PARTICIPATION AGREEMENT
Dated as of July 29, 1998
among
CENTENNIAL HEALTHCARE CORPORATION,
as the Construction Agent and as the Lessee,
THE VARIOUS PARTIES HERETO FROM TIME TO TIME,
as the Guarantors,
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, except as expressly
stated herein, but solely as the Owner Trustee
under the Centennial Real Estate Trust 1998-1,
THE VARIOUS BANKS AND OTHER LENDING INSTITUTIONS WHICH ARE
PARTIES HERETO FROM TIME TO TIME, as the Holders,
THE VARIOUS BANKS AND OTHER LENDING INSTITUTIONS WHICH ARE
PARTIES HERETO FROM TIME TO TIME, as the Lenders,
FIRST UNION CAPITAL MARKETS, A DIVISION OF WHEAT FIRST
SECURITIES, INC.,
as Syndication Agent,
and
NATIONSBANK, N.A.,
as the Agent for the Lenders
and respecting the Security Documents,
as the Agent for the Lenders and the Holders,
to the extent of their interests
iii
TABLE OF CONTENTS
Page
SECTION 1. THE LOANS.............................................1
SECTION 2. HOLDER ADVANCES.......................................2
SECTION 3. SUMMARY OF TRANSACTIONS...............................2
3.1. Operative Agreements...................................2
3.2. Property Purchase......................................2
3.3. Construction of Improvements; Commencement of Basic
Rent........................................................3
3.4. [Intentionally Omitted]................................3
SECTION 4. THE CLOSINGS..........................................3
4.1. Initial Closing Date...................................3
4.2. Initial Closing Date; Property Closing Dates;
Acquisition Advances; Construction Advances.................3
SECTION 5. FUNDING OF ADVANCES; CONDITIONS PRECEDENT; REPORTING
REQUIREMENTS ON COMPLETION DATE; THE LESSEE'S DELIVERY OF
NOTICES; RESTRICTIONS ON LIENS....................................3
5.1. General................................................3
5.2. Procedures for Funding.................................4
5.3. Conditions Precedent for the Lessor, the Agent, the
Lenders and the Holders Relating to the Initial Closing Date
and the Advance of Funds for the Acquisition of a Property..6
5.4. Conditions Precedent for the Lessor, the Agent, the
Lenders and the Holders Relating to the Advance of Funds
after the Acquisition Advance..............................11
5.5. Additional Reporting and Delivery Requirements on
Completion Date and on Construction Period Termination Date.13
5.6. The Construction Agent's Delivery of Construction
Budget Modifications.......................................14
5.7. Restrictions on Liens.................................14
5.8 Joinder Agreement Requirements.........................14
5.9 [Intentionally Omitted]................................15
5.10. Payments.............................................15
5.11. Increase in Holder Commitments and Lender Commitments.15
5.12. Modifications of Schedules Reflecting Holder
Commitments and/or Lender Commitments......................15
5.13. Substitution of Properties...........................16
5.14. Minimum Size of Construction Advance.................16
5.15. Time Limit for Acquisition of Properties.............16
SECTION 6. REPRESENTATIONS AND WARRANTIES.......................16
6.1. Representations and Warranties of the Borrower........16
6.2. Representations and Warranties of the Construction
Agent and the Lessee.......................................19
SECTION 6B. GUARANTY............................................24
6B.1. Guaranty of Payment and Performance..................24
6B.2. Obligations Unconditional............................25
6B.3. Modifications........................................26
6B.4. Waiver of Rights.....................................26
6B.5. Reinstatement........................................27
6B.6. Remedies.............................................27
6B.7. Limitation of Guaranty...............................27
6B.9. Release of Guarantors................................28
SECTION 7. PAYMENT OF CERTAIN EXPENSES...........................28
7.1. Transaction Expenses..................................28
7.2. Brokers' Fees.........................................29
7.3. Certain Fees and Expenses.............................29
7.4. Unused Fee............................................30
7.5. Upfront Fee...........................................30
7.6. Agent's Fee...........................................30
SECTION 8. OTHER COVENANTS AND AGREEMENTS.......................31
8.1. Cooperation with the Construction Agent or the Lessee.31
8.2. Covenants of the Owner Trustee and the Holders........31
8.3. Credit Party Covenants, Consent and Acknowledgment....33
8.4. Sharing of Certain Payments...........................37
8.5. Grant of Easements, etc...............................38
8.6. Appointment of Agent..................................38
8.7. Collection and Allocation of Payments and Other Amounts.39
8.8. Release of Properties, etc............................42
SECTION 9. CREDIT AGREEMENT AND TRUST AGREEMENT.................42
9.1. The Construction Agent's and the Lessee's Credit
Agreement Rights...........................................42
9.2. The Construction Agent's and the Lessee's Trust
Agreement Rights...........................................43
SECTION 10. TRANSFER OF INTEREST................................44
10.1. Restrictions on Transfer.............................44
10.2. Effect of Transfer...................................45
SECTION 11. INDEMNIFICATION.....................................45
11.1. General Indemnity....................................45
11.2. General Tax Indemnity................................48
11.3. Increased Costs, Illegality, etc.....................52
11.4. Funding/Contribution Indemnity.......................54
11.5. EXPRESS INDEMNIFICATION FOR ORDINARY NEGLIGENCE,
STRICT LIABILITY, ETC......................................54
SECTION 12. MISCELLANEOUS.......................................55
12.1. Survival of Agreements...............................55
12.2. Notices..............................................55
12.3. Counterparts.........................................57
12.4. Terminations, Amendments, Waivers, Etc.; Unanimous
Vote Matters...............................................57
12.5. Headings, etc........................................59
12.6. Parties in Interest..................................59
12.7. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL; VENUE..........................................59
12.8. Severability.........................................60
12.9. Liability Limited....................................60
12.10. Rights of the Credit Parties........................61
12.11. Further Assurances..................................62
12.12. Calculations under Operative Agreements.............62
12.13. Confidentiality.....................................62
12.14. Financial Reporting/Tax Characterization............63
12.15. Set-off.............................................63
EXHIBITS
A - Form of Requisition - Sections 4.2, 5.2, 5.3 and 5.4
B - Form of Outside Counsel Opinion for the Lessee - Section 5.3(j)
C - Form of Officer's Certificate - Section 5.3(z)
D- Form of Secretary's Certificate - Section 5.3(aa)
E - Form of Officer's Certificate - Section 5.3(cc)
F - Form of Secretary's Certificate - Section 5.3(dd)
G - Form of Outside Counsel Opinion for the Owner Trustee Section 5.3(ee)
H - Form of Outside Counsel Opinion for the Lessee - Section 5.3(ff)
I - Form of Officer's Certificate - Section 5.5
J - Form of Joinder Agreement - Section 5.8(a)
K - Description of Material Litigation - Section 6.2(d)
L - State of Incorporation/Formation and Principal Place of Business of Each
Guarantor - Section 6.2(i)
M - Form of Officer's Compliance Certificate - Section 8.3(l)
Appendix A - Rules of Usage and Definitions
PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT dated as of July 29, 1998 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
this "Agreement") is by and among CENTENNIAL HEALTHCARE CORPORATION, a Georgia
corporation (the "Lessee" or the "Construction Agent"); the various parties
hereto from time to time as guarantors (subject to the definition of Guarantors
in Appendix A hereto, individually, a "Guarantor" and collectively, the
"Guarantors"); FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, not individually (in its individual capacity, the "Trust Company"),
except as expressly stated herein, but solely as the Owner Trustee under the
Centennial Real Estate Trust 1998-1 (the "Owner Trustee", the "Borrower" or the
"Lessor"); the various banks and other lending institutions which are parties
hereto from time to time as holders of certificates issued with respect to the
Centennial Real Estate Trust 1998-1 (subject to the definition of Holders in
Appendix A hereto, individually, a "Holder" and collectively, the "Holders");
the various banks and other lending institutions which are parties hereto from
time to time as lenders (subject to the definition of Lenders in Appendix A
hereto, individually, a "Lender" and collectively, the "Lenders"); FIRST UNION
CAPITAL MARKETS, A DIVISION OF WHEAT FIRST SECURITIES, INC., a Virginia
corporation, as syndication agent ("Syndication Agent"), and NATIONSBANK, N.A.,
a national banking association, as the agent for the Lenders and respecting the
Security Documents, as the agent for the Lenders and the Holders, to the extent
of their interests (in such capacity, the "Agent"). Capitalized terms used but
not otherwise defined in this Agreement shall have the meanings set forth in
Appendix A hereto.
In consideration of the mutual agreements herein contained and other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. THE LOANS.
Subject to the terms and conditions of this Agreement and the other
Operative Agreements and in reliance on the representations and warranties of
each of the parties hereto contained herein or made pursuant hereto, the Lenders
have severally agreed to make Loans to the Lessor from time to time in an
aggregate principal amount of up to the amount of the respective Lender
Commitments in order for the Lessor to acquire the Properties and certain
Improvements, to develop and construct certain Improvements in accordance with
the Agency Agreement and the terms and provisions hereof and for the other
purposes described herein, and in consideration of the receipt of proceeds of
the Loans, the Lessor will issue the Notes. The Loans shall be made and the
Notes shall be issued pursuant to the Credit Agreement. Pursuant to Section 5 of
this Agreement and Section 2 of the Credit Agreement, the Loans will be made to
the Lessor from time to time at the request of the Construction Agent in
consideration for the Construction Agent agreeing for the benefit of the Lessor,
pursuant to the Agency Agreement, to acquire the Properties, to acquire the
Equipment, to construct certain Improvements and to cause the Lessee to lease
the Properties, each in accordance with the Agency Agreement and the other
Operative Agreements. The Loans and the obligations of the Lessor under the
Credit Agreement shall be secured by the Collateral.
SECTION 2. HOLDER ADVANCES.
Subject to the terms and conditions of this Agreement and the other
Operative Agreements and in reliance on the representations and warranties of
each of the parties hereto contained herein or made pursuant hereto, on each
date Advances are requested to be made in accordance with Section 5 hereof, each
Holder severally shall make a Holder Advance on a pro rata basis to the Lessor
with respect to the Centennial Real Estate Trust 1998-1 based on its Holder
Commitment in an amount in immediately available funds such that the aggregate
of all Holder Advances made by the Holders on such date shall be three percent
(3%) of the amount of the Requested Funds on such date; provided, that no Holder
shall be obligated for any Holder Advance in excess of its pro rata share of the
Available Holder Commitment. The aggregate amount of Holder Advances shall be up
to the aggregate amount of the Holder Commitments. No prepayment or any other
payment with respect to any Advance shall be permitted such that the Holder
Advance with respect to such Advance is less than three percent (3%) of the
outstanding amount of such Advance, except in connection with termination or
expiration of the Term or in connection with the exercise of remedies relating
to the occurrence of a Lease Event of Default. The representations, warranties,
covenants and agreements of the Holders herein and in the other Operative
Agreements are several, and not joint or joint and several.
SECTION 3. SUMMARY OF TRANSACTIONS.
3.1. Operative Agreements.
On the date hereof, each of the respective parties hereto and thereto
shall execute and deliver this Agreement, the Lease, each applicable Ground
Lease, the Agency Agreement, the Credit Agreement, the Notes, the Trust
Agreement, the Certificates, the Security Agreement, each applicable Mortgage
Instrument and such other documents, instruments, certificates and opinions of
counsel as agreed to by the parties hereto.
3.2. Property Purchase.
On each Property Closing Date and subject to the terms and conditions of
this Agreement (a) the Holders will each make a Holder Advance in accordance
with Sections 2 and 5 of this Agreement and the terms and provisions of the
Trust Agreement, (b) the Lenders will each make Loans in accordance with
Sections 1 and 5 of this Agreement and the terms and provisions of the Credit
Agreement, (c) the Lessor will purchase and acquire good and marketable title to
or ground lease pursuant to a Ground Lease, the applicable Property, each to be
within an Approved State, identified by the Construction Agent, in each case
pursuant to a Deed, Xxxx of Sale or Ground Lease, as the case may be, and grant
the Agent a lien on such Property by execution of the required Security
Documents, (d) the Agent, the Lessee and the Lessor shall execute and deliver a
Lease Supplement relating to such Property and (e) the Basic Term shall commence
with respect to such Property.
3.3. Construction of Improvements; Commencement of Basic
Rent.
Construction Advances will be made with respect to particular Improvements
to be constructed and with respect to ongoing Work regarding the Equipment and
construction of particular Improvements, in each case, pursuant to the terms and
conditions of this Agreement and the Agency Agreement. The Construction Agent
will act as a construction agent on behalf of the Lessor respecting the Work
regarding the Equipment, the construction of such Improvements and the
expenditures of the Construction Advances related to the foregoing. The
Construction Agent shall promptly notify the Lessor upon Completion of the
Improvements and the Lessee shall commence to pay Basic Rent as of the Rent
Commencement Date.
3.4. [Intentionally Omitted]
SECTION 4. THE CLOSINGS.
4.1. Initial Closing Date.
All documents and instruments required to be delivered on the Initial
Closing Date shall be delivered at the offices of Xxxxx & Xxx Xxxxx, PLLC,
Charlotte, North Carolina, or at such other location as may be determined by the
Lessor, the Agent and the Lessee.
4.2. Initial Closing Date; Property Closing Dates;
Acquisition Advances; Construction Advances.
The Construction Agent shall deliver to the Agent a requisition (a
"Requisition"), in the form attached hereto as Exhibit A or in such other form
as is satisfactory to the Agent, in its reasonable discretion, in connection
with (a) the Transaction Expenses and other fees, expenses and disbursements
payable, pursuant to Section 7.1, by the Lessor and (b) each Acquisition Advance
pursuant to Section 5.3 and (c) each Construction Advance pursuant to Section
5.4.
SECTION 5. FUNDING OF ADVANCES; CONDITIONS PRECEDENT;
REPORTING REQUIREMENTS ON COMPLETION DATE;
THE LESSEE'S DELIVERY OF NOTICES; RESTRICTIONS ON LIENS.
5.1. General.
(a) To the extent funds have been advanced to the Lessor as Loans by
the Lenders and to the Lessor as Holder Advances by the Holders, the
Lessor will use such funds from time to time in accordance with the terms
and conditions of this Agreement and the other Operative Agreements (i) at
the direction of the Construction Agent to acquire the Properties in
accordance with the terms of this Agreement, the Agency Agreement and the
other Operative Agreements, (ii) to make Advances to the Construction
Agent to permit the acquisition, testing, engineering, installation,
development, construction, modification, design, and renovation, as
applicable, of the Properties (or components thereof) in accordance with
the terms of the Agency Agreement and the other Operative Agreements, and
(iii) to pay Transaction Expenses, fees, expenses and other disbursements
payable by the Lessor under Sections 7.1(a) and 7.1(b).
(b) In lieu of the payment of interest on the Loans and Holder Yield
on the Holder Advances on any Scheduled Interest Payment Date with respect
to any Property during the period prior to the Rent Commencement Date with
respect to such Property, (i) each Lender's Loan shall automatically be
increased by the amount of interest accrued and unpaid on such Loan for
such period (except to the extent that at any time such increase would
cause such Lender's Loan to exceed such Lender's Available Commitment, in
which case the Lessee shall pay such excess amount to such Lender in
immediately available funds on the date such Lender's Available Commitment
was exceeded), and (ii) each Holder's Holder Advance shall automatically
be increased by the amount of Holder Yield accrued and unpaid on such
Holder Advance for such period (except to the extent that at any time such
increase would cause the Holder Advance of such Holder to exceed such
Holder's Available Holder Commitment, in which case the Lessee shall pay
such excess amount to such Holder in immediately available funds on the
date the Available Holder Commitment of such Holder was exceeded). Such
increases in a Lender's Loan and a Holder's Holder Advance shall occur
without any disbursement of funds by any Person.
5.2. Procedures for Funding.
(a) The Construction Agent shall designate the date for Advances
hereunder in accordance with the terms and provisions hereof; provided,
however, it is understood and agreed that no more than four (4) Advances
(excluding any conversion and/or continuation of any Loan or Holder
Advance) may be requested during any calendar month. Not less than (i)
three (3) Business Days prior to the date that the first Advance is
requested hereunder and (ii) three (3) Business Days prior to the date on
which any subsequent Acquisition Advance or Construction Advance is to be
made, the Construction Agent shall deliver to the Agent, (A) with respect
to the date that the first Advance is requested hereunder and each
subsequent Acquisition Advance, a Requisition as described in Section 4.2
hereof (including without limitation a legal description of the Land, if
any, a schedule of the Improvements, if any, and a schedule of the
Equipment, if any, acquired or to be acquired on such date, and a schedule
of the Work, if any, to be performed, each of the foregoing in a form
reasonably acceptable to the Agent) and (B) with respect to each
Construction Advance, a Requisition identifying (among other things) the
Property to which such Construction Advance relates.
(b) Each Requisition shall: (i) be irrevocable, (ii) request funds in
an amount that is not in excess of the total aggregate of the Available
Commitments plus the Available Holder Commitments at such time, and (iii)
request that the Holders make Holder Advances and that the Lenders make
Loans to the Lessor for the payment of Transaction Expenses, Property
Acquisition Costs (in the case of an Acquisition Advance) or other
Property Costs (in the case of a Construction Advance) that have
previously been incurred or are to be incurred on the date of such Advance
to the extent such were not subject to a prior Requisition, in each case
as specified in the Requisition.
(c) Subject to the satisfaction of the conditions precedent set forth
in Sections 5.3 or 5.4, as applicable, on each Property Closing Date or
the date on which the Construction Advance is to be made, as applicable,
(i) the Lenders severally shall make Loans based on their respective
Lender Commitments to the Lessor in an aggregate amount equal to
ninety-seven percent (97%) of the Requested Funds specified in any
Requisition (ratably between the Tranche A Lenders and the Tranche B
Lenders with the Tranche A Lenders funding eighty-eight percent (88%) of
the Requested Funds and the Tranche B Lenders funding nine percent (9%) of
the Requested Funds), up to an aggregate principal amount equal to the
aggregate of the Available Commitments, (ii) the Holders severally shall
make Holder Advances based on their respective Holder Commitments in an
aggregate amount equal to three percent (3%) of the balance of the
Requested Funds specified in such Requisition, up to the aggregate
advanced amount equal to the aggregate of the Available Holder
Commitments; and (iii) the total amount of such Loans and Holder Advances
made on such date shall (x) be used by the Lessor to pay Property Costs
and/or Transaction Expenses within ten (10) Business Days of the receipt
by the Lessor of such Advance unless such advance is in connection with an
Escrowed Closing (as defined in Section 5.2(d) hereof) and within ninety
(90) days of receipt by the Lessor of such Advance if such Advance is made
in connection with an Escrowed Closing or (y) be advanced by the Lessor on
the date of such Advance to the Construction Agent or the Lessee to pay
Property Costs, as applicable. Notwithstanding that the Operative
Agreements state that Advances shall be directed to the Lessor, each
Advance shall in fact be directed to the Agent (for the benefit of the
Lessor) and applied by the Agent (for the benefit of the Lessor) pursuant
to the requirements imposed on the Lessor under the Operative Agreements.
(d) With respect to an Advance obtained by the Lessor to pay for
Property Costs and/or Transaction Expenses or other costs payable under
Section 7.1 hereof and not expended by the Lessor for such purpose on the
date of such Advance, such amounts shall either (i) be held by the Lessor
(or the Agent on behalf of the Lessor) until the applicable closing date
and applied for such purpose on such closing date or (ii) be held by an
escrow agent on behalf of the Lessor until the applicable closing date
pursuant to an escrow agreement in a form acceptable to the Agent and
applied for such purpose in accordance with the terms and subject to the
conditions set forth in such escrow agreement (an "Escrowed Closing"). If
the closing does not occur within ten (10) Business Days (or within ninety
(90) days in the case of an Escrowed Closing) of the date of the Lessor's
receipt of such Advance, such amounts shall be applied regarding the
applicable Advance to repay the Lenders and the Holders and, subject to
the terms hereof, and of the Credit Agreement and the Trust Agreement,
shall become upon such repayment available for future Advances. Amounts
paid pursuant to Section 5.13 of this Agreement or otherwise in connection
with a Terminated Property shall become upon such repayment available for
future Advances up to but not to exceed the aggregate amount of the
Advances made for the Terminated Property. Any such amounts held by the
Lessor (or the Agent or escrow agent on behalf of the Lessor) shall be
subject to the lien of the Security Agreement.
(e) All Operative Agreements which are to be delivered to the Lessor,
the Agent, the Lenders or the Holders shall be delivered to the Agent, on
behalf of the Lessor, the Agent, the Lenders or the Holders, and such
items (except for Notes, Certificates, Bills of Sale, the Ground Leases
and chattel paper originals, with respect to which in each case there
shall be only one original) shall be delivered with originals sufficient
for the Lessor, the Agent, each Lender and each Holder. All other items
which are to be delivered to the Lessor, the Agent, the Lenders or the
Holders shall be delivered to the Agent, on behalf of the Lessor, the
Agent, the Lenders or the Holders, and such other items shall be held by
the Agent. To the extent any such other items are requested in writing
from time to time by the Lessor, any Lender or any Holder, the Agent shall
provide a copy of such item to the party requesting it.
(f) Notwithstanding the completion of any closing under this
Agreement pursuant to Sections 5.3 or 5.4, each condition precedent in
connection with any such closing may be subsequently enforced by the Agent
(unless such has been expressly waived in writing by the Agent, acting at
the direction of the Majority Secured Parties).
5.3. Conditions Precedent for the Lessor, the Agent, the Lenders and the
Holders Relating to the Initial Closing Date and the Advance of Funds
for the Acquisition of a Property.
The obligations (i) on the Initial Closing Date of the Lessor, the Agent,
the Lenders and the Holders to enter into the transactions contemplated by this
Agreement, including without limitation the obligation to execute and deliver
the applicable Operative Agreements to which each is a party on the Initial
Closing Date, (ii) on the Initial Closing Date of the Holders to make Holder
Advances, and of the Lenders to make Loans in order to pay Transaction Expenses,
fees, expenses and other disbursements payable by the Lessor under Section
7.1(a) of this Agreement and (iii) on a Property Closing Date of the Holder to
make Holder Advances and of the Lenders to make Loans for the purpose of
providing funds to the Lessor necessary to pay the Transaction Expenses, fees,
expenses and other disbursements payable by the Lessor under Section 7.1(b) of
this Agreement and to acquire or ground lease a Property (an "Acquisition
Advance"), in each case (with regard to the foregoing Sections 5.3(i), (ii) and
(iii)) are subject to the satisfaction or waiver of the following conditions
precedent on or prior to the Initial Closing Date or the applicable Property
Closing Date, as the case may be (to the extent such conditions precedent
require the delivery of any agreement, certificate, instrument, memorandum,
legal or other opinion, appraisal, commitment, title insurance commitment, lien
report or any other document of any kind or type, such shall be in form and
substance satisfactory to the Agent, in its reasonable discretion;
notwithstanding the foregoing, the obligations of each party shall not be
subject to any conditions contained in this Section 5.3 which are required to be
performed by such party):
(a) the correctness (as to the Lessee, only in all material respects)
of the representations and warranties of the parties to this Agreement
contained herein, in each of the other Operative Agreements and each
certificate delivered pursuant to any Operative Agreement (including
without limitation the Incorporated Representations and Warranties) on
each such date;
(b) the performance by the parties to this Agreement of their
respective agreements contained herein and in the other Operative
Agreements to be performed by them on or prior to each such date;
(c) the Agent shall have received a fully executed counterpart copy
of the Requisition, appropriately completed;
(d) title to each such Property shall conform to the representations
and warranties set forth in Section 6.2(l) hereof;
(e) the Construction Agent shall have delivered to the Agent a good
standing certificate for the Construction Agent in the state where each
such Property is located, the Deed with respect to the Land and existing
Improvements (if any), a copy of the Ground Lease (if any), and a copy of
the Xxxx of Sale with respect to the Equipment (if any), respecting such
of the foregoing as are being acquired or ground leased on each such date
with the proceeds of the Loans and Holder Advances or which have been
previously acquired or ground leased with the proceeds of the Loans and
Holder Advances and such Land, existing Improvements (if any) and
Equipment (if any) shall be located in an Approved State;
(f) there shall not have occurred and be continuing any Default or
Event of Default under any of the Operative Agreements and no Default or
Event of Default under any of the Operative Agreements will have occurred
after giving effect to the Advance requested by each such Requisition;
(g) the Construction Agent shall have delivered to the Agent title
insurance commitments to issue policies respecting each such Property in
favor of the Lessor (as fee simple owner of each such Property, and the
Construction Agent shall use all commercially reasonable efforts to obtain
a special endorsement (to the extent such special endorsement does not
exceed $500 in cost) providing that in the event the Lease respecting any
such Property is ever deemed to be a mortgage, such policy insures the
interests of the Lessor as a mortgagee) and the Agent from a title
insurance company acceptable to the Agent, with such title exceptions
thereto as are acceptable to the Agent;
(h) the Construction Agent shall have delivered to the Agent an
environmental site assessment respecting each such Property prepared by an
independent recognized professional acceptable to the Agent;
(i) the Construction Agent shall have delivered to the Agent a survey
(with a flood hazard certification) respecting each such Property prepared
by an independent recognized professional acceptable to the Agent;
(j) unless such an opinion has previously been delivered with respect
to a particular state, the Construction Agent shall have caused to be
delivered to the Agent a legal opinion in the form attached hereto as
Exhibit B or in such other form (excluding zoning, permits or similar land
use, development or construction laws) as is reasonably acceptable to the
Agent with respect to local law real property issues respecting the state
in which each such Property is located addressed to the Lessor, the Agent,
the Lenders and the Holders, from counsel located in the state where each
such Property is located, prepared by counsel acceptable to the Agent and
a separate flood hazard certificate respecting each such Property prepared
by an independent recognized professional acceptable to the Agent;
(k) the Agent shall be satisfied that the acquisition, ground leasing
and/or holding of each such Property and the execution of the Mortgage
Instrument and the other Security Documents will not materially and
adversely affect the rights of the Lessor, the Agent, the Holders or the
Lenders under or with respect to the Operative Agreements;
(l) the Construction Agent shall have delivered to the Agent copies
of invoices for, or other reasonably satisfactory evidence of, the various
Transaction Expenses and other fees, expenses and disbursements referenced
in Sections 7.1(a) or 7.1(b) of this Agreement, as appropriate;
(m) the Construction Agent shall have caused to be delivered to the
Agent a Mortgage Instrument (in such form as is acceptable to the Agent,
with revisions as necessary to conform to applicable state law), Lessor
Financing Statements and Lender Financing Statements respecting each such
Property, all fully executed and in recordable form;
(n) the Lessee shall have delivered to the Agent (or the escrow agent
in connection with an Escrowed Closing) with respect to each such Property
a Lease Supplement and a memorandum (or short form lease) regarding the
Lease and such Lease Supplement (such memorandum or short form lease to be
in the form attached to the Lease as Exhibit B or in such other form as is
acceptable to the Agent, with modifications as necessary to conform to
applicable state law, and in form suitable for recording);
(o) with respect to each Acquisition Advance, the sum of the
Available Commitment plus the Available Holder Commitment (after deducting
the Unfunded Amount, if any, and after giving effect to the Acquisition
Advance) will be sufficient to pay all amounts payable therefrom;
(p) if any such Property is subject to a Ground Lease, the
Construction Agent shall have caused a lease memorandum (or short form
lease) to be delivered to the Agent (or the escrow agent in connection
with an Escrowed Closing) for such Ground Lease and, if requested by the
Agent, a landlord waiver and a mortgagee waiver (in each case, in such
form as is reasonably acceptable to the Agent);
(q) counsel (acceptable to the Agent) for the ground lessor of each
such Property subject to a Ground Lease shall have issued to the Lessor,
the Agent, the Lenders and the Holders, its opinion;
(r) the Construction Agent shall have delivered to the Agent a
preliminary Construction Budget for each such Property, if applicable;
(s) the Construction Agent shall have provided evidence to the Agent
of insurance with respect to each such Property as provided in the Lease;
(t) subject to Section 8.3(e) of this Agreement, the Construction
Agent shall have caused an Appraisal regarding each such Property to be
provided to the Agent from an appraiser selected by the Agent;
(u) the Construction Agent shall cause (i) Uniform Commercial Code
lien searches, tax lien searches and judgment lien searches regarding the
Lessee to be conducted (and copies thereof to be delivered to the Agent)
in such jurisdictions as determined by the Agent by a nationally
recognized search company acceptable to the Agent and (ii) the liens
referenced in such lien searches which are objectionable to the Agent to
be either removed or otherwise handled in a manner satisfactory to the
Agent;
(v) all taxes, fees and other charges in connection with the
execution, delivery, recording, filing and registration of the Operative
Agreements and/or documents related thereto shall have been paid or
provisions for such payment shall have been made to the satisfaction of
the Agent;
(w) in the opinion of the Agent and its counsel, the transactions
contemplated by the Operative Agreements do not and will not subject the
Lessor, the Lenders, the Agent or the Holders to any violation of Law;
(x) each of the Operative Agreements to be entered into on such date
shall have been duly authorized, executed and delivered by the parties
thereto, and shall be in full force and effect, and the Agent shall have
received a fully executed copy of each of the Operative Agreements;
(y) since the date of the most recent audited financial statements
(as delivered pursuant to the requirements of the Lessee Credit Agreement)
of the Lessee, there shall not have occurred any event, condition or state
of facts which shall have or could reasonably be expected to have a
Material Adverse Effect; provided, the foregoing shall not prevent the
Lessee from exercising rights expressly granted to the Lessee pursuant to
the provisions of the Operative Agreements;
(z) as of the Initial Closing Date only, the Agent shall have
received an Officer's Certificate, dated as of the Initial Closing Date,
of the Lessee in the form attached hereto as Exhibit C or in such other
form as is acceptable to the Agent stating that (i) each and every
representation and warranty of each Credit Party contained in the
Operative Agreements to which it is a party is true and correct in all
material respects on and as of the Initial Closing Date; (ii) no Default
or Event of Default has occurred and is continuing under any Operative
Agreement; (iii) each Operative Agreement to which any Credit Party is a
party is in full force and effect with respect to it; and (iv) each Credit
Party has duly performed and complied with all covenants, agreements and
conditions contained herein or in any Operative Agreement required to be
performed or complied with by it on or prior to the Initial Closing Date;
(aa) as of the Initial Closing Date only, the Agent shall have
received (i) a certificate of the Secretary or an Assistant Secretary of
each Credit Party, dated as of the Initial Closing Date, in the form
attached hereto as Exhibit D or in such other form as is acceptable to the
Agent attaching and certifying as to (1) the resolutions of the Board of
Directors of such Credit Party duly authorizing the execution, delivery
and performance by such Credit Party of each of the Operative Agreements
to which it is or will be a party, (2) the articles of incorporation of
such Credit Party certified as of a recent date by the Secretary of State
of its state of incorporation and its by-laws and (3) the incumbency and
signature of persons authorized to execute and deliver on behalf of such
Credit Party the Operative Agreements to which it is or will be a party
and (ii) a good standing certificate (or local equivalent) from the
respective states where such Credit Party is incorporated and where the
principal place of business of such Credit Party is located as to its good
standing in each such state. To the extent any Credit Party is a
partnership, a limited liability company or is otherwise organized, such
Person shall deliver to the Agent (in form and substance satisfactory to
the Agent) as of the Initial Closing Date (A) a certificate regarding such
Person and any corporate general partners covering the matters described
in Exhibit D and (B) a good standing certificate, a certificate of limited
partnership or a local equivalent of either of the foregoing, as
applicable;
(bb) as of the Initial Closing Date only, there shall not have
occurred any materially adverse change in the business, financial
condition, assets or property of the Lessee and its Subsidiaries taken as
a whole as a result of any event, condition, circumstance or contingency
from that set forth in the most recent audited consolidated financial
statements of the Credit Parties which have been provided to the Agent;
(cc) as of the Initial Closing Date only, the Agent shall have
received an Officer's Certificate of the Lessor dated as of the Initial
Closing Date in the form attached hereto as Exhibit E or in such other
form as is acceptable to the Agent, stating that (i) each and every
representation and warranty of the Lessor contained in the Operative
Agreements to which it is a party is true and correct in all material
respects on and as of the Initial Closing Date, (ii) each Operative
Agreement to which the Lessor is a party is in full force and effect with
respect to it and (iii) the Lessor has duly performed and complied with
all covenants, agreements and conditions contained herein or in any
Operative Agreement required to be performed or complied with by it on or
prior to the Initial Closing Date;
(dd) as of the Initial Closing Date only, the Agent shall have
received (i) a certificate of the Secretary, an Assistant Secretary, Trust
Officer or Vice President of the Trust Company in the form attached hereto
as Exhibit F or in such other form as is acceptable to the Agent,
attaching and certifying as to (A) the signing resolutions duly
authorizing the execution, delivery and performance by the Lessor of each
of the Operative Agreements to which it is or will be a party, (B) its
articles of association or other equivalent charter documents and its
by-laws, as the case may be, certified as of a recent date by an
appropriate officer of the Trust Company and (C) the incumbency and
signature of persons authorized to execute and deliver on its behalf the
Operative Agreements to which it is a party and (ii) a good standing
certificate from the Office of the Comptroller of the Currency;
(ee) as of the Initial Closing Date only, counsel for the Lessor
acceptable to the Agent shall have issued to the Lessee, the Holders, the
Lenders and the Agent its opinion in the form attached hereto as Exhibit G
or in such other form as is reasonably acceptable to the Agent;
(ff) as of the Initial Closing Date only, the Construction Agent
shall have caused to be delivered to the Agent a legal opinion in the form
attached hereto as Exhibit H or in such other form as is reasonably
acceptable to the Agent, addressed to the Lessor, the Agent, the Lenders
and the Holders, from counsel acceptable to the Agent; and
(gg) as of the Initial Closing Date only, the Construction Agent
shall cause (i) tax lien searches and judgment lien searches regarding
each Credit Party to be conducted (and copies thereof to be delivered to
the Agent) in such jurisdictions as determined by the Agent by a
nationally recognized search company acceptable to the Agent and (ii) the
liens referenced in such lien searches which are objectionable to the
Agent to be either removed or otherwise handled in a manner satisfactory
to the Agent.
5.4. Conditions Precedent for the Lessor, the Agent, the Lenders and the
Holders Relating to the Advance of Funds after the Acquisition
Advance.
The obligations of the Holders to make Holder Advances, and the Lenders to
make Loans in connection with all requests for Advances subsequent to the
acquisition of a Property (and to pay the Transaction Expenses, fees, expenses
and other disbursements payable by the Lessor under Section 7.1 of this
Agreement in connection therewith) are subject to the satisfaction or waiver of
the following conditions precedent. (To the extent such conditions precedent
require the delivery of any agreement, certificate, instrument, memorandum,
legal or other opinion, appraisal, commitment, title insurance commitment, lien
report or any other document of any kind or type, such shall be in form and
substance satisfactory to the Agent, in its reasonable discretion.
Notwithstanding the foregoing, the obligations of each party shall not be
subject to any conditions contained in this Section 5.4 which are required to be
performed by such party.):
(a) the correctness (as to the Lessee, only in all material respects)
on such date of the representations and warranties of the parties to this
Agreement contained herein, in each of the other Operative Agreements and
in each certificate delivered pursuant to any Operative Agreement
(including without limitation the Incorporated Representations and
Warranties) as of the date given or made or deemed given or made;
(b) the performance by the parties to this Agreement of their
respective agreements contained herein and in the other Operative
Agreements to be performed by them on or prior to each such date;
(c) the Agent shall have received a fully executed counterpart of the
Requisition, appropriately completed;
(d) based upon the applicable Construction Budgets which shall
satisfy the requirements of this Agreement, the Available Commitments and
the Available Holder Commitment (after deducting the Unfunded Amount) will
be sufficient to complete the Improvements;
(e) there shall not have occurred and be continuing any Default or
Event of Default under any of the Operative Agreements and no Default or
Event of Default under any of the Operative Agreements will have occurred
after giving effect to the Construction Advance requested by the
applicable Requisition;
(f) the title insurance policy delivered in connection with the
requirements of Section 5.3(g) shall provide for (or shall be endorsed to
provide for) insurance in an amount at least equal to the maximum total
Property Cost indicated by the Construction Budget referred to in
subparagraph (d) above and there shall be no title change or exception
reasonably objectionable to the Agent;
(g) the Construction Agent shall have delivered to the Agent copies
of the Plans and Specifications for the applicable Improvements;
(h) the Construction Agent shall have delivered to the Agent invoices
for, or other reasonably satisfactory evidence of, any Transaction
Expenses and other fees, expenses and disbursements referenced in Section
7.1(b) that are to be paid with the Advance;
(i) the Construction Agent shall have delivered, or caused to be
delivered to the Agent, invoices, Bills of Sale or other documents
acceptable to the Agent, in each case with regard to any Equipment or
other components of such Property then being acquired with the proceeds of
the Loans and Holder Advances and naming the Lessor as purchaser and
transferee;
(j) all taxes, fees and other charges in connection with the
execution, delivery, recording, filing and registration of the Operative
Agreements shall have been paid or provisions for such payment shall have
been made to the satisfaction of the Agent;
(k) since the date of the most recent audited Financial Statements
(as such term is defined in the Lessee Credit Agreement) of the Lessee,
there shall not have occurred any event, condition or state of facts which
shall have or could reasonably be expected to have a Material Adverse
Effect; provided, the foregoing shall not prevent the Lessee from
exercising rights expressly granted to the Lessee pursuant to the
provisions of the Operative Agreements; and
(l) in the opinion of the Agent and its counsel, the transactions
contemplated by the Operative Agreements do not and will not subject the
Lessor, the Lenders, the Agent or the Holders to any violation of Law.
5.5. Additional Reporting and Delivery Requirements on
Completion Date and on Construction Period Termination
Date.
On or prior to the Completion Date for each Property, the Construction
Agent shall deliver to the Agent an Officer's Certificate in the form attached
hereto as Exhibit I or in such other form as is acceptable to the Agent
specifying (a) the address for such Property, (b) the Completion Date for such
Property, (c) the aggregate Property Cost for such Property, (d) detailed,
itemized documentation supporting the asserted Property Cost figures and (e)
that all representations and warranties of the Construction Agent and Lessee in
each of the Operative Agreements and each certificate delivered pursuant thereto
(including without limitation the Incorporated Representations and Warranties)
are true and correct in all material respects as of the Completion Date. The
Agent shall have the right to contest the information contained in such
Officer's Certificate. Furthermore, on or prior to the Completion Date for each
Property, the Construction Agent shall deliver or cause to be delivered to the
Agent (unless previously delivered to the Agent) originals of the following,
each of which shall be in form and substance acceptable to the Agent, in its
reasonable discretion: (w) a title insurance endorsement regarding the title
insurance policy delivered in connection with the requirements of Section
5.3(g), but only to the extent such endorsement is necessary to provide for
insurance in an amount at least equal to the maximum total Property Cost and, if
endorsed, the endorsement shall not include a title change or exception
objectionable to the Agent; (x) an as-built survey for such Property, (y)
insurance certificates respecting such Property as required hereunder and under
the Lease Agreement, and (z) if requested by the Agent, amendments to the Lessor
Financing Statements executed by the appropriate parties. In addition, on the
Completion Date for such Property the Construction Agent covenants and agrees
that the recording fees, documentary stamp taxes or similar amounts required to
be paid in connection with the related Mortgage Instrument shall be paid in an
amount required by applicable law, subject, however, to the obligations of the
Lenders and the Holders to fund such costs to the extent required pursuant to
Section 7.1.
5.6. The Construction Agent's Delivery of Construction
Budget Modifications.
The Construction Agent covenants and agrees to deliver to the Agent each
month notification of any modification to any Construction Budget regarding any
Property if such modification increases the cost to construct such Property;
provided no Construction Budget may be increased unless (a) the title insurance
policies referenced in Section 5.3(g) are also modified or endorsed, if
necessary, to provide for insurance in an amount that satisfies the requirements
of Section 5.4(f) of this Agreement and (b) after giving effect to any such
amendment, the Construction Budget remains in compliance with the requirements
of Section 5.4(d) of this Agreement.
5.7. Restrictions on Liens.
On each Property Closing Date, the Construction Agent shall cause each
Property acquired by the Lessor on such date to be free and clear of all Liens
except those referenced in Sections 6.2(r)(i) and 6.2(r)(ii). On each date a
Property is either sold to a third party in accordance with the terms of the
Operative Agreements or, pursuant to Section 22.1(a) of the Lease Agreement,
retained by the Lessor, the Lessee shall cause such Property to be free and
clear of all Liens (other than Lessor Liens and such other Liens that are
expressly set forth as title exceptions on the title commitment issued under
Section 5.3(g) with respect to such Property, to the extent such title
commitment has been approved or accepted by the Agent).
5.8 Joinder Agreement Requirements.
Each Domestic Subsidiary formed or acquired subsequent to the Initial
Closing Date shall become a Guarantor and shall satisfy the following conditions
within thirty (30) days after the formation or acquisition of such Domestic
Subsidiary:
(a) such Domestic Subsidiary shall execute and deliver to the Agent a
Joinder Agreement in the form attached hereto as Exhibit J;
(b) such Domestic Subsidiary shall have delivered to the Agent (x) an
Officer's Certificate of such Domestic Subsidiary in the form attached
hereto as Exhibit C, (y) a certificate of the Secretary or an Assistant
Secretary of such Domestic Subsidiary in the form attached hereto as
Exhibit D and (z) good standing certificates (or local equivalent) from
the respective states where such Domestic Subsidiary is incorporated or
organized and where the principal place of business of such Domestic
Subsidiary is located as to its good standing in each such state;
(c) such Domestic Subsidiary shall have delivered to the Agent an
opinion of counsel (acceptable to the Agent) in the form attached hereto
as Exhibit H; and
(d) the Agent shall have received such other documents, certificates
and information as the Agent shall have reasonably requested.
5.9 [Intentionally Omitted].
5.10.Payments.
All payments of principal, interest, Holder Advances, Holder Yield and
other amounts to be made by the Construction Agent or the Lessee under this
Agreement or any other Operative Agreements (excluding Excepted Payments which
shall be paid directly to the party to whom such payments are owed) shall be
made to the Agent at the office designated by the Agent from time to time in
Dollars and in immediately available funds, without setoff, deduction, or
counterclaim. Subject to the definition of "Interest Period" in Appendix A
attached hereto, whenever any payment under this Agreement or any other
Operative Agreements shall be stated to be due on a day that is not a Business
Day, such payment may be made on the next succeeding Business Day, and such
extension of time in such case shall be included in the computation of interest,
Holder Yield and fees payable pursuant to the Operative Agreements, as
applicable and as the case may be.
5.11.Increase in Holder Commitments and Lender Commitments.
From time to time prior to the Construction Period Termination Date and
upon no less than thirty (30) Business Days' notice delivered to the Agent, the
Construction Agent on behalf of the Owner Trustee may elect to increase the
Holder Commitments and the Lender Commitments of each Holder and each Lender,
ratably, by an amount equal to the aggregate proposed amount of increase
multiplied by (x) in the case of each Holder, the fraction in which the
numerator is the Holder Commitment of such Holder and the denominator is the sum
of all Holder Commitments and all Lender Commitments and (y) in the case of each
Lender, the fraction in which the numerator is the Lender Commitment of such
Lender and the denominator is the sum of all Holder Commitments and all Lender
Commitments; provided, no such increase in the Holder Commitments and/or the
Lender Commitments shall be effective, valid or enforceable unless: (a) there
shall be a concurrent, dollar for dollar reduction in the Lessee Credit
Agreement Commitment Amount of each lender thereunder corresponding to the
increase in the Holder Commitments and the Lender Commitments, (b) no Default or
Event of Default shall have occurred and be continuing as of the date such
increase is to be made and (c) in the aggregate, all such increases in the
Holder Commitments and the Lender Commitments from time to time shall not exceed
forty million Dollars ($40,000,000). Each party to this Agreement agrees to the
above-referenced mechanics for increases in the Holder Commitments and the
Lender Commitments. The Agent shall promptly notify each Holder and each Lender
upon receipt by the Agent of any notice pursuant to the first sentence of this
Section 5.11.
5.12.Modifications of Schedules Reflecting Holder
Commitments and/or Lender Commitments.
To the extent the Holder Commitments and/or the Lender Commitments are
increased or decreased in accordance with the terms of the Operative Agreements,
then the Agent shall prepare and distribute a replacement Schedule I for the
Trust Agreement and a replacement Schedule 1.1 for the Credit Agreement which,
in each case, shall be binding and enforceable against all parties (absent
manifest error).
5.13.Substitution of Properties.
From time to time and upon no less than thirty (30) days prior notice to
the Agent, Lessee may request to substitute a property (the "Substitute
Property") for another Property then subject to the Operative Agreements (the
"Terminated Property"). The Financing Parties shall permit the substitution of
the Substitute Property so long as all conditions precedent for the Substitute
Property are satisfied pursuant to the Operative Agreements (including without
limitation Section 5.3 of this Agreement) prior to the date specified for such
substitution and the Fair Market Sales Value of the Substitute Property is equal
to or greater than the Fair Market Sales Value of the Terminated Property, such
determination of Fair Market Sales Value to be determined by the Appraisal
Procedure and to the extent Appraisals are required, such Appraisals to be
conducted within sixty (60) days prior to the date specified for such
substitution. The Terminated Property shall be sold to the Lessee pursuant to
Sections 20.1 and 20.2 of the Lease but shall not count against the limited
number of Properties which may be purchased by the Lessee prior to the
Expiration Date.
5.14.Minimum Size of Construction Advance.
The Holders and the Lenders shall have no obligation to make Advances
at any time for modifications, improvements or the like regarding any Property
unless each such Advance is in excess of five hundred Dollars ($500) per bed per
Property.
5.15.Time Limit for Acquisition of Properties.
On and after the Construction Period Termination Date, (a) the Owner
Trustee shall not acquire any Property (subject, however, to Section 5.13) and
(b) no Financing Party shall be required to make any Advance for the acquisition
of any Property.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
6.1. Representations and Warranties of the Borrower.
Effective as of the Initial Closing Date and the date of each Advance, the
Trust Company in its individual capacity and as the Borrower, as indicated,
represents and warrants to each of the other parties hereto as follows,
provided, that the representations in the following paragraphs (h), (j) and (k)
are made solely in its capacity as the Borrower:
(a) It is a national banking association and is duly organized and
validly existing and in good standing under the laws of the United States
of America and has the power and authority to enter into and perform its
obligations under the Trust Agreement and (assuming due authorization,
execution and delivery of the Trust Agreement by the Holders) has the
corporate and trust power and authority to act as the Owner Trustee and to
enter into and perform the obligations under each of the other Operative
Agreements to which the Trust Company or the Owner Trustee, as the case
may be, is or will be a party and each other agreement, instrument and
document to be executed and delivered by it on or before such Closing Date
in connection with or as contemplated by each such Operative Agreement to
which the Trust Company or the Owner Trustee, as the case may be, is or
will be a party;
(b) The execution, delivery and performance of each Operative
Agreement to which it is or will be a party, either in its individual
capacity or (assuming due authorization, execution and delivery of the
Trust Agreement by the Holders) as the Owner Trustee, as the case may be,
has been duly authorized by all necessary action on its part and neither
the execution and delivery thereof, nor the consummation of the
transactions contemplated thereby, nor compliance by it with any of the
terms and provisions thereof (i) does or will require any approval or
consent of any trustee or holders of any of its indebtedness or
obligations, (ii) does or will contravene any Legal Requirement relating
to its banking or trust powers, (iii) does or will contravene or result in
any breach of or constitute any default under, or result in the creation
of any Lien upon any of its property under, (A) its charter or by-laws, or
(B) any indenture, mortgage, chattel mortgage, deed of trust, conditional
sales contract, bank loan or credit agreement or other agreement or
instrument to which it is a party or by which it or its properties may be
bound or affected, which contravention, breach, default or Lien under
clause (B) would materially and adversely affect its ability, in its
individual capacity or as the Owner Trustee, to perform its obligations
under the Operative Agreements to which it is a party or (iv) does or will
require any Governmental Action by any Governmental Authority regulating
its banking or trust powers;
(c) The Trust Agreement and, assuming the Trust Agreement is the
legal, valid and binding obligation of the Holders, each other Operative
Agreement to which the Trust Company or the Owner Trustee, as the case may
be, is or will be a party have been, or on or before such Closing Date
will be, duly executed and delivered by the Trust Company or the Owner
Trustee, as the case may be, and the Trust Agreement and each such other
Operative Agreement to which the Trust Company or the Owner Trustee, as
the case may be, is a party constitutes, or upon execution and delivery
will constitute, a legal, valid and binding obligation enforceable against
the Trust Company or the Owner Trustee, as the case may be, in accordance
with the terms thereof;
(d) There is no action or proceeding pending or, to its knowledge,
threatened to which it is or will be a party, either in its individual
capacity or as the Owner Trustee, before any Governmental Authority that,
if adversely determined, would materially and adversely affect its
ability, in its individual capacity or as the Owner Trustee, to perform
its obligations under the Operative Agreements to which it is a party or
would question the validity or enforceability of any of the Operative
Agreements to which it is or will become a party;
(e) It has not assigned or transferred any of its right, title or
interest in or under the Lease, the Agency Agreement or its interest in
any Property or any portion thereof, except in accordance with the
Operative Agreements;
(f) No Default of Event of Default under the Operative Agreements
attributable to it has occurred and is continuing;
(g) Except as otherwise contemplated in the Operative Agreements, the
proceeds of the Loans and Holder Advances shall not be applied by the
Owner Trustee for any purpose other than the purchase and/or lease of the
Properties, the acquisition, installation and testing of the Equipment,
the construction of Improvements and the payment of Transaction Expenses
and the fees, expenses and other disbursements referenced in Sections
7.1(a) and 7.1(b) of this Agreement, in each case which accrue prior to
the Rent Commencement Date with respect to a particular Property;
(h) Neither the Owner Trustee nor any Person authorized by the Owner
Trustee to act on its behalf has offered or sold any interest in the Trust
Estate or the Notes, or in any similar security relating to a Property, or
in any security the offering of which for the purposes of the Securities
Act would be deemed to be part of the same offering as the offering of the
aforementioned securities to, or solicited any offer to acquire any of the
same from, any Person other than, in the case of the Notes, the Agent, and
neither the Owner Trustee nor any Person authorized by the Owner Trustee
to act on its behalf will take any action which would subject, as a direct
result of such action alone, the issuance or sale of any interest in the
Trust Estate or the Notes to the provisions of Section 5 of the Securities
Act or require the qualification of any Operative Agreement under the
Trust Indenture Act of 1939, as amended;
(i) The Owner Trustee's principal place of business, chief executive
office and office where the documents, accounts and records relating to
the transactions contemplated by this Agreement and each other Operative
Agreement are kept are located at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx,
Xxxx 00000;
(j) The Owner Trustee is not engaged principally in, and does not
have as one (1) of its important activities, the business of extending
credit for the purpose of purchasing or carrying any margin stock (within
the meaning of Regulation U of the Board of Governors of the Federal
Reserve System of the United States), and no part of the proceeds of the
Loans or the Holder Advances will be used by it to purchase or carry any
margin stock or to extend credit to others for the purpose of purchasing
or carrying any such margin stock or for any purpose that violates, or is
inconsistent with, the provisions of Regulations T, U, or X of the Board
of Governors of the Federal Reserve System of the United States;
(k) The Owner Trustee is not an "investment company" or a company
controlled by an "investment company" within the meaning of the Investment
Company Act;
(l) Each Property is free and clear of all Lessor Liens attributable
to the Owner Trustee in its individual capacity; and
(m) The Owner Trustee, in its trust capacity, is a party to no
documents, instruments or agreements other than the Operative Agreements
to which it is a party and any other documents delivered by the Owner
Trustee in connection with the Operative Agreements.
6.2. Representations and Warranties of the Construction Agent and the
Lessee.
Effective as of the Initial Closing Date, the date of each Advance, the
date each Domestic Subsidiary delivers a Joinder Agreement and the Rent
Commencement Date, each Credit Party represents and warrants to each of the
other parties hereto that:
(a) The Incorporated Representations and Warranties are true and
correct in all material respects (unless such relate solely to an earlier
point in time) and the Lessee has delivered to the Agent the financial
statements and other reports referred to in Section 3 of the Lessee Credit
Agreement;
(b) The execution and delivery by each Credit Party of this Agreement
and the other applicable Operative Agreements as of such date and the
performance by each Credit Party of its respective obligations under this
Agreement and the other applicable Operative Agreements are within the
corporate, partnership or limited liability company (as the case may be)
powers of each Credit Party, have been duly authorized by all necessary
corporate, partnership or limited liability company (as the case may be)
action on the part of each Credit Party (including without limitation any
necessary shareholder action), have been duly executed and delivered, have
received all necessary governmental approval, and do not and will not (i)
violate any Legal Requirement which is binding on any Credit Party or any
of its Subsidiaries, (ii) contravene or conflict with, or result in a
breach of, any provision of the Articles of Incorporation, By-Laws or
other organizational documents of any Credit Party or any of its
Subsidiaries or of any agreement, indenture, instrument or other document
which is binding on any Credit Party or any of its Subsidiaries or (iii)
result in, or require, the creation or imposition of any Lien (other than
pursuant to the terms of the Operative Agreements) on any asset of any
Credit Party or any of its Subsidiaries;
(c) This Agreement and the other applicable Operative Agreements,
executed prior to and as of such date by any Credit Party, constitute the
legal, valid and binding obligation of such Credit Party, as applicable,
enforceable against such Credit Party, as applicable, in accordance with
their terms. Each Credit Party has executed the various Operative
Agreements required to be executed by such Credit Party as of such date;
(d) Except as described in Exhibit K, there are no material actions,
suits or proceedings pending or, to our knowledge, threatened against any
Credit Party in any court or before any Governmental Authority (nor shall
any order, judgment or decree have been issued or proposed to be issued by
any Governmental Authority to set aside, restrain, enjoin or prevent the
full performance of any Operative Agreement or any transaction
contemplated thereby) that (i) concern any Property or any Credit Party's
interest therein, (ii) question the validity or enforceability of any
Operative Agreement to which any Credit Party is a party or the overall
transaction described in the Operative Agreements to which any Credit
Party is a party or (iii) have or could reasonably be expected to have a
Material Adverse Effect;
(e) No Governmental Action by any Governmental Authority or other
authorization, registration, consent, approval, waiver, notice or other
action by, to or of any other Person pursuant to any Legal Requirement,
contract, indenture, instrument or agreement or for any other reason is
required to authorize or is required in connection with (i) the execution,
delivery or performance of any Operative Agreement, (ii) the legality,
validity, binding effect or enforceability of any Operative Agreement,
(iii) the acquisition, ownership, construction, completion, occupancy,
operation, leasing or subleasing of any Property or (iv) any Advance, in
each case, except those which have been obtained and are in full force and
effect;
(f) Upon the execution and delivery of each Lease Supplement to the
Lease, (i) the Lessee will have unconditionally accepted the Property
subject to the Lease Supplement and will have a valid and subsisting
leasehold interest in such Property, subject only to the Permitted Liens,
and (ii) no offset will exist with respect to any Rent or other sums
payable under the Lease;
(g) Except as otherwise contemplated by the Operative Agreements, the
Construction Agent shall not use the proceeds of any Holder Advance or
Loan for any purpose other than the purchase and/or lease of the
Properties, the acquisition, installation and testing of the Equipment,
the construction of Improvements and the payment of Transaction Expenses
and the fees, expenses and other disbursements referenced in Sections
7.1(a) and 7.1(b) of this Agreement, in each case which accrue prior to
the Rent Commencement Date with respect to a particular Property;
(h) All information heretofore or contemporaneously herewith
furnished by each Credit Party or its Subsidiaries to the Agent, the Owner
Trustee, any Lender or any Holder for purposes of or in connection with
this Agreement and the transactions contemplated hereby is, and all
information hereafter furnished by or on behalf of each Credit Party or
its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder
pursuant hereto or in connection herewith will be, true and accurate in
every material respect on the date as of which such information is dated
or certified, and such information, taken as a whole, does not and will
not omit to state any material fact necessary to make such information,
taken as a whole, not misleading;
(i) The principal place of business, chief executive office and
office of the Construction Agent and the Lessee where the documents,
accounts and records relating to the transactions contemplated by this
Agreement and each other Operative Agreement are kept are located at 000
Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, in DeKalb
County, Georgia and the states of formation and the chief executive
offices of each other Credit Party are located at the places set forth in
Exhibit L;
(j) The representations and warranties of each Credit Party set forth
in any of the Operative Agreements are true and correct in all material
respects on and as of each such date as if made on and as of such date.
Each Credit Party is in all material respects in compliance with its
obligations under the Operative Agreements and there exists no Default or
Event of Default under any of the Operative Agreements which is continuing
and which has not been cured within any cure period expressly granted
under the terms of the applicable Operative Agreement or otherwise waived
in accordance with the applicable Operative Agreement. No Default or Event
of Default will occur under any of the Operative Agreements as a result
of, or after giving effect to, the Advance requested by the Requisition on
the date of each Advance;
(k) As of each Property Closing Date, the date of each subsequent
Advance and the Rent Commencement Date only, each Property then being
financed consists of (i) unimproved Land or (ii) Land and existing
Improvements thereon which Improvements are either suitable for occupancy
at the time of acquisition or ground leasing or will be renovated and/or
modified in accordance with the terms of this Agreement. Each Property
then being financed is located at the location set forth on the applicable
Requisition, each of which is in one (1) of the Approved States;
(l) As of each Property Closing Date, the date of each subsequent
Advance and the Rent Commencement Date only, the Lessor has good and
marketable fee simple title to each Property, or, if any Property is the
subject of a Ground Lease, the Lessor will have a valid ground leasehold
interest enforceable against the ground lessor of such Property in
accordance with the terms of such Ground Lease, subject only to (i) such
Liens referenced in Sections 6.2(r)(i) and 6.2(r)(ii) on the applicable
Property Closing Date and (ii) subject to Section 5.7, Permitted Liens
after the applicable Property Closing Date;
(m) As of each Property Closing Date, the date of each subsequent
Advance and the Rent Commencement Date only, no portion of any Property is
located in an area identified as a special flood hazard area by the
Federal Emergency Management Agency or other applicable agency, or if any
such Property is located in an area identified as a special flood hazard
area by the Federal Emergency Management Agency or other applicable
agency, then flood insurance has been obtained for such Property in
accordance with Section 14.2(b) of the Lease and in accordance with the
National Flood Insurance Act of 1968, as amended;
(n) As of each Property Closing Date, the date of each subsequent
Advance and the Rent Commencement Date only, each Property complies with
all Insurance Requirements and, in all material respects, all standards of
Lessee with respect to similar properties owned by Lessee;
(o) As of each Property Closing Date, the date of each subsequent
Advance and the Rent Commencement Date only, each Property complies with
all Legal Requirements as of such date (including without limitation all
zoning and land use laws and Environmental Laws), except to the extent
that failure to comply therewith, individually or in the aggregate, shall
not have and could not reasonably be expected to have a Material Adverse
Effect;
(p) As of each Property Closing Date, the date of each subsequent
Advance and the Rent Commencement Date only, all utility services and
facilities necessary for the construction and operation of the
Improvements and the installation and operation of the Equipment regarding
each Property (including without limitation gas, electrical, water and
sewage services and facilities) are available at the applicable Land or
will be constructed prior to the Completion Date for such Property;
(q) As of each Property Closing Date, the date of each subsequent
Advance and the Rent Commencement Date only, acquisition, installation and
testing of the Equipment (if any) and construction of the Improvements (if
any) to such date shall have been performed in a good and workmanlike
manner, substantially in accordance with the applicable Plans and
Specifications;
(r) (i) The Security Documents create, as security for the
Obligations (as such term is defined in the Security Agreement),
valid and enforceable security interests in, and Liens on, all of the
Collateral, in favor of the Agent, for the ratable benefit of the
Lenders and the Holders, as their respective interests appear in the
Operative Agreements, and such security interests and Liens are
subject to no other Liens other than Liens that are expressly set
forth as title exceptions on the title commitment issued under
Section 5.3(g) with respect to the applicable Property, to the extent
such title commitment has been approved by the Agent. Upon
recordation of the Mortgage Instrument in the real estate recording
office in the applicable Approved State identified by the
Construction Agent or the Lessee, the Lien created by the Mortgage
Instrument in the real property described therein shall be a
perfected first priority mortgage Lien on such real property in favor
of the Agent, for the ratable benefit of the Lenders and the Holders,
as their respective interests appear in the Operative Agreements, and
(subject to Section 5.7) Permitted Liens after the applicable
Property Closing Date. To the extent that the security interests in
the portion of the Collateral comprised of personal property can be
perfected by filing in the filing offices in the applicable Approved
States or elsewhere identified by the Construction Agent or the
Lessee, upon filing of the Lender Financing Statements in such filing
offices, the security interests created by the Security Agreement
shall be perfected first priority security interests in such personal
property in favor of the Agent, for the ratable benefit of the
Lenders and the Holders, as their respective interests appear in the
Operative Agreements, and (subject to Section 5.7) Permitted Liens
after the applicable Property Closing Date;
(ii) The Lease Agreement creates, as security for the
obligations of the Lessee under the Lease Agreement, valid and
enforceable security interests in, and Liens on, each Property leased
thereunder, in favor of the Lessor, and such security interests and
Liens are subject to no other Liens other than (aa) Liens that are
expressly set forth as title exceptions on the title commitment
issued under Section 5.3(g) with respect to the applicable Property,
to the extent such title commitment has been approved by the Agent,
and (bb) (subject to Section 5.7) Permitted Liens after the
applicable Property Closing Date. Upon recordation of the memorandum
of the Lease Agreement and the memorandum of a Ground Lease (or, in
either case, a short form lease) in the real estate recording office
in the applicable Approved State identified by the Construction Agent
or the Lessee, the Lien created by the Lease Agreement in the real
property described therein shall be a perfected first priority
mortgage Lien on such real property in favor of the Agent, for the
ratable benefit of the Lenders and the Holders, as their respective
interests appear in the Operative Agreements. To the extent that the
security interests in the portion of any Property comprised of
personal property can be perfected by the filing in the filing
offices in the applicable Approved State or elsewhere identified by
the Construction Agent or the Lessee upon filing of the Lessor
Financing Statements in such filing offices, a security interest
created by the Lease Agreement shall be perfected first priority
security interests in such personal property in favor of the Lessor,
which rights pursuant to the Lessor Financing Statements are assigned
to the Agent, for the ratable benefit of the Lenders and the Holders,
as their respective interests appear in the Operative Agreements;
(s) The Plans and Specifications for each Property will be prepared
prior to the commencement of construction in accordance with all
applicable Legal Requirements (including without limitation all applicable
Environmental Laws and building, planning, zoning and fire codes), except
to the extent the failure to comply therewith, individually or in the
aggregate, shall not have and could not reasonably be expected to have a
Material Adverse Effect. Upon completion of the Improvements for each
Property in accordance with the applicable Plans and Specifications, such
Improvements will be within any building restriction lines and will not
encroach in any manner onto any adjoining land (except as permitted by
express written easements, which have been approved by the Agent);
(t) As of the Rent Commencement Date only, each Property shall be
improved substantially in accordance with the applicable Plans and
Specifications and in a good and workmanlike manner and shall be
operational;
(u) As of the Initial Closing Date, each Domestic Subsidiary (formed
prior to or on such date) shall have executed this Agreement in its
capacity as a Guarantor;
(v) As of each Property Closing Date only, each Property has been
acquired or ground leased pursuant to a Ground Lease at a price that is
not materially in excess of fair market value or fair market rental value,
as the case may be;
(w) Respecting each Property for which no Appraisal satisfying the
requirements of the Operative Agreements has been provided to the Agent,
the anticipated Property Cost for all such Properties which have the same
Property Closing Date (determined pursuant to the Construction Budget
therefor) does not exceed eight (8) times the pro forma EBITDA for all
such Properties and the actual Property Cost for all such Properties does
not exceed eight (8) times the pro forma EBITDA for all such Properties;
and
(x) Each Credit Party has (i) initiated a review and assessment of
all areas within its and each of its Subsidiaries' business and operations
(including those affected by suppliers, vendors and customers of each
Credit Party and the Subsidiaries of each Credit Party) that could be
adversely affected by the Year 2000 Problem, (ii) developed a plan and
timeline for addressing the Year 2000 Problem on a timely basis and (iii)
to date, implemented that plan in accordance with that timetable. Based on
the foregoing, each Credit Party believes that all computer applications
(including those of suppliers, vendors and customers of each Credit Party
and the Subsidiaries of each Credit Party) that are material to its or any
of its Subsidiaries' business and operations are reasonably expected on a
timely basis to be able to perform properly date-sensitive functions for
all dates before and after January 1, 2000 (that is, be "Year 2000
Compliant"), except to the extent that a failure to do so shall not have
and could not reasonably be expected to have a Material Adverse Effect.
SECTION 6B. GUARANTY
6B.1.Guaranty of Payment and Performance.
Subject to Section 6B.7, each Guarantor hereby, jointly and severally,
unconditionally guarantees to each Financing Party the prompt payment and
performance of the Company Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration or otherwise) or when such
is otherwise to be performed; provided, notwithstanding the foregoing, the
obligations of the Guarantors under this Section 6B shall not constitute a
direct guaranty of the indebtedness of the Lessor evidenced by the Notes but
rather a guaranty of the Company Obligations arising under the Operative
Agreements. This Section 6B is a guaranty of payment and performance and not of
collection and is a continuing guaranty and shall apply to all Company
Obligations whenever arising. All rights granted to the Financing Parties under
this Section 6B shall be subject to the provisions of Section 8.2(h) and 8.6.
6B.2.Obligations Unconditional.
Each Guarantor agrees that the obligations of the Guarantors hereunder are
absolute and unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Operative Agreements, or any other
agreement or instrument referred to therein, or any substitution, release or
exchange of any other guarantee of or security for any of the Company
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety, guarantor or
co-obligor, it being the intent of this Section 6B.2 that the obligations of the
Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that this Section 6B may be enforced by the
Financing Parties without the necessity at any time of resorting to or
exhausting any other security or collateral and without the necessity at any
time of having recourse to the Notes, the Certificates or any other of the
Operative Agreements or any collateral, if any, hereafter securing the Company
Obligations or otherwise and each Guarantor hereby waives the right to require
the Financing Parties to proceed against the Construction Agent, the Lessee or
any other Person (including without limitation a co-guarantor) or to require the
Financing Parties to pursue any other remedy or enforce any other right. Each
Guarantor further agrees that it hereby subordinates any and all right of
subrogation, indemnity, reimbursement or contribution against the Lessee and the
Construction Agent or any other Guarantor of the Company Obligations for amounts
paid under this Section 6B until such time as the Loans, Holder Advances,
accrued but unpaid interest, accrued but unpaid Holder Yield and all other
amounts owing under the Operative Agreements have been paid in full, and each
Guarantor further agrees not to assert any such right until the Financing
Parties have been paid in full with respect to all amounts owed under or
pursuant to the Operative Agreements. Without limiting the generality of the
waiver provisions of this Section 6B, each Guarantor hereby waives any rights to
require the Financing Parties to proceed against the Construction Agent, the
Lessee or any co-guarantor or to require Lessor to pursue any other remedy or
enforce any other right, including without limitation, any and all rights under
N.C. Gen. Stat. ss. 26-7 through 26-9. Each Guarantor further agrees that
nothing contained herein shall prevent the Financing Parties from suing on any
Operative Agreement or foreclosing any security interest in or Lien on any
collateral, if any, securing the Company Obligations or from exercising any
other rights available to it under any Operative Agreement, or any other
instrument of security, if any, and the exercise of any of the aforesaid rights
and the completion of any foreclosure proceedings shall not constitute a
discharge of any Guarantor's obligations hereunder; it being the purpose and
intent of each Guarantor that its obligations hereunder shall be absolute,
independent and unconditional under any and all circumstances; provided that any
amounts due under this Section 6B which are paid to or for the benefit of any
Financing Party shall reduce the Company Obligations by a corresponding amount
(unless required to be rescinded at a later date). Neither any Guarantor's
obligations under this Section 6B nor any remedy for the enforcement thereof
shall be impaired, modified, changed or released in any manner whatsoever by an
impairment, modification, change, release or limitation of the liability of the
Construction Agent or the Lessee or by reason of the bankruptcy or insolvency of
the Construction Agent or the Lessee or any other Credit Party. Each Guarantor
waives any and all notice of the creation, renewal, extension or accrual of any
of the Company Obligations and notice of or proof of reliance by any Financing
Party upon this Section 6B or acceptance of this Section 6B. The Company
Obligations shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon this Section
6B. All dealings between the Construction Agent, the Lessee and any of the
Guarantors, on the one hand, and the Financing Parties, on the other hand,
likewise shall be conclusively presumed to have been had or consummated in
reliance upon this Section 6B.
6B.3.Modifications.
Each Guarantor agrees that (a) all or any part of the security now or
hereafter held for the Company Obligations, if any, may be exchanged,
compromised or surrendered from time to time; (b) no Financing Party shall have
any obligation to protect, perfect, secure or insure any such security
interests, liens or encumbrances now or hereafter held, if any, for the Company
Obligations or the properties subject thereto; (c) the time or place of payment
of the Company Obligations may be changed or extended, in whole or in part, to a
time certain or otherwise, and may be renewed or accelerated, in whole or in
part; (d) the Construction Agent, the Lessee and any other party liable for
payment under the Operative Agreements may be granted indulgences generally; (e)
any of the provisions of the Notes, the Certificates or any of the other
Operative Agreements may be modified, amended or waived; (f) any party
(including any co-guarantor) liable for the payment thereof may be granted
indulgences or be released; and (g) any deposit balance for the credit of the
Construction Agent, the Lessee or any other party liable for the payment of the
Company Obligations or liable upon any security therefor may be released, in
whole or in part, at, before or after the stated, extended or accelerated
maturity of the Company Obligations, all without notice to or further assent by
such Guarantor, which shall remain bound thereon, notwithstanding any such
exchange, compromise, surrender, extension, renewal, acceleration, modification,
indulgence or release.
6B.4.Waiver of Rights.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this Section 6B by any Financing
Party and of all extensions of credit or other Advances to the Construction
Agent and the Lessee by the Lenders pursuant to the terms of the Operative
Agreements; (b) presentment and demand for payment or performance of any of the
Company Obligations; (c) protest and notice of dishonor or of default with
respect to the Company Obligations or with respect to any security therefor; (d)
notice of any Financing Party obtaining, amending, substituting for, releasing,
waiving or modifying any security interest, lien or encumbrance, if any,
hereafter securing the Company Obligations, or any Financing Party's
subordinating, compromising, discharging or releasing such security interests,
liens or encumbrances, if any; and (e) all other notices to which such Guarantor
might otherwise be entitled. Notwithstanding anything to the contrary herein,
(i) each Guarantor's payments hereunder shall be due five (5) Business Days
after written demand by the Agent for such payment (unless the Company
Obligations are automatically accelerated pursuant to the applicable provisions
of the Operative Agreements in which case the Guarantors' payments shall be
automatically due) and (ii) any modification of the Operative Agreements which
has the effect of increasing the Company Obligations shall not be enforceable
against a Guarantor unless such Guarantor executes the document evidencing such
modification or otherwise reaffirms its guaranty in writing in connection with
such modification.
6B.5.Reinstatement.
The obligations of the Guarantors under this Section 6B shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Company Obligations is rescinded or
must be otherwise restored by any holder of any of the Company Obligations,
whether as a result of any proceedings in bankruptcy or reorganization or
otherwise, and each Guarantor agrees that it will indemnify each Financing Party
on demand for all reasonable costs and expenses (including, without limitation,
reasonable fees of counsel) incurred by any Financing Party in connection with
such rescission or restoration, including without limitation any such costs and
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
6B.6.Remedies.
The Guarantors agree that, as between the Guarantors, on the one hand, and
each Financing Party, on the other hand, the Company Obligations may be declared
to be forthwith due and payable as provided in the applicable provisions of the
Operative Agreements (and shall be deemed to have become automatically due and
payable in the circumstances provided therein) notwithstanding any stay,
injunction or other prohibition preventing such declaration (or preventing such
Company Obligations from becoming automatically due and payable) as against any
other Person and that, in the event of such declaration (or such Company
Obligations being deemed to have become automatically due and payable), such
Company Obligations (whether or not due and payable by any other Person) shall
forthwith become due and payable by the Guarantors in accordance with the
applicable provisions of the Operative Agreements.
6B.7.Limitation of Guaranty.
Notwithstanding any provision to the contrary contained herein or in any
of the other Operative Agreements, to the extent the obligations of any
Guarantor shall be adjudicated to be invalid or unenforceable for any reason
(including without limitation because of any applicable state or federal law
relating to fraudulent conveyances or transfers) then the obligations of such
Guarantor hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including without limitation
the Bankruptcy Code).
Subject to Section 6B.5, upon the satisfaction of the Company Obligations
in full, regardless of the source of payment, the Guarantors' obligations
hereunder shall be deemed satisfied, discharged and terminated other than
indemnifications set forth herein that expressly survive.
6B.8.Payment of Amounts to the Agent.
Each Financing Party hereby instructs each Guarantor, and each Guarantor
hereby acknowledges and agrees, that until such time as the Loans and the Holder
Advances are paid in full and the Liens evidenced by the Security Agreement and
the Mortgage Instruments have been released any and all Rent (excluding Excepted
Payments which shall be payable to each Holder or other Person as appropriate)
and any and all other amounts of any kind or type under any of the Operative
Agreements due and owing or payable to any Person shall instead be paid directly
to the Agent (excluding Excepted Payments which shall be payable to each Holder
or other Person as appropriate) or as the Agent may direct from time to time for
allocation and distribution in accordance with the procedures set forth in
Section 8.7 hereof.
6B.9.Release of Guarantors.
Each Financing Party hereby agrees that (a) the Agent shall be permitted
to release any Guarantor from its guaranty obligations under this Section 6B
without the consent of any other Financing Party if the release is granted in
connection with a disposition by the applicable Credit Party of all the shares
of stock or partnership or other equity interest in such Guarantor and such
disposition is permitted pursuant to the applicable provisions of the Operative
Agreements and the Lessee Credit Agreement and (b) the Agent shall be permitted
to release any Guarantor from its guaranty obligations under this Section 6B.9
without the consent of any other Financing Party if the release is requested by
Centennial in connection with a dissolution of the Guarantor, subject to
Centennial providing to the Agent written representations to the effect that
such Guarantor has no business operations and no assets.
SECTION 7. PAYMENT OF CERTAIN EXPENSES.
7.1. Transaction Expenses.
(a) The Lessor agrees on the Initial Closing Date, to pay, or cause
to be paid, all Transaction Expenses arising from the Initial Closing
Date, including without limitation all reasonable fees, expenses and
disbursements of the various legal counsels for the Lessor and the Agent
in connection with the transactions contemplated by the Operative
Agreements and incurred in connection with such Initial Closing Date, the
initial fees and expenses of the Owner Trustee due and payable on such
Initial Closing Date, all fees, taxes and expenses for the recording,
registration and filing of documents and all other reasonable fees,
expenses and disbursements incurred in connection with such Initial
Closing Date; provided, however, the Lessor shall pay such amounts
described in this Section 7.1(a) only if (i) such amounts are properly
described in a Requisition delivered on or before the Initial Closing
Date, and (ii) funds are made available by the Lenders and the Holders in
connection with such Requisition in an amount sufficient to allow such
payment. On the Initial Closing Date after delivery and receipt of the
Requisition referenced in Section 4.2(a) hereof and satisfaction of the
other conditions precedent for such date, the Holders severally shall make
Holder Advances and the Lenders severally shall make Loans to the Lessor
to pay for the Transaction Expenses, fees, expenses and other
disbursements referenced in this Section 7.1(a). The Lessee agrees to
timely pay all amounts referred to in this Section 7.1(a) to the extent
not paid by the Lessor.
(b) Assuming no Default or Event of Default shall have occurred and
be continuing and only for the period prior to the Rent Commencement Date,
the Lessor agrees on each Property Closing Date, on the date of any
Construction Advance and on the Completion Date to pay, or cause to be
paid, all Transaction Expenses including without limitation all reasonable
fees, expenses and disbursements of the various legal counsels for the
Lessor and the Agent in connection with the transactions contemplated by
the Operative Agreements and billed in connection with such Advance or
such Completion Date, all amounts described in Section 7.1(a) of this
Agreement which have not been previously paid, the annual fees and
reasonable out-of-pocket expenses of the Owner Trustee, all fees, expenses
and disbursements incurred with respect to the various items referenced in
Sections 5.3, 5.4 and/or 5.5 (including without limitation any premiums
for title insurance policies and charges for any updates to such policies)
and all other reasonable fees, expenses and disbursements in connection
with such Advance or such Completion Date including without limitation all
expenses relating to and all fees, taxes and expenses for the recording,
registration and filing of documents and during the Commitment Period, all
fees, expenses and costs referenced in Sections 7.3(a), 7.3(b), 7.3(d) and
7.4; provided, however, the Lessor shall pay such amounts described in
this Section 7.1(b) only if (i) such amounts are properly described in a
Requisition delivered on the applicable date and (ii) funds are made
available by the Lenders and the Holders in connection with such
Requisition in an amount sufficient to allow such payment. On each
Property Closing Date, on the date of any Construction Advance or any
Completion Date, after delivery of the applicable Requisition and
satisfaction of the other conditions precedent for such date, the Holders
severally shall make Holder Advances and the Lenders severally shall make
Loans to the Lessor to pay for the Transaction Expenses, fees, expenses
and other disbursements referenced in this Section 7.1(b). The Lessee
agrees to timely pay all amounts referred to in this Section 7.1(b) to the
extent not paid by the Lessor.
(c) Fees payable under the Operative Agreements shall be calculated
on the basis of a year of three hundred sixty (360) days for the actual
days elapsed.
7.2. Brokers' Fees.
The Lessee agrees to pay or cause to be paid any and all brokers' fees, if
any, including without limitation any interest and penalties thereon, which are
payable in connection with the transactions contemplated by this Agreement and
the other Operative Agreements.
7.3. Certain Fees and Expenses.
The Lessee agrees to pay or cause to be paid (a) the $5,000 initial fee
and the $5,000 annual fee, each payable to the Owner Trustee (for its individual
account) and all reasonable expenses of the Owner Trustee and any co-trustees
(including without limitation reasonable counsel fees and expenses) or any
successor owner trustee and/or co-trustee, for acting as the owner trustee under
the Trust Agreement, (b) all reasonable costs and expenses incurred by the
Credit Parties, the Agent, the Lenders, the Holders or the Lessor in entering
into any Lease Supplement and any future amendments, modifications, supplements,
restatements and/or replacements with respect to any of the Operative
Agreements, whether or not such Lease Supplement, amendments, modifications,
supplements, restatements and/or replacements are ultimately entered into, or
giving or withholding of waivers of consents hereto or thereto, which have been
requested by any Credit Party, the Agent, the Lenders, the Holders or the
Lessor, (c) all reasonable costs and expenses incurred by the Credit Parties,
the Agent, the Lenders, the Holders or the Lessor in connection with any
exercise of remedies under any Operative Agreement or any purchase of any
Property by the Construction Agent, the Lessee or any third party and (d) all
reasonable costs and expenses incurred by the Credit Parties, the Agent, the
Lenders, the Holders or the Lessor in connection with any transfer or conveyance
of any Property, whether or not such transfer or conveyance is ultimately
accomplished.
7.4. Unused Fee.
During the Commitment Period, the Lessee agrees to pay or to cause to be
paid to the Agent for the account of (a) the Lenders, respectively, an unused
fee (the "Lender Unused Fee") equal to the product of the average daily
Available Commitment of each Lender during the Commitment Period multiplied by
the Applicable Percentage per annum and (b) the Holders, respectively, an unused
fee (the "Holder Unused Fee") equal to the product of the average daily
Available Holder Commitment of each Holder during the Commitment Period
multiplied by the Applicable Percentage per annum. Such Unused Fees shall be
payable quarterly in arrears on each Unused Fee Payment Date. If all or a
portion of any such Unused Fee shall not be paid when due, such overdue amount
shall bear interest, payable by the Lessee on demand, at a rate per annum equal
to the ABR (or in the case of Holder Yield, the ABR plus the Applicable
Percentage for Eurodollar Holder Advances) plus two percent (2%) from the date
of such non-payment until such amount is paid in full (as well as before
judgment).
7.5. Upfront Fee.
The Lessee shall pay or cause to be paid on the Initial Closing Date an
upfront fee payable to each Lender and each Holder (for the respective
individual accounts of each such entity) on the terms and conditions and at such
times set forth or referenced in a letter agreement concerning such fees dated
on or about the Initial Closing Date addressed to Centennial from the Agent.
7.6. Agent's Fee.
The Lessee shall pay or cause to be paid an administrative agency fee
payable to the Agent for its individual account on the terms and conditions and
at such terms set forth or referenced in a letter agreement concerning such fee
dated on or about the Initial Closing Date addressed to Centennial from the
Agent.
SECTION 8. OTHER COVENANTS AND AGREEMENTS.
8.1. Cooperation with the Construction Agent or the Lessee.
The Holders, the Lenders, the Lessor (at the direction of the Majority
Secured Parties) and the Agent shall, at the expense of and to the extent
reasonably requested by the Construction Agent or the Lessee (but without
assuming additional liabilities on account thereof and only to the extent such
is acceptable to the Holders, the Lenders, the Lessor (at the direction of the
Majority Secured Parties) and the Agent in their reasonable discretion),
cooperate with the Construction Agent or the Lessee in connection with the
Construction Agent or the Lessee satisfying its covenant obligations contained
in the Operative Agreements including without limitation at any time and from
time to time, promptly and duly executing and delivering any and all such
further instruments, documents and financing statements (and continuation
statements related thereto).
8.2. Covenants of the Owner Trustee and the Holders.
Each of the Owner Trustee and the Holders hereby agrees that so long as
this Agreement is in effect:
(a) Neither the Owner Trustee (in its trust capacity or in its
individual capacity) nor any Holder will create or permit to exist at any
time, and each of them will, at its own cost and expense, promptly take
such action as may be necessary duly to discharge, or to cause to be
discharged, all Lessor Liens on the Properties attributable to it;
provided, however, that the Owner Trustee and the Holders shall not be
required to so discharge any such Lessor Lien while the same is being
contested in good faith by appropriate proceedings diligently prosecuted
so long as such proceedings shall not materially and adversely affect the
rights of the Lessee under the Lease and the other Operative Agreements or
involve any material danger of impairment of the Liens of the Security
Documents or of the sale, forfeiture or loss of, and shall not interfere
with the use or disposition of, any Property or title thereto or any
interest therein or the payment of Rent;
(b) Without prejudice to any right under the Trust Agreement of the
Owner Trustee to resign (subject to the requirement set forth in the Trust
Agreement that such resignation shall not be effective until a successor
shall have agreed to accept such appointment), or the Holders' rights
under the Trust Agreement to remove the institution acting as the Owner
Trustee (after consent to such removal by the Agent as provided in the
Trust Agreement), each of the Owner Trustee and the Holders hereby agrees
with the Lessee and the Agent (i) not to terminate or revoke the trust
created by the Trust Agreement except as permitted by Article VIII of the
Trust Agreement, (ii) not to amend, supplement, terminate or revoke or
otherwise modify any provision of the Trust Agreement in such a manner as
to adversely affect the rights of any such party without the prior written
consent of such party and (iii) to comply with all of the terms of the
Trust Agreement, the nonperformance of which would adversely affect such
party;
(c) The Owner Trustee or any successor may resign or be removed by
the Holders as the Owner Trustee, a successor Owner Trustee may be
appointed and a corporation may become the Owner Trustee under the Trust
Agreement, only in accordance with the provisions of Article IX of the
Trust Agreement and, with respect to such appointment, with the consent of
the Lessee (so long as there shall be no Lease Event of Default that shall
have occurred and be continuing), which consent shall not be unreasonably
withheld or delayed;
(d) The Owner Trustee, in its capacity as the Owner Trustee under the
Trust Agreement, and not in its individual capacity, shall not contract
for, create, incur or assume any Indebtedness, or enter into any business
or other activity or enter into any contracts or agreements, other than
pursuant to or under the Operative Agreements;
(e) The Holders will not instruct the Owner Trustee to take any
action in violation of the terms of any Operative Agreement;
(f) Neither any Holder nor the Owner Trustee shall (i) commence any
case, proceeding or other action with respect to the Owner Trustee under
any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, arrangement,
winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts, or (ii) seek appointment of a receiver,
trustee, custodian or other similar official with respect to the Owner
Trustee or for all or any substantial benefit of the creditors of the
Owner Trustee; and neither any Holder nor the Owner Trustee shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in this paragraph;
(g) The Owner Trustee shall give prompt notice to the Lessee, the
Holders and the Agent if the Owner Trustee's principal place of business
or chief executive office, or the office where the records concerning the
accounts or contract rights relating to any Property are kept, shall cease
to be located at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, or if
it shall change its name;
(h) The Owner Trustee shall take or refrain from taking such actions
and grant or refrain from granting such approvals with respect to the
Operative Agreements and/or relating to any Property in each case as
directed in writing by the Agent (until such time as the Loans are paid in
full, and then by the Majority Holders) or, in connection with Sections
8.5 and 9.2 hereof, the Lessee; provided, however, that notwithstanding
the foregoing provisions of this subparagraph (h) the Owner Trustee, the
Agent, the Lenders and the Holders each acknowledge, covenant and agree
that neither the Owner Trustee nor the Agent shall act or refrain from
acting, regarding each Unanimous Vote Matter, until such party has
received the approval of each Lender and each Holder affected by such
matter; and
(i) The Owner Trustee shall be restricted to acquiring and/or
constructing Properties identified by the Construction Agent.
8.3. Credit Party Covenants, Consent and Acknowledgment.
(a) Each Credit Party acknowledges and agrees that the Owner Trustee,
pursuant to the terms and conditions of the Security Agreement and the
Mortgage Instruments, shall create Liens respecting the various personal
property, fixtures and real property described therein in favor of the
Agent. Each Credit Party hereby irrevocably consents to the creation,
perfection and maintenance of such Liens. Each Credit Party shall, to the
extent reasonably requested by any of the other parties hereto, cooperate
with the other parties in connection with their covenants herein or in the
other Operative Agreements and shall from time to time duly execute and
deliver any and all such further instruments, documents and financing
statements (and continuation statements related thereto) as any other
party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit
Party hereby acknowledges and agrees, that until such time as the Loans
and the Holder Advances are paid in full and the Liens evidenced by the
Security Agreement and the Mortgage Instruments have been released (i) any
and all Rent (excluding Excepted Payments which shall be payable to each
Holder or other Person as appropriate) and any and all other amounts of
any kind or type under any of the Operative Agreements due and owing or
payable to any Person shall instead be paid directly to the Agent
(excluding Excepted Payments which shall be payable to each Holder or
other Person as appropriate) or as the Agent may direct from time to time
for allocation and distribution in accordance with the procedures set
forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease
shall be exercised by the Agent and (iii) each Credit Party shall cause
all notices, certificates, financial statements, communications and other
information which are delivered, or are required to be delivered, to the
Lessor, to also to be delivered at the same time to the Agent.
(c) No Credit Party shall consent to or permit any amendment,
supplement or other modification of the terms or provisions of any
Operative Agreement except in accordance with Section 12.4 of this
Agreement.
(d) Each Credit Party hereby covenants and agrees that, except for
amounts payable as Basic Rent, any and all payment obligations owing from
time to time under the Operative Agreements by any Person to the Agent,
any Lender, any Holder or any other Person shall (without further action)
be deemed to be Supplemental Rent obligations payable by the Lessee and
guaranteed by the other Credit Parties. Without limitation, such
obligations of the Credit Parties shall include without limitation
arrangement fees, administrative fees, unused fees, breakage costs,
indemnities, trustee fees and transaction expenses incurred by the parties
hereto in connection with the transactions contemplated by the Operative
Agreements.
(e) The Lessee hereby covenants and agrees to cause an Appraisal for
each Property to be issued and delivered to the Agent as of the applicable
Property Closing Date (or, with respect to either of the Properties
identified on Exhibit N hereto, within forty-five (45) days after the
Property Closing Date for the applicable Property) until such time as the
aggregate appraised value (pursuant to such Appraisals) of Properties then
subject to the Lease Agreement equals or exceeds an amount equal to
one-half (1/2) of the then current Commitment (the "Minimum Appraisal
Level"). To the extent the appraised value (pursuant to such Appraisals)
of Properties then subject to the Lease Agreement at any time or from time
to time is below the Minimum Appraisal Level, the Lessee further covenants
and agrees to cause Appraisals and/or reappraisals to be issued and
delivered to the Agent respecting Properties then subject to the Lease
Agreement to re-establish the Minimum Appraisal Level within thirty (30)
days. In addition, the Lessee covenants and agrees to cause an Appraisal
or reappraisal to be issued respecting each Property as requested by the
Agent from time to time (i) at each and every time as such shall be
required to satisfy any regulatory requirements imposed on the Agent, the
Lessor, the Trust Company, any Lender and/or any Holder, (ii) after the
occurrence and during the continuation of an Event of Default and (iii) as
required pursuant to Section 5.13 of this Agreement and Section 20.1 of
the Lease. All Appraisals and reappraisals issued pursuant to the
Operative Agreements (including without limitation this Section 8.3(e))
must be in form and substance satisfactory to the Agent, at the cost and
expense of the Lessee, delivered to the Agent and from an appraiser
selected by the Agent.
(f) [Intentionally Omitted]
(g) At any time the Lessor or the Agent is entitled under the
Operative Agreements to possession of a Property or any component thereof,
each of the Construction Agent and the Lessee hereby covenants and agrees,
at its own cost and expense, to assemble and make the same available to
the Agent (on behalf of the Lessor).
(h) The Lessee hereby covenants and agrees that Non-Integral
Equipment respecting any individual parcel of Property shall at no time
constitute in excess of ten percent (10%) of the aggregate Advances
respecting such parcel of Property funded at such time under the Operative
Agreements.
(i) The Lessee hereby covenants and agrees that as of Completion (i)
the Property Cost for each individual parcel of the Property shall be no
less than $2,000,000 and (ii) each parcel of the Property shall be a
Permitted Facility.
(j) The Lessee hereby covenants and agrees that it shall give prompt
notice to the Agent if the Lessee's principal place of business or chief
executive office, or the office where the records concerning the accounts
or contract rights relating to any Property are kept, shall cease to be
located at 000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XxXxxx
Xxxxxx, Xxxxxxx, 00000 or if it shall change its name.
(k) Unless the Agent otherwise agrees in writing, the Lessee hereby
covenants and agrees that the aggregate Property Cost of Properties
purchased for any reason by the Lessee prior to the Expiration Date shall
not exceed twenty-five percent (25%) of the aggregate Property Cost for
all Properties funded during the Commitment Period; provided, however,
Properties constituting Terminated Properties shall not be considered when
calculating such twenty-five percent (25%) maximum.
(l) Until all the obligations of the Credit Parties under the
Operative Agreements (other than indemnity claims unasserted as of the
Expiration Date) have been finally and indefeasibly paid and satisfied in
full, the Lender Commitments and the Holder Commitments terminated and the
Term has expired or been earlier terminated, then unless consent has been
obtained from the Majority Secured Parties, the Lessee will furnish or
cause to be furnished to each Holder, each Lender and the Agent at their
respective addresses set forth or referenced in Section 12.2 of this
Agreement, or such other office as may be designated by any such Holder,
Lender or the Agent from time to time: (i) at each time financial
statements are delivered or to be delivered pursuant to Section 28.1 of
the Lease, a certificate duly signed by the chief executive officer, chief
operating officer, chief financial officer, treasurer or controller of
Centennial setting forth the Adjusted Total Debt to Adjusted EBITDAR ratio
for the Rolling Period ending with such quarter-end and setting forth the
computations employed in calculating the ratio (the "Margin Certificate")
and (ii) at each time financial statements are delivered or to be
delivered pursuant to Section 28.1 of the Lease, a compliance certificate
duly executed by the president, treasurer, chief financial officer or
controller of Centennial substantially in the form of Exhibit M attached
hereto (the "Officer's Compliance Certificate").
(m) The Lessee hereby covenants and agrees that the rights of the
Lessee under this Agreement and the Lease shall not impair or in any way
diminish the obligations of the Construction Agent and/or the rights of
the Lessor under the Agency Agreement.
(n) Each Credit Party hereby covenants and agrees to cause each
Domestic Subsidiary formed or acquired after the Initial Closing Date to
execute a Joinder Agreement within thirty (30) days of the formation or
acquisition of such Domestic Subsidiary.
(o) Each Credit Party shall promptly notify the Agent, or cause the
Agent to be promptly notified, upon such Credit Party gaining Knowledge of
the occurrence of any Default or Event of Default which is continuing at
such time. In any event, such notice shall be provided to the Agent within
ten (10) days of when such Credit Party gains such Knowledge.
(p) Until all of the obligations under the Operative Agreements,
other than indemnity claims unasserted as of the Expiration Date, have
been finally and indefeasibly paid and satisfied in full and the Lender
Commitments and the Holder Commitments terminated unless consent has been
obtained from the Majority Secured Parties, each Credit Party will:
(i) except as permitted by the express provisions of the Lessee
Credit Agreement, preserve and maintain its separate legal existence
and all rights, franchises, licenses and privileges necessary to the
conduct of its business, and qualify and remain qualified as a
foreign corporation (or partnership, limited liability company or
other such similar entity, as the case may be) and authorized to do
business in each jurisdiction in which the failure to do so qualify
would have a Material Adverse Effect;
(ii) pay and perform all obligations of the Credit Parties under
the Operative Agreements and pay and perform (A) all taxes,
assessments and other governmental charges that may be levied or
assessed upon it or any of its property, and (B) all other
indebtedness, obligations and liabilities in accordance with
customary trade practices, which if not paid would have a Material
Adverse Effect; provided that any Credit Party may contest any item
described in this Section 8.3(p)(ii) in good faith so long as
adequate reserves are maintained with respect thereto in accordance
with GAAP;
(iii)to the extent failure to do so would have a Material
Adverse Effect, (A) observe and remain in compliance with all
applicable Laws and maintain in full force and effect all
Governmental Actions, in each case applicable to the conduct of its
business, (B) keep in full force and effect all licenses,
certifications or accreditations necessary for any Facility to carry
on its business and (C) not permit the termination of any insurance
reimbursement program available to any Facility;
(iv) permit the Financing Parties, or their respective agents
from time to time to conduct inspections of the Properties and the
Health Care Facilities during normal business hours at reasonable
times and, except upon the occurrence and during the continuation of
any Event of Default, without undue disruption of operations at any
such Property or Health Care Facility; and
(v) keep and maintain satisfactory and adequate books and
records of account in accordance with GAAP and make or cause the same
to be made available to the Financing Parties, or their respective
agents, during normal business hours at any reasonable time upon
reasonable notice for inspection and to make extracts thereof and
permit any Financing Party, or any of its respective agents, to
discuss the contents of same with senior officers of the appropriate
Credit Party and also with outside auditors and accountants of such
Credit Party. With the consent of the appropriate Credit Party, which
consent will not be unreasonably withheld and which consent shall not
be required during the existence of an Event of Default, any
Financing Party, or any of its respective agents, may also meet with
other officers and employees of such Credit Party.
(q) The Lessee shall perform any and all obligations of the Lessor
under, and cause the Lessor to otherwise remain in full compliance with,
the terms and provisions of each Ground Lease, if any.
(r) To the extent the Lessee is in compliance with its obligations
under the Operative Agreements (including without limitation Sections
5.3(t) and 8.3(e) of this Agreement) to provide Appraisals respecting the
Properties, then additional Properties may be financed under the Operative
Agreements without providing Appraisals; provided, the anticipated
Property Cost (for Properties which are not Completed at the Property
Closing Date therefor, as such cost is reflected in the applicable
Construction Budget) and the actual Property Cost (for Properties which
are Completed at the Property Closing Date therefor) of all Properties for
which Appraisals are not supplied shall not exceed an amount equal to
eight (8) times the pro forma EBITDAR for all such Properties; provided,
further, if the anticipated Property Cost (for Properties which are not
Completed at the Property Closing Date therefor, as such cost is reflected
in the applicable Construction Budget) and the actual Property Cost (for
Properties which are Completed at the Property Closing Date therefor) for
all Properties for which Appraisals are not supplied exceeds eight (8)
times such pro forma EBITDAR for all such Properties, then the applicable
prospective additional Properties shall be ineligible for financing under
the Operative Agreements.
(s) If the Lessee Credit Agreement is secured at any time or from
time to time after the Initial Closing Date with additional collateral,
then the Lessee shall cause all obligations secured pursuant to the
Operative Agreements at each such time (including without limitation the
obligations owed to the Financing Parties pursuant to the Operative
Agreements) to be secured ratably at each such time with the Lessee Credit
Agreement.
(t) Each Credit Party will promptly notify the Agent in the event
such Credit Party discovers or determines that any computer application
(including those of any supplier, vendor or customer of such Credit Party
or any Subsidiary of such Credit Party) that is material to such Credit
Party's or any of its Subsidiaries' business and operations will not be
Year 2000 Compliant, except to the extent that such failure shall not have
and could not reasonably be expected to have a Material Adverse Effect.
8.4. Sharing of Certain Payments.
Except for Excepted Payments, the parties hereto acknowledge and agree
that all payments due and owing by any Credit Party to the Lessor under the
Lease or any of the other Operative Agreements shall be made by any Credit Party
directly to the Agent as more particularly provided in Section 8.3 hereof. The
Lessor, the Holders, the Agent, the Lenders and the Credit Parties acknowledge
the terms of Section 8.7 of this Agreement regarding the allocation of payments
and other amounts made or received from time to time under the Operative
Agreements and agree, that all such payments and amounts are to be allocated as
provided in Section 8.7 of this Agreement.
8.5. Grant of Easements, etc.
The Agent, the Lenders and the Holders hereby agree that, so long as no
Event of Default shall have occurred and be continuing, the Owner Trustee shall,
from time to time at the request of the Lessee (and with the prior consent of
the Agent), in connection with the transactions contemplated by the Agency
Agreement, the Lease or the other Operative Agreements, (i) grant easements and
other rights in the nature of easements with respect to any Property, (ii)
release existing easements or other rights in the nature of easements which are
for the benefit of any Property, (iii) execute and deliver to any Person any
instrument appropriate to confirm or effect such grants or releases, and (iv)
execute and deliver to any Person such other documents or materials in
connection with the acquisition, development, construction, testing or operation
of any Property, including without limitation reciprocal easement agreements,
construction contracts, operating agreements, development agreements, plats,
replats or subdivision documents; provided, that each of the agreements referred
to in this Section 8.5 shall be of the type normally executed by the Lessee in
the ordinary course of the Lessee's business and shall be on commercially
reasonable terms so as not to diminish the value of any Property in any material
respect.
8.6. Appointment of Agent.
The Holders hereby appoint the Agent to act as collateral agent for the
Holders in connection with the Lien granted by the Security Documents to secure
the Holder Amount. The Lenders and the Holders acknowledge and agree and direct
that the rights and remedies of the beneficiaries of the Lien of the Security
Documents shall be exercised by the Agent on behalf of the Lenders and the
Holders as directed from time to time by the Majority Secured Parties or,
pursuant to Sections 8.2(h) and 12.4, all of the Lenders and the Holders, as the
case may be; provided, in all cases, the Agent shall allocate payments and other
amounts received in accordance with Section 8.7. The Agent is further appointed
to provide notices under the Operative Agreements on behalf of the Owner Trustee
(as determined by the Agent, in its reasonable discretion), to receive notices
under the Operative Agreements on behalf of the Owner Trustee and (subject to
Sections 8.5 and 9.2) to take such other action under the Operative Agreements
on behalf of the Owner Trustee as the Agent shall determine in its reasonable
discretion from time to time. The Agent hereby accepts such appointments. For
purposes hereof, the provisions of Section 7 of the Credit Agreement, together
with such other terms and provisions of the Credit Agreement and the other
Operative Agreements as required for the full interpretation and operation of
Section 7 of the Credit Agreement are hereby incorporated by reference as if
restated herein for the mutual benefit of the Agent and each Holder as if each
Holder were a Lender thereunder. Outstanding Holder Advances and outstanding
Loans shall each be taken into account for purposes of determining Majority
Secured Parties. Further, the Agent shall be entitled to take such action on
behalf of the Owner Trustee as is delegated to the Agent under any Operative
Agreement (whether express or implied) as may be reasonably incidental thereto.
The parties hereto hereby agree to the provisions contained in this Section 8.6.
Any appointment of a successor agent under Section 7.9 of the Credit Agreement
shall also be effective as an appointment of a successor agent for purposes of
this Section 8.6.
8.7. Collection and Allocation of Payments and Other
Amounts.
(a) Each Credit Party has agreed pursuant to Section 5.8 and
otherwise in accordance with the terms of this Agreement to pay to (i) the
Agent any and all Rent and any and all other amounts of any kind or type
under any of the Operative Agreements due and owing or payable to any
Person (excluding Excepted Payments) and (ii) each Person as appropriate
the Excepted Payments. Promptly after receipt, the Agent shall apply and
allocate, in accordance with the terms of this Section 8.7, such amounts
received from any Credit Party and all other payments, receipts and other
consideration of any kind whatsoever received by the Agent pursuant to the
Security Agreement or otherwise received by the Agent, the Holders or any
of the Lenders in connection with the Collateral, the Security Documents
or any of the other Operative Agreements. Ratable distributions among the
Lenders and the Holders under this Section 8.7 shall be made based on (in
the case of the Lenders) the ratio of the outstanding Loans to the
aggregate Property Cost and (in the case of the Holders) the ratio of the
outstanding Holder Advances to the aggregate Property Cost. Ratable
distributions among the Tranche A Lenders under this Section 8.7 shall be
made based on the ratio of the individual Tranche A Lender's Lender
Commitment for Tranche A Loans to the aggregate of all the Tranche A
Lenders' Lender Commitments for Tranche A Loans. Ratable distributions
among the Tranche B Lenders under this Section 8.7 shall be made based on
the ratio of the individual Tranche B Lender's Lender Commitment for
Tranche B Loans to the aggregate of all the Tranche B Lenders' Lender
Commitments for Tranche B Loans. Ratable distributions among the Lenders
(in situations where the Tranche A Lenders are not differentiated from the
Tranche B Lenders) shall be made based on the ratio of the individual
Lender's Lender Commitment to the aggregate of all the Lenders' Lender
Commitments. Ratable distributions among the Holders under this Section
8.7 shall be based on the ratio of the individual Holder's Holder
Commitment to the aggregate of all the Holders' Holder Commitments.
(b) Payments and other amounts received by the Agent from time to
time in accordance with the terms of subparagraph (a) shall be applied and
allocated as follows:
(i) Any such payment or amount identified as or deemed to be
Basic Rent shall be applied and allocated by the Agent first, ratably
to the Lenders and the Holders for application and allocation to the
payment of interest on the Loans and thereafter the principal of the
Loans which is due and payable on such date and to the payment of
accrued Holder Yield with respect to the Holder Advances and
thereafter the portion of the Holder Advances which is due on such
date; and second, if no Default or Event of Default is in effect, any
excess shall be paid to such Person or Persons as the Lessee may
designate; provided, that if a Default or Event of Default is in
effect, such excess (if any) shall instead be held by the Agent until
the earlier of (I) the first date thereafter on which no Default or
Event of Default shall be in effect (in which case such payments
shall then be made to such other Person or Persons as the Lessee may
designate) and (II) the Maturity Date or the Expiration Date, as the
case may be (or, if earlier, the date of any Acceleration), in which
case such amounts shall be applied and allocated in the manner
contemplated by Section 8.7(b)(iv).
(ii) If on any date the Agent or the Lessor shall receive any
amount in respect of (A) any Casualty or Condemnation pursuant to
Sections 15.1(a) or 15.1(g) of the Lease (excluding any payments in
respect thereof which are payable to the Lessee in accordance with
the Lease), or (B) the Termination Value in connection with the
delivery of a Termination Notice pursuant to Article XVI of the
Lease, or (C) the Termination Value in connection with the exercise
of the Purchase Option under Section 20.1 of the Lease or the
exercise of the option of the Lessor to transfer the Properties to
the Lessee pursuant to Section 20.3 of the Lease, or (D) any payment
required to be made or elected to be made by the Construction Agent
to the Lessor pursuant to the terms of the Agency Agreement, or (E)
any payment made pursuant to Section 5.13 or otherwise in connection
with a Terminated Property, then in each case, the Lessor shall be
required to pay such amount received (1) if no Acceleration has
occurred, to prepay the principal balance of the Loans and the Holder
Advances, on a pro rata basis, a portion of such amount to be
distributed to the Lenders and the Holders or (2) if an Acceleration
has occurred, to apply and allocate the proceeds respecting Sections
8.7(b)(ii)(A) through 8.7(b)(ii)(D) in accordance with Section
8.7(b)(iii) hereof.
(iii)Subject to Section 8.7(c), an amount equal to any payment
identified as proceeds of the sale or other disposition (or lease
upon the exercise of remedies) of the Properties or any portion
thereof, whether pursuant to Article XXII of the Lease or the
exercise of remedies under the Security Documents or otherwise, the
execution of remedies set forth in the Lease and any payment in
respect of excess wear and tear pursuant to Section 22.3 of the Lease
(whether such payment relates to a period before or after the
Construction Period Termination Date) shall be applied and allocated
by the Agent first, ratably to the payment of the principal and
interest of the Tranche B Loans then outstanding, second, ratably to
the payment to the Holders of the outstanding principal balance of
all Holder Advances plus all outstanding Holder Yield with respect to
such outstanding Holder Advances, third, to the extent such amount
exceeds the maximum amount to be returned pursuant to the foregoing
provisions of this paragraph (iii), ratably to the payment of the
principal and interest of the Tranche A Loans then outstanding,
fourth, to any and all other amounts owing under the Operative
Agreements to the Lenders under the Tranche B Loans, fifth, to any
and all other amounts owing under the Operative Agreements to the
Holders, sixth, to any and all other amounts owing under the
Operative Agreements to the Lenders under the Tranche A Loans, and
seventh, to the extent moneys remain after application and allocation
pursuant to clauses first through sixth above, to the Owner Trustee
for application and allocation to any and all other amounts owing to
the Holders or the Owner Trustee and as the Holders shall determine;
provided, where no Event of Default shall exist and be continuing and
a prepayment is made for any reason with respect to less than the
full amount of the outstanding principal amount of the Loans and the
outstanding Holder Advances, the proceeds shall be applied and
allocated ratably to the Lenders and to the Holders.
(iv) Subject to Section 8.7(c), an amount equal to (A) any such
payment identified as a payment pursuant to Section 22.1(b) of the
Lease (or otherwise) of the Maximum Residual Guarantee Amount (and
any such lesser amount as may be required by Section 22.1(b) of the
Lease) in respect of the Properties and (B) any other amount payable
upon any exercise of remedies after the occurrence of an Event of
Default not covered by Sections 8.7(b)(i) or 8.7(b)(iii) above
(including without limitation any amount received in connection with
an Acceleration which does not represent proceeds from the sale or
liquidation of the Properties) and (C) any other amount payable by
any Guarantor pursuant to Section 6B shall be applied and allocated
by the Agent first, ratably, to the payment of the principal and
interest balance of Tranche A Loans then outstanding, second, ratably
to the payment of the principal and interest balance of the Tranche B
Loans then outstanding, third, ratably to the payment of the
principal balance of all Holder Advances plus all outstanding Holder
Yield with respect to such outstanding Holder Advances, fourth, to
the payment of any other amounts owing to the Lenders hereunder or
under any of the other Operative Agreement, and fifth, to the extent
moneys remain after application and allocation pursuant to clauses
first through fourth above, to the Owner Trustee for application and
allocation to Holder Advances and Holder Yield and any other amounts
owing to the Holders or the Owner Trustee as the Holders shall
determine.
(v) An amount equal to any such payment identified as
Supplemental Rent shall be applied and allocated by the Agent to the
payment of any amounts then owing to the Agent, the Lenders, the
Holders and the other parties to the Operative Agreements (or any of
them) (other than any such amounts payable pursuant to the preceding
provisions of this Section 8.7(b)) as shall be determined by the
Agent in its reasonable discretion; provided, however, that
Supplemental Rent received upon the exercise of remedies after the
occurrence and during the continuation of an Event of Default in lieu
of or in substitution of the Maximum Residual Guarantee Amount or as
a partial payment thereon shall be applied and allocated as set forth
in Section 8.7(b)(iv).
(vi) The Agent in its reasonable judgment shall identify the
nature of each payment or amount received by the Agent and apply and
allocate each such amount in the manner specified above.
(c) Upon the termination of the Lender Commitments and the Holder
Commitments and the payment in full of the Loans and all other amounts
owing by the Owner Trustee hereunder or under any Credit Document and the
payment in full of all amounts owing to the Holders and the Owner Trustee
under the Trust Agreement, any moneys remaining with the Agent shall be
returned to the Owner Trustee or such other Person or Persons as the
Holders may designate for application and allocation to any and all other
amounts owing to the Holders or the Owner Trustee and as the Holders shall
determine. In the event of an Acceleration it is agreed that, prior to the
application and allocation of amounts received by the Agent in the order
described in Section 8.7(b) above, any such amounts shall first be applied
and allocated to the payment of (i) any and all sums advanced by the Agent
in order to preserve the Collateral or to preserve its Lien thereon, (ii)
the expenses of retaking, holding, preparing for sale or lease, selling or
otherwise disposing or realizing on the Collateral, or of any exercise by
the Agent of its rights under the Security Documents, together with
reasonable attorneys' fees and expenses and court costs and (iii) any and
all other amounts reasonably owed to the Agent under or in connection with
the transactions contemplated by the Operative Agreements (including
without limitation any accrued and unpaid administration fees).
8.8. Release of Properties, etc.
If the Lessee shall at any time purchase any Property pursuant to the
Lease, or the Construction Agent shall purchase any Property pursuant to the
Agency Agreement, or if any Property shall be sold in accordance with Article
XXII of the Lease, then, upon satisfaction by the Owner Trustee of its
obligation to make a prepayment (with the proceeds of such sale) of the Loans,
Holder Advances and all other amounts owing to the Lenders and the Holders under
the Operative Agreements, the Agent is hereby authorized and directed to release
such Properties from the Liens created by the Security Documents to the extent
of its interest therein. In addition, upon the termination of the Lender
Commitments and the Holder Commitments and the payment in full of the Loans, the
Holder Advances and all other amounts owing by the Owner Trustee and the Lessee
hereunder or under any other Operative Agreement the Agent is hereby authorized
and directed to release all of the Properties from the Liens created by the
Security Documents to the extent of its interest therein. Upon request of the
Owner Trustee following any such release, the Agent shall, at the sole cost and
expense of the Lessee, execute and deliver to the Owner Trustee and the Lessee
such documents as the Owner Trustee or the Lessee shall reasonably request to
evidence such release.
SECTION 9. CREDIT AGREEMENT AND TRUST AGREEMENT.
9.1. The Construction Agent's and the Lessee's Credit Agreement Rights.
Notwithstanding anything to the contrary contained in the Credit
Agreement, the Agent, the Lenders, the Holders, the Construction Agent, the
Credit Parties and the Owner Trustee hereby agree that, prior to the occurrence
and continuation of any Default or Event of Default, the Construction Agent or
the Lessee, as the case may be, shall have the following rights:
(a) the right to designate an account to which amounts funded under
the Operative Agreements shall be credited pursuant to Section 2.3(a) of
the Credit Agreement;
(b) the right to terminate or change the Lender Commitments pursuant
to Section 2.5(a) of the Credit Agreement;
(c) the right to exercise the conversion and continuation options
pursuant to Section 2.7 of the Credit Agreement;
(d) the right to receive any notice and any certificate, in each case
issued pursuant to Section 2.11(a) of the Credit Agreement;
(e) the right to replace any Lender pursuant to Section 2.11(b) of
the Credit Agreement;
(f) the right to approve any successor agent pursuant to Section 7.9
of the Credit Agreement; and
(g) the right to consent to any assignment by a Lender to which the
Lessor has the right to consent pursuant to Section 9.8 of the Credit
Agreement.
9.2. The Construction Agent's and the Lessee's Trust
Agreement Rights.
Notwithstanding anything to the contrary contained in the Trust Agreement,
the Credit Parties, the Owner Trustee and the Holders hereby agree that, prior
to the occurrence and continuation of any Default or Event of Default, the
Construction Agent or the Lessee, as the case may be, shall have the following
rights:
(a) the right to exercise the conversion and continuation options
pursuant to Section 3.8 of the Trust Agreement;
(b) the right to receive any notice and any certificate, in each case
issued pursuant to Section 3.9(a) of the Trust Agreement;
(c) the right to replace any Holder pursuant to Section 3.9(b) of the
Trust Agreement;
(d) the right to exercise the removal options contained in Section
3.9 of the Trust Agreement; and
(e) no removal of the Owner Trustee and appointment of a successor
Owner Trustee pursuant to Section 9.1 of the Trust Agreement shall be made
without the prior written consent (not to be unreasonably withheld or
delayed) of the Lessee.
SECTION 10. TRANSFER OF INTEREST.
10.1.Restrictions on Transfer.
Each Lender may participate, assign or transfer all or a portion of its
interest hereunder and under the other Operative Agreements in accordance with
Sections 9.7 and 9.8 of the Credit Agreement; provided, each participant,
assignee or transferee must obtain the same ratable interest in Tranche A Loans,
Tranche A Commitments, Tranche B Loans, Tranche B Commitments and the loans and
loan commitments with regard to the Lessee Credit Agreement (and to the extent
the selling Lender is also a Holder, each such participant, assignor or
transferee must also obtain the same percentage interest (regarding the
percentage interest sold by the selling Lender in and to the Tranche A Loans,
Tranche A Commitments, Tranche B Loans, Tranche B Commitments and the loans and
loan commitments with regard to the Lessee Credit Agreement) of the applicable
Holder's ratable interest in and to the Trust Estate); provided, further, except
after the occurrence and during the continuation of any Event of Default, no
participant, assignee or transferee shall be a Person in a Permitted Line of
Business; provided, further, that each Lender that assigns or transfers all or a
portion of its interest hereunder and under the other Operative Agreements shall
deliver to the Agent a copy of each Assignment and Acceptance (as referenced in
Section 9.8 of the Credit Agreement) for purposes of maintaining the Register.
The Holders may, directly or indirectly, assign, convey or otherwise transfer
any of their right, title or interest in and to the Trust Estate and the Trust
Agreement with the prior written consent of the Agent and the Lessee (which
consent shall not be unreasonably withheld or delayed) and in accordance with
the terms of Section 11.8(b) of the Trust Agreement; provided, to the extent the
selling Holder is also a Lender, each such assignee, receiver of a conveyance or
other transferee must also obtain the same percentage interest (regarding the
percentage interest sold by the selling Holder in and to the Trust Estate and
the Trust Agreement) of the applicable Lender's ratable interest in and to the
Tranche A Loans, Tranche A Commitments, Tranche B Loans, Tranche B Commitments
and the loans and loan commitments with regard to the Lessee Credit Agreement;
provided, further, except after the occurrence and during the continuation of
any Event of Default, no assignee, receiver of a conveyance or other transferee
shall be a Person in a Permitted Line of Business. The Owner Trustee may,
subject to the rights of the Lessee under the Lease and the other Operative
Agreements and to the Lien of the applicable Security Documents but only with
the prior written consent of the Agent (which consent may be withheld by the
Agent in its sole discretion) and (provided, no Default or Event of Default has
occurred and is continuing) with the consent of the Lessee, directly or
indirectly, assign, convey, appoint an agent with respect to enforcement of, or
otherwise transfer any of its right, title or interest in or to any Property,
the Lease, the Trust Agreement and the other Operative Agreements (including
without limitation any right to indemnification thereunder), or any other
document relating to a Property or any interest in a Property as provided in the
Trust Agreement and the Lease. The provisions of the immediately preceding
sentence shall not apply to the obligations of the Owner Trustee to transfer
Property to the Lessee or a third party purchaser pursuant to Article XXII of
the Lease upon payment for such Property in accordance with the terms and
conditions of the Lease. No Credit Party may assign any of the Operative
Agreements or any of their respective rights or obligations thereunder or with
respect to any Property in whole or in part to any Person without the prior
written consent of the Agent, the Lenders, the Holders and the Lessor.
10.2.Effect of Transfer.
From and after any transfer effected in accordance with this Section 10,
the transferor shall be released, to the extent of such transfer, from its
liability hereunder and under the other documents to which it is a party in
respect of obligations to be performed on or after the date of such transfer;
provided, however, that any transferor shall remain liable hereunder and under
such other documents to the extent that the transferee shall not have assumed
the obligations of the transferor thereunder. Upon any transfer by the Owner
Trustee, a Holder or a Lender as above provided, any such transferee shall
assume the obligations of the Owner Trustee, the Holder or the Lender, as the
case may be, and shall be deemed an "Owner Trustee", "Holder", or "Lender", as
the case may be, for all purposes of such documents and each reference herein to
the transferor shall thereafter be deemed a reference to such transferee for all
purposes, except as provided in the preceding sentence. Notwithstanding any
transfer of all or a portion of the transferor's interest as provided in this
Section 10, the transferor shall be entitled to all benefits accrued and all
rights vested prior to such transfer including without limitation rights to
indemnification under any such document.
SECTION 11. INDEMNIFICATION.
11.1.General Indemnity.
Whether or not any of the transactions contemplated hereby shall be
consummated, the Indemnity Provider hereby assumes liability for and agrees to
defend, indemnify and hold harmless each Indemnified Person on an After Tax
Basis from and against any Claims, which may be imposed on, incurred by or
asserted against an Indemnified Person by any third party, including without
limitation Claims arising from the negligence of an Indemnified Person (but not
to the extent such Claims arise from the gross negligence or willful misconduct
of such Indemnified Person itself, as determined by a court of competent
jurisdiction, as opposed to gross negligence or willful misconduct imputed to
such Indemnified Person) in any way relating to or arising or alleged to arise
out of the execution, delivery, performance or enforcement of this Agreement,
the Lease or any other Operative Agreement or on or with respect to any Property
or any component thereof, including without limitation Claims in any way
relating to or arising or alleged to arise out of (a) the financing,
refinancing, purchase, acceptance, rejection, ownership, design, construction,
refurbishment, development, delivery, acceptance, nondelivery, leasing,
subleasing, possession, use, occupancy, operation, maintenance, repair,
modification, transportation, condition, sale, return, repossession (whether by
summary proceedings or otherwise), or any other disposition of any Property or
any part thereof, including without limitation the acquisition, holding or
disposition of any interest in the Property, lease or agreement comprising a
portion of any thereof; (b) any latent or other defects in any Property or any
portion thereof whether or not discoverable by an Indemnified Person or the
Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims
or other loss of or damage to any property or the environment relating to the
Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the
Operative Agreements, or any transaction contemplated thereby; (e) any breach by
the Indemnity Provider of any of its representations or warranties under the
Operative Agreements to which the Indemnity Provider is a party or failure by
the Indemnity Provider to perform or observe any covenant or agreement to be
performed by it under any of the Operative Agreements; (f) the transactions
contemplated hereby or by any other Operative Agreement, in respect of the
application of Parts 4 and 5 of Subtitle B of Title I of ERISA; and (g) personal
injury, death or property damage, including without limitation Claims based on
strict or absolute liability in tort.
If a written Claim is made against any Indemnified Person or if any
proceeding shall be commenced against such Indemnified Person (including without
limitation a written notice of such proceeding), for any Claim, such Indemnified
Person shall promptly notify the Indemnity Provider in writing and shall not
take action with respect to such Claim without the consent of the Indemnity
Provider for thirty (30) days after the receipt of such notice by the Indemnity
Provider; provided, however, that in the case of any such Claim, if action shall
be required by law or regulation to be taken prior to the end of such period of
thirty (30) days, such Indemnified Person shall endeavor to, in such notice to
the Indemnity Provider, inform the Indemnity Provider of such shorter period,
and no action shall be taken with respect to such Claim without the consent of
the Indemnity Provider before seven (7) days before the end of such shorter
period; provided, further, that the failure of such Indemnified Person to give
the notices referred to in this sentence shall not diminish the Indemnity
Provider's obligation hereunder except to the extent such failure precludes in
all respects the Indemnity Provider from contesting such Claim.
If, within thirty (30) days of receipt of such notice from the Indemnified
Person (or such shorter period as the Indemnified Person has notified the
Indemnity Provider is required by law or regulation for the Indemnified Person
to respond to such Claim), the Indemnity Provider shall request in writing that
such Indemnified Person respond to such Claim, the Indemnified Person shall, at
the expense of the Indemnity Provider, in good faith conduct and control such
action (including without limitation by pursuit of appeals) (provided, however,
that (A) if such Claim, in the Indemnity Provider's reasonable discretion, can
be pursued by the Indemnity Provider on behalf of or in the name of such
Indemnified Person, the Indemnified Person, at the Indemnity Provider's request,
shall allow the Indemnity Provider to conduct and control the response to such
Claim and (B) in the case of any Claim (and notwithstanding the provisions of
the foregoing subsection (A)), the Indemnified Person may request the Indemnity
Provider to conduct and control the response to such Claim (with counsel to be
selected by the Indemnity Provider and consented to by such Indemnified Person,
such consent not to be unreasonably withheld; provided, however, that any
Indemnified Person may retain separate counsel at the expense of the Indemnity
Provider in the event of a conflict of interest between such Indemnified Person
and the Indemnity Provider)) by, in the sole discretion of the Person conducting
and controlling the response to such Claim (1) resisting payment thereof, (2)
not paying the same except under protest, if protest is necessary and proper,
(3) if the payment be made, using reasonable efforts to obtain a refund thereof
in appropriate administrative and judicial proceedings, or (4) taking such other
action as is reasonably requested by the Indemnity Provider from time to time.
The party controlling the response to any Claim shall consult in good
faith with the non-controlling party and shall keep the non-controlling party
reasonably informed as to the conduct of the response to such Claim; provided,
that all decisions ultimately shall be made in the discretion of the controlling
party. The parties agree that an Indemnified Person may at any time decline to
take further action with respect to the response to such Claim and may settle
such Claim if such Indemnified Person shall waive its rights to any indemnity
from the Indemnity Provider that otherwise would be payable in respect of such
Claim (and any future Claim, the pursuit of which is precluded by reason of such
resolution of such Claim) and shall pay to the Indemnity Provider any amount
previously paid or advanced by the Indemnity Provider pursuant to this Section
11.1 by way of indemnification or advance for the payment of an amount regarding
such Claim.
Notwithstanding the foregoing provisions of this Section 11.1, an
Indemnified Person shall not be required to take any action and the Indemnity
Provider shall not be permitted to respond to any Claim in its own name or that
of the Indemnified Person unless (A) the Indemnity Provider shall have agreed to
pay and shall pay to such Indemnified Person on demand and on an After Tax Basis
all reasonable costs, losses and expenses that such Indemnified Person actually
incurs in connection with such Claim, including without limitation all
reasonable legal, accounting and investigatory fees and disbursements and, if
the Indemnified Person has informed the Indemnity Provider that it intends to
contest such Claim (whether or not the control of the contest is then assumed by
the Indemnity Provider), the Indemnity Provider shall have agreed that the Claim
is an indemnifiable Claim hereunder, (B) in the case of a Claim that must be
pursued in the name of an Indemnified Person (or an Affiliate thereof), the
amount of the potential indemnity (taking into account all similar or logically
related Claims that have been or could be raised for which the Indemnity
Provider may be liable to pay an indemnity under this Section 11.1) exceeds
$25,000 (or such lesser amount as may be subsequently agreed between the
Indemnity Provider and the Indemnified Person), (C) the Indemnified Person shall
have reasonably determined that the action to be taken will not result in any
material danger of sale, forfeiture or loss of the Property, or any part thereof
or interest therein, will not interfere with the payment of Rent, and will not
result in risk of criminal liability, (D) if such Claim shall involve the
payment of any amount prior to the resolution of such Claim, the Indemnity
Provider shall provide to the Indemnified Person an interest-free advance in an
amount equal to the amount that the Indemnified Person is required to pay (with
no additional net after-tax cost to such Indemnified Person) prior to the date
such payment is due, (E) in the case of a Claim that must be pursued in the name
of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall
have provided to such Indemnified Person an opinion of independent counsel
selected by the Indemnity Provider and reasonably satisfactory to the
Indemnified Person stating that a reasonable basis exists to contest such Claim
(or, in the case of an appeal of an adverse determination, an opinion of such
counsel to the effect that the position asserted in such appeal will more likely
than not prevail) and (F) no Event of Default shall have occurred and be
continuing. In no event shall an Indemnified Person be required to appeal an
adverse judicial determination to the United States Supreme Court. In addition,
an Indemnified Person shall not be required to contest any Claim in its name (or
that of an Affiliate) if the subject matter thereof shall be of a continuing
nature and shall have previously been decided adversely by a court of competent
jurisdiction pursuant to the contest provisions of this Section 11.1, unless
there shall have been a change in law (or interpretation thereof) and the
Indemnified Person shall have received, at the Indemnity Provider's expense, an
opinion of independent counsel selected by the Indemnity Provider and reasonably
acceptable to the Indemnified Person stating that as a result of such change in
law (or interpretation thereof), it is more likely than not that the Indemnified
Person will prevail in such contest. In no event shall the Indemnity Provider be
permitted to adjust or settle any Claim without the consent of the Indemnified
Person to the extent any such adjustment or settlement involves, or is
reasonably likely to involve, any performance by or adverse admission by or with
respect to the Indemnified Person.
11.2.General Tax Indemnity.
(a) The Indemnity Provider shall pay and assume liability for, and
does hereby agree to indemnify, protect and defend each Property and all
Indemnified Persons, and hold them harmless against, all Impositions on an
After Tax Basis, and all payments pursuant to the Operative Agreements
shall be made free and clear of and without deduction for any and all
present and future Impositions.
(b) Notwithstanding anything to the contrary in Section 11.2(a)
hereof, the following shall be excluded from the indemnity required by
Section 11.2(a):
(i) Taxes (other than Taxes that are, or are in the nature of,
sales, use, rental, value added, transfer or property taxes) that are
imposed on a Indemnified Person (other than the Lessor, the Owner
Trustee and the Trust) by the United States federal government that
are based on or measured by the net income (including without
limitation taxes based on capital gains and minimum taxes) of such
Person; provided, that this clause (i) shall not be interpreted to
prevent a payment from being made on an After Tax Basis if such
payment is otherwise required to be so made;
(ii) Taxes (other than Taxes that are, or are in the nature of,
sales, use, rental, value added, transfer or property taxes) that are
imposed on any Indemnified Person (other than the Lessor, the Owner
Trustee and the Trust) by any state or local jurisdiction or taxing
authority within any state or local jurisdiction and that are based
upon or measured by the net income (including without limitation
taxes based on capital gains and minimum taxes) of such Person;
provided that such Taxes shall not be excluded under this
subparagraph (ii) to the extent such Taxes would have been imposed
had the location, possession or use of any Property in, the location
or the operation of the Lessee in, or the Lessee's making payments
under the Operative Agreements from, the jurisdiction imposing such
Taxes been the sole connection between such Indemnified Person and
the jurisdiction imposing such Taxes; provided, further, that this
clause (ii) shall not be interpreted to prevent a payment from being
made on an After Tax Basis if such payment is otherwise required to
be so made;
(iii)any Tax to the extent it relates to any act, event or
omission that occurs after the termination of the Lease and
redelivery or sale of the Property in accordance with the terms of
the Lease (but not any Tax that relates to such termination,
redelivery or sale and/or to any period prior to such termination,
redelivery or sale); and
(iv) any Taxes which are imposed on an Indemnified Person as a
result of the gross negligence or willful misconduct of such
Indemnified Person itself, as determined by a court of competent
jurisdiction (as opposed to gross negligence or willful misconduct
imputed to such Indemnified Person), but not Taxes imposed as a
result of ordinary negligence of such Indemnified Person;
(c) (i) Subject to the terms of Section 11.2(f), the Indemnity
Provider shall pay or cause to be paid all Impositions directly to
the taxing authorities where feasible and otherwise to the
Indemnified Person, as appropriate, and the Indemnity Provider shall
at its own expense, upon such Indemnified Person's reasonable
request, furnish to such Indemnified Person copies of official
receipts or other satisfactory proof evidencing such payment.
(ii) In the case of Impositions for which no contest is
conducted pursuant to Section 11.2(f) and which the Indemnity
Provider pays directly to the taxing authorities, the Indemnity
Provider shall pay such Impositions prior to the latest time
permitted by the relevant taxing authority for timely payment. In the
case of Impositions for which the Indemnity Provider reimburses an
Indemnified Person, the Indemnity Provider shall do so within thirty
(30) days after receipt by the Indemnity Provider of demand by such
Indemnified Person describing in reasonable detail the nature of the
Imposition and the basis for the demand (including without limitation
the computation of the amount payable), accompanied by receipts or
other reasonable evidence of such demand. In the case of Impositions
for which a contest is conducted pursuant to Section 11.2(f), the
Indemnity Provider shall pay such Impositions or reimburse such
Indemnified Person for such Impositions, to the extent not previously
paid or reimbursed pursuant to subsection (a), prior to the latest
time permitted by the relevant taxing authority for timely payment
after conclusion of all contests under Section 11.2(f).
(iii)At the Indemnity Provider's request, the amount of any
indemnification payment by the Indemnity Provider pursuant to
subsection (a) shall be verified and certified by an independent
public accounting firm mutually acceptable to the Indemnity Provider
and the Indemnified Person. The fees and expenses of such independent
public accounting firm shall be paid by the Indemnity Provider unless
such verification shall result in an adjustment in the Indemnity
Provider's favor of fifteen percent (15%) or more of the payment as
computed by the Indemnified Person, in which case such fee shall be
paid by the Indemnified Person.
(d) The Indemnity Provider shall be responsible for preparing and
filing any real and personal property or ad valorem tax returns in respect
of each Property and any other tax returns required for the Owner Trustee
respecting the transactions described in the Operative Agreements. In case
any other report or tax return shall be required to be made with respect
to any obligations of the Indemnity Provider under or arising out of
subsection (a) and of which the Indemnity Provider has knowledge or should
have knowledge, the Indemnity Provider, at its sole cost and expense,
shall notify the relevant Indemnified Person of such requirement and
(except if such Indemnified Person notifies the Indemnity Provider that
such Indemnified Person intends to prepare and file such report or return)
(A) to the extent required or permitted by and consistent with Legal
Requirements, make and file in the Indemnity Provider's name such return,
statement or report; and (B) in the case of any other such return,
statement or report required to be made in the name of such Indemnified
Person, advise such Indemnified Person of such fact and prepare such
return, statement or report for filing by such Indemnified Person or,
where such return, statement or report shall be required to reflect items
in addition to any obligations of the Indemnity Provider under or arising
out of subsection (a), provide such Indemnified Person at the Indemnity
Provider's expense with information sufficient to permit such return,
statement or report to be properly made with respect to any obligations of
the Indemnity Provider under or arising out of subsection (a). Such
Indemnified Person shall, upon the Indemnity Provider's request and at the
Indemnity Provider's expense, provide any data maintained by such
Indemnified Person (and not otherwise available to or within the control
of the Indemnity Provider) with respect to each Property which the
Indemnity Provider may reasonably require to prepare any required tax
returns or reports.
(e) As between the Indemnity Provider on one hand, and each Financing
Party on the other hand, the Indemnity Provider shall be responsible for,
and the Indemnity Provider shall indemnify and hold harmless each
Financing Party (without duplication of any indemnification required by
subsection (a)) on an After Tax Basis against, any obligation for United
States or foreign withholding taxes or similar levies, imposts, charges,
fees, deductions or withholdings (collectively, "Withholdings") imposed in
respect of the interest payable on the Notes, Holder Yield payable on the
Certificates or with respect to any other payments under the Operative
Agreements (all such payments being referred to herein as "Exempt
Payments" to be made without deduction, withholding or set off) (and, if
any Financing Party receives a demand for such payment from any taxing
authority or a Withholding is otherwise required with respect to any
Exempt Payment, the Indemnity Provider shall discharge such demand on
behalf of such Financing Party); provided, however, that the obligation of
the Indemnity Provider under this Section 11.2(e) shall not apply to:
(i) Withholdings on any Exempt Payment to any Financing Party
which is a non-U.S. Person unless such Financing Party is, on the
date hereof (or on the date it becomes a Financing Party hereunder)
and on the date of any change in the principal place of business or
the lending office of such Financing Party, entitled to submit a Form
1001 (relating to such Financing Party and entitling it to a complete
exemption from Withholding on such Exempt Payment) or Form 4224 or is
otherwise subject to exemption from Withholding with respect to such
Exempt Payment (except where the failure of the exemption results
from a change in the principal place of business of the Lessee;
provided if a failure of exemption for any Financing Party results
from a change in the principal place of business or lending office of
any other Financing Party, then such other Financing Party shall be
liable for any Withholding or indemnity with respect thereto), or
(ii) Any U.S. Taxes imposed solely by reason of the failure by a
non-U.S. Person to comply with applicable certification, information,
documentation or other reporting requirements concerning the
nationality, residence, identity or connections with the United
States of America of such non-U.S. Person if such compliance is
required by statute or regulation of the United States of America as
a precondition to relief or exemption from such U.S. Taxes.
For the purposes of this Section 11.2(e), (A) "U.S. Person" shall mean a
citizen, national or resident of the United States of America, a
corporation, partnership or other entity created or organized in or under
any laws of the United States of America or any State thereof, or any
estate or trust that is subject to Federal income taxation regardless of
the source of its income, (B) "U.S. Taxes" shall mean any present or
future tax, assessment or other charge or levy imposed by or on behalf of
the United States of America or any taxing authority thereof or therein,
(C) "Form 1001" shall mean Form 1001 (Ownership, Exemption, or Reduced
Rate Certificate) of the Department of the Treasury of the United States
of America and (D) "Form 4224" shall mean Form 4224(R) (Exemption from
Withholding of Tax on Income Effectively Connected with the Conduct of a
Trade or Business in the United States) of the Department of Treasury of
the United States of America (or in relation to either such Form such
successor and related forms as may from time to time be adopted by the
relevant taxing authorities of the United States of America to document a
claim to which such Form relates). Each of the Forms referred to in the
foregoing clauses (C) and (D) shall include such successor and related
forms as may from time to time be adopted by the relevant taxing
authorities of the United States of America to document a claim to which
such Form relates.
If a Financing Party or an Affiliate with whom such Financing Party
files a consolidated tax return (or equivalent) subsequently receives the
benefit in any country of a tax credit or an allowance resulting from U.S.
Taxes with respect to which it has received a payment of an additional
amount under this Section 11.2(e), such Financing Party will pay to the
Indemnity Provider such part of that benefit as in the opinion of such
Financing Party will leave it (after such payment) in a position no more
and no less favorable than it would have been in if no additional payment
had been required to be paid, provided always that (i) such Financing
Party will be the sole judge of the amount of any such benefit and of the
date on which it is received, (ii) such Financing Party will have the
absolute discretion as to the order and manner in which it employs or
claims tax credits and allowances available to it and (iii) such Financing
Party will not be obliged to disclose to the Indemnity Provider any
information regarding its tax affairs or tax computations.
Each non-U.S. Person that shall become a Financing Party after the
date hereof shall, upon the effectiveness of the related transfer or
otherwise upon becoming a Financing Party hereunder, be required to
provide all of the forms and statements referenced above or other
evidences of exemption from Withholdings.
(f) If a written Claim is made against any Indemnified Person or if
any proceeding shall be commenced against such Indemnified Person
(including without limitation a written notice of such proceeding), for
any Impositions, the provisions in Section 11.1 relating to notification
and rights to contest shall apply; provided, however, that the Indemnity
Provider shall have the right to conduct and control such contest only if
such contest involves a Tax other than a Tax on net income of the
Indemnified Person and can be pursued independently from any other
proceeding involving a Tax liability of such Indemnified Person.
11.3.Increased Costs, Illegality, etc.
(a) If, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation or (ii) the compliance with
any guideline or request hereafter adopted, promulgated or made by any
central bank or other governmental authority (whether or not having the
force of law), there shall be any increase in the cost to any Financing
Party of agreeing to make or making, funding or maintaining Advances, then
the Lessee shall from time to time, upon demand by such Financing Party
(with a copy of such demand to the Agent but subject to the terms of
Section 2.11 of the Credit Agreement and 3.9 of the Trust Agreement, as
the case may be), pay to the Agent for the account of such Financing Party
additional amounts sufficient to compensate such Financing Party for such
increased cost. A certificate as to the amount of such increased cost,
submitted to the Lessee and the Agent by such Financing Party, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Financing Party determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law, but in
each case promulgated or made after the date hereof) affects or would
affect the amount of capital required or expected to be maintained by such
Financing Party or any corporation controlling such Financing Party and
that the amount of such capital is increased by or based upon the
existence of such Financing Party's commitment to make Advances and other
commitments of this type or upon the Advances, then, upon demand by such
Financing Party (with a copy of such demand to the Agent but subject to
the terms of Section 2.11 of the Credit Agreement and 3.9 of the Trust
Agreement), the Lessee shall pay to the Agent for the account of such
Financing Party, from time to time as specified by such Financing Party,
additional amounts sufficient to compensate such Financing Party or such
corporation in the light of such circumstances, to the extent that such
Financing Party reasonably determines such increase in capital to be
allocable to the existence of such Financing Party's commitment to make
such Advances. A certificate as to such amounts submitted to the Lessee
and the Agent by such Financing Party shall be conclusive and binding for
all purposes, absent manifest error.
(c) Without limiting the effect of the foregoing, the Lessee shall
pay to each Financing Party on the last day of the Interest Period
therefor so long as such Financing Party is maintaining reserves against
"Eurocurrency liabilities" under Regulation D an additional amount
(determined by such Financing Party and notified to the Lessee through the
Agent) equal to the product of the following for each Eurodollar Loan or
Eurodollar Holder Advance, as the case may be, for each day during such
Interest Period:
(i) the principal amount of such Eurodollar Loan or Eurodollar
Holder Advance, as the case may be, outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of which is
the rate (expressed as a decimal) at which interest accrues on such
Eurodollar Loan or Eurodollar Holder Advance, as the case may be, for
such Interest Period as provided in the Credit Agreement or the Trust
Agreement, as the case may be (less the Applicable Percentage), and
the denominator of which is one (1) minus the effective rate
(expressed as a decimal) at which such reserve requirements are
imposed on such Financing Party on such day minus (y) such numerator;
and
(iii)1/360.
(d) Without affecting its rights under Sections 11.3(a), 11.3(b) or
11.3(c) or any other provision of any Operative Agreement, each Financing
Party agrees that if there is any increase in any cost to or reduction in
any amount receivable by such Financing Party with respect to which the
Lessee would be obligated to compensate such Financing Party pursuant to
Sections 11.3(a) or 11.3(b), such Financing Party shall use reasonable
efforts to select an alternative office for Advances which would not
result in any such increase in any cost to or reduction in any amount
receivable by such Financing Party; provided, however, that no Financing
Party shall be obligated to select an alternative office for Advances if
such Financing Party determines that (i) as a result of such selection
such Financing Party would be in violation of any applicable law,
regulation, treaty, or guideline, or would incur additional costs or
expenses or (ii) such selection would be inadvisable for regulatory
reasons or materially inconsistent with the interests of such Financing
Party.
(e) With reference to the obligations of the Lessee set forth in
Sections 11.3(a) through 11.3(d), the Lessee shall not have any obligation
to pay to any Financing Party amounts owing under such Sections for any
period which is more than one (1) year prior to the date upon which the
request for payment therefor is delivered to the Lessee.
(f) Notwithstanding any other provision of this Agreement, if any
Financing Party shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that
it is unlawful, for any Financing Party to perform its obligations
hereunder to make or maintain Eurodollar Loans or Eurodollar Holder
Advances, as the case may be, then (i) each Eurodollar Loan or Eurodollar
Holder Advance, as the case may be, will automatically, at the earlier of
the end of the Interest Period for such Eurodollar Loan or Eurodollar
Holder Advance, as the case may be, or the date required by law, convert
into an ABR Loan or an ABR Holder Advance, as the case may be, and (iii)
the obligation of the Financing Parties to make, convert or continue
Eurodollar Loans or Eurodollar Holder Advances, as the case may be, shall
be suspended until the Agent shall notify the Lessee that such Financing
Party has determined that the circumstances causing such suspension no
longer exist.
11.4.Funding/Contribution Indemnity.
Subject to the provisions of Section 2.11(a) of the Credit Agreement and
3.9(a) of the Trust Agreement, as the case may be, the Lessee agrees to
indemnify each Financing Party and to hold each Financing Party harmless from
any loss or reasonable expense which such Financing Party may sustain or incur
as a consequence of (a) any default in connection with the drawing of funds for
any Advance, (b) any default in making any prepayment after a notice thereof has
been given in accordance with the provisions of the Operative Agreements or (c)
the making of a voluntary or involuntary prepayment of Eurodollar Loans or
Eurodollar Holder Advances, as the case may be, on a day which is not the last
day of an Interest Period with respect thereto. Such indemnification shall be in
an amount equal to the excess, if any, of (x) the amount of interest or Holder
Yield, as the case may be, which would have accrued on the amount so prepaid, or
not so borrowed, accepted, converted or continued for the period from the date
of such prepayment or of such failure to borrow, accept, convert or continue to
the last day of such Interest Period (or, in the case of a failure to borrow,
accept, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable Eurodollar Rate plus
the Applicable Percentage for such Loan or Holder Advance, as the case may be,
for such Interest Period over (y) the amount of interest (as determined by such
Financing Party in its reasonable discretion) which would have accrued to such
Financing Party on such amount by (i) (in the case of the Lenders) reemploying
such funds in loans of the same type and amount during the period from the date
of prepayment or failure to borrow to the last day of the then applicable
Interest Period (or, in the case of a failure to borrow, the Interest Period
that would have commenced on the date of such failure) and (ii) (in the case of
the Holders) placing such amount on deposit for a comparable period with leading
banks in the relevant interest rate market. This covenant shall survive the
termination of the Operative Agreements and the payment of all other amounts
payable hereunder.
00.0.XXXXXXX INDEMNIFICATION FOR ORDINARY NEGLIGENCE,
STRICT LIABILITY, ETC.
WITHOUT LIMITING THE GENERALITY OF THE INDEMNIFICATION PROVISIONS OF ANY
AND ALL OF THE OPERATIVE AGREEMENTS, EACH PERSON PROVIDING INDEMNIFICATION OF
ANOTHER PERSON UNDER ANY OPERATIVE AGREEMENT HEREBY FURTHER EXPRESSLY RELEASES
EACH BENEFICIARY OF ANY SUCH INDEMNIFICATION FROM ALL CLAIMS FOR LOSS OR DAMAGE,
DESCRIBED IN ANY OPERATIVE AGREEMENT, CAUSED BY ANY ACT OR OMISSION ON THE PART
OF ANY SUCH BENEFICIARY ATTRIBUTABLE TO THE ORDINARY NEGLIGENCE (WHETHER SOLE OR
CONTRIBUTORY) OR STRICT LIABILITY OF ANY SUCH BENEFICIARY, AND INDEMNIFIES,
EXONERATES AND HOLDS EACH SUCH BENEFICIARY FREE AND HARMLESS FROM AND AGAINST
ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, CLAIMS, LOSSES, COSTS,
LIABILITIES, DAMAGES AND EXPENSES (INCLUDING WITHOUT LIMITATION ATTORNEY'S FEES
AND EXPENSES), DESCRIBED ABOVE, INCURRED BY ANY SUCH BENEFICIARY (IRRESPECTIVE
OF WHETHER ANY SUCH BENEFICIARY IS A PARTY TO THE ACTION FOR WHICH
INDEMNIFICATION UNDER THIS AGREEMENT OR ANY OTHER OPERATIVE AGREEMENT IS SOUGHT)
ATTRIBUTABLE TO THE ORDINARY NEGLIGENCE (WHETHER SOLE OR CONTRIBUTORY) OR STRICT
LIABILITY OF ANY SUCH BENEFICIARY.
SECTION 12. MISCELLANEOUS.
12.1.Survival of Agreements.
The representations, warranties, covenants, indemnities and agreements of
the parties provided for in the Operative Agreements, and the parties'
obligations under any and all thereof, shall survive the execution and delivery
of this Agreement, the transfer of any Property to the Owner Trustee, the
acquisition of any Property (or any of its components), the construction of any
Improvements, the Completion of any Property, any disposition of any interest of
the Owner Trustee in any Property or any interest of the Holders in the Trust
Estate, the payment of the Notes and any disposition thereof and shall be and
continue in effect notwithstanding any investigation made by any party and the
fact that any party may waive compliance with any of the other terms, provisions
or conditions of any of the Operative Agreements. Except as otherwise expressly
set forth herein or in other Operative Agreements, the indemnities of the
parties provided for in the Operative Agreements shall survive the expiration or
termination of any thereof.
12.2.Notices.
All notices required or permitted to be given under any Operative
Agreement shall be in writing. Notices may be served by certified or registered
mail, postage paid with return receipt requested; by private courier, prepaid;
by telex, facsimile, or other telecommunication device capable of transmitting
or creating a written record; or personally. Mailed notices shall be deemed
delivered five (5) days after mailing, properly addressed. Couriered notices
shall be deemed delivered when delivered as addressed, or if the addressee
refuses delivery, when presented for delivery notwithstanding such refusal.
Telex or telecommunicated notices shall be deemed delivered when receipt is
either confirmed by confirming transmission equipment or acknowledged by the
addressee or its office. Personal delivery shall be effective when accomplished.
Unless a party changes its address by giving notice to the other party as
provided herein, notices shall be delivered to the parties at the following
addresses:
If to the Construction Agent or the Lessee, to such entity at the
following address:
Centennial Healthcare Corporation
000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxx, Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to any Guarantor, to such entity in care of Centennial at the
following address:
Centennial Healthcare Corporation
000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxx, Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Owner Trustee, to it at the following address:
First Security Bank, National Association
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxx X. Xxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Holders, to each such Holder at the address set forth for
such Holder on Schedule I of the Trust Agreement.
If to the Syndication Agent, to it at the following address:
First Union Capital Markets, a division of Wheat
First Securities, Inc.
c/o First Union National Bank
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx XxxXxxx, Vice-President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Agent, to it at the following address:
NationsBank, N.A.
Atlanta Plaza Building
000 Xxxxxxxxx Xxxxxx, XX, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to any Lender, to it at the address set forth for such Lender in
Schedule 1.1 of the Credit Agreement.
From time to time any party may designate additional parties and/or
another address for notice purposes by notice to each of the other parties
hereto. Each notice hereunder shall be effective upon receipt or refusal
thereof.
12.3.Counterparts.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute but one (1) and the same
instrument.
12.4.Terminations, Amendments, Waivers, Etc.; Unanimous Vote
Matters.
Each Basic Document may be terminated, amended, supplemented, waived or
modified only by an instrument in writing signed by, subject to Article VIII of
the Trust Agreement regarding termination of the Trust Agreement, the Majority
Secured Parties and each Credit Party (to the extent such Credit Party is a
party to such Basic Document); provided, to the extent no Default or Event of
Default shall have occurred and be continuing, the Majority Secured Parties
shall not amend, supplement, waive or modify any provision of any Basic Document
in such a manner as to adversely affect the rights of any Credit Party without
the prior written consent (not to be unreasonably withheld or delayed) of such
Credit Party. Each Operative Agreement which is not a Basic Document may be
terminated, amended, supplemented, waived or modified only by an instrument in
writing signed by the parties thereto and (without the consent of any other
Financing Party) the Agent. In addition, (a) the Unanimous Vote Matters shall
require the consent of each Lender and each Holder affected by such matter and
(b) any provision of any Operative Agreement incorporated by reference or
otherwise referenced in a second Operative Agreement shall remain, respecting
such second Operative Agreement, in its original form without regard to any such
termination, amendment, supplement, waiver or modification in the first
Operative Agreement except if such has been agreed to by an instrument in
writing signed by, subject to Article VIII of the Trust Agreement regarding
termination of the Trust Agreement, the Majority Secured Parties and each Credit
Party (to the extent such Credit Party is a party to such Operative Agreement).
Notwithstanding the foregoing, no such termination, amendment, supplement,
waiver or modification shall, without the consent of the Agent and, to the
extent affected thereby, each Lender and each Holder (collectively, the
"Unanimous Vote Matters") (i) reduce the amount of any Note or any Certificate,
extend the scheduled date of maturity of any Note, extend the scheduled
Expiration Date, extend any payment date of any Note or Certificate, reduce the
stated rate of interest payable on any Note, reduce the stated Holder Yield
payable on any Certificate (other than as a result of waiving the applicability
of any post-default increase in interest rates or Holder Yields), modify the
priority of any Lien in favor of the Agent under any Security Document,
subordinate any obligation owed to any Lender or Holder, reduce any Lender
Unused Fees or any Holder Unused Fees payable under this Participation
Agreement, extend the scheduled date of payment of any Lender Unused Fees or any
Holder Unused Fees or increase the amount or extend the expiration date of any
Lender's Lender Commitment or the Holder Commitment of any Holder, or (ii)
terminate, amend, supplement, waive or modify any provision of this Section 12.4
or reduce the percentages specified in the definitions of Majority Lenders,
Majority Holders or Majority Secured Parties, or consent to the assignment or
transfer by the Owner Trustee of any of its rights and obligations under any
Credit Document or release a material portion of the Collateral (except in
accordance with Section 8.8) or release any Credit Party from its obligations
under any Operative Agreement or otherwise alter any payment obligations of any
Credit Party to the Lessor or any Financing Party under the Operative
Agreements, or (iii) terminate, amend, supplement, waive or modify any provision
of Section 7 of the Credit Agreement (which shall also require the consent of
the Agent), or (iv) permit Advances for Work in excess of the Construction
Budget, or (v) eliminate the automatic option under Section 5.3(b) of the Agency
Agreement requiring that the Construction Agent pay certain liquidated damages
in exchange for the conveyance of a Property to the Construction Agent, or (vi)
permit the extension of the Construction Period beyond the date that is two (2)
years from the Initial Closing Date. Any such termination, amendment,
supplement, waiver or modification shall apply equally to each of the Lenders
and the Holders and shall be binding upon all the parties to this Agreement. In
the case of any waiver, each party to this Agreement shall be restored to its
former position and rights under the Operative Agreements, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; but no
such waiver shall extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon.
If at a time when the conditions precedent set forth in the Operative
Agreements to any Loan are, in the opinion of the Majority Lenders, satisfied,
any Lender shall fail to fulfill its obligations to make such Loan (any such
Lender, a "Defaulting Lender") then, for so long as such failure shall continue,
the Defaulting Lender shall (unless the Lessee and the Majority Lenders,
determined as if the Defaulting Lender were not a "Lender", shall otherwise
consent in writing) be deemed for all purposes relating to terminations,
amendments, supplements, waivers or modifications under the Operative Agreements
to have no Loans, shall not be treated as a "Lender" when performing the
computation of Majority Lenders or Majority Secured Parties, and shall have no
rights under this Section 12.4; provided that any action taken pursuant to the
second paragraph of this Section 12.4 shall not be effective as against the
Defaulting Lender.
If at a time when the conditions precedent set forth in the Operative
Agreements to any Holder Advance are, in the opinion of the Majority Holders,
satisfied, any Holder shall fail to fulfill its obligations to make such Holder
Advance (any such Holder, a "Defaulting Holder") then, for so long as such
failure shall continue, the Defaulting Holder shall (unless the Lessee and the
Majority Holders, determined as if the Defaulting Holder were not a "Holder",
shall otherwise consent in writing) be deemed for all purposes relating to
terminations, amendments, supplements, waivers or modifications under the
Operative Agreements to have no Holder Advances, shall not be treated as a
"Holder" when performing the computation of Majority Holders or Majority Secured
Parties, and shall have no rights under this Section 12.4; provided that any
action taken pursuant to the second paragraph of this Section 12.4 shall not be
effective as against the Defaulting Holder.
12.5.Headings, etc.
The Table of Contents and headings of the various Articles and Sections of
this Agreement are for convenience of reference only and shall not modify,
define, expand or limit any of the terms or provisions hereof.
12.6.Parties in Interest.
Except as expressly provided herein, none of the provisions of this
Agreement are intended for the benefit of any Person except the parties hereto.
12.7.GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL; VENUE.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA. Any legal action
or proceeding with respect to this Agreement or any other Operative
Agreement may be brought in the courts of the State of North Carolina in
Mecklenburg County or of the United States for the Western District of
North Carolina, and, by execution and delivery of this Agreement, each of
the parties to this Agreement hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the nonexclusive
jurisdiction of such courts. Each of the parties to this Agreement further
irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to it at
the address set out for notices pursuant to Section 12.2, such service to
become effective three (3) days after such mailing. Nothing herein shall
affect the right of any party to serve process in any other manner
permitted by Law or to commence legal proceedings or to otherwise proceed
against any party in any other jurisdiction.
(b) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY, TO
THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY OTHER OPERATIVE
AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
(c) Each of the parties to this Agreement hereby irrevocably waives
any objection which it may now or hereafter have to the laying of venue of
any of the aforesaid actions or proceedings arising out of or in
connection with this Agreement or any other Operative Agreement brought in
the courts referred to in subsection (a) above and hereby further
irrevocably waives and agrees not to plead or claim in any such court that
any such action or proceeding brought in any such court has been brought
in an inconvenient forum.
12.8.Severability.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
12.9.Liability Limited.
(a) The Lenders, the Agent, the Credit Parties, the Owner Trustee and
the Holders each acknowledge and agree that the Owner Trustee is (except
as otherwise expressly provided herein or therein) entering into this
Agreement and the other Operative Agreements to which it is a party (other
than the Trust Agreement and to the extent otherwise provided in Section
6.1 of this Agreement), solely in its capacity as trustee under the Trust
Agreement and not in its individual capacity and that the Trust Company
shall not be liable or accountable under any circumstances whatsoever in
its individual capacity for or on account of any statements,
representations, warranties, covenants or obligations stated to be those
of the Owner Trustee, except for its own gross negligence or willful
misconduct and as otherwise expressly provided herein or in the other
Operative Agreements.
(b) Anything to the contrary contained in this Agreement, the Credit
Agreement, the Notes or in any other Operative Agreement notwithstanding,
no Exculpated Person shall be personally liable in any respect for any
liability or obligation arising hereunder or in 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 the Credit Agreement, the
Notes, this Agreement, the Security Agreement or any of the other
Operative Agreements. The Lenders, the Holders and the Agent agree that,
in the event any remedies under any Operative Agreement are pursued,
neither the Lenders, the Holders nor the Agent shall have any recourse
against any 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 (excluding Excepted
Payments) and the Credit Parties (with respect to the Credit Parties'
obligations under the Operative Agreements); but nothing contained herein
shall be taken to prevent recourse against or the enforcement of remedies
against the Trust Estate (excluding Excepted Payments) in respect of any
and all liabilities, obligations and undertakings contained herein and/or
in any other Operative Agreement. Notwithstanding the provisions of this
Section, nothing in any Operative Agreement shall: (i) constitute a
waiver, release or discharge of any indebtedness or obligation evidenced
by the Notes and/or the Certificates arising under any Operative Agreement
or secured by any Operative Agreement, but the same shall continue until
paid or discharged; (ii) relieve any Exculpated Person from liability and
responsibility for (but only to the extent of the damages arising by
reason of): active waste knowingly committed by any Exculpated Person with
respect to any Property, any fraud, gross negligence or willful misconduct
on the part of any Exculpated Person; (iii) relieve any Exculpated Person
from liability and responsibility for (but only to the extent of the
moneys misappropriated, misapplied or not turned over) (A) except for
Excepted Payments, misappropriation or misapplication by the Lessor (i.e.,
application in a manner contrary to any of the Operative Agreements) of
any insurance proceeds or condemnation award paid or delivered to the
Lessor by any Person other than the Agent, (B) except for Excepted
Payments, any deposits or any escrows or amounts owed by the Construction
Agent under the Agency Agreement held by the Lessor or (C) except for
Excepted Payments, any rent or other income received by the Lessor from
any Credit Party that is not turned over to the Agent; or (iv) affect or
in any way limit the Agent's rights and remedies under any Operative
Agreement with respect to the Rents and rights and powers of the Agent
under the Operative Agreements or to obtain a judgment against the
Lessee's interest in the Properties or the Agent's rights and powers to
obtain a judgment against the Lessor or any Credit Party (provided, that
no deficiency judgment or other money judgment shall be enforced against
any Exculpated Person except to the extent of the Lessor's interest in the
Trust Estate (excluding Excepted Payments) or to the extent the Lessor may
be liable as otherwise contemplated in clauses (ii) and (iii) of this
Section 12.9(b)).
12.10. Rights of the Credit Parties.
If at any time all obligations (i) of the Owner Trustee under the Credit
Agreement, the Security Documents and the other Operative Agreements and (ii) of
the Credit Parties under the Operative Agreements have in each case been
satisfied or discharged in full, then the Credit Parties shall be entitled to
(a) terminate the Lease and guaranty obligations under Section 6B and (b)
receive all amounts then held under the Operative Agreements and all proceeds
with respect to any of the Properties. Upon the termination of the Lease and
Section 6B pursuant to the foregoing clause (a), the Lessor shall transfer to
the Lessee all of its right, title and interest free and clear of the Lien of
the Lease, the Lien of the Security Documents and all Lessor Liens in and to any
Properties then subject to the Lease and any amounts or proceeds referred to in
the foregoing clause (b) shall be paid over to the Lessee.
12.11. Further Assurances.
The parties hereto shall promptly cause to be taken, executed,
acknowledged or delivered, at the sole expense of the Lessee, all such further
acts, conveyances, documents and assurances as the other parties may from time
to time reasonably request in order to carry out and effectuate the intent and
purposes of this Participation Agreement, the other Operative Agreements and the
transactions contemplated hereby and thereby (including without limitation the
preparation, execution and filing of any and all Uniform Commercial Code
financing statements, filings of Mortgage Instruments and other filings or
registrations which the parties hereto may from time to time request to be filed
or effected). The Lessee, at its own expense and without need of any prior
request from any other party, shall take such action as may be necessary
(including without limitation any action specified in the preceding sentence),
or (if the Owner Trustee shall so request) as so requested, in order to maintain
and protect all security interests provided for hereunder or under any other
Operative Agreement. In addition, in connection with the sale or other
disposition of any Property or any portion thereof, the Lessee agrees to execute
such instruments of conveyance as may be reasonably required in connection
therewith.
12.12. Calculations under Operative Agreements.
The parties hereto agree that all calculations and numerical
determinations to be made under the Operative Agreements by the Owner Trustee
shall be made by the Agent and that such calculations and determinations shall
be conclusive and binding on the parties hereto in the absence of manifest
error.
12.13. Confidentiality.
Each Financing Party agrees to keep confidential any information furnished
or made available to it by any Credit Party or any of its Subsidiaries pursuant
to this Agreement that is marked confidential; provided that nothing herein
shall prevent any Financing Party from disclosing such information (a) to any
other Financing Party or any Affiliate of any Financing Party, or any officer,
director, employee, agent, or advisor of any Financing Party or Affiliate of any
Financing Party, (b) to any other Person if reasonably incidental to the
administration of the credit facility provided herein, (c) as required by any
law, rule, or regulation, (d) upon the order of any court or administrative
agency, (e) upon the request or demand of any regulatory agency or authority,
(f) that is or becomes available to the public or that is or becomes available
to any Financing Party other than as a result of a disclosure by any Financing
Party prohibited by this Agreement, (g) in connection with any litigation to
which such Financing Party or any of its Affiliates may be a party, (h) to the
extent necessary in connection with the exercise of any remedy under this
Agreement or any other Operative Agreement, and (i) subject to provisions
substantially similar to those contained in this Section, to any actual or
proposed participant or assignee.
12.14. Financial Reporting/Tax Characterization.
Lessee agrees to obtain advice from its own accountants and tax counsel
regarding the financial reporting treatment and the tax characterization of the
transactions described in the Operative Agreements. Lessee further agrees that
Lessee shall not rely upon any statement of any Financing Party or any of their
respective Affiliates and/or Subsidiaries regarding any such financial reporting
treatment and/or tax characterization.
12.15. Set-off.
In addition to any rights now or hereafter granted under applicable Law
and not by way of limitation of any such rights, upon and after the occurrence
of any Event of Default and during the continuation thereof, the Lenders, the
Holders, their respective Affiliates and any assignee or participant of a Lender
or a Holder in accordance with the applicable provisions of the Operative
Agreements are hereby authorized by the Credit Parties at any time or from time
to time, without notice to the Credit Parties or to any other Person, any such
notice being hereby expressly waived, to set-off and to appropriate and to apply
any and all deposits (general or special, time or demand, including without
limitation indebtedness evidenced by certificates of deposit, whether matured or
unmatured) and any other indebtedness at any time held or owing by the Lenders,
the Holders, their respective Affiliates or any assignee or participant of a
Lender or a Holder in accordance with the applicable provisions of the Operative
Agreements to or for the credit or the account of any Credit Party against and
on account of the obligations of any Credit Party under the Operative Agreements
irrespective of whether or not (a) the Lenders or the Holders shall have made
any demand under any Operative Agreement or (b) the Agent shall have declared
any or all of the obligations of any Credit Party under the Operative Agreements
to be due and payable and although such obligations shall be contingent or
unmatured. Notwithstanding the foregoing, neither the Agent nor any other
Financing Party shall exercise, or attempt to exercise, any right of setoff,
banker's lien, or the like, against any deposit account or property of any
Credit Party held by the Agent or any other Financing Party, without the prior
written consent of the Majority Secured Parties, and any Financing Party
violating this provision shall indemnify the Agent and the other Financing
Parties from any and all costs, expenses, liabilities and damages resulting
therefrom. The contractual restriction on the exercise of setoff rights provided
in the foregoing sentence is solely for the benefit of the Agent and the
Financing Parties and may not be enforced by any Credit Party.
[signature pages follow]
Participation Agreement
Centennial Real Estate Trust 1998-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
CONSTRUCTION AGENT
AND LESSEE: CENTENNIAL HEALTHCARE CORPORATION,
as the Construction Agent and as
the Lessee
By: /S/ Xxxx X
Xxxx
Name: Xxxx X. Xxxx
Title: E.V.P.
[Signature Pages Continue]
GUARANTORS: CENTENNIAL/ASHTON PROPERTIES
CORPORATION, a Georgia corporation
By: /s/ Xxxx X.
Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
CENTENNIAL HEALTHCARE PROPERTIES
CORPORATION, a Georgia corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
CENTENNIAL HEALTHCARE MANAGEMENT
CORPORATION, a Georgia corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
CENTENNIAL ACQUISITION CORPORATION,
a Georgia corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
[Signature Pages Continue]
CENTENNIAL PROFESSIONAL THERAPY
SERVICES CORPORATION, a Georgia
corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
CENTENNIAL HEALTHCARE INVESTMENT
CORPORATION, a Georgia corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
CENTENNIAL HEALTHCARE HOSPITAL
CORPORATION, a Georgia corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
TRANSITIONAL HEALTH SERVICES, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
TRANSITIONAL FINANCIAL SERVICES,
INC., a Delaware corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
[Signature Pages Continue]
PARAGON REHABILITATION, INC., a
Delaware corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
THS PARTNERS I, INC., a Delaware
corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
THS PARTNERS II, INC., a Delaware
corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
TRANSITIONAL HEALTH PARTNERS d/b/a
TRANSITIONAL HEALTH SERVICES, a
Delaware general partnership
By: THS PARTNERS I, INC., its
general partner
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
By: THS PARTNERS II, INC., its
general partner
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
[Signature Pages Continue]
PARKVIEW PARTNERSHIP, a Delaware
general partnership
By: THS PARTNERS I, INC., its
general partner
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
By: THS PARTNERS II, INC., its
general partner
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
TOTAL CARE CONSOLIDATED, INC., a
North Carolina corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
TOTAL CARE, INC., a North Carolina
corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
TOTAL HEALTH CARE SERVICES, INC., a
North Carolina corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
[Signature Pages Continue]
TOTAL CARE OF THE CAROLINAS, INC.,
a North Carolina corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
HCC HOME HEALTH OF LOUISIANA, INC.,
a Louisiana corporation
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
[Signature Pages Continue]
OWNER TRUSTEE AND
LESSOR: FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually,
except as expressly stated herein,
but solely as the Owner Trustee
under the Centennial Real Estate
Trust 1998-1
By: /s/ Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title: V.P.
[Signature Pages Continue]
SYNDICATION AGENT: FIRST UNION CAPITAL MARKETS, A
DIVISION OF WHEAT FIRST SECURITIES,
INC., as the Syndication Agent
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Sen. V.P.
[Signature Pages Continue]
AGENT AND LENDERS: NATIONSBANK, N.A., as an Agent and
as a Lender
By: /s/ J. Xxxxxx Xxxxx
Name: J. Xxxxxx Xxxxx
Title: V.P.
[Signature Pages Continue]
FIRST UNION NATIONAL BANK, as a
Lender
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Sen. V.P,
[Signature Pages Continue]
AMSOUTH BANK, as a Lender
By: /s/ J. Xxx
Diafatta
Name: J. Xxx Diafatta
Title: Asst. V.P.
[Signature Pages Continue]
CREDIT LYONNAIS NEW YORK BRANCH, as
a Lender
By:/s/ Xxxx Xxxxxx
Name:Xxxx Xxxxxx
Title: V.P.
[Signature Pages Continue]
COOPERATIVE CENTRALE
RAIFFEISEN-BOERENLEENBANK, B.A.
"RABOBANK NEDERLAND", NEW YORK
BRANCH, as a Lender
By:/s/ Xxxxxxx Xxxxx; Xxxxxx X.
Xxxxxx
Name:Xxxxxxx Xxxxx; Xxxxxx X.
Xxxxxx
Title: V.P.; Sen. V.P.
[Signature Pages Continue]
COMERICA BANK, as a Lender
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Account Officer
[Signature Pages Continue]
NATIONAL CITY BANK OF KENTUCKY, as
a Lender
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Sen. V.P.
[Signature Pages Continue]
WACHOVIA BANK, N.A., as a Lender
By:/s/ Xxxx X. Xxxxxxx
Name:Xxxx X. Xxxxxxx
Title: V.P.
[Signature Pages Continue]
SCOTIABANC INC., as a Lender
By:/s/ Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title: Sen. Reationship Mgr.
[Signature Pages Continue]
HOLDERS: FIRST UNION NATIONAL BANK, as a
Holder
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Sen. V.P.
[Signature Pages Continue]
NATIONSBANK, N.A., as a Holder
By: /s/ J. Xxxxxx Xxxxx
Name: J. Xxxxxx Xxxxx
Title: V.P.
[Signature Pages Continue]
AMSOUTH BANK, as a Holder
By: /s/ J. Xxx Xxxxxxx
Name: J. Xxx Xxxxxxx
Title: Asst. V.P.
[Signature Pages Continue]
WACHOVIA BANK, N.A., as a Holder
By:/s/ Xxxx X. Xxxxxxx
Name:Xxxx X. Xxxxxxx
Title: Vice President
[Signature Pages Continue]
SCOTIABANC INC., as a Holder
By:/s/ Xxxxxxx X. Xxxxxxx
Name:Xxxxxxx X. Xxxxxxx
Title: Sen Relationship Mgr.
[End of Signatures]
EXHIBIT A
REQUISITION FORM
(OMITTED)
EXHIBIT B
[Outside Counsel Opinion for the Lessee]
(Pursuant to Section 5.3(j) of the
Participation Agreement)
OMITTED
EXHIBIT C
OFFICER'S CERTIFICATE
OMITTED
EXHIBIT D
CENTENNIAL HEALTHCARE CORPORATION
SECRETARY'S CERTIFICATE
OMITTED
EXHIBIT E
CENTENNIAL HEALTHCARE CORPORATION
OFFICER'S CERTIFICATE
OMITTED
EXHIBIT F
FIRST SECURITY BANK, NATIONAL ASSOCIATION
SECRETARY'S CERTIFICATE
OMITTED
EXHIBIT G
[Outside Counsel Opinion for the Owner Trustee]
(Pursuant to Section 5.3(ee) of the
Participation Agreement)
OMITTED
EXHIBIT H
[Outside Counsel Opinion for the Lessee]
(Pursuant to Section 5.3(ff) of the Participation Agreement)
OMITTED
EXHIBIT I
CENTENNIAL HEALTHCARE CORPORATION
OFFICER'S CERTIFICATE
OMITTED
EXHIBIT K
OMITTED
EXHIBIT L
OMITTED
EXHIBIT M
CENTENNIAL HEALTHCARE CORPORATION
OFFICER'S COMPLIANCE CERTIFICATE
OMITTED
EXHIBIT N
[Legal Description of Arkansas Property]
OMITTED
-
Appendix A
-------------------------------------------------------------------
Rules of Usage and Definitions
I. Rules of Usage
The following rules of usage shall apply to this Appendix A and the Operative
Agreements (and each appendix, schedule, exhibit and annex to the foregoing)
unless otherwise required by the context or unless otherwise defined therein:
(a) Except as otherwise expressly provided, any definitions set forth
herein or in any other document shall be equally applicable to the singular and
plural forms of the terms defined.
(b) Except as otherwise expressly provided, references in any document to
articles, sections, paragraphs, clauses, annexes, appendices, schedules or
exhibits are references to articles, sections, paragraphs, clauses, annexes,
appendices, schedules or exhibits in or to such document.
(c) The headings, subheadings and table of contents used in any document
are solely for convenience of reference and shall not constitute a part of any
such document nor shall they affect the meaning, construction or effect of any
provision thereof.
(d) References to any Person shall include such Person, its successors,
permitted assigns and permitted transferees.
(e) Except as otherwise expressly provided, reference to any agreement
means such agreement as amended, modified, extended, supplemented, restated
and/or replaced from time to time in accordance with the applicable provisions
thereof.
(f) Except as otherwise expressly provided, references to any law includes
any amendment or modification to such law and any rules or regulations issued
thereunder or any law enacted in substitution or replacement therefor.
(g) When used in any document, words such as "hereunder", "hereto",
"hereof" and "herein" and other words of like import shall, unless the context
clearly indicates to the contrary, refer to the whole of the applicable document
and not to any particular article, section, subsection, paragraph or clause
thereof.
(h) References to "including" means including without limiting the
generality of any description preceding such term and for purposes hereof the
rule of ejusdem generis shall not be applicable to limit a general statement,
followed by or referable to an enumeration of specific matters, to matters
similar to those specifically mentioned.
(i) References herein to "attorney's fees", "legal fees", "costs of
counsel" or other such references shall be deemed to include the allocated cost
of in-house counsel.
(j) Each of the parties to the Operative Agreements and their counsel have
reviewed and revised, or requested revisions to, the Operative Agreements, and
the usual rule of construction that any ambiguities are to be resolved against
the drafting party shall be inapplicable in the construing and interpretation of
the Operative Agreements and any amendments or exhibits thereto.
(k) Capitalized terms used in any Operative Agreements which are not
defined in this Appendix A but are defined in another Operative Agreement shall
have the meaning so ascribed to such term in the applicable Operative Agreement.
II. Definitions
"ABR" shall mean, for any day, a rate per annum equal to the greater of
(a) the Prime Lending Rate in effect on such day, and (b) the Federal Funds
Effective Rate in effect on such day plus one-half of one percent (0.5%). For
purposes hereof: "Prime Lending Rate" shall mean the rate which the Agent
announces from time to time as its prime lending rate as in effect from time to
time. The Prime Lending Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer. Any Lender
may make commercial loans or other loans at rates of interest at, above or below
the Prime Lending Rate. The Prime Lending Rate shall change automatically and
without notice from time to time as and when the prime lending rate of the Agent
changes. "Federal Funds Effective Rate" shall mean, for any period, a
fluctuating interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions with
members or the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
(3) Federal funds brokers of recognized standing selected by it. Any change in
the ABR due to a change in the Prime Lending Rate or the Federal Funds Effective
Rate shall be effective as of the opening of business on the effective day of
such change in the Prime Lending Rate or the Federal Funds Effective Rate,
respectively.
"ABR Holder Advance" shall mean a Holder Advance bearing a Holder Yield
based on the ABR.
"ABR Loans" shall mean Loans the rate of interest applicable to which is
based upon the ABR.
"Acceleration" shall have the meaning given to such term in Section 6 of
the Credit Agreement.
"Accounts" shall have the meaning given to such term in Section 1 of the
Security Agreement.
"Acquisition Advance" shall have the meaning given to such term in Section
5.3 of the Participation Agreement.
"Acquisition Loan" shall mean any Loan made in connection with an
Acquisition Advance.
"Additional Incorporated Terms" shall have the meaning given to such term
in Section 28.1 of the Lease.
"Adjusted EBITDAR" shall mean EBITDAR for the Lessee and its Consolidated
Subsidiaries for the most-recently ended Rolling Period; provided, that in the
event that any Permitted Acquisition has been consummated during such Rolling
Period and the Credit Parties have delivered to the Lenders and the Holders pro
forma combined historical financial statements in form and substance
satisfactory to the Majority Secured Parties, then for purposes of calculating
Adjusted EBITDAR hereunder, EBITDAR for such Rolling Period shall be calculated
for the Lessee and its Consolidated Subsidiaries including such Permitted
Acquisition, based on such pro forma combined historical financial statements.
"Adjusted Eurodollar Rate" shall mean, for any Interest Period, as applied
to a Eurodollar Loan or a Eurodollar Holder Advance, the rate per annum (
rounded upwards, if necessary, to the next 1/16 of 1%) determined pursuant to
the following formula:
Adjusted Eurodollar Rate = ______Eurodollar
Rate_____
[1 - Reserve Percentage]
"Adjusted Total Debt" shall mean, as of any date of determination, the sum
of (a) all Funded Debt of the Lessee and its Consolidated Subsidiaries as of
such date, plus (b) the amount of all operating leases (other than operating
leases financed through the Operative Agreements), based on the present value of
all payments required under such operating leases calculated using a discount
rate of ten percent (10%) per annum.
"Advance" shall mean a Construction Advance or an
Acquisition Advance.
"Affiliate" shall mean, with respect to any Person, any Person or group
acting in concert in respect of the Person in question that, directly or
indirectly, controls or is controlled by or is under common control with such
Person.
"After Tax Basis" shall mean, with respect to any payment to be received,
the amount of such payment increased so that, after deduction of the amount of
all taxes required to be paid by the recipient calculated at the then maximum
marginal rates generally applicable to Persons of the same type as the
recipients with respect to the receipt by the recipient of such amounts (less
any tax savings realized as a result of the payment of the indemnified amount),
such increased payment (as so reduced) is equal to the payment otherwise
required to be made.
"Agency Agreement" shall mean the Agency Agreement, dated on or about the
Initial Closing Date between the Construction Agent and the Lessor.
"Agency Agreement Event of Default" shall mean an "Event of Default" as
defined in Section 5.1 of the Agency Agreement.
"Agent" shall mean NationsBank, N.A., as agent for the Lenders pursuant to
the Credit Agreement, or any successor agent appointed in accordance with the
terms of the Credit Agreement and respecting the Security Documents, for the
Lenders and the Holders, to the extent of their interests.
"Applicable Percentage" shall mean for Loans, Holder Advances and the
Unused Fee, the appropriate applicable percentage corresponding to the ratio of
Adjusted Total Debt to Adjusted EBITDAR (the Applicable Percentage being the
lowest applicable percentage per annum as to which the ratio requirement has
been attained):
Applicable
Applicable Percentage Applicable Applicable Applicable
Percentage Applicable for Percentage Percentage Percentage
Pricing for Percentage Eurodollar for for for
Level Ratio of Eurodollar for ABR Holder ABR Lender Holder
Adjusted Total Loans Loans Advances Holder Unused Unused
Debt/Adjusted Advances Fee Fee
EBITDAR
Tier I Less than or 0.950% 0.075% 1.450% 0.575% 0.200% 0.200%
equal to 3.50 to
1.00
Tier II Less than or 1.200% 0.075% 1.700% 0.575% 0.250% 0.250%
equal to 4.00 to
1.00 but greater
than 3.50 to 1.00
Tier III Less than or 1.450% 0.075% 1.950% 0.575% 0.250% 0.250%
equal to 4.50 to
1.00 but greater
than 4.00 to 1.00
Tier IV Greater than 1.700% 0.200% 2.200% 0.700% 0.375% 0.375%
4.50 to 1.00
The initial Applicable Percentage, which shall be applicable commencing on the
Initial Closing Date, shall be based on the Lessee's financial statements for
the fiscal period ended March 31, 1998 and the Officer's Compliance Certificate
delivered pursuant to Paragraph 4.1 of the Lessee Credit Agreement; thereafter,
the Applicable Percentage shall adjust automatically, as appropriate, on the day
following delivery of each Officer's Compliance Certificate provided, that in
the event that an Officer's Compliance Certificate has not been delivered as
required by Section 8.3(1) of the Participation Agreement, then the Applicable
Percentage shall adjust to Level IV provided above as of the date of required
delivery; provided, further, however, the Applicable Percentage shall adjust on
the day after delivery of such delinquent Officer's Compliance Certificate based
on the ratio set forth in such Officer's Compliance Certificate. Notwithstanding
the foregoing, at any time that the default rate of interest or yield, as the
case may be, shall apply in accordance with Section 2.8(b) of the Credit
Agreement and Section 3.2(b) of the Trust Agreement, the Applicable Percentage
shall be the highest margin provided above with respect to ABR Loans, Eurodollar
Loans, ABR Holder Advances and Eurodollar Holder Advances, respectively.
"Appraisal" shall mean, with respect to any Property, an appraisal to be
delivered in connection with the Participation Agreement or in accordance with
the terms of the Lease, in each case prepared by a reputable appraiser
reasonably acceptable to the Agent, which in the judgment of counsel to the
Agent, complies with all of the provisions of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as amended, the rules and regulations
adopted pursuant thereto, and all other applicable Legal Requirements.
"Appraisal Procedure" shall have the meaning given such term in Section
22.4 of the Lease.
"Approved State" shall mean each state within the continental United
States.
"Appurtenant Rights" shall mean (a) all agreements, easements, rights of
way or use, rights of ingress or egress, privileges, appurtenances, tenements,
hereditaments and other rights and benefits at any time belonging or pertaining
to the Land underlying the Improvements or the Improvements, including without
limitation the use of any streets, ways, alleys, vaults or strips of land
adjoining, abutting, adjacent or contiguous to the Land and (b) all permits,
licenses and rights, whether or not of record, appurtenant to such Land or the
Improvements.
"Assignment and Acceptance" shall mean the Assignment and Acceptance in
the form attached to the Credit Agreement as Exhibit B.
"Available Commitment" shall mean, as to any Lender at any time, an amount
equal to the excess, if any, of (a) the amount of such Lender's Lender
Commitment over (b) the aggregate principal amount of all Loans made by such
Lender as of such date after giving effect to Section 5.2(d) of the
Participation Agreement (but without giving effect to any other repayments or
prepayments of any Loans hereunder).
"Available Holder Commitments" shall mean an amount equal to the excess,
if any, of (a) the aggregate amount of the Holder Commitments over (b) the
aggregate amount of the Holder Advances made since the Initial Closing Date
after giving effect to Section 5.2(d) of the Participation Agreement (but
without giving effect to any other repayments or prepayments of any Holder
Advances).
"Bankruptcy Code" shall mean Title 11 of the U. S. Code
entitled "Bankruptcy," as now or hereafter in effect or any
successor thereto.
"Basic Documents" shall mean the following: the
Participation Agreement, the Agency Agreement, the Trust
Agreement, the Certificates, the Credit Agreement, the Notes, the
Lease and the Security Agreement.
"Basic Rent" shall mean, the sum of (a) the Loan Basic Rent and (b) the
Lessor Basic Rent, calculated as of the applicable date on which Basic Rent is
due.
"Basic Term" shall have the meaning specified in Section 2.2
of the Lease.
"Basic Term Commencement Date" shall have the meaning specified in Section
2.2 of the Lease.
"Basic Term Expiration Date" shall have the meaning specified in Section
2.2 of the Lease.
"Benefitted Lender" shall have the meaning specified in Section 9.10(a) of
the Credit Agreement.
"Xxxx of Sale" shall mean a Xxxx of Sale regarding Equipment in form and
substance satisfactory to the Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States (or any successor).
"Borrower" shall mean the Owner Trustee, not in its individual capacity
but as Borrower under the Credit Agreement.
"Borrowing Date" shall mean any Business Day specified in a notice
delivered pursuant to Section 2.3 of the Credit Agreement as a date on which the
Lessor requests the Lenders to make Loans hereunder.
"Budgeted Total Property Cost" shall mean, at any date of determination
with respect to any Construction Period Property, an amount equal to the
aggregate amount which the Construction Agent in good faith expects to be
expended in order to achieve Completion with respect to such Property.
"Business Day" shall mean a day other than a Saturday, Sunday or other day
on which commercial banks in Charlotte, North Carolina, Atlanta, Georgia and
Philadelphia, Pennsylvania or any other states from which the Agent, any Lender
or any Holder funds or engages in administrative activities with respect to the
transactions under the Operative Agreements are authorized or required by law to
close; provided, however, that when used in connection with a Eurodollar Loan or
Eurodollar Holder Advance, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in dollar deposits in the London interbank
market.
"Capitalized Lease" shall mean, as applied to any Person, any lease of
property (whether real, personal, tangible, intangible or mixed of such Person)
by such Person as the lessee which would be capitalized on a balance sheet of
such Person prepared in accordance with GAAP.
"Capital Stock" shall mean any nonredeemable capital stock of any Credit
Party or any of its Subsidiaries, whether common or preferred.
"Casualty" shall mean any damage or destruction of all or any portion of
the Property as a result of a fire or other casualty.
"Centennial" shall mean Centennial Healthcare Corporation, a Georgia
corporation, and its successors and permitted assigns.
"Centennial Real Estate Trust 1998-1" shall mean the grantor trust created
pursuant to the terms and conditions of the Trust Agreement.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. ss. 9601 et seq., as amended
by the Superfund Amendments and Reauthorization Act of 1986.
"Certificate" shall mean a Certificate in favor of each Holder regarding
the Holder Commitment of such Holder issued pursuant to the terms and conditions
of the Trust Agreement in favor of each Holder.
"Chattel Paper" shall have the meaning given to such term in Section 1 of
the Security Agreement.
"Claims" shall mean any and all obligations, liabilities, losses, actions,
suits, penalties, claims, demands, costs and expenses (including without
limitation reasonable attorney's fees and expenses) of any nature whatsoever.
"Closing Date" shall mean the Initial Closing Date and each Property
Closing Date.
"Code" shall mean the Internal Revenue Code of 1986 together with rules
and regulations promulgated thereunder, as amended from time to time, or any
successor statute thereto.
"Collateral" shall mean all assets now owned or hereafter acquired by the
Lessor, the Construction Agent and/or the Lessee upon which a Lien is purported
to be created by one or more of the Security Documents.
"Commitment" shall mean the aggregate of the Holder
Commitment plus the Lender Commitment.
"Commitment Percentage" shall mean, as to any Lender at any time, the
percentage which such Lender's Lender Commitment then constitutes of the
aggregate Lender Commitments (or, at any time after the Lender Commitments shall
have expired or terminated, the percentage which the aggregate principal amount
of such Lender's Loans then outstanding constitutes of the aggregate principal
amount of all of the Loans then outstanding), and such Commitment Percentage
shall take into account both the Lender's Tranche A Commitment and the Lender's
Tranche B Commitment.
"Commitment Period" shall mean the period from and including the Initial
Closing Date to and including the Construction Period Termination Date, or such
earlier date as the Lender Commitments shall terminate as provided in the Credit
Agreement or the Holder Commitment shall terminate as provided in the Trust
Agreement.
"Company Obligations" shall mean the obligations of Centennial, in any and
all capacities under and with respect to the Operative Agreements and each
Property.
"Completion" shall mean, with respect to a Property, such time as the
acquisition, installation, testing and final completion of the Improvements on
such Property has been achieved substantially in accordance with the Plans and
Specifications, the Agency Agreement and/or the Lease, and in compliance with
all Legal Requirements and Insurance Requirements and a certificate of occupancy
has been issued with respect to such Property by the appropriate governmental
entity (except if non-compliance, individually or in the aggregate, shall not
have and could not reasonably be expected to have a Material Adverse Effect). If
(i) the Lessor purchases a Property that includes existing Improvements that are
to be immediately occupied by the Lessee without any improvements financed
pursuant to the Operative Agreements, the date of Completion and the Rent
Commencement Date for such Property shall be the Property Closing Date and (ii)
the Lessor receives an Advance in connection with a Property that is being
purchased pursuant to an Escrowed Closing (as described in Section 5.2(d) of the
Participation Agreement), the date of completion and the Rent Commencement Rate
of such Property shall be the date of the Advance that is placed in such escrow.
"Completion Date" shall mean, with respect to a Property, the earlier of
(a) the date on which Completion for such Property has occurred or (b) the
Construction Period Termination Date.
"Condemnation" shall mean any taking or sale of the use, access,
occupancy, easement rights or title to any Property or any part thereof, wholly
or partially (temporarily or permanently), by or on account of any actual or
threatened eminent domain proceeding or other taking of action by any Person
having the power of eminent domain, including without limitation an action by a
Governmental Authority to change the grade of, or widen the streets adjacent to,
any Property or alter the pedestrian or vehicular traffic flow to any Property
so as to result in a change in access to such Property, or by or on account of
an eviction by paramount title or any transfer made in lieu of any such
proceeding or action.
"Consolidated Subsidiary" shall mean, as to any Person, any Subsidiary of
such Person which under the rules of GAAP consistently applied should have its
financial results consolidated with those of such Person for purposes of
financial accounting statements.
"Construction Advance" shall mean an advance of funds to pay Property
Costs pursuant to Section 5.4 of the Participation Agreement.
"Construction Agent" shall mean Centennial, a Georgia corporation, as the
construction agent under the Agency Agreement.
"Construction Budget" shall mean the cost of acquisition, installation,
testing, constructing and developing any Property as determined by the
Construction Agent in its reasonable, good faith judgment.
"Construction Commencement Date" shall mean, with respect to Improvements,
the date on which construction of such Improvements commences pursuant to the
Agency Agreement.
"Construction Contract" shall mean any contract entered into between the
Construction Agent or the Lessee with a Contractor for the construction of
Improvements or any portion thereof on the Property.
"Construction Loan" shall mean any Loan made in connection with a
Construction Advance.
"Construction Loan Property Cost" shall mean with respect to each
Construction Period Property at the date of determination, an amount equal to
(a) the aggregate principal amount of Construction Loans made on or prior to
such date with respect to the Property minus (b) the aggregate principal amount
of prepayments or repayments of the Loans allocated to reduce the Construction
Loan Property Cost of such Property pursuant to Section 2.6(c) of the Credit
Agreement.
"Construction Period" shall mean, with respect to a Property, the period
commencing on the Construction Commencement Date for such Property and ending on
the Completion Date for such Property.
"Construction Period Property" means, at any date of determination, any
Property as to which the Rent Commencement Date has not occurred on or prior to
such date.
"Construction Period Termination Date" shall mean (a) the earlier of (i)
the date that the Lender Commitments have been terminated in their entirety in
accordance with the terms of Section 2.5(a) of the Credit Agreement, or (ii) the
second anniversary of the Initial Closing Date or (b) such later date as may be
agreed to by the Majority Secured Parties.
"Contractor" shall mean each entity with whom the Construction Agent or
the Lessee contracts to construct any Improvements or any portion thereof on the
Property.
"Controlled Group" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with any Credit Party, are treated as a single
employer under Section 414 of the Code.
"Controlling Person" shall have the meaning specified in
Section 17.1(n) of the Lease.
"Co-Owner Trustee" shall have the meaning specified in Section 9.2 of the
Trust Agreement.
"Credit Agreement" shall mean the Credit Agreement, dated on or about the
Initial Closing Date, among the Lessor, the Agent and the Lenders, as specified
therein.
"Credit Agreement Default" shall mean any event or condition which, with
the lapse of time or the giving of notice, or both, would constitute a Credit
Agreement Event of Default.
"Credit Agreement Event of Default" shall mean any event or condition
defined as an "Event of Default" in Section 6 of the Credit Agreement.
"Credit Documents" shall mean the Participation Agreement, the Agency
Agreement, the Credit Agreement, the Notes and the Security Documents.
"Credit Parties" shall mean the Construction Agent, the
Lessee and each Guarantor.
"Deed" shall mean a warranty deed regarding the Land and/or Improvements
in form and substance satisfactory to the Agent.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Holder" shall have the meaning given to such term in Section
12.4 of the Participation Agreement.
"Defaulting Lender" shall have the meaning given to such term in Section
12.4 of the Participation Agreement.
"Deficiency Balance" shall have the meaning given in Section 22.1(b) of
the Lease Agreement.
"Documents" shall have the meaning given to such term in Section 1 of the
Security Agreement.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Domestic Subsidiary" shall mean, with respect to any Person, any
Subsidiary of such Person which is incorporated or organized under the laws of
any State of the United States or the District of Columbia.
"Early Purchase Cap" shall have the meaning given to such term in Section
20.1 of the Lease.
"EBITDA" shall mean, for any period, Net Income of the Lessee and its
Consolidated Subsidiaries for such period plus (to the extent deducted from
revenue in calculating net income) depreciation, amortization and non-recurring
non-cash charges and expenses associated with a sale of assets or refinancing of
Indebtedness or leases permitted hereunder, taxes and interest expense
(including interest expense on Capitalized Leases) for the Lessee and its
Consolidated Subsidiaries for such period.
"EBITDAR" shall mean for any period, EBITDA of the Lessee and its
Consolidated Subsidiaries for such period plus operating lease expense for the
Lessee and its Consolidated Subsidiaries for such period.
"Escrowed Closing" shall have the meaning given to such term in Section
5.2(d) of the Participation Agreement.
"Election Date" shall have the meaning given to such term in Section 20.1
of the Lease.
"Election Notice" shall have the meaning given to such term in Section
20.1 of the Lease.
"Eligible Assignee" shall mean (i) a Lender or a Holder, as the case may
be; (ii) an Affiliate of a Lender or a Holder, as the case may be; and (iii) any
other Person approved by the Agent and, unless an Event of Default has occurred
and is continuing at the time any assignment is effected in accordance with the
Operative Agreements, the Lessee or the Construction Agent, such approval not to
be unreasonably withheld or delayed by the Lessee or the Construction Agent and
such approval to be deemed given by the Lessee or the Construction Agent if no
objection is received by the assigning Lender or Holder and the Agent from the
Lessee or the Construction Agent within two Business Days after notice of such
proposed assignment has been provided by the assigning Lender or Holder to the
Lessee or the Construction Agent; provided, however, that neither the Lessee or
the Construction Agent nor an Affiliate of the Lessee or the Construction Agent
shall qualify as an Eligible Assignee.
"Environmental Claims" shall mean any investigation, notice, violation,
demand, allegation, action, suit, injunction, judgment, order, consent decree,
penalty, fine, lien, proceeding, or claim (whether administrative, judicial, or
private in nature) arising (a) pursuant to, or in connection with, an actual or
alleged violation of, any Environmental Law, (b) in connection with any
Hazardous Substance, (c) from any abatement, removal, remedial, corrective, or
other response action in connection with a Hazardous Substance, Environmental
Law, or other order of a Tribunal or (d) from any actual or alleged damage,
injury, threat, or harm to health, safety, natural resources, or the
environment.
"Environmental Control Statutes" shall mean all federal, state or local
laws and regulations regarding environmental or pollution concerns including
without limitation the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (as amended, "CERCLA"), the Solid Waste Disposal Act, the
Clean Water Act and the Clean Air Act, the Resource Conservation and Recovery
Act of 1976, the Federal Water Pollution Control Act Amendments of 1972 and the
Occupational Safety and Health Act, each as amended from time to time, and all
regulations, directives, policies or interpretations issued in connection with
any such statute.
"Environmental Laws" shall mean any Law, permit, consent, approval,
license, award, or other authorization or requirement of any Tribunal relating
to emissions, discharges, releases, threatened releases of any Hazardous
Substance into ambient air, surface water, ground water, publicly owned
treatment works, septic system, or land, or otherwise relating to the handling,
storage, treatment, generation, use, or disposal of Hazardous Substances,
pollution or to the protection of health or the environment, including without
limitation CERCLA, the Resource Conservation and Recovery Act, 42 U.S.C. ss.
6901, et seq., and state statutes analogous thereto.
"Environmental Violation" shall mean any activity, occurrence or condition
that violates or threatens (if the threat requires remediation under any
Environmental Law and is not remediated during any grace period allowed under
such Environmental Law) to violate or results in or threatens (if the threat
requires remediation under any Environmental Law and is not remediated during
any grace period allowed under such Environmental Law) to result in
noncompliance with any Environmental Law.
"Equipment" shall mean equipment, apparatus, furnishings, fittings and
personal property of every kind and nature whatsoever purchased, leased or
otherwise acquired using the proceeds of the Loans or the Holder Advances by the
Construction Agent, the Lessee or the Lessor and all improvements and
modifications thereto and replacements thereof, whether or not now owned or
hereafter acquired or now or subsequently attached to, contained in or used or
usable in any way in connection with any operation of any Improvements,
including but without limiting the generality of the foregoing, all equipment
described in the Appraisal including without limitation all heating, electrical,
and mechanical equipment, lighting, switchboards, plumbing, ventilation, air
conditioning and air-cooling apparatus, refrigerating, and incinerating
equipment, escalators, elevators, loading and unloading equipment and systems,
cleaning systems (including without limitation window cleaning apparatus),
telephones, communication systems (including without limitation satellite dishes
and antennae), televisions, computers, sprinkler systems and other fire
prevention and extinguishing apparatus and materials, security systems, motors,
engines, machinery, pipes, pumps, tanks, conduits, appliances, fittings and
fixtures of every kind and description.
"Equipment Schedule" shall mean (a) each Equipment Schedule attached to
the applicable Requisition and (b) each Equipment Schedule attached to the
applicable Lease Supplement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Eurocurrency Reserve Requirements" shall mean for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal) of reserve requirements in effect on such day
(including without limitation basic, supplemental, marginal and emergency
reserves under any regulations of the Board or other Governmental Authority
having jurisdiction with respect thereto) dealing with reserve requirements
prescribed on eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Holder Advance" shall mean a Holder Advance bearing a Holder
Yield based on the Eurodollar Rate.
"Eurodollar Loans" shall mean Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate" shall mean, as applied to any Eurodollar Loan or
Eurodollar Holder Advance, the rate which appears on Telerate Page 3750 at
approximately 9:00 a.m. (Philadelphia time) two (2) London Business Days prior
to commencement of such Interest Period for the offering to leading banks in the
London Interbank Market of deposits in United States dollars (Eurodollars) or,
if such rate does not appear on the Telerate Page 3750, the rate which appears
(or, if two (2) or more such rates appear, the average rounded up to the nearest
1/16 of 1 % of the rates which appear) on the Reuters Screen LIBO Page as of
9:00 a.m. Philadelphia time two (2) London Business Days prior to the
commencement of the Interest Period, in either case for an amount substantially
equal to such Eurodollar Loan or Eurodollar Holder Advance as to which the
Borrower may elect the Adjusted Eurodollar Rate to be applicable with a maturity
of comparable duration to the Interest Period selected by the Borrower for such
Eurodollar Loan or Eurodollar Holder Advance, as may be adjusted from time to in
accordance with the applicable provisions of the Operative Agreements including
without limitation Section 11.3 of the Participation Agreement.
"Event of Default" shall mean a Lease Event of Default, an Agency
Agreement Event of Default or a Credit Agreement Event of Default.
"Excepted Payments" shall mean:
(a) all indemnity payments (including without limitation indemnity
payments made pursuant to Section 11 of the Participation Agreement),
whether made by adjustment to Basic Rent or otherwise, to which the Owner
Trustee, any Holder or any of their respective Affiliates, agents,
officers, directors or employees is entitled;
(b) any amounts (other than Basic Rent or Termination Value) payable
under any Operative Agreement to reimburse the Owner Trustee, any Holder
or any of their respective Affiliates (including without limitation the
reasonable expenses of the Owner Trustee, the Trust Company and the
Holders incurred in connection with any such payment) for performing or
complying with any of the obligations of any Credit Party under and as
permitted by any Operative Agreement;
(c) any amount payable to a Holder by any transferee of such interest
of a Holder as the purchase price of such Holder's interest in the Trust
Estate (or a portion thereof);
(d) any insurance proceeds (or payments with respect to risks
self-insured or policy deductibles) under liability policies other than
such proceeds or payments payable to the Agent or any Lender;
(e) any insurance proceeds under policies maintained by the Owner
Trustee or any Holder;
(f) Transaction Expenses or other amounts, fees, disbursements or
expenses paid or payable to or for the benefit of the Owner Trustee or any
Holder;
(g) all right, title and interest of any Holder or the Owner Trustee
to any Property or any portion thereof or any other property to the extent
any of the foregoing has been released from the Liens of the Security
Documents and the Lease pursuant to the terms thereof;
(h) upon termination of the Credit Agreement pursuant to the terms
thereof, all remaining property covered by the Lease or Security
Documents;
(i) all payments in respect of the Holder Yield;
(j) any payments in respect of interest to the extent attributable to
payments referred to in clauses (a) through (i) above; and
(k) any rights of either the Owner Trustee or the Trust Company to
demand, collect, xxx for or otherwise receive and enforce payment of any
of the foregoing amounts, provided that such rights shall not include the
right to terminate the Lease.
"Excess Proceeds" shall mean the excess, if any, of the aggregate of all
awards, compensation or insurance proceeds payable in connection with a Casualty
or Condemnation over the Termination Value paid by the Lessee pursuant to the
Lease with respect to such Casualty or Condemnation.
"Exculpated Persons" shall mean the Trust Company (except with respect to
the representations and warranties and the other obligations of the Trust
Company pursuant to the Operative Agreements expressly undertaken in its
individual capacity, including without limitation the representations and
warranties of the Trust Company pursuant to Section 6.1 of the Participation
Agreement, the obligations of the Trust Company pursuant to Section 8.2 of the
Participation Agreement and the obligations of the Trust Company pursuant to the
Trust Agreement), the Holders (except with respect to the obligations of the
Holders pursuant to the Participation Agreement and the Trust Agreement
expressly undertaken in their respective individual capacities), their officers,
directors, shareholders and partners.
"Exempt Payments" shall have the meaning specified in Section 11.2(e) of
the Participation Agreement.
"Expiration Date" shall mean either (a) the Basic Term Expiration Date or
(b) the last day of the applicable Renewal Term; provided, in no event shall the
Expiration Date be later than the annual anniversary of the Initial Closing Date
occurring in the year 2003, unless such later date has been expressly agreed to
in writing by each of the Lessor, the Lessee, the Agent, the Lenders and the
Holders.
"Fair Market Sales Value" shall mean, with respect to any Property, the
amount (determined in accordance with the Appraisal Procedure), which in any
event, shall not be less than zero (0), that would be paid in cash in an
arms-length transaction between an informed and willing purchaser and an
informed and willing seller, neither of whom is under any compulsion to purchase
or sell, respectively, such Property. Fair Market Sales Value of any Property
shall be determined based on the assumption that, except for purposes of Section
17 of the Lease, such Property is in the condition and state of repair required
under Section 10.1 of the Lease and each Credit Party is in compliance with the
other requirements of the Operative Agreements.
"Federal Funds Effective Rate" shall have the meaning given to such term
in the definition of ABR.
"Financing Parties" shall mean the Lessor, the Owner Trustee, in its trust
capacity, the Agent, the Syndication Agent, the Holders and the Lenders.
"Fixtures" shall mean all fixtures relating to the Improvements, including
without limitation all components thereof, located in or on the Improvements,
together with all replacements, modifications, alterations and additions
thereto.
"Force Majeure Event" shall mean any event beyond the control of the
Construction Agent, other than a Casualty or Condemnation, including without
limitation strikes, lockouts, adverse soil conditions, acts of God, adverse
weather conditions, inability to obtain labor or materials, governmental
activities, civil commotion and enemy action; but excluding any event, cause or
condition that results from the Construction Agent's financial condition.
"Form 1001" shall have the meaning specified in Section 11.2(e) of the
Participation Agreement.
"Form 4224" shall have the meaning specified in Section 11.2(e) of the
Participation Agreement.
"Funded Debt" shall mean, as of any date of determination, the sum,
without duplication, of (a) the aggregate amount available to be drawn under
Letters of Credit and the aggregate amount of unreimbursed draws under Letters
of Credit; plus (b) the aggregate principal amount of all Indebtedness for (i)
borrowed money other than trade indebtedness incurred in the normal and ordinary
course of business for value received, (ii) installment purchases of real or
personal property, (iii) Capitalized Leases, and (iv) guaranties of Funded Debt
of others; and plus (c) the aggregate outstanding balance of all Advances under
the Operative Agreements.
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the accounting principles board of the
American Institute of Certified Public Accountants, and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, that are applicable to the circumstances as of the
date of determination.
"Governmental Action" shall mean all permits, authorizations,
registrations, consents, approvals, waivers, exceptions, variances, orders,
judgments, written interpretations, decrees, licenses, exemptions, publications,
filings, notices to and declarations of or with, or required by, any
Governmental Authority, or required by any Legal Requirement, and shall include,
without limitation, all environmental and operating permits and licenses that
are required for the full use, occupancy, zoning and operating of the Property
substantially in accordance with the actual and intended uses by the Lessee or
any other Person using any applicable Property, or portion thereof, by or
through the Lessee.
"Governmental Authority" shall mean any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Ground Lease" shall mean a ground lease (in form and substance
satisfactory to the Agent) respecting any Property (a) owned by any Credit Party
(or a parent corporation or any Subsidiary of any Credit Party) and leased to
the Lessor where such lease has at least a ninety-nine (99) year term and
payments set at no more than $1.00 per year, or (b) where such lease is subject
to such other terms and conditions as are satisfactory to the Agent.
"Guarantors" shall mean the various parties to the Participation Agreement
from time to time, as guarantors of the Construction Agent and the Lessee with
respect to the Operative Agreements and the Properties.
"Hard Costs" shall mean all costs and expenses payable for supplies,
materials, labor and profit with respect to the Improvements under any
Construction Contract.
"Hazardous Substance" shall mean any of the following: (a) any petroleum
or petroleum product, explosives, radioactive materials, asbestos, formaldehyde,
polychlorinated biphenyls, lead and radon gas; (b) any substance, material,
product, derivative, compound or mixture, mineral, chemical, waste, gas, medical
waste, or pollutant, in each case whether naturally occurring, man-made or the
by-product of any process, that is toxic, harmful or hazardous to the
environment or human health or safety as determined in accordance with any
Environmental Law; or (c) any substance, material, product, derivative, compound
or mixture, mineral, chemical, waste, gas, medical waste or pollutant that would
support the assertion of any claim under any Environmental Law, whether or not
defined as hazardous as such under any Environmental Law.
"HCFA" shall mean the Health Care Financing Administration
of the United States Department of Health and Human Services and
any successor thereto.
"Health Care Facility" shall mean any Nursing Home, Permitted Hospital or
other property or facility which any Credit Party or Subsidiary owns, leases,
operates or manages on or after the date hereof.
"Holder Advance" shall mean any advance made by any Holder to the Owner
Trustee pursuant to the terms of the Trust Agreement or the Participation
Agreement.
"Holder Amount" shall mean as of any date, the aggregate amount of Holder
Advances made by each Holder to the Trust Estate pursuant to Section 2 of the
Participation Agreement and Section 3.1 of the Trust Agreement less any payments
of any Holder Advances received by the Holders pursuant to Section 3.4 of the
Trust Agreement.
"Holder Commitments" shall mean $1,200,000.00, as such amount may be
increased or reduced from time to time in accordance with the provisions of the
Operative Agreements; provided, if there shall be more than one (1) Holder, the
Holder Commitment of each Holder shall be as set forth in Schedule I to the
Trust Agreement as such amounts may be increased or reduced from time to time in
accordance with the provisions of the Operative Agreements.
"Holder Construction Property Cost" shall mean, with respect to each
Construction Period Property, at any date of determination, an amount equal to
the outstanding Holder Advances made with respect thereto under the Trust
Agreement.
"Holder Overdue Rate" shall mean the lesser of (a) the then current rate
of Holder Yield respecting the particular amount in question plus two percent
(2%) and (b) the highest rate permitted by applicable law.
"Holder Property Cost" shall mean with respect to a Property an amount
equal to the outstanding Holder Advances with respect thereto.
"Holder Unused Fee" shall have the meaning given to such term in Section
7.4 of the Participation Agreement.
"Holder Yield" shall mean with respect to Holder Advances from time to
time either the Eurodollar Rate plus the Applicable Percentage or the ABR plus
the Applicable Percentage as elected by the Owner Trustee from time to time with
respect to such Holder Advances in accordance with the terms of the Trust
Agreement; provided, however, (a) upon delivery of the notice described in
Section 3.7(c) of the Trust Agreement, the outstanding Holder Advances of each
Holder shall bear a yield at the ABR plus the Applicable Percentage applicable
from time to time from and after the dates and during the periods specified in
Section 3.7(c) of the Trust Agreement, and (b) upon the delivery by a Holder of
the notice described in Section 11.3(f) of the Participation Agreement, the
Holder Advances of such Holder shall bear a yield at the ABR plus the Applicable
Percentage applicable from time to time after the dates and during the periods
specified in Section 11.3(f) of the Participation Agreement.
"Holders" shall mean the banks and financial institutions which may be
from time to time holders of Certificates in connection with the Centennial Real
Estate Trust 1998-1.
"Impositions" shall mean any and all liabilities, losses, expenses, costs,
charges and Liens of any kind whatsoever for fees, taxes, levies, imposts,
duties, charges, assessments or withholdings ("Taxes") including but not limited
to (i) real and personal property taxes, including without limitation personal
property taxes on any property covered by the Lease that is classified by
Governmental Authorities as personal property, and real estate or ad valorem
taxes in the nature of property taxes; (ii) sales taxes, use taxes and other
similar taxes (including rent taxes and intangibles taxes); (iii) excise taxes;
(iv) real estate transfer taxes, conveyance taxes, stamp taxes and documentary
recording taxes and fees; (v) taxes that are or are in the nature of franchise,
income, value added, privilege and doing business taxes, license and
registration fees; (vi) assessments on any Property, including without
limitation all assessments for public Improvements or benefits, whether or not
such improvements are commenced or completed within the Term; and (vii) taxes,
Liens, assessments or charges asserted, imposed or assessed by the PBGC or any
governmental authority succeeding to or performing functions similar to, the
PBGC; and in each case all interest, additions to tax and penalties thereon,
which at any time prior to, during or with respect to the Term or in respect of
any period for which the Lessee shall be obligated to pay Supplemental Rent, may
be levied, assessed or imposed by any Governmental Authority upon or with
respect to (a) any Property or any part thereof or interest therein; (b) the
leasing, financing, refinancing, demolition, construction, substitution,
subleasing, assignment, control, condition, occupancy, servicing, maintenance,
repair, ownership, possession, activity conducted on, delivery, insuring, use,
operation, improvement, sale, transfer of title, return or other disposition of
such Property or any part thereof or interest therein; (c) the Notes, other
indebtedness with respect to any Property, or the Certificates, or any part
thereof or interest therein; (d) the rentals, receipts or earnings arising from
any Property or any part thereof or interest therein; (e) the Operative
Agreements, the performance thereof, or any payment made or accrued pursuant
thereto; (f) the income or other proceeds received with respect to any Property
or any part thereof or interest therein upon the sale or disposition thereof;
(g) any contract (including the Agency Agreement) relating to the construction,
acquisition or delivery of the Improvements or any part thereof or interest
therein; (h) the issuance of the Notes or the Certificates; (i) the Owner
Trustee, the Trust or the Trust Estate; or (j) otherwise in connection with the
transactions contemplated by the Operative Agreements.
"Improvements" shall mean, with respect to the construction, renovations
and/or Modifications on any Land, all buildings, structures, Fixtures, and other
improvements of every kind existing at any time and from time to time on or
under the Land purchased or otherwise acquired using the proceeds of the Loans
or the Holder Advances or which is subject to a Ground Lease, together with any
and all appurtenances to such buildings, structures or improvements, including
without limitation sidewalks, utility pipes, conduits and lines, parking areas
and roadways, and including without limitation all Modifications and other
additions to or changes in the Improvements at any time, including without
limitation (a) any Improvements existing as of the Property Closing Date as such
Improvements may be referenced on the applicable Requisition and (b) any
Improvements made subsequent to such Property Closing Date.
"Incorporated Covenants" shall have the meaning given to such term in
Section 28.1 of the Lease.
"Incorporated Representations and Warranties" shall have the meaning given
to such term in Section 28.1 of the Lease.
"Indebtedness" shall mean, for any Person, all obligations of such Person
which in accordance with GAAP shall be classified on a balance sheet of such
Person as liabilities of such Person and in any event shall include, without
duplication, all (a) obligations of such Person for borrowed money or which have
been incurred in connection with the acquisition of property or assets; (b)
obligations secured by any lien upon property or assets owned by such Person,
notwithstanding that such Person has not assumed or become liable for the
payment of such obligations; (c) obligations created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person, notwithstanding the fact that the rights and remedies
of the seller, lender or lessor under such agreement in the event of default are
limited to repossession or sale of property; (d) Capitalized Leases; (e)
guarantees; and (f) letters of credit and letter of credit reimbursement
obligations.
"Indemnified Person" shall mean the Lessor, the Owner Trustee, in its
individual and its trust capacity, the Trust, the Trust Company, the Agent, the
Holders, the Lenders, the Syndication Agent and their respective successors,
assigns, directors, shareholders, partners, officers, employees, agents and
Affiliates.
"Indemnity Provider" shall mean, respecting each Property,
the Lessee.
"Initial Closing Date" shall mean July 31, 1998.
"Initial Construction Advance" shall mean any initial Advance to pay for:
(a) Property Costs for construction of any Improvements; and (b) the Property
Costs of restoring or repairing any Property which is required to be restored or
repaired in accordance with Section 15.1(e) of the Lease.
"Instruments" shall have the meaning given to such term in Section 1 of
the Security Agreement.
"Insurance Requirements" shall mean all terms and conditions of any
insurance policy either required by the Lease to be maintained by the Lessee or
required by the Agency Agreement to be maintained by the Construction Agent, and
all requirements of the issuer of any such policy and, regarding self insurance,
any other requirements of the Lessee.
"Interest Period" shall mean, as to any Eurodollar Loan or Eurodollar
Holder Advance a period of one (1), two (2), three (3) or six (6) months'
duration, as the Owner Trustee may elect, during which the Adjusted Eurodollar
Rate is applicable; provided, however, that (a) if any Interest Period would
otherwise end on a day which shall not be a London Business Day, such Interest
Period shall be extended to the next succeeding Business Day, unless such
Business Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Business Day, subject to clause (c) below, (b)
interest shall accrue from and including the first day of each Interest Period
to but excluding the day on which any Interest Period expires, (c) with respect
to an Interest Period which begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period), the Interest Period shall end on the
last Business Day of a calendar month, (d) no Interest Period shall extent
beyond the Maturity Date or the Expiration Date, as the case may be, (e) there
shall not be more than four (4) Interest Periods outstanding at any one (1)
time, and (f) respecting each Interest Period which is six (6) months in
duration, interest and/or Holder Yield on the applicable obligation shall be
payable three (3) months after the commencement of such Interest Period and six
(6) months after the commencement of such Interest Period.
"Investment Company Act" shall mean the Investment Company Act of 1940, as
amended, together with the rules and regulations promulgated thereunder.
"Joinder Agreement" shall mean a joinder agreement, in the form of Exhibit
J to the Participation Agreement, executed from time to time between a Domestic
Subsidiary and the Agent.
"Knowledge" shall mean the actual knowledge of any senior officer of any
Credit Party, or knowledge which any senior officers should have possessed in
the ordinary course of managing the business and affairs of any Credit Party in
a manner consistent with the standards of a reasonably prudent business person
in the long-term care industry.
"Land" shall mean a parcel of real property described on (a) the
Requisition issued by the Construction Agent on the Property Closing Date
relating to such parcel and (b) the schedules to each applicable Lease
Supplement executed and delivered in accordance with the requirements of Section
2.4 of the Lease.
"Law" shall mean any statute, law, ordinance, regulation, rule, directive,
order, writ, injunction or decree of any Tribunal.
"Lease" or "Lease Agreement" shall mean the Lease Agreement dated on or
about the Initial Closing Date, between the Lessor and the Lessee, together with
any Lease Supplements thereto.
"Lease Default" shall mean any event or condition which, with the lapse of
time or the giving of notice, or both, would constitute a Lease Event of
Default.
"Lease Event of Default" shall have the meaning specified in Section 17.1
of the Lease.
"Lease Supplement" shall mean each Lease Supplement substantially in the
form of Exhibit A to the Lease, together with all attachments and schedules
thereto.
"Legal Requirements" shall mean all foreign, federal, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations,
ordinances, judgments, decrees and injunctions affecting the Owner Trustee, any
Holder, the Lessor, any Credit Party, the Agent, any Lender or any Property,
Land, Improvement, Equipment or the taxation, demolition, construction, use or
alteration of such Improvements, whether now or hereafter enacted and in force,
including without limitation any that require repairs, modifications or
alterations in or to any Property or in any way limit the use and enjoyment
thereof (including without limitation all building, zoning and fire codes and
the Americans with Disabilities Act of 1990, 42 U.S.C. ss. 12101 et. seq., and
any other similar federal, state or local laws or ordinances and the regulations
promulgated thereunder) and any that may relate to environmental requirements
(including without limitation all Environmental Laws), and all permits,
certificates of occupancy, licenses, authorizations and regulations relating
thereto, and all covenants, agreements, restrictions and encumbrances contained
in any instruments which are either of record or known to any Credit Party
affecting any Property or the Appurtenant Rights.
"Lender Commitments" shall mean $38,800,000.00, as such amount may be
increased or reduced from time to time in accordance with the provisions of the
Operative Agreements; provided, if there shall be more than one (1) Lender, the
Lender Commitment of each Lender shall be as set forth in Schedule 1.1 to the
Credit Agreement as such amounts may be increased or reduced from time to time
in accordance with the provisions of the Operative Agreements.
"Lender Financing Statements" shall mean UCC financing statements and
fixture filings appropriately completed and executed for filing in the
applicable jurisdiction in order to procure a security interest in favor of the
Agent in the Collateral subject to the Security Documents.
"Lender Unused Fee" shall have the meaning given to such term in Section
7.4 of the Participation Agreement.
"Lenders" shall mean the banks and financial institutions which may be
from time to time party to the Participation Agreement and the Credit Agreement.
"Lessee" shall have the meaning set forth in the Lease.
"Lessee Credit Agreement" shall mean that certain Third Amended and
Restated Credit Agreement dated as of or about the Initial Closing Date among
the Lessee, the lenders referenced therein, First Union National Bank, as
administrative agent, and NationsBank, N.A. as syndication agent, as such may
hereafter be amended, modified, supplemented, restated and/or replaced from time
to time.
"Lessee Credit Agreement Commitment Amount" shall mean the Commitment as
defined in the Lessee Credit Agreement.
"Lessee Credit Agreement Event of Default" shall mean an Event of Default
as defined in Section 8.1 of the Lessee Credit Agreement.
"Lessor" shall mean the Owner Trustee, not in its individual capacity, but
as the Lessor under the Lease.
"Lessor Basic Rent" shall mean the scheduled Holder Yield due on the
Holder Advances on any Scheduled Interest Payment Date pursuant to the Trust
Agreement (but not including interest on (a) any such scheduled Holder Yield due
on the Holder Advances prior to the Rent Commencement Date with respect to the
Property to which such Holder Advances relate or (b) overdue amounts under the
Trust Agreement or otherwise).
"Lessor Financing Statements" shall mean UCC financing statements and
fixture filings appropriately completed and executed for filing in the
applicable jurisdictions in order to protect the Lessor's interest under the
Lease to the extent the Lease is a security agreement or a mortgage.
"Lessor Lien" shall mean any Lien, true lease or sublease or disposition
of title arising as a result of (a) any claim against the Lessor or the Trust
Company, in its individual capacity, not resulting from the transactions
contemplated by the Operative Agreements, (b) any act or omission of the Lessor
or the Trust Company, in its individual capacity, which is not required by the
Operative Agreements or is in violation of any of the terms of the Operative
Agreements, (c) any claim against the Lessor or the Trust Company, in its
individual capacity, with respect to Taxes or Transaction Expenses against which
the Lessee is not required to indemnify the Lessor or the Trust Company, in its
individual capacity, pursuant to Section 11 of the Participation Agreement or
(d) any claim against the Lessor arising out of any transfer by the Lessor of
all or any portion of the interest of the Lessor in the Properties, the Trust
Estate or the Operative Agreements other than the transfer of title to or
possession of any Properties by the Lessor pursuant to and in accordance with
the Lease, the Credit Agreement, the Security Agreement or the Participation
Agreement or pursuant to the exercise of the remedies set forth in Article XVII
of the Lease.
"Letter of Credit" shall have the meaning given to such term in the Lessee
Credit Agreement.
"Licenses" shall mean all licenses, permits or other grants of authority
obtained or required to be obtained by any Credit Party from the United States
government, HCFA or any Local Authority in connection with the ownership or
operation of any Health Care Facility or other business of any Credit Party.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien, option or charge of any kind.
"Limited Recourse Amount" shall mean with respect to all the Properties on
an aggregate basis, an amount equal to the sum of the Termination Values with
respect to all the Properties on an aggregate basis on each Payment Date, less
the Maximum Residual Guarantee Amount as of such date with respect to all the
Properties on an aggregate basis.
"Loan Basic Rent" shall mean the scheduled interest due on the Loans on
any Scheduled Interest Payment Date pursuant to the Credit Agreement (but not
including interest on (a) any such Loan due prior to the Rent Commencement Date
with respect to the Property to which such Loan relates or (b) any overdue
amounts under Section 2.8(c) of the Credit Agreement or otherwise).
"Loan Property Cost" shall mean, with respect to each Property at any date
of determination, an amount equal to (a) the aggregate principal amount all
Loans (including without limitation all Acquisition Loans and Construction
Loans) made on or prior to such date with respect to such Property minus (b) the
aggregate amount of prepayments or repayments as the case may be of the Loans
allocated to reduce the Loan Property Cost of such Property pursuant to Section
2.6(c) of the Credit Agreement.
"Loans" shall mean the loans extended pursuant to the Credit Agreement and
shall include both the Tranche A Loans and the Tranche B Loans.
"Local Authorities" shall mean individually and collectively all state and
local governmental authorities and administrative agencies which possess
statutory or regulatory authority over the ownership or operation of any Health
Care Facility or other business of any Credit Party.
"Majority Holders" shall mean at any time, Holders whose Holder Advances
outstanding represent more than fifty percent (50%) of (a) the aggregate Holder
Advances outstanding or (b) to the extent there are no Holder Advances
outstanding, the aggregate Holder Commitments.
"Majority Lenders" shall mean at any time, Lenders whose Loans outstanding
represent more than fifty percent (50%) of (a) the aggregate Loans outstanding
or (b) to the extent there are no Loans outstanding, the aggregate of the Lender
Commitments.
"Majority Secured Parties" shall mean at any time, Lenders and Holders
whose Loans and Holder Advances outstanding represent more than fifty percent
(50%) of (a) the aggregate Advances outstanding or (b) to the extent there are
no Advances outstanding, the sum of the aggregate Holder Commitments plus the
aggregate Lender Commitments.
"Margin Certificate" shall have the meaning given to such term in Section
8.3(l) of the Participation Agreement.
"Marketing Period" shall mean, if the Lessee has given a Sale Notice in
accordance with Section 20.1 of the Lease, the period commencing on the date
such Sale Notice is given and ending on the Expiration Date.
"Material Adverse Effect" shall, mean a material adverse effect on (a) the
business, financial condition, assets, or prospects of the Lessee and its
Subsidiaries taken as a whole as a result of any event, condition, circumstance
or contingency, (b) the validity or enforceability of any Operative Agreement or
the rights and remedies of the Agent, the Lenders, the Holders, or the Lessor
thereunder, (c) the validity, priority or enforceability of any Lien on any
Property created by any of the Operative Agreements, or (d) the value, utility
or useful life of any Property or the use, or ability of the Lessee to use, any
Property for the purpose for which it was intended.
"Maturity Date" shall mean the Expiration Date.
"Maximum Residual Guarantee Amount" shall mean an amount equal to the
product of the aggregate Property Cost for all of Properties times eighty-eight
percent (88%).
"Minimum Appraisal Level" shall have the meaning given to such term in
Section 8.3(e) of the Participation Agreement.
"Modifications" shall have the meaning specified in Section
11.1(a) of the Lease.
"Mortgage Instrument" shall mean any mortgage, deed of trust or any other
instrument executed by the Owner Trustee and the Lessee (or regarding any
Property subject to a Ground Lease, the applicable Affiliate of the Lessee) in
favor of the Agent (for the benefit of the Lenders and the Holders) and
evidencing a Lien on the Property, in form and substance reasonably acceptable
to the Agent.
"Net Income" shall mean, for any period, the net income (or loss) of the
Lessee and its Consolidated Subsidiaries for such period, as determined in
accordance with GAAP.
"New Facility" shall have the meaning given to such term in Section 28.1
of the Lease.
"1934 Act" shall have the meaning given to such term in Section 17.1(n) of
the Lease.
"Non-Integral Equipment" shall mean Equipment which (a) is personal
property that is readily removable without causing material damage to the
applicable Property and (b) is not integral or necessary, respecting the
applicable Property, for compliance with Section 8.3 of the Lease or otherwise
to the structure thereof, the mechanical operation thereof, the electrical
systems thereof or otherwise with respect to any aspect of the physical plant
thereof.
"Notes" shall mean those notes issued to the Lenders pursuant to the
Credit Agreement and shall include both the Tranche A Notes and the Tranche B
Notes.
"Nursing Home" shall mean individually and "Nursing Homes" shall mean
individually and collectively the nursing homes owned, leased, operated or
managed by any Credit Party on or after the date hereof.
"Obligations" shall have the meaning given to such term in Section 1 of
the Security Agreement.
"Officer's Certificate" with respect to any person shall mean a
certificate executed on behalf of such person by a Responsible Officer who has
made or caused to be made such examination or investigation as is necessary to
enable such Responsible Officer to express an informed opinion with respect to
the subject matter of such Officer's Certificate.
"Officer's Compliance Certificate" shall have the meaning given to such
term in Section 8.3(l) of the Participation Agreement.
"Operative Agreements" shall mean the following: the Participation
Agreement, the Agency Agreement, the Trust Agreement, the Certificates, the
Credit Agreement, the Notes, the Lease, the Lease Supplements (and memoranda of
the Lease and each Lease Supplement in a form reasonably acceptable to the
Agent), the Joinder Agreements, the Security Agreement, the Mortgage
Instruments, the other Security Documents, the Ground Leases, the Deeds and the
Bills of Sale and any and all other agreements, documents and instruments
executed in connection with any of the foregoing.
"Original Executed Counterpart" shall have the meaning given to such term
in Section 5 of Exhibit A to the Lease.
"Overdue Interest" shall mean any interest payable pursuant to Section
2.8(b) of the Credit Agreement.
"Overdue Rate" shall mean (a) with respect to the Loan Basic Rent, and any
other amount owed under or with respect to the Credit Agreement or the Security
Documents, the rate specified in Section 2.8(b) of the Credit Agreement, (b)
with respect to the Lessor Basic Rent, the Holder Yield and any other amount
owed under or with respect to the Trust Agreement, the Holder Overdue Rate, and
(c) with respect to any other amount, the amount referred to in clause (y) of
Section 2.8(b) of the Credit Agreement.
"Owner Trustee," "Borrower" or "Lessor" shall mean First Security Bank,
National Association, not individually, except as expressly stated in the
various Operative Agreements, but solely as the Owner Trustee under the
Centennial Real Estate Trust 1998-1, and any successor, replacement and/or
additional Owner Trustee expressly permitted under the Operative Agreements.
"Participant" shall have the meaning given to such term in Section 9.7 of
the Credit Agreement.
"Participation Agreement" shall mean the Participation Agreement dated on
or about the Initial Closing Date, among the Lessee, the Guarantors, the Owner
Trustee, not in its individual capacity except as expressly stated therein, the
Holders, the Lenders and the Agent.
"Payment Date" shall mean any Scheduled Interest Payment Date and any date
on which interest or Holder Yield in connection with a prepayment of principal
on the Loans or of the Holder Advances is due under the Credit Agreement or the
Trust Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation created by
Section 4002(a) of ERISA or any successor thereto.
"Permitted Acquisition" shall mean any acquisition by any Credit Party of
a business, by merger or by purchase of stock or assets, if: (a) such business,
when acquired, would be within the Permitted Lines of Business; and (b) such
transaction otherwise is in compliance with Paragraph 6.8 of the Lessee Credit
Agreement (as such provision is incorporated by reference pursuant to Section
28.1 of the Lease Agreement).
"Permitted Facility" shall mean a health care facility of the type and
size customarily used and operated by the Lessee in its ordinary course of
business as of the Initial Closing Date.
"Permitted Hospital" shall mean a health care facility licensed as a
hospital which (a) is located in a market in which any Credit Party has other
operations within a Permitted Line of Business, (b) has no more than one hundred
twenty-five (125) licensed hospital beds and (c) engages in the provision of
health care services at any acuity level comparable to other operations of any
Credit Party as of the Initial Closing Date.
"Permitted Liens" shall mean:
(a) the respective rights and interests of the parties
to the Operative Agreements as provided in the Operative
Agreements;
(b) the rights of any sublessee or assignee under a sublease or an
assignment expressly permitted by the terms of the Operative Agreements
for no longer than the duration of the Lease;
(c) Liens for Taxes that either are not yet due or are being
contested in accordance with the provisions of Section 13.1 of the Lease;
(d) Liens arising by operation of law, materialmen's, mechanics',
workmen's, repairmen's, employees', carriers', warehousemen's and other
like Liens relating to the construction of the Improvements or in
connection with any Modifications or arising in the ordinary course of
business for amounts that either are not more than thirty (30) days past
due or are being diligently contested in good faith by appropriate
proceedings, so long as such proceedings satisfy the conditions for the
continuation of proceedings to contest Taxes set forth in Section 13.1 of
the Lease;
(e) Liens of any of the types referred to in clause (d) above that
have been bonded for not less than the full amount in dispute (or as to
which other security arrangements satisfactory to the Lessor and the Agent
have been made), which bonding (or arrangements) shall comply with
applicable Legal Requirements, and shall have effectively stayed any
execution or enforcement of such Liens;
(f) Liens arising out of judgments or awards with respect to which
appeals or other proceedings for review are being prosecuted in good faith
and for the payment of which adequate reserves have been provided as
required by GAAP or other appropriate provisions have been made, so long
as such proceedings have the effect of staying the execution of such
judgments or awards and satisfy the conditions for the continuation of
proceedings to contest Taxes set forth in Section 13.1 of the Lease;
(g) Liens in favor of municipalities to the extent agreed to by the
Lessor; and
(h) easements, rights of way, reservations, servitudes and rights of
others against Property to the extent agreed to by the Lessor.
"Permitted Lines of Business" shall mean the provision of nursing care,
home health, speech therapy, occupational therapy, pharmacy, respiratory, pain
and intravenous therapy, enterals and urological therapy or physical therapy
services and products and all other ancillary services related to the operation
of a Nursing Home or Permitted Hospital (subject to the restrictions set forth
in the definition thereof), and the ownership, management, or operation of
facilities related thereto.
"Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, governmental authority or any other entity.
"Plans and Specifications" shall mean, with respect to Improvements, the
plans and specifications for such Improvements to be constructed or already
existing, as such Plans and Specifications may be amended, modified or
supplemented from time to time in accordance with the terms of the Operative
Agreements.
"Prime Lending Rate" shall have the meaning given to such term in the
definition of ABR.
"Property" shall mean, with respect to each Permitted Facility that is (or
is to be) acquired, constructed and/or renovated pursuant to the terms of the
Operative Agreements, the Land and each item of Equipment and the various
Improvements, in each case located on such Land, including without limitation
each Construction Period Property, each Property subject to a Ground Lease and
each Property for which the Basic Term has commenced.
"Property Acquisition Cost" shall mean the cost to the Lessor to purchase
a Property on a Property Closing Date.
"Property Closing Date" shall mean the date on which the Lessor purchases
a Property or, with respect to the first Advance, the date on which the Lessor
seeks reimbursement for Property previously purchased by the Lessor.
"Property Cost" shall mean with respect to a Property the aggregate amount
(and/or the various items and occurrences giving rise to such amounts) of the
Loan Property Cost plus the Holder Property Cost for such Property (as such
amounts shall be increased equally among all Properties respecting the Holder
Advances and the Loans extended from time to time to pay for the Transaction
Expenses, fees, expenses and other disbursements referenced in Sections 7.1(a)
and 7.1(b) of the Participation Agreement).
"Purchase Option" shall have the meaning given to such term in Section
20.1 of the Lease.
"Purchasing Lender" shall have the meaning given to such term in Section
9.8(a) of the Credit Agreement.
"Register" shall have the meaning given to such term in Section 9.9(a) of
the Credit Agreement.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
"Release" shall mean any release, pumping, pouring, emptying, injecting,
escaping, leaching, dumping, seepage, spill, leak, flow, discharge, disposal or
emission of a Hazardous Substance.
"Renewal Term" shall have the meaning specified in Section
2.2 of the Lease.
"Rent" shall mean, collectively, the Basic Rent and the Supplemental Rent,
in each case payable under the Lease.
"Rent Commencement Date" shall mean, regarding each Property, the
Completion Date.
"Requested Funds" shall mean any funds requested by the Lessee or the
Construction Agent, as applicable, in accordance with Section 5 of the
Participation Agreement.
"Requisition" shall have the meaning specified in Section
4.2 of the Participation Agreement.
"Responsible Officer" shall mean the Chairman or Vice Chairman of the
Board of Directors, the Chairman or Vice Chairman of the Executive Committee of
the Board of Directors, the President, any Senior Vice President or Executive
Vice President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer, or any Assistant Treasurer, except that when used with respect to the
Trust Company or the Owner Trustee, "Responsible Officer" shall also include the
Cashier, any Assistant Cashier, any Trust Officer or Assistant Trust Officer,
the Controller and any Assistant Controller or any other officer of the Trust
Company or the Owner Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Rolling Period" shall mean a period of four consecutive
fiscal quarters.
"Sale Date" shall have the meaning given to such term in Section 22.1(a)
of the Lease.
"Sale Notice" shall mean a notice given to the Lessor in connection with
the election by the Lessee of its Sale Option.
"Sale Option" shall have the meaning given to such term in Section 20.1 of
the Lease.
"Sale Proceeds Shortfall" shall mean the amount by which the proceeds of a
sale described in Section 22.1 of the Lease are less than the Limited Recourse
Amount with respect to the Properties if it has been determined that the Fair
Market Sales Value of the Properties at the expiration of the term of the Lease
has been impaired by greater than ordinary wear and tear during the Term of the
Lease.
"Scheduled Interest Payment Date" shall mean (a) as to any Eurodollar Loan
or Eurodollar Holder Advance, the last day of the Interest Period applicable to
such Eurodollar Loan or Eurodollar Holder Advance, (b) as to any ABR Loan or any
ABR Holder Advance, the fifteenth day of each month and (c) as to all Loans and
Holder Advances, the date of any voluntary or involuntary payment, prepayment,
return or redemption, and the Maturity Date or the Expiration Date, as the case
may be.
"Secured Parties" shall have the meaning given to such term in the
Security Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
"Security Agreement" shall mean the Security Agreement dated on or about
the Initial Closing Date between the Lessor and the Agent, for the benefit of
the Secured Parties, and accepted and agreed to by the Lessee.
"Security Documents" shall mean the collective reference to the Security
Agreement, the Mortgage Instruments, (to the extent the Lease is construed as a
security instrument) the Lease and all other security documents hereafter
delivered to the Agent granting a lien on any asset or assets of any Person to
secure the obligations and liabilities of the Lessor under the Credit Agreement
and/or under any of the other Credit Documents or to secure any guarantee of any
such obligations and liabilities.
"Soft Costs" shall mean all costs which are ordinarily and reasonably
incurred in relation to the acquisition, development, installation,
construction, improvement and testing of the Properties other than Hard Costs,
including without limitation structuring fees, administrative fees, legal fees,
upfront fees, fees and expenses related to appraisals, title examinations, title
insurance, document recordation, surveys, environmental site assessments,
geotechnical soil investigations and similar costs and professional fees
customarily associated with a real estate closing, the Lender Unused Fee, the
Holder Unused Fee, fees and expenses of the Owner Trustee payable or
reimbursable under the Operative Agreements and costs and expenses incurred
pursuant to Sections 7.3(a) and 7.3(b) of the Participation Agreement.
"Subsidiary" shall mean, as to any Person, any corporation of which at
least a majority of the outstanding stock having by the terms thereof ordinary
voting power to elect a majority of the board of directors of such corporation
(irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person, or by one (1)
or more Subsidiaries, or by such Person and one (1) or more Subsidiaries.
"Substitute Property" shall have the meaning given to such term in Section
5.13 of the Participation Agreement.
"Supplemental Amounts" shall have the meaning given to such term in
Section 9.18 of the Credit Agreement.
"Supplemental Rent" shall mean all amounts, liabilities and obligations
(other than Basic Rent) which the Lessee assumes or agrees to pay to the Lessor,
the Trust Company, the Holders, the Agent, the Lenders or any other Person under
the Lease or under any of the other Operative Agreements including without
limitation payments of the Termination Value and the Maximum Residual Guarantee
Amount and all indemnification amounts, liabilities and obligations.
"Syndication Agent" shall mean First Union Capital Markets,
a division of Wheat First Securities, Inc., a Virginia
corporation.
"Taxes" shall have the meaning specified in the definition
of "Impositions".
"Term" shall mean the Basic Term and each Renewal Term, if
any.
"Terminated Property" shall have the meaning specified in Section 5.13 of
the Participation Agreement.
"Termination Date" shall have the meaning specified in
Section 16.2(a) of the Lease.
"Termination Notice" shall have the meaning specified in
Section 16.1 of the Lease.
"Termination Value" shall mean the sum of (a) either (i) with respect to
all Properties, an amount equal to the aggregate outstanding Property Cost for
all the Properties, in each case as of the last occurring Payment Date, or (ii)
with respect to a particular Property, an amount equal to the Property Cost
allocable to such Property, plus (b) respecting the amounts described in each of
the foregoing subclause (i) or (ii), as applicable, any and all accrued but
unpaid interest on the Loans and any and all Holder Yield on the Holder Advances
related to the applicable Property Cost, plus (c) to the extent the same is not
duplicative of the amounts payable under clause (b) above, all other Rent and
other amounts then due and payable or accrued under the Agency Agreement, Lease
and/or under any other Operative Agreement (including without limitation amounts
under Sections 11.1 and 11.2 of the Participation Agreement and all costs and
expenses referred to in clause FIRST of Section 22.2 of the Lease).
"Tranche A Commitments" shall mean the obligation of the Tranche A Lenders
to make the Tranche A Loans to the Lessor in an aggregate principal amount at
any one (1) time outstanding not to exceed the aggregate of the amounts set
forth opposite each Tranche A Lender's name on Schedule 1.1 to the Credit
Agreement, as such amount may be reduced from time to time in accordance with
the provisions of the Operative Agreements; provided, no Tranche A Lender shall
be obligated to make Tranche A Loans in excess of such Tranche A Lender's share
of the Tranche A Commitments as set forth adjacent to such Tranche A Lender's
name on Schedule 1.1 to Credit Agreement.
"Tranche A Lenders" shall mean the several banks and other financial
institutions from time to time party to the Credit Agreement that commit to make
the Tranche A Loans.
"Tranche A Loans" shall mean the Loans made pursuant to the Tranche A
Commitment.
"Tranche A Note" shall have the meaning given to it in Section 2.2 of the
Credit Agreement.
"Tranche B Commitments" shall mean the obligation of the Tranche B Lenders
to make the Tranche B Loans to the Lessor in an aggregate principal amount at
any one (1) time outstanding not to exceed the aggregate of the amounts set
forth opposite each Tranche B Lender's name on Schedule 1.1 to the Credit
Agreement, as such amount may be reduced from time to time in accordance with
the provisions of the Operative Agreements; provided, no Tranche B Lender shall
be obligated to make Tranche B Loans in excess of such Tranche B Lender's share
of the Tranche B Commitments as set forth adjacent to such Tranche B Lender's
name on Schedule 1.1 to Credit Agreement.
"Tranche B Lenders" shall mean the several banks and other financial
institutions from time to time party to the Credit Agreement that commit to make
the Tranche B Loans.
"Tranche B Loan" shall mean the Loans made pursuant to the Tranche B
Commitment.
"Tranche B Note" shall have the meaning given to it in Section 2.2 of the
Credit Agreement.
"Transaction Expenses" shall mean all Soft Costs and all other costs and
expenses incurred in connection with the preparation, execution and delivery of
the Operative Agreements and the transactions contemplated by the Operative
Agreements including without limitation all costs and expenses described in
Section 7.1 of the Participation Agreement and the following:
(a) the reasonable fees, out-of-pocket expenses and disbursements of
counsel in negotiating the terms of the Operative Agreements and the other
transaction documents, preparing for the closings under, and rendering
opinions in connection with, such transactions and in rendering other
services customary for counsel representing parties to transactions of the
types involved in the transactions contemplated by the Operative
Agreements;
(b) the reasonable fees, out-of-pocket expenses and disbursements of
accountants for any Credit Party in connection with the transaction
contemplated by the Operative Agreements;
(c) any and all other reasonable fees, charges or other amounts
payable to the Lenders, the Agent, the Holders, the Owner Trustee or any
broker which arises under any of the Operative Agreements;
(d) any other reasonable fee, out-of-pocket expenses, disbursement or
cost of any party to the Operative Agreements or any of the other
transaction documents; and
(e) any and all Taxes and fees incurred in recording or filing any
Operative Agreement or any other transaction document, any deed,
declaration, mortgage, security agreement, notice or financing statement
with any public office, registry or governmental agency in connection with
the transactions contemplated by the Operative Agreement.
"Tribunal" shall mean any state, commonwealth, federal, foreign,
territorial, or other court or government body, subdivision agency, department,
commission, board, bureau or instrumentality of a governmental body.
"Trust" shall mean the Centennial Real Estate Trust 1998-1.
"Trust Agreement" shall mean the Trust Agreement dated on or about the
Initial Closing Date between the Holders and the Owner Trustee.
"Trust Company" shall mean First Security Bank, National Association, in
its individual capacity, and any successor owner trustee under the Trust
Agreement in its individual capacity.
"Trust Estate" shall have the meaning specified in Section 2.2 of the
Trust Agreement.
"Type" shall mean, as to any Loan, whether it is an ABR Loan
or a Eurodollar Loan.
"UCC Financing Statements" shall mean collectively the Lender Financing
Statements and the Lessor Financing Statements.
"Unanimous Vote Matters" shall have the meaning given it in Section 12.4
of the Participation Agreement.
"Unfunded Amount" shall have the meaning specified in Section 3.2 of the
Agency Agreement.
"Uniform Commercial Code" and "UCC" shall mean the Uniform Commercial Code
as in effect in any applicable jurisdiction.
"United States Bankruptcy Code" shall mean Title 11 of the United States
Code.
"Unused Fee" shall mean, collectively, the Holder Unused Fee and the
Lender Unused Fee.
"Unused Fee Payment Date" shall mean October 1, 1998, and thereafter the
first day of each January, April, July and October, as billed by the Agent and
the last Business Day of the Commitment Period, or such earlier date as the
Lender Commitments shall terminate as provided in the Credit Agreement or the
Holder Commitment shall terminate as provided in the Trust Agreement.
"U.S. Person" shall have the meaning specified in Section
11.2(e) of the Participation Agreement.
"U.S. Taxes" shall have the meaning specified in Section
11.2(e) of the Participation Agreement.
"Wholly-Owned Entity" shall mean a Person all of the shares of capital
stock or other ownership interest of which are owned by Centennial and/or one of
its wholly-owned Subsidiaries or other wholly-owned entities.
"Withholdings" shall have the meaning specified in Section
11.2(e) of the Participation Agreement.
"Work" shall mean the furnishing of labor, materials, components,
furniture, furnishings, fixtures, appliances, machinery, equipment, tools,
power, water, fuel, lubricants, supplies, goods and/or services with respect to
any Property.
"Year 2000 Compliant" shall have the meaning specified in Section 6.2(x)
of the Participation Agreement.
"Year 2000 Problem" shall mean the risk that computer applications used by
any Credit Party, any Subsidiary of any Credit Party or any supplier, vendor or
customer of any Credit Party or any Subsidiary of any Credit Party may be unable
to recognize and perform properly date-sensitive functions involving certain
dates prior to and any date after December 31, 1999.
