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EXHIBIT 10.5
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NOTE PURCHASE AGREEMENT
USRP FUNDING 2001-A, L.P.
TRIPLE NET LEASE MORTGAGE NOTES
between
USRP FUNDING 2001-A, L.P.
as Issuer
and
BANC OF AMERICA MORTGAGE CAPITAL CORPORATION
as Purchaser
dated as of January 9, 2001
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. CERTAIN DEFINED TERMS............................................1
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS....................................3
ARTICLE II
CLOSING
SECTION 2.01. PURCHASE.........................................................4
SECTION 2.02. CLOSING..........................................................4
ARTICLE III
CONDITIONS PRECEDENT TO
PURCHASE OF NOTES
SECTION 3.01. CLOSING SUBJECT TO CONDITIONS PRECEDENT..........................5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
SECTION 4.01. THE ISSUER.......................................................7
SECTION 4.02. SECURITIES ACT...................................................9
SECTION 4.03. NO FEE...........................................................9
SECTION 4.04. INFORMATION......................................................9
SECTION 4.05. THE NOTES........................................................9
SECTION 4.06. USE OF PROCEEDS..................................................9
SECTION 4.07. TAXES,ETC.......................................................10
SECTION 4.08. FINANCIAL CONDITION.............................................10
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE PURCHASER
SECTION 5.01. ORGANIZATION..................................................11
SECTION 5.02. AUTHORITY, ETC................................................11
SECTION 5.03. SECURITIES ACT................................................11
SECTION 5.04. CONFLICTS WITH LAW ...........................................11
SECTION 5.05. CONFLICTS WITH AGREEMENTS, ETC................................12
ARTICLE VI
COVENANTS OF THE ISSUER
SECTION 6.01. INFORMATION FROM THE ISSUER...................................13
SECTION 6.02. ACCESS TO INFORMATION.........................................13
SECTION 6.03. OWNERSHIP AND SECURITY INTERESTS; FURTHER ASSURANCES..........13
SECTION 6.04. COVENANTS.....................................................14
SECTION 6.05. AMENDMENTS....................................................14
SECTION 6.06. WITH RESPECT TO THE EXEMPT STATUS OF THE NOTES................14
ARTICLE VII
ADDITIONAL COVENANTS
SECTION 7.01. LEGAL CONDITIONS TO CLOSING...................................15
SECTION 7.02. EXPENSES......................................................15
SECTION 7.03. MUTUAL OBLIGATIONS............................................15
SECTION 7.04. RESTRICTIONS ON TRANSFER......................................15
SECTION 7.05. CONFIDENTIALITY...............................................15
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. INDEMNIFICATION OF PURCHASER..................................17
SECTION 8.02. PROCEDURE AND DEFENSE.........................................17
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. AMENDMENTS....................................................19
SECTION 9.02. NOTICES.......................................................19
SECTION 9.03. NO WAIVER; REMEDIES...........................................19
SECTION 9.04. BINDING EFFECT; ASSIGNABILITY.................................19
SECTION 9.05. PROVISION OF DOCUMENTS AND INFORMATION........................20
SECTION 9.06. GOVERNING LAW; JURISDICTION...................................20
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SECTION 9.07. EXECUTION IN COUNTERPARTS.....................................20
SECTION 9.08. SURVIVAL......................................................20
Schedule I - Information for Notices
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NOTE PURCHASE AGREEMENT dated as of January 9, 2001 (this "Note Purchase
Agreement"), between USRP FUNDING 2001-A, L.P. (the "Issuer") and BANC OF
AMERICA MORTGAGE CAPITAL CORPORATION ("Banc of America," and in its capacity as
Purchaser hereunder, the "Purchaser").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. CERTAIN DEFINED TERMS. Capitalized terms used herein
without definition shall have the meanings set forth in the Indenture (as
defined below). Additionally, the following terms shall have the following
meanings:
"BASIC DOCUMENTS" means the Contribution Agreement, the Engagement
Letter, the Fee Letters, the Guaranty, the Indenture, this Note Purchase
Agreement, the Property Management Agreement and the Security Instruments.
"CLOSING" shall have the meaning set forth in Section 2.02.
"CLOSING DATE" shall have the meaning set forth in Section 2.02.
"CONFIDENTIAL INFORMATION" means all marketing information, financial
information, terms sheets and other information concerning the transactions
contemplated hereby, prepared by or for the benefit of the Issuer, the Purchaser
and their respective Affiliates.
"CONTRIBUTION AGREEMENT" means the Contribution Agreement dated as of
January 9, 2001 between USRP and the Issuer.
"ENGAGEMENT LETTER" means the Engagement Letter dated December 15, 2000
between Banc of America Securities LLC and USRP.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules, regulations and published interpretations of the
Securities and Exchange Commission promulgated thereunder from time to time.
"FEE LETTERS" means the Advisory Fee Letter and the Bridge Fee Letter,
each dated January 9, 2000 and each between the Purchaser and the Issuer.
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"GOVERNMENTAL ACTIONS" means any and all consents, approvals, permits,
orders, authorizations, waivers, exceptions, variances, exemptions or licenses
of, or registrations, declarations or filings with, any Governmental Authority
required under any Governmental Rules.
"GOVERNMENTAL AUTHORITY" means the United States of America, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and having jurisdiction over the applicable Person.
"GOVERNMENTAL RULES" means any and all laws, statutes, codes, rules,
regulations, ordinances, orders, writs, decrees and injunctions, of any
Governmental Authority and any and all legally binding conditions, standards,
prohibitions, requirements and judgments of any Governmental Authority.
"GUARANTORS" shall have the meaning provided in the Guaranty.
"GUARANTY" means the Guaranty dated as of January 9, 2001 from USV, USRP
and their affiliates listed on Exhibit A thereto for the benefit of the
Indenture Trustee on behalf of the Noteholders.
"INDEMNIFIED PARTY" means the Purchaser and any of its officers,
directors, employees, agents, representatives, assignees and Affiliates and any
Person who controls the Purchaser or its Affiliates within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act.
"INDENTURE" means the Indenture dated as of January 9, 2001 between the
Issuer as Issuer and Xxxxx Fargo Bank Minnesota, N.A. as Indenture Trustee.
"INVESTMENT COMPANY ACT" shall have the meaning provided in Section
4.01(i).
"LIEN" means, with respect to any asset, (a) any mortgage, lien, pledge,
charge, security interest, hypothecation, option or encumbrance of any kind in
respect of such asset or (b) the interest of a vendor or lessor under any
conditional sale agreement, financing lease or other title retention agreement
relating to such asset.
"NOTES" means the USRP Funding 2001-A, L.P. Triple Net Lease Mortgage
Notes issued by the Issuer pursuant to the Indenture.
"PROPERTY MANAGEMENT AGREEMENT" means the Property Management Agreement
dated as of January 9, 2001 among the Issuer, USRP and the Indenture Trustee.
"PURCHASER" means the Purchaser and its successors and assigns.
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"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules, regulations and published interpretations of the Securities and Exchange
Commission promulgated thereunder from time to time.
"SECURITY INSTRUMENT" shall have the meaning provided in the Indenture.
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this Note Purchase Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.01, and accounting terms partially defined in Section 1.01 to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles. To the extent that the definitions of accounting
terms herein are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained herein shall control.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Note Purchase Agreement shall refer to this Note
Purchase Agreement as a whole and not to any particular provision of this Note
Purchase Agreement; and Section, subsection, Schedule and Exhibit references
contained in this Note Purchase Agreement are references to Sections,
subsections, and Exhibits in or to this Note Purchase Agreement unless otherwise
specified.
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ARTICLE II
CLOSING
SECTION 2.01. PURCHASE. On the Closing Date, the Purchaser agrees to
purchase the Notes, at par, in the aggregate Note Principal Balance of
$175,000,000, subject to the terms and conditions and in reliance upon the
covenants, representations and warranties set forth herein.
SECTION 2.02. CLOSING. The closing (the "CLOSING") of the purchase of
the Notes shall take place at 10:00 a.m. at the offices of Xxxxxxx Xxxxxxxx &
Wood, 0 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on January 9, 2001, or if
the conditions to closing set forth in Article III of this Note Purchase
Agreement shall not have been satisfied or waived by such date, at such other
time, date and place as the parties shall agree upon (the date of the Closing
being referred to herein as the "CLOSING DATE").
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ARTICLE III
CONDITIONS PRECEDENT TO
PURCHASE OF NOTES
SECTION 3.01. CLOSING SUBJECT TO CONDITIONS PRECEDENT. The obligation of
the Purchaser to purchase the Notes is subject to the satisfaction at the time
of the Closing of the following conditions (any or all of which may be waived by
the Purchaser in its sole discretion):
(a) PERFORMANCE BY THE ISSUER, USV, USRP, THE PROPERTY MANAGER AND THE
GUARANTORS. All the terms, covenants, agreements and conditions of the Basic
Documents to be complied with and performed by the Issuer, USV, USRP, the
Property Manager and the Guarantors on or before the Closing Date shall have
been complied with and performed in all material respects.
(b) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties of the Issuer, USV, USRP, the Property Manager and the Guarantors
made in the Basic Documents shall be true and correct in all material respects
as of the Closing Date (except to the extent they expressly relate to an earlier
or later time).
(c) OFFICER'S CERTIFICATE. The Purchaser shall have received in form and
substance reasonably satisfactory to the Purchaser an Officer's Certificate from
the Issuer, USV, USRP, the Property Manager and each Guarantor, dated the
Closing Date, certifying to the satisfaction of the conditions set forth in the
preceding paragraphs (a) and (b).
(d) OPINIONS OF COUNSEL TO USV, USRP, THE PROPERTY MANAGER, THE
GUARANTORS AND THE ISSUER. Counsel to the Issuer, USV, USRP, the Property
Manager and the Guarantors shall have delivered to the Purchaser favorable
opinions, dated as of the Closing Date and satisfactory in form and substance to
the Purchaser and its counsel.
(e) OPINIONS OF COUNSEL TO THE INDENTURE TRUSTEE. Counsel to the
Indenture Trustee shall have delivered to the Purchaser a favorable opinion,
dated as of the Closing Date and reasonably satisfactory in form and substance
to the Purchaser and its counsel.
(f) FILINGS AND RECORDATIONS. The Purchaser shall have received evidence
reasonably satisfactory to it of (i) the completion of all recordings,
registrations, and filings as may be necessary or, in the reasonable opinion of
the Purchaser, desirable to perfect or evidence the conveyance by USRP to the
Issuer of the Collateral including, without limitation, the Properties and
Leases conveyed pursuant to the Contribution Agreement and the proceeds thereof
and (ii) the completion of all recordings, registrations, and filings as may be
necessary or, in the reasonable opinion of the Purchaser, desirable to perfect
or evidence the grant of a first priority perfected security interest in the
Collateral including, without limitation, the Properties and Leases, in favor of
the Indenture Trustee, subject to no Liens prior to the Lien of the Indenture.
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(g) DOCUMENTS. The Purchaser shall have received a duly executed
counterpart of each of the Basic Documents, in form acceptable to the Purchaser,
the Notes and each and every document or certification delivered by any party in
connection with any of the Basic Documents or the Notes, and each such document
shall be in full force and effect.
(h) ACTIONS OR PROCEEDINGS. No action, suit, proceeding or investigation
by or before any Governmental Authority shall have been instituted to restrain
or prohibit the consummation of, or to invalidate, any of the transactions
contemplated by the Basic Documents, the Notes and the documents related thereto
in any material respect.
(i) APPROVALS AND CONSENTS. All Governmental Actions of all Governmental
Authorities required with respect to the transactions contemplated by the Basic
Documents, the Notes and the documents related thereto shall have been obtained
or made.
(j) ACCOUNTS. The Purchaser shall have received evidence reasonably
satisfactory to it that the Collection Account and the Payment Account has each
been established in accordance with the terms of the Indenture.
(k) FEES AND EXPENSES. The fees and expenses payable by the Issuer
pursuant to the Fee Letters and Section 7.02 shall have been paid.
(l) WAIVERS. The Purchaser shall have received evidence to its
satisfaction that either (i) the transaction contemplated by the Basic Documents
does not conflict with or violate the terms of any material agreement to which
the Issuer or any Guarantor are a party or (ii) any such conflict or violation
has been waived by all relevant parties.
(m) PROCEEDINGS IN CONTEMPLATION OF SALE OF NOTES. All actions and
proceedings undertaken by the Issuer, USV, USRP, the Property Manager and the
Guarantors in connection with the issuance and sale of the Notes as herein
contemplated shall be satisfactory in all respects to the Purchaser and its
counsel.
(n) FINANCIAL COVENANTS. The Guarantors shall be in compliance with the
financial covenants set forth in the Section 2.2(k) of the Guaranty.
(o) OTHER DOCUMENTS. The Issuer, USV, USRP, the Property Manager and the
Guarantors shall have furnished to the Purchaser such other opinions,
information, certificates and documents as the Purchaser may reasonably request.
If any condition specified in this Section 3.01 shall not have been
fulfilled when and as required to be fulfilled, this Note Purchase Agreement may
be terminated by the Purchaser by notice to USRP and the Issuer at any time at
or prior to the Closing Date, and the Purchaser shall incur no liability as a
result of such termination.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
SECTION 4.01. THE ISSUER. The Issuer hereby makes the following
representations and warranties to the Purchaser, as of the Closing Date, and the
Purchaser shall be deemed to have relied on such representations and warranties
in purchasing the Notes:
(a) The Issuer has been duly organized and is validly existing and in
good standing as a limited partnership under the laws of the State of Delaware,
with requisite power and authority to own its properties and to transact the
business in which it is now engaged, and is duly qualified to do business and is
in good standing (or is exempt from such requirements) in each State of the
United States where the nature of its business requires it to be so qualified
and the failure to be so qualified and in good standing would have a material
adverse effect on the Issuer or any of the Properties or any adverse effect on
the interests of the Purchaser.
(b) The issuance, sale, assignment and conveyance of the Notes, the
performance of the Issuer's obligations under each Basic Document to which it is
a party and the consummation of the transactions therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any Lien
(other than any Lien created by the Basic Documents), charge or encumbrance upon
any of the property or assets of the Issuer or any of its Affiliates pursuant to
the terms of, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it or any of its Affiliates is bound or to
which any of its property or assets is subject, nor will such action result in
any violation of the provisions of its organizational documents or any
Governmental Rule applicable to the Issuer, in each case which could be expected
to have a material adverse effect on the transactions contemplated therein.
(c) No Governmental Action which has not been obtained is required by or
with respect to the Issuer in connection with the execution and delivery to the
Purchaser of the Notes. No Governmental Action which has not been obtained is
required by or with respect to the Issuer in connection with the execution and
delivery of any of the Basic Documents to which the Issuer is a party or the
consummation by the Issuer of the transactions contemplated thereby except for
any requirements under state securities or "blue sky" laws in connection with
any transfer of the Notes.
(d) The Issuer possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and has not received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect its condition, financial or
otherwise, or its earnings, business affairs or business prospects.
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(e) Each of the Basic Documents to which the Issuer is a party has been
duly authorized, executed and delivered by the Issuer and is a valid and legally
binding obligation of the Issuer, enforceable against the Issuer in accordance
with its terms, subject to enforcement of bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting creditors' rights and to general principles of equity.
(f) The execution, delivery and performance by the Issuer of each of its
obligations under each of the Basic Documents to which it is a party will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any agreement or instrument to which the Issuer is a
party or by which the Issuer is bound or to which any of its properties are
subject or of any statute, order or regulation applicable to the Issuer of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Issuer or any of its properties, in each case which could
be expected to have a material adverse effect on any of the transactions
contemplated therein.
(g) The Issuer is not in violation of its organizational documents or in
default under any agreement, indenture or instrument the effect of which
violation or default would be material to the Issuer or the transactions
contemplated by the Basic Documents. The Issuer is not a party to, bound by or
in breach or violation of any indenture or other agreement or instrument, or
subject to or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Issuer that materially and adversely affects, or may in the future
materially and adversely affect (i) the ability of the Issuer to perform its
obligations under any of the Basic Documents to which it is a party or (ii) the
business, operations, financial condition, properties, assets or prospects of
the Issuer.
(h) There are no actions or proceedings against, or investigations of,
the Issuer pending, or, to the knowledge of the Issuer threatened, before any
Governmental Authority, court, arbitrator, administrative agency or other
tribunal (i) asserting the invalidity of any of the Basic Documents, or (ii)
seeking to prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by the Basic Documents or the Notes, or (iii) that, if
adversely determined, could materially and adversely affect the business,
operations, financial condition, properties, assets or prospects of the Issuer
or the validity or enforceability of, or the performance by the Issuer of its
respective obligations under, any of the Basic Documents to which it is a party
or (iv) seeking to affect adversely the income tax attributes of the Notes.
(i) The Issuer is not, and neither the issuance and sale of the Notes to
the Purchaser nor the activities of the Issuer pursuant to the Basic Documents,
shall render the Issuer an "investment company" or under the "control" of an
"investment company" as such terms are defined in the Investment Company Act of
1940, as amended (the "INVESTMENT COMPANY ACT").
(j) It is not necessary to qualify the Indenture under the Trust
Indenture Act of 1939, as amended.
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(k) The Issuer is solvent and has adequate capital for its business and
undertakings.
(l) The chief executive offices of the Issuer are located at 00000
Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx, 00000.
(m) There are no contracts, agreements or understandings between the
Issuer and any Person granting such Person the right to require the filing at
any time of a registration statement under the Securities Act with respect to
the Notes.
SECTION 4.02. SECURITIES ACT. Assuming the accuracy of the
representations and warranties of and compliance with the covenants of the
Purchaser, contained herein, the sale of the Notes pursuant to this Note
Purchase Agreement is exempt from the registration and prospectus delivery
requirements of the Securities Act. In the case of the offer or sale of the
Notes, no form of general solicitation or general advertising was used by the
Issuer, any Affiliates of the Issuer or any person acting on its or their
behalf, including, but not limited to, advertisements, articles, notices or
other communications published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising. Neither
the Issuer, any Affiliates of the Issuer nor any Person acting on its or their
behalf has offered or sold, nor will the Issuer or any Person acting on its
behalf offer or sell directly or indirectly, the Notes or any other security in
any manner that, assuming the accuracy of the representations and warranties and
the performance of the covenants given by the Purchaser and compliance with the
applicable provisions of the Indenture with respect to each transfer of the
Notes, would render the issuance and sale of the Notes as contemplated hereby a
violation of Section 5 of the Securities Act or the registration or
qualification requirements of any state securities laws, nor has any such Person
authorized, nor will it authorize, any Person to act in such manner.
SECTION 4.03. NO FEE. Neither the Issuer, nor USRP, nor any of their
Affiliates has paid or agreed to pay to any Person any compensation for
soliciting another to purchase the Notes.
SECTION 4.04. INFORMATION. The information provided pursuant to Section
6.01(a)hereof will, at the date thereof, be true and correct in all material
respects.
SECTION 4.05. THE NOTES. The Notes have been duly and validly
authorized, and, when executed and authenticated in accordance with the terms of
the Indenture, and delivered to and paid for in accordance with this Note
Purchase Agreement, will be duly and validly issued and outstanding and will be
entitled to the benefits of the Indenture.
SECTION 4.06. USE OF PROCEEDS. No proceeds of a purchase hereunder will
be used (i) for a purpose that violates or would be inconsistent with
Regulations G, T, U or X promulgated
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by the Board of Governors of the Federal Reserve System from time to time or
(ii) to acquire any security in any transaction in violation of Section 13 or 14
of the Exchange Act.
SECTION 4.07. TAXES, ETC. Any taxes, fees and other charges of
Governmental Authorities applicable to the Issuer, USV, USRP, the Property
Manager and the Guarantors, except for franchise or income taxes, in connection
with the execution, delivery and performance by such parties of each Basic
Document to which they are parties, the issuance of the Notes or otherwise
applicable to such parties in connection with the Collateral have been paid or
will be paid by the such parties, as applicable, at or prior to the Closing Date
to the extent then due.
SECTION 4.08. FINANCIAL CONDITION. On the date hereof, neither the
Issuer nor USRP is or will be insolvent or the subject of any voluntary or
involuntary bankruptcy proceeding.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE PURCHASER
The Purchaser hereby makes the following representations and warranties,
as to itself, to the Issuer.
SECTION 5.01. ORGANIZATION. The Purchaser has been duly organized and is
validly existing and in good standing under the laws of the jurisdiction of its
organization with power and authority to own its properties and to transact the
business in which it is now engaged.
SECTION 5.02. AUTHORITY, ETC. The Purchaser has all requisite power and
authority to enter into and perform its obligations under this Note Purchase
Agreement and to consummate the transactions herein contemplated. The execution
and delivery by the Purchaser of this Note Purchase Agreement and the
consummation by the Purchaser of the transactions contemplated hereby have been
duly and validly authorized by all necessary organizational action on the part
of the Purchaser. This Note Purchase Agreement has been duly and validly
executed and delivered by the Purchaser and constitutes a legal, valid and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, subject as to enforcement to bankruptcy,
reorganization, insolvency, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity. Neither the execution and delivery by the Purchaser of
this Note Purchase Agreement nor the consummation by the Purchaser of any of the
transactions contemplated hereby, nor the fulfillment by the Purchaser of the
terms hereof, will conflict with, or violate, result in a breach of or
constitute a default under any term or provision of the Purchaser's
organizational documents or any Governmental Rule applicable to the Purchaser.
SECTION 5.03. SECURITIES ACT. The Purchaser will acquire the Notes
pursuant to this Note Purchase Agreement without a view to any public
distribution thereof, and will not offer to sell or otherwise dispose of the
Notes (or any interest therein) in violation of any of the registration
requirements of the Securities Act or any applicable state or other securities
laws, or by means of any form of general solicitation or general advertising
(within the meaning of Regulation D under the Securities Act) and will comply
with the requirements of the Indenture. The Purchaser acknowledges that it has
no right to require the Issuer or any other Person to register the Notes under
the Securities Act or any other securities law.
SECTION 5.04. CONFLICTS WITH LAW . The execution, delivery and
performance by the Purchaser of its obligations under this Note Purchase
Agreement will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any agreement or instrument to
which the Purchaser is a party or by which the Purchaser is bound or of any
statute, order or regulation applicable to the Purchaser of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Purchaser, in each case which could be expected to have a material
adverse effect on the transactions contemplated therein.
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SECTION 5.05. CONFLICTS WITH AGREEMENTS, ETC. The Purchaser is not in
violation of its organizational documents or in default under any agreement,
indenture or instrument the effect of which violation or default would be
materially adverse to the Purchaser in the performance of its obligations or
duties under any of the Basic Documents to which it is a party. The Purchaser is
not a party to, bound by or in breach or violation of any indenture or other
agreement or instrument, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Purchaser that materially and adversely
affects, or which could be expected in the future to materially and adversely
affect the ability of the Purchaser to perform its obligations under this Note
Purchase Agreement.
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ARTICLE VI
COVENANTS OF THE ISSUER
SECTION 6.01. INFORMATION FROM THE ISSUER. So long as the Notes remain
outstanding, the Issuer shall furnish to the Purchaser:
(a) such information (including financial information), documents,
records or reports with respect to the Collateral, the Properties, the Leases,
the Tenants, the Issuer, USV, USRP, the Property Manager or the Guarantors as
the Purchaser may from time to time reasonably request;
(b) as soon as possible and in any event within five (5) Business Days
after the occurrence thereof, notice of each Replacement Event under the
Property Management Agreement or Event of Default under the Indenture, and each
Default; and
(c) promptly and in any event within 30 days after the occurrence
thereof, written notice of a change in address of the chief executive office of
the Issuer.
SECTION 6.02. ACCESS TO INFORMATION. So long as the Notes remain
outstanding, the Issuer shall, at any time and from time to time during regular
business hours, or at such other reasonable times upon reasonable notice to the
Issuer permit the Purchaser, or their agents or representatives to:
(a) examine all books, records and documents (including computer tapes
and disks) in the possession or under the control of the Issuer relating to the
Collateral, the Properties, the Leases, the Tenants, the Issuer, USV, USRP, the
Property Manager and the Guarantors as may be requested, and
(b) visit the offices and property of the Issuer for the purpose of
examining such materials described in clause (a) above.
Except as provided in Section 9.05, information obtained by the
Purchaser pursuant to this Section 6.02 and Section 6.01 herein shall be held in
confidence in accordance with and to the extent provided in Section 7.05.
SECTION 6.03. OWNERSHIP AND SECURITY INTERESTS; FURTHER ASSURANCES. The
Issuer will take all action necessary to maintain the Issuer's ownership
interest in the Collateral, including without limitation, the Properties and the
Leases and the other items conveyed pursuant to the Contribution Agreement. The
Issuer will take all action necessary to maintain the Indenture Trustee's
security interest in the Collateral, including without limitation, the
Properties and the Leases and the other items pledged to the Indenture Trustee
pursuant to the Indenture.
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The Issuer agrees to take any and all acts and to execute any and all
further instruments reasonably necessary or requested by the Purchaser to more
fully effect the purposes of this Note Purchase Agreement.
SECTION 6.04. COVENANTS. The Issuer shall duly observe and perform each
of its respective covenants set forth in each of the Basic Documents to which it
is a party.
SECTION 6.05. AMENDMENTS. The Issuer shall not make, or permit any
Person to make, any amendment, modification or change to, or provide any waiver
under any Basic Document to which the Issuer is a party without the prior
written consent of the Purchaser.
SECTION 6.06. WITH RESPECT TO THE EXEMPT STATUS OF THE NOTES.
(a) Neither the Issuer nor any of its Affiliates, nor any Person acting
on their behalf will, directly or indirectly, make offers or sales of any
security, or solicit offers to buy any security, under circumstances that would
require the registration of the Notes under the Securities Act.
(b) Neither the Issuer nor any of its Affiliates, nor any Person acting
on their behalf will engage in any form of general solicitation or general
advertising (within the meaning of Regulation D promulgated under the Securities
Act) in connection with any offer or sale of the Notes.
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ARTICLE VII
ADDITIONAL COVENANTS
SECTION 7.01. LEGAL CONDITIONS TO CLOSING. The parties hereto
will take all reasonable action necessary to obtain (and will cooperate with one
another in obtaining) any consent, authorization, permit, license, franchise,
order or approval of, or any exemption by, any Governmental Authority or any
other Person, required to be obtained or made by it in connection with any of
the transactions contemplated by this Note Purchase Agreement.
SECTION 7.02. EXPENSES.
(a) The Issuer covenants that, whether or not the Closing takes place,
except as otherwise expressly provided herein, all reasonable costs and expenses
incurred in connection with this Note Purchase Agreement and the transactions
contemplated hereby shall be paid by the Issuer.
(b) The Issuer covenants to pay as and when billed by the Purchaser all
of the reasonable out-of-pocket costs and expenses incurred in connection with
the consummation and administration of the transactions contemplated hereby and
in the other Basic Documents including, without limitation, (i) all reasonable
fees, disbursements and expenses of counsel to the Purchaser, and (ii) all
reasonable fees and expenses of the Indenture Trustee and its counsel.
SECTION 7.03. MUTUAL OBLIGATIONS. On and after the Closing, each party
hereto will do, execute and perform all such other acts, deeds and documents as
the other party may from time to time reasonably require in order to carry out
the intent of this Note Purchase Agreement.
SECTION 7.04. RESTRICTIONS ON TRANSFER. The Purchaser agrees that it
will comply with the restrictions on transfer of the Notes set forth in the
Indenture and resell the Notes only in compliance with such restrictions.
SECTION 7.05. CONFIDENTIALITY. Each of the Purchaser and the Issuer
shall hold in confidence all Confidential Information and shall not, at any time
hereafter, use, disclose or divulge any such information, knowledge or data to
any Person except:
(a) Information which at the time of disclosure is a part of the public
knowledge or literature and readily accessible;
(b) Information as required to be disclosed by a Governmental Authority;
(c) Disclosure to a Person that has entered into a confidentiality
agreement, acceptable to the Purchaser and the Issuer; or
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(d) Information that is deemed by the Purchase reasonably necessary to
disclose in connection with its exercise of any rights or remedies
under the Basic Documents.
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ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. INDEMNIFICATION OF PURCHASER. The Issuer hereby agrees to
indemnify and hold harmless each Indemnified Party against any and all losses,
claims, damages, liabilities, expenses or judgments (including accounting fees
and reasonable legal fees and other expenses incurred in connection with this
Note Purchase Agreement or any other Basic Document and any action, suit or
proceeding or any claim asserted) (collectively, "LOSSES"), as incurred (payable
promptly upon written request), for or on account of or arising from or in
connection with any information prepared by and furnished or to be furnished by
any of the Issuer, USV, USRP, the Property Manager or any Guarantor pursuant to
or in connection with the transactions contemplated hereby including, without
limitation, such written information as may have been and may be furnished in
connection with any due diligence investigation with respect to the business,
operations, financial condition of the Issuer, USV, USRP, the Property Manager
or any Guarantor or with respect to the Properties, the Leases or the Tenants,
to the extent such information contains any untrue statement of material fact or
omits to state a material fact necessary to make the statements contained
therein in the light of the circumstances under which such statements were made
not misleading, except with respect to any such information used by such
Indemnified Party in violation of the Basic Documents which results in such
Losses. The indemnities contained in this Section 8.01 will be in addition to
any liability which the Issuer or USV, USRP, the Property Manager or any
Guarantor may otherwise have pursuant to this Note Purchase Agreement and any
other Basic Document.
SECTION 8.02. PROCEDURE AND DEFENSE. In case any action or proceeding
(including any governmental or regulatory investigation or proceeding) shall be
instituted involving any Indemnified Party in respect of which indemnity may be
sought pursuant to Section 8.01, such Indemnified Party shall promptly notify
the Issuer in writing and, upon request of the Indemnified Party, the Issuer
shall assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Party to represent such Indemnified Party and
any others the indemnifying party may designate and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding; provided that
failure to give such notice or deliver such documents shall not affect the
rights to indemnity hereunder unless such failure materially prejudices the
rights of the Indemnified Party. The Indemnified Party will have the right to
employ its own counsel in any such action in addition to the counsel of the
Issuer, but the reasonable fees and expenses of such counsel will be at the
expense of such Indemnified Party, unless (i) the employment of counsel by the
Indemnified Party at its expense has been reasonably authorized in writing by
the Issuer, (ii) the Issuer has not in fact employed counsel to assume the
defense of such action within a reasonable time after receiving notice of the
commencement of the action or (iii) the named parties to any such action or
proceeding (including any impleaded parties) include the Issuer and one or more
Indemnified Parties, and the Indemnified Parties shall have been advised by
counsel that there may be one or more legal defenses available to them which are
materially different from or additional to those available to the Issuer.
Reasonable expenses of counsel to any Indemnified Party
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shall be reimbursed by the Issuer as they are incurred. The Issuer shall not be
liable for any settlement of any proceeding affected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the Indemnified Party
from and against any loss or liability by reason of such settlement or judgment.
The Issuer shall not, without the prior written consent of the Indemnified
Party, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Party is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all liability
on claims that are the subject matter of such proceeding.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. AMENDMENTS. No amendment or waiver of any provision of
this Note Purchase Agreement shall in any event be effective unless the same
shall be in writing and signed by all of the parties hereto, and then such
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
SECTION 9.02. NOTICES. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including
telecopies) and mailed, telecopied (with a copy delivered by overnight courier)
or delivered, as to each party hereto, at its address as set forth in Schedule I
hereto or at such other address as shall be designated by such party in a
written notice to the other parties hereto. All such notices and communications
shall be deemed effective upon receipt thereof, and in the case of telecopies,
when receipt is confirmed by telephone.
SECTION 9.03. NO WAIVER; REMEDIES. No failure on the part of any party
hereto to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 9.04. BINDING EFFECT; ASSIGNABILITY.
(a) This Note Purchase Agreement shall be binding upon and inure to the
benefit of the Issuer and the Purchaser and their respective permitted
successors and assigns (including any subsequent holders of the Notes);
PROVIDED, HOWEVER, the Issuer shall not have any right to assign its rights
hereunder or interest herein (by operation of law or otherwise) without the
prior written consent of the Purchaser.
(b) The Purchaser may, in the ordinary course of its business and in
accordance with its representations contained herein, the Basic Documents and
applicable law, including applicable securities laws, at any time sell to one or
more Persons (each, a "PARTICIPANT"), participating interests in all or a
portion of its rights and obligations under this Note Purchase Agreement.
Notwithstanding any such sale by the Purchaser of participating interests to a
Participant, the Purchaser's rights and obligations under this Note Purchase
Agreement shall remain unchanged, the Purchaser shall remain solely responsible
for the performance thereof, and the Issuer shall continue to deal solely and
directly with the Purchaser and shall have no obligations to deal with any
Participant in connection with the Purchaser's rights and obligations under this
Note Purchase Agreement.
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(c) This Note Purchase Agreement shall create and constitute the
continuing obligation of the parties hereto in accordance with its terms, and
shall remain in full force and effect until such time as all amounts payable
with respect to the Notes shall have been paid in full.
SECTION 9.05. PROVISION OF DOCUMENTS AND INFORMATION. The Issuer
acknowledges and agrees that the Purchaser is permitted to provide to any
subsequent Purchaser, permitted assignees and Participants, opinions,
certificates, documents and other information relating to the Issuer and the
Properties delivered to the Purchaser pursuant to this Note Purchase Agreement
provided that with respect to Confidential Information, such subsequent
Purchaser, permitted assignees and Participants agree to be bound by Section
7.05 hereof.
SECTION 9.06. GOVERNING LAW; JURISDICTION. THIS NOTE PURCHASE AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS. EACH OF THE
PARTIES TO THIS NOTE PURCHASE AGREEMENT HEREBY AGREES TO THE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY
APPELLATE COURT HAVING JURISDICTION TO REVIEW THE JUDGMENTS THEREOF. EACH OF THE
PARTIES HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY
OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE
AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
SECTION 9.07. EXECUTION IN COUNTERPARTS. This Note Purchase Agreement
may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement.
SECTION 9.08. SURVIVAL. All representations, warranties, covenants,
guaranties and indemnifications contained in this Note Purchase Agreement and in
any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the sale, transfer or repayment of the Notes.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Note Purchase Agreement
to be executed by their respective officers hereunto duly authorized, as of the
date first above written.
USRP FUNDING 2001-A, L.P.
By: USRP (SFGP), LLC
By:
-----------------------------------------
Name:
Xxxx Xxxxxxxx
Title: Manager
BANC OF AMERICA MORTGAGE CAPITAL
CORPORATION
By:
-----------------------------------------
Name:
Title:
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SCHEDULE I
INFORMATION FOR NOTICES
Issuer:
USRP Funding 0000-X, X.X.
00000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Asset Management Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Property Manager:
U.S. Restaurant Properties Operating, L.P.
00000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Asset Management Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Indenture Trustee:
Xxxxx Fargo Bank Minnesota, N.A.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS) - XXXX 0000-X
Telephone: 000-000-0000
Facsimile: 000-000-0000
Directing Noteholder:
Banc of America Mortgage Capital Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
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