIII of the
Trust Agreement, (b) agrees not to amend, supplement, terminate, revoke or
otherwise modify any provision of the Trust Agreement in any manner which could
reasonably be expected to have an adverse effect on the rights or interests of
the Administrative Agent or the Lenders hereunder or under the other Operative
Agreements and (c) agrees to comply with all of the terms of the Trust
Agreement.
SECTION 6 EVENTS OF DEFAULT
Upon the occurrence of any of the following specified events (each an
"Event of Default"):
----------------
(a) The Borrower shall (i) default in the payment when due of any
principal of the Loans or (ii) except as provided in paragraph (c), default, and
such default shall continue for three (3) or more days, in the payment when due
of any interest on the Loans; or
(b) Except as provided in paragraphs (a) and (c), the Borrower shall
default, and such default shall continue for ten (10) or more days, in the
payment of any amount owing under any Credit Document; or
(c) The Borrower shall default in the payment of any amount due on
the Maturity Date owing under any Credit Document; or
(d) The Borrower shall default in the due performance or observance
by it of any term, covenant or agreement contained in any Credit Document to
which it is a party (other than those referred to in paragraphs (a), (b) and (c)
above), provided, that in the case of any such default under Section 5.4, 5.5 or
--------
5.8(c), such default shall have continued unremedied for a period of at least
thirty (30) days after notice to the Borrower by the Administrative Agent or the
Majority Lenders; or
(e) Any representation, warranty or statement made or deemed made by
the Borrower herein or in any other Credit Document or by the Borrower or the
Lessee in the Participation Agreement or the Lease, or in any statement or
certificate delivered or required to be delivered pursuant hereto or thereto,
shall prove to be untrue in any material respect on the date as of which made or
deemed made; or
18
(f) (i) Any Lease Event of Default shall have occurred and be
continuing, or (ii) the Owner Trustee shall default in the due performance or
observance by it of any term, covenant or agreement contained in the
Participation Agreement or in the Trust Agreement to or for the benefit of the
Administrative Agent or a Lender, provided, that in the case of this clause (ii)
--------
such default shall have continued unremedied for a period of at least thirty
(30) days after notice to the Owner Trustee by the Administrative Agent or the
Majority Lenders; or
(g) The Borrower shall commence a voluntary case concerning itself
under Title 11 of the U.S. Code entitled "Bankruptcy", as now or hereafter in
effect, or any successor thereto (the "Bankruptcy Code"); or an involuntary case
---------------
is commenced against the Borrower and the petition is not contravened within 10
days after commencement of the case or an involuntary case is commenced against
the Borrower and the petition is not dismissed within sixty (60) days after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
the Borrower; or the Borrower commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to the Borrower, or there is commenced against the
Borrower any such proceeding which remains undismissed for a period of ninety
(90) days; or the Borrower is adjudicated insolvent or bankrupt, or any order of
relief or other order approving any such case or proceeding is entered; or the
Borrower suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of ninety (90) days; or the Borrower makes a general assignment for the
benefit of creditors; or any corporate or partnership action is taken by the
Borrower for the purpose of effecting any of the foregoing; or
(h) Any Security Document shall cease to be in full force and effect,
or shall cease to give the Administrative Agent the Liens, rights, powers and
privileges purported to be created thereby (including, without limitation, a
first priority perfected security interest in, and Lien on, all of the
Properties), in favor of the Administrative Agent on behalf of the Lenders,
superior to and prior to the rights of all third Persons and subject to no other
Liens (except in each case to the extent expressly permitted herein or in any
Operative Agreement); or
(i) The Lease shall cease to be enforceable against the Lessee; or
(j) One or more judgments or decrees shall be entered against the
Borrower involving a liability of $50,000 or more in the case of any one such
judgment or $100,000 or more in the aggregate for all such judgments and decrees
for the Borrower and any such judgments or decrees shall not have been
satisfied, vacated, discharged or stayed or bonded pending appeal within thirty
(30) days from the entry thereof.
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (g) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the Notes
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i)
with the
19
consent of the Majority Lenders, the Administrative Agent may, or upon the
request of the Majority Lenders, the Administrative Agent shall, by notice to
the Borrower declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Majority Lenders, the Administrative Agent may, or upon the request of the
Majority Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the Notes to be due and payable
forthwith, whereupon the same shall immediately become due and payable (any of
the foregoing occurrences or actions referred to in clause (A) or (B) above, an
"Acceleration"). Except as expressly provided above in this Section 6,
------------
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
Upon the occurrence of any Event of Default and at any time thereafter
so long as any Event of Default shall be continuing, the Administrative Agent
shall, upon the written instructions of the Majority Lenders, exercise any or
all of the rights and powers and pursue any and all of the remedies available to
it hereunder and (subject to the terms thereof) under the other Credit
Documents, the Lease and the other Operative Agreements and shall have any and
all rights and remedies available under the Uniform Commercial Code or any
provision of law.
Upon the occurrence of any Event of Default and at any time thereafter
so long as any Event of Default shall be continuing, the Administrative Agent
may, and upon request of the Majority Lenders shall, proceed to protect and
enforce this Agreement, the Notes, the other Credit Documents and the Lease by
suit or suits or proceedings in equity, at law or in bankruptcy, and whether for
the specific performance of any covenant or agreement herein contained or in
execution or aid of any power herein granted, or for foreclosure hereunder, or
for the appointment of a receiver or receivers for the Property or for the
recovery of judgment for the indebtedness secured thereby or for the enforcement
of any other proper, legal or equitable remedy available under applicable laws.
The Borrower shall be liable for any and all accrued and unpaid
amounts due hereunder before, after or during the exercise of any of the
foregoing remedies, including all reasonable legal fees and other reasonable
costs and expenses incurred by the Administrative Agent or any Lender by reason
of the occurrence of any Event of Default or the exercise of remedies with
respect thereto.
SECTION 7 THE ADMINISTRATIVE AGENT
7.1 Appointment.
-----------
Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Lender under this Agreement and the
other Operative Agreements, and each such Lender irrevocably authorizes the
Administrative Agent, in such capacity, to execute the Operative Agreements as
agent for and on behalf of such Lender, to take such action on behalf of such
Lender under the provisions of this Agreement and the other Operative Agreements
and to
20
exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and other Operative
Agreements, together with such other powers as are reasonably incidental
thereto. Without limiting the generality of the foregoing, each of the Lenders
hereby specifically acknowledges the terms and provisions of the Participation
Agreement and directs the Administrative Agent to exercise such powers, make
such decisions and otherwise perform such duties as are delegated to the
Administrative Agent thereunder without being required to obtain any specific
consent with respect thereto from any Lender. Notwithstanding any provision to
the contrary elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein, or
any fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Operative Agreement or otherwise exist against the
Administrative Agent.
7.2 Delegation of Duties.
--------------------
The Administrative Agent may execute any of its duties under this
Agreement and the other Operative Agreements by or through agents or attorneys-
in-fact and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Administrative Agent shall not be responsible
for the negligence or misconduct of any agents or attorneys-in-fact selected by
it with reasonable care.
7.3 Exculpatory Provisions.
----------------------
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (a) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Operative Agreement (except for its
or such Person's own gross negligence or willful misconduct) or (b) responsible
in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or the Lessee or any officer
thereof contained in this Agreement or any other Operative Agreement or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Operative Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Operative Agreement or for any failure of the Borrower or the Lessee
to perform its obligations hereunder or thereunder. The Administrative Agent
shall not be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Operative Agreement, or to inspect
the properties, books or records of the Borrower or the Lessee.
7.4 Reliance by Administrative Agent.
--------------------------------
The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any Note, writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and
21
upon advice and statements of legal counsel (including, without limitation,
counsel to the Borrower or the Lessee), independent accountants and other
experts selected by the Administrative Agent. The Administrative Agent may deem
and treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Operative Agreement unless it shall first receive such advice or
concurrence of the Majority Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this Agreement and the other
Operative Agreements in accordance with a request of the Majority Lenders, and
such and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders and all future holders of the Notes.
7.5 Notice of Default.
-----------------
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received written notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
notice thereof to the Lenders. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Majority Lenders; provided that unless and until the Administrative Agent
--------
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
7.6 Non-Reliance on Administrative Agent and Other Lenders.
------------------------------------------------------
Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates has made any representations or warranties to it and that no act
by the Administrative Agent hereinafter taken, including any review of the
affairs of the Borrower or the Lessee, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower and the
Lessee and made its own decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon the Administrative 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 analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Operative Agreements, and to make such
investigation as it deems necessary to inform itself as to the
22
business, operations, property, financial and other condition and
creditworthiness of the Borrower, the Lessee and the Guarantor. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrower, the
Lessee or the Guarantor which may come into the possession of the Administrative
Agent or any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
7.7 Indemnification.
---------------
The Lenders agree to indemnify the Administrative Agent, in its
capacity as such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably according to their
respective Commitment Percentages in effect on the date on which indemnification
is sought under this Section 7.7 (or, if indemnification is sought after the
date upon which the Commitments shall have terminated and the Loans shall have
been paid in full, ratably in accordance with their Commitment Percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Notes)
be imposed on, incurred by or asserted against any of them in any way relating
to or arising out of, the Commitments, this Agreement, any of the other
Operative Agreements or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by any of them under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment or any portion of such
--------
liabilities, obligations, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the gross negligence or willful
misconduct of the Administrative Agent. The agreements in this Section 7.7
shall survive the payment of the Notes and all other amounts payable hereunder.
7.8 Administrative Agent in Its Individual Capacity.
-----------------------------------------------
The Administrative Agent and its Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower,
the Lessee or the Guarantor as though the Administrative Agent were not the
Administrative Agent hereunder and under the other Operative Agreements. With
respect to its Loans made or renewed by it and any Note issued to it, the
Administrative Agent shall have the same rights and powers under this Agreement
and the other Operative Agreements as any Lender and may exercise the same as
though it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
7.9 Successor Administrative Agent.
------------------------------
The Administrative Agent may resign as Administrative Agent upon
thirty days' notice to the Lenders, the Borrower, the Lessee and the Guarantor.
If the Administrative Agent
23
shall resign as Administrative Agent under this Agreement, the Majority Lenders
shall appoint from among the Lenders a successor Administrative Agent which
successor Administrative Agent shall be subject to the approval of the Borrower
and, so long as no Lease Event of Default shall have occurred and be continuing,
the Lessee and the Guarantor, such approval not to be unreasonably withheld or
delayed. If no successor Administrative Agent is appointed prior to the
effective date of the resignation of the resigning Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and subject
to the approval of the Borrower and, so long as no Lease Event of Default shall
have occurred and be continuing, the Lessee and the Guarantor, such approval not
to be unreasonably withheld or delayed, a successor Administrative Agent from
among the Lenders. If no successor Administrative Agent has accepted appointment
as Administrative Agent by the date which is thirty days following a retiring
Administrative Agent's notice of resignation, the retiring agent's notice of
resignation shall nevertheless thereupon become effective and the Lenders shall
perform all of the duties of Administrative Agent until such time, if any, as
the Majority Lenders appoint a successor Administrative Agent, as provided for
above. Upon the effective date of such resignation, only the Lenders or such
successor Administrative Agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor agent and the retiring Administrative Agent's rights,
powers and duties in such capacity shall be terminated. After any retiring
Administrative Agent resigns hereunder as Administrative Agent, the provisions
of this Article VII and Section 9.5 shall inure to their respective benefit as
to any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement.
7.10 Actions of Administrative Agent on Behalf of Holders.
----------------------------------------------------
The parties hereto specifically acknowledge and consent to the Agent's
acting on behalf of the Holder as provided in the Participation Agreement, and,
in any such case, the Lenders acknowledge that the Holders shall be entitled to
vote as "Lenders" hereunder to the extent required or permitted by the Operative
Agreements (including specifically without limitation Section 10.6 of the
Participation Agreement).
SECTION 8 MATTERS RELATING TO PAYMENT AND COLLATERAL
8.1 Collection of Payments and Other Amounts.
----------------------------------------
(a) The Construction Agent and each Credit Party has agreed pursuant
to the terms of the Participation Agreement to pay to the Administrative Agent
any and all Rent and any and all other amounts of any kind or type owing by the
Lessee, the Guarantor or the Construction Agent to the Lessor or the Owner
Trustee under the Lease or any of the other Operative Agreements. Promptly
after receipt, the Administrative Agent shall apply, in accordance with the
terms of this Section 8, such amounts received by the Construction Agent or any
Credit Party and all other payments, receipts and other consideration of any
kind whatsoever received by the Administrative Agent pursuant to the Security
Agreement or otherwise received
24
by the Administrative Agent or any of the Lenders in connection with the
Collateral, the Security Documents or any of the other Operative Agreements.
(b) Payments and other amounts received by the Administrative Agent
from time to time in accordance with the terms of subparagraph (a) shall be
applied as follows (subject to all events to Section 8.1(c)):
(i) Any such payment or amount identified as or deemed to be
Basic Rent shall be applied and allocated by the Administrative Agent
first, ratably to the Lenders and the Holders for application and
-----
allocation to the payment of interest on the Loans and thereafter the
principal of the Loans which is due and payable on such date and to the
payment of accrued Holder Yield with respect to the Holder Fundings and
thereafter the portion of the Holder Fundings which is due on such date;
and second, if no Default or Event of Default is in effect, any excess
------
shall be paid to such Person or Persons as the Lessee may designate;
provided, that if a Default or Event of Default is in effect, such excess
--------
(if any) shall instead be held by the Administrative Agent until the
earlier of (I) the first date thereafter on which no Default or Event of
Default shall be in effect (in which case such payments or returns shall
then be made to such other Person or Persons as the Lessee may designate)
and (II) the Maturity Date or the Expiration Date, as the case may be (or,
if earlier, the date of any Acceleration), in which case such amounts shall
be applied and allocated in the manner contemplated by Section 8.1(b)(iv).
(ii) If on any date the Administrative Agent or the Lessor shall
receive any amount in respect of (A) any Casualty or Condemnation pursuant
to Sections 15.1(a) or 15.1(g) of the Lease (excluding any payments in
respect thereof which are payable to the Lessee in accordance with the
Lease or held by Lessor as security for performance of Lessee's obligations
under the Lease), or (B) the Termination Value in connection with the
delivery of a Termination Notice pursuant to Article XVI of the Lease, or
(C) the Termination Value in connection with the exercise of the Purchase
Option under Section 20.1 of the Lease or the exercise of the option of the
Lessor to transfer the Properties to the Lessee pursuant to Section 20.3 of
the Lease, or (D) any payment in an amount equal to the Termination Value
for any or all Construction Period Properties required to be made or
elected to be made by the Construction Agent to the Lessor pursuant to the
terms of the Agency Agreement, then in each case, the Lessor shall be
required to pay such amount received (1) if no Acceleration has occurred,
to prepay the principal balance of the Loans on such date in an amount
equal to ninety-seven percent (97%) of such payment and the remaining three
percent (3%) of such payment shall be applied pro rata to the principal
amount of outstanding Holder Fundings on such date until the Loans are paid
in full, and to Holder Fundings thereafter, (2) if an Acceleration has
occurred, to apply and allocate the proceeds respecting Sections
8.1(b)(ii)(A) through 8.1(b)(ii)(D) in accordance with Section 8.1(b)(iii)
hereof.
(iii) An amount equal to any payment identified as proceeds of
the sale or other disposition (or lease upon the exercise of remedies) of
the Properties or any portion thereof, whether pursuant to Article XXII of
the Lease or the exercise of remedies under
25
the Security Documents, the Lease or otherwise, and any payment in respect
of excess wear and tear pursuant to Section 22.3 of the Lease (whether such
payment relates to a period before or after the Construction Period
Termination Date) shall be applied and allocated by the Administrative
Agent first, ratably to the payment of the principal and interest of the
-----
Tranche B Loans then outstanding, second, to the extent such amount exceeds
------
the maximum amount to be paid pursuant to the foregoing provisions of this
paragraph (iii), ratably to the payment of the principal and interest of
the Tranche A Loans then outstanding, third, to any and all other amounts
-----
owing under the Operative Agreements to the Lenders under the Tranche B
Loans, fourth, to any and all other amounts owing under the Operative
------
Agreements to the Lenders under the Tranche A Loans, fifth, ratably to the
-----
payment to the Holders of the outstanding principal balance of all Holder
Fundings plus all outstanding Holder Yield with respect to such outstanding
Holder Fundings, sixth, to any and all other amounts owing under the
-----
Operative Agreements to the Holders, and seventh, to the extent moneys
-------
remain after application and allocation pursuant to clauses first through
-----
sixth above, to the Owner Trustee for application and allocation to any and
-----
all other amounts owing to the Holders or the Owner Trustee and as the
Holders shall determine; provided, further, where no Event of Default shall
-------- -------
exist and be continuing and a prepayment is made for any reason with
respect to less than the full amount of the outstanding principal amount of
the Loans and the outstanding Holder Fundings, the proceeds shall be
applied and allocated ratably among the Lenders and among the Holders.
(iv) An amount equal to (A) any such payment identified as a
payment of the Maximum Amount pursuant to the third paragraph of Section
2.1 of the Agency Agreement or any payment pursuant to Section 22.1(b) of
the Lease (or otherwise) of the Maximum Residual Guarantee Amount (and any
such lesser amount as may be required by Section 22.1(b) of the Lease) in
respect of the Properties and (B) any other amount payable upon any
exercise of remedies after the occurrence of an Event of Default not
covered by Sections 8.1(b)(i) or 8.1(b)(iii) above (including without
limitation any amount received in connection with an Acceleration which
does not represent proceeds from the sale or liquidation of the Properties)
and (C) any other amount payable by the Guarantor pursuant to Section 6B
shall be applied and allocated by the Administrative Agent first, ratably,
-----
to the payment of the principal and interest balance of Tranche A Loans
then outstanding, second, ratably to the payment of the principal and
------
interest balance of the Tranche B Loans then outstanding, third, to the
-----
payment of any other amounts owing to the Lenders hereunder or under any of
the other Operative Agreements, fourth, ratably to the payment of the
------
principal balance of all Holder Fundings plus all outstanding Holder Yield
with respect to such outstanding Holder Fundings, and fifth, to the extent
-----
moneys remain after application and allocation pursuant to clauses first
-----
through fourth above, to the Owner Trustee for application and allocation
--------------
to Holder Fundings and Holder Yield and any other amounts owing to the
Holders or the Owner Trustee as the Holders shall determine.
(v) An amount equal to any such payment identified as
Supplemental Rent and any payment by the Construction Agent not otherwise
covered under Sections
26
8.1(b)(i)-(iv) hereof shall be applied and allocated by the Administrative
Agent to the payment of any amounts then owing to the Administrative Agent,
the Lenders, the Holders and the other parties to the Operative Agreements
(or any of them) (other than any such amounts payable pursuant to the
preceding provisions of this Section 8.1(b)) as shall be determined by the
Administrative Agent in its reasonable discretion; provided, however, that
-------- -------
Supplemental Rent received upon the exercise of remedies after the
occurrence and continuance of an Event of Default in lieu of or in
substitution of the Maximum Residual Guarantee Amount or as a partial
payment thereon shall be applied and allocated as set forth in Section
8.1(b)(iv).
(vi) The Administrative Agent in its reasonable judgment shall
identify the nature of each payment or amount received by the
Administrative Agent and apply and allocate each such amount in the manner
specified above.
(c) Upon the payment in full of the Loans, the Holder Fundings and
all other amounts then due and owing by the Owner Trustee hereunder or under any
Credit Document and the payment in full of all other amounts then due and owing
to the Lenders, the Holders, the Administrative Agent, the Owner Trustee and the
other Financing Parties pursuant to the Operative Agreements, any moneys
remaining with the Administrative Agent shall be returned to the Lessee. In the
event of an Acceleration it is agreed that, prior to the application and
allocation of amounts received by the Administrative Agent in the order
described in Section 8.1(b) above or any distribution of money to the Lessee,
any such amounts shall first be applied and allocated to the payment of (i) any
and all sums advanced by the Administrative Agent in order to preserve the
Collateral or to preserve its Lien thereon, (ii) the expenses of retaking,
holding, preparing for sale or lease, selling or otherwise disposing or
realizing on the Collateral, or of any exercise by the Administrative Agent of
its rights under the Security Documents, together with reasonable attorneys'
fees and expenses and court costs and (iii) any and all other amounts reasonably
owed to the Administrative Agent under or in connection with the transactions
contemplated by the Operative Agreements (including without limitation any
accrued and unpaid administration fees).
8.2 Certain Remedial Matters.
------------------------
Notwithstanding any other provision of this Agreement or any other
Credit Document:
(a) the Borrower shall at all times retain all rights to Excepted
Payments payable to it and to demand, collect or commence an action at law to
obtain such payments and to enforce any judgment with respect thereto; and
(b) the Borrower and each Holder shall at all times retain the right,
but not to the exclusion of the Administrative Agent, (A) to receive from the
Lessee all notices, certificates and other documents and all information that
the Lessee is permitted or required to give or furnish to the "Borrower" or the
"Lessor" pursuant to the Lease, the Participation Agreement or any other
Operative Agreement, (B) to retain all rights with respect to insurance that
Article XIV
27
of the Lease specifically confers upon the "Lessor", (C) to provide such
insurance as the Lessee shall have failed to maintain or as the Borrower or any
Holder may desire, and (D) to enforce compliance by the Lessee with the
provisions of Articles VIII, IX, X, XI, XIV and XVII of the Lease.
8.3 Release of Properties, etc.
--------------------------
If the Lessee shall at any time purchase any Property pursuant to the
terms of the Lease, or the Construction Agent shall purchase any Property
pursuant to the Agency Agreement, or if any Property shall be sold in accordance
with Article XXII of the Lease, then, upon satisfaction by the Borrower of its
obligation to prepay the Loans and Holder Fundings, the Administrative Agent is
hereby authorized and directed to release such Properties from the Liens created
by the Security Documents. In addition, upon the termination of the Commitments
and the payment in full of the Loans and all other amounts owing by the Borrower
hereunder or under any other Credit Document the Administrative Agent is hereby
authorized and directed to release all of the Properties from the Liens created
by the Security Documents. Upon request of the Borrower following any such
release, the Administrative Agent shall, at the sole cost and expense of the
Lessee, execute and deliver to the Borrower and the Lessee such documents as the
Borrower or the Lessee shall reasonably request to evidence such release.
8.4 Excepted Payments.
-----------------
Notwithstanding any other provision of this Agreement or the Security
Documents, any Excepted Payment received at any time by the Administrative Agent
shall be distributed promptly to the Person entitled to receive such Excepted
Payment.
SECTION 9 MISCELLANEOUS
9.1 Amendments and Waivers.
----------------------
Neither this Agreement, any other Credit Document, nor any terms
hereof or thereof may be amended, supplemented or modified except in accordance
with the provisions of this Section 9.1. The Majority Lenders may, or, with the
written consent of the Majority Lenders, the Administrative Agent may, from time
to time, (a) with the consent of the Lessee and the Guarantor (so long as no
Default or Event of Default shall have occurred and be continuing and,
respecting an amendment, supplement or modification to Section 8.1 only, so long
as Lessee has rights in any Property under the Operative Agreements), enter into
with the Borrower written amendments, supplements or modifications to the Credit
Documents (including, without limitation, any amendment to Section 8.1 hereof)
for the purpose of adding any provisions to the Credit Documents or changing in
any manner the rights of the Administrative Agent, the Lenders or the Borrower
thereunder or (b) waive, on such terms and conditions as the Majority Lenders or
the Administrative Agent, as the case may be, may specify in such instrument,
any of the requirements of the Credit Documents or any Default or Event of
Default and its consequences. In addition, the Administrative Agent may from
time to time consent in writing to amendments,
28
supplements, modifications or waivers with respect to any Operative Agreement
(other than the Credit Documents), subject to receipt of the prior written
consent of the Majority Lenders and, so long as no Default or Event of Default
shall have occurred and be continuing, the Lessee and the Guarantor; provided,
--------
however, that so long as the Administrative Agent has no actual knowledge of the
-------
existence of an Event of Default the Administrative Agent may grant waivers
and/or consents with respect to the terms and requirements of the Participation
Agreement without the prior consent of the Lenders to the extent provided
therein (as such authority of the Administrative Agent is more specifically
described in Section 7.1 hereof). Notwithstanding the foregoing, no such
amendment, supplement, modification or waiver shall (i) reduce the amount or
extend the scheduled date of maturity of any Note, or reduce the stated rate of
any interest payable hereunder (other than as a result of waiving the
applicability of any post-default increase in interest rates) or any Facility
Fees payable under the Participation Agreement or extend the scheduled date of
any payment of such interest or Commitment Fees or increase the amount or extend
the expiration date of any Lender's Commitment, in each case without the consent
of each Lender directly affected thereby, or (ii) amend, modify or waive any
provision of this Section 9.1 or the definition of Majority Lenders, or reduce
the percentage specified in the definition of Majority Lenders, or consent to
the assignment or transfer by the Borrower of any of its rights and obligations
under the Credit Documents or release a material portion of the Collateral
(except in accordance with Section 8.3) or release the Lessee from its
obligations under the Lease or otherwise alter any payment obligations of the
Lessee to the Lessor under the Operative Agreements, in each case without the
written consent of all the Lenders, or (iii) amend, modify or waive any
provision of Section 7 without the written consent of the then Administrative
Agent or (iv) permit Advances for Work in excess of the Construction Budget
without the unanimous consent of the Lenders and Holders, or (v) eliminate the
automatic option (in the absence of the unanimous election of the Lenders and
the Holders) under Section 5.3(a) of the Agency Agreement requiring that the
Construction Agent pay certain liquidated damages in exchange for the conveyance
of a Property to the Construction Agent or (vi) permit the extension of the
Construction Period Termination Date beyond the date that is three (3) years
from the Initial Closing Date without the unanimous consent of the Lenders and
the Holders. Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Lenders and shall be binding upon the
Borrower, the Lessee, the Guarantor, the Lenders and the Administrative Agent
and all future holders of the Notes. In the case of any waiver, the Borrower,
the Lessee, the Guarantor, the Lenders and the Administrative Agent shall be
restored to their former position and rights under the Credit Documents, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extent to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
Anything in this Agreement to the contrary notwithstanding, if at a
time when the conditions precedent set forth in Section 4.2 hereof to any Loan
hereunder are, in the opinion of the Majority Lenders, satisfied, any Lender
shall fail to fulfill its obligations to make such Loan (any such Lender, a
"Defaulting Lender") then, for so long as such failure shall continue, the
------------------
Defaulting Lender shall (unless the Borrower and the Majority Lenders,
determined as if the Defaulting Lender were not a "Lender" hereunder, shall
otherwise consent in writing) be deemed for all purposes relating to amendments,
modifications, waivers or consents under this Agreement (including, without
limitation, under this Section 9.1) to have no Loans, shall not be
29
treated as a "Lender" hereunder when performing the computation of Majority
Lenders, and shall have no rights under the preceding paragraph of this Section
9.1; provided that any action taken by the other Lenders pursuant to this
paragraph with respect to the matters referred to in clause (i) through (vi) of
the preceding paragraph shall not be effective as against the Defaulting Lender.
9.2 Notices.
-------
All notices, request and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy), and, unless
otherwise expressly provided herein, shall be deemed to have been duly given or
made when delivered, or three Business Days after being deposited in the mail,
postage prepaid, or, in the case of telecopy notice, when received, addressed as
follows in the case of the Borrower and the Administrative Agent, and as set
forth in Schedule 1.1 in the case of the other parties hereto, or to such other
address as may be hereafter notified by the respective parties hereto and any
future holders of the Notes:
The Borrower:
First Security Bank, National Association
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇. ▇▇▇▇▇
Corporate Trust Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of America, N.A., as Administrative Agent:
Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
--------
or the Lenders pursuant to Section 2.3, 2.5 2.6 or 2.7 shall not be effective
until received.
A copy of any notice delivered hereunder shall also be delivered to
the Lessee, the Guarantor and the Legal Department of the Guarantor at the
addresses for notices set forth in Section 14.3 of the Participation Agreement.
30
9.3 No Waiver; Cumulative Remedies.
------------------------------
No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder or under the other Credit Documents shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or future exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties.
------------------------------------------
All representations and warranties made hereunder, in the other Credit
Documents and in any document, certificate or statement delivered pursuant
hereto or in connection herewith shall survive the execution and delivery of
this Agreement and the Notes and the making of the Loans hereunder.
9.5 Payment of Expenses and Taxes.
-----------------------------
The Borrower agrees to: (a) pay all reasonable out-of-pocket costs
and expenses of (i) the Administrative Agent whether or not the transactions
herein contemplated are consummated, in connection with the negotiation,
preparation, execution and delivery of the Operative Agreements and the
documents and instruments referred to therein and any amendment, waiver or
consent relating thereto (including, without limitation, the reasonable fees and
disbursements of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC) and (ii) the Administrative Agent and
each of the Lenders in connection with the enforcement of the Operative
Agreements and the documents and instruments referred to therein (including,
without limitation, the reasonable fees and disbursements of counsel for the
Administrative Agent and for each of the Lenders) and (b) pay and hold each of
the Lenders harmless from and against any and all present and future stamp and
other similar taxes with respect to the foregoing matters and save each of the
Lenders harmless from and against any all liabilities with respect to or
resulting from any delay or omission (other than to the extent attributable to
such Lender) to pay such taxes.
9.6 Successors and Assigns; Participations and Assignments.
------------------------------------------------------
This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Administrative Agent, all future holders of the Notes
and their respective permitted successors and assigns, except that the Borrower
may not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
9.7 Participations.
--------------
Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating interests
-----------
in any Loan owing to such Lender, any Note held by such
31
Lender, any Commitment of such Lender or any other interest of such Lender
hereunder and under the other Operative Agreements; provided that any such sale
--------
of a participating interest shall be in a principal amount of at least
$2,000,000. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this Agreement to the
other parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Note for all purposes under this Agreement and the Notes, and
the Borrower and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the Notes. In no event shall any
Participant have any right to approve any amendment or waiver of any provision
of this Agreement or any other Operative Agreement, or any consent to any
departure by the Borrower or any other Person therefrom, except to the extent
that such amendment, waiver or consent would (a) reduce the principal of, or
interest on, any Loan or Note, or postpone the date of the final maturity of any
Loan or Note, or reduce the amount of any Facility Fee, in each case to the
extent subject to such participation or (b) release all or substantially all of
the Collateral. The Borrower agrees that, while an Event of Default shall have
occurred and be continuing, if amounts outstanding under this Agreement and the
Notes are due or unpaid, or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall, to the maximum extent
permitted by applicable law, be deemed to have the right of setoff in respect of
its participating interests in amounts owing directly to it as a Lender under
this Agreement or any Note, provided that, in purchasing such participating
--------
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in Section 9.10(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.11, 2.12 and 2.13 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it was a Lender; provided that, in the case of Section 2.13, such Participant
--------
shall have complied with the requirements of said Section and provided, further,
-------- -------
that no Participant shall be entitled to receive any greater amount pursuant to
any such Section than the transferor Lender would have been entitled to receive
in respect of the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.
9.8 Assignments.
-----------
(a) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
Lender or any affiliate of any Lender or, with the consent, subject to Section
11.1 of the Participation Agreement, of the Borrower and the Administrative
Agent and, so long as no Default or Event of Default shall have occurred and be
continuing, the Lessee and the Guarantor (which in each case shall not be
unreasonably withheld or delayed), to an additional bank, financial institution
or other entity that is either organized under the laws of the United States or
any state thereof or is a foreign bank that operates a branch office in the
United States, (each, a "Purchasing Lender") all or any part of its rights and
-----------------
obligations under this Agreement and the other Operative Agreements pursuant to
an Assignment and Acceptance, substantially in the form of Exhibit B, executed
---------
by such Purchasing Lender, such assigning Lender (and, in the case of a
Purchasing Lender that is not a Lender or an affiliate thereof, subject to
Section 11.1 of the Participation Agreement, by the
32
Borrower and the Administrative Agent) and delivered to the Administrative Agent
for its acceptance and recording in the Register; provided that no such
--------
assignment to a Purchasing Lender (other than any Lender or any affiliate
thereof) shall be in an aggregate principal amount less than $5,000,000 (other
than in the case of an assignment of all of a Lender's interests under this
Agreement and the Notes). Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Purchasing Lender thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Commitment as set forth
therein, and (y) the assigning Lender thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto).
Notwithstanding anything to the contrary in this Agreement, the consent of the
Borrower shall not be required, and, unless requested by the relevant Purchasing
Lender and/or assigning Lender, new Notes shall not be required to be executed
and delivered by the Borrower, for any assignment which occurs at any time when
any of the events described in Section 6(g) shall have occurred and be
continuing.
(b) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and a Purchasing Lender (and, in the case of a Purchasing
Lender that is not a Lender or an affiliate thereof, by the Borrower and the
Administrative Agent) together with payment to the Administrative Agent of a
registration and processing fee of $2,500 (which shall not be payable by the
Borrower or the Lessee, except as otherwise provided in connection with an
assignment requested in accordance with Section 2.14(b)), the Administrative
Agent shall (i) promptly accept such Assignment and Acceptance and (ii) promptly
after the effective date determined pursuant thereto, record the information
contained therein in the Register and give notice of such acceptance and
recordation to the Lenders and the Borrower. On or prior to such effective
date, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent new Notes (in exchange for the Notes of the assigning
Lender), each in an amount equal to the Commitment assumed or Loans purchased by
the relevant Purchasing Lender pursuant to such Assignment and Acceptance, and,
if the assigning Lender has retained a Commitment or any Loan hereunder, new
Notes to the order of the assigning Lender, each in an amount equal to the
Commitment or Loans retained by it hereunder. Such new Notes shall be dated the
Effective Date and shall otherwise be in the form of the Notes replaced thereby.
(c) Each Purchasing Lender (other than any Lender organized and
existing under the laws of the U.S. or any political subdivision in or of the
U.S.), by executing and delivering an Assignment and Acceptance,
(A) agrees to execute and deliver to the Administrative Agent,
as promptly as practicable, four signed copies (two for the Administrative
Agent and two for delivery by the Administrative Agent to the Borrower) of
Form 1001 or Form 4224 (or any successor form or comparable form) (it being
understood that if the applicable form is not so delivered, payments under
or in respect of this Agreement may be subject to withholding and
deduction);
33
(B) represents and warrants to the Borrower and the
Administrative Agent that the form so delivered is true and accurate and
that, as of the effective date of the applicable Assignment and Acceptance,
each of such Purchasing Lender's Lending Offices is entitled to receive
payments of principal and interest under or in respect of this Agreement
without withholding or deduction for or on account of any taxes imposed by
the U.S. Federal government;
(C) agrees to thereafter deliver to each of the Borrower and the
Administrative Agent upon reasonable request and not later than December 31
of the year preceding the year to which it will apply, such further
properly completed signed copies of Form 1001 or Form 4224 (or any
successor form or comparable form), as appropriate, unless an event has
occurred which renders the relevant form inapplicable (it being understood
that if the applicable form is not so delivered, payments under or in
respect of this Agreement may be subject to withholding and deduction);
(D) agrees to promptly notify the Borrower and the
Administrative Agent in writing if it ceases to be entitled to receive
payments of principal and interest under or in respect of this Agreement
without withholding or deduction for or on account of any taxes imposed by
the U.S. or any political subdivision in or of the U.S. (it being
understood that payments under or in respect of this Agreement may be
subject to withholding and deduction in such event);
(E) acknowledges that in the event it ceases to be exempt from
withholding and/or deduction of such taxes, the Administrative Agent may
withhold and/or deduct the applicable amount from any payments to which
such assignee Lender would otherwise be entitled, without any liability to
such assignee Lender therefor; and
(F) agrees to indemnify the Borrower and the Administrative
Agent from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs or expenses that
result from such assignee Lender's breach of any such representation,
warranty or agreement.
(d) Any Lender party to this Agreement may, from time to time and
without the consent of the Borrower or any other Person, may pledge or assign
for security purposes any portion of its Loans or any other interests in this
Agreement and the other Credit Documents to any Federal Reserve Bank.
9.9 The Register; Disclosure; Pledges to Federal Reserve Banks.
----------------------------------------------------------
(a) The Administrative Agent shall maintain at its address referred
to in Section 9.2 a copy of each Assignment and Acceptance delivered to it and a
register (the "Register") for the recordation of the names and addresses of the
--------
Lenders, the Commitments of the Lenders, and the principal amount of the Loans
owing to each Lender from time to time. The entries in the Register shall be
conclusive, in the absence of clearly demonstrable error, and the
34
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as the owner of the Loan recorded therein for
all purposes of this Agreement. The Register shall be available for inspection
by the Borrower or any Lender at any reasonable time and from time to time upon
reasonable notice.
(b) Nothing herein shall prohibit any Lender from pledging or
assigning any Note to any Federal Reserve Bank in accordance with applicable
law.
9.10 Adjustments; Set-off.
--------------------
(a) Except as otherwise expressly provided in Section 8.1 hereof
where, and to the extent, one Lender is entitled to payments prior to other
Lenders, if any Lender (a "Benefited Lender") shall at any time receive any
----------------
payment of all or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 6(g), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other Lender's Loans,
or interest thereon, such Benefited Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender's Loan, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however, that if all or any
-------- -------
portion of such excess payment or benefits is thereafter recovered from such
Benefited Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the event of such recovery, but without interest.
(b) In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such rights,
upon the occurrence of an Event of Default, the Administrative Agent and each
Lender is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and apply any and all deposits (general or special) and any other
Indebtedness at any time held or owing by the Administrative Agent or such
Lender (including, without limitation, by branches and agencies of the
Administrative Agent or such Lender wherever located) to or for the credit or
the account of the Borrower against and on account of the obligations and
liabilities of the Borrower to the Administrative Agent or such Lender under
this Agreement or under any of the other Operative Agreements, including,
without limitation, all interests in obligations of the Borrower purchased by
any such Lender pursuant to Section 9.10(a), and all other claims of any nature
or description arising out of or connected with this Agreement or any other
Operative Agreement, irrespective or whether or not the Administrative Agent or
such Lender shall have made any demand and although said obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.
35
9.11 Counterparts.
------------
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by telecopy), and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
9.12 Severability.
------------
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.13 Integration.
-----------
This Agreement and the other Credit Documents represent the agreement
of the Borrower, the Administrative Agent, and the Lenders with respect to the
subject matter hereof, and there are no promises, undertakings, representations
or warranties by the Administrative Agent or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other
Credit Documents.
9.14 GOVERNING LAW.
-------------
THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE COMMONWEALTH OF VIRGINIA.
9.15 Submission To Jurisdiction; Waivers.
-----------------------------------
The Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the
Commonwealth of Virginia, the courts of the United States of America for the
Eastern District of Virginia, and appellate courts from any thereof;
(b) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail) postage prepaid, to the Borrower at its
address set forth in Section 9.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
36
(c) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to ▇▇▇ in any other jurisdiction; and
(d) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this Section 9.15 any special, exemplary, punitive or consequential damages.
9.16 Acknowledgments.
---------------
Borrower hereby acknowledges that:
(a) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duly to the Borrower arising out of or in connection with
this Agreement or any of the other Credit Documents, and the relationship
between the Administrative Agent and the Lenders, on one hand, and the Borrower,
on the other hand, in connection herewith or therewith is solely that of debtor
and creditor; and
(b) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
9.17 WAIVERS OF JURY TRIAL.
---------------------
THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
9.18 Nonrecourse.
-----------
Anything to the contrary contained in this Agreement or in any other
Operative Agreement notwithstanding, neither the Borrower nor any officer,
director or shareholder thereof, nor any of the Borrower's successors or assigns
(all such Persons being hereinafter referred to collectively as the "Exculpated
----------
Persons"), shall be personally liable in any respect for any liability or
-------
obligation hereunder or under any other Operative Agreement including the
payment of the principal of, or interest on, the Notes, or for monetary damages
for the breach of performance of any of the covenants contained in this
Agreement, the Notes or any of the other Operative Agreements. The
Administrative Agent and the Lenders agree that, in the event any of them
pursues any remedies available to them under this Agreement, the Notes or any
other Operative Agreement, neither the Administrative Agent nor the Lenders
shall have any recourse against the Borrower, nor any other Exculpated Person,
for any deficiency, loss or claim for monetary damages or otherwise resulting
therefrom and recourse shall be had solely and exclusively against the COSI
Trust Estate and as permitted under the Operative Agreements; but nothing
contained herein shall be taken to prevent recourse against or the enforcement
of
37
remedies against the COSI Trust Estate in respect of any and all liabilities,
obligations and undertakings contained in this Agreement, the Notes or any other
Operative Agreement. The Administrative Agent and the Lenders further agree
that the Borrower shall not be responsible for the payment of any amounts owing
hereunder (excluding principal and interest (other than Overdue Interest) in
respect of the Loans) (such non-excluded amounts, "Supplemental Amounts") except
--------------------
to the extent that payments of Supplemental Rent designated by the Lessee for
application to such Supplemental Amounts shall have been paid by the Lessee
pursuant to the Lease (it being understood that the failure by the Lessee for
any reason to pay any Supplemental Rent in respect of such Supplemental Amounts
shall nevertheless be deemed to constitute a default by the Borrower for the
purposes of Section 6(a)(ii)). Notwithstanding the foregoing provisions of this
Section 9.18, nothing in this Agreement or any other Operative Agreement shall
(a) constitute a waiver, release or discharge of any obligation evidenced or
secured by this Agreement or any other Credit Document, (b) limit the right of
the Administrative Agent or any Lender to name the Borrower as a party defendant
in any action or suit for judicial foreclosure and sale under any Security
Document, or (c) affect in any way the validity or enforceability of any
guaranty (whether of payment and/or performance) given to the Lessor, the
Administrative Agent or the Lenders, or of any indemnity agreement given by the
Borrower, in connection with the Loans made hereunder.
9.19 USURY SAVINGS PROVISION.
-----------------------
IT IS THE INTENT OF THE PARTIES HERETO TO CONFORM TO AND CONTRACT IN
STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT. TO THE
EXTENT ANY PAYMENTS HEREUNDER ARE HEREINAFTER CHARACTERIZED BY ANY COURT OF
COMPETENT JURISDICTION AS THE REPAYMENT OF PRINCIPAL AND INTEREST THEREON, THIS
SECTION 9.19 SHALL APPLY. ANY SUCH PAYMENTS SO CHARACTERIZED AS INTEREST MAY BE
REFERRED TO HEREIN AS "INTEREST." ALL AGREEMENTS AMONG THE PARTIES HERETO ARE
HEREBY LIMITED BY THE PROVISIONS OF THIS PARAGRAPH WHICH SHALL OVERRIDE AND
CONTROL ALL SUCH AGREEMENTS, WHETHER NOW EXISTING OR HEREAFTER ARISING AND
WHETHER WRITTEN OR ORAL. IN NO WAY, NOR IN ANY EVENT OR CONTINGENCY (INCLUDING,
BUT NOT LIMITED TO, PREPAYMENT OR ACCELERATION OF THE MATURITY OF ANY
OBLIGATION), SHALL ANY INTEREST TAKEN, RESERVED, CONTRACTED FOR, CHARGED, OR
RECEIVED UNDER THIS AGREEMENT OR OTHERWISE, EXCEED THE MAXIMUM NONUSURIOUS
AMOUNT PERMISSIBLE UNDER APPLICABLE LAW. IF, FROM ANY POSSIBLE CONSTRUCTION OF
ANY OF THE OPERATIVE AGREEMENTS OR ANY OTHER DOCUMENT OR AGREEMENT, INTEREST
WOULD OTHERWISE BE PAYABLE IN EXCESS OF THE MAXIMUM NONUSURIOUS AMOUNT, ANY SUCH
CONSTRUCTION SHALL BE SUBJECT TO THE PROVISIONS OF THIS PARAGRAPH AND SUCH
AMOUNTS UNDER SUCH DOCUMENTS OR AGREEMENTS SHALL BE AUTOMATICALLY REDUCED TO THE
MAXIMUM NONUSURIOUS AMOUNT PERMITTED UNDER APPLICABLE LAW, WITHOUT THE NECESSITY
OF EXECUTION OF ANY AMENDMENT OR NEW DOCUMENT OR AGREEMENT. IF THE AGENT OR ANY
LENDER SHALL EVER RECEIVE ANYTHING OF VALUE WHICH IS
38
CHARACTERIZED AS INTEREST WITH RESPECT TO THE OBLIGATIONS OWED HEREUNDER OR
UNDER APPLICABLE LAW AND WHICH WOULD, APART FROM THIS PROVISION, BE IN EXCESS OF
THE MAXIMUM LAWFUL AMOUNT, AN AMOUNT EQUAL TO THE AMOUNT WHICH WOULD HAVE BEEN
EXCESSIVE INTEREST SHALL, WITHOUT PENALTY, BE APPLIED TO THE REDUCTION OF THE
COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL AND NOT TO THE PAYMENT OF INTEREST,
OR REFUNDED TO BORROWER OR ANY OTHER PAYOR THEREOF, IF AND TO THE EXTENT SUCH
AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE EXCEEDS THE COMPONENT OF PAYMENTS DEEMED
TO BE PRINCIPAL. THE RIGHT TO DEMAND PAYMENT OF ANY AMOUNTS EVIDENCED BY ANY OF
THE OPERATIVE AGREEMENTS DOES NOT INCLUDE THE RIGHT TO RECEIVE ANY INTEREST
WHICH HAS NOT OTHERWISE ACCRUED ON THE DATE OF SUCH DEMAND, AND NEITHER THE
AGENT NOR ANY LENDER INTENDS TO CHARGE OR RECEIVE ANY UNEARNED INTEREST IN THE
EVENT OF SUCH DEMAND. ALL INTEREST PAID OR AGREED TO BE PAID TO THE AGENT OR ANY
LENDER SHALL, TO THE EXTENT PERMITTED BY APPLICABLE LAW, BE AMORTIZED, PRORATED,
ALLOCATED, AND SPREAD THROUGHOUT THE FULL STATED TERM (INCLUDING ANY RENEWAL OR
EXTENSION) OF THIS AGREEMENT SO THAT THE AMOUNT OF INTEREST ON ACCOUNT OF SUCH
PAYMENTS DOES NOT EXCEED THE MAXIMUM NONUSURIOUS AMOUNT PERMITTED BY APPLICABLE
LAW.
[The remainder of this page has been left blank intentionally.]
39
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
individually except as expressly stated herein,
but solely as Owner Trustee for Capital One Realty
Trust 1998-1
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Title: Assistant Trust Officer
-----------------------
[Signature pages continue]
BANK OF AMERICA, N.A., as Administrative Agent,
and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: Vice President
-------------------------
[Signature pages continue]
FIRST NATIONAL BANK OF CHICAGO, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President
--------------------------
[Signature pages continue]
BARCLAYS BANK PLC, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
Title: Director
-----------------------
[Signature pages continue]
FIRST UNION NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------
Title: Vice President
-----------------------------
[Signature pages continue]
KBC BANK N.V., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Title: First Vice President
--------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------
Title: Vice President
--------------------------
[Signature pages continue]
CREDIT LYONNAIS - NY BRANCH, as a Lender
By: /s/ W. ▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: W. ▇▇▇ ▇▇▇▇▇▇
---------------------------
Title: Vice President
--------------------------
[Signature page continues]
BMO GLOBAL CAPITAL SOLUTIONS, INC., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Title: Vice President
----------------------------
[Signature page continues]
BANK OF MONTREAL, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇▇▇▇
----------------------
Title: Director
---------------------
[Signature pages end]
Schedule 1.1
------------
Tranche A Tranche B
Commitment Commitment
--------------------------- --------------------------
Name and Address of Lender Amount Percentage Amount Percentage
-------------------------- ------------- ------------ ----------- ------------
Bank of America, N.A. $5,114,825.58 20.0581% $608,091.09 18.1520%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
First National Bank of Chicago $ 3,187,500 12.5000% $ 418,750 12.5000%
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: R. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Barclays Bank PLC $ 3,187,500 12.5000% $ 418,750 12.5000%
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
First Union National Bank $ 3,187,500 12.5000% $ 418,750 12.5000%
▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇ 3246
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
KBC Bank, N.V. - Atlanta Rep. Office $3,286,337.21 12.8876% $463,662.79 13.8407%
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Credit Lyonnais - NY Branch $3,286,337.21 12.8876% $463,662.79 13.8407%
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇, Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Tranche A Tranche B
Commitment Commitment
--------------------------- --------------------------
Name and Address of Lender Amount Percentage Amount Percentage
-------------------------- ------------- ------------ ----------- ------------
Bank of Montreal $ 4,250,000 16.6667% $ 0.00 0.0000%
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇, Director
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
BMO Global Capital Solutions $ 0.00 0.0000% $558,333.33 16.6667%
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ Deal
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Total $25,500,000 100% $ 3,350,000 100%
Exhibit A-1
-----------
TRANCHE A NOTE
(Capital One Services, Inc.)
$______________ _______________
_______________
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as Owner Trustee for the
Capital One Realty Trust ▇▇▇▇-▇ (▇▇▇ "▇▇▇▇▇▇▇▇"), hereby unconditionally
--------
promises to pay to the order of [Lender] (the "Lender") at the office of
------
______________________ ______________________________________________
________________________ in lawful money of the United States of America and in
immediately available funds, on the Maturity Date, the principal amount of (a)
_________________________ ____________________________________ NO/100 DOLLARS
($_____________), or, if less, (b) the aggregate unpaid principal amount of all
Loans made by the Lender to the Borrower pursuant to Section 2.1 of the Credit
Agreement (as defined below). The Borrower further agrees to pay interest in
like money at such office on the unpaid principal amount hereof from time to
time outstanding at the rates and on the dates specified in Section 2.8 of such
Credit Agreement.
The holder of this Note is authorized to endorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, Type and amount of each Loan
made pursuant to the Credit Agreement and the date and amount of each payment or
prepayment of principal thereof, each continuation thereof and each conversion
of all or a portion thereof to another Type. Each such endorsement shall
constitute prima facie evidence of the accuracy of the information endorsed.
----- -----
The failure to make any such endorsement or any error in such endorsement shall
not affect the obligations of the Borrower in respect of such Loan.
This Note (a) is one of the Notes referred to in the Credit Agreement
(Capital One Services, Inc.) dated September 3, 1999 (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"), among the
----------------
Borrower, the Lender, the other banks and financial institutions from time to
time parties thereto and Bank of America, N.A., as Administrative Agent, (b) is
subject to the provisions of the Credit Agreement (including, without
limitation, Section 9.18 thereof) and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Credit Agreement. Reference
is hereby made to the Credit Documents for a description of the properties and
assets in which a security interest has been granted, the nature and extent of
the security and the guarantees, the terms and conditions upon which the
security interests and each guarantee were granted and the rights of the holder
of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
1
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE COMMONWEALTH OF VIRGINIA.
[The remainder of this page has been left blank intentionally.]
2
IN WITNESS WHEREOF, the undersigned authorized officer of the borrower has
executed this note as of the date first set forth above.
FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
individually, but solely as Owner Trustee for
Capital One Realty Trust 1998-1
By:_____________________________
Name:___________________________
Title:__________________________
3
Exhibit A-2
-----------
TRANCHE B NOTE
(Capital One Services, Inc.)
$______________ _______________
_______________
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as Owner Trustee for the
Capital One Realty Trust ▇▇▇▇-▇ (▇▇▇ "▇▇▇▇▇▇▇▇"), hereby unconditionally
--------
promises to pay to the order of [Lender] (the "Lender") at the office of _______
------
______________________________________________________________________________
in lawful money of the United States of America and in immediately available
funds, on the Maturity Date, the principal amount of (a)
_________________________ ____________________________________ NO/100 DOLLARS
($_____________), or, if less, (b) the aggregate unpaid principal amount of all
Loans made by the Lender to the Borrower pursuant to Section 2.1 of the Credit
Agreement (as defined below). The Borrower further agrees to pay interest in
like money at such office on the unpaid principal amount hereof from time to
time outstanding at the rates and on the dates specified in Section 2.8 of such
Credit Agreement.
The holder of this Note is authorized to endorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, Type and amount of each Loan
made pursuant to the Credit Agreement and the date and amount of each payment or
prepayment of principal thereof, each continuation thereof and each conversion
of all or a portion thereof to another Type. Each such endorsement shall
constitute prima facie evidence of the accuracy of the information endorsed.
----- -----
The failure to make any such endorsement or any error in such endorsement shall
not affect the obligations of the Borrower in respect of such Loan.
This Note (a) is one of the Notes referred to in the Credit Agreement
(Capital One Services, Inc.) dated September 3, 1999 (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"), among the
----------------
Borrower, the Lender, the other banks and financial institutions from time to
time parties thereto and Bank of America, N.A., as Administrative Agent, (b) is
subject to the provisions of the Credit Agreement (including, without
limitation, Section 9.18 thereof) and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Credit Agreement. Reference
is hereby made to the Credit Documents for a description of the properties and
assets in which a security interest has been granted, the nature and extent of
the security and the guarantees, the terms and conditions upon which the
security interests and each guarantee were granted and the rights of the holder
of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE COMMONWEALTH OF VIRGINIA.
[The remainder of this page has been left blank intentionally.]
-2-
IN WITNESS WHEREOF, the undersigned authorized officer of the borrower has
executed this note as of the date first set forth above.
FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
individually, but solely as Owner Trustee for
Capital One Realty Trust 1998-1
By:_____________________________________
Name:___________________________________
Title:__________________________________
-3-
Exhibit B
---------
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement (Capital One Services, Inc.),
dated as of September 3, 1999 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among FIRST SECURITY BANK, NATIONAL
----------------
ASSOCIATION, not in its individual capacity, but solely as Owner Trustee for the
Capital One Realty Trust 1998-1 (the "Owner Trustee" or the "Borrower"), the
------------- --------
Lenders named therein and Bank of America, N.A., as Administrative Agent.
Unless otherwise defined herein, terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement.
____________________ (the "Assignor") and _______________ (the "Assignee")
-------- --------
agree as follows:
The Assignor hereby irrevocably sells and assigns to the Assignee without
recourse to the Assignor, and the Assignee hereby irrevocably purchases and
assumes from the Assignor without recourse to the Assignor, as of the Effective
Date (as defined below), a ___% interest (the "Assigned Interest") in and to the
-----------------
Assignor's rights and obligations under the Credit Agreement with respect to the
credit facility contained in the Credit Agreement as are set forth on Schedule 1
hereto (the "Assigned Facility"), in a principal amount for the Assigned
-----------------
Facility as set forth on Schedule 1.
The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Operative
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Operative Agreement or
any other instrument or document furnished pursuant thereto, other than that it
has not created any adverse claim upon the interest being assigned by it
hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, or any other obligor or the
performance or observance by the Borrower, or any other obligor of any of their
respective obligations under the Credit Agreement or any other Operative
Agreement or any other instrument or document furnished pursuant hereto or
thereto; and (c) attaches the Note held by it evidencing the Assigned Facility
and requests that the Administrative Agent exchange such Note for a new Note
payable to the Assignee and (if the Assignor has retained any interest in the
Assigned Facility) a new Note payable to the Assignor in the respective amounts
which reflect the assignment being made hereby (and after giving effect to any
other assignments which have become effective on the Effective Date).
The Assignee (a) represents and warrants that it is legally authorized to
enter into this Assignment and Acceptance; (b) confirms that it has received
copies of the Operative Agreements, and such other documents and information as
it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment and Acceptance;
(c) agrees that it will, independently and without reliance upon the Assignor,
the Administrative 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 the Credit Agreement, the
other Operative Agreements or any other instrument or document furnished
pursuant hereto or thereto; (d) appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement, the other Operative Agreements or any
other instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and the other Operative Agreements to which
Assignee is a party and will perform in accordance herewith all the obligations
which by the terms of the Credit Agreement and the other Operative Agreements to
which Assignee is a party are required to be performed by it as a Lender
including, if it is organized under the laws of a jurisdiction outside the U.S.,
its obligation pursuant to Section 2.13(b) of the Credit Agreement.
The effective date of this Assignment and Acceptance shall be ________,
19__ (the "Effective Date"). Following the execution of this Assignment and
--------------
Acceptance, it will be delivered to the Administrative Agent for acceptance by
it and recording by the Administrative Agent pursuant to Section 9.9 of the
Credit Agreement, effective as of the Effective Date (which shall not, unless
otherwise agreed to by the Administrative Agent, be earlier than five Business
Days after the date of such acceptance and recording by the Administrative
Agent).
Upon such acceptance and recording, from and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to the Effective Date or accrue
subsequent to the Effective Date. The Assignor and the Assignee shall make all
appropriate adjustments in payments by the Administrative Agent for periods
prior to the Effective Date or with respect to the making of this assignment
directly between themselves.
From and after the Effective Date, (a) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and under the other
Operative Agreements and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement and the other Operative Agreements.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Commonwealth of Virginia.
[The remainder of this page has been left blank intentionally.]
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
[Name of Assignor]
By:__________________________________
Name:________________________________
Title:_______________________________
[Name of Assignee]
By:__________________________________
Name:________________________________
Title:_______________________________
Consented To:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but solely
as the Owner Trustee under the Capital One Real Trust 1998-1
By:__________________________________
Name:________________________________
Title:_______________________________
BANK OF AMERICA, N.A., as the Agent
By:__________________________________
Name:________________________________
Title:_______________________________
[consents required only to the extent expressly provided in Section 9.8 of the
Credit Agreement]
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT (CAPITAL ONE SERVICES, INC.),
DATED AS OF AUGUST 31, 1999,
AMONG
FIRST SECURITY BANK, NATIONAL ASSOCIATION
NOT INDIVIDUALLY,
BUT SOLELY AS OWNER TRUSTEE,
THE LENDERS NAMED THEREIN
AND
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT
FOR THE LENDERS (IN SUCH CAPACITY, THE "ADMINISTRATIVE AGENT")
--------------------
Name of Assignor:_________________________
Name of Assignee:_________________________
Effective Date of Assignment:_____________
Credit Facility Principal Amount Commitment Percentage
Assigned Assigned Assigned
-------- -------- --------
--------------- $---------------- ----------------------%
[Name of Assignor]
By:__________________________________
Name:________________________________
Title:_______________________________
[Name of Assignee]
By:__________________________________
Name:________________________________
Title:_______________________________