CREDIT AGREEMENT
Dated as of June 2, 1999
among
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, except as
expressly stated herein,
but solely as the Owner Trustee
under the DTSD Realty Trust 1999-1,
as the Borrower,
and
FIRST UNION NATIONAL BANK,
as the Lender
TABLE OF CONTENTS
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 [Intentionally Left Blank]................................... 3
2.5 Termination or Reduction of Commitments...................... 3
2.6 Prepayments and Payments..................................... 3
2.7 Conversion and Continuation Options.......................... 4
2.8 Interest Rates and Payment Dates............................. 5
2.9 Computation of Interest...................................... 5
2.10 [Intentionally Left Blank]................................... 6
2.11 Notice of Amounts Payable; Mandatory Assignment.............. 6
SECTION 3. REPRESENTATIONS AND WARRANTIES.................................... 7
SECTION 4. CONDITIONS PRECEDENT.............................................. 7
4.1 Conditions to Effectiveness.................................. 7
4.2 Conditions to Each Loan...................................... 7
SECTION 5. COVENANTS......................................................... 7
5.1 Other Activities............................................. 7
5.2 Ownership of Properties, Indebtedness........................ 8
5.3 Disposition of Assets........................................ 8
5.4 Compliance with Operative Agreements......................... 8
5.5 Further Assurances........................................... 8
5.6 Notices...................................................... 8
5.7 Discharge of Liens........................................... 8
5.8 Trust Agreement.............................................. 9
SECTION 6. EVENTS OF DEFAULT................................................. 9
SECTION 7.[INTENTIONALLY LEFT BLANK]......................................... 11
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL........................ 12
8.1 Collection and Allocation of Payments and Other Amounts...... 12
8.2 Certain Remedial Matters..................................... 12
8.3 Excepted Payments............................................ 12
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SECTION 9. MISCELLANEOUS..................................................... 12
9.1 Amendments and Waivers....................................... 12
9.2 Notices...................................................... 12
9.3 No Waiver; Cumulative Remedies............................... 13
9.4 Survival of Representations and Warranties................... 13
9.5 Payment of Expenses and Taxes................................ 13
9.6 Successors and Assigns; Participations and Assignments....... 13
9.7 [Intentionally Left Blank]................................... 13
9.8 Assignments.................................................. 13
9.9 [Intentionally Left Blank]................................... 14
9.10 Set-off...................................................... 14
9.11 Counterparts................................................. 15
9.12 Severability................................................. 15
9.13 Integration.................................................. 15
9.14 GOVERNING LAW................................................ 15
9.15 SUBMISSION TO JURISDICTION; VENUE; ARBITRATION............... 15
9.16 Acknowledgments.............................................. 15
9.17 WAIVERS OF JURY TRIAL........................................ 16
9.18 Nonrecourse.................................................. 16
9.19 USURY SAVINGS PROVISION...................................... 17
EXHIBITS
Exhibit A-1 Form of Note
Exhibit B Form of Assignment and Acceptance
ii
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of June 2, 1999 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, the
"Agreement") is among FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
individually, except as expressly stated herein, but solely as the Owner Trustee
under the DTSD Realty Trust 1999-1 (the "Owner Trustee" or the "Borrower") and
FIRST UNION NATIONAL BANK, a national banking association, as lender ("Bank").
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 June 2,
1999 (as amended, modified, extended, supplemented, restated and/or replaced
from time to time in accordance with the applicable provisions thereof, the
"Participation Agreement") among Dollar Tree Distribution, Inc., as Lessee and
as Construction Agent, the various parties thereto from time to time, as the
Guarantors, the Borrower, and First Union National Bank, as Lender and Holder.
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, the Bank agrees to make
Loans to the Borrower from time to time during the Commitment Period in an
amount up to the Commitment for the purpose of enabling the Borrower to purchase
the Properties and to pay Property Acquisition Costs, Property Costs and
Transaction Expenses. 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.
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(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 Bank 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 Bank on a given date in an aggregate amount
less than $100,000 shall be ABR Loans, unless the remaining Available Commitment
is less than $100,000, in which case, the Borrower may elect a Eurodollar Loan
for such remaining amount.
2.2 Notes.
The Loans shall be evidenced by promissory notes of the Borrower,
substantially in the form of Exhibit A (the "Notes"), with appropriate
insertions as to payee and date. The Bank is hereby authorized to record the
date, Type and amount of each Loan made, 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 any 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 Bank irrevocable notice (which must be received by the Bank prior
to 11:00 a.m., Charlotte, North Carolina time, at least two (2) Business Days
prior to the requested Borrowing Date for Eurodollar Loans (for ABR Loans, such
notice may be given on the same Business Day as the requested Borrowing Date, so
long as such notice is received prior to 11:00 a.m. Charlotte, North Carolina
time on such Business Day) specifying (i) the amount to be borrowed (which on
any date shall not be in excess of the then Available Commitments), (ii) the
requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof, (iv) if the borrowing is to be a
combination of Eurodollar Loans and ABR Loans, the respective amounts of each
Type of Loan and (v) the Interest Period applicable to each Eurodollar Loan.
Pursuant to the terms of the Participation Agreement, the Borrower shall be
deemed to have delivered such notice upon the delivery of a notice by the
Construction Agent or the Lessee containing such required information. Upon
receipt of any such notice from the Borrower, the Bank shall make such borrowing
available for the account of the Borrower at the office of the Bank specified in
Section 9.2 prior to 11:00 a.m., Charlotte, North Carolina time, on the
Borrowing Date requested by the Borrower in funds immediately available. 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.
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(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 [Intentionally Left Blank].
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 Bank, to terminate the Commitments or, from
time to time, to reduce the amount of the Commitments, provided, that (i) after
giving effect to such reduction, the aggregate outstanding principal amount of
the Loans shall not exceed the aggregate Commitments and (ii) such notice shall
be accompanied by a certificate of the Construction Agent stating that the
amount equal to ninety-seven percent (97%) of aggregate Budgeted Total Property
Costs as of the date of such reduction does not exceed the aggregate amount of
Available Commitments as of such date after giving effect to such reduction. Any
such reduction (A) shall be in an amount equal to the lesser of (1) $1,000,000
(or an even multiple thereof) or (2) the remaining Available Commitments and (B)
shall reduce permanently the Commitments then in effect.
(b) The Commitments respecting any particular Property shall
automatically be reduced to zero (0) upon the occurrence of the Rent
Commencement Date respecting such Property. On any date on which the Commitments
shall automatically be reduced to zero (0) pursuant to Section 6, the Borrower
shall prepay all outstanding Loans, together with accrued unpaid interest
thereon and all other amounts owing thereunder.
2.6 Prepayments and Payments.
(a) Subject to Sections 11.2(e), 11.3 and 11.4 of the Participation
Agreement, the Borrower may at any time and from time to time prepay the Loans,
in whole or in part, without premium or penalty, upon at least three (3)
Business Days' irrevocable notice to the Bank, 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. 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 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
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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 Bank.
(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 Bank irrevocable notice of such election prior
to 11:00 a.m., Charlotte, North Carolina time on the date of such conversion,
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 Bank at least two (2) Business Days'
prior irrevocable notice of such election. 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 thirty (30) days 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 Bank, 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,
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further, no Eurodollar Loans may be continued as such if an Event of Default has
occurred and is continuing as of the last day of the Interest Period for such
Eurodollar Loan, and provided, further, that if the Borrower shall fail to give
any required notice as described above or otherwise herein, or if such
continuation is not permitted pursuant to the proceeding proviso, such Loan
shall automatically be converted to an ABR Loan on the last day of such then
expiring Interest Period.
2.8 Interest Rates and Payment Dates.
(a) The Loans outstanding hereunder from time to time shall bear
interest at a rate per annum equal to either (i) with respect to a Eurodollar
Loan, the Eurodollar Rate determined for the applicable Interest Period plus the
Applicable Percentage or (ii) with respect to an ABR Loan, the ABR, as selected
by the Borrower at the Lessee's direction in accordance with the provisions
hereof; provided, however, (A) the Loans of the Lender 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) the Loans shall bear interest at the
ABR applicable from time to time from and after the dates and during the periods
specified in Section 11.3(f) of the Participation Agreement and (C) in such
other circumstances as expressly provided herein, the Loans shall bear interest
at the ABR.
(b) If all or a portion of (i) the principal amount of any Loan, (ii)
any interest payable thereon or (iii) any other amount payable hereunder shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum which is
the lesser of (x) the then current rate of interest respecting such payment plus
two percent (2%) and (y) the highest interest rate permitted by applicable law,
in each case from the date of such non-payment until such amount is paid in full
(whether after or before judgment). 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 (but for any Loan having an Interest Period of six (6)
months, interest shall be payable in arrears on each applicable three (3) month
anniversary date of the commencement of such Loan), provided, that (i) interest
accruing pursuant to paragraph (b) of this Section 2.8 shall be payable from
time to time on demand and (ii) each prepayment of the Loans shall be
accompanied by accrued interest to the date of such prepayment on the amount
prepaid.
2.9 Computation of Interest.
(a) Whenever it is calculated on the basis of the Prime Lending Rate,
interest shall be calculated on the basis of a year of three hundred sixty-five
(365) days (or three hundred sixty-six (366) days, as the case may be) for the
actual days elapsed; and, otherwise, interest shall be calculated on the basis
of a year of three hundred sixty (360) days for the actual days elapsed. The
Bank shall as soon as practicable notify the Borrower 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
5
becomes effective. The Bank shall as soon as practicable notify the Borrower of
the effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Bank pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower in
the absence of manifest error.
(c) If the Eurodollar Rate cannot be determined by the Bank in the
manner specified in the definition of the term "Eurodollar Rate", the Bank shall
give telecopy or telephonic notice thereof to the Borrower as soon as
practicable thereafter. Until such time as the Eurodollar Rate can be determined
by the Bank 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 [Intentionally Left Blank].
2.11 Notice of Amounts Payable; Mandatory Assignment.
(a) In the event that the Bank becomes aware that any amounts are or
will be owed to it pursuant to Sections 11.2(e) or 11.3 of the Participation
Agreement or that it is unable to make Eurodollar Loans, then it shall promptly
notify the Borrower and the Lessee thereof and, as soon as possible thereafter,
the Bank shall submit to the Borrower 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 the Bank delivers to the Borrower a certificate
in accordance with Section 2.11(a) in connection with amounts payable pursuant
to Sections 11.2(e) or 11.3 of the Participation Agreement or the Bank is
required to make Loans as ABR Loans in accordance with Section 11.3(d) of the
Participation Agreement then, subject to Section 9.1 of the Participation
Agreement, the Borrower may, at its own expense (provided, such amounts shall be
reimbursed or paid entirely (as elected by the Borrower) by the Lessee, as
Supplemental Rent) and in the discretion of the Borrower, (i) require the Bank
to transfer or assign, in whole or (with the Bank's consent) in part, without
recourse (in accordance with Section 9.8), all or (with the Bank'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 the Bank, 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 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 and prepay all outstanding
Loans, 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 the Bank 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 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
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Commitment and prepayment of Loans does not conflict with any law, rule or
regulation or order of any court or Governmental Authority.
3. REPRESENTATIONS AND WARRANTIES
To induce the Bank 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 the Bank to make any Loan requested to be made by it
on any date is subject to the satisfaction of all conditions precedent set forth
in Section 5.3 and 5.4 of the Participation Agreement required by said Sections
to be satisfied on or prior to the date of the applicable Loan.
Each borrowing by the Borrower hereunder shall constitute a
representation and warranty by the Borrower as of the date of such Loan that the
conditions contained in this Section 4.2 have been satisfied.
SECTION 5. COVENANTS
So long as any Loan or Note remains outstanding and unpaid or any other
amount is owing to the Bank 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.
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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
Bank, and at the expense of the Borrower (provided, such amounts shall be
reimbursed or paid entirely (as elected by the Borrower) by the Lessee, as
Supplemental Rent), the Borrower will promptly and duly execute and deliver such
further instruments and documents and take such further action as the Bank 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 Bank 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
8
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 Bank 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 (i) default
in the payment when due of any principal on the Loans or (ii) default in the
payment when due of any interest on the Loans, and such default in such payment
of interest shall continue for fifteen (15) or more days; or
(b) Except as provided in Sections 6(a) and 6(c), the Borrower shall
default, and such default shall continue for fifteen (15) or more days, in the
payment of any amount owing under any Credit Document; or
(c) (i) The Borrower shall default in the payment of any amount due on
the Maturity Date owing under any Credit Document or (ii) the Borrower shall
default in the payment when due of any principal or interest on the Loans
payable with regard to any obligation of Lessee to pay Termination Value when
due or to pay Basic Rent or Supplemental Rent at such time as any Termination
Value is due; or
(d) The Borrower shall default in the due performance or observance by
it of any term, covenant or agreement contained in any Credit Document to which
it is a party (other than those referred to in paragraphs (a), (b) and (c)
above), provided, that in the case of any such default under Sections 5.4, 5.5
or 5.8(c), such default shall have continued unremedied for a period of at least
thirty (30) days after notice to the Borrower by the Bank, 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
9
pursue diligently such remedy, then the Borrower shall be granted additional
time to pursue such remedy but in no event more than an additional thirty (30)
days.
(e) Any representation, warranty or statement made or deemed made by
the Borrower herein or in any other Credit Document or by the Borrower or the
Lessee in the Participation Agreement, or in any statement or certificate
delivered or required to be delivered pursuant hereto or thereto, shall prove to
be untrue in any material respect on the date as of which made or deemed made;
or
(f) (i) Any Lease Event of Default shall have occurred and be
continuing or (ii) the Owner Trustee shall default in the due performance or
observance by it of any term, covenant or agreement contained in the
Participation Agreement or in the Trust Agreement to or for the benefit of the
Bank, 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 Bank, provided, further, that in the case of
this clause (ii), such default is not capable of remedy within such fifteen (15)
day period but may be remedied with further diligence and if the Borrower has
and continues to pursue diligently such remedy, then the Borrower shall be
granted additional time to pursue such remedy but in no event more than an
additional thirty (30) days; or
(g) The Borrower shall commence a voluntary case concerning itself
under the Bankruptcy Code or an involuntary case is commenced against the
Borrower and the petition is not contravened within ten (10) days after
commencement of the case or an involuntary case is commenced against the
Borrower and the petition is not dismissed within sixty (60) days after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
the Borrower; or the Borrower commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to the Borrower, or there is commenced against the
Borrower any such proceeding which remains undismissed for a period of sixty
(60) days; or the Borrower is adjudicated insolvent or bankrupt, or any order of
relief or other order approving any such case or proceeding is entered; or the
Borrower suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of sixty (60) days; or the Borrower makes a general assignment for the
benefit of creditors; or any corporate or partnership action is taken by the
Borrower for the purpose of effecting any of the foregoing; or
(h) Any Security Document shall cease to be in full force and effect,
or shall cease to give the Bank 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), 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
10
(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) the
Bank may, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) the
Bank may 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 Bank may exercise any
or all of the rights and powers and pursue any and all of the remedies available
to it hereunder and (subject to the terms thereof) under the other Credit
Documents, the Lease and the other Operative Agreements and shall have any and
all rights and remedies available under the Uniform Commercial Code or any
provision of law.
Upon the occurrence of any Event of Default and at any time thereafter
so long as any Event of Default shall be continuing, the Bank may 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 Bank by reason of the occurrence
of any Event of Default or the exercise of remedies with respect thereto.
SECTION 7. [INTENTIONALLY LEFT BLANK]
11
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL
8.1 Collection and Allocation of Payments and Other Amounts.
The Lessee, the Construction Agent, the Bank and the Borrower have
agreed pursuant to the terms of Section 8.7 of the Participation Agreement to a
procedure for the allocation of certain payments, including without limitation
the proceeds of Collateral.
8.2 Certain Remedial Matters.
Notwithstanding any other provision of this Agreement or any other
Credit Document:
(a) the Borrower shall at all times retain to the exclusion of all
other parties, all rights to Excepted Payments payable to it and to demand,
collect or commence an action at law to obtain such payments and to enforce any
judgment with respect thereto; and
(b) the Borrower and the Bank shall at all times retain the right (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 the Bank may desire,
and (iii) to enforce compliance by the Lessee with the provisions of Articles
VIII, IX, X, XI, XIV and XVII of the Lease.
8.3 Excepted Payments.
Notwithstanding any other provision of this Agreement or the Security
Documents, any Excepted Payment received at any time by the Bank 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.
12
9.3 No Waiver; Cumulative Remedies.
No failure to exercise and no delay in exercising, on the part of the
Bank, any right, remedy, power or privilege hereunder or under the other Credit
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or future exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Survival of Representations and Warranties.
All representations and warranties made by the Borrower under the
Operative Agreements shall survive the execution and delivery of this Agreement
and the Notes and the making of the Loans hereunder.
9.5 Payment of Expenses and Taxes.
The Borrower agrees to (with funds provided by the Lessee as
Supplemental Rent): (a) pay all reasonable out-of-pocket costs and expenses of
the Bank (i) 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) 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 Bank and for each of the Lenders) and (b) pay and hold the Bank harmless
from and against any and all present and future stamp and other similar taxes
with respect to the foregoing matters and from and against any and all
liabilities with respect to or resulting from any delay or omission 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 and the Bank 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 the Bank.
9.7 [Intentionally Left Blank].
9.8 Assignments.
(a) Subject to and in accordance with Section 10.1 of the Participation
Agreement, the Bank may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign with
the consent, subject to Section 9.1 of the
13
Participation Agreement, of the Borrower (which shall not be unreasonably
withheld or delayed and which consent of the Borrower shall not be required
during the continuation of any Event of Default), to any bank, financial
institution or other entity that is either organized under the laws of the
United States or any state thereof or is a foreign bank that operates a branch
office in the United States (each, a "Purchasing Lender") all or any part of its
rights and obligations under this Agreement and the other Operative Agreements
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit
B. Upon such execution, delivery, acceptance and recording, from and after the
effective date determined pursuant to such Assignment and Acceptance, (x) the
Purchasing Lender thereunder shall be a party hereto and, to the extent provided
in such Assignment and Acceptance, have the rights and obligations of the Bank
hereunder with a Commitment as set forth therein, and (y) the Bank shall, to the
extent provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (and the Bank shall cease to be a party
hereto). Notwithstanding anything to the contrary in this Agreement, the consent
of the Borrower shall not be required, and, unless requested by the relevant
Purchasing Lender, new Notes shall not be required to be executed and delivered
by the Borrower, for any assignment which occurs at any time when any of the
events described in Section 6(g) shall have occurred and be continuing.
(b) Upon its receipt of an Assignment and Acceptance executed by the
Bank and a Purchasing Lender the Borrower shall execute and deliver to
Purchasing Lender new Notes (in exchange for the Notes of the Bank), each in an
amount equal to the Commitment assumed or Loans purchased by the relevant
Purchasing Lender pursuant to such Assignment and Acceptance. Such new Notes
shall be dated the effective date of the applicable Assignment and Acceptance
and shall otherwise be in the form of the Notes replaced thereby.
(c) [Intentionally Left Blank].
(d) The Bank may, from time to time and without the consent of the
Borrower or any other Person, pledge or assign for security purposes any portion
of its Loans or any other interests in this Agreement and the other Credit
Documents to any Federal Reserve Bank.
9.9 [Intentionally Left Blank].
9.10 Set-off.
(a) [Intentionally Left Blank].
(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 Bank is hereby authorized at any time or
from time to time, without presentment, demand, protest or other notice of any
kind to the Borrower or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other Indebtedness at any time held or owing by the
Bank (including without limitation by branches and agencies of the Bank wherever
located) to or for the credit or the account of the Borrower against and on
account of the obligations and liabilities of the
14
Borrower to the Bank under this Agreement or under any of the other Operative
Agreements, 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 Bank 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 Bank.
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 and the Bank with respect to the subject matter hereof and
thereof, and there are no promises, undertakings, representations or warranties
by the Bank relative to subject matter hereof not expressly set forth or
referred to herein or in the other Credit Documents.
9.14 GOVERNING LAW.
THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH
CAROLINA.
9.15 SUBMISSION TO JURISDICTION; VENUE; ARBITRATION.
THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO SUBMISSION TO
JURISDICTION, VENUE AND ARBITRATION ARE HEREBY INCORPORATED BY REFERENCE HEREIN,
MUTATIS MUTANDIS.
9.16 Acknowledgments.
The Borrower hereby acknowledges that:
15
(a) The Bank has no 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 Bank on one (1) hand, and the
Borrower, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and
(b) no joint venture is created hereby or by the other Credit Documents
or otherwise exists by virtue of the transactions contemplated hereby or among
the Borrower and the Bank.
9.17 WAIVERS OF JURY TRIAL.
THE BORROWER AND THE BANK 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 Bank agrees that, in the
event it pursues any remedies available under this Agreement, the Notes or any
other Operative Agreement, the Bank shall not 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 Bank further agrees that the Borrower shall not be
responsible for the payment of any amounts owing hereunder (excluding principal
and interest (other than Overdue Interest) in respect of the Loans) (such
non-excluded amounts, "Supplemental Amounts") except to the extent that payments
of Supplemental Rent designated by the Lessee for application to such
Supplemental Amounts shall have been paid by the Lessee pursuant to the Lease
(it being understood that the failure by the Lessee for any reason to pay any
Supplemental Rent in respect of such Supplemental Amounts shall nevertheless be
deemed to constitute a default by the Borrower for the purposes of Section 6).
Notwithstanding the foregoing provisions of this Section 9.18, nothing in this
Agreement or any other Operative Agreement shall (a) constitute a waiver,
release or discharge of any obligation evidenced or secured by this Agreement or
any other Credit Document, (b) limit the right of the Bank 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
16
(whether of payment and/or performance) given to the Lessor or the Bank or of
any indemnity agreement given by the Borrower, in connection with the Loans made
hereunder.
9.19 USURY SAVINGS PROVISION.
IT IS THE INTENT OF THE PARTIES HERETO TO CONFORM TO AND CONTRACT IN
STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT AND THAT
N.C. GEN. STAT. ss. 24-9 SHALL APPLY WITH RESPECT TO THIS AGREEMENT. TO THE
EXTENT N.C. GEN.STAT. ss.24-9 IS HEREAFTER DEEMED NOT TO APPLY BY A COURT OF
COMPETENT JURISDICTION AND ANY PAYMENTS HEREUNDER ARE HEREINAFTER CHARACTERIZED
BY ANY COURT OF COMPETENT JURISDICTION AS THE REPAYMENT OF PRINCIPAL AND
INTEREST THEREON, THE FOLLOWING PROVISIONS OF THIS SECTION 9.19 SHALL APPLY. ANY
SUCH PAYMENTS SO CHARACTERIZED AS INTEREST MAY BE REFERRED TO HEREIN AS
"INTEREST." ALL AGREEMENTS AMONG THE PARTIES HERETO ARE HEREBY LIMITED BY THE
PROVISIONS OF THIS PARAGRAPH WHICH SHALL OVERRIDE AND CONTROL ALL SUCH
AGREEMENTS, WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER WRITTEN OR
ORAL. IN NO WAY, NOR IN ANY EVENT OR CONTINGENCY (INCLUDING WITHOUT LIMITATION
PREPAYMENT OR ACCELERATION OF THE MATURITY OF ANY OBLIGATION), SHALL ANY
INTEREST TAKEN, RESERVED, CONTRACTED FOR, CHARGED, OR RECEIVED UNDER THIS
AGREEMENT OR OTHERWISE, EXCEED THE MAXIMUM NONUSURIOUS AMOUNT PERMISSIBLE UNDER
APPLICABLE LAW. IF, FROM ANY POSSIBLE CONSTRUCTION OF ANY OF THE OPERATIVE
AGREEMENTS OR ANY OTHER DOCUMENT OR AGREEMENT, INTEREST WOULD OTHERWISE BE
PAYABLE IN EXCESS OF THE MAXIMUM NONUSURIOUS AMOUNT, ANY SUCH 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 BANK SHALL EVER
RECEIVE ANYTHING OF VALUE WHICH IS CHARACTERIZED AS INTEREST WITH RESPECT TO THE
OBLIGATIONS OWED HEREUNDER OR UNDER APPLICABLE LAW AND WHICH WOULD, APART FROM
THIS PROVISION, BE IN EXCESS OF THE MAXIMUM LAWFUL AMOUNT, AN AMOUNT EQUAL TO
THE AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE INTEREST SHALL, WITHOUT PENALTY, BE
APPLIED TO THE REDUCTION OF THE COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL AND
NOT TO THE PAYMENT OF INTEREST, OR REFUNDED TO THE BORROWER OR ANY OTHER PAYOR
THEREOF, IF AND TO THE EXTENT SUCH AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE
EXCEEDS THE COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL. THE RIGHT TO DEMAND
PAYMENT OF ANY AMOUNTS EVIDENCED BY ANY OF THE OPERATIVE AGREEMENTS DOES NOT
INCLUDE THE RIGHT TO RECEIVE ANY INTEREST WHICH HAS NOT OTHERWISE ACCRUED ON THE
DATE OF SUCH DEMAND, AND THE BANK DOES NOT INTEND TO CHARGE OR RECEIVE ANY
UNEARNED
17
INTEREST IN THE EVENT OF SUCH DEMAND. ALL INTEREST PAID OR AGREED TO BE PAID TO
THE BANK, TO THE EXTENT PERMITTED BY APPLICABLE LAW, BE AMORTIZED, PRORATED,
ALLOCATED, AND SPREAD THROUGHOUT THE FULL STATED TERM (INCLUDING WITHOUT
LIMITATION ANY RENEWAL OR EXTENSION) OF THIS AGREEMENT SO THAT THE AMOUNT OF
INTEREST ON ACCOUNT OF SUCH PAYMENTS DOES NOT EXCEED THE MAXIMUM NONUSURIOUS
AMOUNT PERMITTED BY APPLICABLE LAW.
[signature pages follow]
18
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 DTSD Realty Trust
1999-1
By: /s/ Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title: Vice President
FIRST UNION NATIONAL BANK, as Lender
By: /s/ Xxxxxx XxXxxxxxxx
Name: Xxxxxx XxXxxxxxxx
Title: Vice President
Exhibit A
PROMISSORY NOTE
(DTSD Realty Trust 1999-1)
___________, 199__
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as the Owner Trustee
under the DTSD Realty Trust 0000-0 (xxx "Xxxxxxxx"), hereby unconditionally
promises to pay to the order of FIRST UNION NATIONAL BANK (the "Lender"), at the
office of First Union National Bank, located at x/x Xxxxx Xxxxx Xxxxxxx Xxxxxxx
Xxxxx, XX0, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 or at
such other address as may be specified by the Lender, 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 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 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 June 2, 1999 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower and the
Lender, (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
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH CAROLINA.
[The remainder of this page has been left blank intentionally.]
A-2
IN WITNESS WHEREOF, the undersigned authorized officer of the Owner
Trustee has executed this Promissory Note as of the date first set forth above.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but
solely as the Owner Trustee under the
DTSD Realty Trust 1999-1
By:_________________________________
Name:_______________________________
Title:______________________________
Exhibit B
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of June 2, 1999 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its
individual capacity, but solely as the Owner Trustee under the DTSD Realty Trust
1999-1 (the "Owner Trustee" or the "Borrower"), and FIRST UNION NATIONAL BANK,
as the Lender. 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.
FIRST UNION NATIONAL BANK (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 100% 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 Borrower exchange such Note for a new Note payable to the
Assignee.
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received copies of the Operative Agreements, and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor and based on such documents
and
B-1
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; and (d) 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.
4. The effective date of this Assignment and Acceptance shall be
[________, 199__] (the "Effective Date").
5. From and after the Effective Date, the Borrower 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 Borrower 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 NORTH
CAROLINA.
B-2
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.
FIRST UNION NATIONAL BANK, as 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 DTSD Realty
Trust 1999-1
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[consents required only to the extent expressly provided in Section 9.8 of the
Credit Agreement]
B-3
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT,
DATED AS OF JUNE 2, 1999,
AMONG
FIRST SECURITY BANK, NATIONAL ASSOCIATION
NOT INDIVIDUALLY,
BUT SOLELY AS THE OWNER TRUSTEE,
AND
FIRST UNION NATIONAL BANK, AS LENDER
Name of Assignor: First Union National Bank
Name of Assignee:________________________________________
Effective Date of Assignment:____________________________
Credit Principal Commitment Percentage
Facility Assigned Amount Assigned Assigned
$ 100%
------------------------- --------------------- ----------------------
FIRST UNION NATIONAL BANK, as Assignor
By:_________________________________________
Name:_______________________________________
Title:______________________________________
[Name of Assignee], as Assignee
By:_________________________________________
Name:_______________________________________
Title:______________________________________
