EXHIBIT 10.22
CONFORMED COPY
================================================================================
PARTICIPATION AGREEMENT
among
HARBORSIDE OF DAYTON LIMITED PARTNERSHIP,
as ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇-▇ TRUST,
a Delaware business trust,
as Lessor,
WILMINGTON TRUST COMPANY,
BTD HARBORSIDE INC.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC. and
CSL LEASING, INC.,
as Investors,
THE CHASE MANHATTAN BANK,
as Agent for the
Lenders
and
THE LENDERS PARTIES HERETO
______________________________
Dated as of August 11, 1998
______________________________
================================================================================
TABLE OF CONTENTS
-----------------
Page
----
SECTION 1. THE LOANS....................................................... 1
1.1 Loans................................................................. 1
1.2 Credit Agreement...................................................... 1
1.3 Collateral For Loans.................................................. 1
1.4 Guarantee............................................................. 2
SECTION 2. INVESTOR CONTRIBUTION........................................... 2
2.1 Investor Contribution................................................. 2
2.2 Allocated Investor Yield.............................................. 2
SECTION 3. SUMMARY OF THE TRANSACTIONS..................................... 2
3.1 Operative Agreements.................................................. 2
3.2 Property Purchase and Lease........................................... 2
3.3 Construction of Improvements; Lease of Improvements................... 3
3.4 Aggregate Tranche A Percentage; Tranche A Percentage.................. 3
SECTION 4. THE CLOSINGS.................................................... 3
4.1 Initial Closing Date.................................................. 3
4.2 Subsequent Funding Dates.............................................. 3
4.3 Trust Company Authorization........................................... 3
SECTION 5. FUNDING OF ADVANCES............................................. 4
5.1 General............................................................... 4
5.2 Procedures for Funding................................................ 4
SECTION 6. CONDITIONS OF THE CLOSING....................................... 5
6.1 General Conditions to the Investors' and the Lenders' Obligations to
Make Loans and Investor Contributions................................. 5
6.2 Conditions to the Investors' and the Lenders' Obligations to Make
Advances to pay Property Acquisition Costs............................ 7
6.3 Conditions to the Investors' and the Lenders' Obligations to Make
Advances to Pay Project Costs for Construction on any Property........ 11
SECTION 7. REPRESENTATIONS AND WARRANTIES.................................. 12
7.1 Representations and Warranties of the Investors on the Initial Closing
Date.................................................................. 12
7.2 Representations and Warranties of Lessor on the Initial Closing Date.. 13
7.3 Representations and Warranties of the Lessee on the Initial Closing
Date.................................................................. 15
7.4 Representations and Warranties of the Trust Company on the Initial
Closing Date.......................................................... 15
-i-
Page
----
7.5 Representations and Warranties of the Lessee on Property Closing
Dates.................................................................. 16
7.6 Representations and Warranties of the Lessor on Property Closing
Dates.................................................................. 19
7.7 Representations and Warranties of the Lessee Upon each Funding
Date................................................................... 20
7.8 Representation and Warranties of the Lessor Upon each Funding
Date................................................................... 22
7.9 Representations and Warranties of the Investors Upon Funding Dates..... 22
SECTION 8. PAYMENT OF CERTAIN EXPENSES...................................... 23
8.1 Transaction Expenses................................................... 23
8.2 Brokers' Fees and Stamp Taxes.......................................... 23
8.3 Certain Fees and Expenses.............................................. 23
8.4 Credit Agreement and Related Obligations............................... 23
8.5 Overdue Rate........................................................... 24
SECTION 9. OTHER COVENANTS AND AGREEMENTS................................... 24
9.1 Covenants of the Trust and the Investors............................... 24
9.2 Repayment of Certain Amounts on Maturity Date.......................... 26
9.3 Amendment of Certain Documents......................................... 26
9.4 Proceeds of Casualty................................................... 26
9.5 Intercreditor Agreement................................................ 26
9.6 Available Proceeds..................................................... 26
SECTION 10. CREDIT AGREEMENT................................................ 27
10.1 Lessee's Credit Agreement Rights....................................... 27
SECTION 11. TRANSFER OF INTEREST............................................ 28
11.1 Restrictions on Transfer............................................... 28
11.2 Effect of Transfer..................................................... 28
SECTION 12. INDEMNIFICATION................................................. 29
12.1 General Indemnity...................................................... 29
12.2 General Tax Indemnity.................................................. 30
SECTION 13. MISCELLANEOUS................................................... 33
13.1 Survival of Agreements................................................. 36
13.2 No Broker, etc......................................................... 34
13.3 Notices................................................................ 34
13.4 Counterparts........................................................... 36
13.5 Amendments and Termination............................................. 36
13.6 Headings, etc.......................................................... 36
13.7 Parties in Interest.................................................... 36
13.8 GOVERNING LAW.......................................................... 36
13.9 Severability........................................................... 36
13.10 Liability Limited...................................................... 36
13.11 Rights of Lessee....................................................... 36
-ii-
Page
----
13.12 Further Assurances........................................ 37
13.13 Successors and Assigns.................................... 37
13.14 No Representation or Warranty............................. 37
13.15 Highest Lawful Rate....................................... 37
13.16 Submission to Jurisdiction; Waivers....................... 38
Annex A Rules of Usage and Definitions
Exhibits
--------
Exhibit A-1 Form of Construction Agreement
Exhibit A-2 Form of Agency Agreement
Exhibit B Form of Assignment of Leases; Rents and Guarantee and
Consent to Assignment
Exhibit C Form of Contract Assignment and Consent to Contract Assignment
Exhibit D-1 Form of Mortgage
Exhibit D-2 Form of Deed of Trust
Exhibit E Form of Guarantee
Exhibit F Form of Requisition
Exhibit G-1 Form of Opinion of Counsel to Lessee and Guarantor
Exhibit G-2 Form of Opinion of Counsel to Lessor and Trust Company
Exhibit G-3 Form of Opinion of Local Counsel to Lessee and Guarantor
Exhibit H Property Closing Certificate
Exhibit I Form of Agency and Intercreditor Agreement
Exhibit J Form of Collateral Agreement
-iii-
PARTICIPATION AGREEMENT, dated as of August 11, 1998 (this
"Agreement"), among HARBORSIDE OF DAYTON LIMITED PARTNERSHIP, a Massachusetts
---------
limited partnership (the "Lessee"); HHC 1998-1 TRUST, a Delaware business trust
------
(the "Trust" or the "Lessor"); WILMINGTON TRUST COMPANY, a Delaware banking
----- ------
corporation, in its individual capacity (the "Trust Company"); THE CHASE
-------------
MANHATTAN BANK, a New York banking corporation, as agent (in such capacity, the
"Agent") for the Lenders; BTD HARBORSIDE INC., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING,
-----
INC. and CSL LEASING, INC., as investors (each an "Investor"; collectively, the
--------
"Investors"); and each of the financial institutions listed on the signature
pages hereof (each, a "Lender"; collectively, the "Lenders"). Capitalized terms
------ -------
used but not otherwise defined in this Agreement shall have the meanings set
forth in Annex A hereto.
In consideration of the mutual agreements herein contained and other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
1. THE LOANS
1.1 Loans. The Lenders have agreed to make loans to the Lessor in an
-----
aggregate principal amount of up to the amounts and subject to the terms and
conditions as set forth in the Credit Agreement in order for the Lessor to
acquire Completed Properties or to acquire, develop and construct Construction
Period Properties in accordance with the Construction Agreement (in the form
attached hereto as Exhibit A-1) and the Agency Agreement (in the form attached
-----------
hereto as Exhibit A-2), and to pay other Project Costs, and in consideration of
-----------
the receipt of the proceeds of such Loans, the Lessor will issue the Tranche A
Notes and the Tranche B Notes.
1.2 Credit Agreement. The Loans shall be made and the Notes shall be
----------------
issued pursuant to the Credit Agreement. Pursuant to this Agreement and the
Credit Agreement, the Loans will be made to the Lessor from time to time at the
request of the Construction Agent in consideration for the Construction Agent's
agreeing for the benefit of the Lessor, pursuant to the Agency Agreement, to
assist with the acquisition by the Lessor of parcels of Land or other Property
and, if such Property is not a Completed Property, to construct Improvements in
accordance with the Plans and Specifications.
1.3 Collateral For Loans. The Loans and the obligations of the Lessor
--------------------
under the Credit Agreement shall be secured by, inter alia, (i) a first priority
----- ----
assignment of the Lease, granted pursuant to the Assignment of Lease and
consented to by the Lessee pursuant to the Consent to Assignment (in each case
in the respective forms set forth on Exhibit B hereto), (ii) a first priority
---------
assignment of the Agency Agreement, granted pursuant to the Contract Assignment
and consented to by the Construction Agent pursuant to the Consent to Contract
Assignment (in each case in the respective forms set forth on Exhibit C hereto);
---------
and (iii) a first priority mortgage lien on each Property pursuant to a Mortgage
in the form set forth on Exhibit D-1 or Exhibit D-2 hereto, as applicable.
----------- -----------
2
1.4 Guarantee. The obligations of the Lessor under the Credit
---------
Agreement shall be guaranteed by the Guarantors to the extent provided in the
Guarantee (in the form attached hereto as Exhibit E) and the Guaranteed
---------
Obligations will be secured by the Guarantee Collateral.
2. INVESTOR CONTRIBUTION
2.1 Investor Contribution. (a) Subject to the terms and conditions of
---------------------
this Agreement, and in reliance on the representations and warranties of each of
the parties hereto contained herein or made pursuant hereto, on each Funding
Date, the Investors shall make an investment in the Lessor (each, an "Investor
--------
Contribution") in an amount equal to 4.75% of the amount of the Advance
------------
requested by the Construction Agent in the Requisition for such Funding Date.
The aggregate amount of Investor Contributions made by the Investors shall not
exceed the Investor Commitment. The Lessor shall use the Investor Contributions
to pay a portion of the Project Costs simultaneously and pro rata with the
fundings by the Lenders. The Lessee shall have the right to prepay the Investor
Contribution, in connection with the exercise by the Lessee of its right to
direct the Lessor to prepay the Loans in accordance with Section 10.1(e).
(a) The Investor Commitment shall automatically be reduced on a pro
rata basis with any reduction of the Commitment pursuant to Section 2.6 of the
Credit Agreement.
2.2 Allocated Investor Yield. With respect to each Construction
------------------------
Period Property, on each date which is one Business Day prior to any date on
which the Investors are entitled to a payment on account of the Investor Yield,
the Construction Agent shall be deemed to have requested that the Investors make
an Investor Contribution in an amount equal to the Investor Yield due and
payable on such date with respect to the Construction Period Properties solely
for the purpose of paying such Investor Yield which is then due and payable.
3. SUMMARY OF THE TRANSACTIONS
3.1 Operative Agreements. On the Initial Closing Date, each of the
--------------------
respective parties thereto shall execute and deliver this Agreement, the Lease,
the Construction Agreement, the Agency Agreement, the Notes, the Guarantee, the
Guarantee Security Documents, the Credit Agreement, the Assignment of Lease, the
Contract Assignment, the Consent to Assignment, the Consent to Contract
Assignment and such other documents, instruments, certificates and opinions of
counsel as agreed to by the parties hereto.
3.2 Property Purchase and Lease. (a) On each Property Closing Date
---------------------------
and subject to the terms and conditions of this Agreement and the Credit
Agreement (i) the Investors will make an Investor Contribution in accordance
with Section 2 hereof, (ii) the Lenders will make loans in accordance with
Section 5 hereof and the terms and provisions of the Credit Agreement which
loans will be secured by a Mortgage with respect to the Property executed and
delivered by the Lessor and joined in by the Lessee, (iii) the Lessor will
purchase all right, title and interest in and to each Property identified by the
Construction Agent pursuant to the Agency
3
Agreement with respect to such Property Closing Date and (iv) the Lessor will
simultaneously lease (or sublease, as the case may be) all of its right, title
and interest in the Property to the Lessee by executing and delivering a Lease
Supplement and Memorandum of Lease which will be recorded in the real estate
records in the county where such Property is located.
(a) On each Property Closing Date, the Lessee shall certify to the
Agent on the Property Closing Certificate the Tranche A Percentage for each
Property being acquired on such Property Closing Date. The Tranche A Percentage
so certified shall be the Tranche A Percentage for such Property for the
duration of the Term.
3.3 Construction of Improvements; Lease of Improvements. On each
---------------------------------------------------
Property Closing Date, the Lessor and the Lessee will execute and deliver an
Agency Agreement Supplement, dated as of such Property Closing Date, pursuant to
which the Lessee will agree to act as Construction Agent and to perform the
Lessor's obligations under the Construction Agreement in connection with the
completion of the construction or renovation of the Improvements on the Land
acquired on such Property Closing Date.
3.4 Aggregate Tranche A Percentage; Tranche A Percentage.
----------------------------------------------------
Notwithstanding any other provision of this Agreement or the other Operative
Agreements, the Lessee agrees that in no event shall the Lessee specify a
Property for the Lessor to acquire and lease pursuant to the execution and
delivery of a Lease Supplement if the Aggregate Tranche A Percentage after
giving effect to the acquisition and lease pursuant to the execution and
delivery of a Lease Supplement of such Property would be less than 87.66%.
4. THE CLOSINGS
4.1 Initial Closing Date. All documents and instruments required to
--------------------
be delivered on the Initial Closing Date shall be delivered at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 425 Lexington Avenue, New York, New York, or at such
other location as may be determined by the Agent and the Lessee.
4.2 Subsequent Funding Dates. The Lessee shall deliver to each
------------------------
Investor and the Agent a Requisition appropriately completed, in connection with
each Funding Date.
4.3 Trust Company Authorization. Each Investor agrees that, with
---------------------------
respect to the Initial Closing Date and each Property Closing Date, the
satisfaction or waiver of the conditions contained in Section 6 hereof shall
constitute, without further act, authorization and direction by such Investor to
the Trust Company, in its capacity as Trustee, to take on behalf of the Lessor,
the actions specified in Section 2.1 of the Trust Agreement.
5. FUNDING OF ADVANCES
4
5.1 General. To the extent funds have been made available to the
-------
Lessor as Loans and Investor Contributions, the Lessor will make advances of
such funds to the Construction Agent from time to time in accordance with the
terms and conditions of this Agreement and the other Operative Agreements in
order to provide sufficient funds to: (i) allow the Lessor, at the direction of
the Construction Agent to acquire the Land or Completed Property in accordance
with the terms of this Agreement and the other Operative Agreements; (ii) allow
the Lessor, on behalf of the Lessee, to pay Transaction Expenses; (iii) permit
the Construction Agent to construct the Improvements (provided that such
Property is not a Completed Property) in accordance with the Plans and
Specifications and the terms of the Construction Agreement, the Agency
Agreement, the Lease and the other Operative Agreements; and (iv) pay all other
Project Costs.
5.2 Procedures for Funding. (a) Not less than three Business Days
----------------------
prior to each proposed Funding Date, the Construction Agent shall deliver to the
Investors and the Agent, a requisition (a "Requisition"), appropriately
-----------
completed, in the form of Exhibit F hereto.
---------
(a) Each Requisition shall: (i) be irrevocable; and (ii) request funds
in an amount of at least $1,000,000 (or such lesser amount as shall be equal to
the total aggregate of the Available Commitments plus the Available Investor
Commitment at such time) for the payment of Property Acquisition Costs or other
Project Costs which have previously been incurred and were not the subject of
and funded pursuant to a prior Requisition, in each case as specified in the
Requisition.
(b) So long as no Default or Event of Default has occurred and is
continuing and subject to the Investors and the Agent having each received the
materials required by Section 6.1, 6.2 and/or 6.3, as applicable, on each
Funding Date (i) the Lenders shall make Loans to the Lessor in an aggregate
amount equal to 95.25% of the funds specified in any Requisition, up to an
aggregate principal amount equal to the Available Commitments; (ii) the
Investors shall make an Investor Contribution in an amount equal to 4.75% of the
funds specified in any Requisition, up to an amount equal to the Available
Investor Commitment; and (iii) the total amount of such Loans and Investor
Contribution made on such date shall be paid to the Construction Agent to pay
the Project Costs.
(c) Notwithstanding anything to the contrary in this Agreement, (i)
the Lenders shall not be required to make Loans with respect to a Property in an
aggregate amount in excess of 95.25% of, in the case of a Completed Property,
the Property Acquisition Cost and in the case of a Construction Period Property,
the amount allocated to such Property in the Budget, and (ii) the Investors
shall not be required to make Investor Contributions with respect to a Property
in an aggregate amount in excess of 4.75% of, in the case of a Completed
Property, the Property Acquisition Cost and in the case of a Construction Period
Property, the amount allocated to such Property in the Budget.
(d) Notwithstanding the provisions of Section 6 to the contrary, the
determination by the Agent that the conditions set forth in Section 6.1, 6.2 or
6.3, as applicable,
5
have been satisfied shall be binding on the Investors, except that the Agent and
the Investors shall determine whether the conditions set forth in Section 6.2(i)
shall be satisfied.
6. CONDITIONS OF THE CLOSINGS AND ADVANCES
6.1 General Conditions to the Investors' and the Lenders' Obligations
-----------------------------------------------------------------
to Make Loans and Investor Contributions. The agreement of each Lender to make
----------------------------------------
Loans, and the Investors to make Investor Contributions, is subject to the
satisfaction, immediately prior to or concurrently with the making of such Loans
and Investor Contribution, of the following conditions precedent:
(a) Operative Agreements. Each of the Operative Agreements entered
--------------------
into on the Initial Closing Date or subsequently shall have been duly
authorized, executed, acknowledged and delivered by the parties thereto and
shall be in full force and effect, and no default shall exist thereunder
(both before and after giving effect to the transactions contemplated by
the Operative Agreements), and the Agent and the Investors shall have
received a fully executed copy of each of the Operative Agreements (other
than the Notes of which the Agent shall have received the originals
thereof);
(b) Taxes. All taxes, fees and other charges in connection with the
-----
execution, delivery, and, where applicable, recording, filing and
registration of the Operative Agreements shall have been paid or provisions
for such payment shall have been made to the reasonable satisfaction of the
Agent and the Investors;
(c) Consents, Licenses and Approvals. All necessary (or, in the
--------------------------------
reasonable opinion of the Agent, the Investors and their respective
counsel, advisable) Governmental Actions, in each case required by any law
or regulation enacted, imposed or adopted on or after the date hereof or by
any change in fact or circumstances since the date hereof, and all
necessary governmental and other third party filings, authorizations,
consents, approvals or waivers required in connection with the execution,
delivery and performance of this Agreement and the other Operative
Agreements by the parties thereto, and the validity and enforceability of
this Agreement and the other Operative Agreements against the parties
thereto, or otherwise in connection with the transactions contemplated by
this Agreement and the other Operative Agreements, shall have been obtained
or made and remain in full force and effect (except where the failure to do
so would not reasonably be expected to have a material adverse effect on
(i) the business, assets, condition (financial or otherwise) or results of
operations of the Lessee, HHC and its Subsidiaries, taken as a whole, or
(ii) (A) the validity or enforceability of this Agreement or the other
Operative Agreements or (B) the rights or remedies of the Agent, the
Lenders, the Lessor or the Investors hereunder or thereunder);
(d) Legal Requirements. In the opinion of the Agent, the Investors and
------------------
their respective counsel, the transactions contemplated by the Operative
Agreements do not
6
and will not violate in any respect any Legal Requirements and do not and
will not subject the Agent, any Lender or the Investors to any material
adverse regulatory prohibitions or constraints;
(e) Closing Certificate of the Lessee and each Guarantor. On the
----------------------------------------------------
Initial Closing Date, the Agent and the Investors shall have received a
Closing Certificate of the Lessee and each Guarantor dated the Initial
Closing Date, in substantially the form of Exhibits K-1 and K-2,
respectively, to the Senior Secured Credit Agreement, with appropriate
insertions and attachments, in form and substance satisfactory to the Agent
and the Investors, executed by the President or any Vice President and the
Secretary or any Assistant Secretary of the Lessee and each Guarantor;
(f) Corporate Proceedings of the Trust Company. On the Initial
------------------------------------------
Closing Date, the Agent, the Investors and the Lessee shall have received a
copy of the resolutions, in form and substance satisfactory to the Agent,
the Investors and the Lessee, of the Board of Directors of the Trust
Company authorizing the execution, delivery and performance of the
Operative Agreements to which it is a party, certified by the Secretary or
an Assistant Secretary of the Trust Company as of the Initial Closing Date,
which certificate shall be in form and substance satisfactory to the Agent,
the Investors and the Lessee and shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded;
(g) Trust Company Incumbency Certificate. On the Initial Closing
------------------------------------
Date, the Agent, the Investors and the Lessee shall have received a
certificate of the Trust Company, dated the Initial Closing Date, as to the
incumbency and signature of the officers of the Trust Company executing any
Operative Agreement, satisfactory in form and substance to the Agent, the
Investors and the Lessee, executed by the President or any Vice President,
Assistant Vice President or Trust Officer and the Secretary or any
Assistant Secretary of the Trust Company;
(h) Senior Secured Credit Agreement Conditions Precedent. The
----------------------------------------------------
conditions set forth in subsections (b), (c) and (d) of Section 5.1 of the
Senior Secured Credit Agreement shall have been satisfied.
(i) Legal Opinions. (i) The Agent and the Investors shall have
--------------
received the executed legal opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel
to the Lessee and each Guarantor, substantially in the form of Exhibit G-1
-----------
hereto; and
(i) The Agent, the Lessee and the Investors shall have received
the executed legal opinion of Morris, James, Hitchen & ▇▇▇▇▇▇▇▇, counsel to
the Trust and the Trust Company, substantially in the form of Exhibit G-2
-----------
hereto;
(j) Actions to Perfect Liens. The Agent shall have received evidence
------------------------
in form and substance reasonably satisfactory to it that all filings,
recordings, registrations and other actions, including the filing of duly
executed Lender Financing Statements and
7
Lessor Financing Statements, necessary or, in the reasonable opinion of the
Agent, desirable to perfect the Liens created by the Security Documents
shall have been completed or arrangements made therefor reasonably
satisfactory to the Agent;
(k) Lien Searches. The Agent and the Investors shall have received
-------------
the results of a recent search by a Person reasonably satisfactory to the
Agent, of the Uniform Commercial Code, judgement and tax lien filings which
may have been filed with respect to personal property of the Lessee, and
the results of such search shall be satisfactory to the Agent and the
Investors;
(l) Insurance. The Agent and the Investors shall have received
---------
evidence in form and substance satisfactory to them that all of the
requirements of Section 14 of the Lease shall have been satisfied;
(m) Representations and Warranties. The representations and
------------------------------
warranties of the Lessor, the Lessee, the Investors and each Guarantor
contained herein and in each of the other Operative Agreements shall be
true and correct in all material respects on and as of each Funding Date as
if made on and as of each Funding Date;
(n) Performance of Operative Agreements. The parties hereto (other
-----------------------------------
than the Investors, the Lenders or the Agent) shall have performed their
respective agreements contained herein and in the other Operative
Agreements on or prior to each such Funding Date;
(o) Default. There shall not have occurred and be continuing any
-------
Default or Event of Default under any of the Operative Agreements and no
Default or Event of Default under any of the Operative Agreements will have
occurred after giving effect to the Advance requested by such Requisition;
and
(p) Guarantee Collateral. The Agent shall have received evidence in
--------------------
form and substance reasonably satisfactory to it that all filings,
recordings, registrations and other actions, including the filing of duly
executed UCC-1 financing statements and the Guarantee Mortgages, necessary
or, in the reasonable opinion of the Agent, desirable to perfect the Liens
created by the Guarantee Security Documents covering the Guarantee
Collateral, shall have been completed.
6.2 Conditions to the Investors' and the Lenders' Obligations to Make
-----------------------------------------------------------------
Advances to pay Property Acquisition Costs.
------------------------------------------
The obligations of the Investors to make each Investor Contribution,
and of the Lenders to make Loans to the Lessor, on a Property Closing Date for
the purpose of providing funds to the Lessor necessary to acquire a Property are
subject to the satisfaction or waiver of the following conditions precedent:
8
(a) Requisition. The Investors and the Agent shall have received a
-----------
fully executed counterpart of the Requisition dated as of the Property
Closing Date (but delivered at least three Business Days prior to the
Property Closing Date), appropriately completed;
(b) Deed. There shall have been delivered to the Lessor, as
----
applicable, (i) a deed (the "Deed"), in form and substance appropriate for
----
recording with the applicable Governmental Authorities, with respect to
each Property (and all Improvements located thereon) being purchased on
such Property Closing Date, conveying fee simple title to such Property to
the Lessor, subject only to the Permitted Exceptions or (ii) a Ground Lease
with respect to each Property being ground leased on such Property Closing
Date (such Ground Lease, or a Memorandum of Ground Lease, as appropriate
under applicable Legal Requirements, to be in form and substance
appropriate for recording with the applicable Governmental Authorities),
subject only to Permitted Exceptions;
(c) Title. Title to all of the Properties shall conform to the
-----
representations and warranties set forth in Section 7.5(n);
(d) Lease Supplement and Memorandum of Lease. The Lessee shall have
----------------------------------------
delivered to the Agent a Lease Supplement and a Memorandum of Lease
executed by the Lessee and the Lessor with respect to each Property being
acquired on such Property Closing Date;
(e) Agency Agreement Supplement. The Construction Agent shall have
---------------------------
delivered an Agency Agreement Supplement executed by the Construction Agent
and the Lessor with respect to each Property being acquired on such
Property Closing Date to the Agent.
(f) Mortgages. The Lessee shall have recorded, or made arrangements
---------
therefor reasonably satisfactory to the Agent, in the real estate records
of the county where the Property is located an original of the Mortgage
executed by the Lessor and Lessee with respect to each Property being
acquired on such Property Closing Date and the Lien of the Mortgage shall
conform to the representations and warranties set forth in Section 7.5(g);
and the Guarantee Mortgages shall have been recorded so as to secure the
Guaranteed Obligations on a parity with the Senior Secured Obligations;
(g) Assignment of Lease. The Lessee shall have recorded in the real
-------------------
estate records of the county where the Property is located an original of
the Assignment of Lease executed by the Lessor with respect to each
Property being acquired on such Property Closing Date;
(h) Consent to Assignment of Lease. The Lessee and each Guarantor
------------------------------
shall have delivered to the Agent a consent to the Assignment of Lease
executed by the Lessee and each Guarantor with respect to each Property
being acquired on such Property Closing Date;
9
(i) Environmental Audit. (i) The Agent and the Investors shall have
-------------------
received not less than 10 days prior to such Property Closing Date an
Environmental Audit with respect to each Property being acquired on such
Property Closing Date, prepared by the Environmental Engineer and the
results of the Environmental Audit shall be in form and substance
satisfactory to the Agent and the Investors; and
(i) the Agent and the Investors shall have received letters from
the Environmental Engineer stating, among other things, that the Agent, the
Lenders, the Lessor and the Investors may rely on the Environmental Audits
with respect to each Property being acquired on such Property Closing Date
which were prepared by such firm as if they were originally addressed to
them in all respects;
(j) Appraisal. The Agent and the Investors shall have received an
---------
Appraisal of each Property being acquired on such Property Closing Date and
such Appraisal shall show a value for each Property which shall not be less
than in the case of a Completed Property, the Property Acquisition Cost of
such Property, and in the case of a Construction Period Property, the
amount allocated to such Property in the Budget, and shall otherwise be in
form and substance acceptable to each Lender and the Lessor;
(k) Default. There shall not have occurred and be continuing any
-------
Default or Event of Default under any of the Operative Agreements and no
Default or Event of Default under any of the Operative Agreements will have
occurred after giving effect to the Advance requested by such Requisition;
(l) Survey. The Agent shall have received, and the Title Company
------
shall have received, a survey of each Property being acquired on such
Property Closing Date, certified to the Agent, the Investors, the Lessor
and the Title Company in a manner satisfactory to them, dated as of a date
within ninety days of the Property Closing Date, by an independent
professionally licensed land surveyor satisfactory to the Agent, which
survey shall be made in accordance with the Minimum Standard Detail
Requirements for Land Title Surveys jointly established and adopted by the
American Land Title Association and the American Congress on Surveying and
Mapping in 1992, and, without limiting the generality of the foregoing,
there shall be surveyed and shown on such survey the following: (i) the
locations on such Property of all the buildings, structures and other
improvements, if any, and the established building setback lines; (ii) the
lines of streets abutting such Property; (iii) all access and other
easements appurtenant to such Property; (iv) all roadways, paths,
driveways, easements, encroachments and overhanging projections and similar
encumbrances affecting such Property, whether recorded, apparent from a
physical inspection of the Property or otherwise known to the surveyor; (v)
any encroachments on any adjoining property by the building, structures and
improvements on such Property; and (vi) if such Property is described as
being on a filed map, a legend relating the survey to said map;
10
(m) Mortgagee's Title Insurance Policy. With respect to each Property
----------------------------------
being acquired on such Property Closing Date, the Agent shall have received
with respect to the Mortgage a mortgagee's title policy or marked up
unconditional binder for such insurance dated the Property Closing Date;
such policy shall (i) be in an amount equal to 95.25% of the aggregate
amount shown on the Budget for such Property (with, in the case of a
Construction Period Property, a pending disbursements clause); (ii) be
issued at ordinary rates; (iii) insure that the Mortgage insured thereby
creates a valid first Lien on such Property, free and clear of all defects
and encumbrances, except Permitted Exceptions; (iv) name the Agent for the
benefit of the Lenders as the insured thereunder; (v) be in the form of
ALTA Loan Policy - 1970 (Amended 10/17/70); (vi) contain comprehensive,
zoning, access, subdivision, tax lot, revolving credit and such other
endorsements and affirmative coverage as the Agent may reasonably request
and to the extent available in the jurisdiction in which such Property is
located; and (vii) be issued by the Title Company; and the Agent shall have
received evidence reasonably satisfactory to it that all premiums in
respect of such policy, and all charges for any mortgage recording tax with
respect to the Mortgage and/or the Deed of Trust have been paid or
provision made therefor;
(n) Owner's Title Insurance Policy. The Lessor shall have received an
------------------------------
owner's title policy, or marked up unconditional binder for such insurance,
dated the Closing Date for each Property being acquired on such Property
Closing Date; and the Lessor shall have received evidence reasonably
satisfactory to it that all premiums in respect of such policy have been
paid or provision made therefor;
(o) Recorded Documents. The Agent and the Lessor shall have received
------------------
a copy of all recorded documents referred to, or listed as exceptions to
title in, the title policy referred to above;
(p) Construction Schedule. With respect to each Property (other than
---------------------
a Completed Property), the Agent and the Investors shall have received a
copy of the schedule prepared by or at the direction of the Construction
Agent showing the estimated (i) timetable for completion of each
Improvement to be constructed on each Property being acquired on such
Property Closing Date, and (ii) timetable for the making of Loans;
(q) Budget. With respect to each Property (other than a Completed
------
Property), the Agent and the Investors shall have received a copy of the
Budget with respect to the construction of each Improvement to be
constructed or installed on each Property being acquired on such Property
Closing Date, and such Budget shall be in form and substance reasonably
satisfactory to the Agent and the Lessor;
(r) Plans and Specifications. With respect to each Property (other
------------------------
than a Completed Property) on which Improvements are to be constructed, the
Agent and the Investors shall have received a copy of the Plans and
Specifications with respect to each Improvement to be constructed or
installed on each Property being acquired on such Property Closing Date;
11
(s) Local Opinions. With respect to each Property being acquired on
--------------
such Property Closing Date
(i) the Agent and the Investors shall have received the executed
legal opinion of local counsel to the Lessee and the Guarantors in the
state in which such Property is located, substantially in the form of
Exhibit G-3 hereto;
-----------
(ii) the Agent, the Lessee and the Investors shall have received
the executed legal opinion of counsel to the Trust and the Trust Company,
substantially in the form of Exhibit G-2 hereto; and
-----------
(iii) the Agent and the Investors shall have received the executed
legal opinion of counsel to Lessee and the Guarantors, substantially in the
form of Exhibit G-1 hereto.
-----------
(t) FIRPTA Affidavit. The Agent and the Investors shall have received
----------------
either (i) a FIRPTA Affidavit from the seller of the Property in customary
form or (ii) if such seller is a "foreign person" as defined in Section
1445 of the Code, evidence that a portion of the sales price to be paid to
such seller has been withheld, if so required, in accordance with the
provisions of the Code.
(u) Limitation on Project Costs for Construction Period Properties.
--------------------------------------------------------------
The aggregate Project Costs with respect to all Construction Period
Properties previously expended and to be expended as anticipated by the
Budget with respect to each Construction Period Property shall at no time
exceed $50,000,000.
6.3 Conditions to the Investors' and the Lenders' Obligations to Make
-----------------------------------------------------------------
Advances to Pay Project Costs for Construction on any Property. The obligations
--------------------------------------------------------------
of the Investors to make each Investor Contribution, and of the Lenders to make
Loans to the Lessor, on a Funding Date for the purpose of providing funds to the
Lessor necessary to pay for the construction of the Improvements or the payment
of Transaction Costs or other Project Costs (other than Property Acquisition
Costs) are subject to the satisfaction or waiver of the following conditions
precedent:
(a) Requisition. The Agent shall have received a fully executed
-----------
counterpart of the Requisition, appropriately completed;
(b) Title. Title to all of the Properties shall conform to the
-----
representations set forth in Section 7.5(n);
(c) Budget in Balance. Based upon the Budget, the Available
-----------------
Commitments and the Available Investor Commitment will be sufficient to
complete the Improvement or Improvements for which the Requisition relates
on such Properties;
12
(d) Lien Waivers. The Agent shall have received lien waivers, in form
------------
and substance reasonably satisfactory to the Agent, from each contractor,
subcontractor, supplier and materialmen which the Lessee reasonably
believes will receive total compensation for services rendered or materials
supplied in connection with the construction of the related Improvements of
$25,000 or more; each such lien waiver shall evidence that such contractor,
subcontractor, supplier or materialmen has been paid in full for all work
performed or materials supplied to the date of the request for such
Advance, other than work which is the subject of such request.
7. REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties of the Investors on the Initial
--------------------------------------------------------------
Closing Date. Each Investor represents and warrants to each of the other
------------
parties hereto as of the Initial Closing Date as follows:
(a) Due Organization, etc. It is a duly organized and validly
---------------------
existing corporation in good standing under the laws of the state of its
incorporation and has the power and authority to carry on its business as
now conducted and to enter into and perform its obligations under this
Agreement, each Operative Agreement to which it is a party and each other
agreement, instrument and document executed and delivered by it on the
Closing Date in connection with or as contemplated by each such Operative
Agreement to which it is or will be a party.
(b) Authorization; No Conflict. The execution, delivery and
--------------------------
performance of each Operative Agreement to which it is a party has been
duly authorized by all necessary action on its part and neither the
execution and delivery thereof by such Investor, nor the consummation of
the transactions contemplated thereby by such Investor, nor compliance by
it with any of the terms and provisions thereof (i) requires or will
require any approval of (which approval has not been obtained) the
shareholders of, or approval or consent of any trustee or holders of any
indebtedness or obligations of such Investor, (ii) contravenes or will
contravene any Legal Requirement applicable to or binding on it as of the
date hereof, (iii) does or will contravene or result in any breach of or
constitute any default under, or result in the creation of any Lessor Lien
upon the Property or any of the Improvements, its articles of incorporation
or by-laws, any indenture, mortgage, chattel mortgage, deed of trust,
conditional sales contract, bank loan or credit agreement or other
agreement or instrument to which it or its properties may be bound or (iv)
does or will require any Governmental Action by any Governmental Authority.
(c) Enforceability, etc. Each Operative Agreement to which it is a
--------------------
party has been duly executed and delivered by it and constitutes, or upon
execution and delivery will constitute, a legal, valid and binding
obligation, enforceable against it in accordance with the terms thereof.
13
(d) ERISA. Such Investor is making the Investor Contribution
-----
contemplated to be made by it hereunder for its own account and with its
general corporate assets in the ordinary course of its business, and no
part of such amount constitutes the assets of any Employee Benefit Plan.
(e) Litigation. No litigation, investigation or proceeding of or
----------
before any arbitrator or Governmental Authority is pending or threatened by
or against such Investor (a) with respect to any of the Operative
Agreements or any of the transactions contemplated hereby or thereby, or
(b) which could reasonably be expected to have a material adverse effect on
the assets, liabilities, operations, business or financial condition of
such Investor.
(f) Investment Source. No portion of such Investor's Contribution has
-----------------
been or hereafter will be borrowed by such Investor as nonrecourse
indebtedness or as recourse indebtedness secured by collateral equal to
less than the amount of such indebtedness.
7.2 Representations and Warranties of Lessor on the Initial Closing
---------------------------------------------------------------
Date. Lessor represents and warrants to each of the other parties hereto as of
----
the Initial Closing Date as follows:
(a) Due Organization, etc. Lessor is a duly organized and validly
----------------------
existing business trust in good standing under the laws of the State of
Delaware and has the power and authority to carry on its business as now
conducted and to enter into and perform its obligations under this
Agreement, each Operative Agreement to which it is a party and each other
agreement, instrument and document executed and delivered by it on the
Closing Date in connection with or as contemplated by each such Operative
Agreement.
(b) Authorization; No Conflict. The execution, delivery and
--------------------------
performance of each Operative Agreement to which it is a party has been
duly authorized by all necessary action on its part and neither the
execution and delivery thereof by the Lessor, nor the consummation of the
transactions contemplated thereby by the Lessor, nor compliance by it with
any of the terms and provisions thereof (i) requires or will require any
approval of (which approval has not been obtained) any party or approval or
consent of any trustee or holders of any indebtedness or obligations of the
Lessor (ii) contravenes or will contravene any Legal Requirement applicable
to or binding on it as of the date hereof, (iii) does or will contravene or
result in any breach of or constitute any default under, or result in the
creation of any Lessor Lien upon the Property or any of the Improvements or
the Trust Agreement, any indenture, mortgage, chattel mortgage, deed of
trust, conditional sales contract, bank loan or credit agreement or other
agreement or instrument to which it or its properties may be bound or (iv)
does or will require any Governmental Action by any Governmental Authority
of the State of Delaware or of the federal government of the United States
of America governing the banking or trust powers of the Trustee.
14
(c) Enforceability, etc. Each Operative Agreement to which it is a
--------------------
party has been duly executed and delivered by it and constitutes, or upon
execution and delivery will constitute, a legal, valid and binding
obligation enforceable against it in accordance with the terms thereof.
(d) Litigation. No litigation, investigation or proceeding of or
----------
before any arbitrator or Governmental Authority is pending or threatened by
or against the Lessor (a) with respect to any of the Operative Agreements
or any of the transactions contemplated hereby or thereby, or (b) which
could reasonably be expected to have a material adverse effect on the
assets, liabilities, operations, business or financial condition of the
Lessor.
(e) Assignment. Lessor has not assigned or transferred any of its
----------
right, title or interest in or under the Lease, any other Operative
Agreement or any of the Properties, except in accordance with the other
Operative Agreements.
(f) No Default. The Lessor is not in default under or with respect to
----------
any of its Contractual Obligations in any respect which could have a
material adverse effect on the assets, liabilities, operations, business or
financial condition of the Lessor. No Default or Event of Default
attributable to it has occurred and is continuing.
(g) Use of Proceeds. The proceeds of the Loans and the Investor
---------------
Contribution shall be applied by the Lessor solely in accordance with the
provisions of the Operative Agreements.
(h) Chief Place of Business. The Lessor'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 located at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
(i) Federal Reserve Regulations. The Lessor is not engaged
---------------------------
principally in, and does not have as one of its most 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, directly or
indirectly, 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 of the Board, including but not limited to, G, T, U or X of the
Board.
(j) Investment and Holding Company Status. The Lessor is not (i) an
-------------------------------------
"investment company" as defined in, or subject to regulation under the
Investment Company Act of 1940 or (ii) a "holding company" as defined in,
or subject to regulation under, the Public Utility Holding Company Act of
1935.
15
(k) Securities Act. Neither the Lessor nor any Person authorized by
--------------
the Lessor to act on its behalf has offered or sold any interest in the
Property or the Notes, or in any similar security or interest relating to
the Property, or in any security the offering of which for the purposes of
the Securities Act 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 from, any Person other than, in the case of the
Notes, the Agent, and neither the Lessor nor any Person authorized by the
Lessor to act on its behalf will take any action which would subject the
issuance or sale of any interest in the Property or the Notes to the
provisions of Section 5 of the Securities Act or require the qualification
of any Operative Agreement under the Trust Indenture Act of 1939, as
amended.
(l) ERISA. The Lessor is making the Investor Contribution
-----
contemplated to be made by it hereunder in the ordinary course of its
business, and no part of such amount constitutes the assets of any Employee
Benefit Plan.
(m) Lessor Liens. The Property is free and clear of all Lessor Liens.
------------
7.3 Representations and Warranties of the Lessee on the Initial
-----------------------------------------------------------
Closing Date. The Lessee represents and warrants to each of the other parties
------------
hereto as of the Initial Closing Date that the representations and warranties
set forth in Section 4 of the Senior Secured Credit Agreement are true and
correct in all respects on or as of the Initial Closing Date unless they relate
to another date as if made on and as of the Initial Closing Date or such other
date.
7.4 Representations and Warranties of the Trust Company on the Initial
------------------------------------------------------------------
Closing Date. The Trust Company represents and warrants to each of the other
------------
parties hereto as of the Initial Closing Date as follows:
(a) Due Organization, etc. It is a banking corporation duly organized
----------------------
and validly existing and in good standing under the laws of the State of
Delaware and has the power and authority to enter into and perform its
obligations under the Trust Agreement and has the corporate power and
authority to act as the trustee under the Trust Agreement and to enter into
and perform the obligations under each of the other Operative Agreements to
which Trust Company or the Trust, 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 Initial Closing Date in connection with or
as contemplated by each such Operative Agreement to which the Trust Company
or the Trust, as the case may be, is or will be a party.
(b) Authorization; No Conflict. The execution, delivery and
--------------------------
performance of each Operative Agreement to which it is a party, either in
its individual capacity or (assuming due authorization, execution and
delivery of the Trust Agreement by each Investor) as the Trust, 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 (i) does or will require any approval or
consent of any trustee or
16
holders of any of its indebtedness or obligations, (ii) does or will
contravene any current United States federal law, governmental rule or
regulation relating to its banking or trust powers, (iii) 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 or (iv) does or will require any
Governmental Action by any Governmental Authority of the United States or
the State of Delaware regulating its banking or trust powers.
(c) Trust Company Enforceability, etc. The Trust Agreement and,
----------------------------------
assuming the Trust Agreement is the legal, valid and binding obligation of
each Investor, each other Operative Agreement to which the Trust Company or
the Trust, as the case may be, is a party have been, or on or before the
Closing Date will be, duly executed and delivered by the Trust Company or
the Trust, as the case may be, and the Trust Agreement and each such other
Operative Agreement to the extent entered into by the Trust Company
constitutes, or upon execution and delivery will constitute, a legal, valid
and binding obligation enforceable against the Trust Company in accordance
with the terms thereof.
(d) Litigation. No litigation, investigation or proceeding of or
----------
before any arbitrator or Governmental Authority is pending or threatened by
or against the Trust Company with respect to any of the Operative
Agreements or any of the transactions contemplated hereby or thereby.
7.5 Representations and Warranties of the Lessee on Property Closing
----------------------------------------------------------------
Dates. The Lessee hereby represents and warrants to each of the other parties
-----
hereto as of each Property Closing Date as follows:
(a) Representations and Warranties. The representations and
------------------------------
warranties of the Construction Agent, the Lessee and each of the Guarantors, and
to the actual knowledge of the Lessee, the representations and warranties of the
Lessor and the Investors, set forth herein and in each of the other Operative
Agreements are true and correct in all material respects on and as of such
Property Closing Date as if made on and as of such Property Closing Date. The
Construction Agent, the Lessee and each of the Guarantors are in compliance with
their respective obligations under the Operative Agreements and there exists no
Default or Event of Default under any of the Operative Agreements.
(b) No Default. No Default or Event of Default will occur under any
----------
of the Operative Agreements as a result of, or after giving effect to, the
Advance requested by the Requisition on such Property Closing Date.
(c) Authorization by the Lessee. The execution and delivery of each
---------------------------
Lease Supplement, Memorandum of Lease, Consent to Assignment and other Operative
Agreement delivered by the Lessee on such Property Closing Date and the
performance of the obligations of the Lessee under each such Lease Supplement,
Memorandum of Lease, Consent to Assignment
17
and other Operative Agreements have been duly authorized by all requisite
corporate action of the Lessee.
(d) Execution and Delivery by the Lessee. Each Lease Supplement,
------------------------------------
Memorandum of Lease, Consent to Assignment and other Operative Agreement
delivered on such Property Closing Date by the Lessee have been duly executed
and delivered by the Lessee.
(e) Valid and Binding Obligations. Each Lease Supplement, Memorandum
-----------------------------
of Lease, Consent to Assignment and other Operative Agreement delivered by the
Lessee on such Property Closing Date is a legal, valid and binding obligation of
the Lessee, enforceable against the Lessee in accordance with its respective
terms.
(f) Recording of Documents. Each of the Deed, or the Ground
----------------------
Lease or a Memorandum of Ground Lease, as applicable, the Memorandum of Lease,
the Assignment of Lease, the Consent to the Assignment of Lease and the Mortgage
delivered on such Property Closing Date has been or will be recorded with the
appropriate Governmental Authorities in the order listed in this paragraph, and
the UCC Financing Statements with respect to the Property being acquired will be
filed with the appropriate Governmental Authorities.
(g) Priority of Liens. (i) Each Mortgage delivered on such Property
-----------------
Closing Date, constitutes a valid and perfected first lien on each applicable
Property in an amount not less than the Tranche A/B Property Cost with respect
to such Property, subject only to the Permitted Exceptions, (ii) the Lessor
Financing Statements perfect the Lessor's interest under the Lease to the extent
the Lease is a security agreement governed by Article 9 of the Uniform
Commercial Code, and (iii) the Guarantee Mortgages constitute valid and
perfected liens on the Mortgaged Properties for the ratable benefit of the
Senior Secured Obligations and the Guaranteed Obligations.
(h) Flood Zone. No portion of any Property being acquired by the
----------
Lessor on such Property Closing Date is located in an area identified as a
special flood hazard area by the Federal Emergency Management Agency or other
applicable agency, or if any such Property is located in an area identified as a
special flood hazard area by the Federal Emergency Management Agency or other
applicable agency, then, to the extent available, flood insurance has been
obtained for such Property in accordance with Section 14.2(b) of the Lease and
in accordance with the National Flood Insurance Act of 1968, as amended.
(i) Insurance Coverage. The Lessee maintains insurance coverage for
------------------
each Property being acquired by the Lessor on such Property Closing Date which
meets the requirements of Section 14.1 of the Lease and all of such coverage is
in full force and effect.
(j) Legal Requirements. Each Property being acquired by the Lessor on
------------------
such Property Closing Date complies in all material respects with all applicable
Legal Requirements (including all zoning and land use laws and Environmental
Laws).
18
(k) Consents, etc. All material consents, licenses and building
-------------
permits required by all Legal Requirements for construction, completion,
occupancy and operation of each Property being acquired on such Property Closing
Date, to the extent obtainable at such date, have been obtained and are in full
force and effect.
(l) Utilities. All utility services and facilities necessary for the
---------
use of the Improvements existing, or to be constructed, on the Land (including
gas, electrical, water and sewage services and facilities) will be available to
the Property on or prior to the Outside Completion Date.
(m) Environmental Matters. Except as disclosed in the Environmental
---------------------
Audit delivered to the Agent and the Lessor relating to the Property and except
insofar as any exceptions to the following, individually or in the aggregate,
could not reasonably be expected to result in a Significant Environmental Event:
(1) the Property being acquired on such Property Closing Date does
not contain, and to the Lessee's actual knowledge, has not previously
contained, any Hazardous Substances in amounts or concentrations which
(i) constitute or constituted a violation of, or (ii) could give rise
to liability under, any Environmental Law;
(2) the Property and all operations and facilities at the Property
are in compliance with all applicable Environmental Laws, and there is
no contamination at, on or under the Property or violation of any
Environmental Law which could interfere with the continued operation
of, or impair the fair saleable value of, the Property;
(3) neither the Lessee nor any of its Subsidiaries has received or
is aware of any written complaint, notice of violation, alleged
violation, or notice of investigation or of potential liability under
Environmental Laws with regard to the Property, nor does the Lessee
have actual knowledge that any such action is being contemplated,
considered or threatened;
(4) Hazardous Substances have not been generated, treated, stored
or disposed of at, on or under the Property, nor have any Hazardous
Substances been transported from the Property or come to be located at
any other property in violation of or in a manner that could
reasonably give rise to liability under any applicable Environmental
Law; and
(5) no judicial proceeding or governmental or administrative
action is pending or, to the best knowledge of the Lessee, threatened,
under any Environmental Law to which the Lessee or any Subsidiary is a
party with respect to the Property, nor are there any consent decrees
or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial
19
requirements (other than permits authorizing operations by the Lessee)
outstanding under any Environmental Law.
(n) Title to the Properties. Upon the acquisition of each Property on
-----------------------
such Property Closing Date, the Lessor has, as applicable, (i) good and
marketable title to the Property in fee simple or (ii) good and valid leasehold
title to such Property leased under any Ground Lease, subject in each case only
to the Permitted Exceptions. Upon the acquisition of each Property on such
Property Closing Date, the Lessor has the right to grant the Mortgage on the
Property. The Lessor will at all times have good and marketable title to the
Properties, subject only to Permitted Exceptions.
(o) Location of the Properties. Each Property being acquired on such
--------------------------
Property Closing Date is located within the continental United States.
(p) Execution and Delivery by the Construction Agent. The execution
------------------------------------------------
and delivery of each Operative Agreement delivered by the Construction Agent on
such date and the performance of the Construction Agent's obligations under each
Agency Agreement Supplement and Operative Agreement have been duly authorized by
all requisite corporate action of the Construction Agent.
(q) Agency Agreement Supplements. Each Operative Agreement delivered
----------------------------
by the Construction Agent on such date has been duly executed and delivered by
the Construction Agent.
(r) Valid and Binding Obligations of the Construction Agent. Each
-------------------------------------------------------
Operative Agreement delivered by the Construction Agent on such date is a legal,
valid and binding obligation of the Construction Agent, enforceable against the
Construction Agent in accordance with its terms.
(s) Conditions Precedent in Operative Agreements. All conditions
--------------------------------------------
precedent contained in this Agreement and in the other Operative Agreements to
be satisfied by the Lessee relating to the acquisition of a Property by the
Lessor have been satisfied in full or waived by the Agent and the Lessor.
(t) ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇. The acquisition of the Property being acquired
-----------------
on such Property Closing Date does not conflict with, violate, or require the
consent of any governmental entity, under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended.
7.6 Representations and Warranties of the Lessor on Property Closing
----------------------------------------------------------------
Dates. The Lessor hereby represents and warrants to each of the other parties
-----
hereto as of each Property Closing Date as follows:
(a) Representations and Warranties; No Default. The
------------------------------------------
representations and warranties of the Lessor set forth herein and in each of the
other Operative Agreements are true and correct in all material respects on and
as of such Property Closing Date as if made on and as
20
of such Property Closing Date. The Lessor is in compliance with its respective
obligations under the Operative Agreements and there exists no Default or Event
of Default under any of the Operative Agreements. No Default or Event of Default
will occur under any of the Operative Agreements as a result of, or after giving
effect to, the Advance requested by the Requisition on such Property Closing
Date.
(b) Authorization by the Lessor. The execution and delivery of each
---------------------------
Lease Supplement, Memorandum of Lease, Mortgage, Assignment of Lease and other
Operative Agreement delivered by the Lessor on such Property Closing Date and
the performance of the obligations of the Lessor under each such Lease
Supplement, Memorandum of Lease, Mortgage, the Assignment of Lease and other
Operative Agreement have been duly authorized by all requisite action of the
Lessor.
(c) Execution and Delivery by the Lessor. Each Lease Supplement,
------------------------------------
Memorandum of Lease, Mortgage, Assignment of Lease and other Operative Agreement
delivered by the Lessor on such Property Closing Date have been duly executed
and delivered by the Lessor.
(d) Valid and Binding Obligations. Each Lease Supplement, Memorandum
-----------------------------
of Lease, Mortgage, Assignment of Lease and other Operative Agreement delivered
by the Lessor on such Property Closing Date is a legal, valid and binding
obligation of the Lessor, enforceable against the Lessor in accordance with its
terms.
(e) Conditions Precedent in Operative Agreements. All conditions
--------------------------------------------
precedent contained in this Agreement and in the other Operative Agreements to
be satisfied by the Lessor relating to the acquisition of a Property by the
Lessor have been satisfied in full.
7.7 Representations and Warranties of the Lessee Upon each Funding
--------------------------------------------------------------
Date. The Lessee hereby represents and warrants to each of the other parties
----
hereto as of each Funding Date as follows:
(a) Representations and Warranties. The representations and
------------------------------
warranties of the Construction Agent, the Lessee and each of the Guarantors, and
to the actual knowledge of the Lessee, the representations and warranties of the
Lessor and the Investors, set forth herein and in each of the other Operative
Agreements are true and correct in all material respects on and as of such
Funding Date as if made on and as of such Funding Date. The Construction Agent,
the Lessee and each of the Guarantors are in compliance with their respective
obligations under the Operative Agreements and there exists no Default or Event
of Default under any of the Operative Agreements. No Default or Event of
Default will occur under any of the Operative Agreements as a result of, or
after giving effect to, the Advance requested by the Requisition on such date.
(b) Title to Properties. The Lessor, as applicable, (i) has good and
-------------------
marketable title to each Property in fee simple and (ii) good and valid
leasehold title to each Property under any Ground Lease, in each case subject
only to the Permitted Exceptions.
21
(c) Priority of Liens. Each Mortgage constitutes a valid and
-----------------
perfected first lien on each applicable Property in an amount not less than the
Tranche A/B Property Cost with respect to such Property, subject only to
Permitted Exceptions.
(d) Insurance. The Construction Agent has obtained insurance coverage
---------
covering the Property which meets the requirements of the Agency Agreement and
the other Operative Agreements before commencing construction, repairs or
Modifications, as the case may be, and such coverage is in full force and
effect.
(e) Property-Related Matters. Each Construction Period Property, when
------------------------
improved in accordance with the Plans and Specifications, will comply, and each
Completed Property complies, in all material respects with all Legal
Requirements (including all applicable zoning and land use laws and
Environmental Laws) and Insurance Requirements. With respect to each
Construction Period Property, the Plans and Specifications have been or will be
prepared in accordance with all applicable Legal Requirements (including all
applicable Environmental Laws and building, planning, zoning and fire codes) and
upon completion of the applicable Improvements in accordance with the Plans and
Specifications, such Improvements on the Construction Period Property will not
encroach in any manner onto any adjoining land (except as permitted by express
written easements or variance) and such Improvements and the use thereof by the
Lessee and its agents, assignees, employees, invitees, lessees, licensees and
tenants will comply in all material respects with all applicable Legal
Requirements (including all applicable Environmental Laws and building,
planning, zoning and fire codes). Upon completion of such Improvements in
accordance with the Plans and Specifications, (i) there will be no defects to
such Improvements including the plumbing, heating, air conditioning and
electrical systems thereof which would have a material and adverse effect on the
operation and use of such Improvements for its intended purposes and (ii) all
water, sewer, electric, gas, telephone and drainage facilities and all other
utilities required to adequately service such Improvements for its intended use
will be available pursuant to adequate permits or other appropriate
authorizations (including any that may be required under applicable
Environmental Laws). There is no action, suit or proceeding (including any
proceeding in condemnation or eminent domain or under any applicable
Environmental Law) pending or threatened which, if determined adversely to
Lessee or Lessor, adversely affects the title to, or materially adversely
affects the use, operation or value of, the Properties. No fire or other
casualty with respect to the Properties has occurred which fire or other
casualty has had a material adverse effect on the Lessee's ability to perform
its obligations under the Agency Agreement and the other Operative Agreements.
All utilities serving the Properties, or proposed to serve the Properties in
accordance with the Plans and Specifications, are located in, and in the future
will be located in, and vehicular access to the Improvements on each of the
Properties is provided by, either public rights-of-way abutting the Property or
Appurtenant Rights. All applicable licenses, approvals, authorizations,
consents, permits (including, without limitation, building, demolition and
environmental permits, licenses, approvals, authorizations and consents),
easements and rights-of-way, including proof of dedication, required for (i) the
use, treatment, storage, transport, disposal or disposition of any Hazardous
Substance on, at, under or from the Properties during the construction of the
Improvements thereon and the use and operation of the Improvements following
such construction, (ii) the construction of the Improvements in accordance with
the Plans and
22
Specifications and the Agency Agreement and (iii) the use and operation of the
Improvements following such construction as permitted pursuant to the Lease have
been obtained or will, prior to the time the same is required by any Legal
Requirement, be obtained from the appropriate Governmental Authorities having
jurisdiction or from private parties.
(f) Lease Requirements. The Improvements, when completed, will comply
------------------
with all requirements and conditions set forth in the Lease and all other
conditions and requirements of the Operative Documents.
(g) Conditions Precedent contained in the Operative Agreements. All
----------------------------------------------------------
conditions precedent contained in this Agreement and in the other Operative
Agreements to be satisfied by the Lessee relating to the relevant Advance have
been satisfied in full.
(h) Projected Completion Value. With respect to Construction Period
--------------------------
Properties, the Property Cost of each Improvement as established by the Budget
will not exceed the Projected Completion Value with respect to such
Improvements.
7.8 Representations and Warranties of the Lessor Upon each Funding
--------------------------------------------------------------
Date. The Lessor hereby represents and warrants to each of the other parties
----
hereto as of each Funding Date as follows:
(a) Representations and Warranties. The representations and
------------------------------
warranties of the Lessor set forth herein and in each of the other Operative
Agreements are true and correct in all material respects on and as of such
Funding Date as if made on and as of such Funding Date. The Lessor is in
compliance with its respective obligations under the Operative Agreements.
(b) Authority of the Lessor. The execution and delivery of each
-----------------------
Operative Agreement delivered by the Lessor on such date and the performance of
the obligations of the Lessor under each Operative Agreement has been duly
authorized by all requisite action of the Lessor.
(c) Execution and Delivery by the Lessor. Each Operative Agreement
------------------------------------
delivered by the Lessor on such date has been duly executed and delivered by the
Lessor.
(d) Valid and Binding Obligations of the Lessor. Each Operative
-------------------------------------------
Agreement delivered by the Lessor on such date is a legal, valid and binding
obligation of the Lessor, enforceable against the Lessor in accordance with its
terms.
(e) Conditions Precedent contained in the Operative Agreements. All
----------------------------------------------------------
conditions precedent contained in this Agreement and in the other Operative
Agreements to be satisfied by the Lessor relating to the relevant Advance have
been satisfied in full.
7.9 Representations and Warranties of the Investors Upon Funding
------------------------------------------------------------
Dates. Each Investor hereby represents and warrants to each of the other
parties hereto as of each Funding Date that: (a) the representations and
warranties of such Investor set forth herein and in
23
each of the other Operative Agreements are true and correct in all respects on
and as of such Funding Date as if made on and as of such Funding Date and (b)
such Investor is in compliance with its obligations under the Operative
Agreements.
8. PAYMENT OF CERTAIN EXPENSES
Lessee agrees, for the benefit of the Investors, the Trust Company, the
Trust, the Agent and each of the Lenders, to:
8.1 Transaction Expenses. (a) On the Initial Closing Date, pay, or
--------------------
cause to be paid, all reasonable fees, expenses and disbursements of counsel for
each of (i) the Lessor and the Trust Company, (ii) the Investors and (iii) the
Agent, the Arranger, the Co-Arrangers, the Syndication Agent and the
Documentation Agent, in connection with the transactions contemplated by the
Operative Agreements and incurred in connection with such Initial Closing Date,
including all Transaction Expenses, and all other expenses in connection with
such Initial Closing Date, including all expenses relating to all fees, taxes
and expenses for the recording, registration and filing of documents.
(a) On each Property Closing Date, pay, or cause to be paid, all fees,
expenses and disbursements of counsel for each of (i) the Lessor and the Trust
Company, (ii) the Investors and (iii) the Agent, the Arranger, the Co-Arrangers,
the Syndication Agent and the Documentation Agent, in connection with the
transactions contemplated by the Operative Agreements and incurred in connection
with such Property Closing Date, including all Transaction Expenses arising from
such Property Closing Date, and all other expenses in connection with such
Property Closing Date, including all expenses relating to each Appraisal, and
all fees, taxes and expenses for the recording, registration and filing of
documents.
8.2 Brokers' Fees and Stamp Taxes. Pay or cause to be paid brokers'
-----------------------------
fees and any and all stamp, transfer and other similar taxes, fees and excises,
if any, including any interest and penalties, which are payable in connection
with the transactions contemplated by this Agreement and the other Operative
Agreements.
8.3 Certain Fees and Expenses. Pay or cause to be paid (i) the
-------------------------
initial and annual Trust Company's fee and all reasonable expenses of the Trust
Company and any necessary co-trustees (including reasonable counsel fees and
expenses) or any successor owner trustee, for acting as trustee under the Trust
Agreement, (ii) all reasonable costs and expenses incurred by the Lessee, the
Agent, the Investors, the Trust Company or the Lessor in entering into any
future amendments or supplements with respect to any of the Operative
Agreements, whether or not such amendments or supplements are ultimately entered
into, or giving or withholding of waivers of consents hereto or thereto, which
have been requested by the Lessee, and (iii) all reasonable costs and expenses
incurred by the Lessor, the Lessee, the Investors, the Trust Company or the
Agent in connection with any purchase of any Property by the Lessee pursuant to
Section 20 of the Lease.
24
8.4 Credit Agreement and Related Obligations. (a) Pay, on or prior
----------------------------------------
to the due date thereof, all costs, fees, indemnities, expenses and other
amounts (other than principal and interest on the Loans, but including breakage
costs and interest on overdue amounts pursuant to Section 2.13 of the Credit
Agreement or otherwise) required to be paid by the Lessor under any Operative
Agreement.
(a) Pay the Lessor promptly after receipt of notice therefor any
additional amounts payable to the Investors in respect of the Investor
Contribution under Sections 2.12, 2.13 and 2.14 of the Credit Agreement (it
being agreed that each Investor is, for purposes of this Agreement, a
beneficiary of the provisions of Sections 2.12, 2.13 and 2.14 of the Credit
Agreement). Each Investor hereby agrees that the provisions of Section 2.12(d)
of the Credit Agreement are incorporated herein by reference as though set forth
herein, except that the term "Lender" as used therein shall refer to "Investor."
8.5 Overdue Rate. If all or a portion of the Investor Yield, the
------------
Investor Contribution or any other amount owed to the Investors shall not be
paid within 5 days after such amount becomes due, such overdue amount shall bear
interest, payable on demand, at a rate per annum equal to the applicable Overdue
Rate, from the date of such non-payment until such amount is paid in full (as
well after as before judgment).
9. OTHER COVENANTS AND AGREEMENTS
9.1 Covenants of the Trust and the Investors. Each of the parties
----------------------------------------
hereby agrees that so long as this Agreement is in effect:
(a) Discharge of Liens. Each of the Investors, the Trust and the
------------------
Trust Company, in its individual capacity, will not create or permit to exist at
any time, and will, at its own cost and expense, promptly take such action as
may be necessary duly to discharge, or to cause to be discharged, all Lessor
Liens on the Property attributable to it or any of its Affiliates; provided,
--------
however, that the Investors, the Trust and the Trust Company shall not be
-------
required to so discharge any such 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 the Liens of
the Security Documents or of the sale, forfeiture or loss of, and shall not
interfere with the use or disposition of, the Property or title thereto or any
interest therein or the payment of Rent.
(b) Trust Agreement. Without prejudice to any right under the Trust
---------------
Agreement of the Trust Company to resign, or the Investors' right under the
Trust Agreement to remove the institution acting as trustee, each of the
Investors and the Trust Company hereby agrees with the Lessee and the Agent (i)
not to terminate or revoke the trust created by the Trust Agreement except as
permitted by the Trust Agreement, (ii) not to amend, supplement, terminate or
revoke or otherwise modify any provision of the Trust Agreement without the
prior written consent of any party hereto adversely affected by such amendment
and (iii) to comply with all of
25
the terms of the Trust Agreement, the nonperformance of which would adversely
affect such party.
(c) Successor Trust Company. The Trust Company or any successor may
-----------------------
resign or be removed by the Investors as trustee of the Trust, a successor
trustee may be appointed, and a corporation may become the trustee under the
Trust Agreement, only in accordance with the provisions of Article 8 of the
Trust Agreement and with the consent of the Lessee, which consent shall not be
unreasonably withheld or delayed.
(d) Indebtedness; Other Business. The Trust shall not contract for,
----------------------------
create, incur or assume any indebtedness, or enter into any business or other
activity, other than pursuant to or under the Operative Agreements.
(e) No Violation. The Investors will not instruct the Trust to take
------------
any action in violation of the terms of any Operative Agreement.
(f) No Voluntary Bankruptcy. Neither the Investors nor the Trust
-----------------------
shall (i) commence any case, proceeding or other action under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, arrangement, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (ii) seek
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial benefit of its creditors; and neither the
Investors nor the Trust shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth in
this paragraph.
(g) Change of Chief Place of Business. The Trust shall give prompt
---------------------------------
notice to the Lessee and the Agent if the Trust's chief place of business or
chief executive office, or the office where the records concerning the accounts
or contract rights relating to the Property are kept, shall cease to be located
at ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-
0001 or if it shall change its name.
(h) Loan Documents. Provided that no Lease Default is continuing,
--------------
none of the Lenders, the Trust, the Lessor, the Agent nor the Investors shall
consent to or permit any amendment, supplement, waiver or other modification of
the terms and provisions of the Credit Agreement, the Notes or the Security
Documents, in each case without the prior written consent of the Lessee.
(i) Disposition of Assets. The Trust 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
authorized by the Operative Agreements.
(j) Compliance with Operative Agreements. The Trust shall at all
------------------------------------
times observe and perform all of the covenants, conditions and obligations
required to be performed by it under each Operative Agreement to which it is a
party.
26
(k) Financial Statements. Upon the request of the Lessee, the Trustee
--------------------
shall cause to be prepared audited financial statements for the Lessor, which
shall be prepared by auditors selected by the Lessee and at the Lessee's sole
cost and expense.
9.2 Repayment of Certain Amounts on Maturity Date. The Investors,
---------------------------------------------
the Lessor and the Agent hereby agree that if (i) on the Maturity Date (after
giving effect to all payments made by the Lessee under the Lease and the
application of all sales proceeds pursuant to Section 8 of the Credit Agreement)
there remains any outstanding principal or accrued and unpaid interest under the
Tranche B Notes (the aggregate amount of such outstanding principal, the
"Tranche B Deficit") and (ii) during the Marketing Period the Lessor or the
------------------
Investors have received any Marketing Period Equity Return, then on the Maturity
Date the Investors shall pay to the Agent an amount up to the amount of the
Tranche B Deficit to be applied to reduce the Loan, but in no event greater than
the Marketing Period Equity Return received by it.
9.3 Amendment of Certain Documents. The Agent, for itself and on
------------------------------
behalf of the Lenders, hereby agrees for the benefit of the Trust and the
Investors that it will not amend, alter or otherwise modify, or consent to any
amendment, alteration or modification of, the Lease (including the definitions
of any terms used in such document) without the prior written consent of the
Trust and the Investors, as the case may be, if such amendment, alteration or
modification would materially and adversely affect the interests of the Trust or
the Investors. Provisions requiring consent include any amendment, alteration
or modification that would release the Lessee from any of its obligations in
respect of the payment of Basic Rent, Supplemental Rent, Termination Value,
Maximum Residual Guarantee Amount or the Purchase Option Price or any other
payments in respect of the Property as set forth in the Lease, or amend the
provisions of Section 8 of the Credit Agreement, or reduce the amount of, or
change the time or manner of payment of, obligations of the Lessee as set forth
in the Lease, or create or impose any obligation on the part of the Trust or the
Investors under the Lease, or extend or shorten the duration of the Term, or
modify the provisions of this Section 9.3.
9.4 Proceeds of Casualty. The Lessor and the Investors agree, for the
--------------------
benefit of the Agent and the Lenders, that if at any time either the Lessor or
any Investor receives any proceeds as a result, directly or indirectly, of any
Casualty or Condemnation with respect to the Property which the Lessor is
entitled to hold in accordance with the terms of Section 15 of the Lease, the
Lessor and the Investors agree that they will promptly deposit such amounts in
an account with the Agent for application in accordance with Section 15 of the
Lease. The Lessor and the Investors also agree that they will execute and
deliver such documents and instruments as the Agent may request in order to
grant the Agent, for the benefit of the Lenders, a valid and perfected, first
priority security interest in such proceeds.
9.5 Intercreditor Agreement. The Lessee, the Agent, the Lenders and
-----------------------
the Lessor hereby agree and confirm that the provisions of Section 8 of the
Credit Agreement are intended to constitute an intercreditor agreement and a
subordination agreement under Section 510 of the Bankruptcy Code or any similar
provision therein.
27
9.6 Available Proceeds. (a) The Lessee agrees that the provisions of
------------------
subsections 3.4(b) of the Senior Secured Credit Agreement are made not only for
the benefit of the Senior Secured Lenders but also for the Lenders, and that the
Lessee agrees that to the extent amounts to be applied pursuant to subsection
3.4(b)(i), (ii), (iii) or (iv) of the Senior Secured Credit Agreement are not
applied to reduce the Senior Secured Revolving Credit Commitments (and pursuant
to Section 2.6(b) of the Credit Agreement, result in a reduction of the
Commitments) or prepay the Senior Secured Term Loans, such amounts not so
applied ("Available Proceeds") shall be paid to the Agent to be deposited into a
------------------
cash collateral account established upon terms mutually acceptable to the Agent
and the Lessee and held by the Agent pursuant to the Cash Collateral Agreement
to secure the Guaranteed Obligations.
(a) The Lessee agrees that to the extent payments are made pursuant
to subsection 3.3 of the Senior Secured Credit Agreement to collateralize the
Guaranteed Obligations, such amounts shall be paid to the Agent to be held
pursuant to the Cash Collateral Agreement to secure the Guaranteed Obligations.
10. CREDIT AGREEMENT
10.1 Lessee's Credit Agreement Rights. Notwithstanding anything to
--------------------------------
the contrary contained in the Credit Agreement, the Agent, the Lessee, the
Investors and the Lessor hereby agree that:
(a) the Lessee shall have the right to give the notices referred to
in Section 2.3 of the Credit Agreement;
(b) the Lessee shall have the right to convert or continue Loans in
accordance with Section 2.5 of the Credit Agreement;
(c) the Lessee shall receive copies of all notices delivered to the
Lessor under the Credit Agreement and the other Operative Agreements and such
notices shall not be effective until received;
(d) the Lessee shall have the right to select Interest Periods in
accordance with the terms of the Credit Agreement;
(e) the Lessee shall have the right to give notice of prepayment of
the Loans in accordance with the Credit Agreement, provided that if the Lessee
shall give notice of prepayment of the Loans, the Lessee shall prepay a pro rata
portion of the Investor Contribution;
(f) the Lessee shall have the right to cure, to the extent
susceptible to a cure, any Default or Event of Default of the Lessor under the
Credit Agreement;
(g) the Lessee shall have the right to approve any successor Agent
pursuant to Section 7.9 of the Credit Agreement;
(h) the Lessee shall have the right, on behalf of the Lessor, to
select any person or persons (including the Lessee) to whom funds may be paid at
the discretion of the Lessor in accordance with Sections 8.1 and 8.2 of the
Credit Agreement;
(i) the Lessee shall have the right to consent to any assignment by a
Lender, if required pursuant to Section 9.5 of the Credit Agreement;
(j) the Lessee shall have the right to designate the portion of the
Loans on which interest is due and payable for purposes of the definitions of
"Allocated Interest" and "Allocated Investor Yield";
(k) the Lessee shall have the right to request that another lending
office be designated pursuant to Section 2.15 of the Credit Agreement;
(l) the Lessee shall have the obligation to notify the Agent of the
amounts or information specified in Section 5.8 of the Credit Agreement; and
(m) without limiting the foregoing clauses (a) through (l), and in
addition thereto, (x) the Lessor shall not exercise any right under the Credit
Agreement without giving the Lessee at least ten (10) Business Days' prior
written notice (or such shorter period as may be required but in no case less
than three (3) Business Days) and, following such notice, the Lessor shall take
such action, or forbear from taking such action, as the Lessee shall direct and
(y) the Lessee shall have the right to exercise any other right of the Lessor
under the Credit Agreement upon not less than two (2) Business Days' prior
written notice from the Lessee to the Lessor. Notwithstanding the foregoing,
the Investors shall retain the exclusive right to direct the Lessor with respect
to the exercise of the Excepted Rights.
11. TRANSFER OF INTEREST
11.1 Restrictions on Transfer. No Investor may, directly or
------------------------
indirectly, assign, convey or otherwise transfer any of its right, title or
interest in or to the Trust Estate or the Trust Agreement nor shall there be any
change in Control of any Investor without the consent of the Agent and the
Lessee, which consent shall not be unreasonably withheld or delayed. Any
transfer by any Investor as above provided, shall be effected pursuant to an
agreement in form and substance reasonably satisfactory to the Agent, such
Investor, the Trust Company, the Lessee and their respective counsel.
11.2 Effect of Transfer. From and after any transfer effected in
------------------
accordance with this Section 11, the transferor shall be released, to the extent
of such transfer, from its liability hereunder and under the other documents to
which it is a party in respect of obligations to be performed on or after the
date of such transfer; provided, however, that any transferor Investor shall
-------- -------
remain liable under the Trust Agreement to the extent that the transferee
Investor shall not have assumed the obligations of the transferor Investor
thereunder. Upon any transfer by the
29
Trust or an Investor as above provided, any such transferee shall assume the
obligations of the Trust, and the Lessor or Investor, as the case may be, and
shall be deemed the "Trust", "Lessor" or "Investor", as the case may be, for all
purposes of such documents and each reference herein to the transferor shall
thereafter be deemed a reference to such transferee for all purposes, except as
provided in the preceding sentence. Notwithstanding any transfer of all or a
portion of the transferor's interest as provided in this Section 11, the
transferor shall be entitled to all benefits accrued and all rights vested prior
to such transfer including rights to indemnification under any such document.
12. INDEMNIFICATION
12.1 General Indemnity. (a) The Lessee, whether or not any of the
-----------------
transactions contemplated hereby shall be consummated, hereby assumes liability
for and agrees to defend, indemnify and hold harmless each Indemnified Person,
except as specifically provided in Section 12.1(b), on an After Tax Basis from
and against any Claims which may be imposed on, incurred by or asserted against
an Indemnified Person in any way relating to or arising or alleged to arise out
of (i) the financing, refinancing, purchase, acceptance, rejection, ownership,
design, construction, delivery, acceptance, nondelivery, leasing, subleasing,
possession, use, operation, repair, modification, transportation, condition,
sale, return, repossession (whether by summary proceedings or otherwise), or any
other disposition of the Property or any part thereof; (ii) any latent or other
defects in any Property whether or not discoverable by an Indemnified Person or
the Lessee; (iii) a violation of Environmental Laws, Environmental Claims or
other loss of or damage relating to the Property; (iv) the Operative Agreements,
or any transaction contemplated thereby; (v) any breach by the Lessee of any of
its representations or warranties under the Operative Agreements or failure by
the Lessee to perform or observe any covenant or agreement to be performed by it
under any of the Operative Agreements; and (vi) personal injury, death or
property damage relating to the Property, including Claims based on strict
liability in tort; but in any event excluding (v) Claims to the extent such
Claims are found by a final decision of a court of competent jurisdiction to
have arisen solely out of the gross negligence or willful misconduct of such
Indemnified Person, (w) Claims to the extent such Claims arise solely out of
events occurring after the expiration of the Term and after the Lessee's
discharge of all its obligations under the Lease, (x) any Taxes including any
Claim (or any portion of a Claim) made upon an Indemnified Person by a third
party that at its origin is based upon a Tax (other than amounts necessary to
make any payments hereunder on an After Tax Basis, where the Lessee is otherwise
specifically required to make such payments on an After Tax Basis), (y) Claims
to the extent such Claims arise solely from legal proceedings commenced against
an Indemnified Party by any security holder or creditor thereof arising out of
and based upon rights afforded any such security holder or creditor solely in
its capacity as such or (z) Claims to the extent such Claims arise solely from
legal proceedings commenced against an Indemnified Party by any Transferee. The
Lessee shall be entitled to control, and shall assume full responsibility for
the defense of any Claim; provided, however, that the Trust, the Trust Company,
-------- -------
the Agent and the Investors named in such Claim, may each retain separate
counsel at the expense of the Lessee in the event of and to the extent of a
conflict or a potential conflict. The Lessee and each Indemnified Person agree
to give each other prompt written notice of any Claim hereby indemnified against
but the giving
of any such notice by an Indemnified Person shall not be a condition to the
Lessee's obligations under this Section 12.1, except to the extent failure to
give such notice materially prejudices Lessee's rights hereunder. After an
Indemnified Person has been fully indemnified for a Claim pursuant to this
Section 12.1, and so long as no Event of Default under the Lease shall have
occurred and be continuing, the Lessee shall be subrogated to any right of such
Indemnified Person with respect to such Claim. None of the Indemnified Persons
shall settle a Claim without the consent of the Lessee, which consent shall not
be unreasonably withheld or delayed.
(a) Except with respect to Claims imposed, incurred or asserted
pursuant to (i) clause (iii) of Section 12.1(a), (ii) a breach of the
representations made by Lessee pursuant to Section 7.5(m), or (iii) a violation
by Lessee of the covenants contained in Section 9.1 of the Lease and Section
2.7(a) of the Agency Agreement with respect to Environmental Laws or Section 9.2
of the Lease, the Lenders and the Agent shall not be deemed to be Indemnified
Parties for the purpose of Section 12.1 but only for the Construction Period and
only with respect to Construction Period Property.
12.2 General Tax Indemnity. (a) The Lessee shall pay and assume
---------------------
liability for, and does hereby agree to indemnify, protect and defend the
Property and all Tax Indemnities, and hold them harmless against, all
Impositions on an After Tax Basis.
(a) Provided that no Default or Event of Default has occurred and is
continuing, if any Tax Indemnitee obtains a refund or a reduction in a liability
(but only if such reduction relates to a Tax not otherwise indemnifiable
hereunder and has not been taken into account in determining the amount of a
payment on an After Tax Basis) as a result of any Imposition paid or reimbursed
by the Lessee (in whole or in part), such Tax Indemnitee shall promptly pay to
the Lessee the lesser of (x) the amount of such refund or reduction in liability
and (y) the amount previously so paid or advanced by the Lessee, in each case
net of reasonable expenses not already paid or reimbursed by the Lessee.
(b)(i) Subject to the terms of Section 12.2(g), the Lessee shall pay
or cause to be paid all Impositions directly to the taxing authorities where
feasible and otherwise to the Tax Indemnitee, as appropriate, and the Lessee
shall at its own expense, upon such Tax Indemnitee's reasonable request, furnish
to such Tax Indemnitee copies of official receipts or other satisfactory proof
evidencing such payment.
(i) In the case of Impositions for which no contest is conducted
pursuant to Section 12.2(g) and which the Lessee pays directly to the taxing
authorities, the Lessee shall pay such Impositions prior to the latest time
permitted by the relevant taxing authority for timely payment. In the case of
Impositions for which the Lessee reimburses a Tax Indemnitee, the Lessee shall
do so within twenty (20) days after receipt by the Lessee of demand by such Tax
Indemnitee describing in reasonable detail the nature of the Imposition and the
basis for the demand (including the computation of the amount payable), but in
no event shall the Lessee be required to pay such reimbursement prior to thirty
(30) days before the latest time permitted by the relevant taxing authority for
timely payment. In the case of Impositions for which a contest is conducted
pursuant to Section 12.2(g), the Lessee shall pay such Impositions or reimburse
31
such Tax Indemnitee for such Impositions, to the extent not previously paid or
reimbursed pursuant to subsection (a), prior to the latest time permitted by the
relevant taxing authority for timely payment after conclusion of all contests
under Section 12.2(g).
(ii) Impositions imposed with respect to a Property for a billing
period during which the Lease expires or terminates with respect to such
Property (unless the Lessee has exercised the Purchase Option with respect to
the Property) shall be adjusted and prorated on a daily basis between the Lessee
and the Lessor, whether or not such Imposition is imposed before or after such
expiration or termination and each party shall pay or reimburse the other for
each party's pro rata share thereof.
(iii) At the Lessee's request, the amount of any indemnification
payment by the Lessee pursuant to subsection (a) shall be verified and certified
by an independent public accounting firm mutually acceptable to the Lessee and
the Tax Indemnitee. The fees and expenses of such independent public accounting
firm shall (i) in the case of the Trust Company or the Trustee, be paid by the
Lessee, and (ii) in the case of all other Tax Indemnities, be paid by the Lessee
unless such verification shall result in an adjustment in the Lessee's favor of
10% or more of the payment as computed by such Tax Indemnitee, in which case
such fee shall be paid by such Tax Indemnitee.
(c)(i) The Lessee shall be responsible for preparing and filing
any real and personal property or ad valorem tax returns in respect of the
Property. In case any other report or tax return shall be required to be made
with respect to any obligations of the Lessee under or arising out of subsection
(a) and of which the Lessee has knowledge, the Lessee, at its sole cost and
expense, shall notify the relevant Tax Indemnitee of such requirement and
(except if such Tax Indemnitee notifies the Lessee that such Person intends to
file such report or return) (A) to the extent required or permitted by and
consistent with Legal Requirements, make and file in its own name such return,
statement or report; and (B) in the case of any other such return, statement or
report required to be made in the name of such Tax Indemnitee, advise such Tax
Indemnitee of such fact and prepare such return, statement or report for filing
by such Tax Indemnitee or, where such return, statement or report shall be
required to reflect items in addition to any obligations of the Lessee under or
arising out of subsection (a), provide such Tax Indemnitee at the Lessee's
expense with information sufficient to permit such return, statement or report
to be properly made with respect to any obligations of the Lessee under or
arising out of subsection (a). Such Tax Indemnitee shall, upon the Lessee's
request and at the Lessee's expense, provide any data maintained by such Tax
Indemnitee (and not otherwise within the control of the Lessee) with respect to
the Property which the Lessee may reasonably require to prepare any required tax
returns or reports;
(d) If as a result of the payment or reimbursement by the
Lessee of any expenses of a Tax Indemnitee or the payment of any Transaction
Expenses incurred in connection with the transactions contemplated by the
Operative Agreements, any Tax Indemnity, shall suffer a net increase in any
federal, state or local income tax liability, the Lessee shall indemnify such
Tax Indemnitee (without duplication of any indemnification required by
subsection (a)) on an After Tax Basis for the amount of such increase. The
calculation of any
32
such net increase shall take into account any current or future tax savings
realized or reasonably expected to be realized by such Tax Indemnitee, in
respect thereof, as well as any interest, penalties and additions to tax payable
by such Tax Indemnitee, in respect thereof;
(e) As between the Lessee and the Lessor, the Lessee shall be
responsible for, and the Lessee shall indemnify and hold harmless the Trust
Company in its individual capacity and as the trustee of Lessor (without
duplication of any indemnification required by subsection (a)) on an After Tax
Basis against, any obligation for United States withholding taxes imposed in
respect of the interest payable on the Notes to the extent, but only to the
extent, Lessor has actually paid funds to a taxing authority with respect to
such withholding taxes (and, if the Lessor receives a demand for such payment
from any taxing authority, the Lessee shall discharge such demand on behalf of
the Lessor);
(f)(i) If a written claim is made against any Tax Indemnitee or
if any proceeding shall be commenced against such Tax Indemnitee (including a
written notice of such proceeding), for any Impositions, such Tax Indemnitee
shall promptly notify Lessee in writing and shall not take action with respect
to such claim or proceeding without the consent of Lessee for thirty (30) days
after the receipt of such notice by Lessee; provided, that, in the case of any
--------
such claim or proceeding, if action shall be required by law or regulation to be
taken prior to the end of such 30-day period, such Tax Indemnitee shall, in such
notice to Lessee, inform Lessee, and no action shall be taken with respect to
such claim or proceeding without the consent of Lessee before the end of such
shorter period; provided, further, that the failure of such Tax Indemnitee to
-------- -------
give the notices referred to this sentence shall not diminish Lessee's
obligation hereunder except to the extent such failure precludes Lessee from
contesting all or part of such claim.
(i) If, within thirty (30) days of receipt of such notice from
the Tax Indemnitee (or such shorter period as the Tax Indemnitee has noticed
Lessee is required by law or regulation for the Tax Indemnitee to commence such
contest), Lessee shall request in writing that such Tax Indemnitee contest such
Imposition, the Tax Indemnitee shall, at the expense of Lessee, in good faith
conduct and control such contest (including, without limitation, by pursuit of
appeals) relating to the validity, applicability or amount of such impositions
(provided, however, that (A) if such contest can be pursued independently from
any other proceeding involving a tax liability of such Tax Indemnitee, the Tax
Indemnitee, at Lessee's request, shall allow Lessee to conduct and control such
contest and (B) in the case of any contest that Lessee is not entitled to
control, the Tax Indemnitee may request Lessee to conduct and control such
contest if possible or permissible under applicable law or regulation) by, in
the sole discretion of the Person conducting and controlling such contest, (1)
resisting payment thereof, (2) not paying the same except under protest, if
protest is necessary and proper, (3) if the payment be made, using reasonable
efforts to obtain a refund thereof in appropriate administrative and judicial
proceedings, or (4) taking such other action as is reasonably requested by
Lessee from time to time.
(ii) The party controlling any contest shall consult in good faith
with the non-controlling party and shall keep the non-controlling party
reasonably informed as to the conduct
33
of such contest; provided that all decisions ultimately shall be made in the
--------
sole discretion of the controlling party. The parties agree that a Tax
Indemnitee may at any time decline to take further action with respect to the
contest of any Imposition and may settle such contest if such Tax Indemnitee
shall waive its rights to any indemnity from Lessee that otherwise would be
payable in respect of such claim (and any future claim by any taxing authority
with respect to other taxable periods that are based, in whole or in part, upon
the resolution of such claim) and shall pay to Lessee any amount previously paid
or advanced by Lessee pursuant to this Section 12.2 by way of indemnification or
advance for the payment of an Imposition, and no other then future liability of
the Lessee is likely with respect to such Imposition.
(iii) Notwithstanding the foregoing provisions of this Section 12.2, a
Tax Indemnitee shall not be required to take any action and Lessee shall not be
permitted to contest any Impositions in its own name or that of the Tax
Indemnitee unless (A) Lessee shall have agreed to pay and shall pay to such Tax
Indemnitee on demand and on an After Tax Basis all reasonable costs, losses and
expenses that such Tax Indemnitee actually incurs in connection with contesting
such Impositions, including, without limitation, all reasonable legal,
accounting and investigatory fees and disbursements, (B) in the case of a claim
that must be pursued in the name of an Tax Indemnitee (or an Affiliate thereof),
the amount of the potential indemnity (taking into account all similar or
logically related claims that have been or could be raised in any audit
involving such Tax Indemnitee for which Lessee may be liable to pay an indemnity
under this Section 12.2) is more than $100,000 and less than $1,000,000, unless
the pursuit of such contest is in a manner mutually satisfactory to the Tax
Indemnitee and the Lessee, but in no event shall such right prevent the Lessee
from prosecuting or continuing such contest, (C) the Tax Indemnitee shall have
reasonably determined that the action to be taken will not result in any
material danger of sale, forfeiture or loss of any Property, or any part thereof
or interest therein, will not interfere with the payment of Rent, and will not
result in risk of criminal liability, (D) if such contest shall involve the
payment of the Imposition prior to the contest, Lessee shall provide to the Tax
Indemnitee an interest-free advance in an amount equal to the Imposition that
the Tax Indemnitee is required to pay (with no additional net after-tax cost to
such Tax Indemnitee), (E) in the case of a claim that must be pursued in the
name of an Tax Indemnitee (or an Affiliate thereof), Lessee shall have provided
to such Tax Indemnitee an opinion of independent tax counsel selected by the
Lessee and reasonably satisfactory to such Tax Indemnitee stating that a
reasonable basis exists to contest such claim (or, in the case of an appeal of
an adverse determination, an opinion of such counsel to the effect that there is
substantial authority for the position asserted in such appeal) and (F) no Event
of Default shall have occurred and be continuing. In no event shall a Tax
Indemnitee be required to appeal an adverse judicial determination to the United
State Supreme Court. In addition, a Tax Indemnitee shall not be required to
contest any claim in its name (or that of an Affiliate) if the subject matter
thereof shall be of a continuing nature and shall have previously been decided
adversely by a court of competent jurisdiction pursuant to the contest
provisions of this Section 12.2, unless there shall have been a change in law
(or interpretation thereof) and the Tax Indemnitee shall have received, at the
Lessee's expense, an opinion of independent tax counsel selected by the Tax
Indemnitee and reasonably acceptable to the Lessee stating that as a result of
such change in law (or interpretation thereof), it is more likely than not that
the Tax Indemnitee will prevail in such contest.
34
13. MISCELLANEOUS
13.1 Survival of Agreements. The representations, warranties,
----------------------
covenants, indemnities and agreements of the parties provided for in the
Operative Agreements, and the parties' obligations under any and all thereof,
shall survive the execution and delivery of this Agreement, the transfer of the
Property to the Trust, the construction of any Improvements, any disposition of
any interest of the Trust in the Property or the Improvements or any interest of
the Investor in the Trust, the payment of the Notes and any disposition thereof
and shall be and continue in effect notwithstanding any investigation made by
any party and the fact that any party may waive compliance with any of the other
terms, provisions or conditions of any of the Operative Agreements. Except as
otherwise expressly set forth herein or in other Operative Agreements, the
indemnities of the parties provided for in the Operative Agreements shall
survive the expiration or termination of any thereof.
13.2 No Broker, etc. Each of the parties hereto represents to the
---------------
others that it has not retained or employed any broker, finder or financial
adviser to act on its behalf in connection with this Agreement, nor has it
authorized any broker, finder or financial adviser retained or employed by any
other Person so to act, except for the Arranger and the Co-Arrangers, the fees
of which shall be paid by the Lessee. Any party who is in breach of this
representation shall indemnify and hold the other parties harmless from and
against any liability arising out of such breach of this representation.
13.3 Notices. Unless otherwise specifically provided herein, all
-------
notices, consents, directions, approvals, instructions, requests and other
communications required or permitted by the terms hereof to be given to any
Person shall be given in writing by nationally recognized courier service and
any such notice shall become effective five Business Days after being deposited
in the mails, certified or registered with appropriate postage prepaid or one
Business Day after delivery to a nationally recognized courier service
specifying overnight delivery and shall be directed to the address of such
Person as indicated:
If to the Lessee, to it at: c/o Harborside Healthcare Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
35
If to the Lessor, to it at: Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Reference: HHC 1998-1 Trust
If to the Investors, to them at: BTD Harborside Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
CSL Leasing, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agent, to it at: The Chase Manhattan Bank
c/o The Loan and Agency Services Group
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
CSL Leasing, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Hardago
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Chase New England Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
36
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
From time to time any party may designate a new address for purposes of notice
hereunder by notice to each of the other parties hereto.
13.4 Counterparts. This Agreement may be executed by the parties
------------
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
13.5 Amendments and Termination. Neither this Agreement nor any of
--------------------------
the terms hereof may be terminated, amended, supplemented, waived or modified
except by an instrument in writing signed by the party against which the
enforcement of the termination, amendment, supplement, waiver or modification
shall be sought. This Agreement may be terminated by an agreement signed in
writing by the Lessor, the Investors, the Lessee, the Agent and the Lenders.
Notwithstanding the foregoing provisions to the contrary, in the case of the
Lenders and the Investors, the action of the Required Lenders shall control,
except as otherwise provided in Section 9.1 of the Credit Agreement and Section
9.3 hereof and in the case of the Lessor, the action of the Lessor shall be
deemed to be the action of the Required Lenders and vice versa.
13.6 Headings, etc.. The Table of Contents and headings of the
--------------
various Sections and Subsections of this Agreement are for convenience of
reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof.
13.7 Parties in Interest. Except as expressly provided herein, none
-------------------
of the provisions of this Agreement are intended for the benefit of any Person
except the parties hereto.
13.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
13.9 Severability. Any provision of this Agreement that 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.
13.10 Liability Limited. The Lessee and the Investors each
-----------------
acknowledge and agree that the Trust Company is (except as otherwise expressly
provided herein or therein) entering into this Agreement and the other Operative
Agreements to which it is a party (other than the Trust Agreement), solely in
its capacity as trustee under the Trust Agreement and not in its individual
capacity and that Trust Company shall not be liable or accountable under any
circumstances whatsoever in its individual capacity for or on account of any
statements, representations, warranties, covenants or obligations stated to be
those of the Trust, except for its
37
own gross negligence or willful misconduct and as otherwise expressly provided
herein or in the other Operative Agreements.
13.11 Rights of Lessee. Notwithstanding any provision of the
----------------
Operative Agreements, if at any time all obligations (i) of the Trust under the
Credit Agreement and the Security Documents and (ii) of the Lessee under the
Operative Agreements have in each case been satisfied or discharged in full,
then the Lessee shall be entitled to (a) terminate the Lease (to the extent not
previously terminated) and (b) receive all amounts then held under the Operative
Agreements and all proceeds with respect to the Properties. Upon the fulfillment
of the obligations contained in clauses (i) and (ii) above, the Lessor shall
transfer to the Lessee all of its right, title and interest in and to the
Properties (to the extent not previously transferred to the Lessee in accordance
with the Lease) and any amounts or proceeds referred to in the foregoing clause
(b) shall be paid over to the Lessee.
13.12 Further Assurances. The parties hereto shall promptly cause to
------------------
be taken, executed, acknowledged or delivered, at the sole expense of the
Lessee, all such further acts, conveyances, documents and assurances as the
other parties may from time to time reasonably request in order to carry out and
effectuate the intent and purposes of this Agreement, the other Operative
Agreements and the transactions contemplated hereby and thereby (including,
without limitation, the preparation, execution and filing of any and all Uniform
Commercial Code financing statements and other filings or registrations which
the parties hereto may from time to time request to be filed or effected). The
Lessee, at its own expense, shall take such action as may from time to time be
reasonably requested by the parties hereto in order to maintain and protect all
security interests provided for hereunder or under any other Operative
Agreement.
13.13 Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
13.14 No Representation or Warranty. Nothing contained herein, in
-----------------------------
any other Operative Agreement or in any other materials delivered to the Lessee
in connection with the transactions contemplated hereby or thereby shall be
deemed a representation or warranty by the Agent or the Arranger or any of their
Affiliates as to the proper accounting treatment or tax treatment that should be
afforded to the Lease and the Lessor's ownership of the Properties and the Agent
expressly disclaims any representation or warranty with respect to such matters.
13.15 Highest Lawful Rate. It is the intention of the parties hereto
-------------------
to conform strictly to applicable usury laws and, anything herein to the
contrary notwithstanding, the obligations of the Lessee, the Lessor or the
Investors or any other party under any Operative Agreement, shall be subject to
the limitation that payments of interest or of other amounts constituting
interest shall not be required to the extent that receipt thereof would be in
excess of the Highest Lawful Rate, or otherwise contrary to provisions of law
applicable to the recipient limiting rates of interest which may be charged or
collected by the recipient. Accordingly, if the transactions or the amount paid
or otherwise agreed to be paid for the use, forbearance or detention of money
under this Agreement, the Lease and any other Operative Agreement would exceed
the Highest Lawful Rate or otherwise be usurious with respect to the recipient
of any
38
such amount, then, in that event, notwithstanding anything to the contrary in
this Agreement, the Lease or any other Operative Agreement, it is agreed as
follows as to the recipient of any such amount:
(a) the provisions of this Section 13.15 shall govern and control
over any other provision in this Agreement, the Lease and any other Operative
Agreement and each provision set forth therein is hereby so limited;
(b) the aggregate of all consideration which constitutes interest
that is contracted for, charged or received under this Agreement, the Lease, or
any other Operative Agreement shall under no circumstances exceed the maximum
amount of interest allowed by any Requirement of Law (such maximum lawful
interest rate, if any, with respect to such Lender herein called the "Highest
-------
Lawful Rate"), and all amounts owed under this Agreement, the Lease and any
----------
other Operative Agreement shall be held subject to reduction and (i) the amount
of interest which would otherwise be payable to the recipient hereunder and
under the Lease, the Loan Documents and any other Operative Agreement, shall be
automatically reduced to the amount allowed under any Requirement of Law and
(ii) any unearned interest paid in excess of the Highest Lawful Rate shall be
credited to the payor by the recipient (or, if such consideration shall have
been paid in full, refunded to the payee);
(c) all sums paid, or agreed to be paid for the use, forbearance
and detention of the money under this Agreement, the Lease, or any other
Operative Agreement shall, to the extent permitted by any Requirement of Law, be
amortized, prorated, allocated and spread throughout the full term of such
indebtedness until payment in full so that the actual rate of interest is
uniform throughout the full term thereof; and
(d) if at any time the interest, together with any other fees, late
charges and other sums payable pursuant to or in connection with this Agreement,
the Lease, and any other Operative Agreement executed in connection herewith or
therewith, and deemed interest under any Requirement of Law exceeds that amount
which would have accrued at the Highest Lawful Rate, the amount of interest and
any such fees, charges and sums to accrue to the recipient of such interest,
fees, charges and sums pursuant to the Operative Agreement shall be limited,
notwithstanding anything to the contrary in the Operative Agreement to that
amount which would have accrued at the Highest Lawful Rate for the recipient,
but any subsequent reductions, as applicable, shall not reduce the interest to
accrue pursuant to the Operative Agreement below the recipient's Highest Lawful
Rate until the total amount of interest payable to the recipient (including all
consideration which constitutes interest) equals the amount of interest which
would have been payable to the recipient (including all consideration which
constitutes interest), plus the amount of fees which would have been received
----
but for the effect of this Section 3.15.
13.16 Submission to Jurisdiction; Waivers. (a) Lessee hereby
-----------------------------------
irrevocably and unconditionally:
(i) submits for itself and its property in any legal action
or proceeding relating to this Agreement or any of the other Operative
Agreements to which it is a
39
party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(iii) 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 such party at its address set forth in Section 13.3 or at such
other address of which the parties shall have been notified pursuant
thereto; and
(iv) 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.
(B) EACH PARTY HERETO UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING REFERRED TO IN PARAGRAPH (A) ABOVE AND ANY
COUNTERCLAIM THEREIN.
40
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
HHC 1998-1 TRUST, by Wilmington Trust Company,
not individually but solely as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------------------
Title: Financial Services Officer
41
HARBORSIDE OF DAYTON LIMITED PARTNERSHIP
By: Harborside Health I Corporation, its
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Title: President and Chief Executive
Officer
42
BTD HARBORSIDE INC., as Investor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Title: President
43
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC., as
Investor and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Title: Principal
44
CSL LEASING, INC., as Investor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Title: Vice President
45
THE CHASE MANHATTAN BANK, as Agent and as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Title: Vice President
46
WILMINGTON TRUST COMPANY, in its individual
capacity, only to the extent expressly set
forth herein
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------------------
Title: Financial Services Officer
47
ARAB BANKING CORPORATION (B.S.C.)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Title: Vice President
48
BANKBOSTON, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
--------------------------------------
Title: Managing Director
49
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Title: Vice President
50
CITICORP U.S.A., INC.
By: /s/ R. ▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Title: Vice President
51
CREDITANSTALT CORPORATE FINANCE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: Vice President
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ BRANCH AND GRAND
CAYMAN BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: Assistant Treasurer
53
THE FIRST NATIONAL BANK OF MARYLAND
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Vice President
54
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Senior Vice President
55
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Title: Vice President
56
IMPERIAL BANK
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Title: Senior Vice President
57
NATIONSBANK, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Title: Vice President
58
PROVIDENT BANK OF MARYLAND
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Title: Assistant Vice President
59
STAR BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: Senior Vice President
60
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
Title: Vice President
61
BANKERS TRUST COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Title: Vice President