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Exhibit 10.30
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CREDIT AGREEMENT
Dated as of February 1, 1999
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, except as
expressly stated herein,
but solely as the Owner Trustee
under the SRI Realty Trust 1998-1,
as the Borrower,
and
FIRST UNION NATIONAL BANK,
as the Bank
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS...........................................................................................1
1.1 Definitions..........................................................................................1
1.2 Interpretation.......................................................................................1
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.......................................................................1
2.1 Commitments..........................................................................................1
2.2 Notes................................................................................................2
2.3 Procedure for Borrowing..............................................................................2
2.4 [Intentionally Left Blank]...........................................................................3
2.5 Termination or Reduction of Commitments..............................................................3
2.6 Prepayments and Payments.............................................................................4
2.7 Conversion and Continuation Options..................................................................5
2.8 Interest Rates and Payment Dates.....................................................................5
2.9 Computation of Interest..............................................................................6
2.10 [Intentionally Left Blank]..........................................................................7
2.11 Notice of Amounts Payable; Mandatory Assignment.....................................................7
2.12 Letter of Credit Subfacility........................................................................7
SECTION 3. REPRESENTATIONS AND WARRANTIES.......................................................................13
SECTION 4. CONDITIONS PRECEDENT.................................................................................14
4.1 Conditions to Effectiveness.........................................................................14
4.2 Conditions to Each Loan and Letter of Credit........................................................14
SECTION 5. COVENANTS............................................................................................14
5.1 Other Activities....................................................................................14
5.2 Ownership of Properties, Indebtedness...............................................................14
5.3 Disposition of Assets...............................................................................15
5.4 Compliance with Operative Agreements................................................................15
5.5 Further Assurances..................................................................................15
5.6 Notices.............................................................................................15
5.7 Discharge of Liens..................................................................................15
5.8 Trust Agreement.....................................................................................16
SECTION 6. EVENTS OF DEFAULT....................................................................................16
SECTION 7. [INTENTIONALLY LEFT BLANK]...........................................................................18
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL...........................................................19
8.1 Collection and Allocation of Payments and Other Amounts.............................................19
8.2 Certain Remedial Matters............................................................................19
8.3 Excepted Payments...................................................................................19
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SECTION 9 MISCELLANEOUS.........................................................................................19
9.1 Amendments and Waivers..............................................................................19
9.2 Notices.............................................................................................19
9.3 No Waiver; Cumulative Remedies......................................................................20
9.4 Survival of Representations and Warranties..........................................................20
9.5 Payment of Expenses and Taxes.......................................................................20
9.6 Successors and Assigns; Participations and Assignments..............................................20
9.7 [Intentionally Left Blank]..........................................................................20
9.8 Assignments.........................................................................................20
9.9 [Intentionally Left Blank]..........................................................................21
9.10 Set-off............................................................................................21
9.11 Counterparts.......................................................................................22
9.12 Severability.......................................................................................22
9.13 Integration........................................................................................22
9.14 GOVERNING LAW......................................................................................22
9.15 SUBMISSION TO JURISDICTION; VENUE; ARBITRATION.....................................................22
9.16 Acknowledgments....................................................................................23
9.17 WAIVERS OF JURY TRIAL..............................................................................23
9.18 Nonrecourse........................................................................................23
9.19 USURY SAVINGS PROVISION............................................................................24
EXHIBITS
EXHIBIT A-1 Form of Note
EXHIBIT B Form of Assignment and Acceptance
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of February 1, 1999 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
the "Agreement") is among FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
individually, except as expressly stated herein, but solely as the Owner
Trustee under the SRI Realty Trust 1998-1 (the "Owner Trustee" or the
"Borrower") and FIRST UNION NATIONAL BANK, a national banking association, as
lender ("Bank").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINITIONS.
For purposes of this Agreement, capitalized terms used in this
Agreement and not otherwise defined herein shall have the meanings assigned to
them in Appendix A to that certain Participation Agreement dated as of February
1, 1999 (as amended, modified, extended, supplemented, restated and/or replaced
from time to time in accordance with the applicable provisions thereof, the
"Participation Agreement") among Sterile Recoveries, Inc., as Lessee and as
Construction Agent, the Borrower, and First Union National Bank, as Lender and
Holder. Unless otherwise indicated, references in this Agreement to articles,
sections, paragraphs, clauses, appendices, schedules and exhibits are to the
same contained in this Agreement.
1.2 INTERPRETATION.
The rules of usage set forth in Appendix A to the Participation
Agreement shall apply to this Agreement.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 COMMITMENTS.
(a) Subject to the terms and conditions hereof, the Bank agrees to
make Loans to the Borrower and to issue Letters of Credit in connection with
Development Authority financings of Properties from time to time during the
Commitment Period in an aggregate amount up to the Commitment for the purpose
of enabling the Borrower to purchase the Properties (or to the extent
applicable in connection with any Development Authority financings or
otherwise, to lease the Properties) and to pay Property Acquisition Costs,
Property Costs and Transaction Expenses. Any prepayments of the Loans, whether
mandatory or at the Borrower's election, shall not be subject to reborrowing
except as set forth in Section 5.2(d) of the Participation Agreement.
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(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 Bank in accordance with Sections 2.3 and 2.7. The Letters of
Credit shall satisfy the requirements of Section 2.12. In the event the Borrower
fails to provide notice pursuant to Section 2.3, the Loan shall be an ABR Loan.
Further, any Loans by the Bank on a given date in an aggregate amount less than
$100,000 shall be ABR Loans, unless the remaining Available Commitment is less
than $100,000, in which case, the Borrower may elect a Eurodollar Loan for such
remaining amount.
2.2 NOTES.
The Loans and the LOC Reimbursement Amounts shall be evidenced by
promissory notes of the Borrower, substantially in the form of EXHIBIT A (the
"Notes"), with appropriate insertions as to payee and date. The Bank is hereby
authorized to record the date, Type and amount of each Loan made each
continuation thereof, each conversion of all or a portion thereof to another
Type, the date and amount of each payment or prepayment of principal thereof
and information regarding the LOC Reimbursement Amounts on the schedule annexed
to and constituting a part of any Note, and any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded,
provided, that the failure to 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 (i) be dated the Initial Closing Date, (ii) be stated to
mature on the Maturity Date and (iii) provide for the payment of principal in
accordance with Section 2.6(d) and the payment of interest in accordance with
Section 2.8.
2.3 PROCEDURE FOR BORROWING.
(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
Borrower shall give the Bank irrevocable notice (which must be received by the
Bank prior to 12:00 Noon, prevailing Eastern time, at least three (3) Business
Days prior to the requested Borrowing Date specifying (i) the amount to be
borrowed (which on any date shall not be in excess of the then Available
Commitments), (ii) the requested Borrowing Date, (iii) whether the borrowing is
to be of Eurodollar Loans, ABR Loans or a combination thereof, (iv) if the
borrowing is to be a combination of Eurodollar Loans and ABR Loans, the
respective amounts of each Type of Loan and (v) the Interest Period applicable
to each Eurodollar Loan. 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 Bank shall
make such borrowing available for the account of the Borrower at the office of
the Bank specified in Section 9.2 prior to 12:00 Noon, prevailing Eastern time,
on the Borrowing Date requested by the Borrower in funds immediately available.
No amount of any Loan which is repaid or prepaid by the Borrower may be
reborrowed hereunder, except as set forth in Section 5.2(d) of the
Participation Agreement. The Borrower may request the issuance of one or more
Letters of Credit in accordance with Section 2.12. For the period prior to the
Completion Date for each Property (without regard to receipt of any such notice
as referenced in
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the preceding provisions of this Section 2.3(a) but subject to the satisfaction
or waiver of all other conditions precedent under Section 5.3 of the
Participation Agreement), the Bank shall fund a Loan on each date that a draw
is made with respect to any Letter of Credit on each date that a Tender Advance
is to be made and on each date that a payment for the Bank is required on any
Redemption Date in order to reimburse the Bank for such draw, Tender Advance,
other such Advance and all other LOC Reimbursement Amounts payable pursuant to
Section 2.12 on any such date except for amounts due and owing pursuant to
Section 2.12(k); provided, notwithstanding the foregoing, no such Loan shall be
made to the extent the Borrower has otherwise received Bond fund proceeds to
reimburse the Bank (and has in fact reimbursed the Bank) for each such draw,
Tender Advance, other such payments on any Redemption Date and all other LOC
Reimbursement Amounts. To the extent such conditions precedent are not
satisfied or waived (and the Borrower has not otherwise received Bond fund
proceeds to reimburse the Bank (or has not otherwise reimbursed the Bank) for
each such draw, Tender Advance, other such Advance or payment and all other LOC
Reimbursement Amounts due and owing on such Redemption Date), then such draw,
Tender Advance, other such Advance and such other LOC Reimbursement Amounts
shall not be reimbursed with Loan proceeds and instead shall accrue interest as
specified in Section 2.12 until the Completion Date for the applicable
Property. Amounts owed pursuant to Section 2.12(k) shall be paid (at the
election of the Borrower) by the Borrower (with funds provided by the Lessee as
Supplemental Rent) or by the Lessee directly. For the period from and after the
Completion Date for each Property, the Borrower shall reimburse the Bank (with
funds provided by the Lessee as Supplemental Rent) for all LOC Reimbursement
Amounts on each date that a draw is made with respect to any Letter of Credit.
(b) Interest accruing on each Loan and on each LOC Reimbursement
Amount 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 and Section 2.12(a), be added to the principal amount of such Loan on
the relevant Scheduled Interest Payment Date and added to such LOC
Reimbursement Amount on the applicable draw date under the applicable Letter of
Credit. On each such Scheduled Interest Payment Date or other such date, the
Loan Property Cost and Construction Loan Property Cost shall be increased by
the amount of interest added to the Loans.
2.4 [INTENTIONALLY LEFT BLANK].
2.5 TERMINATION OR REDUCTION OF COMMITMENTS.
(a) The Borrower shall have the right, upon not less than three (3)
Business Days' written notice to the Bank, 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 outstanding principal
amount of the Loans plus the aggregate LOC Obligations 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
ninety-seven percent (97%) of aggregate Budgeted Total 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 (A) shall be in an amount equal to the lesser of (1) $1,000,000 (or
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an even multiple thereof) or (2) the remaining Available Commitments and (B)
shall reduce permanently the Commitments then in effect.
(b) Except for the Commitment to issue Letters of Credit which shall
continue until the date five (5) days prior to the Maturity Date (provided,
however, in no event shall any Letter of Credit issued pursuant hereto have an
expiry date (including without limitation pursuant to any extension thereof)
after the Maturity date), the Commitments respecting any particular Property
shall automatically be reduced to zero (0) upon the occurrence of the Rent
Commencement Date respecting such Property. On any date on which the
Commitments shall automatically be reduced to zero (0) pursuant to Section 6,
the Borrower shall prepay all outstanding Loans, all outstanding amounts under
the Letters of Credit and in each case together with accrued unpaid interest
thereon and all other amounts owing thereunder.
2.6 PREPAYMENTS AND PAYMENTS.
(a) Subject to Sections 11.2(e), 11.3 and 11.4 of the Participation
Agreement, 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 Bank, 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. 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, and shall reduce the Commitments and the Available Commitments,
except in each case as set forth in Section 5.2(d) of the Participation
Agreement. The LOC Reimbursement Amounts shall be paid pursuant to Section
2.12.
(b) If on any date the Lessor shall receive any payment in respect of
(i) any Casualty, Condemnation or Environmental Violation pursuant to Sections
15.1(a) or 15.1(g) or Article XVI of the Lease (excluding any payments in
respect thereof which are payable to the Lessee in accordance with 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 Article XX 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 (iv) any payment 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 Borrower shall pay such amounts to the Bank.
(c) 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 Loan Property Costs of such Properties immediately before
giving effect to such prepayment. Each prepayment of the Loans pursuant to
Section 2.6(b) shall be allocated to reduce the Loan Property Cost of the
Property or Properties subject to the respective Casualty, Condemnation,
Environmental Violation, termination, purchase, transfer or other circumstance
giving rise 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
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Loan Property Cost of such Property until such Construction Loan Property Cost
has been reduced to zero (0).
(d) The outstanding principal balance of the Loans, the LOC
Reimbursement Amounts and all other amounts then due and owing under this
Agreement or otherwise with respect to the Loans or Letters of Credit shall be
due and payable in full on the Maturity Date.
2.7 CONVERSION AND CONTINUATION OPTIONS.
(a) The Borrower may elect from time to time to convert Eurodollar
Loans to ABR Loans by giving the Bank at least three (3) 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, and provided, further, to the extent an Event of Default has
occurred and is continuing on the last day of any such Interest Period, the
applicable Eurodollar Loan shall automatically be converted to an ABR Loan. The
Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans
by giving the Bank at least three (3) Business Days' prior irrevocable notice
of such election. 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 thirty (30) days prior
to the Maturity Date and (ii) such notice of conversion regarding any
Eurodollar Loan 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 the definition of the term
"Interest Period" including without limitation subparagraphs (A) through (D)
thereof.
(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 Bank, in accordance with the applicable notice provision for the
conversion of ABR Loans to Eurodollar Loans set forth herein, 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 (1) month
prior to the Maturity Date, provided, further, no Eurodollar Loans may be
continued as such if an Event of Default has occurred and is continuing as of
the last day of the Interest Period for such Eurodollar Loan, 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.
2.8 INTEREST RATES AND PAYMENT DATES.
(a) The Loans outstanding hereunder from time to time shall bear
interest at a rate per annum equal to either (i) with respect to a Eurodollar
Loan, the Eurodollar Rate determined for the applicable Interest Period plus
the Applicable Percentage or (ii) with respect to an ABR Loan, the ABR, as
selected by the Borrower in accordance with the provisions hereof; provided,
however, (A) the Loans of the Lender shall bear interest at the ABR applicable
from time to time from and after the dates and during the periods specified in
Section 2.9(c), (B) the Loans
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shall bear interest at the ABR applicable from time to time from and after the
dates and during the periods specified in Section 11.3(f) of the Participation
Agreement and (C) in such other circumstances as expressly provided herein, the
Loans shall bear interest at the ABR. The LOC Reimbursement Amounts hereunder
from time to time shall bear interest in accordance with the provisions of
Section 2.12.
(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) the then current rate of interest respecting such payment
plus two percent (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). All such amounts referenced in this
Section 2.8(b) shall be paid upon demand.
(c) Interest on Loans shall be payable in arrears on the applicable
Scheduled Interest Payment Date provided, that (i) 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.
(a) Whenever it is calculated on the basis of the Prime Lending Rate,
interest shall be calculated on the basis of a year of three hundred sixty-five
(365) days (or three hundred sixty-six (366) days, as the case may be) for the
actual days elapsed; and, otherwise, interest shall be calculated on the basis
of a year of three hundred sixty (360) days for the actual days elapsed. All
payments of interest, commission, reimbursement and other charges with regard
to the Letters of Credit shall be calculated on the basis of a year of three
hundred sixty (360) days for the actual days elapsed. The Bank shall as soon as
practicable notify the Borrower 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 Bank shall as soon as practicable notify the
Borrower of the effective date and the amount of each such change in interest
rate.
(b) Each determination of an interest rate by the Bank pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower in
the absence of manifest error.
(c) If the Eurodollar Rate cannot be determined by the Bank in the
manner specified in the definition of the term "Eurodollar Rate", the Bank shall
give telecopy or telephonic notice thereof to the Borrower as soon as
practicable thereafter. Until such time as the Eurodollar Rate can be determined
by the Bank 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.
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2.10 [INTENTIONALLY LEFT BLANK]
2.11 NOTICE OF AMOUNTS PAYABLE; MANDATORY ASSIGNMENT.
(a) In the event that the Bank becomes aware that any amounts are or
will be owed to it pursuant to Sections 11.2(e) or 11.3 of the Participation
Agreement or that it is unable to make Eurodollar Loans, then it shall promptly
notify the Borrower and the Lessee thereof and, as soon as possible thereafter,
the Bank shall submit to the Borrower 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) In the event that the Bank delivers to the Borrower a certificate
in accordance with Section 2.11(a) in connection with amounts payable pursuant
to Sections 11.2(e) or 11.3 of the Participation Agreement or the Bank is
required to make Loans as ABR Loans in accordance with Section 11.3(d) of the
Participation Agreement then, subject to Section 9.1 of the Participation
Agreement, the Borrower may, at its own expense (provided, such amounts shall
be reimbursed or paid entirely (as elected by the Borrower) by the Lessee, as
Supplemental Rent) and in the discretion of the Borrower, (i) require the Bank
to transfer or assign, in whole or (with the Bank's consent) in part, without
recourse (in accordance with Section 9.8), all or (with the Bank's consent)
part 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 9.1 of the
Participation Agreement), with the full cooperation of the Bank, 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 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 and
prepay all outstanding Loans and all LOC Reimbursement Amounts, provided,
however, that (x) subject to Section 9.1 of the Participation Agreement, the
Borrower or such replacement bank or institution, as the case may be, shall
have paid to the Bank in immediately available funds the principal of and
interest accrued to the date of such payment on the Loans and all LOC
Reimbursement Amounts and all other amounts owed to it hereunder (and all
Holder Advances 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 and prepayment of Loans
and LOC Reimbursement Amounts does not conflict with any law, rule or
regulation or order of any court or Governmental Authority.
2.12 LETTER OF CREDIT SUBFACILITY.
(a) Subject to the terms and conditions of the Operative Agreements
and any other terms and conditions which the Bank may reasonably require and in
reliance upon the representations and warranties set forth in the Operative
Agreements, the Bank agrees to issue Letters of Credit in favor of Bond
Trustees in connection with Development Authority financings of Properties in
Dollars from time to time from the Initial Closing Date until the date five (5)
days prior to the Maturity Date as the Borrower may request, in a form
acceptable to the Bank; provided, however, that the sum of the aggregate
outstanding principal amount of Loans plus LOC
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Obligations shall not at any time exceed the Commitment. Notwithstanding
anything to the contrary in any Operative Agreement, no Letter of Credit shall,
as originally issued or as extended, have an expiry date extending beyond the
Maturity Date. Each Letter of Credit shall comply with the related LOC
Documents. The issuance and expiry dates of each Letter of Credit shall be a
Business Day. The repayment of LOC Reimbursement Amounts shall be subject to
the provisions of Section 2.3(a), this Section 2.12 and the other applicable
provisions of this Agreement.
(b) The request for the issuance of a Letter of Credit shall be
submitted by the Borrower to the Bank at least three (3) Business Days prior to
the requested date of issuance.
(c) Except as otherwise provided in Section 2.12(d), the Borrower
shall pay to the Bank:
(i) on or before 3:00 P.M. (prevailing Eastern time), but
after the honoring of a draw by the Bank, on the date that any amount
is drawn under the applicable Letter of Credit, a sum together with
interest on such sum equal to such amount so drawn under the
applicable Letter of Credit, plus to the extent permitted by
applicable law, any and all reasonable charges and expenses that the
Bank may pay or incur relative to the applicable Letter of Credit
which have not been previously paid by or on behalf of the Borrower;
provided, the Borrower and the Bank acknowledge that such amounts due
under this Section 2.12(c)(i) shall be due and payable and subject to
interest thereon at a fluctuating interest rate per annum equal at all
times to the ABR plus two percent (2%) even though no Event of Default
has occurred;
(ii) on demand, interest on any and all amounts remaining
unpaid by the Borrower when due hereunder from the date such amounts
become due until payment thereof in full, at a fluctuating interest
rate per annum equal at all times to the ABR plus two percent (2%);
(iii) on demand, any and all reasonable expenses incurred
by the Bank in enforcing any rights under this Agreement and the
other Operative Agreements which have not been previously paid by or
on behalf of the Borrower; and
(iv) on demand all charges, commissions, costs and
expenses set forth in Sections 2.12(a) through 2.12(l) or any other
amounts owed pursuant to the Operative Agreements with regard to any
Letter of Credit which have not been previously paid by or on behalf
of the Borrower.
(d) (i) If the Bank shall make any payment of that portion of the
purchase price corresponding to principal and interest of the Bonds drawn under
any applicable Letter of Credit pursuant to a Tender Draft and the conditions
precedent set forth in the Section 2.12(d)(v) shall have been fulfilled, such
payment shall constitute a tender advance made by the Bank to the Borrower on
the date and in the amount of such payment (a "Tender Advance"); provided, that
if the conditions of said Section 2.12(d)(v) have not been fulfilled, the amount
so drawn pursuant to the Tender Draft shall be payable in
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accordance with the terms of Section 2.12(c). Notwithstanding any
other provision of the Operative Agreements, the Borrower shall repay
the unpaid amount of each Tender Advance, together with all unpaid
interest thereon, on the earlier to occur of (X) such date as any
Bonds purchased pursuant to a Tender Draft are resold as provided in
Section 2.12(d)(iv), (Y) on the date one year and one day following
the date of such Tender Advance, or (Z) the Maturity Date. The
Borrower may prepay the outstanding amount of any Tender Advance in
whole or in part, together with accrued interest to the date of such
prepayment on the amount prepaid. The Borrower shall notify the Bank
prior to 11:00 A.M. (prevailing Eastern time) on the date of such
prepayment of the amount to be prepaid.
(ii) The Borrower shall pay interest on the unpaid amount of
each Tender Advance from the date of such Tender Advance until such
amount is paid in full, payable monthly, in arrears, on the first day
of each month during the term of each Tender Advance and on the date
such amount is paid in full, at a fluctuating interest rate per annum
in effect from time to time equal to the rate applicable to the Bonds,
provided that the unpaid amount of any Tender Advance which is not
paid when due shall bear interest at the ABR plus two percent (2%),
payable on demand and on the date such amount is paid in full.
(iii) Pursuant to the applicable Pledge Agreement, the
Borrower has agreed that, in accordance with the terms of the
applicable Indenture, Bonds purchased with proceeds of any Tender
Draft shall be delivered by the applicable Tender Agent to the Bank
or its designee (or otherwise in the manner provided in the
applicable Pledge Agreement) to be held by the Bank or its designee
in pledge as collateral securing the Borrower's payment obligations
to the Bank pursuant to the Operative Agreements. Bonds so delivered
to the Bank or its designee shall be registered in the name of the
Bank, or its designee, as pledgee of the Borrower, as provided for in
the applicable Pledge Agreement.
(iv) Prior to or simultaneously with the resale of such
pledged bonds, the Borrower shall prepay the then outstanding Tender
Advances (in the order in which they were made) by paying to the Bank
an amount equal to the sum of (a) the amounts advanced by the Bank
pursuant to the corresponding Tender Drafts relating to such Bonds,
plus (b) the aggregate amount of accrued and unpaid interest on such
Tender Advances. Such payment shall be applied by the Bank in
reimbursement of such drawings (and as prepayment of Tender Advances
resulting from such drawings in the manner described below), and, upon
receipt by the Bank of a certificate completed and signed by the
applicable Bond Trustee in substantially the form of the applicable
annex to the Letter of Credit (if any), the Borrower irrevocably
authorizes the Bank to rely on such certificate and to reinstate the
Letter of Credit in accordance therewith. Funds held by the applicable
Tender Agent as a result of sales of such pledged bonds by the
applicable Remarketing Agent shall be paid to the Bank by the
applicable Tender Agent to be applied to the amounts owing by the
Borrower to the Bank pursuant to this Section 2.12(d)(iv). Upon
payment to the Bank of the amount of such Tender Advance to be
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prepaid, together with accrued interest on such Tender Advance to the
date of such prepayment on the amount to be prepaid, the principal
amount outstanding of Tender Advances shall be reduced by the amount
of such prepayment and interest shall cease to accrue on the amount
prepaid.
(v) Each payment made by the Bank under any Letter of Credit
pursuant to a Tender Draft shall constitute a Tender Advance
hereunder only if on the date of such payment the following
statements shall be true:
(A) The representations and warranties of the
Borrower and the Lessee contained in the Operative Agreements
are true and correct on and as of the date of such Tender
Advance as though made on and as of such date; and
(B) No event has occurred or would result from
such Tender Advance, which constitutes an Event of Default or
would constitute an Event of Default but for the requirement
that notice be given or time elapse or both.
Unless the Borrower or the Lessee shall have previously advised the Bank in
writing or the Bank has actual knowledge that one or more of the above
statements is no longer true, the Borrower and the Lessee shall be deemed to
have represented and warranted, on the date of payment by the Bank under the
applicable Letter of Credit pursuant to a Tender Draft, that on the date of
such payment the above statements are true and correct.
(e) Subject to the option of prepayment being available under the
terms of the applicable Head Lease and the other applicable Bond Documents, the
Borrower shall, in accordance with the provisions of the applicable Indenture,
direct the applicable Bond Trustee on each appropriate date as specified in the
applicable Indenture (each a "Redemption Date") to give notice that there will
be an optional redemption of a specified principal amount of the applicable
Bonds on such Redemption Date. The Borrower shall pay the remaining principal
amount of the applicable Bonds on the maturity date of such Bonds. The Borrower
will also provide the applicable Bond Trustee with the notice required pursuant
to the provisions of the applicable Indenture on or before the appropriate date
as specified in the applicable Indenture before each Redemption Date in
connection with the optional redemption of the applicable Bonds on such
Redemption Date.
(f) (i) The Borrower shall pay, or cause to be paid, to the Bank a
commission at the rate of three-quarters of one percent (0.75%) per
annum on the undrawn amount available to be drawn under each Letter of
Credit (computed on the date that such commission is payable) from and
including the date of issuance of each Letter of Credit until the
Maturity Date, payable annually in advance on the date of issuance of
each Letter of Credit and on each anniversary of the issuance of each
Letter of Credit, subject to adjustment upon demand by the Bank due to
any event that may increase the cost to the Bank of issuing or
maintaining each Letter of Credit, as applicable.
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(ii) The Borrower shall pay, or cause to be paid, to the
Bank, upon each drawing under any Letter of Credit in accordance
with the terms thereof, a fee of $150 per drawing.
(iii) The Borrower shall pay, or cause to be paid,
to the Bank, upon transfer of each Letter of Credit in
accordance with the terms thereof, a transfer fee of $1,000.
(g) Except as hereinafter provided, each Letter of Credit will expire
on the expiry date stated therein. Subject to the provisions of the following
sentence, each Letter of Credit shall automatically be extended for an
additional one-year period from the then applicable expiry date, unless the
Bank shall have notified the Borrower and the applicable Bond Trustee in
writing at least ninety (90) days prior to the then applicable expiry date that
the Bank will not extend such then applicable expiry date for an additional
one-year period from the then applicable expiry date. In no event shall any
Letter of Credit issued pursuant hereto have an expiry date (including without
limitation pursuant to any extension thereof) after the Maturity Date.
(h) The obligations of the Borrower under the Operative Agreements
shall be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of the Operative Agreements, under all circumstances
whatsoever, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of any Letter of
Credit, any Bonds, any of the other Bond Documents, any of the
Security Documents or any other Operative Agreement;
(ii) any amendment or waiver of or any consent to departure
from the terms of any Letter of Credit, any Bonds, any of the
other Bond Documents, any of the Security Documents or any other
Operative Agreement;
(iii) the existence of any claim, set off, defense or other
right which either the Borrower or any issuer of any Bond may
have at any time against any Bond Trustee, any beneficiary or any
transferee of any Letter of Credit (or any Person for whom any
Bond Trustee, any such beneficiary or any such transferee may be
acting), the Bank or any other Person, whether in connection with
this Agreement, the Security Documents, the Letters of Credit,
the Bond Documents, the other Operative Agreements, any Property
or any unrelated transaction;
(iv) any statement, draft or other document presented under
any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect, or any statement therein being
untrue or inaccurate in any respect whatsoever; provided, that
the payment is not the result of the gross negligence or willful
misconduct of the Bank; and provided further, that the documents
must substantially comply with the Letter of Credit terms;
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(v) the surrender, exchange or impairment of any security
for the performance or observance of any of the terms of this
Agreement or any other Operative Agreement; or
(vi) any other circumstance which might otherwise
constitute a defense available to, or a discharge of the Borrower,
except subject to the qualification that obligations may be
reinstated upon bankruptcy.
(i) The renewal or extension of any Letter of Credit shall, for
purposes hereof, be treated in all respects the same as the issuance of a new
Letter of Credit hereunder.
(j) The Bank may have the Letters of Credit be subject to The
Uniform Customs and Practice for Documentary Credits, as published as of the
date of issue by the International Chamber of Commerce (the "UCP"), in which
case the UCP may be incorporated therein and deemed in all respects to be a
part thereof.
(k) (i) In addition to its other obligations under this Section 2.12,
the Borrower hereby agrees to pay, and protect, indemnify and save the
Bank harmless from and against, any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees) that the Bank may incur or be subject to
as a consequence, direct or indirect, of (A) the issuance of any
Letter of Credit or (B) the failure of the Bank to honor a drawing
under a Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto
government or Governmental Authority (all such acts or omissions,
herein called "Government Acts").
(ii) As between the Borrower and the Bank, the Borrower shall
assume all risks of the acts, omissions or misuse of any Letter of
Credit by the beneficiary thereof. The Bank shall not be responsible:
(A) for the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with
the application for and issuance of any Letter of Credit, even if it
should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) for the validity
or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, that may
prove to be invalid or ineffective for any reason; (C) for errors,
omissions, interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex or otherwise, whether or
not they be in cipher; (D) for any loss or delay in the transmission
or otherwise of any document required in order to make a drawing under
a Letter of Credit or of the proceeds thereof; and (E) for any
consequences arising from causes beyond the control of the Bank,
including without limitation any Government Acts. None of the above
shall affect, impair, or prevent the vesting of the Bank's rights or
powers hereunder.
(iii) In furtherance and extension and not in limitation of
the specific provisions hereinabove set forth, any action taken or
omitted by the Bank, under or in connection with any Letter of Credit
or the related certificates, if taken or omitted in good faith, shall
not put
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the Bank under any resulting liability to the Borrower. It is the
intention of the parties that this Agreement shall be construed and
applied to protect and indemnify the Bank against any and all risks
involved in the issuance of the Letters of Credit, all of which risks
are hereby assumed by the Borrower (on behalf of itself), including
without limitation any and all Government Acts. The Bank shall not,
in any way, be liable for any failure by the Bank or anyone else to
pay any drawing under any Letter of Credit as a result of any
Government Acts or any other cause beyond the control of the Bank.
(iv) Nothing in this Section 2.12(k) is intended to limit
the reimbursement obligations of the Borrower contained in Sections
2.12(c) through 2.12(j). The obligations of the Borrower under this
Section 2.12(k) shall survive the termination of this Agreement. No
act or omission of any current or prior beneficiary of a Letter of
Credit shall in any way affect or impair the rights of the Bank to
enforce any right, power or benefit under this Agreement.
(v) Notwithstanding anything to the contrary contained in
this Section 2.12(k), the Borrower shall have no obligation to
indemnify the Bank in respect of any liability incurred by the Bank in
connection with the matters described in this Section 2.12(k) (A)
arising solely out of the gross negligence or willful misconduct of
the Bank, as determined by a court of competent jurisdiction, or (B)
caused by the Bank's failure to pay under any Letter of Credit after
presentation to it of a request strictly complying with the terms and
conditions of such Letter of Credit, as determined by a court of
competent jurisdiction, unless such payment is prohibited by any law,
regulation, court order or decree or (C) caused by the Bank's payment
under a Letter of Credit without the beneficiary having presented a
sight draft and certificate that at least substantially complies with
the terms and conditions of the Letter of Credit.
(l) Except as otherwise provided in the next sentence, in the
event of any conflict between this Agreement and any LOC Document (including
any letter of credit application), this Agreement shall control. Incorporation
of the UCP or any similar body of interpretive rules regarding letters of
credit shall be effectuated solely by express provision regarding such
incorporation being set forth in the applicable Letter of Credit.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Agreement, to make the Loans and
to issue the Letters of Credit, each of the Trust Company and the Owner Trustee
hereby makes and affirms the representations and warranties set forth in
Section 6.1 of the Participation Agreement or in any of the other Operative
Agreements to the same extent as if such representations and warranties were
set forth in this Agreement in their entirety.
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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 5.3 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 AND LETTER OF CREDIT.
The agreement of the Bank to make any Loan and to issue any Letter of
Credit requested to be made by it on any date is subject to the satisfaction of
all conditions precedent set forth in Sections 5.3 and 5.4 of the Participation
Agreement (and regarding any Letter of Credit, as otherwise set forth in
Section 2.12) required by said Sections to be satisfied on or prior to the date
of the applicable Loan.
Each borrowing by the Borrower hereunder shall constitute a
representation and warranty by the Borrower as of the date of such Loan or such
issuance of any Letter of Credit that the conditions contained in this Section
4.2 have been satisfied.
SECTION 5. COVENANTS
So long as any Loan or any amount pursuant to any Letter of Credit or
Note remains outstanding and unpaid or any other amount is owing to the Bank
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, LOC
Reimbursement Amounts and other obligations incurred by the Borrower
hereunder).
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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 (a) observe and perform all of the
covenants, conditions and obligations required to be performed by it (whether
in its capacity as the Lessor, the 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 lessee under the Head Lease and of the Lessor under the
Lease, even in the event that the Head Lease or the Lease, as the case may be,
is terminated at stated expiration, following an event of default under the
Head Lease, 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
Bank, and at the expense of the Borrower (provided, such amounts shall be
reimbursed or paid entirely (as elected by the Borrower) by the Lessee, as
Supplemental Rent), the Borrower will promptly and duly execute and deliver
such further instruments and documents and take such further action as the Bank
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 that has
not been cured within the applicable cure period, the Borrower will give
written notice thereof to the Bank within five (5) 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.
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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 Bank 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) Except as provided in Sections 6(c), the Borrower shall
default in the payment when due of any principal on the Loans or default in the
payment when due of any interest on the Loans, and in either such case, such
default shall continue for three (3) or more days; or
(b) Except as provided in Sections 6(a) and 6(c), the Borrower
shall default, and such default shall continue for three (3) or more days, in
the payment of any amount owing under any Credit Document; or
(c) (i) The Borrower shall default in the payment of any amount
due on the Maturity Date owing under any Credit Document or (ii) the Borrower
shall default in the payment when due of any principal or interest on the Loans
payable with regard to any obligation of Lessee to pay Termination Value when
due or to pay Basic Rent or Supplemental Rent at such time as any Termination
Value is due; 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) or in any Bond Document or LOC Document to which it is a party (after
the expiration of applicable grace or cure periods in any such Bond Document or
LOC Document), provided, that in the case of any such default under Sections
5.4, 5.5 or 5.8(c), such default shall have continued unremedied for a period
of at least fifteen (15) days after notice to the Borrower by the Bank,
provided, further, if any such default under Sections 5.4, 5.5 or 5.8(c) is not
capable of remedy within such fifteen (15) day period but may be remedied with
further diligence and if the Borrower has and continues to pursue diligently
such remedy, then the Borrower shall be granted additional time to pursue such
remedy but in no event more than an additional thirty (30) days.
(e) Any representation, warranty or statement made or deemed made
by the Borrower herein or in any other Credit Document, Bond Document or LOC
Document or by the Borrower or the Lessee in any Operative Agreement, or in any
statement or certificate delivered or required
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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
(f) (i) Any Lease Event of Default or any event of default under any
Head Lease 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 Bank, provided, that in the case of this clause
(ii) such default shall have continued unremedied for a period of at least
fifteen (15) days after notice to the Owner Trustee and Lessee by the Bank,
provided, further, that in the case of this clause (ii), such default is not
capable of remedy within such fifteen (15) day period but may be remedied with
further diligence and if the Borrower has and continues to pursue diligently
such remedy, then the Borrower shall be granted additional time to pursue such
remedy but in no event more than an additional thirty (30) days; or
(g) The Borrower shall commence a voluntary case concerning itself
under the Bankruptcy Code or an involuntary case is commenced against the
Borrower and the petition is not contravened within ten (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 sixty (60) 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 sixty (60) 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 Bank 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), 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) other than any Ground Lease or any Head Lease; or
(i) The Lease shall cease to be enforceable against the Lessee or
any Head Lease shall cease to be enforceable against the applicable Development
Authority; or
(j) One (1) or more judgments or decrees shall be entered against
the Borrower involving a liability of $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 vacated, discharged or stayed or bonded pending appeal
within sixty (60) days from the entry thereof,
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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 and all LOC
Reimbursement Amounts (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) the Bank may, by notice to the Borrower
declare the Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate; and (ii) the Bank may by notice to the Borrower,
declare the Loans hereunder and all LOC Reimbursement Amounts (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 Bank may 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 Bank may proceed to
protect and enforce this Agreement, the Notes, the other Credit Documents, the
Head Lease 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 the leasehold interest of the Borrower therein, as the
case may be) 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 without limitation all reasonable legal fees and
other reasonable costs and expenses incurred by the Bank by reason of the
occurrence of any Event of Default or the exercise of remedies with respect
thereto.
SECTION 7. [INTENTIONALLY LEFT BLANK]
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SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL
8.1 COLLECTION AND ALLOCATION OF PAYMENTS AND OTHER AMOUNTS.
The Lessee, the Construction Agent, the Bank and the Borrower have
agreed pursuant to the terms of Section 8.7 of the Participation Agreement to a
procedure for the allocation of certain payments, including without limitation
the proceeds of Collateral.
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 to the exclusion of
all other parties, 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 the Bank shall at all times retain the right
(i) to retain all rights with respect to insurance that Article XIV of the
Lease specifically confers upon the "Lessor", (ii) to provide such insurance as
the Lessee shall have failed to maintain or as the Borrower or the Bank may
desire, and (iii) to enforce compliance by the Lessee with the provisions of
Articles VIII, IX, X, XI, XIV and XVII of the Lease.
8.3 EXCEPTED PAYMENTS.
Notwithstanding any other provision of this Agreement or the Security
Documents, any Excepted Payment received at any time by the Bank shall be
distributed promptly to the Person entitled to receive such Excepted Payment.
SECTION 9 MISCELLANEOUS
9.1 AMENDMENTS AND WAIVERS.
None of the terms or provisions of this Agreement may be terminated,
amended, supplemented, waived or modified except in accordance with the terms
of Section 12.4 of the Participation Agreement.
9.2 NOTICES.
All notices required or permitted to be given under this Agreement
shall be given in accordance with Section 12.2 of the Participation Agreement.
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9.3 NO WAIVER; CUMULATIVE REMEDIES.
No failure to exercise and no delay in exercising, on the part of the
Bank, 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 by the Borrower under the
Operative Agreements 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 (with funds provided by the Lessee as
Supplemental Rent): (a) pay all reasonable out-of-pocket costs and expenses of
the Bank (i) whether or not the transactions herein contemplated are
consummated, in connection with the negotiation, preparation, execution,
administration and delivery of the Operative Agreements and the documents and
instruments referred to therein (including without limitation the reasonable
fees and disbursements of βββββ & βββ βββββ, PLLC) and any amendment, waiver or
consent relating thereto (including without limitation the reasonable fees and
disbursements of counsel to the Agent) and (ii) 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 Bank) and (b) pay and hold the Bank harmless
from and against any and all present and future stamp and other similar taxes
with respect to the foregoing matters and from and against any and all
liabilities with respect to or resulting from any delay or omission 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 and the Bank and their respective 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 the Bank.
9.7 [INTENTIONALLY LEFT BLANK]
9.8 ASSIGNMENTS.
(a) Subject to and in accordance with Section 10.1 of the
Participation Agreement, the Bank may, in the ordinary course of its business
and in accordance with applicable law, at any time and from time to time assign
with the consent, subject to Section 9.1 of the
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Participation Agreement, of the Borrower (which shall not be unreasonably
withheld or delayed and which consent of the Borrower shall not be required
during the continuation of any Event of Default), to any 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. 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
the Bank hereunder with a Commitment as set forth therein, and (y) the Bank
shall, to the extent provided in such Assignment and Acceptance, be released
from its obligations under this Agreement (and the Bank 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, 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 the
Bank and a Purchasing Lender the Borrower shall execute and deliver to
Purchasing Lender new Notes (in exchange for the Notes of the Bank), each in an
amount equal to the Commitment assumed or Loans or obligations pursuant to each
outstanding Letter of Credit purchased by the relevant Purchasing Lender
pursuant to such Assignment and Acceptance. Such new Notes shall be dated the
effective date of the applicable Assignment and Acceptance and shall otherwise
be in the form of the Notes replaced thereby.
(c) [Intentionally Left Blank]
(d) The Bank may, from time to time and without the consent of the
Borrower or any other Person, pledge or assign for security purposes any
portion of its Loans, any LOC Reimbursement Amounts or any other interests in
this Agreement and the other Credit Documents to any Federal Reserve Bank.
9.9 [INTENTIONALLY LEFT BLANK]
9.10 SET-OFF.
(a) [Intentionally Left Blank].
(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 Bank 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 Bank (including
21
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without limitation by branches and agencies of the Bank 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 Bank under this Agreement or
under any of the other Operative Agreements, 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 Bank shall have made
any demand and although said obligations, liabilities or claims, or any of
them, shall be contingent or unmatured.
9.11 COUNTERPARTS.
This Agreement may be executed by one (1) or more of the parties to
this Agreement on any number of separate counterparts (including without
limitation by telecopy), and all of said counterparts taken together shall be
deemed to constitute one (1) 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 Bank.
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 and the Bank with respect to the subject matter hereof and
thereof, and there are no promises, undertakings, representations or warranties
by the Bank 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,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH
CAROLINA.
9.15 SUBMISSION TO JURISDICTION; VENUE; ARBITRATION.
THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO SUBMISSION
TO JURISDICTION, VENUE AND ARBITRATION ARE HEREBY INCORPORATED BY REFERENCE
HEREIN, MUTATIS MUTANDIS.
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9.16 ACKNOWLEDGMENTS.
The Borrower hereby acknowledges that:
(a) The Bank has no fiduciary relationship with or duty to the
Borrower arising out of or in connection with this Agreement or any of the
other Credit Documents, and the relationship between the Bank on one (1) 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
or among the Borrower and the Bank.
9.17 WAIVERS OF JURY TRIAL.
THE BORROWER AND THE BANK HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, 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.
In addition to and not in limitation of Section 12.9 of the
Participation Agreement, anything to the contrary contained in this Agreement
or in any other Operative Agreement notwithstanding, no Exculpated Person shall
be personally liable in any respect for any liability or obligation hereunder
or under any other Operative Agreement including without limitation 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 Bank agrees that, in the
event it pursues any remedies available under this Agreement, the Notes or any
other Operative Agreement, the Bank shall not 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 Trust Estate and the Lessee; but nothing
contained herein shall be taken to prevent recourse against or the enforcement
of remedies against the Trust Estate in respect of any and all liabilities,
obligations and undertakings contained in this Agreement, the Notes or any
other Operative Agreement. The Bank further agrees 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).
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
23
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secured by this Agreement or any other Credit Document, (b) limit the right of
the Bank 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 or the Bank 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 AND THAT
N.C. GEN. STAT. SS.24-9 SHALL APPLY WITH RESPECT TO THIS AGREEMENT. TO THE
EXTENT N.C. GEN. STAT. SS.24-9 IS HEREAFTER DEEMED NOT TO APPLY BY A COURT OF
COMPETENT JURISDICTION AND ANY PAYMENTS HEREUNDER ARE HEREINAFTER CHARACTERIZED
AS THE REPAYMENT OF PRINCIPAL AND INTEREST THEREON, THE FOLLOWING PROVISIONS OF
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
WITHOUT LIMITATION 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 BANK SHALL
EVER RECEIVE ANYTHING OF VALUE WHICH IS 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 THE 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
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AGREEMENTS DOES NOT INCLUDE THE RIGHT TO RECEIVE ANY INTEREST WHICH HAS NOT
OTHERWISE ACCRUED ON THE DATE OF SUCH DEMAND, AND THE BANK DOES NOT INTEND TO
CHARGE OR RECEIVE ANY UNEARNED INTEREST IN THE EVENT OF SUCH DEMAND. ALL
INTEREST PAID OR AGREED TO BE PAID TO THE BANK, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, BE AMORTIZED, PRORATED, ALLOCATED, AND SPREAD THROUGHOUT THE
FULL STATED TERM (INCLUDING WITHOUT LIMITATION 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.
[signature pages follow]
25
29
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 the Owner
Trustee under the SRI Realty Trust 1998-1
By: /s/ Authorized Officer
-----------------------------------
Name: Authorized Officer
Title:
FIRST UNION NATIONAL BANK, as Bank
By: /s/ ββββ βββββββββ
---------------------------------
Name: ββββ βββββββββ
Title: Vice President
30
EXHIBIT A
PROMISSORY NOTE
(SRI Realty Trust 1998-1)
[ DATE ]
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as the Owner Trustee
under the SRI Realty Trust 1998-1 (the "Borrower"), hereby unconditionally
promises to pay to the order of FIRST UNION NATIONAL BANK (the "Lender"), at
the office of First Union National Bank, located at β/β βββββ βββββ βββββββ
βββββββ βββββ, βββ, βββ βββββ βββββββ ββββββ, βββββββββ, βββββ ββββββββ
βββββ-ββββ or at such other address as may be specified by the Lender, in
lawful money of the United States of America and in immediately available
funds, on the Maturity Date 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) and all LOC Reimbursement Amounts. The Borrower
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 Sections 2.8 and 2.12 of the 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 and information
regarding each advance pursuant to each Letter of Credit. 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 (1) of the Notes referred to in the Credit
Agreement dated as of February 1, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower and the
Lender, (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.
A-1
31
Upon the occurrence of any one (1) 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.
[The remainder of this page has been left blank intentionally.]
A-2
32
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND
ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH CAROLINA.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, but solely as the Owner
Trustee under the SRI Realty Trust 1998-1
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
A-3
33
EXHIBIT B
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of February 1,
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 the Owner Trustee under the SRI Realty
Trust 1998-1 (the "Owner Trustee" or the "Borrower"), and FIRST UNION NATIONAL
BANK, as the Lender. Unless otherwise defined herein, terms defined in the
Credit Agreement (or pursuant to Section 1 of the Credit Agreement, defined in
other agreements) and used herein shall have the meanings given to them in or
pursuant to the Credit Agreement.
FIRST UNION NATIONAL BANK (the "Assignor") and [_______________] (the
"Assignee") agree as follows:
1. 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 100% 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.
2. 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 Borrower exchange such Note for a new Note payable to the
Assignee.
3. 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 and based on such
documents and
B-1
34
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; and (d) 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.
4. The effective date of this Assignment and Acceptance shall be
[DATE ] (the "Effective Date").
5. From and after the Effective Date, the Borrower shall make all
payments in respect of the Assigned Interest (including without limitation
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 Borrower for periods prior to the
Effective Date or with respect to the making of this assignment directly
between themselves.
6. 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.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NORTH CAROLINA.
B-2
35
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
FIRST UNION NATIONAL BANK, as 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 SRI Realty Trust 1998-1
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
[consents required only to the extent expressly provided in Section 9.8 of
the Credit Agreement]
B-3
36
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT,
DATED AS OF FEBRUARY 1, 1999,
AMONG
FIRST SECURITY BANK, NATIONAL ASSOCIATION
NOT INDIVIDUALLY,
BUT SOLELY AS THE OWNER TRUSTEE,
AND
FIRST UNION NATIONAL BANK, AS LENDER
Name of Assignor: First Union National Bank
Name of Assignee:
----------------------------
Effective Date of Assignment:
-----------------
Credit Principal Commitment Percentage
Facility Assigned Amount Assigned Assigned
$ 100%
----------------------------- ------------------------------ ------------------------------
FIRST UNION NATIONAL BANK, as Assignor
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
[Name of Assignee], as Assignee
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------