1
EXHIBIT 10.11
--------------------------------------------------------------------------------
AMENDED, RESTATED AND REPLACEMENT
CREDIT AGREEMENT
Dated as of December 31, 1999
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, except as
expressly stated herein,
but solely as the Owner Trustee
under the RFMD Real Estate Trust 1999-1,
as the Borrower,
The Several Lenders
from Time to Time Parties Hereto,
and
FIRST UNION NATIONAL BANK,
as the Agent
--------------------------------------------------------------------------------
2
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS........................................................1
1.1 Definitions.......................................................1
1.2 Interpretation....................................................1
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS....................................1
2.1 Commitments.......................................................1
2.2 Notes.............................................................2
2.3 Procedure for Borrowing...........................................2
2.4 Lender Unused Fees................................................3
2.5 Termination or Reduction of Commitments...........................3
2.6 Prepayments and Payments..........................................4
2.7 Conversion and Continuation Options...............................5
2.8 Interest Rates and Payment Dates..................................6
2.9 Computation of Interest...........................................6
2.10 Pro Rata Treatment and Payments..................................7
2.11 Notice of Amounts Payable; Mandatory Assignment..................8
SECTION 3. REPRESENTATIONS AND WARRANTIES.....................................9
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, Indebtedness............................10
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
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........................................17
i
3
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................................................18
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....................................19
9.6 Successors and Assigns; Participations and Assignments...........20
9.7 Participations...................................................20
9.8 Assignments......................................................21
9.9 The Register; Disclosure; Pledges to Federal Reserve Banks.......23
9.10 Adjustments; Set-off............................................23
9.11 Counterparts....................................................24
9.12 Severability....................................................24
9.13 Integration.....................................................24
9.14 GOVERNING LAW...................................................25
9.15 SUBMISSION TO JURISDICTION; VENUE; ARBITRATION..................25
9.16 Acknowledgments.................................................25
9.17 WAIVERS OF JURY TRIAL...........................................25
9.18 Nonrecourse.....................................................25
9.19 USURY SAVINGS PROVISION.........................................26
SCHEDULES
Schedule 2.1 Commitments and Addresses of Lenders
EXHIBITS
Exhibit A-1 Form of Tranche A Note
Exhibit A-2 Form of Tranche B Note
Exhibit B Form of Assignment and Acceptance
ii
4
AMENDED, RESTATED AND REPLACEMENT
CREDIT AGREEMENT
THIS AMENDED, RESTATED AND REPLACEMENT CREDIT AGREEMENT, dated as of
December 31, 1999 (as amended, modified, extended, supplemented, restated and/or
replaced from time to time, the "Agreement") is among FIRST SECURITY BANK,
NATIONAL ASSOCIATION, not individually, except as expressly stated herein, but
solely as the Owner Trustee under the RFMD Real Estate Trust 1999-1 (the "Owner
Trustee" or the "Borrower"), the several banks and other financial institutions
from time to time parties to this Agreement (the "Lenders") and FIRST UNION
NATIONAL BANK, 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
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 Amended, Restated and Replacement
Participation Agreement dated as of December 31, 1999 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time in accordance
with the applicable provisions thereof, the "Participation Agreement") among RF
Micro Devices, Inc., 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 First Union National Bank, 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.
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
5
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. Further, any Loans by the
Lenders on a given date in an aggregate amount less than $100,000.00
shall be ABR Loans, unless the remaining Available Commitment for the
Lenders in the aggregate is less than $100,000.00, in which case, the
Borrower may elect a Eurodollar Loan for such remaining amount.
(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 and date, payable to the order
of such Lender and in a principal amount up 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.
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, New York
time, at least three (3) Business Days prior to the requested Borrowing
2
6
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, New
York 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 UNUSED FEES.
Promptly after receipt from the Lessee of the payment of the Lender
Unused 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 equal to ninety-seven percent (97%) of aggregate Budgeted Total
Property Costs as of the date of such reduction does not exceed the
aggregate amount of Available Commitments as of such date after giving
effect to such reduction. Any such reduction (A) shall be in an amount
equal to the lesser of (1) $1,000,000.00 (or a positive integer
multiple thereof) or (2) the remaining Available
3
7
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) The Commitments respecting any particular Property shall
automatically be reduced to zero (0) upon the occurrence of the Rent
Commencement Date respecting such Property. On any date on which the
Commitments shall automatically be reduced to zero (0) pursuant to
Section 6, the Borrower shall prepay all outstanding Loans, together
with accrued unpaid interest thereon and all other amounts owing
thereunder.
2.6 PREPAYMENTS AND PAYMENTS.
(a) Subject to Sections 11.2(e), 11.3 and 11.4 of the
Participation Agreement, the Borrower may at any time and from time to
time prepay the Loans, in whole or in part, without premium or penalty,
upon at least three (3) Business Days' irrevocable notice to the 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. All Loans outstanding shall be due and payable
in full on the Maturity Date.
(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
4
8
Loan Property Cost of any Construction Period Property pursuant to this
paragraph (c) shall also be applied to reduce the Construction Loan
Property Cost of such Property until such Construction Loan Property
Cost has been reduced to zero (0).
(d) On each date set forth on Schedule 1 to the Participation
Agreement, the Borrower shall repay the outstanding principal balance
of the Tranche A Loans in part in an amount equal to the product of (i)
the percentage set forth beside such date on such Schedule 1 to the
Participation Agreement multiplied by (ii) the aggregate principal
amount of Loans and Holder Advances expended for Equipment as set forth
in the Completion Certificate. In the event the Rent Commencement Date
occurs prior to February 13, 2001, then Schedule 1 to the Participation
Agreement shall be amended to provide for a straight amortization of
seventy-seven percent (77%) of Tranche A Loans expended for Equipment
as such amendments are reasonably acceptable to the Agent. All such
partial repayments of the principal balance of the Tranche A Loans
pursuant to this Section 2.6(d) shall be applied to reduce the Loan
Property Cost regarding the Tranche A Loans. If any such principal
payment is required on a day that is not a Business Day, then such
principal payment shall be due on the next succeeding Business Day.
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
5
9
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 plus the Applicable Percentage, 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 each of the Lenders shall bear interest at the ABR
plus the Applicable Percentage 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 plus the Applicable Percentage 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 plus the Applicable Percentage.
(b) If all or a portion of (i) the principal amount of any
Loan, (ii) any interest payable thereon or (iii) any other amount
payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum which is the lesser of (x) the then
current rate of interest respecting such payment plus two percent (2%)
and (y) the highest interest rate permitted by applicable law, in each
case from the date of such non-payment until such amount is paid in
full (whether after or before judgment).
(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
6
10
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.
(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 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 and Section
2.11(b) hereof, 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, New York time, on
the due date thereof to the Agent, for the account of the Lenders, 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) Unless the Agent shall have been notified in writing by
any Lender prior to a borrowing that such Lender will not make its
share of such borrowing available to the Agent, the Agent may assume
that such Lender is making such amount available to the Agent, and the
Agent may, in reliance upon such assumption, make available to the
7
11
Borrower a corresponding amount. If such amount is not made available
to the Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Agent, on demand, such amount with interest
thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately
available to the Agent. A certificate of the Agent submitted to any
Lender with respect to any amounts owing under this Section 2.10(b)
shall be conclusive in the absence of manifest error. If such Lender's
share of such borrowing is not made available to the Agent by such
Lender within three (3) Business Days of such Borrowing Date, the Agent
shall also be entitled to recover such amount with interest thereon at
the rate as set forth above on demand from the Borrower.
2.11 NOTICE OF AMOUNTS PAYABLE; MANDATORY ASSIGNMENT.
(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) or 11.3
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) In the event that any Lender delivers to the Borrower a
certificate in accordance with Section 2.11(a) in connection with
amounts payable pursuant to Sections 11.2(e) or 11.3 of the
Participation Agreement or such Lender is required to make Loans as ABR
Loans in accordance with Section 11.3(d) of the Participation Agreement
then, subject to Section 9.1 of the Participation Agreement, the
Borrower may, at its own expense (provided, such amounts shall be
reimbursed or paid entirely (as elected by the Borrower) by the Lessee,
as Supplemental Rent) and in the discretion of the Borrower, (i)
require such Lender to transfer or assign, in whole or (with such
Lender's consent) in part, without recourse (in accordance with Section
9.8), all or (with such Lender's consent) part of its interests, rights
(except for rights to be indemnified for actions taken while a party
hereunder) and obligations under this Agreement to a replacement bank
or institution if the Borrower (subject to Section 9.1 of the
Participation Agreement), with the full cooperation of such Lender, can
identify a Person who is ready, willing and able to be such replacement
bank or institution with respect thereto and such replacement bank or
institution (which may be another Lender) shall assume such assigned
obligations, or (ii) during such time as no Default or Event of Default
has occurred and is continuing, terminate the Commitment of such Lender
and prepay all outstanding Loans of such Lender; provided, however,
that (x) subject to Section 9.1 of the Participation Agreement, the
Borrower or such replacement bank or institution, as the case may be,
shall have paid to such Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the
Loans made by it hereunder and all other amounts owed to it hereunder
(and, if such Lender is also a Holder, all Holder Advances and Holder
Yield accrued and unpaid thereon), (y) any termination of Commitments
shall be subject to the terms of Section 2.5(a) and (z) such assignment
or termination of the Commitment of
8
12
such Lender and prepayment of Loans does not conflict with any law,
rule or regulation or order of any court or Governmental Authority.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the 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
Unless the Agent and each Lender has otherwise given its express
written consent during such period that 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 of rights and performance of obligations
in respect of, the Operative Agreements and other activities incidental or
related to the foregoing.
9
13
5.2 OWNERSHIP OF PROPERTIES, INDEBTEDNESS.
The Borrower shall not own, lease, manage or otherwise operate any
properties or assets other than in connection with the activities described in
Section 5.1, or incur, create, assume or suffer to exist any Indebtedness or
other consensual liabilities or financial obligations other than as may be
incurred, created or assumed or as may exist in connection with the activities
described in Section 5.1 (including without limitation the Loans and other
obligations incurred by the Borrower hereunder).
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.
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
10
14
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 three (3) or more
days; or
(b) Except as provided in Sections 6(a) and 6(c), the Borrower
shall default, and such default shall continue for three (3) or more
days, in the payment of any amount owing under any Credit Document; or
(c) (i) The Borrower shall default in the payment of any
amount due on the Maturity Date owing under any Credit Document or (ii)
the Borrower shall default in the payment when due of any principal or
interest on the Loans payable with regard to any obligation of Lessee
to pay Termination Value when due or to pay Basic Rent or Supplemental
Rent at such time as any Termination Value is due; or
(d) The Borrower shall default in the due performance or
observance by it of any term, covenant or agreement contained in any
Credit Document to which it is a party (other than those referred to in
paragraphs (a), (b) and (c) above), provided, that in the case of any
such default under Sections 5.4, 5.5 or 5.8(c), such default shall have
continued unremedied for a period of at least fifteen (15) days after
notice to the Borrower by the Agent or the Majority Lenders, provided,
further, if any such default under Sections 5.4, 5.5 or 5.8(c) is not
capable of remedy within such fifteen (15) day period but may be
remedied with further diligence and if the Borrower has and continues
11
15
to pursue diligently such remedy, then the Borrower shall be granted
additional time to pursue such remedy but in no event more than an
additional thirty (30) days.
(e) Any representation, warranty or statement made or deemed
made by the Borrower herein or in any other Credit Document or by the
Borrower or the Lessee in the Participation Agreement, or in any
statement or certificate delivered or required to be delivered pursuant
hereto or thereto, shall prove to be untrue in any material respect on
the date as of which made or deemed made; or
(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 fifteen (15) days after notice to the Owner Trustee
and Lessee by the Agent or the Majority Lenders, provided, further,
that in the case of this clause (ii), such default is not capable of
remedy within such fifteen (15) day period but may be remedied with
further diligence and if the Borrower has and continues to pursue
diligently such remedy, then the Borrower shall be granted additional
time to pursue such remedy but in no event more than an additional
thirty (30) days; or
(g) The Borrower shall commence a voluntary case concerning
itself under the Bankruptcy Code or an involuntary case is commenced
against the Borrower and the petition is not contravened within ten
(10) days after commencement of the case or an involuntary case is
commenced against the Borrower and the petition is not dismissed within
sixty (60) days after commencement of the case; or a custodian (as
defined in the Bankruptcy Code) is appointed for, or takes charge of,
all or substantially all of the property of the Borrower; or the
Borrower commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether
now or hereafter in effect relating to the Borrower, or there is
commenced against the Borrower any such proceeding which remains
undismissed for a period of sixty (60) days; or the Borrower is
adjudicated insolvent or bankrupt, or any order of relief or other
order approving any such case or proceeding is entered; or the Borrower
suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed
for a period of sixty (60) days; or the Borrower makes a general
assignment for the benefit of creditors; or any corporate or
partnership action is taken by the Borrower for the purpose of
effecting any of the foregoing; or
(h) Any Security Document shall cease to be in full force and
effect, or shall cease to give the 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 of all
third Persons and subject to no other
12
16
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 $100,000.00 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.
13
17
The Borrower shall be liable for any and all accrued and unpaid amounts
due hereunder before, after or during the exercise of any of the foregoing
remedies, including without limitation all reasonable legal fees and other
reasonable costs and expenses incurred by the 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 is a Unanimous
Vote Matter or otherwise 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
14
18
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 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).
15
19
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.
16
20
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. 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).
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
17
21
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 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.
18
22
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 and 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.
19
23
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 PARTICIPATIONS.
Subject to and in accordance with Section 10.1 of the Participation
Agreement, any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one (1) or more banks,
financial institutions or other entities (each, a "Participant") participating
interests in any Loan owing to such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of such Lender hereunder and
under the other Operative Agreements; provided, that any such sale of a
participating interest shall be in a principal amount of at least $2,000,000.00
or such lesser amount constituting such Lender's entire interest in this
Agreement and the Notes. In the event of any such sale by a Lender of a
participating interest to a Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Note for all purposes under this Agreement
and the Notes, and the Borrower and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the Notes. In no event shall any
Participant have any right to approve any amendment or waiver of any provision
of this Agreement or any other Operative Agreement, or any consent to any
departure by the Borrower or any other Person therefrom, except to the extent
that such amendment, waiver or consent would (a) reduce the principal of, or
interest on, any Loan or Note, or postpone the date of the final maturity of any
Loan or Note, or reduce the amount of any Lender Unused Fee, in each case to the
extent subject to such participation or (b) release all or substantially all of
the Collateral. The Borrower agrees that, while an Event of Default shall have
occurred and be continuing, if amounts outstanding under this Agreement and the
Notes are due or unpaid, or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall, to the maximum extent
permitted by applicable law, be deemed to have the right of setoff in respect of
its participating interests in amounts owing directly to it as a Lender under
this Agreement or any Note, provided, that in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in Section 9.10(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 11.2(e), 11.3 and 11.4 of the Participation
Agreement with respect to its participation in the Commitments and the Loans
outstanding from time to time as if it was a Lender; provided, that such
Participant shall have complied with the requirements of said Sections and
provided, further, that no Participant shall be entitled to receive any greater
amount pursuant to any such Section than the transferor Lender would have been
entitled to receive in respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such transfer occurred.
20
24
9.8 ASSIGNMENTS.
(a) Subject to and in accordance with Section 10.1 of the
Participation Agreement, any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time and from
time to time assign to any Lender or any affiliate of any Lender or,
with the consent, subject to Section 9.1 of the Participation
Agreement, of the Borrower and the Agent (which in each case shall not
be unreasonably withheld or delayed and which consent of the Borrower
shall not be required during the continuation of any Event of Default),
to an additional bank, financial institution or other entity that is
either organized under the laws of the United States or any state
thereof or is a foreign bank that operates a branch office in the
United States, (each, a "Purchasing Lender") all or any part of its
rights and obligations under this Agreement and the other Operative
Agreements pursuant to an Assignment and Acceptance, substantially in
the form of Exhibit B, executed by such Purchasing Lender, such
assigning Lender (and, in the case of a Purchasing Lender that is not a
Lender or an affiliate thereof, subject to Section 9.1 of the
Participation Agreement, by the Borrower and the Agent) and delivered
to the Agent for its acceptance and recording in the Register;
provided, that no such assignment to a Purchasing Lender (other than
any Lender or any affiliate thereof) shall be in an aggregate principal
amount less than $5,000,000.00 (other than in the case of an assignment
of all of a Lender's interests under this Agreement and the Notes).
Upon such execution, delivery, acceptance and recording, from and after
the effective date determined pursuant to such Assignment and
Acceptance, (x) the Purchasing Lender thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with a Commitment
as set forth therein, and (y) the assigning Lender thereunder shall, to
the extent provided in such Assignment and Acceptance, be released from
its obligations under this Agreement (and, in the case of an Assignment
and Acceptance covering all of the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such assigning
Lender shall cease to be a party hereto). Notwithstanding anything to
the contrary in this Agreement, the consent of the Borrower shall not
be required, and, unless requested by the relevant Purchasing Lender
and/or assigning Lender, new Notes shall not be required to be executed
and delivered by the Borrower, for any assignment which occurs at any
time when any of the events described in Section 6(g) shall have
occurred and be continuing.
(b) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and a Purchasing Lender (and, in the case of a
Purchasing Lender that is not a Lender or an affiliate thereof, by the
Borrower and the Agent) together with payment to the Agent of a
registration and processing fee of $2,500.00 (which shall not be
payable by the Borrower or the Lessee, except as otherwise provided in
connection with an assignment requested in accordance with Section
2.11(b)), the Agent shall (i) promptly accept such Assignment and
Acceptance and (ii) promptly after the effective date determined
pursuant thereto, record the information contained therein in the
Register and give notice of such acceptance and recordation to the
Lenders and the Borrower. On or prior to such effective date, the
Borrower, at its own expense, shall execute and deliver
21
25
to the Agent new Notes (in exchange for the Notes of the assigning
Lender), each in an amount equal to the Commitment assumed or Loans
purchased by the relevant Purchasing Lender pursuant to such Assignment
and Acceptance, and, if the assigning Lender has retained a Commitment
or any Loan hereunder, new Notes to the order of the assigning Lender,
each in an amount equal to the Commitment or Loans retained by it
hereunder. Such new Notes shall be dated the effective date of the
applicable Assignment and Acceptance and shall otherwise be in the form
of the Notes replaced thereby.
(c) Each Purchasing Lender (other than any Lender organized
and existing under the laws of the U.S. or any political subdivision in
or of the U.S.), by executing and delivering an Assignment and
Acceptance,
(i) agrees to execute and deliver to the Agent, as
promptly as practicable, four (4) signed copies (two (2) for
the Agent and two (2) for delivery by the Agent to the
Borrower) of Form 1001 or Form 4224 (or any successor form or
comparable form) (it being understood that if the applicable
form is not so delivered, payments under or in respect of this
Agreement may be subject to withholding and deduction);
(ii) represents and warrants to the Borrower and the
Agent that the form so delivered is true and accurate and
that, as of the effective date of the applicable Assignment
and Acceptance, each of such Purchasing Lender's lending
offices is entitled to receive payments of principal and
interest under or in respect of this Agreement without
withholding or deduction for or on account of any taxes
imposed by the U.S. Federal government;
(iii) agrees to annually hereafter deliver to each of
the Borrower and the Agent not later than December 31 of the
year preceding the year to which it will apply, two (2)
further properly completed signed copies of Form 1001 or Form
4224 (or any successor form or comparable form), as
appropriate, unless an event has occurred which renders the
relevant form inapplicable (it being understood that if the
applicable form is not so delivered, payments under or in
respect of this Agreement may be subject to withholding and
deduction);
(iv) agrees to promptly notify the Borrower and the
Agent in writing if it ceases to be entitled to receive
payments of principal and interest under or in respect of this
Agreement without withholding or deduction for or on account
of any taxes imposed by the U.S. or any political subdivision
in or of the U.S. (it being understood that payments under or
in respect of this Agreement may be subject to withholding and
deduction in such event);
(v) acknowledges that in the event it ceases to be
exempt from withholding and/or deduction of such taxes, the
Agent may withhold and/or deduct the applicable amount from
any payments to which such assignee Lender
22
26
would otherwise be entitled, without any liability to such
assignee Lender therefor; and
(vi) agrees to indemnify the Borrower and the Agent
from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs or
expenses that result from such assignee Lender's breach of any
such representation, warranty or agreement.
(d) Any Lender party to this Agreement may, from time to time
and without the consent of the Borrower or any other Person, pledge or
assign for security purposes any portion of its Loans or any other
interests in this Agreement and the other Credit Documents to any
Federal Reserve Bank.
9.9 THE REGISTER; DISCLOSURE; PLEDGES TO FEDERAL RESERVE BANKS.
(a) The Agent shall maintain for the benefit of the Lenders at
its address referred to in Section 9.2 a copy of each Assignment and
Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders, the Commitments
of the Lenders, and the principal amount of the Loans owing to each
Lender from time to time. The entries in the Register shall be
conclusive, in the absence of clearly demonstrable error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loan recorded therein for
all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and
from time to time upon reasonable notice.
(b) Nothing herein shall prohibit any Lender from pledging or
assigning any Note to any Federal Reserve Bank in accordance with
applicable law.
9.10 ADJUSTMENTS; SET-OFF.
(a) Except as otherwise expressly provided in Section 8.1
hereof and Section 8.7 of the Participation Agreement where, and to the
extent, one (1) Lender is entitled to payments prior to other Lenders,
if any Lender (a "Benefitted Lender") shall at any time receive any
payment of all or part of its Loans, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the
nature referred to in Section 6(g), or otherwise), in a greater
proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans, or interest
thereon, such Benefitted Lender shall purchase for cash from the other
Lenders a participating interest in such portion of each such other
Lender's Loan, or shall provide such other Lenders with the benefits of
any such collateral, or the proceeds thereof, as shall be necessary to
cause such Benefitted Lender to share the excess payment or benefits of
such collateral or proceeds ratably with each of the Lenders; provided,
however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such Benefitted Lender, such purchase
shall be
23
27
rescinded, and the purchase price and benefits returned, to the event
of such recovery, but without interest.
(b) In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such
rights, upon the occurrence of an Event of Default, the Agent and each
Lender is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to the
Borrower or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other Indebtedness at any time held or
owing by the Agent or such Lender (including without limitation by
branches and agencies of the Agent or such Lender wherever located) or
any affiliate of such Lender 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.
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.
24
28
9.14 GOVERNING LAW.
THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH
CAROLINA.
9.15 SUBMISSION TO JURISDICTION; VENUE; ARBITRATION.
THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO SUBMISSION TO
JURISDICTION, VENUE AND ARBITRATION ARE HEREBY INCORPORATED BY REFERENCE HEREIN,
MUTATIS MUTANDIS.
9.16 ACKNOWLEDGMENTS.
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, on one (1)
hand, and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(b) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrower and the
Lenders.
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
25
29
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. ss. 24-9 SHALL APPLY WITH RESPECT TO THIS AGREEMENT. TO THE
EXTENT N.C. GEN. STAT. ss. 24-9 IS HEREAFTER DEEMED NOT TO APPLY BY A COURT OF
COMPETENT JURISDICTION AND ANY PAYMENTS HEREUNDER ARE HEREINAFTER CHARACTERIZED
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
26
30
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.
[signature pages follow]
27
31
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 RFMD Real
Estate Trust 1999-1
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[signature pages continue]
Credit Agreement
RFMD Real Estate Trust 1999-1
32
FIRST UNION NATIONAL BANK, as the Agent
and a Lender
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Credit Agreement
RFMD Real Estate Trust 1999-1
33
CREDIT SUISSE FIRST BOSTON, as a Lender
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[signature pages continue]
Credit Agreement
RFMD Real Estate Trust 1999-1
34
COMERICA BANK, as a Lender
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[signature pages continue]
Credit Agreement
RFMD Real Estate Trust 1999-1
35
SUNTRUST BANK, ATLANTA, as a Lender
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[signature pages continue]
Credit Agreement
RFMD Real Estate Trust 1999-1
36
CITICORP USA, Inc., as a Lender
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[signature pages continue]
Credit Agreement
RFMD Real Estate Trust 1999-1
37
FLEET NATIONAL BANK, as a Lender
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[signature pages end]
Credit Agreement
RFMD Real Estate Trust 1999-1
38
Schedule 2.1
------------
Tranche A Tranche B
Commitment Commitment
---------- ----------
Name and Address of Lenders Amount Percentage Amount Percentage
--------------------------- ------ ---------- ------ ----------
First Union National Bank $21,250,000.00 25.0000% $2,400,000.00 20.0000%
First Union Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Credit Suisse First Boston $17,000,000.00 20.0000% $1,650,000.00 3.7500%
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Comerica Bank $14,875,000.00 17.5000% $2,625,000.00 21.8750%
U.S. Banking East
500 ▇▇▇▇▇▇▇▇ Avenue, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
SunTrust Bank, Atlanta $14,875,000.00 17.5000% $2,625,000.00 21.8750%
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Citicorp USA, Inc. $8,500,000.00 10.0000% 1,500,000.00 12.5000%
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Fleet National Bank $8,500,000.00 10.0000% $1,200,000.00 10.0000%
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇-▇▇-▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
TOTAL $85,000,000.00 100% $12,000,000.00 100%
39
Exhibit A-1
TRANCHE A NOTE
(RFMD Real Estate Trust 1999-1)
December 31, 1999
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as the Owner Trustee
under the RFMD Real Estate Trust 1999-1 (the "Borrower"), hereby unconditionally
promises to pay to the order of [LENDER] (the "Lender"), at the office of First
Union National Bank, located at c/o First Union Securities, Inc., DC-6, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or at such other
address as may be specified by First Union National Bank, in lawful money of the
United States of America and in immediately available funds, the respective
dates specified in Schedule 1 to the Participation Agreement, the amounts
described in such Schedule 1 and on the Maturity Date, 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, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
Lender, the other banks and financial institutions from time to time parties
thereto and First Union National Bank, 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.
A1-1
40
Upon the occurrence of any one (1) or more of the Events of Default,
all amounts then remaining unpaid on this Note shall become, or may be declared
to be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH CAROLINA.
IN WITNESS WHEREOF, THE UNDERSIGNED AUTHORIZED OFFICER OF THE BORROWER
HAS EXECUTED THIS NOTE AS OF THE DATE FIRST SET FORTH ABOVE.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but
solely as the Owner Trustee under the
RFMD Real Estate Trust 1999-1
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
A1-2
41
Exhibit A-2
TRANCHE B NOTE
(RFMD Real Estate Trust 1999-1)
December 31, 1999
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as the Owner Trustee
under the RFMD Real Estate Trust 1999-1 (the "Borrower"), hereby unconditionally
promises to pay to the order of [LENDER] (the "Lender") at the office of First
Union National Bank located at c/o First Union Securities, Inc., DC-6, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or at such other address as
may be specified by First Union National Bank, in lawful money of the United
States of America and in immediately available funds, on the Maturity Date, the
aggregate unpaid principal amount of all 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 __, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
Lender, the other banks and financial institutions from time to time parties
thereto and First Union National Bank, 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
42
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.
IN WITNESS WHEREOF, THE UNDERSIGNED AUTHORIZED OFFICER OF THE BORROWER
HAS EXECUTED THIS NOTE AS OF THE DATE FIRST SET FORTH ABOVE.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but
solely as the Owner Trustee under the
RFMD Real Estate Trust 1999-1
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
A2-2
43
Exhibit B
ASSIGNMENT AND ACCEPTANCE
THIS ASSIGNMENT AND ACCEPTANCE dated as of ____________, 1999 (as
amended, modified, supplemented, restated and/or replaced from time to time, the
"Assignment and Acceptance") is between [____________________] (the "Assignor")
and [_______________] (the "Assignee").
Reference is made to the Credit Agreement, dated as of August ____,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its
individual capacity, but solely as the Owner Trustee under the RFMD Real Estate
Trust 1999-1 (the "Owner Trustee" or the "Borrower"), the Lenders named therein
and FIRST UNION NATIONAL BANK, as the Agent. Unless otherwise defined herein,
terms defined in the Credit Agreement (or pursuant to Section 1 of the Credit
Agreement, defined in other agreements) and used herein shall have the meanings
given to them in or pursuant to the Credit Agreement.
The Assignor and the Assignee agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), a [___%] interest (the "Assigned Interest")
in and to the Assignor's rights and obligations under the Credit Agreement with
respect to the credit facility contained in the Credit Agreement as are set
forth on Schedule 1 hereto (the "Assigned Facility"), in a principal amount for
the Assigned Facility as set forth on Schedule 1.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Operative
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Operative Agreement or
any other instrument or document furnished pursuant thereto, other than that it
has not created any adverse claim upon the interest being assigned by it
hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, or any other obligor or the
performance or observance by the Borrower, or any other obligor of any of their
respective obligations under the Credit Agreement or any other Operative
Agreement or any other instrument or document furnished pursuant hereto or
thereto; and (c) attaches the Note held by it evidencing the Assigned Facility
and requests that the Agent exchange such Note for a new Note payable to the
Assignee and (if the Assignor has retained any interest in the Assigned
Facility) a new Note payable to the Assignor in the respective amounts
B-1
44
which reflect the assignment being made hereby (and after giving effect to any
other assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received copies of the Operative Agreements, and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor, 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 decisions in taking or not taking
action under the Credit Agreement, the other Operative Agreements or any other
instrument or document furnished pursuant hereto or thereto; (d) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Operative
Agreements or any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and the other Operative Agreements to which
Assignee is a party and will perform in accordance herewith all the obligations
which by the terms of the Credit Agreement and the other Operative Agreements to
which Assignee is a party are required to be performed by it as a Lender
including without limitation, if it is organized under the laws of a
jurisdiction outside the U.S., its obligation pursuant to Section 11.2(e) of the
Participation Agreement.
4. The effective date of this Assignment and Acceptance shall be
[________, 19__] (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for acceptance by
it and recording by the Agent pursuant to Section 9.9 of the Credit Agreement,
effective as of the Effective Date (which shall not, unless otherwise agreed to
by the Agent, be earlier than five (5) Business Days after the date of such
acceptance and recording by the Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Agent shall make all payments in respect of the Assigned Interest
(including without limitation payments of principal, interest, fees and other
amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the Agent for
periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party
to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Operative Agreements and shall be bound by the provisions thereof and (b)
the Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement and the other Operative Agreements.
B-2
45
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA.
B-3
46
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
[Name of Assignor]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[Name of Assignee]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Consented To:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but
solely as the Owner Trustee under the
RFMD Real Estate Trust 1999-1
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
FIRST UNION NATIONAL BANK, as the Agent
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[consents required only to the extent expressly provided in Section 9.8 of the
Credit Agreement]
B-4
47
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT,
DATED AS OF AUGUST __, 1999,
AMONG
FIRST SECURITY BANK, NATIONAL ASSOCIATION
NOT INDIVIDUALLY,
BUT SOLELY AS THE OWNER TRUSTEE,
THE LENDERS NAMED THEREIN
AND
FIRST UNION NATIONAL BANK, AS THE AGENT
FOR THE LENDERS (IN SUCH CAPACITY, THE "AGENT")
Name of Assignor:
-------------------------------
Name of Assignee:
-------------------------------
Effective Date of Assignment:
-------------------
Credit Principal Commitment
Facility Assigned Amount Assigned Percentage Assigned
----------------- --------------- -------------------
$ %
----------------- ------------ ------------
[Name of Assignor]
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
[Name of Assignee]
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
B-5