AGENCY AGREEMENT
Dated as of July 29, 1998
between
CENTENNIAL HEALTHCARE CORPORATION,
as the Construction Agent
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, but solely as the Owner Trustee
under the Centennial Real Estate Trust 1998-1,
as the Lessor
i
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; RULES OF USAGE............................2
1.1 Definitions.............................................2
1.2 Interpretation..........................................2
ARTICLE II APPOINTMENT OF THE CONSTRUCTION AGENT.................2
2.1 Appointment.............................................2
2.2 Acceptance and Undertaking..............................3
2.3 Term....................................................3
2.4 Scope of Authority......................................3
2.5 Delegation of Duties....................................4
2.6 Covenants of the Construction Agent.....................4
ARTICLE III THE PROPERTIES.......................................6
3.1 Construction............................................6
3.2 Amendments; Modifications...............................6
3.3 Failure to Complete Construction Period Properties and
Purchase Obligation......................................7
ARTICLE IV PAYMENT OF FUNDS......................................8
4.1 Right to Receive Construction Cost......................8
ARTICLE V EVENTS OF DEFAULT......................................8
5.1 Events of Default.......................................8
5.2 Damages.................................................9
5.3 Remedies; Remedies Cumulative...........................9
ARTICLE VI THE LESSOR'S RIGHTS..................................11
6.1 Exercise of the Lessor's Rights........................11
6.2 The Lessor's Right to Cure the Construction Agent's
Defaults................................................11
ARTICLE VII MISCELLANEOUS.......................................11
7.1 Notices................................................11
7.2 Successors and Assigns.................................11
7.3 GOVERNING LAW..........................................12
7.4 SUBMISSION TO JURISDICTION; VENUE; WAIVERS.............12
7.5 Amendments and Waivers.................................12
7.6 Counterparts...........................................12
7.7 Severability...........................................12
7.8 Headings and Table of Contents.........................12
7.9 WAIVER OF JURY TRIAL...................................12
AGENCY AGREEMENT
THIS AGENCY AGREEMENT, dated as of July 29, 1998 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, the
"Agreement"), between FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association ("FSB"), not individually, but solely as Owner Trustee under
the Centennial Real Estate Trust 1998-1 (the "Lessor") and CENTENNIAL HEALTHCARE
CORPORATION, a Georgia corporation (the "Construction Agent").
PRELIMINARY STATEMENT
A. The Lessor and the Construction Agent are parties to that certain Lease
Agreement dated as of even date herewith (as amended, modified, extended,
supplemented, restated and/or replaced from time to time, the "Lease"), pursuant
to which the Construction Agent, as lessee (in such capacity, the "Lessee") has
agreed to lease certain Land, Improvements and Equipment and/or to sublease a
ground leasehold in certain Properties subject to one (1) or more Ground Leases
from the Lessor.
B. In connection with the execution and delivery of the Participation
Agreement, the Lease and the other Operative Agreements, and subject to the
terms and conditions hereof, (i) the Lessor desires to appoint the Construction
Agent as its sole and exclusive agent in connection with the identification and
acquisition or ground lease of the Properties (provided, title to the Properties
shall be held in the name of the Lessor, except that the interest of the Lessor
in certain of the Properties shall be a ground leasehold interest pursuant to
one (1) or more Ground Leases, if requested by the Construction Agent) and the
development, acquisition, installation, construction and testing of the
Improvements and the Equipment in accordance with the Plans and Specifications
and (ii) the Construction Agent desires, for the benefit of the Lessor, to
identify and acquire or ground lease the Properties and to cause the
development, acquisition, installation, construction and testing of the
Improvements, the Equipment and the other components of the Properties in
accordance with the Plans and Specifications and to undertake such other
liabilities and obligations as are herein set forth.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS; RULES OF USAGE
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 July 29,
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 the Construction Agent, the various parties
thereto from time to time, as Guarantors, the Lessor, the various banks and
lending institutions parties thereto from time to time, as Holders, the various
banks and lending institutions parties thereto from time to time, as Lenders,
First Union Capital Markets, a division of Wheat First Securities, Inc., as
Syndication Agent, and NationsBank, N.A., as agent for the Lenders and
respecting the Security Documents, as 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.
ARTICLE II
APPOINTMENT OF THE CONSTRUCTION AGENT
2.1 Appointment.
Subject to the terms and conditions hereof, the Lessor hereby irrevocably
designates and appoints the Construction Agent as its exclusive agent, and the
Construction Agent accepts such appointment, in connection with the
identification and acquisition from time to time of the Properties (provided,
title to the Properties shall be held in the name of the Lessor, except that the
interest of the Lessor in certain Properties shall be a ground leasehold
interest pursuant to one (1) or more Ground Leases if requested by the
Construction Agent) and the development, acquisition, installation, construction
and testing of the Improvements, the Equipment and the other components of the
Properties in accordance with the Plans and Specifications on the Land, and
pursuant to the terms of the Operative Agreements. Notwithstanding any
provisions hereof or in any other Operative Agreement to the contrary, the
Construction Agent acknowledges and agrees that the Lessor shall advance no more
than the sum of the aggregate Lender Commitment of the Lenders plus the
aggregate amount of the Holder Commitments of the Holders in regard to the
Properties (including without limitation for any and all Advances in the
aggregate from the Lenders under the Credit Agreement and from the Holders under
the Trust Agreement).
2.2 Acceptance and Undertaking.
The Construction Agent hereby unconditionally accepts the agency
appointment and undertakes, for the benefit of the Lessor, to identify and
acquire certain Properties (provided, title to the Properties shall be held in
the name of the Lessor, except that the interest of the Lessor in certain
Properties shall be a ground leasehold interest pursuant to one (1) or more
Ground Leases if requested by the Construction Agent) and the development,
acquisition, installation, construction and testing of the Improvements, the
Equipment and the other components of the Properties in accordance with the
Plans and Specifications and the Operative Agreements.
2.3 Term.
This Agreement shall commence on the date hereof and shall terminate on
the Construction Period Termination Date.
2.4 Scope of Authority.
(a) The Lessor hereby expressly authorizes the Construction Agent, or
any agent or contractor of the Construction Agent, and the Construction
Agent unconditionally agrees for the benefit of the Lessor, subject to
Section 2.4(b), to take all action necessary or desirable for the
performance and satisfaction of any and all of the Lessor's obligations
under any construction agreement and to fulfill all of the obligations of
the Construction Agent including without limitation:
(i) the identification and assistance with the acquisition of
Properties in accordance with the terms and conditions of the
Participation Agreement;
(ii) all design and supervisory functions relating to the
development, acquisition, installation, construction and testing of
the related Improvements, Equipment and other components of the
applicable Property and performing all engineering work related
thereto;
(iii)(A) negotiating, entering into, performing and enforcing
all contracts and arrangements to acquire or ground lease the
Properties and to procure the equipment necessary to construct the
Properties and (B) negotiating, executing, performing and enforcing
all contracts and arrangements to develop, acquire, install,
construct and test the Improvements, the Equipment and the other
components of the Properties on such terms and conditions as are
customary and reasonable in light of local and national standards and
practices and the businesses in which the Lessee is engaged;
(iv) obtaining all necessary permits, licenses, consents,
approvals, entitlements and other authorizations, including without
limitation all of the foregoing required for the Properties and the
use and occupancy thereof and those required under applicable Law
(including without limitation Environmental Laws), from all
Governmental Authorities in connection with the development,
acquisition, installation, construction and testing of the
Improvements, the Equipment and the other components of the
Properties in accordance with the Plans and Specifications;
(v) maintaining all books and records with respect to the
Properties and the construction, operation and management thereof;
and
(vi) performing any other acts necessary in connection with the
identification and acquisition or ground leasing of the Properties
and the development, acquisition, installation, construction and
testing of the related Improvements, Equipment and all other
additional components of the Properties in accordance with the Plans
and Specifications.
(b) Neither the Construction Agent nor any of its Affiliates or
agents shall enter into any contract or consent to any contract in the
name of the Lessor without the Lessor's prior written consent, such
consent to be given or withheld in the exercise of the Lessor's reasonable
discretion; provided, however, that (i) no such contract will increase the
obligations of the Lessor beyond the obligations of the Lessor as are
expressly set forth in the Operative Agreements and (ii) each such
contract shall be expressly non-recourse to the Lessor on terms and
conditions that are reasonably acceptable to the Lessor.
(c) Subject to the terms and conditions of this Agreement and the
other Operative Agreements, the Construction Agent shall have sole
management and control over the installation, construction and testing
means, methods, sequences and procedures with respect to the Properties.
2.5 Delegation of Duties
The Construction Agent may execute any of its duties under this Agreement
by or through agents, contractors, employees or attorneys-in-fact; provided,
however, that no such delegation shall limit or reduce in any way the
Construction Agent's duties and obligations under this Agreement.
2.6 Covenants of the Construction Agent.
The Construction Agent hereby covenants and agrees that it will:
(a) following the Construction Commencement Date for each Property,
cause the development, acquisition, installation, construction and testing
of such Property to be prosecuted in a good and workmanlike manner, and
respecting each Property in substantial accordance with the applicable
Plans and Specifications, the Construction Budget, the applicable
contracts relating to the Improvements, the Equipment, other components of
such Property and procurement of construction materials, the applicable
construction contracts, the applicable construction schedule, prevalent
industry practices and otherwise in accordance with Section 3.1 hereof;
(b) not commence construction with respect to any Improvements
budgeted to exceed $500,000 on a date that is within six (6) months prior
to the Construction Period Termination Date;
(c) cause the Completion Date for any Improvements to occur on or
before the earlier of (i) the date that is twelve (12) months after the
initial Construction Advance made in connection with such Improvements or
(ii) the Construction Period Termination Date, in each case free and clear
(by removal or bonding) of Liens (other than Permitted Liens and Lessor
Liens) or claims for materials supplied or labor or services performed in
connection with the development, acquisition, installation, construction
or testing thereof;
(d) cause all outstanding punch list items with respect to such
Improvements to be completed by the Completion Date;
(e) at all times subsequent to the initial Advance respecting a
Property (i) cause good and marketable title to the applicable Property to
vest in the Owner Trustee (except that the interest of the Lessor in
certain Properties shall be a ground leasehold interest pursuant to one
(1) or more Ground Leases if requested by the Construction Agent) (ii)
cause a valid, perfected, first priority Lien (other than Permitted Liens
and Lessor Liens) on the applicable Property to be in place in favor of
the Agent (for the benefit of the Lenders and the Holders), (iii) file all
necessary documents under the applicable real property law and Article 9
of the Uniform Commercial Code to perfect such title and Liens and (iv)
not permit Liens (other than Permitted Liens and Lessor Liens) to be filed
or maintained respecting the applicable Property;
(f) no less than five (5) Business Days prior to the scheduled date
for the initial Construction Advance to be made in connection with any
Property, the Construction Agent shall deliver to the Agent (for the
benefit of the Lessor) true, complete and correct copies of the
Construction Budget therefor. Thereafter, the Construction Agent, on a
monthly basis, shall deliver to the Lessor true, correct and complete
copies of any material modifications of the Construction Budget and
progress reports regarding the development, acquisition, installation,
construction and testing of the Properties;
(g) procure insurance for the Properties during the Construction
Period in accordance with the provisions of Article XIV of the Lease; and
(h) on or before the Construction Period Termination Date, cause the
Rent Commencement Date to occur with respect to all Properties or purchase
any such Properties for an amount equal to the sum referenced in Section
5.3(b) hereof and otherwise in compliance with the other terms and
provisions of the Operative Agreements.
ARTICLE III
THE PROPERTIES
3.1 Construction.
The Construction Agent shall cause the Improvements, the Equipment and all
other components of the Properties to be developed, acquired, installed,
constructed and tested in compliance with all Legal Requirements, all Insurance
Requirements, all manufacturer's specifications and standards and the standards
maintained by the Construction Agent for similar properties owned or operated by
the Construction Agent, unless non-compliance, individually or in the aggregate,
shall not have and could not be reasonably expected to have a Material Adverse
Effect.
3.2 Amendments; Modifications.
(a) The Construction Agent may at any time revise, amend or modify
(i) the Plans and Specifications without the consent of the Lessor;
provided, that any such amendment to the Plans and Specifications does not
(x) result in the Completion Date of the Improvements occurring on or
after the Construction Period Termination Date or (y) result in the cost
of all Improvements exceeding the amount specified in the Construction
Budget, as amended from time to time, or an amount equal to the sum of the
then Available Commitments plus the then Available Holder Commitments
(reduced by the amount, if any, necessary to pay for the cost of
construction and development of Improvements on other Properties which are
currently under construction but have not yet been completed (such amount
the "Unfunded Amount")), and (ii) the Construction Budget and enter into
any related amendments, modifications or supplements without the consent
of the Lessor; provided, that such revisions, amendments or modifications
to the Plans and Specifications or related amendments, modifications or
supplements to the Construction Budget do not result in any increase in
total Property Costs greater than the amount specified in the Construction
Budget, as amended from time to time, or the then Available Commitments
and Available Holder Commitment (reduced by the Unfunded Amount).
(b) The Construction Agent agrees that it will not implement any
revision, amendment or modification to the Plans and Specifications for
any Property if the aggregate effect of such revision, amendment or
modification, when taken together with any previous or contemporaneous
revision, amendment or modification to the Plans and Specifications for
any Property, would cause a material reduction in value in excess of the
cost reduction of such revision, amendment or modification of the Property
when completed, unless such revision, amendment or modification is
required by Legal Requirements.
3.3 Failure to Complete Construction Period Properties and
Purchase Obligation.
If at any time prior to the Completion Date with respect to any
Construction Period Property (a) there occurs a Casualty, or Condemnation, the
proceeds from which exceed or are expected to exceed twenty-five percent (25%)
of the aggregate Construction Budget for such Construction Period Property or
that will prevent such Construction Period Property from being completed by the
Construction Period Termination Date, (b) there shall occur any Environmental
Violation which the Lessor deems, in its reasonable discretion, reasonably
likely to have a Material Adverse Effect (c) there shall occur a Force Majeure
Event which lasts beyond three (3) months or (d) the Construction Agent shall
abandon or permanently discontinue the construction and development of such
Construction Period Property (which abandonment or permanent discontinuance
shall be deemed to have occurred if no work at such Construction Period Property
site is undertaken or completed during a period of (i) thirty (30) days or more
for reasons other than a Force Majeure Event and (ii) three (3) months or more
if such is due to a Force Majeure Event), then the Construction Agent shall pay
to Lessor, on a date designated by the Lessor, an aggregate amount equal to the
liquidated damages amount referenced in Section 5.3(b) of this Agreement
regarding such Construction Period Property and on such date Lessor shall
transfer and convey to the Construction Agent all right, title and interest of
Lessor in and to such Construction Period Property. At the cost and expense of
the Construction Agent, the Lessor shall convey such Construction Period
Property "AS-IS, WHERE-IS" and in its then present physical condition to the
Construction Agent or its designee free and clear of Lessor Liens. If the
Construction Agent is not required to pay such liquidated damages, it shall
promptly and diligently complete the development, acquisition, refinancing,
installation, construction and testing of such Construction Period Property in
accordance with the Plans and Specifications and with the terms hereof and cause
the Completion Date with respect to such Construction Period Property to occur
on or prior to the Construction Period Termination Date. Any determination that
an Environmental Violation is immaterial for purposes of this Agreement shall
not limit the obligations of Lessee respecting such Environmental Violation
under the Lease.
ARTICLE IV
PAYMENT OF FUNDS
4.1 Right to Receive Construction Cost.
(a) In connection with the development, acquisition, installation,
construction and testing of any Property and during the course of the
construction of the Improvements on any Property, the Construction Agent
may request that the Lessor advance funds for the payment of Property
Acquisition Costs or other Property Costs, and the Lessor will comply with
such request to the extent provided for under the Participation Agreement.
The Construction Agent and the Lessor acknowledge and agree that the
Construction Agent's right to request such funds and the Lessor's
obligation to advance such funds for the payment of Property Acquisition
Costs or other Property Costs is subject in all respects to the terms and
conditions of the Participation Agreement and each of the other Operative
Agreements. Without limiting the generality of the foregoing it is
specifically understood and agreed that in no event shall the aggregate
amounts advanced by the Lenders and the Holders for Property Acquisition
Costs or other Property Costs and any other amounts due and owing
hereunder or under any of the other Operative Agreements exceed the sum of
the aggregate Lender Commitments plus the aggregate Holder Commitments,
including without limitation such amounts owing for (i) development,
acquisition, installation, construction and testing of the Properties,
(ii) additional amounts which accrue or become due and owing under the
Credit Agreement or Trust Agreement as obligations of the Lessor prior to
any Completion Date or (iii) any other purpose.
(b) The proceeds of any funds made available to the Lessor to pay
Property Acquisition Costs or other Property Costs shall be made available
to the Construction Agent in accordance with the Requisition relating
thereto and the terms of the Participation Agreement. The Construction
Agent will use such proceeds only to pay the Property Acquisition Costs or
other Property Costs set forth in the Requisition relating to such funds.
ARTICLE V
EVENTS OF DEFAULT
5.1 Events of Default.
If any one (1) or more of the following events (each an "Event of
Default") shall occur:
(a) the Construction Agent fails to apply any funds paid by the
Lessor to the Construction Agent in a manner consistent with the
requirements of the Operative Agreements and consistent with the
applicable Requisition for the development, acquisition, installation,
construction and testing of the Properties and related Improvements and
Equipment or otherwise respecting the Properties to the payment of
Property Acquisition Costs or other Property Costs;
(b) the Completion Date with respect to any Property shall fail to
occur for any reason on or prior to the Construction Period Termination
Date;
(c) any Event of Default (as such term is defined in Appendix A to
the Participation Agreement) shall have occurred and not be cured within
any cure period expressly permitted under the terms of the applicable
Operative Agreement; and
(d) any representation or warranty made by the Construction Agent or
any other Credit Party set forth in this Agreement (including without
limitation the Incorporated Representations and Warranties) or in any
other Operative Agreement or in any document entered into in connection
herewith or therewith or in any document, certificate or financial or
other statement delivered in connection herewith or therewith shall be
false or inaccurate in any material way when made; or Construction Agent
or any other Credit Party shall fail to observe or perform any term,
covenant or condition of any Operative Agreement other than as set forth
in paragraphs (a), (b) or (c) of this Section 5.1 and such failure to
observe or perform any such term, covenant or condition shall continue for
more than twenty (20) days after notice thereof to the Construction Agent;
then, in any such event, the Lessor may, in addition to the other rights and
remedies provided for in this Agreement, terminate this Agreement by giving the
Construction Agent written notice of such termination and upon the expiration of
the time fixed in such notice and the payment of all amounts owing by the
Construction Agent hereunder (including without limitation any amounts specified
under Section 5.3 hereof), this Agreement shall terminate. The Construction
Agent shall pay all costs and expenses incurred by or on behalf of the Lessor,
including without limitation reasonable fees and expenses of outside counsel, as
a result of any Event of Default hereunder.
5.2 Damages.
The termination of this Agreement pursuant to Section 5.1 shall in no
event relieve the Construction Agent of its liability and obligations hereunder,
all of which shall survive any such termination.
5.3 Remedies; Remedies Cumulative.
(a) If an Event of Default shall have occurred and be continuing, the
Lessor shall have all rights available to the Lessor under the Lease and
the other Operative Agreements and all other rights otherwise available at
law, equity or otherwise.
(b) Upon the occurrence of an Event of Default, the Lessor shall have
(in addition to its rights otherwise described in this Agreement or
existing at law, equity or otherwise) the option (and shall be deemed
automatically, and without any further action, to have exercised such
option upon the occurrence of any Lease Event of Default arising under
Sections 17.1(g), (h) or (i) of the Lease) to transfer and convey to the
Construction Agent upon a date designated by the Lessor all right, title
and interest of the Lessor in and to any Property or Properties (including
without limitation any Land and/or any Improvements, any interest in any
Improvements, any Equipment and any Property then under construction) for
which the Rent Commencement Date has not yet occurred (a "Construction
Period Property"). On any transfer and conveyance date specified by the
Lessor pursuant to this Section 5.3(b), (i) the Lessor shall transfer and
convey (at the cost of the Construction Agent) all right, title and
interest of the Lessor in and to any or all such Construction Period
Properties free and clear of the Lien of the Lease and all Lessor Liens,
(ii) the Construction Agent hereby covenants and agrees that it will
accept such transfer and conveyance of right, title and interest in and to
the respective Construction Period Property or Construction Period
Properties and (iii) the Construction Agent hereby promises to pay to the
Lessor, as liquidated damages (it being agreed that it would be impossible
accurately to determine actual damages), an aggregate amount equal to the
Termination Value of any or all such Construction Period Properties. The
Construction Agent specifically acknowledges and agrees that its
obligations under this Section 5.3(b), including without limitation its
obligations to accept the transfer and conveyance of Construction Period
Properties and its payment obligations described in subparagraph (iii) of
this Section 5.3(b), shall be absolute and unconditional under any and all
circumstances and shall be performed and/or paid, as the case may be,
without notice or demand and without any abatement, reduction, diminution,
setoff, defense, counterclaim or recoupment whatsoever. Notwithstanding
the foregoing provisions of this Section 5.3(b), the Lessor shall have the
right in its sole discretion to rescind any exercise of its option under
this Section 5.3(b) upon the giving of its written confirmation of such
rescission to the Construction Agent on or prior to the earlier to occur
of (a) the actual date of transfer and (b) the date one hundred and twenty
(120) days after the date the Lessor has given notice of its intent to
transfer and convey any Property to the Construction Agent as referenced
above in this Section 5.3(b).
(c) The Construction Agent shall have the right to cure an Event of
Default hereunder with respect to any given Property by purchasing such
Property from the Lessor (to the extent such Event of Default is no longer
continuing with respect to any other Property remaining subject to this
Agreement after such purchase) for an amount equal to the liquidated
damages amount set forth in Section 5.3(b) of this Agreement.
(d) No failure to exercise and no delay in exercising, on the part of
the Lessor, any right, remedy, power or privilege under this Agreement or
under the other Operative Agreements shall operate as a waiver thereof;
nor shall any single or partial exercise of any right remedy, power or
privilege under this Agreement preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges provided in this Agreement are
cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
ARTICLE VI
THE LESSOR'S RIGHTS
6.1 Exercise of the Lessor's Rights.
Subject to the Excepted Payments, the Construction Agent and the Lessor
hereby acknowledge and agree that, subject to and in accordance with the terms
of the Security Agreement made by the Lessor in favor of the Agent, the rights
and powers of the Lessor under this Agreement have been assigned to the Agent.
6.2 The Lessor's Right to Cure the Construction Agent's
Defaults.
The Lessor, without waiving or releasing any obligation or Event of
Default, may (but shall be under no obligation to) remedy any Event of Default
for the account of and at the sole cost and expense of the Construction Agent.
All out-of-pocket costs and expenses so incurred (including without limitation
fees and expenses of counsel), together with interest thereon at the Overdue
Rate from the date on which such sums or expenses are paid by the Lessor, shall
be paid by the Construction Agent to the Lessor on demand.
ARTICLE VII
MISCELLANEOUS
7.1 Notices.
All notices required or permitted to be given under this Agreement shall
be in writing and delivered as provided in Section 12.2 of the Participation
Agreement.
7.2 Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
Lessor, the Construction Agent and their respective successors and the assigns
of the Lessor. The Construction Agent may not assign this Agreement or any of
its rights or obligations hereunder or with respect to any Property in whole or
in part to any Person without the prior written consent of the Agent, the
Lenders, the Holders and the Lessor.
7.3 GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
7.4 SUBMISSION TO JURISDICTION; VENUE; WAIVERS.
THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO
SUBMISSION TO JURISDICTION AND VENUE ARE HEREBY INCORPORATED BY
REFERENCE HEREIN, MUTATIS MUTANDIS.
7.5 Amendments and Waivers.
This Agreement may not be terminated, amended, supplemented, waived or
modified except in accordance with the provisions of Section 12.4 of the
Participation Agreement.
7.6 Counterparts.
This Agreement may be executed in any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one (1)
and the same instrument.
7.7 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.
7.8 Headings and Table of Contents.
The headings and table of contents contained in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
7.9 WAIVER OF JURY TRIAL.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE LESSOR AND THE
CONSTRUCTION AGENT IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND ANY COUNTERCLAIM
THEREUNDER.
[signature page follows]
Agency Agreement
Centennial Real Estate Trust 1998-1
Agency Agreement
Centennial Real Estate Trust 1998-1
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.
CENTENNIAL HEALTHCARE CORPORATION,
as the Construction Agent
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: V.P.
FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
individually, but solely as Owner Trustee under
the Centennial Real Estate Trust 1998-1, as the
Lessor
By:/s/ Xxx X. Xxxxx
Name:Xxx X. Xxxxx
Title: V.P.
