EXHIBIT 10.35
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CREDIT AGREEMENT
Dated as of June 29, 1998
among
First Security Bank, National Association,
not individually, except as
expressly stated herein,
but solely as the Owner Trustee
under the USF Real Estate Trust 1998-1,
as the Borrower,
The Several Lenders
from Time to Time Parties Hereto,
and
FIRST UNION NATIONAL BANK,
as the Agent
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS.................................................... 1
1.1 Definitions...................................................... 1
1.2 Interpretation................................................... 1
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS................................ 1
2.1 Commitments...................................................... 1
2.2 Notes............................................................ 2
2.3 Procedure for Borrowing.......................................... 2
2.4 Lender Facility Fees............................................. 3
2.5 Termination or Reduction of Commitments.......................... 3
2.6 Prepayments and Payments......................................... 4
2.7 Conversion and Continuation Options.............................. 5
2.8 Interest Rates and Payment Dates................................. 5
2.9 Computation of Interest.......................................... 6
2.10 Pro Rata Treatment and Payments.................................. 7
2.11 Notice of Amounts Payable; Mandatory Assignment.................. 7
SECTION 3. REPRESENTATIONS AND WARRANTIES................................. 8
SECTION 4. CONDITIONS PRECEDENT........................................... 8
4.1 Conditions to Effectiveness...................................... 8
4.2 Conditions to Each Loan.......................................... 9
SECTION 5. COVENANTS...................................................... 9
5.1 Other Activities................................................. 9
5.2 Ownership of Properties, Debt.................................... 9
5.3 Disposition of Assets............................................ 9
5.4 Compliance with Operative Agreements............................. 9
5.5 Further Assurances............................................... 10
5.6 Notices.......................................................... 10
5.7 Discharge of Liens............................................... 10
5.8 Trust Agreement.................................................. 10
SECTION 6. EVENTS OF DEFAULT.............................................. 10
SECTION 7. THE AGENT...................................................... 13
7.1 Appointment...................................................... 13
7.2 Delegation of Duties............................................. 14
7.3 Exculpatory Provisions........................................... 14
7.4 Reliance by the Agent............................................ 14
7.5 Notice of Default................................................ 15
7.6 Non-Reliance on the Agent and Other Lenders...................... 15
7.7 Indemnification.................................................. 16
7.8 The Agent in Its Individual Capacity............................. 16
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7.9 Successor Agent.................................................. 16
7.10 Actions of the Agent on Behalf of Holders........................ 17
7.11 The Agent's Duty of Care......................................... 17
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL..................... 17
8.1 Collection and Allocation of Payments and Other Amounts.......... 17
8.2 Certain Remedial Matters......................................... 17
8.3 Excepted Payments................................................ 18
SECTION 9 MISCELLANEOUS................................................... 18
9.1 Amendments and Waivers........................................... 18
9.2 Notices.......................................................... 18
9.3 No Waiver; Cumulative Remedies................................... 18
9.4 Survival of Representations and Warranties....................... 18
9.5 Payment of Expenses and Taxes.................................... 19
9.6 Successors and Assigns; Participations and Assignments........... 19
9.7 Participations................................................... 19
9.8 Assignments...................................................... 20
9.9 The Register; Disclosure; Pledges to Federal Reserve Banks....... 22
9.10 Adjustments; Set-off............................................. 22
9.11 Counterparts..................................................... 23
9.12 Severability..................................................... 23
9.13 Integration...................................................... 23
9.14 GOVERNING LAW.................................................... 24
9.15 SUBMISSION TO JURISDICTION; VENUE; ARBITRATION................... 24
9.16 Acknowledgments.................................................. 24
9.17 WAIVERS OF JURY TRIAL............................................ 24
9.18 Nonrecourse...................................................... 24
9.19 USURY SAVINGS PROVISION.......................................... 25
SCHEDULES
Schedule 1.1 Commitments and Addresses of Lenders
EXHIBITS
Exhibit A-1 Form of Tranche A Note
Exhibit A-2 Form of Tranche B Note
Exhibit B Form of Assignment and Acceptance
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of June 29, 1998 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, the
"Agreement"), is among FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
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individually, except as expressly stated herein, but solely as the Owner Trustee
under the USF Real Estate Trust 1998-1 (the "Owner Trustee" or the "Borrower"),
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the several banks and other financial institutions from time to time parties to
this Agreement (the "Lenders"), and FIRST UNION NATIONAL BANK, a national
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banking association, as a Lender and as the agent for the Lenders (the "Agent").
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The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Definitions.
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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 29, 1998 (as
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amended, modified, extended, supplemented, restated and/or replaced from time to
time in accordance with the applicable provisions thereof, the "Participation
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Agreement") among JP Foodservice Distributors, Inc., the various parties thereto
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from time to time, as the Guarantors, the Borrower, the various banks and other
lending institutions which are parties thereto from time to time, as the
Holders, the various banks and other lending institutions which are parties
thereto from time to time, as the Lenders, and First Union National Bank, as
agent for the Lenders and respecting the Security Documents, as the agent for
the Lenders and the Holders, to the extent of their interests. Unless otherwise
indicated, references in this Agreement to articles, sections, paragraphs,
clauses, appendices, schedules and exhibits are to the same contained in this
Agreement.
1.2 Interpretation.
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The rules of usage set forth in Appendix A to the Participation Agreement
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shall apply to this Agreement.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments.
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(a) Subject to the terms and conditions hereof, each of the Lenders
severally agrees to make the portion of the Tranche A Loans and the Tranche B
Loans to the Borrower from time to time during the Commitment Period in an
amount up to such Lender's Commitment as is set
forth adjacent to such Lender's name in Schedule 1.1 hereto (as the commitment
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amount of such Lender may be amended from time to time in connection with an
assignment pursuant to Section 9.8 hereof) for the purpose of enabling the
Borrower to purchase the Properties and to pay Property Acquisition Costs,
Property Costs and Transaction Expenses, provided, that the aggregate principal
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amount at any one (1) time outstanding with respect to each of the Tranche A
Loans and the Tranche B Loans shall not exceed the amount of the Tranche A
Commitments and the Tranche B Commitments respectively. Any prepayments of the
Loans, whether mandatory or at the Borrower's election, shall not be subject to
reborrowing except as set forth in Section 5.2(d) of the Participation
Agreement.
(b) The Loans may from time to time be (i) Eurodollar Loans, (ii) ABR
Loans, or (iii) a combination thereof, as determined by the Borrower and
notified to the Agent in accordance with Sections 2.3 and 2.7. In the event the
Borrower fails to provide notice pursuant to Section 2.3, the Loan shall be an
ABR Loan. Further, any Loans by the Lenders on a given date in an aggregate
amount less than $100,000 shall be ABR Loans, unless the remaining Available
Commitment for the Lenders in the aggregate is less than $100,000, in which
case, the Borrower may elect a Eurodollar Loan for such remaining amount.
(c) The Commitment of each Lender to make Tranche A Loans and Tranche B
Loans shall be pro rata.
2.2 Notes.
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The Loans made by each Lender shall, consistent with Section 5.2(c) of the
Participation Agreement, be evidenced by promissory notes of the Borrower,
substantially in the form of Exhibit A-1 in the case of the Tranche A Loans
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(each, a "Tranche A Note") or Exhibit A-2 in the case of the Tranche B Loans
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(each, a "Tranche B Note," and with the Tranche A Notes, the "Notes"), with
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appropriate insertions as to payee, date and principal amount, payable to the
order of such Lender and in a principal amount equal to the Tranche A Commitment
or Tranche B Commitment, as the case may be, of such Lender. Each Lender is
hereby authorized to record the date, Type and amount of each Loan made by such
Lender, each continuation thereof, each conversion of all or a portion thereof
to another Type, and the date and amount of each payment or prepayment of
principal thereof on the schedule annexed to and constituting a part of its
Note, and any such recordation shall constitute prima facie evidence of the
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accuracy of the information so recorded, provided, that the failure to make any
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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.
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(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
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shall give the Agent irrevocable notice (which must be received by the Agent
prior to 12:00 Noon, Charlotte, North Carolina
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time, at least three (3) Business Days prior to the requested Borrowing Date
specifying (i) the amount to be borrowed (which on any date shall not be in
excess of the then Available Commitments), (ii) the requested Borrowing Date,
(iii) whether the borrowing is to be of Eurodollar Loans, ABR Loans or a
combination thereof, (iv) if the borrowing is to be a combination of Eurodollar
Loans and ABR Loans, the respective amounts of each Type of Loan and (v) the
Interest Period applicable to each Eurodollar Loan. Pursuant to the terms of the
Participation Agreement, the Borrower shall be deemed to have delivered such
notice upon the delivery of a notice by the Construction Agent or the Lessee
containing such required information. Upon receipt of any such notice from the
Borrower (or the Construction Agent or the Lessee, as the case may be), the
Agent shall promptly notify each Lender thereof. Each Lender will make the
amount of its pro rata share of each borrowing available to the Agent for the
account of the Borrower at the office of the Agent specified in Section 12.2 of
the Participation Agreement (or such other address as may be identified by the
Agent from time to time) prior to 12:00 Noon, Charlotte, North Carolina time, on
the Borrowing Date requested by the Borrower in funds immediately available to
the Agent. Such borrowing will then be made available to the Borrower by the
Agent crediting an account designated, subject to Section 9.1 of the
Participation Agreement, by the Borrower on the books of such office with the
aggregate of the amounts made available to the Agent by the Lenders and in like
funds as received by the Agent. No amount of any Loan which is repaid or prepaid
by the Borrower may be reborrowed hereunder, except as set forth in Section
5.2(d) of the Participation Agreement.
(b) Interest accruing on each Loan during the Construction Period with
respect to any Property shall, subject to the limitations set forth in Section
5.1(b) of the Participation Agreement, be added to the principal amount of such
Loan on the relevant Scheduled Interest Payment Date. On each such Scheduled
Interest Payment Date, the Construction Loan Property Cost shall be increased by
the amount of interest added to the Loans.
2.4 Lender Facility Fees.
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Promptly after receipt from the Lessee of the payment of the Lender
Facility Fee payable pursuant to Section 7.4 of the Participation Agreement, the
Agent shall distribute such payments to the Lenders pro rata in accordance with
their respective Commitments.
2.5 Termination or Reduction of Commitments.
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(a) The Borrower shall have the right, upon not less than three (3)
Business Days' written notice to the Agent, to terminate the Commitments or,
from time to time, to reduce the amount of the Commitments, provided, that
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(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, (B) shall reduce permanently the
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Commitments then in effect and (C) shall be pro rata for the Commitments of all
Lenders and pro rata between the Tranche A Loans and the Tranche B Loans.
(b) The Commitments respecting any particular Property shall
automatically be reduced to zero (0) upon the occurrence of the Rent
Commencement Date respecting such Property. On any date on which the Commitments
shall automatically be reduced to zero (0) pursuant to Section 6, the Borrower
shall prepay all outstanding Loans, together with accrued unpaid interest
thereon and all other amounts owing thereunder.
2.6 Prepayments and Payments.
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(a) Subject to Sections 11.2(e), 11.3 and 11.4 of the Participation
Agreement, the Borrower may at any time and from time to time prepay the Loans,
in whole or in part, without premium or penalty, upon at least three (3)
Business Days' irrevocable notice to the Agent, specifying the date and amount
of prepayment and whether the prepayment is of Eurodollar Loans, ABR Loans or a
combination thereof, and, if a combination thereof, the amount allocable to
each. Upon receipt of any such notice the Agent shall promptly notify each
Lender thereof. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein. Amounts prepaid
may not be reborrowed, and shall reduce the Commitments and the Available
Commitments, except in each case as set forth in Section 5.2(d) of the
Participation Agreement.
(b) If on any date the Agent or the Lessor shall receive any payment in
respect of (i) any Casualty, Condemnation or Environmental Violation pursuant to
Sections 15.1(a) or 15.1(g) or Article XVI of the Lease (excluding any payments
in respect thereof which are payable to the Lessee in accordance with the
Lease), or (ii) the Termination Value of any Property in connection with the
delivery of a Termination Notice pursuant to Article XVI of the Lease, or (iii)
the Termination Value of any Property in connection with the exercise of the
Purchase Option pursuant to Section 20.1 of the Lease or the exercise of the
option of the Lessor to transfer the Properties to the Lessee pursuant to
Section 20.3 of the Lease, or (iv) any payment required to be made or elected to
be made by the Construction Agent to the Lessor pursuant to the terms of the
Agency Agreement, then in each case, the Borrower shall pay such amounts to the
Agent and the Agent shall be required to pay such amounts received in accordance
with the provisions of Section 8.7(b)(ii) of the Participation Agreement.
(c) Each prepayment of the Loans pursuant to Section 2.6(a) shall be
allocated to reduce the respective Loan Property Costs of all Properties pro
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rata according to the Loan Property Costs of such Properties immediately before
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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 Section 2.6(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).
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(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.
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(a) The Borrower may elect from time to time to convert Eurodollar Loans
to ABR Loans by giving the Agent at least three (3) Business Days' prior
irrevocable notice of such election, provided, that any such conversion of
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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
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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 on
such last day. The Borrower may elect from time to time to convert ABR Loans to
Eurodollar Loans by giving the Agent at least three (3) Business Days' prior
irrevocable notice of such election. Upon receipt of any such notice, the Agent
shall promptly notify each Lender thereof. All or any part of outstanding
Eurodollar Loans or ABR Loans may be converted as provided herein, provided,
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that (i) no ABR Loan may be converted into a Eurodollar Loan after the date that
is one (1) month prior to the Maturity Date and (ii) such notice of conversion
regarding any Eurodollar Loan shall contain an election by the Borrower of an
Interest Period for such Eurodollar Loan to be created by such conversion and
such Interest Period shall be in accordance with the terms of the definition of
the term "Interest Period" including without limitation subparagraphs (A)
through (C) thereof.
(b) Subject to the restrictions set forth in Section 2.3, any Eurodollar
Loan may be continued as such upon the expiration of the current Interest Period
with respect thereto by the Borrower giving irrevocable notice to the Agent, in
accordance with the applicable notice provision for the conversion of ABR Loans
to Eurodollar Loans set forth herein, of the length of the next Interest Period
to be applicable to such Loan, provided, that no Eurodollar Loan may be
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continued as such after the date that is one (1) month prior to the Maturity
Date, provided, further, no Eurodollar Loans may be continued as such if an
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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
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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.
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(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 in accordance with the provisions hereof; provided, however, (A)
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upon delivery by the Agent of the notice described in Section 2.9(c), the Loans
of each of the Lenders shall bear interest at the ABR applicable from time to
time from and after the dates and during the periods specified in Section
2.9(c), (B) upon the delivery by a Lender of the notice described in Section
11.3(f) of the Participation Agreement, the Loans of such Lender
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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).
(c) Interest shall be payable in arrears on the applicable Scheduled
Interest Payment Date, provided, that (i) interest accruing pursuant to Section
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2.8(b) 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.
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(a) Whenever it is calculated on the basis of the Prime Lending Rate,
interest shall be calculated on the basis of a year of three hundred sixty-five
(365) days (or three hundred sixty-six (366) days, as the case may be) for the
actual days elapsed; and, otherwise, interest shall be calculated on the basis
of a year of three hundred sixty (360) days for the actual days elapsed. The
Agent shall as soon as practicable notify the Borrower and the Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the ABR or the Eurocurrency Reserve Requirements
shall become effective as of the day on which such change becomes effective.
The Agent shall as soon as practicable notify the Borrower and the Lenders of
the effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of error.
(c) If the Eurodollar Rate cannot be determined by the Agent in the
manner specified in the definition of the term "Eurodollar Rate", the Agent
shall give telecopy or telephonic notice thereof to the Borrower and the Lenders
as soon as practicable thereafter. Commencing on the Scheduled Interest Payment
Date next occurring after the delivery of such notice and continuing until such
time as the Eurodollar Rate can be determined by the Agent in the manner
specified in the definition of such term, all outstanding Loans shall bear a
yield at the ABR. Until such time as the Eurodollar Rate can be determined by
the Agent in the manner specified in the definition of such term, no further
Eurodollar Loans shall be made or shall be continued as such at the end of the
then current Interest Period nor shall the Borrower have the right to convert
ABR Loans to Eurodollar Loans.
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2.10 PRO RATA TREATMENT AND PAYMENTS.
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(a) Each borrowing by the Borrower from the Lenders hereunder and any
reduction of the Commitments of the Lenders shall be made pro rata according to
their respective Commitments. Subject to the provisions of Section 8.7 of the
Participation Agreement and Section 2.11(b), each payment (including without
limitation each prepayment) by the Borrower on account of principal of and
interest on the Loans shall be made pro rata according to the respective
outstanding principal amounts on the Loans then held by the Lenders. All
payments (including without limitation prepayments) to be made by the Borrower
hereunder and under the Notes, whether on account of principal, interest or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, Charlotte, North Carolina time, on the due date thereof to the
Agent, for the account of the Lenders, at the Agent's office specified in
Section 12.2 of the Participation Agreement, in Dollars and in immediately
available funds. The Agent shall distribute such payments to the Lenders
promptly upon receipt in like funds as received. If any payment hereunder
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day; provided, however, if such
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payment includes an amount of interest calculated with reference to the
Eurodollar Rate and the result of such extension would be to extend such payment
into another calendar month, then such payment shall be made on the immediately
preceding Business Day. In the case of any extension of any payment of
principal pursuant to the preceding two (2) sentences, interest thereon shall be
payable at the then applicable rate during such extension.
(b) Unless the Agent shall have been notified in writing by any Lender
prior to a borrowing that such Lender will not make its share of such borrowing
available to the Agent, the Agent may assume that such Lender is making such
amount available to the Agent, and the Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to the Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available to
the Agent. A certificate of the Agent submitted to any Lender with respect to
any amounts owing under this Section 2.10(b) shall be conclusive in the absence
of error. If such Lender's share of such borrowing is not made available to the
Agent by such Lender within three (3) Business Days of such Borrowing Date, the
Agent shall also be entitled to recover such amount with interest thereon at the
rate as set forth above on demand from the Borrower.
2.11 NOTICE OF AMOUNTS PAYABLE; MANDATORY ASSIGNMENT.
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(a) In the event that any Lender becomes aware that any amounts are or
will be owed to it pursuant to Sections 11.2(e), 11.3 or 11.4 of the
Participation Agreement or that it is unable to make Eurodollar Loans, then it
shall promptly notify the Borrower, the Lessee and the Agent thereof and, as
soon as possible thereafter, such Lender shall submit to the Borrower (with a
copy to the Agent and the Lessee) 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.
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(b) In the event that any Lender delivers to the Borrower a certificate
in accordance with Section 2.11(a) in connection with amounts payable pursuant
to Sections 11.2(e), 11.3 or 11.4 of the Participation Agreement or such Lender
is required to make Loans as ABR Loans in accordance with Section 11.3(f) of the
Participation Agreement then, subject to Section 9.1(e) of the Participation
Agreement, the Borrower may, at its own expense (provided, such amounts shall be
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reimbursed or paid entirely (as elected by the Borrower) by the Lessee, as
Supplemental Rent) and in the reasonable discretion of the Borrower, (i) require
such Lender to transfer or assign, in whole or (with such Lender's consent which
shall not be unreasonably withheld) in part, without recourse (in accordance
with Section 9.8), all or (with such Lender's consent which shall not be
unreasonably withheld) 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(g) of the Participation Agreement), with the full cooperation of
such Lender, can identify a Person who is ready, willing and able to be such
replacement bank or institution with respect thereto and such replacement bank
or institution (which may be another Lender) shall assume such assigned
obligations, or (ii) during such time as no Default or Event of Default has
occurred and is continuing, terminate the Commitment of such Lender and prepay
all outstanding Loans of such Lender; provided, however, that (x) subject to
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Section 9.1(g) of the Participation Agreement, the Borrower or such replacement
bank or institution, as the case may be, shall have paid to such Lender in
immediately available funds the principal of and interest accrued to the date of
such payment on the Loans made by it hereunder and all other amounts owed to it
hereunder (and, if such Lender is also a Holder, all Holder Advances and Holder
Yield accrued and unpaid thereon), (y) any termination of Commitments shall be
subject to the terms of Section 2.5(a) and (z) such assignment or termination of
the Commitment of such Lender and prepayment of Loans does not conflict with any
law, rule or regulation or order of any court or Governmental Authority.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this Agreement and to
make the Loans, each of the Trust Company and the Owner Trustee hereby makes and
affirms the representations and warranties set forth in Section 6.1 of the
Participation Agreement to the same extent as if such representations and
warranties were set forth in this Agreement in their entirety.
SECTION 4. CONDITIONS PRECEDENT
4.1 CONDITIONS TO EFFECTIVENESS.
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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.
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4.2 CONDITIONS TO EACH LOAN.
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The agreement of each Lender to make any Loan requested to be made by it on
any date is subject to the satisfaction of all conditions precedent set forth in
Section 5.3 and 5.4 of the Participation Agreement required by said Sections to
be satisfied on or prior to the date of the applicable Loan.
Each borrowing by the Borrower hereunder shall constitute a representation
and warranty by the Borrower as of the date of such Loan that the conditions
contained in this Section 4.2, as applicable, have been satisfied.
SECTION 5. COVENANTS
So long as any Loan or Note remains outstanding and unpaid or any other
amount is owing to any Lender or the Agent hereunder:
5.1 OTHER ACTIVITIES.
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The Borrower shall not conduct, transact or otherwise engage in, or commit
to transact, conduct or otherwise engage in, any business or operations other
than the entry into, and exercise of rights and performance of obligations in
respect of, the Operative Agreements and other activities incidental or related
to the foregoing.
5.2 OWNERSHIP OF PROPERTIES, DEBT.
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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 Debt 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
9
of the Lessor under the Lease, even in the event that the Lease is terminated at
stated expiration following a Lease Event of Default or otherwise.
5.5 FURTHER ASSURANCES.
------------------
At any time and from time to time, upon the written request of the Agent,
and at the expense of the Borrower (provided, such amounts shall be reimbursed
--------
or paid entirely (as elected by the Borrower) by the Lessee, as Supplemental
Rent), the Borrower will promptly and duly execute and deliver such further
instruments and documents and take such further action as the Agent or the
Majority Lenders may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and the other Operative
Agreements and of the rights and powers herein or therein granted.
5.6 NOTICES.
-------
If on any date, a Responsible Officer of the Borrower shall obtain actual
knowledge of the occurrence of a Default or Event of Default, the Borrower will
give written notice thereof to the Agent within five (5) Business Days after
such date.
5.7 DISCHARGE OF LIENS.
------------------
Neither the Borrower nor the Trust Company will create or permit to exist
at any time, and will, at its own expense, promptly take such action as may be
necessary duly to discharge, or cause to be discharged, all Lessor Liens
attributable to it, provided, that the Borrower and the Trust Company shall not
--------
be required to discharge any Lessor Lien while the same is being contested in
good faith by appropriate proceedings diligently prosecuted so long as such
proceedings shall not involve any material danger of impairment of any of the
Liens contemplated by the Security Documents or of the sale, forfeiture or loss
of, and shall not materially interfere with the disposition of, any Property or
title thereto or any interest therein or the payment of Rent.
5.8 TRUST AGREEMENT.
---------------
Without prejudice to any right under the Trust Agreement of the Owner
Trustee to resign, the Owner Trustee (a) agrees not to terminate or revoke the
trust created by the Trust Agreement except as permitted by Article VIII of the
Trust Agreement, (b) agrees not to amend, supplement, terminate, revoke or
otherwise modify any provision of the Trust Agreement in any manner which could
reasonably be expected to have an adverse effect on the rights or interests of
the Agent or the Lenders hereunder or under the other Operative Agreements and
(c) agrees to comply with all of the terms of the Trust Agreement.
SECTION 6. EVENTS OF DEFAULT
Upon the occurrence of any of the following specified events (each an
"Event of Default"):
-----------------
10
(a) Except as provided in Sections 6(c), the Borrower shall default in
the payment when due of any principal on the Loans or default in the payment
when due of any interest on the Loans, and in either case, such default shall
continue for five (5) or more Business Days; or
(b) Except as provided in Sections 6(a) and 6(c), the Borrower shall
default, and such default shall continue for five (5) or more Business 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 Agent or the Majority
Lenders, provided, further, if any such default under Sections 5.4, 5.5 or
-------- -------
5.8(c) is not capable of remedy within such thirty (30) day period but may be
remedied with further diligence and if the Borrower has and continues to pursue
diligently such remedy, then the Borrower shall be granted additional time to
pursue such remedy but in no event more than an additional thirty (30) days.
(e) Any representation or warranty 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 pursuant hereto or
thereto, shall be false or inaccurate in any material way when made; or
(f) (i) Any Lease Event of Default shall have occurred and be continuing
and shall not have been waived, or (ii) the Owner Trustee shall default in the
due performance or observance by it of any term, covenant or agreement contained
in the Participation Agreement or in the Trust Agreement to or for the benefit
of the Agent or a Lender, provided, that in the case of this clause (ii) such
--------
default shall have continued unremedied for a period of at least thirty (30)
days after notice to the Owner Trustee and Lessee by the Agent or the Majority
Lenders, provided, further, that in the case of this clause (ii), such default
-------- -------
is not capable of remedy within such thirty (30) day period but may be remedied
with further diligence and if the Borrower has and continues to pursue
diligently such remedy, then the Borrower shall be granted additional time to
pursue such remedy but in no event more than an additional thirty (30) days; or
(g) The Borrower shall (i) apply for or consent to the appointment of, or
the taking of possession by, a receiver, custodian, trustee or liquidator of
itself or of all or a substantial part of its property, (ii) become insolvent or
be generally unable to or shall generally fail or admit in writing its inability
to pay its debts as such debts become due, (iii) make a general assignment for
the benefit of its creditors, (iv) commence a voluntary
11
case under the Bankruptcy Code (as now or hereafter in effect), (v) file a
petition seeking to take advantage of any bankruptcy, insolvency, moratorium,
reorganization or other similar law affecting the enforcement of creditors'
rights generally, (vi) acquiesce in writing to, or fail to controvert in a
timely or appropriate manner, any petition filed against it in an involuntary
case under such Bankruptcy Code, (vii) take any action under the laws of any
jurisdiction (foreign or domestic) analogous to any of the foregoing, or
(viii) take any corporate action in furtherance of any of the foregoing; or
a proceeding or case shall be commenced in respect of the Borrower, without
its application or consent, in any court of competent jurisdiction, seeking (i)
the liquidation, reorganization, moratorium, dissolution, winding up, or
composition or readjustment of its debts, (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like of it or of all or any substantial
part of its assets, or (iii) similar relief in respect of it under any law
providing for the relief of debtors, and such proceeding or case described in
clause (i), (ii) or (iii) shall continue undismissed, or unstayed and in effect,
for a period of 45 days, or an order for relief shall be entered in an
involuntary case under the Bankruptcy Code (as now or hereafter in effect)
against the Borrower or action under the laws of any jurisdiction (foreign or
domestic) analogous to any of the foregoing shall be taken with respect to the
Borrower and shall continue undismissed, or unstayed and in effect, for a period
of 45 days;
(h) Any Security Document shall cease to be in full force and effect, or
shall cease to give the Agent the Liens, rights, powers and privileges purported
to be created thereby (including without limitation a first priority perfected
security interest in, and Lien on, all of the Properties), in favor of the Agent
on behalf of the Lenders and the Holders, superior to and prior to the rights of
all third Persons and subject to no other Liens (except in each case to the
extent expressly permitted herein or in any Operative Agreement) other than any
Ground Lease; or
(i) The Lease shall cease to be enforceable against the Lessee; or
(j) A final judgment or decree for the payment of money shall be rendered
by a court of competent jurisdiction against the Borrower which, either alone or
together with other outstanding judgments or decrees against the Borrower, shall
aggregate more than $100,000, and the Borrower shall not discharge the same or
provide for its discharge in accordance with its terms within sixty (60) days
from the date of entry thereof, or within such longer period (including, without
limitation, any period during which the Borrower shall be contesting a denial of
coverage of its liability in respect of such judgment by a reputable insurance
carrier) during which the execution of such judgment shall have been stayed,
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (g) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the Notes
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken:
(i) with the consent of the Majority Lenders, the Agent may, or upon the request
of the Majority Lenders, the Agent shall, by notice to the Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the
12
Majority Lenders, the Agent may, or upon the request of the Majority Lenders,
the Agent shall, by notice to the Borrower, declare the Loans hereunder (with
accrued interest thereon) and all other amounts owing under this Agreement and
the Notes to be due and payable forthwith, whereupon the same shall immediately
become due and payable (any of the foregoing occurrences or actions referred to
in clause (A) or (B) above, an "Acceleration"). Except as expressly provided
------------
above in this Section 6, presentment, demand, protest and all other notices of
any kind are hereby expressly waived.
Upon the occurrence of any Event of Default and at any time thereafter so
long as any Event of Default shall be continuing, the Agent shall, upon the
written instructions of the Majority Secured Parties, exercise any or all of the
rights and powers and pursue any and all of the remedies available to it
hereunder and (subject to the terms thereof) under the other Credit Documents,
the Lease and the other Operative Agreements and shall have any and all rights
and remedies available under the Uniform Commercial Code or any provision of
law.
Upon the occurrence of any Event of Default and at any time thereafter so
long as any Event of Default shall be continuing, the Agent may, and upon
request of the Majority Secured Parties shall, proceed to protect and enforce
this Agreement, the Notes, the other Credit Documents and the Lease by suit or
suits or proceedings in equity, at law or in bankruptcy, and whether for the
specific performance of any covenant or agreement herein contained or in
execution or aid of any power herein granted, or for foreclosure hereunder, or
for the appointment of a receiver or receivers for the Property or for the
recovery of judgment for the indebtedness secured thereby or for the enforcement
of any other proper, legal or equitable remedy available under applicable laws.
The Borrower shall be liable for any and all accrued and unpaid amounts due
hereunder before, after or during the exercise of any of the foregoing remedies,
including without limitation all reasonable legal fees and other reasonable
costs and expenses incurred by the Agent or any Lender by reason of the
occurrence of any Event of Default or the exercise of remedies with respect
thereto.
SECTION 7. THE AGENT
7.1 APPOINTMENT.
-----------
Each Lender hereby irrevocably designates and appoints the Agent as the
agent of such Lender under this Agreement and the other Operative Agreements,
and each such Lender irrevocably authorizes the Agent, in such capacity, to
execute the Operative Agreements as agent for and on behalf of such Lender, to
take such action on behalf of such Lender under the provisions of this Agreement
and the other Operative Agreements and to exercise such powers and perform such
duties as are expressly delegated to the Agent by the terms of this Agreement
and other Operative Agreements, together with such other powers as are
reasonably incidental thereto. Without limiting the generality of the
foregoing, each of the Lenders hereby specifically acknowledges the terms and
provisions of the Participation Agreement and directs the Agent to exercise such
powers, make such decisions and otherwise perform such duties as are delegated
to
13
the Agent thereunder without being required to obtain any specific consent with
respect thereto from any Lender, unless the matter under consideration is a
Unanimous Vote Matter or otherwise requires the consent of the Majority Lenders
and/or the Majority Secured Parties. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Operative Agreement or otherwise exist against the Agent.
7.2 DELEGATION OF DUTIES.
--------------------
The Agent may execute any of its duties under this Agreement and the other
Operative Agreements by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
The Agent shall not be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.
7.3 EXCULPATORY PROVISIONS.
----------------------
Neither the Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Operative Agreement (except for its or such Person's
own gross negligence or willful misconduct) or (b) responsible in any manner to
any of the Lenders for any recitals, statements, representations or warranties
made by the Borrower or the Lessee or any officer thereof contained in this
Agreement or any other Operative Agreement or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Operative
Agreement or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Operative Agreement or for any
failure of the Borrower or the Lessee to perform its obligations hereunder or
thereunder. The Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Operative
Agreement, or to inspect the properties, books or records of the Borrower or the
Lessee.
7.4 RELIANCE BY THE AGENT.
---------------------
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any Note, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it in good faith to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including without limitation
counsel to the Borrower or the Lessee), independent accountants and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Operative Agreement unless it shall
first receive such advice or concurrence of the
14
Majority Lenders, the Majority Secured Parties or all Secured Parties, as the
case may be, as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Operative Agreements in accordance
with a request of the Majority Lenders, the Majority Secured Parties or all
Secured Parties, as the case may be, and such and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Notes (or all Secured Parties, as the case may be).
7.5 NOTICE OF DEFAULT.
-----------------
The Agent shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default hereunder unless the Agent has received
written notice from a Lender or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". In the event that the Agent receives such a notice, the
Agent shall give notice thereof to the Lenders. The Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Majority Secured Parties; provided, that unless and until the
--------
Agent shall have received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Secured Parties; provided, further, the foregoing shall not
-------- -------
limit (a) the rights of the Majority Secured Parties to elect remedies as set
forth in Section 6 and/or (b) the rights of the Majority Secured Parties or all
Secured Parties, as the case may be, as described in the Participation Agreement
(including without limitation Sections 8.2(h) and 8.6 of the Participation
Agreement).
7.6 NON-RELIANCE ON THE AGENT AND OTHER LENDERS.
-------------------------------------------
Each Lender expressly acknowledges that neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Agent hereinafter
taken, including without limitation any review of the affairs of the Borrower or
the Lessee, shall be deemed to constitute any representation or warranty by the
Agent to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower and the
Lessee and made its own decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon the Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Operative Agreements, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and the Lessee. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness
15
of the Borrower or the Lessee which may come into the possession of the Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
7.7 INDEMNIFICATION.
---------------
The Lenders agree to indemnify the Agent, in its capacity as such (to the
extent not reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective Commitment Percentages
in effect on the date on which indemnification is sought under this Section 7.7
(or, if indemnification is sought after the date upon which the Commitments
shall have terminated and the Loans shall have been paid in full, ratably in
accordance with their Commitment Percentages immediately prior to such date),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including without limitation at any time
following the payment of the Notes) be imposed on, incurred by or asserted
against any of them in any way relating to or arising out of, the Commitments,
this Agreement, any of the other Operative Agreements or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by any of them
under or in connection with any of the foregoing; provided, that no Lender shall
--------
be liable for the payment of any portion of such liabilities, obligations,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the gross negligence or willful misconduct of the Agent.
The agreements in this Section 7.7 shall survive the payment of the Notes and
all other amounts payable hereunder.
7.8 THE AGENT IN ITS INDIVIDUAL CAPACITY.
------------------------------------
The Agent and its Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower or the Lessee as
though the Agent were not the Agent hereunder and under the other Operative
Agreements. With respect to its Loans made or renewed by it and any Note issued
to it, the Agent shall have the same rights and powers under this Agreement and
the other Operative Agreements as any Lender and may exercise the same as though
it were not the Agent, and the terms "Lender" and "Lenders" shall include the
Agent in its individual capacity.
7.9 SUCCESSOR AGENT.
---------------
The Agent may resign at any time as the Agent upon thirty (30) days' notice
to the Lenders, the Borrower and, so long as no Lease Event of Default shall
have occurred and be continuing, the Lessee. If the Agent shall resign as the
Agent under this Agreement, the Majority Lenders shall appoint from among the
Lenders a successor Agent which successor Agent shall be subject to the approval
of the Borrower and, so long as no Lease Event of Default shall have occurred
and be continuing, the Lessee, such approval not to be unreasonably withheld or
delayed. If no successor Agent is appointed prior to the effective date of the
resignation of the resigning Agent, the Agent may appoint, after consulting with
the Lenders and subject to the approval of the Borrower and, so long as no Lease
Event of Default shall have occurred and be continuing, the Lessee, such
approval not to be unreasonably withheld or delayed, a successor Agent from
among the Lenders. If no successor Agent has accepted appointment as the Agent
by
16
the date which is thirty (30) days following a retiring Agent's notice of
resignation, the retiring Agent's notice of resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Agent until such time, if any, as the Majority Lenders appoint a successor
Agent, as provided for above. Upon the effective date of such resignation, only
such successor Agent shall succeed to all the rights, powers and duties of the
retiring Agent and the term "Agent" shall mean such successor agent and the
retiring Agent's rights, powers and duties in such capacity shall be terminated.
After any retiring Agent resigns hereunder as the Agent, the provisions of this
Article VII and Section 9.5 shall inure to their respective benefit as to any
actions taken or omitted to be taken by it while it was the Agent under this
Agreement.
7.10 ACTIONS OF THE AGENT ON BEHALF OF HOLDERS.
-----------------------------------------
The parties hereto specifically acknowledge and consent to the Agent's
acting on behalf of the Holders as provided in the Participation Agreement, and,
in any such case, the Lenders acknowledge that the Holders shall be entitled to
vote as "Secured Parties" hereunder to the extent required or permitted by the
Operative Agreements (including without limitation Sections 8.2(h) and 8.6 of
the Participation Agreement).
7.11 THE AGENT'S DUTY OF CARE.
------------------------
Other than the exercise of reasonable care to assure the safe custody of
the Collateral while being held by the Agent hereunder or under any other
Operative Agreement, the Agent shall have no duty or liability to preserve
rights pertaining thereto, it being understood and agreed that the Lessee shall
be responsible for preservation of all rights in the Collateral, and the Agent
shall be relieved of all responsibility for the Collateral upon surrendering it
or tendering the surrender of it to the Lessee. The Agent shall be deemed to
have exercised reasonable care in the custody and preservation of the Collateral
in its possession if the Collateral is accorded treatment substantially equal to
that which the Agent accords its own property, which shall be no less than the
treatment employed by a reasonable and prudent agent in the industry, it being
understood that the Agent shall not have responsibility for taking any necessary
steps to preserve rights against any parties with respect to any of the
Collateral.
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL
8.1 COLLECTION AND ALLOCATION OF PAYMENTS AND OTHER AMOUNTS.
-------------------------------------------------------
The Lessee, the Construction Agent, the Agent, the Lenders, the Holders and
the Borrower have agreed pursuant to the terms of Section 8.7 of the
Participation Agreement to a procedure for the allocation and distribution of
certain payments and distributions, including without limitation the proceeds of
Collateral.
8.2 CERTAIN REMEDIAL MATTERS.
------------------------
Notwithstanding any other provision of this Agreement or any other Credit
Document:
17
(a) the Borrower shall at all times retain to the exclusion of all other
parties, all rights to Excepted Payments payable to it and to demand, collect or
commence an action at law to obtain such payments and to enforce any judgment
with respect thereto; and
(b) the Borrower and each Holder shall at all times retain the right, but
not to the exclusion of the Agent, (i) to retain all rights with respect to
insurance that Article XIV of the Lease specifically confers upon the "Lessor",
(ii) to provide such insurance as the Lessee shall have failed to maintain or as
the Borrower or any Holder may desire, and (iii) to enforce compliance by the
Lessee with the provisions of Articles VIII, IX, X, XI, XIV and XVII of the
Lease.
8.3 EXCEPTED PAYMENTS.
-----------------
Notwithstanding any other provision of this Agreement or the Security
Documents, any Excepted Payment received at any time by the Agent shall be
distributed promptly to the Person entitled to receive such Excepted Payment.
SECTION 9 MISCELLANEOUS
9.1 AMENDMENTS AND WAIVERS.
----------------------
None of the terms or provisions of this Agreement may be terminated,
amended, supplemented, waived or modified except in accordance with the terms of
Section 12.4 of the Participation Agreement.
9.2 NOTICES.
-------
All notices required or permitted to be given under this Agreement shall be
given in accordance with Section 12.2 of the Participation Agreement.
9.3 NO WAIVER; CUMULATIVE REMEDIES.
------------------------------
No failure to exercise and no delay in exercising, on the part of the Agent
or any Lender, any right, remedy, power or privilege hereunder or under the
other Credit Documents shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or future exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein provided
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
------------------------------------------
All representations and warranties made by the Borrower under the Operative
Agreements shall survive the execution and delivery of this Agreement and the
Notes and the making of the Loans hereunder.
18
9.5 PAYMENT OF EXPENSES AND TAXES.
-----------------------------
The Borrower agrees to (with funds provided by the Lessee as Supplemental
Rent): (a) pay all reasonable out-of-pocket costs and expenses of (i) the Agent
whether or not the transactions herein contemplated are consummated, in
connection with the negotiation, preparation, execution and delivery of the
Operative Agreements and the documents and instruments referred to therein
(including without limitation the reasonable fees and disbursements of Xxxxx &
Xxx Xxxxx, PLLC) and any amendment, waiver or consent relating thereto
(including without limitation the reasonable fees and disbursements of counsel
to the Agent) and (ii) the Agent and each of the Lenders in connection with the
enforcement of the Operative Agreements and the documents and instruments
referred to therein (including without limitation the reasonable fees and
disbursements of counsel for the Agent and for each of the Lenders) and (b) pay
and hold each of the Lenders harmless from and against any and all present and
future stamp and other similar taxes with respect to the foregoing matters and
save each of the Lenders harmless from and against any all liabilities with
respect to or resulting from any delay or omission (other than to the extent
attributable to such Lender) to pay such taxes.
9.6 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
------------------------------------------------------
This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Agent, all future holders of the Notes and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
9.7 PARTICIPATIONS.
--------------
Subject to and in accordance with Section 10.1 of the Participation
Agreement, any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one (1) or more banks,
financial institutions or other entities (each, a "Participant") participating
-----------
interests in any Loan owing to such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of such Lender hereunder and
under the other Operative Agreements; provided, that any such sale of a
--------
participating interest shall be in a principal amount of at least $2,000,000 or
such lesser amount constituting such Lender's entire interest in this Agreement
and the Notes. In the event of any such sale by a Lender of a participating
interest to a Participant, such Lender's obligations under this Agreement to the
other parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Note for all purposes under this Agreement and the Notes, and
the Borrower and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the Notes. In no event shall any Participant have any right to
approve any amendment or waiver of any provision of this Agreement or any other
Operative Agreement, or any consent to any departure by the Borrower or any
other Person therefrom, except to the extent that such amendment, waiver or
consent would (a) reduce the principal of, or interest on, any Loan or Note, or
postpone the date of the final maturity of any Loan or Note, or reduce the
amount of any Lender Facility Fee, in each case to the extent subject to such
participation or (b) release all or substantially all of the Collateral. The
Borrower agrees that,
19
while an Event of Default shall have occurred and be continuing, if amounts
outstanding under this Agreement and the Notes are due or unpaid, or shall have
become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law, be deemed
to have the right of setoff in respect of its participating interests in amounts
owing directly to it as a Lender under this Agreement or any Note, provided,
--------
that in purchasing such participating interest, such Participant shall be deemed
to have agreed to share with the Lenders the proceeds thereof as provided in
Section 9.10(a) as fully as if it were a Lender hereunder. The Borrower also
agrees that each Participant shall be entitled to the benefits of Sections
11.2(e), 11.3 and 11.4 of the Participation Agreement with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it was a Lender; provided, that such Participant shall have complied with
--------
the requirements of said Sections and provided, further, that no Participant
-------- -------
shall be entitled to receive any greater amount pursuant to any such Section
than the transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
9.8 ASSIGNMENTS.
-----------
(a) Subject to and in accordance with Section 10.1 of the Participation
Agreement, any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
Lender or any affiliate of any Lender or, with the consent, subject to Section
9.1(g) of the Participation Agreement, of the Borrower and the Agent (which in
each case shall not be unreasonably withheld or delayed and which consent of the
Borrower shall not be required during the continuation of any Event of Default),
to an additional bank, financial institution or other entity that is either
organized under the laws of the United States or any state thereof or is a
foreign bank that operates a branch office in the United States, (each, a
"Purchasing Lender") all or any part of its rights and obligations under this
------------------
Agreement and the other Operative Agreements pursuant to an Assignment and
Acceptance, substantially in the form of Exhibit B, executed by such Purchasing
---------
Lender, such assigning Lender (and, in the case of a Purchasing Lender that is
not a Lender or an affiliate thereof, subject to Section 9.1(g) of the
Participation Agreement, by the Borrower and the Agent) and delivered to the
Agent for its acceptance and recording in the Register; provided, that no such
--------
assignment to a Purchasing Lender (other than any Lender or any affiliate
thereof) shall be in an aggregate principal amount less than $5,000,000 (other
than in the case of an assignment of all of a Lender's interests under this
Agreement and the Notes). Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Purchasing Lender thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Commitment as set forth
therein, and (y) the assigning Lender thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto).
Notwithstanding anything to the contrary in this Agreement, the consent of the
Borrower shall not be required, and, unless requested by the relevant Purchasing
Lender and/or assigning Lender, new Notes shall not be required to be
20
executed and delivered by the Borrower, for any assignment which occurs at any
time when any of the events described in Section 6(g) shall have occurred and be
continuing.
(b) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and a Purchasing Lender (and, in the case of a Purchasing
Lender that is not a Lender or an affiliate thereof, by the Borrower and the
Agent) together with payment to the Agent of a registration and processing fee
of $2,500 (which shall not be payable by the Borrower or the Lessee, except as
otherwise provided in connection with an assignment requested in accordance with
Section 2.11(b)), the Agent shall (i) promptly accept such Assignment and
Acceptance and (ii) promptly after the effective date determined pursuant
thereto, record the information contained therein in the Register and give
notice of such acceptance and recordation to the Lenders and the Borrower. On
or prior to such effective date, the Borrower, at its own expense, shall execute
and deliver to the Agent new Notes (in exchange for the Notes of the assigning
Lender), each in an amount equal to the Commitment assumed or Loans purchased by
the relevant Purchasing Lender pursuant to such Assignment and Acceptance, and,
if the assigning Lender has retained a Commitment or any Loan hereunder, new
Notes to the order of the assigning Lender, each in an amount equal to the
Commitment or Loans retained by it hereunder. Such new Notes shall be dated the
effective date of the applicable Assignment and Acceptance and shall otherwise
be in the form of the Notes replaced thereby.
(c) Each Purchasing Lender (other than any Lender organized and existing
under the laws of the U.S. or any political subdivision in or of the U.S.), by
executing and delivering an Assignment and Acceptance,
(i) agrees to execute and deliver to the Agent, as promptly as
practicable, four (4) signed copies (two (2) for the Agent and two (2) for
delivery by the Agent to the Borrower) of Form 1001 or Form 4224 (or any
successor form or comparable form) (it being understood that if the applicable
form is not so delivered, payments under or in respect of this Agreement may be
subject to withholding and deduction);
(ii) represents and warrants to the Borrower and the Agent that the
form so delivered is true and accurate and that, as of the effective date of the
applicable Assignment and Acceptance, each of such Purchasing Lender's lending
offices is entitled to receive payments of principal and interest under or in
respect of this Agreement without withholding or deduction for or on account of
any taxes imposed by the U.S. Federal government;
(iii) agrees to annually hereafter deliver to each of the Borrower
and the Agent not later than December 31 of the year preceding the year to which
it will apply, two (2) further properly completed signed copies of Form 1001 or
Form 4224 (or any successor form or comparable form), as appropriate, unless an
event has occurred which renders the relevant form inapplicable (it being
understood that if the applicable form is not so delivered, payments under or in
respect of this Agreement may be subject to withholding and deduction);
(iv) agrees to promptly notify the Borrower and the Agent in
writing if it ceases to be entitled to receive payments of principal and
interest under or in respect of this Agreement without withholding or deduction
for or on account of any taxes imposed by the U.S.
21
or any political subdivision in or of the U.S. (it being understood that
payments under or in respect of this Agreement may be subject to withholding and
deduction in such event);
(v) acknowledges that in the event it ceases to be exempt from
withholding and/or deduction of such taxes, the Agent may withhold and/or deduct
the applicable amount from any payments to which such assignee Lender would
otherwise be entitled, without any liability to such assignee Lender therefor;
and
(vi) agrees to indemnify the Borrower and the Agent from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs or expenses that result from such assignee
Lender's breach of any such representation, warranty or agreement.
(d) Any Lender party to this Agreement may, from time to time and without
the consent of the Borrower or any other Person, pledge or assign for security
purposes any portion of its Loans or any other interests in this Agreement and
the other Credit Documents to any Federal Reserve Bank.
9.9 THE REGISTER; DISCLOSURE; PLEDGES TO FEDERAL RESERVE BANKS.
----------------------------------------------------------
(a) The Agent shall maintain for the benefit of the Lenders at its
address referred to in Section 9.2 a copy of each Assignment and Acceptance
delivered to it and a register (the "Register") for the recordation of the names
--------
and addresses of the Lenders, the Commitments of the Lenders, and the principal
amount of the Loans owing to each Lender from time to time. The entries in the
Register shall be conclusive, in the absence of error, and the Borrower, the
Agent and the Lenders may treat each Person whose name is recorded in the
Register as the owner of the Loan recorded therein for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or
any Lender at any reasonable time and from time to time upon reasonable notice.
(b) Nothing herein shall prohibit any Lender from pledging or assigning
any Note to any Federal Reserve Bank in accordance with applicable law.
9.10 ADJUSTMENTS; SET-OFF.
--------------------
(a) Except as otherwise expressly provided in Section 8.1 hereof and
Section 8.7 of the Participation Agreement where, and to the extent, one (1)
Lender is entitled to payments prior to other Lenders, if any Lender (a
"Benefitted Lender") shall at any time receive any payment of all or part of its
------------------
Loans, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 6(g), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans, or interest thereon,
such Benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender's Loan, or
shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such Benefitted Lender to
share the excess payment or benefits of such collateral or proceeds ratably
22
with each of the Lenders; provided, however, that if all or any portion of such
-------- -------
excess payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the event of such recovery, but without interest.
(b) In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default, the Agent and each Lender is hereby
authorized at any time or from time to time, without presentment, demand,
protest or other notice of any kind to the Borrower or to any other Person, any
such notice being hereby expressly waived, to set off and to appropriate and
apply any and all deposits (general or special) and any other Debt at any time
held or owing by the Agent or such Lender (including without limitation by
branches and agencies of the Agent or such Lender wherever located) to or for
the credit or the account of the Borrower against and on account of the
obligations and liabilities of the Borrower to the Agent or such Lender under
this Agreement or under any of the other Operative Agreements, including without
limitation all interests in obligations of the Borrower purchased by any such
Lender pursuant to Section 9.10(a), and all other claims of any nature or
description arising out of or connected with this Agreement or any other
Operative Agreement, irrespective or whether or not the Agent or such Lender
shall have made any demand and although said obligations, liabilities or claims,
or any of them, shall be contingent or unmatured.
9.11 COUNTERPARTS.
------------
This Agreement may be executed by one (1) or more of the parties to this
Agreement on any number of separate counterparts (including without limitation
by telecopy), each of which when so executed and delivered shall be an original,
but all such counterparts taken together shall be deemed to constitute one (1)
and the same instrument. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Borrower and the Agent.
9.12 SEVERABILITY.
------------
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.13 INTEGRATION.
-----------
This Agreement and the other Credit Documents represent the agreement of
the Borrower, the Agent, and the Lenders with respect to the subject matter
hereof and thereof, and there are no promises, undertakings, representations or
warranties by the Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Credit Documents.
23
9.14 GOVERNING LAW.
-------------
THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NORTH
CAROLINA.
9.15 SUBMISSION TO JURISDICTION; VENUE; ARBITRATION.
----------------------------------------------
THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO SUBMISSION TO
JURISDICTION, VENUE AND ARBITRATION ARE HEREBY INCORPORATED BY REFERENCE HEREIN,
MUTATIS MUTANDIS.
----------------
9.16 ACKNOWLEDGMENTS.
---------------
The Borrower hereby acknowledges that:
(a) neither the Agent nor any Lender has any fiduciary relationship with
or duty to the Borrower arising out of or in connection with this Agreement or
any of the other Credit Documents, and the relationship between the Agent and
the Lenders, on one (1) hand, and the Borrower, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(b) no joint venture is created hereby or by the other Credit Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Borrower and the Lenders.
9.17 WAIVERS OF JURY TRIAL.
---------------------
THE BORROWER, THE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
9.18 NONRECOURSE.
-----------
Subject to Section 12.16 of the Participation Agreement, anything to the
contrary contained in this Agreement or in any other Operative Agreement
notwithstanding (except for such Section 12.16 of the Participation Agreement),
no Exculpated Person shall be personally liable in any respect for any liability
or obligation hereunder or under any other Operative Agreement including without
limitation the payment of the principal of, or interest on, the Notes, or for
monetary damages for the breach of performance of any of the covenants contained
in this Agreement, the Notes or any of the other Operative Agreements. The
Agent and the Lenders agree that, in the event any of them pursues any remedies
available to them under this Agreement, the Notes or any other Operative
Agreement, neither the Agent nor the Lenders shall
24
have any recourse against the Borrower, nor any other Exculpated Person, for any
deficiency, loss or claim for monetary damages or otherwise resulting therefrom
and recourse shall be had solely and exclusively against the Trust Estate and
the Lessee; but nothing contained herein shall be taken to prevent recourse
against or the enforcement of remedies against the Trust Estate in respect of
any and all liabilities, obligations and undertakings contained in this
Agreement, the Notes or any other Operative Agreement. The Agent and the Lenders
further agree that the Borrower shall not be responsible for the payment of any
amounts owing hereunder (excluding principal and interest (other than Overdue
Interest) in respect of the Loans) (such non-excluded amounts, "Supplemental
------------
Amounts") except to the extent that payments of Supplemental Rent designated
-------
by the Lessee for application to such Supplemental Amounts shall have been paid
by the Lessee pursuant to the Lease (it being understood that the failure by the
Lessee for any reason to pay any Supplemental Rent in respect of such
Supplemental Amounts shall nevertheless be deemed to constitute a default by the
Borrower for the purposes of Section 6). Notwithstanding the foregoing
provisions of this Section 9.18, nothing in this Agreement or any other
Operative Agreement shall (a) constitute a waiver, release or discharge of any
obligation evidenced or secured by this Agreement or any other Credit Document,
(b) limit the right of the Agent or any Lender to name the Borrower as a party
defendant in any action or suit for judicial foreclosure and sale under any
Security Document, or (c) affect in any way the validity or enforceability of
any guaranty (whether of payment and/or performance) given to the Lessor, the
Agent or the Lenders, or of any indemnity agreement given by the Borrower, in
connection with the Loans made hereunder.
9.19 USURY SAVINGS PROVISION.
-----------------------
IT IS THE INTENT OF THE PARTIES HERETO TO CONFORM TO AND CONTRACT IN STRICT
COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT AND THAT N.C.
GEN. STAT. (S) 24-9 SHALL APPLY WITH RESPECT TO THIS AGREEMENT. TO THE EXTENT
N.C. GEN. STAT. (S) 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
25
AND SUCH AMOUNTS UNDER SUCH DOCUMENTS OR AGREEMENTS SHALL BE AUTOMATICALLY
REDUCED TO THE MAXIMUM NONUSURIOUS AMOUNT PERMITTED UNDER APPLICABLE LAW,
WITHOUT THE NECESSITY OF EXECUTION OF ANY AMENDMENT OR NEW DOCUMENT OR
AGREEMENT. IF THE AGENT OR ANY LENDER SHALL EVER RECEIVE ANYTHING OF VALUE WHICH
IS CHARACTERIZED AS INTEREST WITH RESPECT TO THE OBLIGATIONS OWED HEREUNDER OR
UNDER APPLICABLE LAW AND WHICH WOULD, APART FROM THIS PROVISION, BE IN EXCESS OF
THE MAXIMUM LAWFUL AMOUNT, AN AMOUNT EQUAL TO THE AMOUNT WHICH WOULD HAVE BEEN
EXCESSIVE INTEREST SHALL, WITHOUT PENALTY, BE APPLIED TO THE REDUCTION OF THE
COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL AND NOT TO THE PAYMENT OF INTEREST,
OR REFUNDED TO THE BORROWER OR ANY OTHER PAYOR THEREOF, IF AND TO THE EXTENT
SUCH AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE EXCEEDS THE COMPONENT OF PAYMENTS
DEEMED TO BE PRINCIPAL. THE RIGHT TO DEMAND PAYMENT OF ANY AMOUNTS EVIDENCED BY
ANY OF THE OPERATIVE AGREEMENTS DOES NOT INCLUDE THE RIGHT TO RECEIVE ANY
INTEREST WHICH HAS NOT OTHERWISE ACCRUED ON THE DATE OF SUCH DEMAND, AND NEITHER
THE AGENT NOR ANY LENDER INTENDS TO CHARGE OR RECEIVE ANY UNEARNED INTEREST IN
THE EVENT OF SUCH DEMAND. ALL INTEREST PAID OR AGREED TO BE PAID TO THE AGENT OR
ANY LENDER SHALL, TO THE EXTENT PERMITTED BY APPLICABLE LAW, BE AMORTIZED,
PRORATED, ALLOCATED, AND SPREAD THROUGHOUT THE FULL STATED TERM (INCLUDING
WITHOUT LIMITATION ANY RENEWAL OR EXTENSION) OF THIS AGREEMENT SO THAT THE
AMOUNT OF INTEREST ON ACCOUNT OF SUCH PAYMENTS DOES NOT EXCEED THE MAXIMUM
NONUSURIOUS AMOUNT PERMITTED BY APPLICABLE LAW.
[signature pages follow]
26
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 USF Real Estate Trust 1998-1
By: /s/ C. Xxxxx Xxxxxxx
---------------------------------------------
Name: C. Xxxxx Xxxxxxx
-------------------------------------------
Title: Vice President
------------------------------------------
FIRST UNION NATIONAL BANK, as the Agent
and a Lender
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
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 USF Real Estate Trust 1998-1
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
FIRST UNION NATIONAL BANK, as the Agent
and a Lender
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxxx
-------------------------------------------
Title: Vice President
------------------------------------------
Schedule 1.1
------------
Tranche A Tranche B
Commitment Commitment
--------------------- ---------------------
Name and Address of Lenders Amount / Percentage Amount / Percentage
--------------------------------------- --------------------- ---------------------
First Union National Bank $ 51,000,000 100% $ 7,200,000 100%
c/o First Union Capital Markets Group
DC-6
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xx. Xxxxx Xxxxxxxxx
Capital Markets Services
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
TOTAL $ 51,000,000 100% $ 7,200,000 100%
EXHIBIT A-1
-----------
TRANCHE A NOTE
(USF Real Estate Trust 1998-1)
___________, ____
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as the Owner Trustee
under the USF Real Estate Trust 1998-1 (the "Borrower"), hereby unconditionally
--------
promises to pay to the order of [LENDER] (the "Lender"), at the office of First
------
Union National Bank, located at x/x Xxxxx Xxxxx Xxxxxxx Xxxxxxx Xxxxx, XX-0, 000
Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 or at such other
address as may be specified by First Union National Bank, in lawful money of the
United States of America and in immediately available funds, on the Maturity
Date, the aggregate unpaid principal amount of all Tranche A Loans made by the
Lender to the Borrower pursuant to Section 2.1 of the Credit Agreement (as
defined below). The Borrower agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time outstanding at
the rates and on the dates specified in Section 2.8 of the Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each
Tranche A Loan made pursuant to the Credit Agreement and the date and amount of
each payment or prepayment of principal thereof, each continuation thereof and
each conversion of all or a portion thereof to another Type. Each such
endorsement shall constitute prima facie evidence of the accuracy of the
----- -----
information endorsed. The failure to make any such endorsement or any error in
such endorsement shall not affect the obligations of the Borrower in respect of
such Loan.
This Note (a) is one (1) of the Notes referred to in the Credit
Agreement dated as of __________, 1998 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
----------------
Lender, the other banks and financial institutions from time to time parties
thereto and First Union National Bank, as the Agent, (b) is subject to the
provisions of the Credit Agreement (including without limitation Section 9.18
thereof) and (c) is subject to optional and mandatory prepayment in whole or in
part as provided in the Credit Agreement. Reference is hereby made to the
Credit Documents for a description of the properties and assets in which a
security interest has been granted, the nature and extent of the security and
the guarantees, the terms and conditions upon which the security interests and
each guarantee were granted and the rights of the holder of this Note in respect
thereof.
Upon the occurrence of any one (1) or more of the Events of Default,
all amounts then remaining unpaid on this Note shall become, or may be declared
to be, immediately due and payable, all as provided in the Credit Agreement.
A1-1
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.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but solely
as the Owner Trustee under the
USF Real Estate Trust 1998-1
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
A1-2
EXHIBIT A-2
-----------
TRANCHE B NOTE
(USF Real Estate Trust 1998-1)
_________, ____
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as the Owner Trustee
under the USF Real Estate Trust 1998-1 (the "Borrower"), hereby unconditionally
--------
promises to pay to the order of [LENDER] (the "Lender") at the office of First
------
Union National Bank located at x/x Xxxxx Xxxxx Xxxxxxx Xxxxxxx Xxxxx, XX-0, 000
Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 or at such other
address as may be specified by First Union National Bank, in lawful money of the
United States of America and in immediately available funds, on the Maturity
Date, the aggregate unpaid principal amount of all Tranche B Loans made by the
Lender to the Borrower pursuant to Section 2.1 of the Credit Agreement (as
defined below). The Borrower agrees to pay interest in like money at such
office on the unpaid principal amount hereof from time to time outstanding at
the rates and on the dates specified in Section 2.8 of the Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each
Tranche B Loan made pursuant to the Credit Agreement and the date and amount of
each payment or prepayment of principal thereof, each continuation thereof and
each conversion of all or a portion thereof to another Type. Each such
endorsement shall constitute prima facie evidence of the accuracy of the
----- -----
information endorsed. The failure to make any such endorsement or any error in
such endorsement shall not affect the obligations of the Borrower in respect of
such Loan.
This Note (a) is one (1) of the Notes referred to in the Credit
Agreement dated as of __________, 1998 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
----------------
Lender, the other banks and financial institutions from time to time parties
thereto and First Union National Bank, as the Agent, (b) is subject to the
provisions of the Credit Agreement (including without limitation Section 9.18
thereof) and (c) is subject to optional and mandatory prepayment in whole or in
part as provided in the Credit Agreement. Reference is hereby made to the
Credit Documents for a description of the properties and assets in which a
security interest has been granted, the nature and extent of the security and
the guarantees, the terms and conditions upon which the security interests and
each guarantee were granted and the rights of the holder of this Note in respect
thereof.
Upon the occurrence of any one (1) or more of the Events of Default,
all amounts then remaining unpaid on this Note shall become, or may be declared
to be, immediately due and payable, all as provided in the Credit Agreement.
A2-1
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.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but solely
as the Owner Trustee under the
USF Real Estate Trust 1998-1
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
A2-2
EXHIBIT B
---------
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of __________,
1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
-----------------
individually, except as expressly stated therein, but solely as the Owner
Trustee under the USF Real Estate Trust 1998-1 (the "Owner Trustee" or the
-------------
"Borrower"), the Lenders named therein and FIRST UNION NATIONAL BANK, as the
---------
Agent. Unless otherwise defined herein, terms defined in the Credit Agreement
(or pursuant to Section 1 of the Credit Agreement, defined in other agreements)
and used herein shall have the meanings given to them in or pursuant to the
Credit Agreement.
____________________ (the "Assignor") and _______________ (the
--------
"Assignee") agree as follows:
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1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), a ___% interest (the "Assigned Interest") in
-----------------
and to the Assignor's rights and obligations under the Credit Agreement with
respect to the credit facility contained in the Credit Agreement as are set
forth on Schedule 1 hereto (the "Assigned Facility"), in a principal amount for
---------- -----------------
the Assigned Facility as set forth on Schedule 1.
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2. The Assignor (a) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Operative
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Operative Agreement or
any other instrument or document furnished pursuant thereto, other than that it
has not created any adverse claim upon the interest being assigned by it
hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, or any other obligor or the
performance or observance by the Borrower, or any other obligor of any of their
respective obligations under the Credit Agreement or any other Operative
Agreement or any other instrument or document furnished pursuant hereto or
thereto; and (c) attaches the Note held by it evidencing the Assigned Facility
and requests that the Agent exchange such Note for a new Note payable to the
Assignor and (if the Assignor has retained any interest in the Assigned
Facility) a new Note payable to the Assignee in the respective amounts which
reflect the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received copies of the Operative Agreements, and such other documents and
information as it has deemed appropriate to make its
B-1
own credit analysis and decision to enter into this Assignment and Acceptance;
(c) agrees that it will, independently and without reliance upon the Assignor,
the Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement, the other Operative
Agreements or any other instrument or document furnished pursuant hereto or
thereto; (d) appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under the Credit
Agreement, the other Operative Agreements or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Agent by the terms
thereof, together with such powers as are incidental thereto; and (e) agrees
that it will be bound by the provisions of the Credit Agreement and the other
Operative Agreements to which Assignee is a party and will perform in accordance
herewith all the obligations which by the terms of the Credit Agreement and the
other Operative Agreements to which Assignee is a party are required to be
performed by it as a Lender including without limitation, if it is organized
under the laws of a jurisdiction outside the U.S., its obligation pursuant to
Section 11.2(e) of the Participation Agreement.
4. The effective date of this Assignment and Acceptance shall be
________, ____ (the "Effective Date"). Following the execution of this
--------------
Assignment and Acceptance, it will be delivered to the Agent for acceptance by
it and recording by the Agent pursuant to Section 9.9 of the Credit Agreement,
effective as of the Effective Date (which shall not, unless otherwise agreed to
by the Agent, be earlier than five (5) Business Days after the date of such
acceptance and recording by the Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Agent shall make all payments in respect of the Assigned Interest
(including without limitation payments of principal, interest, fees and other
amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the Agent for
periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Operative Agreements and shall be bound by the provisions thereof and (b)
the Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement and the other Operative Agreements.
7. This Assignment and Acceptance shall be governed by, and
construed, INTERPRETED AND ENFORCED in accordance with the laws of the State of
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.
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[Name of Assignor]
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
[Name of Assignee]
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
Consented To:
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, but solely
as the Owner Trustee under the
USF Real Estate Trust 1998-1
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
FIRST UNION NATIONAL BANK, as the Agent
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
JP FOODSERVICE DISTRIBUTORS, INC.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
B-3
[consents required only to the extent expressly provided in Section 9.8 of the
Credit Agreement]
B-4
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT,
DATED AS OF __________, 1998,
AMONG
FIRST SECURITY BANK, NATIONAL ASSOCIATION
NOT INDIVIDUALLY,
EXCEPT AS EXPRESSLY STATED THEREIN,
BUT SOLELY AS THE OWNER TRUSTEE,
THE LENDERS NAMED THEREIN
AND
FIRST UNION NATIONAL BANK, AS THE AGENT
FOR THE LENDERS (IN SUCH CAPACITY, THE "AGENT")
-----
Name of Assignor:
-----------------------------------
Name of Assignee:
-----------------------------------
Effective Date of Assignment:
-----------------------
Credit Principal Commitment
Facility Assigned Amount Assigned Percentage Assigned
----------------- --------------- -------------------
_________________ $____________ ____________%
[Name of Assignor]
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
[Name of Assignee]
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
B-5
