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CREDIT AGREEMENT
Dated as of December 2, 1998
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, except as
expressly stated herein,
but solely as the Owner Trustee
under the Sunrise Trust 1998-1,
as the Borrower,
The Several Lenders
from Time to Time Parties Hereto,
and
NATIONSBANK, N.A.,
as the Agent
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . .. . . . . . . . . . . . . . . 1
1.2 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS . . . . . . . . . . . . . . . . . 1
2.1 Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.3 Procedure for Borrowing . . . . . . . . . . . . . . . . . . . . 2
2.4 [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.5 Termination or Reduction of Commitments . . . . . . . . . . . . 3
2.6 Prepayments and Payments . . . . . . . . . . . . . . . . . . . . 4
2.7 Conversion and Continuation Options . . . . . . . . . . . . . . 4
2.8 Interest Rates and Payment Dates . . . . . . . . . . . . . . . . 5
2.9 Computation of Interest . . . . . . . . . . . . . . . . . . . . 6
2.10 Pro Rata Treatment and Payments . . . . . . . . . . . . . . . . 6
2.11 Notice of Amounts Payable; Mandatory Assignment . . . . . . . . 7
SECTION 3. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . 8
SECTION 4. CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . 8
4.1 Conditions to Effectiveness . . . . . . . . . . . . . . . . . . 8
4.2 Conditions to Each Loan. . . . . . . . . . . . . . . . . . . . . 8
SECTION 5. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.1 Other Activities . . . . . . . . . . . . . . . . . . . . . . . . 9
5.2 Ownership of Properties, Indebtedness . . . . . . . . . . . . . 9
5.3 Disposition of Assets . . . . . . . . . . . . . . . . . . . . . 9
5.4 Compliance with Operative Agreements . . . . . . . . . . . . . . 9
5.5 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . 9
5.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.7 Discharge of Liens . . . . . . . . . . . . . . . . . . . . . . . 10
5.8 Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 6. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 7. THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . 13
7.3 Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . . 14
7.4 Reliance by the Agent . . . . . . . . . . . . . . . . . . . . . 14
7.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . 15
7.6 Non-Reliance of the Agent and Other Lenders . . . . . . . . . . 15
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7.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 15
7.8 The Agent in Its Individual Capacity . . . . . . . . . . . . . . 16
7.9 Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . 16
7.10 Actions of the Agent on Behalf of Holders . . . . . . . . . . . 17
7.11 The Agent's Duty of Care . . . . . . . . . . . . . . . . . . . 17
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL . . . . . . . . . . . 17
8.1 Collection and Allocation of Payments and Other Amounts. . . . . 17
8.2 Certain Remedial Matters . . . . . . . . . . . . . . . . . . . . 17
8.3 Excepted Payments . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 9. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9.1 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . 18
9.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
9.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . 18
9.4 Survival of Representations and Warranties . . . . . . . . . . . 18
9.5 Payment of Expenses and Taxes . . . . . . . . . . . . . . . . . 19
9.6 Successors and Assigns; Participations and Assignments . . . . . 19
9.7 Participations . . . . . . . . . . . . . . . . . . . . . . . . . 19
9.8 Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . 20
9.9 The Register; Disclosure; Pledges to Federal Reserve Banks . . . 21
9.10 Adjustments; Set-off . . . . . . . . . . . . . . . . . . . . . 21
9.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.12 Severability . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.13 Integration . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.14 GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.15 SUBMISSION TO JURISDICTION; VENUE . . . . . . . . . . . . . . . 23
9.16 Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . 23
9.17 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . 23
9.18 Nonrecourse . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9.19 USURY SAVINGS PROVISION . . . . . . . . . . . . . . . . . . . . 24
SCHEDULES
Schedule 2.1 Commitments and Addresses of Lenders
EXHIBITS
Exhibit A-1 Form of Tranche A Note
Exhibit A-2 Form of Tranche B Note
Exhibit B Form of Assignment and Acceptance
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 2, 1998 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
the "Agreement") is among FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
individually, except as expressly stated herein, but solely as the Owner
Trustee under the Sunrise Trust 1998-1 (the "Owner Trustee" or the "Borrower"),
the several banks and other financial institutions from time to time parties to
this Agreement (the "Lenders") and NATIONSBANK, N.A., a national banking
association, as a Lender and as the agent for the Lenders (the "Agent").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINITIONS.
For purposes of this Agreement, capitalized terms used in this
Agreement and not otherwise defined herein shall have the meanings assigned to
them in Appendix A to that certain Participation Agreement dated as of December
2, 1998 (as amended, modified, extended, supplemented, restated and/or replaced
from time to time in accordance with the applicable provisions thereof, the
"Participation Agreement") among Sunrise Midwest Leasing, L.L.C., as the Lessee
and the Construction Agent, Sunrise Assisted Living, Inc., as the Guarantor,
the Borrower, the various banks and other lending institutions which are
parties thereto from time to time, as the Holders, the various banks and other
lending institutions which are parties thereto from time to time, as the
Lenders, and NationsBank, N.A., as agent for the Lenders and respecting the
Security Documents, as the agent for the Lenders and the Holders, to the extent
of their interests. Unless otherwise indicated, references in this Agreement
to articles, sections, paragraphs, clauses, appendices, schedules and exhibits
are to the same contained in this Agreement.
1.2 INTERPRETATION.
The rules of usage set forth in Appendix A to the Participation
Agreement shall apply to this Agreement.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 COMMITMENTS.
(a) Subject to the terms and conditions hereof, each of the
Lenders severally agrees to make the portion of the Tranche A Loans and the
Tranche B Loans to the Borrower from time to time during the Commitment Period
in an amount up to such Lender's Commitment as is set
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forth adjacent to such Lender's name in Schedule 2.1 hereto for the purpose of
enabling the Borrower to purchase the Properties and to pay Property
Acquisition Costs, Property Costs and Transaction Expenses, provided, that the
aggregate principal amount at any one (1) time outstanding with respect to each
of the Tranche A Loans and the Tranche B Loans shall not exceed the amount of
the Tranche A Commitments and the Tranche B Commitments respectively. Any
prepayments of the Loans, whether mandatory or at the Borrower's election,
shall not be subject to reborrowing except as set forth in Section 5.2(d) of
the Participation Agreement.
(b) The Loans may from time to time be (i) Eurodollar Loans, (ii)
ABR Loans, or (iii) a combination thereof, as determined by the Borrower and
notified to the Agent in accordance with Sections 2.3 and 2.7. In the event
the Borrower fails to provide notice pursuant to Section 2.3, the Loan shall be
an ABR Loan. Further, any Loans by the Lenders on a given date in an aggregate
amount less than $100,000 shall be ABR Loans, unless the remaining Available
Commitment for the Lenders in the aggregate is less than $100,000, in which
case, the Borrower may elect a Eurodollar Loan for such remaining amount.
(c) The Commitment of each Lender to make Tranche A Loans and
Tranche B Loans shall be pro rata.
2.2 NOTES.
The Loans made by each Lender shall be evidenced by promissory notes
of the Borrower, substantially in the form of Exhibit A-1 in the case of the
Tranche A Loans (each, a "Tranche A Note") or Exhibit A-2 in the case of the
Tranche B Loans (each, a "Tranche B Note," and with the Tranche A Notes, the
"Notes"), with appropriate insertions as to payee and date, payable to the
order of such Lender and in a principal amount up to the Tranche A Commitment
or Tranche B Commitment, as the case may be, of such Lender. Each Lender is
hereby authorized to record the date, Type and amount of each Loan made by such
Lender, each continuation thereof, each conversion of all or a portion thereof
to another Type, and the date and amount of each payment or prepayment of
principal thereof on the schedule annexed to and constituting a part of its
Note, and any such recordation shall constitute prima facie evidence of the
accuracy of the information so recorded, provided, that the failure to make any
such recordation or any error in such recordation shall not affect the
Borrower's obligations hereunder or under such Note. Each Note shall (i) be
dated the Initial Closing Date, (ii) be stated to mature on the Maturity Date
and (iii) provide for the payment of principal in accordance with Section
2.6(d) and the payment of interest in accordance with Section 2.8.
2.3 PROCEDURE FOR BORROWING.
(a) The Borrower may borrow under the Commitments during the
Commitment Period on any Business Day that an Advance may be requested pursuant
to the terms of Section 5.2 of the Participation Agreement, provided, that the
Borrower shall give the Agent irrevocable notice (which must be received by the
Agent prior to 12:00 Noon, Charlotte, North Carolina time, at least three (3)
Business Days prior to the requested Borrowing Date specifying (i) the
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amount to be borrowed (which on any date shall not be in excess of the then
Available Commitments), (ii) the requested Borrowing Date, (iii) whether the
borrowing is to be of Eurodollar Loans, ABR Loans or a combination thereof,
(iv) if the borrowing is to be a combination of Eurodollar Loans and ABR Loans,
the respective amounts of each Type of Loan and (v) the Interest Period
applicable to each Eurodollar Loan. Pursuant to the terms of the Participation
Agreement, the Borrower shall be deemed to have delivered such notice upon the
delivery of a notice by the Construction Agent or the Lessee containing such
required information. Upon receipt of any such notice from the Borrower, the
Agent shall promptly notify each Lender thereof. Each Lender will make the
amount of its pro rata share of each borrowing available to the Agent for the
account of the Borrower at the office of the Agent specified in Section 9.2
prior to 12:00 Noon, Charlotte, North Carolina time, on the Borrowing Date
requested by the Borrower in funds immediately available to the Agent. Such
borrowing will then be made available to the Borrower by the Agent crediting an
account designated, subject to Section 9.1 of the Participation Agreement, by
the Borrower on the books of such office with the aggregate of the amounts made
available to the Agent by the Lenders and in like funds as received by the
Agent. No amount of any Loan which is repaid or prepaid by the Borrower may be
reborrowed hereunder, except as set forth in Section 5.2(d) of the
Participation Agreement.
(b) Interest accruing on each Loan during the Construction Period
with respect to any Property shall, subject to the limitations set forth in
Section 5.1(b) of the Participation Agreement be added to the principal amount
of such Loan on the relevant Scheduled Interest Payment Date. On each such
Scheduled Interest Payment Date, the Loan Property Cost and Construction Loan
Property Cost shall be increased by the amount of interest added to the Loans.
2.4 [RESERVED]
2.5 TERMINATION OR REDUCTION OF COMMITMENTS.
(a) The Borrower shall have the right, upon not less than three
(3) Business Days' written notice to the Agent, to terminate the Commitments
or, from time to time, to reduce the amount of the Commitments, provided, that
(i) after giving effect to such reduction, the aggregate outstanding principal
amount of the Loans shall not exceed the aggregate Commitments and (ii) such
notice shall be accompanied by a certificate of the Construction Agent stating
that the amount not less than ninety-seven percent (97%) of aggregate Budgeted
Total Property Costs as of the date of such reduction does not exceed the
aggregate amount of Available Commitments as of such date after giving effect
to such reduction. Any such reduction (A) shall be in an amount equal to the
lesser of (1) $1,000,000 (or an even multiple thereof) or (2) the remaining
Available Commitments, (B) shall reduce permanently the Commitments then in
effect and (C) shall be pro rata for the Commitments of all Lenders and pro
rata between the Tranche A Loans and the Tranche B Loans.
(b) On any date on which the Commitments shall automatically be
reduced to zero (0) pursuant to Section 6, the Borrower shall prepay all
outstanding Loans, together with accrued unpaid interest thereon and all other
amounts owing under the Operative Agreements.
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2.6 PREPAYMENTS AND PAYMENTS.
(a) Subject to Sections 11.2(e), 11.3 and 11.4 of the
Participation Agreement, the Borrower may at any time and from time to time
prepay the Loans, in whole or in part, without premium or penalty and without
setoff, deduction or counterclaim, upon at least three (3) Business Days'
irrevocable notice to the Agent, specifying the date and amount of prepayment
and whether the prepayment is of Eurodollar Loans, ABR Loans or a combination
thereof, and, if a combination thereof, the amount allocable to each. Upon
receipt of any such notice the Agent shall promptly notify each Lender thereof.
If any such notice is given, the amount specified in such notice shall be due
and payable on the date specified therein. Amounts prepaid may not be
reborrowed, and shall reduce the Commitments and the Available Commitments,
except in each case as set forth in Section 5.2(d) of the Participation
Agreement.
(b) If on any date the Agent or the Lessor shall receive any
payment in respect of (i) any Casualty, Condemnation or Environmental Violation
pursuant to Sections 15.1(a) or 15.1(g) or Article XVI of the Lease (excluding
any payments in respect thereof which are payable to the Lessee in accordance
with the Lease), or (ii) the Termination Value of any Property in connection
with the delivery of a Termination Notice pursuant to Article XVI of the Lease,
or (iii) the Termination Value of any Property in connection with the exercise
of the Purchase Option under Article XX of the Lease or the exercise of the
option of the Lessor to transfer the Properties to the Lessee pursuant to
Section 20.3 of the Lease, or (iv) any payment required to be made or elected
to be made by the Construction Agent to the Lessor pursuant to the terms of the
Agency Agreement, then in each case, the Borrower shall pay such amounts to the
Agent and the Agent shall be required to apply and pay such amounts in
accordance with the provisions of Section 8.7(b)(ii) of the Participation
Agreement.
(c) Each prepayment of the Loans pursuant to Section 2.6(a) shall
be allocated to reduce the respective Loan Property Costs of all Properties pro
rata according to the Loan Property Costs of such Properties immediately before
giving effect to such prepayment. Each prepayment of the Loans pursuant to
Section 2.6(b) shall be allocated to reduce the Loan Property Cost of the
Property or Properties subject to the respective Casualty, Condemnation,
Environmental Violation, termination, purchase, transfer or other circumstance
giving rise to such prepayment. Any amounts applied to reduce the Loan
Property Cost of any Construction Period Property pursuant to this paragraph
(c) shall also be applied to reduce the Construction Loan Property Cost of such
Property until such Construction Loan Property Cost has been reduced to zero
(0).
(d) The outstanding principal balance of the Loans and all other
amounts then due and owing under this Agreement or otherwise with respect to
the Loans shall be due and payable in full on the Maturity Date.
2.7 CONVERSION AND CONTINUATION OPTIONS.
(a) The Borrower may elect from time to time to convert Eurodollar
Loans to ABR Loans by giving the Agent at least three (3) Business Days' prior
irrevocable notice of such
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election, provided, that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto, and provided,
further, to the extent an Event of Default has occurred and is continuing on
the last day of any such Interest Period, the applicable Eurodollar Loan shall
automatically be converted to an ABR Loan. The Borrower may elect from time to
time to convert ABR Loans to Eurodollar Loans by giving the Agent at least
three (3) Business Days' prior irrevocable notice of such election. Upon
receipt of any such notice, the Agent shall promptly notify each Lender
thereof. All or any part of outstanding Eurodollar Loans or ABR Loans may be
converted as provided herein, provided, that (i) no ABR Loan may be converted
into a Eurodollar Loan after the date that is one (1) month prior to the
Maturity Date and (ii) such notice of conversion regarding any Eurodollar Loan
shall contain an election by the Borrower of an Interest Period for such
Eurodollar Loan to be created by such conversion and such Interest Period shall
be in accordance with the terms of the definition of the term "Interest Period"
including without limitation subparagraphs (A) through (D) thereof.
(b) Subject to the restrictions set forth in Section 2.3 hereof,
any Eurodollar Loan may be continued as such upon the expiration of the current
Interest Period with respect thereto by the Borrower giving irrevocable notice
to the Agent, in accordance with the applicable notice provision for the
conversion of ABR Loans to Eurodollar Loans set forth herein, of the length of
the next Interest Period to be applicable to such Loans, provided, that no
Eurodollar Loan may be continued as such after the date that is one (1) month
prior to the Maturity Date, provided, further, no Eurodollar Loans may be
continued as such if an Event of Default has occurred and is continuing as of
the last day of the Interest Period for such Eurodollar Loan, and provided,
further, that if the Borrower shall fail to give any required notice as
described above or otherwise herein, or if such continuation is not permitted
pursuant to the proceeding proviso, such Loan shall automatically be converted
to an ABR Loan on the last day of such then expiring Interest Period.
2.8 INTEREST RATES AND PAYMENT DATES.
(a) The Loans outstanding hereunder from time to time shall bear
interest at a rate per annum equal to either (i) with respect to a Eurodollar
Loan, the Eurodollar Rate determined for the applicable Interest Period plus
the Applicable Percentage or (ii) with respect to an ABR Loan, the ABR plus the
Applicable Percentage, as selected by the Borrower in accordance with the
provisions hereof; provided, however, (A) upon delivery by the Agent of the
notice described in Section 2.9(c), the Loans of each of the Lenders shall bear
interest at the ABR applicable from time to time from and after the dates and
during the periods specified in Section 2.9(c), (B) upon the delivery by a
Lender of the notice described in Section 11.3(c) of the Participation
Agreement, the Loans of such Lender shall bear interest at the ABR applicable
from time to time from and after the dates and during the periods specified in
Section 11.3(c) of the Participation Agreement and (C) in such other
circumstances as expressly provided herein, the Loans shall bear interest at
the ABR.
(b) If (i) all or a portion of (A) the principal amount of any
Loan, (B) any interest payable thereon or (C) any other amount payable
hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise) or (ii) (A) a replacement Construction Agent
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is hired in accordance with the provisions of the Agency Agreement, (B)
Completion of all Properties has not occurred on or prior to the Construction
Period Termination Date or (C) the cost of any Property exceeds the original
Construction Budget therefor (or the applicable Construction Budget modified in
accordance with the Operative Agreements) in each case as previously delivered
to the Agent, such overdue amount (in the case of Section 2.8(b)(i)) or all
Loans, including without limitation principal and interest, and all other
amounts payable hereunder (in the case of Section 2.8(b)(ii)) shall bear
interest at a rate per annum which is the lesser of (x) the then current rate
of interest respecting such payment or other amount, as the case may be, plus
four percent (4%) and (y) the highest interest rate permitted by applicable
law, in each case from the date of such non-payment until such payment is paid
in full (whether after or before judgment) (in the case of Section 2.8(b)(i))
or Completion of all Properties (in the case of Section 2.8(b)(ii)). All such
amounts referenced in this Section 2.8(b) shall be paid upon demand.
(c) Interest shall be payable in arrears on the applicable
Scheduled Interest Payment Date, provided, that (i) interest accruing pursuant
to paragraph (b) of this Section 2.8 shall be payable from time to time on
demand and (ii) each prepayment of the Loans shall be accompanied by accrued
interest to the date of such prepayment on the amount prepaid.
2.9 COMPUTATION OF INTEREST.
(a) Interest shall be calculated on the basis of a year of three
hundred sixty-five (365) days (or three hundred sixty-six (366) days, as the
case may be) for the actual days elapsed. The Agent shall as soon as
practicable notify the Borrower and the Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR or the Eurocurrency Reserve Requirements shall become
effective as of the day on which such change becomes effective. The Agent
shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Agent pursuant
to any provision of this Agreement shall be conclusive and binding on the
Borrower and the Lenders in the absence of manifest error.
(c) If the Eurodollar Rate cannot be determined by the Agent in
the manner specified in the definition of the term "Eurodollar Rate", the Agent
shall give telecopy or telephonic notice thereof to the Borrower and the
Lenders as soon as practicable thereafter. Until such time as the Eurodollar
Rate can be determined by the Agent in the manner specified in the definition
of such term, no further Eurodollar Loans shall be made or shall be continued
as such at the end of the then current Interest Period nor shall the Borrower
have the right to convert ABR Loans to Eurodollar Loans.
2.10 PRO RATA TREATMENT AND PAYMENTS.
(a) Each borrowing by the Borrower from the Lenders hereunder and
any reduction of the Commitments of the Lenders shall be made pro rata
according to their respective
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Commitments. Subject to the provisions of Section 8.7 of the Participation
Agreement and Section 2.11(b) hereof, each payment (including without
limitation each prepayment) by the Borrower on account of principal of and
interest on the Loans shall be made pro rata according to the respective
outstanding principal amounts on the Loans then held by the Lenders. All
payments (including without limitation prepayments) to be made by the Borrower
hereunder and under the Notes, whether on account of principal, interest or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, Charlotte, North Carolina time, on the due date thereof to the
Agent, for the account of the Lenders, at the Agent's office specified in
Section 9.2, in Dollars and in immediately available funds. The Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder becomes due and payable on a day other than
a Business Day, such payment shall be extended to the next succeeding Business
Day; provided, however, if such payment includes an amount of interest
calculated with reference to the Eurodollar Rate and the result of such
extension would be to extend such payment into another calendar month, then
such payment shall be made on the immediately preceding Business Day. In the
case of any extension of any payment of principal pursuant to the preceding two
(2) sentences, interest thereon shall be payable at the then applicable rate
during such extension.
(b) Unless the Agent shall have been notified in writing by any
Lender prior to a borrowing that such Lender will not make its share of such
borrowing available to the Agent, the Agent may assume that such Lender is
making such amount available to the Agent, and the Agent may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. If
such amount is not made available to the Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to the Agent, on demand, such
amount with interest thereon at a rate equal to the daily average Federal Funds
Effective Rate for the period until such Lender makes such amount immediately
available to the Agent. A certificate of the Agent submitted to any Lender
with respect to any amounts owing under this Section 2.10(b) shall be
conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to the Agent by such Lender within three (3)
Business Days of such Borrowing Date, the Agent shall also be entitled to
recover such amount with interest thereon at the rate as set forth above on
demand from the Borrower.
2.11 NOTICE OF AMOUNTS PAYABLE; MANDATORY ASSIGNMENT.
(a) In the event that any Lender becomes aware that any amounts
are or will be owed to it pursuant to Sections 11.2(e), 11.3 or 11.4 of the
Participation Agreement or that it is unable to make Eurodollar Loans, then it
shall promptly notify the Borrower, the Lessee and the Agent thereof and, as
soon as possible thereafter, such Lender shall submit to the Borrower (with a
copy to the Agent) a certificate indicating the amount owing to it and the
calculation thereof. The amounts set forth in such certificate shall be prima
facie evidence of the obligations of the Borrower hereunder.
(b) In the event that any Lender delivers to the Borrower a
certificate in accordance with Section 2.11(a) in connection with amounts
payable pursuant to Sections 11.2(e) or 11.3 of the Participation Agreement
then, subject to Section 9.1 of the Participation Agreement, the
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Borrower may, at its own expense (provided, such amounts shall be reimbursed or
paid entirely (as elected by the Borrower) by the Lessee, as Supplemental Rent)
and in the discretion of the Borrower, (i) require such Lender to transfer or
assign, in whole or (with such Lender's consent) in part, without recourse (in
accordance with Section 9.8), all or (with such Lender's consent) part of its
interests, rights (except for rights to be indemnified for actions taken while
a party hereunder) and obligations under this Agreement to a replacement bank
or institution if the Borrower (subject to Section 9.1 of the Participation
Agreement), with the full cooperation of such Lender, can identify a Person who
is ready, willing and able to be such replacement bank or institution with
respect thereto and such replacement bank or institution (which may be another
Lender) shall assume such assigned obligations, or (ii) during such time as no
Default or Event of Default has occurred and is continuing, terminate the
Commitment of such Lender and prepay all outstanding Loans of such Lender;
provided, however, that (x) subject to Section 9.1 of the Participation
Agreement, the Borrower or such replacement bank or institution, as the case
may be, shall have paid to such Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the Loans made
by it hereunder and all other amounts owed to it hereunder (and, if such Lender
is also a Holder, all Holder Advances and Holder Yield accrued and unpaid
thereon), (y) any termination of Commitments shall be subject to the terms of
Section 2.5(a) and (z) such assignment or termination of the Commitment of such
Lender and prepayment of Loans does not conflict with any law, rule or
regulation or order of any court or Governmental Authority.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this Agreement and
to make the Loans, each of the Trust Company and the Owner Trustee hereby makes
and affirms the representations and warranties set forth in Section 6.1 of the
Participation Agreement to the same extent as if such representations and
warranties were set forth in this Agreement in their entirety.
SECTION 4. CONDITIONS PRECEDENT
4.1 CONDITIONS TO EFFECTIVENESS.
The effectiveness of this Agreement is subject to the satisfaction of
all conditions precedent set forth in Section 5.3 of the Participation
Agreement required by said Section to be satisfied on or prior to the Initial
Closing Date.
4.2 CONDITIONS TO EACH LOAN.
The agreement of each Lender to make any Loan requested to be made by
it on any date is subject to the satisfaction of all conditions precedent set
forth in Section 5.3 and 5.4 of the Participation Agreement required by said
Sections to be satisfied on or prior to the date of the applicable Loan.
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Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such Loan that the conditions
contained in this Section 4.2 have been satisfied.
SECTION 5. COVENANTS
So long as any Loan or Note remains outstanding and unpaid or any
other amount is owing to any Lender or the Agent hereunder:
5.1 OTHER ACTIVITIES.
The Borrower shall not conduct, transact or otherwise engage in, or
commit to transact, conduct or otherwise engage in, any business or operations
other than the entry into, and exercise of rights and performance of
obligations in respect of, the Operative Agreements and other activities
incidental or related to the foregoing.
5.2 OWNERSHIP OF PROPERTIES, INDEBTEDNESS.
The Borrower shall not own, lease, manage or otherwise operate any
properties or assets other than in connection with the activities described in
Section 5.1, or incur, create, assume or suffer to exist any Indebtedness or
other consensual liabilities or financial obligations other than as may be
incurred, created or assumed or as may exist in connection with the activities
described in Section 5.1 (including without limitation the Loans and other
obligations incurred by the Borrower hereunder).
5.3 DISPOSITION OF ASSETS.
The Borrower shall not convey, sell, lease, assign, transfer or
otherwise dispose of any of its property, business or assets, whether now owned
or hereafter acquired, except to the extent expressly contemplated by the
Operative Agreements.
5.4 COMPLIANCE WITH OPERATIVE AGREEMENTS.
The Borrower shall at all times (a) observe and perform all of the
covenants, conditions and obligations required to be performed by it (whether
in its capacity as the Lessor, the Owner Trustee or otherwise) under each
Operative Agreement to which it is a party and (b) observe and perform, or
cause to be observed and performed, all of the covenants, conditions and
obligations of the Lessor under the Lease, even in the event that the Lease is
terminated at stated expiration following a Lease Event of Default or
otherwise.
5.5 FURTHER ASSURANCES.
At any time and from time to time, upon the written request of the
Agent, and at the expense of the Borrower (provided, such amounts shall be
reimbursed or paid entirely (as elected
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by the Borrower) by the Lessee, as Supplemental Rent), the Borrower will
promptly and duly execute and deliver such further instruments and documents
and take such further action as the Agent or the Majority Lenders may
reasonably request for the purpose of obtaining or preserving the full benefits
of this Agreement and the other Operative Agreements and of the rights and
powers herein or therein granted.
5.6 NOTICES.
If on any date, a Responsible Officer of the Borrower shall obtain
actual knowledge of the occurrence of a Default or Event of Default, the
Borrower will give written notice thereof to the Agent within five (5) Business
Days after such date.
5.7 DISCHARGE OF LIENS.
Neither the Borrower nor the Trust Company will create or permit to
exist at any time, and will, at its own expense, promptly take such action as
may be necessary duly to discharge, or cause to be discharged, all Lessor Liens
attributable to it, provided, that the Borrower and the Trust Company shall not
be required to discharge any Lessor Lien while the same is being contested in
good faith by appropriate proceedings diligently prosecuted so long as such
proceedings shall not involve any material danger of impairment of any of the
Liens contemplated by the Security Documents or of the sale, forfeiture or loss
of, and shall not materially interfere with the disposition of, any Property or
title thereto or any interest therein or the payment of Rent.
5.8 TRUST AGREEMENT.
Without prejudice to any right under the Trust Agreement of the Owner
Trustee to resign, the Owner Trustee (a) agrees not to terminate or revoke the
trust created by the Trust Agreement except as permitted by Article VIII of the
Trust Agreement, (b) agrees not to amend, supplement, terminate, revoke or
otherwise modify any provision of the Trust Agreement in any manner which could
reasonably be expected to have an adverse effect on the rights or interests of
the Agent or the Lenders hereunder or under the other Operative Agreements and
(c) agrees to comply with all of the terms of the Trust Agreement.
SECTION 6. EVENTS OF DEFAULT
Upon the occurrence of any of the following specified events (each an
"Event of Default"):
(a) Except as provided in Sections 6(c), the Borrower shall
default in the payment when due of any principal on the Loans or default in the
payment when due of any interest on the Loans, and in either such case, such
default shall continue for five (5) or more days after notice by the Agent or
any Lender; or
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(b) Except as provided in Sections 6(a) and 6(c), the Borrower
shall default, and such default shall continue for five (5) or more days after
notice from the Agent or any Lender, in the payment of any amount owing under
any Credit Document; or
(c) (i) The Borrower shall default in the payment of any amount
due on the Maturity Date owing under any Credit Document or (ii) the Borrower
shall default in the payment when due of any principal or interest on the Loans
payable with regard to any obligation of Lessee to pay Termination Value when
due or to pay Basic Rent or Supplemental Rent at such time as any Termination
Value is due; or
(d) The Borrower shall default in the due performance or
observance by it of any term, covenant or agreement contained in any Credit
Document to which it is a party (other than those referred to in paragraphs
(a), (b) and (c) above), provided, that in the case of any such default under
Sections 5.4, 5.5 or 5.8(c), such default shall have continued unremedied for a
period of at least thirty (30) days after notice to the Borrower by the Agent
or the Majority Lenders, provided, further, if any such default under Sections
5.4, 5.5 or 5.8(c) is not capable of remedy within such thirty (30) day period
but may be remedied with further diligence and if the Borrower has and
continues to pursue diligently such remedy, then the Borrower shall be granted
additional time to pursue such remedy but in no event more than an additional
sixty (60) days.
(e) Any written representation, warranty or statement made by the
Borrower herein or in any other Credit Document or by the Borrower or the
Lessee in the Participation Agreement, or in any statement or certificate
delivered or required to be delivered pursuant hereto or thereto, shall prove
to be untrue in any material respect on the date as of which made; or
(f) (i) Any Lease Event of Default shall have occurred and be
continuing, or (ii) the Owner Trustee shall default in the due performance or
observance by it of any term, covenant or agreement contained in the
Participation Agreement or in the Trust Agreement to or for the benefit of the
Agent or a Lender, provided, that in the case of this clause (ii) such default
shall have continued unremedied for a period of at least fifteen (15) days
after notice to the Owner Trustee and Lessee by the Agent or the Majority
Lenders, provided, further, that in the case of this clause (ii), such default
is not capable of remedy within such fifteen (15) day period but may be
remedied with further diligence and if the Borrower has and continues to pursue
diligently such remedy, then the Borrower shall be granted additional time to
pursue such remedy but in no event more than an additional thirty (30) days; or
(g) The Borrower shall commence a voluntary case concerning itself
under the Bankruptcy Code or an involuntary case is commenced against the
Borrower and the petition is not contravened within ten (10) days after
commencement of the case or an involuntary case is commenced against the
Borrower and the petition is not dismissed within sixty (60) days after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
the Borrower; or the Borrower commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to the Borrower, or there is
commenced against the Borrower
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any such proceeding which remains undismissed for a period of sixty (60) days;
or the Borrower is adjudicated insolvent or bankrupt, or any order of relief or
other order approving any such case or proceeding is entered; or the Borrower
suffers any appointment of any custodian or the like for it or any substantial
part of its property to continue undischarged or unstayed for a period of sixty
(60) days; or the Borrower makes a general assignment for the benefit of
creditors; or any corporate or partnership action is taken by the Borrower for
the purpose of effecting any of the foregoing; or
(h) Any Security Document shall cease to be in full force and
effect, or shall cease to give the Agent the Liens, rights, powers and
privileges purported to be created thereby (including without limitation a
first priority perfected security interest in, and Lien on, all of the
Properties), in favor of the Agent on behalf of the Lenders and the Holders,
superior to and prior to the rights of all third Persons and subject to no
other Liens (except in each case to the extent expressly permitted herein or in
any Operative Agreement) other than any Ground Lease; or
(i) The Lease shall cease to be enforceable against the Lessee; or
(j) One (1) or more judgments or decrees shall be entered against
the Borrower involving a liability of $100,000 or more in the aggregate for all
such judgments and decrees for the Borrower and any such judgments or decrees
shall not have been vacated, discharged or stayed or bonded pending appeal
within sixty (60) days from the entry thereof,
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (g) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the
Notes shall immediately become due and payable, and (B) if such event is any
other Event of Default, either or both of the following actions may be taken:
(i) with the consent of the Majority Lenders, the Agent may, or upon the
request of the Majority Lenders, the Agent shall, by notice to the Borrower
declare the Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate; and (ii) with the consent of the Majority Lenders,
the Agent may, or upon the request of the Majority Lenders, the Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the Notes to be
due and payable forthwith, whereupon the same shall immediately become due and
payable (any of the foregoing occurrences or actions referred to in clause (A)
or (B) above, an "Acceleration"). Except as expressly provided above in this
Section 6, presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
Upon the occurrence of any Event of Default and at any time thereafter
so long as any Event of Default shall be continuing, the Agent shall, upon the
written instructions of the Majority Secured Parties, exercise any or all of
the rights and powers and pursue any and all of the remedies available to it
hereunder and (subject to the terms thereof) under the other Credit Documents,
the Lease and the other Operative Agreements and shall have any and all rights
and remedies available under the Uniform Commercial Code or any provision of
law.
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Upon the occurrence of any Event of Default and at any time thereafter
so long as any Event of Default shall be continuing, the Agent may, and upon
request of the Majority Secured Parties shall, proceed to protect and enforce
this Agreement, the Notes, the other Credit Documents and the Lease by suit or
suits or proceedings in equity, at law or in bankruptcy, and whether for the
specific performance of any covenant or agreement herein contained or in
execution or aid of any power herein granted, or for foreclosure hereunder, or
for the appointment of a receiver or receivers for the Property or for the
recovery of judgment for the indebtedness secured thereby or for the
enforcement of any other proper, legal or equitable remedy available under
applicable laws.
The Borrower shall be liable for any and all accrued and unpaid
amounts due hereunder before, after or during the exercise of any of the
foregoing remedies, including without limitation all reasonable legal fees and
other reasonable costs and expenses incurred by the Agent or any Lender by
reason of the occurrence of any Event of Default or the exercise of remedies
with respect thereto.
SECTION 7. THE AGENT
7.1 APPOINTMENT.
Each Lender hereby irrevocably designates and appoints the Agent as
the agent of such Lender under this Agreement and the other Operative
Agreements, and each such Lender irrevocably authorizes the Agent, in such
capacity, to execute the Operative Agreements as agent for and on behalf of
such Lender, to take such action on behalf of such Lender under the provisions
of this Agreement and the other Operative Agreements and to exercise such
powers and perform such duties as are expressly delegated to the Agent by the
terms of this Agreement and other Operative Agreements, together with such
other powers as are reasonably incidental thereto. Without limiting the
generality of the foregoing, each of the Lenders hereby specifically
acknowledges the terms and provisions of the Participation Agreement and
directs the Agent to exercise such powers, make such decisions and otherwise
perform such duties as are delegated to the Agent thereunder without being
required to obtain any specific consent with respect thereto from any Lender,
unless the matter under consideration is a Unanimous Vote Matter or otherwise
requires the consent of the Majority Lenders and/or the Majority Secured
Parties. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other
Operative Agreement or otherwise exist against the Agent.
7.2 DELEGATION OF DUTIES.
The Agent may execute any of its duties under this Agreement and the
other Operative Agreements by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel
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concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
7.3 EXCULPATORY PROVISIONS.
Neither the Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates shall be (a) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Operative Agreement (except for its
or such Person's own gross negligence or willful misconduct) or (b) responsible
in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or the Lessee or any officer
thereof contained in this Agreement or any other Operative Agreement or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, this Agreement or any
other Operative Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
Operative Agreement or for any failure of the Borrower or the Lessee to perform
its obligations hereunder or thereunder. The Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Operative Agreement, or to inspect the properties, books
or records of the Borrower or the Lessee.
7.4 RELIANCE BY THE AGENT.
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any Note, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including without limitation counsel to the
Borrower or the Lessee), independent accountants and other experts selected by
the Agent. The Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Agent. The Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Operative Agreement unless it shall first receive such advice or
concurrence of the Majority Lenders, the Majority Secured Parties or all
Secured Parties, as the case may be, as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other
Operative Agreements in accordance with a request of the Majority Lenders, the
Majority Secured Parties or all Secured Parties, as the case may be, and such
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Notes (or all Secured Parties, as
the case may be).
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7.5 NOTICE OF DEFAULT.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the Agent has
received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Agent receives such a
notice, the Agent shall give notice thereof to the Lenders. The Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Majority Secured Parties; provided, that unless and
until the Agent shall have received such directions, the Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Secured Parties; provided, further, the foregoing shall
not limit (a) the rights of the Majority Secured Parties to elect remedies as
set forth in Section 6 and/or (b) the rights of the Majority Secured Parties or
all Secured Parties, as the case may be, as described in the Participation
Agreement (including without limitation Sections 8.2(h) and 8.6 of the
Participation Agreement).
7.6 NON-RELIANCE ON THE AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the Agent
hereinafter taken, including without limitation any review of the affairs of
the Borrower or the Lessee, shall be deemed to constitute any representation or
warranty by the Agent to any Lender. Each Lender represents to the Agent that
it has, independently and without reliance upon the Agent or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower and the
Lessee and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Operative Agreements, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and the Lessee. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of the
Borrower or the Lessee which may come into the possession of the Agent or any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.
7.7 INDEMNIFICATION.
The Lenders agree to indemnify the Agent, in its capacity as such (to
the extent not reimbursed by the Borrower and without limiting the obligation
of the Borrower to do so), ratably according to their respective Commitment
Percentages in effect on the date on which
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indemnification is sought under this Section 7.7 (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with their Commitment
Percentages immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including without limitation at any time following the payment of the
Notes) be imposed on, incurred by or asserted against any of them in any way
relating to or arising out of, the Commitments, this Agreement, any of the
other Operative Agreements or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by any of them under or in connection with any of the
foregoing; provided, that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the
gross negligence or willful misconduct of the Agent. The agreements in this
Section 7.7 shall survive the payment of the Notes and all other amounts
payable hereunder.
7.8 THE AGENT IN ITS INDIVIDUAL CAPACITY.
The Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower or the Lessee as
though the Agent were not the Agent hereunder and under the other Operative
Agreements. With respect to its Loans made or renewed by it and any Note
issued to it, the Agent shall have the same rights and powers under this
Agreement and the other Operative Agreements as any Lender and may exercise the
same as though it were not the Agent, and the terms "Lender" and "Lenders"
shall include the Agent in its individual capacity.
7.9 SUCCESSOR AGENT.
The Agent may resign at any time as the Agent upon thirty (30) days'
notice to the Lenders, the Borrower and, so long as no Lease Event of Default
shall have occurred and be continuing, the Lessee. The Agent may be terminated
as Agent by a vote of the Majority Lenders and, so long as no Lease Event of
Default shall have occurred and be continuing, with the consent of the Lessee,
as a result of the Agent's gross negligence or willful misconduct. If the
Agent shall resign or be terminated as the Agent under this Agreement, the
Majority Lenders shall appoint from among the Lenders a successor Agent which
successor Agent shall be subject to the approval of the Borrower and, so long
as no Lease Event of Default shall have occurred and be continuing, the Lessee,
such approval not to be unreasonably withheld or delayed. If no successor
Agent is appointed prior to the effective date of the resignation of the
resigning Agent, the Agent may appoint, after consulting with the Lenders and
subject to the approval of the Borrower and, so long as no Lease Event of
Default shall have occurred and be continuing, the Lessee, such approval not to
be unreasonably withheld or delayed, a successor Agent from among the Lenders
(or such other Person as shall be acceptable to the Majority Lenders). If no
successor Agent has accepted appointment as the Agent by the date which is
thirty (30) days following a retiring Agent's notice of resignation, the
retiring Agent's notice of resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Agent until
such time, if any, as the Majority Lenders appoint a successor Agent, as
provided for
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above. Upon the effective date of such resignation or termination, only such
successor Agent shall succeed to all the rights, powers and duties of the
retiring or terminated Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's rights, powers and duties in such capacity shall
be terminated. After any retiring or terminated Agent resigns or is terminated
hereunder as the Agent, the provisions of this Article VII and Section 9.5
shall inure to their respective benefit as to any actions taken or omitted to
be taken by it while it was the Agent under this Agreement.
7.10 ACTIONS OF THE AGENT ON BEHALF OF HOLDERS.
The parties hereto specifically acknowledge and consent to the Agent's
acting on behalf of the Holders as provided in the Participation Agreement,
and, in any such case, the Lenders acknowledge that the Holders shall be
entitled to vote as "Secured Parties" hereunder to the extent required or
permitted by the Operative Agreements (including without limitation Sections
8.2(h) and 8.6 of the Participation Agreement).
7.11 THE AGENT'S DUTY OF CARE.
Other than the exercise of reasonable care to assure the safe custody
of the Collateral while being held by the Agent hereunder or under any other
Operative Agreement, the Agent shall have no duty or liability to preserve
rights pertaining thereto, it being understood and agreed that the Lessee shall
be responsible for preservation of all rights in the Collateral, and the Agent
shall be relieved of all responsibility for the Collateral upon surrendering it
or tendering the surrender of it to the Lessee. The Agent shall be deemed to
have exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which the Agent accords its own property, which
shall be no less than the treatment employed by a reasonable and prudent agent
in the industry, it being understood that the Agent shall not have
responsibility for taking any necessary steps to preserve rights against any
parties with respect to any of the Collateral.
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL
8.1 COLLECTION AND ALLOCATION OF PAYMENTS AND OTHER AMOUNTS.
The Lessee, the Construction Agent, the Agent, the Lenders, the
Holders and the Borrower have agreed pursuant to the terms of Section 8.7 of
the Participation Agreement to a procedure for the allocation and distribution
of certain payments and distributions, including without limitation the
proceeds of Collateral.
8.2 CERTAIN REMEDIAL MATTERS.
Notwithstanding any other provision of this Agreement or any other
Credit Document:
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(a) the Borrower shall at all times retain to the exclusion of all
other parties, all rights to Excepted Payments payable to it and to demand,
collect or commence an action at law to obtain such payments and to enforce any
judgment with respect thereto; and
(b) the Borrower and each Holder shall at all times retain the
right, but not to the exclusion of the Agent, (i) to retain all rights with
respect to insurance that Article XIV of the Lease specifically confers upon
the "Lessor", (ii) to provide such insurance as the Lessee shall have failed to
maintain or as the Borrower or any Holder may desire, and (iii) to bring an
action to enforce compliance by the Lessee with the provisions of Articles
VIII, IX, X, XI, XIV and XVII of the Lease.
8.3 EXCEPTED PAYMENTS.
Notwithstanding any other provision of this Agreement or the Security
Documents, any Excepted Payment received at any time by the Agent shall be
distributed promptly to the Person entitled to receive such Excepted Payment.
SECTION 9. MISCELLANEOUS
9.1 AMENDMENTS AND WAIVERS.
None of the terms or provisions of this Agreement may be terminated,
amended, supplemented, waived or modified except in accordance with the terms
of Section 12.4 of the Participation Agreement.
9.2 NOTICES.
All notices required or permitted to be given under this Agreement
shall be given in accordance with Section 12.2 of the Participation Agreement.
9.3 NO WAIVER; CUMULATIVE REMEDIES.
No failure to exercise and no delay in exercising, on the part of the
Agent or any Lender, any right, remedy, power or privilege hereunder or under
the other Credit Documents shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or future exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.
9.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made by the Borrower under the
Operative Agreements shall survive the execution and delivery of this Agreement
and the Notes and the making of the Loans hereunder.
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9.5 PAYMENT OF EXPENSES AND TAXES.
The Borrower agrees to (with funds provided by the Lessee as
Supplemental Rent): (a) pay all reasonable out-of-pocket costs and expenses of
(i) the Agent whether or not the transactions herein contemplated are
consummated, in connection with the negotiation, preparation, execution and
delivery of the Operative Agreements and the documents and instruments referred
to therein (including without limitation the reasonable fees and disbursements
of Xxxxx & Xxx Xxxxx, PLLC) and any amendment, waiver or consent relating
thereto (including without limitation the reasonable fees and disbursements of
counsel to the Agent) and (ii) the Agent and each of the Lenders in connection
with the enforcement of the Operative Agreements and the documents and
instruments referred to therein (including without limitation the reasonable
fees and disbursements of counsel for the Agent and for each of the Lenders)
and (b) pay and hold each of the Lenders harmless from and against any and all
present and future stamp and other similar taxes with respect to the foregoing
matters and save each of the Lenders harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other than
to the extent attributable to such Lender) to pay such taxes.
9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Agent, all future holders of the Notes and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the
prior written consent of each Lender.
9.7 PARTICIPATIONS.
Subject to and in accordance with Section 10.1 of the Participation
Agreement, each Lender may sell participations to one or more Persons (each, a
"Participant") in all or a portion of its rights, obligations or rights and
obligations under the Operative Agreements (including all or a portion of its
Commitment or its Loans); provided, however, that (a) such Lender's
obligations under the Operative Agreements shall remain unchanged, (b) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (c) the Participant shall be entitled to the
benefit of the yield protection provisions contained in Sections 11.2(e), 11.3
and 11.4 of the Participation Agreement and the right of set-off contained in
Section 12.15 of the Participation Agreement, and (d) the Borrower shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Operative Agreements, and such Lender
shall retain the sole right to enforce the obligations of the Borrower relating
to its Loans and its Notes and to approve any amendment, modification, or
waiver of any provision of the Operative Agreements (other than amendments,
modifications, or waivers decreasing the amount of principal of or the rate at
which interest is payable on such Loans or Notes, extending any scheduled
principal payment date or date fixed for the payment of interest on such Loans
or Notes, or extending its Commitment).
Any Lender may furnish any information concerning the Borrower, the
Lessee or any Subsidiaries of the Lessee in the possession of such Lender from
time to time to participants
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(including prospective participants), subject, however, to the provisions of
Section 12.13 of the Participation Agreement.
9.8 ASSIGNMENTS.
Assignments. (a) Subject to and in accordance with Section
10.1 of the Participation Agreement, each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under the
Operative Agreements (including, without limitation, all or a portion of its
Loans, its Notes, and its Commitment); provided, however, that
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another Lender
or an assignment of all of a Lender's rights and obligations under the
Operative Agreements, any such partial assignment shall be in an
amount at least equal to $5,000,000 or an integral multiple of
$1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights and
obligations under the Operative Agreements and the Notes; and
(iv) the parties to such assignment shall execute and
deliver to the Agent for its acceptance an Assignment and Acceptance
substantially in the form of Exhibit B hereto, together with any Note
subject to such assignment and, except with respect to an assignment
to a Wholly-Owned Subsidiary of the assigning Lender, a processing fee
of $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights and benefits of a Lender under the
Operative Agreements and the assigning Lender shall, to the extent of such
assignment, relinquish its rights and be released from its obligations under
the Operative Agreements. Upon the consummation of any assignment pursuant to
this Section, the assignor, the Agent and the Borrower shall make appropriate
arrangements so that, if required, new Notes are issued to the assignor and the
assignee. If the assignee is not incorporated under the laws of the United
States of America or a state thereof, it shall deliver to the Borrower and the
Agent certification as to exemption from deduction or withholding of Taxes in
accordance with Section 11.2(e) of the Participation Agreement.
(b) Upon its receipt of an Assignment and Acceptance executed by
the parties thereto, together with any Note subject to such assignment and
payment of the processing fee, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit B
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
parties thereto.
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(c) Notwithstanding any other provision set forth in any Operative
Agreement, any Lender may at any time assign and pledge all or any portion of
its Loans and its Notes to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning Lender from its
obligations hereunder.
(d) Any Lender may furnish any information concerning the
Borrower, the Lessee or any Subsidiaries of the Lessee in the possession of
such Lender from time to time to assignees (including prospective assignees),
subject, however, to the provisions of Section 12.13 of the Participation
Agreement.
9.9 THE REGISTER; DISCLOSURE; PLEDGES TO FEDERAL RESERVE BANKS.
The Agent shall maintain at its address referred to in Section 12.2 of
the Participation Agreement a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Loans owing to, each Lender from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
9.10 ADJUSTMENTS; SET-OFF.
(a) Except as otherwise expressly provided in Section 8.1 hereof
and Section 8.7 of the Participation Agreement where, and to the extent, one
(1) Lender is entitled to payments prior to other Lenders, if any Lender (a
"Benefitted Lender") shall at any time receive any payment of all or part of
its Loans, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 6(g), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans, or interest thereon,
such Benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender's Loan, or
shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such Benefitted Lender to
share the excess payment or benefits of such collateral or proceeds ratably
with each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the event of such recovery, but without interest.
(b) In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any such rights,
upon the occurrence of an Event of Default, the Agent and each Lender is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to the Borrower or to any other Person, any
such notice being hereby expressly waived, to set off and to appropriate and
apply
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any and all deposits (general or special) and any other Indebtedness at any
time held or owing by the Agent or such Lender (including without limitation by
branches and agencies of the Agent or such Lender wherever located) to or for
the credit or the account of the Borrower against and on account of the
obligations and liabilities of the Borrower to the Agent or such Lender under
this Agreement or under any of the other Operative Agreements, including
without limitation all interests in obligations of the Borrower purchased by
any such Lender pursuant to Section 9.10(a), and all other claims of any nature
or description arising out of or connected with this Agreement or any other
Operative Agreement, irrespective or whether or not the Agent or such Lender
shall have made any demand and although said obligations, liabilities or
claims, or any of them, shall be contingent or unmatured.
9.11 COUNTERPARTS.
This Agreement may be executed by one (1) or more of the parties to
this Agreement on any number of separate counterparts (including without
limitation by telecopy), and all of said counterparts taken together shall be
deemed to constitute one (1) and the same instrument. A set of the copies of
this Agreement signed by all the parties shall be lodged with the Borrower and
the Agent.
9.12 SEVERABILITY.
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
9.13 INTEGRATION.
This Agreement and the other Credit Documents represent the agreement
of the Borrower, the Agent, and the Lenders with respect to the subject matter
hereof and thereof, and there are no promises, undertakings, representations or
warranties by the Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Credit Documents.
9.14 GOVERNING LAW.
THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF VIRGINIA.
22
26
9.15 SUBMISSION TO JURISDICTION; VENUE.
THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO SUBMISSION
TO JURISDICTION AND VENUE ARE HEREBY INCORPORATED BY REFERENCE HEREIN, MUTATIS
MUTANDIS.
9.16 ACKNOWLEDGEMENTS.
The Borrower hereby acknowledges that:
(a) neither the Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection with
this Agreement or any of the other Credit Documents, and the relationship
between the Agent (and the Lenders) and the Borrower, in connection herewith or
therewith is solely that of debtor and creditor; and
(b) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
9.17 WAIVERS OF JURY TRIAL.
THE BORROWER, THE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, TRIAL
BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
9.18 NONRECOURSE.
In addition to and not in limitation of Section 12.9 of the
Participation Agreement, anything to the contrary contained in this Agreement
or in any other Operative Agreement notwithstanding, no Exculpated Person shall
be personally liable in any respect for any liability or obligation hereunder
or under any other Operative Agreement including without limitation the payment
of the principal of, or interest on, the Notes, or for monetary damages for the
breach of performance of any of the covenants contained in this Agreement, the
Notes or any of the other Operative Agreements. The Agent and the Lenders
agree that, in the event any of them pursues any remedies available to them
under this Agreement, the Notes or any other Operative Agreement, neither the
Agent nor the Lenders shall have any recourse against the Borrower, nor any
other Exculpated Person, for any deficiency, loss or claim for monetary damages
or otherwise resulting therefrom and recourse shall be had solely and
exclusively against the Trust Estate and the Lessee; but nothing contained
herein shall be taken to prevent recourse against or the enforcement of
remedies against the Trust Estate in respect of any and all liabilities,
obligations and undertakings contained in this Agreement, the Notes or any
other Operative Agreement. The Agent and the Lenders further agree that the
Borrower shall not be responsible for the payment of any amounts owing
hereunder (excluding principal and interest (other than
23
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Overdue Interest) in respect of the Loans) (such non-excluded amounts,
"Supplemental Amounts") except to the extent that payments of Supplemental Rent
designated by the Lessee for application to such Supplemental Amounts shall
have been paid by the Lessee pursuant to the Lease (it being understood that
the failure by the Lessee for any reason to pay any Supplemental Rent in
respect of such Supplemental Amounts shall nevertheless be deemed to constitute
a default by the Borrower for the purposes of Section 6). Notwithstanding the
foregoing provisions of this Section 9.18, nothing in this Agreement or any
other Operative Agreement shall (a) constitute a waiver, release or discharge
of any obligation evidenced or secured by this Agreement or any other Credit
Document, (b) limit the right of the Agent or any Lender to name the Borrower
as a party defendant in any action or suit for judicial foreclosure and sale
under any Security Document, or (c) affect in any way the validity or
enforceability of any guaranty (whether of payment and/or performance) given to
the Lessor, the Agent or the Lenders, or of any indemnity agreement given by
the Borrower, in connection with the Loans made hereunder.
9.19 USURY SAVINGS PROVISION.
IT IS THE INTENT OF THE PARTIES HERETO TO CONFORM TO AND CONTRACT IN
STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT. ANY
SUCH PAYMENTS SO CHARACTERIZED AS INTEREST MAY BE REFERRED TO HEREIN AS
"INTEREST." ALL AGREEMENTS AMONG THE PARTIES HERETO ARE HEREBY LIMITED BY THE
PROVISIONS OF THIS PARAGRAPH WHICH SHALL OVERRIDE AND CONTROL ALL SUCH
AGREEMENTS, WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER WRITTEN OR
ORAL. IN NO WAY, NOR IN ANY EVENT OR CONTINGENCY (INCLUDING WITHOUT LIMITATION
PREPAYMENT OR ACCELERATION OF THE MATURITY OF ANY OBLIGATION), SHALL ANY
INTEREST TAKEN, RESERVED, CONTRACTED FOR, CHARGED, OR RECEIVED UNDER THIS
AGREEMENT OR OTHERWISE, EXCEED THE MAXIMUM NONUSURIOUS AMOUNT PERMISSIBLE UNDER
APPLICABLE LAW. IF, FROM ANY POSSIBLE CONSTRUCTION OF ANY OF THE OPERATIVE
AGREEMENTS OR ANY OTHER DOCUMENT OR AGREEMENT, INTEREST WOULD OTHERWISE BE
PAYABLE IN EXCESS OF THE MAXIMUM NONUSURIOUS AMOUNT, ANY SUCH CONSTRUCTION
SHALL BE SUBJECT TO THE PROVISIONS OF THIS PARAGRAPH AND SUCH AMOUNTS UNDER
SUCH DOCUMENTS OR AGREEMENTS SHALL BE AUTOMATICALLY REDUCED TO THE MAXIMUM
NONUSURIOUS AMOUNT PERMITTED UNDER APPLICABLE LAW, WITHOUT THE NECESSITY OF
EXECUTION OF ANY AMENDMENT OR NEW DOCUMENT OR AGREEMENT. IF THE AGENT OR ANY
LENDER SHALL EVER RECEIVE ANYTHING OF VALUE WHICH IS CHARACTERIZED AS INTEREST
WITH RESPECT TO THE OBLIGATIONS OWED HEREUNDER OR UNDER APPLICABLE LAW AND
WHICH WOULD, APART FROM THIS PROVISION, BE IN EXCESS OF THE MAXIMUM LAWFUL
AMOUNT, AN AMOUNT EQUAL TO THE AMOUNT WHICH WOULD HAVE
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BEEN EXCESSIVE INTEREST SHALL, WITHOUT PENALTY, BE APPLIED TO THE REDUCTION OF
THE COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL AND NOT TO THE PAYMENT OF
INTEREST, OR REFUNDED TO THE BORROWER OR ANY OTHER PAYOR THEREOF, IF AND TO THE
EXTENT SUCH AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE EXCEEDS THE COMPONENT OF
PAYMENTS DEEMED TO BE PRINCIPAL. THE RIGHT TO DEMAND PAYMENT OF ANY AMOUNTS
EVIDENCED BY ANY OF THE OPERATIVE AGREEMENTS DOES NOT INCLUDE THE RIGHT TO
RECEIVE ANY INTEREST WHICH HAS NOT OTHERWISE ACCRUED ON THE DATE OF SUCH
DEMAND, AND NEITHER THE AGENT NOR ANY LENDER INTENDS TO CHARGE OR RECEIVE ANY
UNEARNED INTEREST IN THE EVENT OF SUCH DEMAND. ALL INTEREST PAID OR AGREED TO
BE PAID TO THE AGENT OR ANY LENDER SHALL, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, BE AMORTIZED, PRORATED, ALLOCATED, AND SPREAD THROUGHOUT THE FULL STATED
TERM (INCLUDING WITHOUT LIMITATION ANY RENEWAL OR EXTENSION) OF THIS AGREEMENT
SO THAT THE AMOUNT OF INTEREST ON ACCOUNT OF SUCH PAYMENTS DOES NOT EXCEED THE
MAXIMUM NONUSURIOUS AMOUNT PERMITTED BY APPLICABLE LAW.
[signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, except as
expressly stated herein, but solely as the
Owner Trustee under the Sunrise Trust 1998-1
By: /s/ XXX X. XXXXX
------------------------------------------------
Name: Xxx X. Xxxxx
----------------------------------------------
Title: Vice President
---------------------------------------------
NATIONSBANK, N.A., as the Agent and a Lender
By: /s/ XXXXXX X. XXXX
------------------------------------------------
Name: Xxxxxx X. Xxxx
----------------------------------------------
Title: Senior Vice President
---------------------------------------------
FLEET NATIONAL BANK, as a Lender
By: /s/ XXXXXXXX XXXXXXXXX
------------------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
----------------------------------------------
Title: Vice President
---------------------------------------------
PROVIDENT BANK OF MARYLAND, as a Lender
By: /s/ XXXXXX M.A. XxXXXXXXXX
------------------------------------------------
Name: Xxxxxx M.A. XxXxxxxxxx
----------------------------------------------
Title: Vice President
---------------------------------------------
30
Schedule 2.1
Tranche A Tranche B
Commitment Commitment
---------- -----------
Name and Address of Lenders Amount/Percentage Amount/Percentage
--------------------------- ----------------- -----------------
NATIONSBANK, N.A. $14,790,000.00 / 36.1702127659574% $1,700,000.00 /
36.1702127659574%
00 Xxxxx Xxxxxx, XX0-000-00-00
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-
FLEET NATIONAL BANK $13,050,000.00 / 31.9148936170213% $1,500,000.00 /
31.9148936170213%
00 Xxxxx Xxxxxx
XX XX XXXX
Xxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
PROVIDENT BANK OF MARYLAND $13,050,000.00 / 31.9148936170213% $1,500,000.00 /
31.9148936170213%
000 Xxxx Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx XxXxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
TOTAL $40,890,000.00 / 100% $4,700,000.00 / 100%
-----
31
Exhibit A-1
TRANCHE A NOTE
(Sunrise Trust 1998-1)
___________, 1998
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as the Owner Trustee
under the Sunrise Trust 1998-1(the "Borrower"), hereby unconditionally promises
to pay to the order of [LENDER] (the "Lender"), at the office of [BANK],
located at [__________] or at such other address as may be specified by [BANK],
in lawful money of the United States of America and in immediately available
funds, on the Maturity Date, the aggregate unpaid principal amount of all
Tranche A Loans made by the Lender to the Borrower pursuant to Section 2.1 of
the Credit Agreement (as defined below). The Borrower agrees to pay interest
in like money at such office on the unpaid principal amount hereof from time to
time outstanding at the rates and on the dates specified in Section 2.8 of such
Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each
Tranche A Loan made pursuant to the Credit Agreement and the date and amount of
each payment or prepayment of principal thereof, each continuation thereof and
each conversion of all or a portion thereof to another Type. Each such
endorsement shall constitute prima facie evidence of the accuracy of the
information endorsed. The failure to make any such endorsement or any error in
such endorsement shall not affect the obligations of the Borrower in respect of
such Loan.
This Note (a) is one (1) of the Notes referred to in the Credit
Agreement dated as of December 2, 1998 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
Lender, the other banks and financial institutions from time to time parties
thereto and NationsBank, N.A., as the Agent, (b) is subject to the provisions
of the Credit Agreement (including without limitation Section 9.18 thereof) and
(c) is subject to optional and mandatory prepayment in whole or in part as
provided in the Credit Agreement. Reference is hereby made to the Credit
Documents for a description of the properties and assets in which a security
interest has been granted, the nature and extent of the security and the
guarantees, the terms and conditions upon which the security interests and each
guarantee were granted and the rights of the holder of this Note in respect
thereof.
Upon the occurrence of any one (1) or more of the Events of Default,
all amounts then remaining unpaid on this Note shall become, or may be declared
to be, immediately due and payable, all as provided in the Credit Agreement.
A-1
32
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND
ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF VIRGINIA.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but solely as the
Owner Trustee under the Sunrise Trust 1998-1
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
X0-0
00
Xxxxxxx X-0
XXXXXXX X NOTE
(Sunrise Trust 1998-1)
_________, 1998
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as the Owner Trustee
under the Sunrise Trust 1998-1 (the "Borrower"), hereby unconditionally
promises to pay to the order of [LENDER] (the "Lender") at the office of [BANK]
located at [__________] or at such other address as may be specified by [BANK],
in lawful money of the United States of America and in immediately available
funds, on the Maturity Date, the aggregate unpaid principal amount of all
Tranche B Loans made by the Lender to the Borrower pursuant to Section 2.1 of
the Credit Agreement (as defined below). The Borrower agrees to pay interest
in like money at such office on the unpaid principal amount hereof from time to
time outstanding at the rates and on the dates specified in Section 2.8 of such
Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each
Tranche B Loan made pursuant to the Credit Agreement and the date and amount of
each payment or prepayment of principal thereof, each continuation thereof and
each conversion of all or a portion thereof to another Type. Each such
endorsement shall constitute prima facie evidence of the accuracy of the
information endorsed. The failure to make any such endorsement or any error in
such endorsement shall not affect the obligations of the Borrower in respect of
such Loan.
This Note (a) is one (1) of the Notes referred to in the Credit
Agreement dated as of December 2, 1998 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
Lender, the other banks and financial institutions from time to time parties
thereto and NationsBank, N.A., as the Agent, (b) is subject to the provisions
of the Credit Agreement (including without limitation Section 9.18 thereof) and
(c) is subject to optional and mandatory prepayment in whole or in part as
provided in the Credit Agreement. Reference is hereby made to the Credit
Documents for a description of the properties and assets in which a security
interest has been granted, the nature and extent of the security and the
guarantees, the terms and conditions upon which the security interests and each
guarantee were granted and the rights of the holder of this Note in respect
thereof.
Upon the occurrence of any one (1) or more of the Events of Default,
all amounts then remaining unpaid on this Note shall become, or may be declared
to be, immediately due and payable, all as provided in the Credit Agreement.
A2-1
34
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND
ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF VIRGINIA.
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, but solely as the
Owner Trustee under the Sunrise Trust 1998-1
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
A2-2
35
Exhibit B
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of December 2,
1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in
its individual capacity, but solely as the Owner Trustee under the Sunrise
Trust 1998-1 (the "Owner Trustee" or the "Borrower"), the Lenders named therein
and NationsBank N.A., as the Agent. Unless otherwise defined herein, terms
defined in the Credit Agreement (or pursuant to Section 1 of the Credit
Agreement, defined in other agreements) and used herein shall have the meanings
given to them in or pursuant to the Credit Agreement.
[____________________] (the "Assignor") and [_______________] (the
"Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), a [___%] interest (the "Assigned
Interest") in and to the Assignor's rights and obligations under the Credit
Agreement with respect to the credit facility contained in the Credit Agreement
as are set forth on Schedule 1 hereto (the "Assigned Facility"), in a principal
amount for the Assigned Facility as set forth on Schedule 1.
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any other
Operative Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any other Operative
Agreement or any other instrument or document furnished pursuant thereto, other
than that it has not created any adverse claim upon the interest being assigned
by it hereunder and that such interest is free and clear of any such adverse
claim; (b) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower, or any other obligor
or the performance or observance by the Borrower, or any other obligor of any
of their respective obligations under the Credit Agreement or any other
Operative Agreement or any other instrument or document furnished pursuant
hereto or thereto; and (c) attaches the Note held by it evidencing the Assigned
Facility and requests that the Agent exchange such Note for a new Note payable
to the Assignee and (if the Assignor has retained any interest in the Assigned
Facility) a new Note payable to the Assignor in the respective amounts which
reflect the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received copies of the Operative
36
Agreements, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (c) agrees that it will, independently and without
reliance upon the Assignor, the Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement, the other Operative Agreements or any other instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement, the other Operative Agreements or any
other instrument or document furnished pursuant hereto or thereto as are
delegated to the Agent by the terms thereof, together with such powers as are
incidental thereto; and (e) agrees that it will be bound by the provisions of
the Credit Agreement and the other Operative Agreements to which Assignee is a
party and will perform in accordance herewith all the obligations which by the
terms of the Credit Agreement and the other Operative Agreements to which
Assignee is a party are required to be performed by it as a Lender including
without limitation, if it is organized under the laws of a jurisdiction outside
the U.S., its obligation pursuant to Section 11.2(e) of the Participation
Agreement.
4. The effective date of this Assignment and Acceptance shall be
[________, 199__] (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for acceptance by
it and recording by the Agent pursuant to Section 9.9 of the Credit Agreement,
effective as of the Effective Date (which shall not, unless otherwise agreed to
by the Agent, be earlier than five (5) Business Days after the date of such
acceptance and recording by the Agent).
5. Upon such acceptance and recording, from and after the
Effective Date, the Agent shall make all payments in respect of the Assigned
Interest (including without limitation payments of principal, interest, fees
and other amounts) to the Assignee whether such amounts have accrued prior to
the Effective Date or accrue subsequent to the Effective Date. The Assignor
and the Assignee shall make all appropriate adjustments in payments by the
Agent for periods prior to the Effective Date or with respect to the making of
this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment
and Acceptance, have the rights and obligations of a Lender thereunder and
under the other Operative Agreements and shall be bound by the provisions
thereof and (b) the Assignor shall, to the extent provided in this Assignment
and Acceptance, relinquish its rights and be released from its obligations
under the Credit Agreement and the other Operative Agreements.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND
CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
VIRGINIA.
37
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their
respective duly authorized officers on Schedule 1 hereto.
[Name of Assignor]
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
[Name of Assignee]
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
Consented To:
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, but solely as the
Owner Trustee under the Sunrise Trust 1998-1
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
NATIONSBANK, N.A. as the Agent
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
[consents required only to the extent expressly provided in Section 9.8 of the
Credit Agreement]
38
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT,
DATED AS OF DECEMBER 2, 1998,
AMONG
FIRST SECURITY BANK, NATIONAL ASSOCIATION
NOT INDIVIDUALLY,
BUT SOLELY AS THE OWNER TRUSTEE,
THE LENDERS NAMED THEREIN
AND
NATIONSBANK, N.A., AS THE AGENT
FOR THE LENDERS (IN SUCH CAPACITY, THE "AGENT")
Name of Assignor:
------------------------------------------
Name of Assignee:
------------------------------------------
Effective Date of Assignment:
------------------------------------------
Credit Principal Commitment
Facility Assigned Amount Assigned Percentage Assigned
----------------- --------------- -------------------
$ %
---------------- ------------ ------------
[Name of Assignor]
By:
-------------------------------------------------------
Name:
-----------------------------------------------------
Title:
----------------------------------------------------
[Name of Assignee]
By:
-------------------------------------------------------
Name:
-----------------------------------------------------
Title:
----------------------------------------------------
