Exhibit 10.13 to 2002 10-K
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CREDIT AGREEMENT
Dated as of December 31, 1998
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, except as
expressly stated herein,
but solely as the Owner Trustee
under the CRT Realty Trust 1998-1,
as the Borrower,
The Several Lenders
from Time to Time Parties Hereto,
and
NATIONSBANK, N.A.,
as the Agent
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS; PROHIBITIONS AGAINST TRANSFER ...................................................1
1.1 Definitions ..................................................................................1
1.2 Interpretation ...............................................................................1
1.3 Prohibitions Against Transfer ................................................................1
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS ..............................................................2
2.1 Commitments ..................................................................................2
2.2 Notes ........................................................................................2
2.3 Procedure for Borrowing ......................................................................3
2.4 Lender Facility Fees .........................................................................3
2.5 Termination or Reduction of Commitments ......................................................4
2.6 Prepayments and Payments .....................................................................4
2.7 Conversion and Continuation Options ..........................................................5
2.8 Interest Rates and Payment Dates .............................................................6
2.9 Computation of Interest ......................................................................7
2.10 Pro Rata Treatment and Payments ..............................................................7
2.11 Notice of Amounts Payable ....................................................................8
2.12 Increase in Commitments pursuant to Section 5.13 of the Participation Agreement ..............8
SECTION 3. REPRESENTATIONS AND WARRANTIES ...............................................................8
SECTION 4. CONDITIONS PRECEDENT .........................................................................9
4.1 Conditions to Effectiveness ..................................................................9
4.2 Conditions to Each Loan ......................................................................9
SECTION 5. COVENANTS ....................................................................................9
5.1 Other Activities .............................................................................9
5.2 Ownership of Properties, Debt ................................................................9
5.3 Disposition of Assets .......................................................................10
5.4 Compliance with Operative Agreements ........................................................10
5.5 Further Assurances ..........................................................................10
5.6 Notices .....................................................................................10
5.7 Discharge of Liens ..........................................................................10
5.8 Trust Agreement .............................................................................11
SECTION 6. EVENTS OF DEFAULT ...........................................................................11
SECTION 7. THE AGENT ...................................................................................14
7.1 Appointment .................................................................................14
7.2 Delegation of Duties ........................................................................14
7.3 Exculpatory Provisions ......................................................................14
7.4 Reliance by the Agent .......................................................................15
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7.5 Notice of Default ...........................................................................15
7.6 Non-Reliance on the Agent and Other Lenders .................................................16
7.7 Indemnification .............................................................................16
7.8 The Agent in Its Individual Capacity ........................................................17
7.9 Successor Agent .............................................................................17
7.10 Actions of the Agent on Behalf of Holders ...................................................17
7.11 The Agent's Duty of Care ....................................................................18
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL ..................................................18
8.1 Collection and Allocation of Payments and Other Amounts .....................................18
8.2 Certain Remedial Matters ....................................................................18
8.3 Excepted Payments ...........................................................................19
SECTION 9. MISCELLANEOUS ...............................................................................19
9.1 Amendments and Waivers ......................................................................19
9.2 Notices .....................................................................................19
9.3 No Waiver; Cumulative Remedies ..............................................................19
9.4 Survival of Representations and Warranties ..................................................19
9.5 Payment of Expenses and Taxes ...............................................................20
9.6 Successors and Assigns; Participations and Assignments ......................................20
9.7 [Intentionally Omitted] .....................................................................20
9.8 [Intentionally Omitted] .....................................................................20
9.9 [Intentionally Omitted] .....................................................................20
9.10 Adjustments; Set-off ........................................................................20
9.11 Counterparts ................................................................................21
9.12 Severability ................................................................................21
9.13 Integration .................................................................................21
9.14 GOVERNING LAW ...............................................................................21
9.15 SUBMISSION TO JURISDICTION; VENUE ...........................................................22
9.16 Acknowledgements ............................................................................22
9.17 WAIVERS OF JURY TRIAL .......................................................................22
9.18 Nonrecourse .................................................................................22
9.19 USURY SAVINGS PROVISION .....................................................................23
SCHEDULES
Schedule 2.1 Commitments and Addresses of Lenders
EXHIBITS
Exhibit A-I Form of Tranche A Note
Exhibit A-2 Form of Tranche B Note
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 31, 1998 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, the
"Agreement") is among FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
individually, except as expressly stated herein, but solely as the Owner Trustee
under the CRT Realty Trust 1998-1 (the "Owner Trustee" or the "Borrower"), the
several banks and other financial institutions from time to time parties to this
Agreement (the "Lenders") and NATIONSBANK, N.A., a national banking association,
as a Lender and as the agent for the Lenders (the "Agent").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS; PROHIBITIONS AGAINST TRANSFER
1.1 Definitions.
For purposes of this Agreement, capitalized terms used in this Agreement
and not otherwise defined herein shall have the meanings assigned to them in
Appendix A to that certain Participation Agreement dated as of December 31, 1998
(as amended, modified, extended, supplemented, restated and/or replaced from
time to time in accordance with the applicable provisions thereof, the
"Participation Agreement") among Convergys Corporation, as the Construction
Agent and the Lessee, the various parties thereto from time to time, as the
Guarantors, the Borrower, the various banks and other lending institutions which
are parties thereto from time to time, as the Holders, the various banks and
other lending institutions which are parties thereto from time to time, as the
Lenders, and NationsBank, N.A., as agent for the Lenders and respecting the
Security Documents, as the agent for the Lenders and the Holders, to the extent
of their interests. Unless otherwise indicated, references in this Agreement to
articles, sections, paragraphs, clauses, appendices, schedules and exhibits are
to the same contained in this Agreement.
1.2 Interpretation.
The rules of usage set forth in Appendix A to the Participation Agreement
shall apply to this Agreement.
1.3 Prohibitions Against Transfer.
NationsBank, N.A. may not participate, assign or transfer all or any
portion of its interest hereunder or under the other Operative Agreements unless
the sum of the Holder Commitments and Lender Commitments in the aggregate
exceeds $30,000,000. NationsBank, N.A. may not, directly or indirectly, assign,
convey or otherwise transfer any of its right, title or interest in or to the
Trust Estate or the Operative Agreements unless the sum of the Holder
Commitments and the Lender Commitments in the aggregate exceeds $30,000,000.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments.
(a) Subject to the terms and conditions hereof, each of the Lenders
severally agrees to make the portion of the Tranche A Loans and the Tranche B
Loans to the Borrower from time to time during the Commitment Period in an
amount up to such Lender's Commitment as is set forth adjacent to such Lender's
name in Schedule 2.1 hereto for the purpose of enabling the Borrower to purchase
the Properties and to pay Property Acquisition Costs, Property Costs and
Transaction Expenses, provided, that the aggregate principal amount at any one
(1) time outstanding with respect to each of the Tranche A Loans and the Tranche
B Loans shall not exceed the amount of the Tranche A Commitments and the Tranche
B Commitments respectively. Any prepayments of the Loans, whether mandatory or
at the Borrower's election, shall not be subject to reborrowing except as set
forth in Section 5.2(d) of the Participation Agreement.
(b) The Loans may from time to time be (i) Eurodollar Loans, (ii) ABR
Loans, or (iii) a combination thereof, as determined by the Borrower and
notified to the Agent in accordance with Sections 2.3 and 2.7. In the event the
Borrower fails to provide notice pursuant to Section 2.3, the Loan shall be an
ABR Loan.
(c) The Commitment of each Lender to make Tranche A Loans and Tranche B
Loans shall be pro rata.
2.2 Notes.
The Loans made by each Lender shall be evidenced by promissory notes of the
Borrower, substantially in the form of Exhibit A-1 in the case of the Tranche A
Loans (each, a "Tranche A Note") or Exhibit A-2 in the case of the Tranche B
Loans (each, a "Tranche B Note," and with the Tranche A Notes, the "Notes"),
with appropriate insertions as to payee, date and principal amount, payable to
the order of such Lender and in a principal amount equal to the Tranche A
Commitment or Tranche B Commitment, as the case may be, of such Lender. Each
Lender is hereby authorized to record the date, Type and amount of each Loan
made by such Lender, each continuation thereof, each conversion of all or a
portion thereof to another Type, and the date and amount of each payment or
prepayment of principal thereof on the schedule annexed to and constituting a
part of its Note, and any such recordation shall constitute prima facie evidence
of the accuracy of the information so recorded, provided, that the failure to
make any such recordation or any error in such recordation shall not affect the
Borrower's obligations hereunder or under such Note. Each Note shall (i) be
dated the Initial Closing Date, (ii) be stated to mature on the Maturity Date
and (iii) provide for the payment of principal in accordance with Section 2.6(d)
and the payment of interest in accordance with Section 2.8.
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2.3 Procedure for Borrowing.
(a) The Borrower may borrow under the Commitments during the Commitment
Period on any Business Day that an Advance may be requested pursuant to the
terms of Section 5.2 of the Participation Agreement, provided, that the Borrower
shall give the Agent irrevocable notice (which must be received by the Agent
prior to 12:00 Noon, Eastern time, at least three (3) Business Days prior to the
requested Borrowing Date specifying (i) the amount to be borrowed (which on any
date shall not be in excess of the then Available Commitments), (ii) the
requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof, (iv) if the borrowing is to be a
combination of Eurodollar Loans and ABR Loans, the respective amounts of each
Type of Loan and (v) the Interest Period applicable to each Eurodollar Loan.
Pursuant to the terms of the Participation Agreement, the Borrower shall be
deemed to have delivered such notice upon the delivery of a notice by the
Construction Agent or the Lessee containing such required information. Upon
receipt of any such notice from the Borrower, the Agent shall promptly notify
each Lender thereof. Each Lender will make the amount of its pro rata share of
each borrowing available to the Agent for the account of the Borrower at the
office of the Agent specified in Section 9.2 prior to 12:00 Noon, Eastern time,
on the Borrowing Date requested by the Borrower in funds immediately available
to the Agent. Such borrowing will then be made available to the Borrower by the
Agent crediting an account designated, subject to Section 9.1 of the
Participation Agreement, by the Borrower on the books of such office with the
aggregate of the amounts made available to the Agent by the Lenders and in like
funds as received by the Agent. No amount of any Loan which is repaid or prepaid
by the Borrower may be reborrowed hereunder, except as set forth in Section
5.2(d) of the Participation Agreement.
(b) Interest accruing on each Loan during the Construction Period with
respect to any Property shall, subject to the limitations set forth in Section
5.1(b) of the Participation Agreement be added to the principal amount of such
Loan on the relevant Scheduled Interest Payment Date. On each such Scheduled
Interest Payment Date, the Loan Property Cost and Construction Loan Property
Cost shall be increased by the amount of interest added to the Loans.
2.4 Lender Facility Fees.
Promptly after receipt from the Lessee of the payment of the Lender
Facility Fee payable pursuant to Section 7.4 of the Participation Agreement, the
Agent shall distribute such payments to the Lenders pro rata in accordance with
their respective Commitments.
2.5 Termination or Reduction of Commitments.
(a) The Borrower shall have the right, upon not less than three (3)
Business Days' written notice to the Agent, to terminate the Commitments or,
from time to time, to reduce the amount of the Commitments, provided, that (i)
after giving effect to such reduction, the aggregate outstanding principal
amount of the Loans shall not exceed the aggregate Commitments and (ii) such
notice shall be accompanied by a certificate of the Construction Agent stating
that the amount not less than ninety-seven percent (97%) of aggregate Budgeted
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Total Property Costs as of the date of such reduction does not exceed the
aggregate amount of Available Commitments as of such date after giving effect to
such reduction. Any such reduction (A) shall be in an amount equal to the lesser
of (1) $1,000,000 (or an even multiple thereof) or (2) the remaining Available
Commitments, (B) shall reduce permanently the Commitments then in effect and (C)
shall be pro rata for the Commitments of all Lenders and pro rata between the
Tranche A Loans and the Tranche B Loans.
(b) On any date on which the Commitments shall automatically be reduced to
zero (0) pursuant to Section 6, the Borrower shall prepay all outstanding Loans,
together with accrued unpaid interest thereon and all other amounts owing under
the Operative Agreements.
2.6 Prepayments and Payments.
(a) Subject to Sections 11.2(e), 11.3 and 11.4 of the Participation
Agreement, the Borrower may at any time and from time to time prepay the Loans,
in whole or in part, without premium or penalty and without setoff, deduction or
counterclaim, upon at least three (3) Business Days' irrevocable notice to the
Agent, specifying the date and amount of prepayment and whether the prepayment
is of Eurodollar Loans, ABR Loans or a combination thereof, and, if a
combination thereof, the amount allocable to each. Upon receipt of any such
notice the Agent shall promptly notify each Lender thereof. If any such notice
is given, the amount specified in such notice shall be due and payable on the
date specified therein. Amounts prepaid may not be reborrowed, and shall reduce
the Commitments and the Available Commitments, except in each case as set forth
in Section 5.2(d) of the Participation Agreement.
(b) If on any date the Agent or the Lessor shall receive any payment in
respect of (i) any Casualty, Condemnation or Environmental Violation pursuant to
Sections 15.1(a) or 15.1(g) or Article XVI of the Lease (excluding any payments
in respect thereof which are payable to the Lessee in accordance with the
Lease), or (ii) the Termination Value of any Property in connection with the
delivery of a Termination Notice pursuant to Article XVI of the Lease, or (iii)
the Termination Value of any Property in connection with the exercise of the
Purchase Option under Article XX of the Lease or the exercise of the option of
the Lessor to transfer the Properties to the Lessee pursuant to Section 20.3 of
the Lease, or (iv) any payment required to be made or elected to be made by the
Construction Agent to the Lessor pursuant to the terms of the Agency Agreement,
then in each case, the Borrower shall pay such amounts to the Agent and the
Agent shall be required to apply and pay such amounts in accordance with the
provisions of Section 8.7(b)(ii) of the Participation Agreement.
(c) Each prepayment of the Loans pursuant to Section 2.6(a) shall be
allocated to reduce the respective Loan Property Costs of all Properties pro
rata according to the Loan Property Costs of such Properties immediately before
giving effect to such prepayment. Each prepayment of the Loans pursuant to
Section 2.6(b) shall be allocated to reduce the Loan Property Cost of the
Property or Properties subject to the respective Casualty, Condemnation,
Environmental Violation, termination, purchase, transfer or other circumstance
giving rise to such prepayment. Any amounts applied to reduce the Loan Property
Cost of any Construction Period Property pursuant to this paragraph (c) shall
also be applied to reduce the Construction
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Loan Property Cost of such Property until such Construction Loan Property Cost
has been reduced to zero (0).
(d) The outstanding principal balance of the Loans and all other amounts
then due and owing under this Agreement or otherwise with respect to the Loans
shall be due and payable in full on the Maturity Date.
2.7 Conversion and Continuation Options.
(a) The Borrower may elect from time to time to convert Eurodollar Loans to
ABR Loans by giving the Agent at least three (3) Business Days' prior
irrevocable notice of such election, provided, that any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto, and provided, further, to the extent an Event of Default has
occurred and is continuing on the last day of any such Interest Period, the
applicable Eurodollar Loan shall automatically be converted to an ABR Loan. The
Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans by
giving the Agent at least three (3) Business Days' prior irrevocable notice of
such election. Upon receipt of any such notice, the Agent shall promptly notify
each Lender thereof. All or any part of outstanding Eurodollar Loans or ABR
Loans may be converted as provided herein, provided, that (i) no ABR Loan may
be converted into a Eurodollar Loan after the date that is one (1) month prior
to the Maturity Date and (ii) such notice of conversion regarding any Eurodollar
Loan shall contain an election by the Borrower of an Interest Period for such
Eurodollar Loan to be created by such conversion and such Interest Period shall
be in accordance with the terms of the definition of the term "Interest Period"
including without limitation subparagraphs (A) through (D) thereof.
(b) Subject to the restrictions set forth in Section 2.3 hereof, any
Eurodollar Loan may be continued as such upon the expiration of the current
Interest Period with respect thereto by the Borrower giving irrevocable notice
to the Agent, in accordance with the applicable notice provision for the
conversion of ABR Loans to Eurodollar Loans set forth herein, of the length of
the next Interest Period to be applicable to such Loans, provided, that no
Eurodollar Loan may be continued as such after the date that is one (1) month
prior to the Maturity Date, provided, further, no Eurodollar Loans may be
continued as such if an Event of Default has occurred and is continuing as of
the last day of the Interest Period for such Eurodollar Loan, and provided,
further, that if the Borrower shall fail to give any required notice as
described above or otherwise herein, or if such continuation is not permitted
pursuant to the proceeding proviso, such Loan shall automatically be converted
to an ABR Loan on the last day of such then expiring Interest Period.
2.8 Interest Rates and Payment Dates.
(a) The Loans outstanding hereunder from time to time shall bear interest
at a rate per annum equal to either (i) with respect to a Eurodollar Loan, the
Eurodollar Rate determined for the applicable Interest Period plus the
Applicable Percentage or (ii) with respect to an ABR Loan, the ABR, as selected
by the Borrower in accordance with the provisions hereof; provided, however, (A)
upon delivery by the Agent of the notice described in Section 2.9(c), the Loans
of
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each of the Lenders shall bear interest at the ABR applicable from time to time
from and after the dates and during the periods specified in Section 2.9(c), (B)
upon the delivery by a Lender of the notice described in Section 11.3(f) of the
Participation Agreement, the Loans of such Lender shall bear interest at the ABR
applicable from time to time from and after the dates and during the periods
specified in Section 11.3(f) of the Participation Agreement and (C) in such
other circumstances as expressly provided herein, the Loans shall bear interest
at the ABR.
(b) If (i) all or a portion of (A) the principal amount of any Loan, (B)
any interest payable thereon or (C) any other amount payable hereunder shall not
be paid when due (whether at the stated maturity, by acceleration or otherwise)
or (ii) (A) a replacement Construction Agent is hired in accordance with the
provisions of the Agency Agreement, (B) Completion of all Properties has not
occurred on or prior to the Construction Period Termination Date or (C) the cost
of any Property exceeds the original Construction Budget therefor (or the
applicable Construction Budget modified in accordance with the Operative
Agreements) in each case as previously delivered to the Agent, such overdue
amount (in the case of Section 2.8(b)(i)) or all Loans, including without
limitation principal and interest, and all other amounts payable hereunder (in
the case of Section 2.8(b)(ii)) shall bear interest at a rate per annum which is
the lesser of (x) the then current rate of interest respecting such payment or
other amount, as the case may be, plus two percent (2%) and (y) the highest
interest rate permitted by applicable law, in each case from the date of such
non-payment until such payment is paid in full (whether after or before
judgment) (in the case of Section 2.8(b)(i)) or Completion of all Properties (in
the case of Section 2.8(b)(ii)). All such amounts referenced in this Section
2.8(b) shall be paid upon demand.
(c) Interest shall be payable in arrears on the applicable Scheduled
Interest Payment Date, provided, that (i) interest accruing pursuant to
paragraph (b) of this Section 2.8 shall be payable from time to time on demand
and (ii) each prepayment of the Loans shall be accompanied by accrued interest
to the date of such prepayment on the amount prepaid.
2.9 Computation of Interest.
(a) Whenever it is calculated on the basis of the Prime Lending Rate,
interest shall be calculated on the basis of a year of three hundred sixty-five
(365) days (or three hundred sixty-six (366) days, as the case may be) for the
actual days elapsed; and, otherwise, interest shall be calculated on the basis
of a year of three hundred sixty (360) days for the actual days elapsed. The
Agent shall as soon as practicable notify the Borrower and the Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the ABR or the Eurocurrency Reserve Requirements
shall become effective as of the day on which such change becomes effective. The
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error.
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(c) If the Eurodollar Rate cannot be determined by the Agent in the manner
specified in the definition of the term "Eurodollar Rate", the Agent shall give
telecopy or telephonic notice thereof to the Borrower, the Lessee and the
Lenders as soon as practicable thereafter. Until such time as the Eurodollar
Rate can be determined by the Agent in the manner specified in the definition of
such term, no further Eurodollar Loans shall be made or shall be continued as
such at the end of the then current Interest Period nor shall the Borrower have
the right to convert ABR Loans to Eurodollar Loans.
2.10 Pro Rata Treatment and Payments.
(a) Each borrowing by the Borrower from the Lenders hereunder and any
reduction of the Commitments of the Lenders shall be made pro rata according to
their respective Commitments. Subject to the provisions of Section 8.7 of the
Participation Agreement, each payment (including without limitation each
prepayment) by the Borrower on account of principal of and interest on the Loans
shall be made pro rata according to the respective outstanding principal amounts
on the Loans then held by the Lenders. All payments (including without
limitation prepayments) to be made by the Borrower hereunder and under the
Notes, whether on account of principal, interest or otherwise, shall be made
without setoff or counterclaim and shall be made prior to 12:00 Noon, Eastern
time, on the due date thereof to the Agent at the Agent's office specified in
Section 9.2, in Dollars and in immediately available funds. The Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day; provided, however, if such payment includes an amount of interest
calculated with reference to the Eurodollar Rate and the result of such
extension would be to extend such payment into another calendar month, then
such payment shall be made on the immediately preceding Business Day. In the
case of any extension of any payment of principal pursuant to the preceding two
(2) sentences, interest thereon shall be payable at the then applicable rate
during such extension.
(b) [Intentionally Omitted]
2.11 Notice of Amounts Payable.
(a) In the event that any Lender becomes aware that any amounts are or will
be owed to it pursuant to Sections 11.2(e), 11.3 or 11.4 of the Participation
Agreement or that it is unable to make Eurodollar Loans, then it shall promptly
notify the Borrower, the Lessee and the Agent thereof and, as soon as possible
thereafter, such Lender shall submit to the Borrower (with a copy to the Agent)
a certificate indicating the amount owing to it and the calculation thereof. The
amounts set forth in such certificate shall be prima facie evidence of the
obligations of the Borrower hereunder.
(b) [Intentionally Omitted]
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2.12 Increase in Commitments.
The parties to this Agreement hereby acknowledge that the Commitments may
be increased in accordance with the express provisions of the Operative
Agreements (including without limition Section 5.13 of the Participation
Agreement).
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this Agreement and to
make the Loans, each of the Trust Company and the Owner Trustee hereby makes and
affirms the representations and warranties set forth in Section 6.1 of the
Participation Agreement to the same extent as if such representations and
warranties were set forth in this Agreement in their entirety.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness.
The effectiveness of this Agreement is subject to the satisfaction of all
conditions precedent set forth in Section 5.3 of the Participation Agreement
required by said Section to be satisfied on or prior to the Initial Closing
Date.
4.2 Conditions to Each Loan.
The agreement of each Lender to make any Loan requested to be made by it on
any date is subject to the satisfaction of all conditions precedent set forth in
Section 5.3 and 5.4 of the Participation Agreement required by said Sections to
be satisfied on or prior to the date of the applicable Loan.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such Loan that the conditions
contained in this Section 4.2 have been satisfied.
SECTION 5. COVENANTS
So long as any Loan or Note remains outstanding and unpaid or any other
amount is owing to any Lender or the Agent hereunder:
5.1 Other Activities.
The Borrower shall not conduct, transact or otherwise engage in, or commit
to transact, conduct or otherwise engage in, any business or operations other
than the entry into, and exercise
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of rights and performance of obligations in respect of, the Operative Agreements
and other activities incidental or related to the foregoing.
5.2 Ownership of Properties, Debt.
The Borrower shall not own, lease, manage or otherwise operate any
properties or assets other than in connection with the activities described in
Section 5.1, or incur, create, assume or suffer to exist any Debt or other
consensual liabilities or financial obligations other than as may be incurred,
created or assumed or as may exist in connection with the activities described
in Section 5.1 (including without limitation the Loans and other obligations
incurred by the Borrower hereunder).
5.3 Disposition of Assets.
The Borrower shall not convey, sell, lease, assign, transfer or otherwise
dispose of any of its property, business or assets, whether now owned or
hereafter acquired, except to the extent expressly contemplated by the Operative
Agreements.
5.4 Compliance with Operative Agreements.
The Borrower shall at all times (a) observe and perform all of the
covenants, conditions and obligations required to be performed by it (whether in
its capacity as the Lessor, the Owner Trustee or otherwise) under each Operative
Agreement to which it is a party and (b) observe and perform, or cause to be
observed and performed, all of the covenants, conditions and obligations of the
Lessor under the Lease, even in the event that the Lease is terminated at stated
expiration following a Lease Event of Default or otherwise.
5.5 Further Assurances.
At any time and from time to time, upon the written request of the Agent,
and at the expense of the Borrower (provided, such amounts shall be reimbursed
or paid entirely (as elected by the Borrower) by the Lessee, as Supplemental
Rent), the Borrower will promptly and duly execute and deliver such further
instruments and documents and take such further action as the Agent or the
Majority Lenders may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and the other Operative
Agreements and of the rights and powers herein or therein granted.
5.6 Notices.
If on any date, a Responsible Officer of the Borrower shall obtain actual
knowledge of the occurrence of a Default or Event of Default, the Borrower will
give written notice thereof to the Agent within five (5) Business Days after
such date.
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5.7 Discharge of Liens.
Neither the Borrower nor the Trust Company will create or permit to exist
at any time, and will, at its own expense, promptly take such action as may be
necessary duly to discharge, or cause to be discharged, all Lessor Liens
attributable to it, provided, that the Borrower and the Trust Company shall not
be required to discharge any Lessor Lien while the same is being contested in
good faith by appropriate proceedings diligently prosecuted so long as such
proceedings shall not involve any material danger of impairment of any of the
Liens contemplated by the Security Documents or of the sale, forfeiture or loss
of, and shall not materially interfere with the disposition of, any Property or
title thereto or any interest therein or the payment of Rent.
5.8 Trust Agreement.
Without prejudice to any right under the Trust Agreement of the Owner
Trustee to resign, the Owner Trustee (a) agrees not to terminate or revoke the
trust created by the Trust Agreement except as permitted by Article VIII of the
Trust Agreement, (b) agrees not to amend, supplement, terminate, revoke or
otherwise modify any provision of the Trust Agreement in any manner which could
reasonably be expected to have an adverse effect on the rights or interests of
the Agent or the Lenders hereunder or under the other Operative Agreements and
(c) agrees to comply with all of the terms of the Trust Agreement.
SECTION 6. EVENTS OF DEFAULT
Upon the occurrence of any of the following specified events (each an
"Event of Default"):
(a) Except as provided in Sections 6(c), the Borrower shall default in the
payment when due of any principal on the Loans or default in the payment when
due of any interest on the Loans, and in either such case, such default shall
continue for five (5) or more Business Days; or
(b) Except as provided in Sections 6(a) and 6(c), the Borrower shall
default, and such default shall continue for five (5) or more Business Days, in
the payment of any amount owing under any Credit Document; or
(c) (i) The Borrower shall default in the payment of any amount due on the
Maturity Date owing under any Credit Document or (ii) the Borrower shall default
in the payment when due of any principal or interest on the Loans payable with
regard to any obligation of Lessee to pay Termination Value when due or to pay
Basic Rent or Supplemental Rent at such time as any Termination Value is due; or
(d) The Borrower shall fail to observe or perform any term, covenant,
obligation or condition of the Borrower under any Credit Document to which it is
a party other than those set forth in Sections 6 (a), (b) or (c) hereof, and
such failure shall continue for thirty (30) days after
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notice thereof to the Borrower; provided, if such failure cannot be cured within
such thirty (30) days but can be cured with subsequent diligence and the
Borrower diligently pursues such cure, then no Event of Default under this
Agreement shall be deemed to occur with respect to such failure until the
passage of an additional sixty (60) days after the initial thirty (30) days
referenced above; or
(e) Any representation or warranty made by the Borrower set forth in this
Agreement or in any other Operative Agreement or in any document entered into in
connection herewith or therewith or in any document, certificate or financial or
other statement delivered in connection herewith or therewith shall be false or
inaccurate in any material way when made and such matter giving rise to such
misrepresentation or breach of warranty shall continue for thirty (30) days
after notice thereof to the Borrower; provided, if such matter giving rise to
such misrepresentation or breach of warranty cannot be cured within such thirty
(30) days but can be cured with subsequent diligence and the Borrower diligently
pursues such cure, then no Event of Default under this Agreement shall be deemed
to occur with respect to such failure until the passage of an additional sixty
(60) days after the initial thirty (30) days referenced above; or
(f) (i) Any Lease Event of Default shall have occurred and be continuing,
or (ii) the Owner Trustee shall default in the due performance or observance by
it of any term, covenant or agreement contained in the Participation Agreement
or in the Trust Agreement to or for the benefit of the Agent or a Lender,
provided, that in the case of this clause (ii) such default shall have continued
unremedied for a period of at least thirty (30) days after notice to the Owner
Trustee and Lessee by the Agent or the Majority Lenders; or
(g) The Borrower shall commence a voluntary case concerning itself under
the Bankruptcy Code or an involuntary case is commenced against the Borrower and
the petition is not contravened within ten (10) days after commencement of the
case or an involuntary case is commenced against the Borrower and the petition
is not dismissed within sixty (60) days after commencement of the case; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge
of, all or substantially all of the property of the Borrower; or the Borrower
commences any other proceeding under any reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency or liquidation or similar
law of any jurisdiction whether now or hereafter in effect relating to the
Borrower, or there is commenced against the Borrower any such proceeding which
remains undismissed for a period of sixty (60) days; or the Borrower is
adjudicated insolvent or bankrupt, or any order of relief or other order
approving any such case or proceeding is entered; or the Borrower suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of sixty (60) days;
or the Borrower makes a general assignment for the benefit of creditors; or any
corporate or partnership action is taken by the Borrower for the purpose of
effecting any of the foregoing; or
(h) Any Security Document shall cease to be in full force and effect, or
shall cease to give the Agent the Liens, rights, powers and privileges purported
to be created thereby (including without limitation a first priority perfected
security interest in, and Lien on, all of the Properties), in favor of the Agent
on behalf of the Lenders and the Holders, superior to and prior to the rights
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of all third Persons and subject to no other Liens (except in each case to the
extent expressly permitted herein or in any Operative Agreement) other than any
Ground Lease; or
(i) The Lease shall cease to be enforceable against the Lessee; or
(j) One (1) or more judgments or decrees shall be entered against the
Borrower involving a liability of $100,000 or more in the aggregate for all such
judgments and decrees for the Borrower and any such judgments or decrees shall
not have been vacated, discharged or stayed or bonded pending appeal within
sixty (60) days from the entry thereof,
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (g) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the Notes
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i)
with the consent of the Majority Lenders, the Agent may, or upon the request of
the Majority Lenders, the Agent shall, by notice to the Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Majority Lenders, the
Agent may, or upon the request of the Majority Lenders, the Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the Notes to be
due and payable forthwith, whereupon the same shall immediately become due and
payable (any of the foregoing occurrences or actions referred to in clause (A)
or (B) above, an "Acceleration"). Except as expressly provided above in this
Section 6, presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
Upon the occurrence of any Event of Default and at any time thereafter so
long as any Event of Default shall be continuing, the Agent shall, upon the
written instructions of the Majority Secured Parties, exercise any or all of the
rights and powers and pursue any and all of the remedies available to it
hereunder and (subject to the terms thereof) under the other Credit Documents,
the Lease and the other Operative Agreements and shall have any and all rights
and remedies available under the Uniform Commercial Code or any provision of
law.
Upon the occurrence of any Event of Default and at any time thereafter so
long as any Event of Default shall be continuing, the Agent may, and upon
request of the Majority Secured Parties shall proceed to protect and enforce
this Agreement, the Notes, the other Credit Documents and the Lease by suit or
suits or proceedings in equity, at law or in bankruptcy, and whether for the
specific performance of any covenant or agreement herein contained or in
execution or aid of any power herein granted, or for foreclosure hereunder, or
for the appointment of a receiver or receivers for the Property or for the
recovery of judgment for the indebtedness secured thereby or for the enforcement
of any other proper, legal or equitable remedy available under applicable laws.
The Borrower shall be liable for any and all accrued and unpaid amounts due
hereunder before, after or during the exercise of any of the foregoing remedies,
including without limitation
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all reasonable legal fees and other reasonable costs and expenses incurred by
the Agent or any Lender by reason of the occurrence of any Event of Default or
the exercise of remedies with respect thereto.
SECTION 7. THE AGENT
7.1 Appointment.
Each Lender hereby irrevocably designates and appoints the Agent as the
agent of such Lender under this Agreement and the other Operative Agreements,
and each such Lender irrevocably authorizes the Agent, in such capacity, to
execute the Operative Agreements as agent for and on behalf of such Lender, to
take such action on behalf of such Lender under the provisions of this Agreement
and the other Operative Agreements and to exercise such powers and perform such
duties as are expressly delegated to the Agent by the terms of this Agreement
and other Operative Agreements, together with such other powers as are
reasonably incidental thereto. Without limiting the generality of the foregoing,
each of the Lenders hereby specifically acknowledges the terms and provisions of
the Participation Agreement and directs the Agent to exercise such powers, make
such decisions and otherwise perform such duties as are delegated to the Agent
thereunder without being required to obtain any specific consent with respect
thereto from any Lender, unless the matter under consideration requires the
consent of the Majority Lenders and/or the Majority Secured Parties.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Operative Agreement or otherwise exist
against the Agent.
7.2 Delegation of Duties.
The Agent may execute any of its duties under this Agreement and the other
Operative Agreements by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Agent shall not be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.
7.3 Exculpatory Provisions.
Neither the Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Operative Agreement (except for its or such Person's
own gross negligence or willful misconduct) or (b) responsible in any manner to
any of the Lenders for any recitals, statements, representations or warranties
made by the Borrower or the Lessee or any officer thereof contained in this
Agreement or any other Operative Agreement or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Operative
Agreement or for the value, validity, effectiveness, genuineness, enforceability
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or sufficiency of this Agreement or any other Operative Agreement or for any
failure of the Borrower or the Lessee to perform its obligations hereunder or
thereunder. The Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Operative
Agreement, or to inspect the properties, books or records of the Borrower or the
Lessee.
7.4 Reliance by the Agent.
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any Note, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including without limitation counsel to the
Borrower or the Lessee), independent accountants and other experts selected by
the Agent. The Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Agent. The Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Operative Agreement unless it shall first receive such advice or
concurrence of the Majority Lenders, the Majority Secured Parties or all Secured
Parties, as the case may be, as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. The Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement and the other Operative
Agreements in accordance with a request of the Majority Lenders, the Majority
Secured Parties or all Secured Parties, as the case may be, and such and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Notes (or all Secured Parties, as the case
may be).
7.5 Notice of Default.
The Agent shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default hereunder unless the Agent has received
written notice from a Lender or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". In the event that the Agent receives such a notice, the
Agent shall give notice thereof to the Lenders. The Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Majority Secured Parties; provided, that unless and until the Agent shall
have received such directions, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Secured Parties; provided, further, the foregoing shall not limit (a) the
rights of the Majority Secured Parties to elect remedies as set forth in Section
6 and/or (b) the rights of the Majority Secured Parties or all Secured Parties,
as the case may be, as described in the Participation Agreement (including
without limitation Sections 8.2(h) and 8.6 of the Participation Agreement).
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7.6 Non-Reliance on the Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Agent hereinafter
taken, including without limitation any review of the affairs of the Borrower or
the Lessee, shall be deemed to constitute any representation or warranty by the
Agent to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower and the
Lessee and made its own decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon the Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Operative Agreements, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and the Lessee. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of the
Borrower or the Lessee which may come into the possession of the Agent or any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates.
7.7 Indemnification.
The Lenders agree to indemnify the Agent, in its capacity as such (to the
extent not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective Commitment Percentages
in effect on the date on which indemnification is sought under this Section 7.7
(or, if indemnification is sought after the date upon which the Commitments
shall have terminated and the Loans shall have been paid in full, ratably in
accordance with their Commitment Percentages immediately prior to such date),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including without limitation at any time
following the payment of the Notes) be imposed on, incurred by or asserted
against any of them in any way relating to or arising out of, the Commitments,
this Agreement, any of the other Operative Agreements or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by any of them
under or in connection with any of the foregoing; provided, that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the gross negligence or willful misconduct of the Agent.
The agreements in this Section 7.7 shall survive the payment of the Notes and
all other amounts payable hereunder.
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7.8 The Agent in Its Individual Capacity.
The Agent and its Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower or the Lessee as
though the Agent were not the Agent hereunder and under the other Operative
Agreements. With respect to its Loans made or renewed by it and any Note issued
to it, the Agent shall have the same rights and powers under this Agreement and
the other Operative Agreements as any Lender and may exercise the same as though
it were not the Agent, and the terms "Lender" and "Lenders" shall include the
Agent in its individual capacity.
7.9 Successor Agent.
The Agent may resign at any time as the Agent upon thirty (30) days' notice
to the Lenders, the Borrower and, so long as no Lease Event of Default shall
have occurred and be continuing, the Lessee. If the Agent shall resign as the
Agent under this Agreement, the Majority Lenders shall appoint from among the
Lenders a successor Agent which successor Agent shall be subject to the approval
of the Borrower and, so long as no Lease Event of Default shall have occurred
and be continuing, the Lessee, such approval not to be unreasonably withheld or
delayed. If no successor Agent is appointed prior to the effective date of the
resignation of the resigning Agent, the Agent may appoint, after consulting with
the Lenders and subject to the approval of the Borrower and, so long as no Lease
Event of Default shall have occurred and be continuing, the Lessee, such
approval not to be unreasonably withheld or delayed, a successor Agent from
among the Lenders (or such other Person as shall be acceptable to the Majority
Lenders). If no successor Agent has accepted appointment as the Agent by the
date which is thirty (30) days following a retiring Agent's notice of
resignation, the retiring Agent's notice of resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Agent until such time, if any, as the Majority Lenders appoint a successor
Agent, as provided for above. Upon the effective date of such resignation, only
such successor Agent shall succeed to all the rights, powers and duties of the
retiring Agent and the term "Agent" shall mean such successor agent and the
retiring Agent's rights, powers and duties in such capacity shall be terminated.
After any retiring Agent resigns hereunder as the Agent, the provisions of this
Article VII and Section 9.5 shall inure to their respective benefit as to any
actions taken or omitted to be taken by it while it was the Agent under this
Agreement.
7.10 Actions of the Agent on Behalf of Holders.
The parties hereto specifically acknowledge and consent to the Agent's
acting on behalf of the Holders as provided in the Participation Agreement, and,
in any such case, the Lenders acknowledge that the Holders shall be entitled to
vote as "Secured Parties" hereunder to the extent required or permitted by the
Operative Agreements (including without limitation Sections 8.2(h) and 8.6 of
the Participation Agreement).
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7.11 The Agent's Duty of Care.
Other than the exercise of reasonable care to assure the safe custody of
the Collateral while being held by the Agent hereunder or under any other
Operative Agreement, the Agent shall have no duty or liability to preserve
rights pertaining thereto, it being understood and agreed that the Lessee shall
be responsible for preservation of all rights in the Collateral, and the Agent
shall be relieved of all responsibility for the Collateral upon surrendering it
or tendering the surrender of it to the Lessee. The Agent shall be deemed to
have exercised reasonable care in the custody and preservation of the Collateral
in its possession if the Collateral is accorded treatment substantially equal to
that which the Agent accords its own property, which shall be no less than the
treatment employed by a reasonable and prudent agent in the industry, it being
understood that the Agent shall not have responsibility for taking any necessary
steps to preserve rights against any parties with respect to any of the
Collateral.
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL
8.1 Collection and Allocation of Payments and Other Amounts.
The Lessee, the Construction Agent, the Agent, the Lenders, the Holders and
the Borrower have agreed pursuant to the terms of Section 8.7 of the
Participation Agreement to a procedure for the allocation and distribution of
certain payments and distributions, including without limitation the proceeds
of Collateral.
8.2 Certain Remedial Matters.
Notwithstanding any other provision of this Agreement or any other Credit
Document:
(a) the Borrower shall at all times retain to the exclusion of all other
parties, all rights to Excepted Payments payable to it and to demand, collect or
commence an action at law to obtain such payments and to enforce any judgment
with respect thereto; and
(b) the Borrower and each Holder shall at all times retain the right, but
not to the exclusion of the Agent, (i) to retain all rights with respect to
insurance that Article XIV of the Lease specifically confers upon the "Lessor",
(ii) to provide such insurance as the Lessee shall have failed to maintain or as
the Borrower or any Holder may desire, and (iii) to bring an action to enforce
compliance by the Lessee with the provisions of Articles VIII, IX, X, XI, XIV
and XVII of the Lease.
8.3 Excepted Payments.
Notwithstanding any other provision of this Agreement or the Security
Documents, any Excepted Payment received at any time by the Agent shall be
distributed promptly to the Person entitled to receive such Excepted Payment.
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SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers.
None of the terms or provisions of this Agreement may be terminated,
amended, supplemented, waived or modified except in accordance with the terms of
Section 12.4 of the Participation Agreement.
9.2 Notices.
All notices required or permitted to be given under this Agreement shall be
given in accordance with Section 12.2 of the Participation Agreement.
9.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the Agent
or any Lender, any right, remedy, power or privilege hereunder or under the
other Credit Documents shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or future exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Survival of Representations and Warranties.
All representations and warranties made by the Borrower under the Operative
Agreements shall survive the execution and delivery of this Agreement and the
Notes and the making of the Loans hereunder.
9.5 Payment of Expenses and Taxes.
The Borrower agrees to (with funds provided by the Lessee as Supplemental
Rent): (a) pay all reasonable out-of-pocket costs and expenses of (i) the Agent
whether or not the transactions herein contemplated are consummated, in
connection with the negotiation, preparation, execution and delivery of the
Operative Agreements and the documents and instruments referred to therein
(including without limitation the reasonable fees and disbursements of ▇▇▇▇▇ &
▇▇▇ ▇▇▇▇▇, PLLC) and any amendment, waiver or consent relating thereto
(including without limitation the reasonable fees and disbursements of counsel
to the Agent) and (ii) the Agent and each of the Lenders in connection with the
enforcement of the Operative Agreements and the documents and instruments
referred to therein (including without limitation the reasonable fees and
disbursements of counsel for the Agent and for each of the Lenders) and (b) pay
and hold each of the Lenders harmless from and against any and all present and
future stamp and other similar taxes with respect to the foregoing matters and
save each of the Lenders harmless from and against any all liabilities with
respect to or resulting from any delay or omission (other than to the extent
attributable to such Lender) to pay such taxes.
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9.6 Successors and Assigns; Participations and Assignments.
This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Agent, all future holders of the Notes and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
9.7 [Intentionally Omitted]
9.8 [Intentionally Omitted]
9.9 [Intentionally Omitted]
9.10 Adjustments; Set-off.
(a) [Intentionally Omitted]
(b) In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default, the Agent and each Lender is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to the Borrower or to any other Person, any
such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Debt at any time
held or owing by the Agent or such Lender (including without limitation by
branches and agencies of the Agent or such Lender wherever located) to or for
the credit or the account of the Borrower against and on account of the
obligations and liabilities of the Borrower to the Agent or such Lender under
this Agreement or under any of the other Operative Agreements, including without
limitation all interests in obligations of the Borrower purchased by any such
Lender pursuant to Section 9.10(a), and all other claims of any nature or
description arising out of or connected with this Agreement or any other
Operative Agreement, irrespective or whether or not the Agent or such Lender
shall have made any demand and although said obligations, liabilities or claims,
or any of them, shall be contingent or unmatured.
9.11 Counterparts.
This Agreement may be executed by one (1) or more of the parties to this
Agreement on any number of separate counterparts (including without limitation
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one (1) and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Agent.
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9.12 Severability.
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.13 Integration.
This Agreement and the other Credit Documents represent the agreement of
the Borrower, the Agent, and the Lenders with respect to the subject matter
hereof and thereof, and there are no promises, undertakings, representations or
warranties by the Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Credit Documents.
9.14 GOVERNING LAW.
THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH
CAROLINA.
9.15 SUBMISSION TO JURISDICTION; VENUE.
THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO SUBMISSION TO
JURISDICTION AND VENUE ARE HEREBY INCORPORATED BY REFERENCE HEREIN, MUTATIS
MUTANDIS.
9.16 Acknowledgements.
The Borrower hereby acknowledges that:
(a) neither the Agent nor any Lender has any fiduciary relationship with or
duty to the Borrower arising out of or in connection with this Agreement or any
of the other Credit Documents, and the relationship between the Agent (and the
Lenders) and the Borrower, in connection herewith or therewith is solely that of
debtor and creditor; and
(b) no joint venture is created hereby or by the other Credit Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Borrower and the Lenders.
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9.17 WAIVERS OF JURY TRIAL.
THE BORROWER, THE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
9.18 Nonrecourse.
In addition to and not in limitation of Section 12.9 of the Participation
Agreement, anything to the contrary contained in this Agreement or in any other
Operative Agreement notwithstanding, no Exculpated Person shall be personally
liable in any respect for any liability or obligation hereunder or under any
other Operative Agreement including without limitation the payment of the
principal of, or interest on, the Notes; or for monetary damages for the breach
of performance of any of the covenants contained in this Agreement, the Notes or
any of the other Operative Agreements. The Agent and the Lenders agree that, in
the event any of them pursues any remedies available to them under this
Agreement, the Notes or any other Operative Agreement, neither the Agent nor the
Lenders shall have any recourse against the Borrower, nor any other Exculpated
Person, for any deficiency, loss or claim for monetary damages or otherwise
resulting therefrom and recourse shall be had solely and exclusively against the
Trust Estate and the Lessee; but nothing contained herein shall be taken to
prevent recourse against or the enforcement of remedies against the Trust Estate
in respect of any and all liabilities, obligations and undertakings contained in
this Agreement, the Notes or any other Operative Agreement. The Agent and the
Lenders further agree that the Borrower shall not be responsible for the payment
of any amounts owing hereunder (excluding principal and interest (other than
Overdue Interest) in respect of the Loans) (such non-excluded amounts,
"Supplemental Amounts") except to the extent that payments of Supplemental Rent
designated by the Lessee for application to such Supplemental Amounts shall have
been paid by the Lessee pursuant to the Lease (it being understood that the
failure by the Lessee for any reason to pay any Supplemental Rent in respect of
such Supplemental Amounts shall nevertheless be deemed to constitute a default
by the Borrower for the purposes of Section 6). Notwithstanding the foregoing
provisions of this Section 9.18, nothing in this Agreement or any other
Operative Agreement shall (a) constitute a waiver, release or discharge of any
obligation evidenced or secured by this Agreement or any other Credit Document,
(b) limit the right of the Agent or any Lender to name the Borrower as a party
defendant in any action or suit for judicial foreclosure and sale under any
Security Document, or (c) affect in any way the validity or enforceability of
any guaranty (whether of payment and/or performance) given to the Lessor, the
Agent or the Lenders, or of any indemnity agreement given by the Borrower, in
connection with the Loans made hereunder.
9.19 USURY SAVINGS PROVISION.
IT IS THE INTENT OF THE PARTIES HERETO TO CONFORM TO AND CONTRACT IN STRICT
COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT AND THAT N.C.
GEN. STAT.(S) 24-9 SHALL APPLY WITH
21
RESPECT TO THIS AGREEMENT. TO THE EXTENT N.C. GEN. STAT.(S) 24-9 IS HEREAFTER
DEEMED NOT TO APPLY BY A COURT OF COMPETENT JURISDICTION AND ANY PAYMENTS
HEREUNDER ARE HEREINAFTER CHARACTERIZED BY ANY COURT OF COMPETENT JURISDICTION
AS THE REPAYMENT OF PRINCIPAL AND INTEREST THEREON, THE FOLLOWING PROVISIONS OF
THIS SECTION 9.19 SHALL APPLY. ANY SUCH PAYMENTS SO CHARACTERIZED AS INTEREST
MAY BE REFERRED TO HEREIN AS "INTEREST." ALL AGREEMENTS AMONG THE PARTIES HERETO
ARE HEREBY LIMITED BY THE PROVISIONS OF THIS PARAGRAPH WHICH SHALL OVERRIDE AND
CONTROL ALL SUCH AGREEMENTS, WHETHER NOW EXISTING OR HEREAFTER ARISING AND
WHETHER WRITTEN OR ORAL. IN NO WAY, NOR IN ANY EVENT OR CONTINGENCY (INCLUDING
WITHOUT LIMITATION PREPAYMENT OR ACCELERATION OF THE MATURITY OF ANY
OBLIGATION), SHALL ANY INTEREST TAKEN, RESERVED, CONTRACTED FOR, CHARGED, OR
RECEIVED UNDER THIS AGREEMENT OR OTHERWISE, EXCEED THE MAXIMUM NONUSURIOUS
AMOUNT PERMISSIBLE UNDER APPLICABLE LAW. IF, FROM ANY POSSIBLE CONSTRUCTION OF
ANY OF THE OPERATIVE AGREEMENTS OR ANY OTHER DOCUMENT OR AGREEMENT, INTEREST
WOULD OTHERWISE BE PAYABLE IN EXCESS OF THE MAXIMUM NONUSURIOUS AMOUNT, ANY SUCH
CONSTRUCTION SHALL BE SUBJECT TO THE PROVISIONS OF THIS PARAGRAPH AND SUCH
AMOUNTS UNDER SUCH DOCUMENTS OR AGREEMENTS SHALL BE AUTOMATICALLY REDUCED TO THE
MAXIMUM NONUSURIOUS AMOUNT PERMITTED UNDER APPLICABLE LAW, WITHOUT THE NECESSITY
OF EXECUTION OF ANY AMENDMENT OR NEW DOCUMENT OR AGREEMENT. IF THE AGENT OR ANY
LENDER SHALL EVER RECEIVE ANYTHING OF VALUE WHICH IS CHARACTERIZED AS INTEREST
WITH RESPECT TO THE OBLIGATIONS OWED HEREUNDER OR UNDER APPLICABLE LAW AND WHICH
WOULD, APART FROM THIS PROVISION, BE IN EXCESS OF THE MAXIMUM LAWFUL AMOUNT, AN
AMOUNT EQUAL TO THE AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE INTEREST SHALL,
WITHOUT PENALTY, BE APPLIED TO THE REDUCTION OF THE COMPONENT OF PAYMENTS DEEMED
TO BE PRINCIPAL AND NOT TO THE PAYMENT OF INTEREST, OR REFUNDED TO THE BORROWER
OR ANY OTHER PAYOR THEREOF, IF AND TO THE EXTENT SUCH AMOUNT WHICH WOULD HAVE
BEEN EXCESSIVE EXCEEDS THE COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL. THE
RIGHT TO DEMAND PAYMENT OF ANY AMOUNTS EVIDENCED BY ANY OF THE OPERATIVE
AGREEMENTS DOES NOT INCLUDE THE RIGHT TO RECEIVE ANY INTEREST WHICH HAS NOT
OTHERWISE ACCRUED ON THE DATE OF SUCH DEMAND, AND NEITHER THE AGENT NOR ANY
LENDER INTENDS TO CHARGE OR RECEIVE ANY UNEARNED INTEREST IN THE EVENT OF SUCH
DEMAND. ALL INTEREST PAID OR AGREED TO BE PAID TO THE AGENT OR ANY LENDER SHALL,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BE AMORTIZED, PRORATED, ALLOCATED,
AND SPREAD THROUGHOUT THE FULL STATED TERM (INCLUDING WITHOUT LIMITATION ANY
RENEWAL OR EXTENSION) OF THIS AGREEMENT SO THAT THE AMOUNT OF INTEREST ON
ACCOUNT OF SUCH PAYMENTS DOES NOT EXCEED THE MAXIMUM NONUSURIOUS AMOUNT
PERMITTED BY APPLICABLE LAW.
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually,except as
expressly stated herein, but solely as the
Owner Trustee under the CRT Realty Trust
1998-1
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
NATIONSBANK, N.A., as the Agent and a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Title: Sr. Vice President
--------------------------------------
Schedule 2.1
Tranche A Tranche B
Commitment Commitment
------------------------ -----------------------
Name and Address of Lenders Amount Percentage Amount Percentage
--------------------------- ----------- ---------- ---------- ----------
NationsBank, N.A. $25,500,000 100% $3,600,000 100%
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
TOTAL $25,500,000 100% $3,600,000 100%
--- ---
Exhibit A-1
TRANCHE A NOTE
(CRT Realty Trust 1998-1)
, 199
--------- --
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as the Owner Trustee
under the CRT Realty Trust 1998-1 (the "Borrower"), hereby unconditionally
promises to pay to the order of [Lender] (the "Lender"), at the office of
NationsBank, N.A., located at Charlotte, North Carolina, or at such other
address as may be specified by NationsBank, N.A., in lawful money of the United
States of America and in immediately available funds, on the aggregate unpaid
principal amount of all Tranche A Loans made by the Lender to the Borrower
pursuant to Section 2.1 of the Credit Agreement (as defined below). The Borrower
agrees to pay interest in like money at such office on the unpaid principal
amount hereof from time to time outstanding at the rates and on the dates
specified in Section 2.8 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, Type and amount of each
Tranche A Loan made pursuant to the Credit Agreement and the date and amount of
each payment or prepayment of principal thereof, each continuation thereof and
each conversion of all or a portion thereof to another Type. Each such
endorsement shall constitute prima facie evidence of the accuracy of the
information endorsed. The failure to make any such endorsement or any error in
such endorsement shall not affect the obligations of the Borrower in respect of
such Loan.
This Note (a) is one (1) of the Notes referred to in the Credit Agreement
dated as of December 31, 1998 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Borrower, the Lender, the
other banks and financial institutions from time to time parties thereto and
NationsBank, N.A., as the Agent, (b) is subject to the provisions of the Credit
Agreement (including without limitation Section 9.18 thereof) and (c) is subject
to optional and mandatory prepayment in whole or in part as provided in the
Credit Agreement. Reference is hereby made to the Credit Documents for a
description of the properties and assets in which a security interest has been
granted, the nature and extent of the security and the guarantees, the terms and
conditions upon which the security interests and each guarantee were granted and
the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one (1) or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
A1-1
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH CAROLINA.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but solely as the
Owner Trustee under the CRT Realty Trust 1998-1
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
▇▇-▇
▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇▇▇ ▇ NOTE
(CRT Realty Trust 1998-1)
, 199
--------- --
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as the Owner Trustee
under the CRT Realty Trust 1998-1 (the "Borrower"), hereby unconditionally
promises to pay to the order of [Lender] (the "Lender") at the office of
NationsBank, N.A., located at Charlotte, North Carolina, or at such other
address as may be specified by NationsBank, N.A., in lawful money of the United
States of America and in immediately available funds, on the aggregate unpaid
principal amount of all Tranche B Loans made by the Lender to the Borrower
pursuant to Section 2.1 of the Credit Agreement (as defined below). The Borrower
agrees to pay interest in like money at such office on the unpaid principal
amount hereof from time to time outstanding at the rates and on the dates
specified in Section 2.8 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules annexed
hereto and made a part hereof or on a continuation thereof which shall be
attached hereto and made a part hereof the date, Type and amount of each Tranche
B Loan made pursuant to the Credit Agreement and the date and amount of each
payment or prepayment of principal thereof, each continuation thereof and each
conversion of all or a portion thereof to another Type. Each such endorsement
shall constitute prima facie evidence of the accuracy of the information
endorsed. The failure to make any such endorsement or any error in such
endorsement shall not affect the obligations of the Borrower in respect of such
Loan.
This Note (a) is one (1) of the Notes referred to in the Credit Agreement
dated as of December 31, 1998 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Borrower, the Lender, the
other banks and financial institutions from time to time parties thereto and
NationsBank, N.A., as the Agent, (b) is subject to the provisions of the Credit
Agreement (including without limitation Section 9.18 thereof) and (c) is subject
to optional and mandatory prepayment in whole or in part as provided in the
Credit Agreement. Reference is hereby made to the Credit Documents for a
description of the properties and assets in which a security interest has been
granted, the nature and extent of the security and the guarantees, the terms and
conditions upon which the security interests and each guarantee were granted and
the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one (1) or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
A2-1
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH CAROLINA.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but solely as the
Owner Trustee under the CRT Realty Trust 1998-1
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
A2-2
