EXHIBIT 10.3
CREDIT AGREEMENT
Dated as of December 30, 1997
among
First Security Bank, National Association,
not individually, except as
expressly stated herein,
but solely as the Owner Trustee
under the AOR Trust 1997-1,
as the Borrower,
The Several Lenders
from Time to Time Parties Hereto,
and
FIRST UNION NATIONAL BANK,
as the Agent,
AMERICAN ONCOLOGY RESOURCES, INC.,
as the Guarantor and as a Tranche A Guarantor,
and
The Various Parties Hereto from time to time,
as the other Tranche A Guarantors
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS........................................................1
1.1 Definitions...........................................................1
1.2 Interpretation........................................................1
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS....................................2
2.1 Commitments...........................................................2
2.2 Notes.................................................................2
2.3 Procedure for Borrowing...............................................3
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......................................6
2.9 Computation of Interest...............................................6
2.10 Pro Rata Treatment and Payments......................................7
2.11 Notice of Amounts Payable; Mandatory Assignment......................8
SECTION 3. REPRESENTATIONS AND WARRANTIES.....................................8
SECTION 4. CONDITIONS PRECEDENT...............................................9
4.1 Conditions to Effectiveness...........................................9
4.2 Conditions to Each Loan...............................................9
SECTION 5. COVENANTS..........................................................9
5.1 Other Activities......................................................9
5.2 Ownership of Properties, Indebtedness.................................9
5.3 Disposition of Assets................................................10
5.4 Compliance with Operative Agreements.................................10
5.5 Further Assurances...................................................10
5.6 Notices..............................................................10
5.7 Discharge of Liens...................................................10
5.8 Trust Agreement......................................................11
SECTION 6. EVENTS OF DEFAULT.................................................11
SECTION 7. THE AGENT.........................................................14
7.1 Appointment..........................................................14
7.2 Delegation of Duties.................................................14
7.3 Exculpatory Provisions...............................................14
7.4 Reliance by the Agent................................................15
7.5 Notice of Default....................................................15
7.6 Non-Reliance on the Agent and Other Lenders..........................15
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7.7 Indemnification......................................................16
7.8 The Agent in Its Individual Capacity.................................16
7.9 Successor Agent......................................................17
7.10 Actions of the Agent on Behalf of Holders...........................17
7.11 The Agent's Duty of Care............................................17
7.12 Applicable Parties..................................................18
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL........................18
8.1 Collection and Allocation of Payments and Other Amounts..............18
8.2 Certain Remedial Matters.............................................18
8.3 Excepted Payments....................................................18
SECTION 8B. MATTERS RELATING TO GUARANTY OF TRANCHE A OBLIGATIONS............19
8B.1. Tranche A Guaranty of Payment and Performance......................19
8B.2. Obligations Unconditional..........................................19
8B.3. Modifications......................................................20
8B.4. Waiver of Rights...................................................21
8B.5. Reinstatement......................................................21
8B.6. Remedies...........................................................21
8B.7. Limitation of Tranche A Guaranty...................................22
8B.8. Payment of Amounts to the Agent....................................22
SECTION 8C. MATTERS RELATING TO GUARANTY OF COMPANY OBLIGATIONS..............22
8C.1. Guaranty of Payment and Performance of Company Obligations.........22
8C.2. Obligations Unconditional..........................................23
8C.3. Modifications......................................................24
8C.4. Waiver of Rights...................................................24
8C.5. Reinstatement......................................................25
8C.6. Remedies...........................................................25
8C.7. Limitation of Guaranty.............................................25
8C.8. Payment of Amounts to the Agent....................................25
SECTION 9. MISCELLANEOUS......................................................26
9.1 Amendments and Waivers...............................................26
9.2 Notices..............................................................26
9.3 No Waiver; Cumulative Remedies.......................................26
9.4 Survival of Representations and Warranties...........................26
9.5 Payment of Expenses and Taxes........................................26
9.6 Successors and Assigns; Participations and Assignments...............27
9.7 Participations.......................................................27
9.8 Assignments..........................................................28
9.9 The Register; Disclosure; Pledges to Federal Reserve Banks...........30
9.10 Adjustments; Set-off................................................30
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9.11 Counterparts........................................................31
9.12 Severability........................................................31
9.13 Integration.........................................................31
9.14 GOVERNING LAW.......................................................32
9.15 SUBMISSION TO JURISDICTION; VENUE; ARBITRATION......................32
9.16 Acknowledgements....................................................32
9.17 WAIVERS OF JURY TRIAL...............................................32
9.18 Nonrecourse.........................................................32
9.19 USURY SAVINGS PROVISION.............................................33
9.20 Acceptances and Agreements..........................................34
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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 December 30, 1997 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, the
"Agreement") is among FIRST SECURITY BANK, NATIONAL ASSOCIATION, not
individually, except as expressly stated herein, but solely as the Owner Trustee
under the AOR Trust 1997-1 (the "Owner Trustee" or the "Borrower"), the several
banks and other financial institutions from time to time parties to this
Agreement (the "Lenders") and FIRST UNION NATIONAL BANK, a national banking
association, as a Lender and as the agent for the Lenders (the "Agent") and
AMERICAN ONCOLOGY RESOURCES, INC., a Delaware corporation, as the Guarantor and
as a Tranche A Guarantor, and the various other entities from time to time
parties to the Agreement, as the other Tranche A Guarantors.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINITIONS.
For purposes of this Agreement, capitalized terms used in this Agreement
and not otherwise defined herein shall have the meanings assigned to them in
Appendix A to that certain Participation Agreement dated as of December 30, 1997
(as amended, modified, extended, supplemented, restated and/or replaced from
time to time in accordance with the applicable provisions thereof, the
"Participation Agreement") among the Lessee, AOR, the various entities which are
parties thereto from time to time, as the other Tranche A 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.
The rules of usage set forth in Appendix A to the Participation Agreement
shall apply to this Agreement.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 COMMITMENTS.
(a) Subject to the terms and conditions hereof, each of the Lenders
severally agrees to make the portion of the Tranche A Loans and the Tranche B
Loans to the Borrower from time to time during the Commitment Period in an
amount up to such Lender's Commitment as is set forth adjacent to such Lender's
name in Schedule 1.1 hereto for the purpose of enabling the Borrower to purchase
the Properties and to pay Property Acquisition Costs, Property Costs and
Transaction Expenses, provided, that the aggregate principal amount at any one
(1) time outstanding with respect to each of the Tranche A Loans and the Tranche
B Loans shall not exceed the amount of the Tranche A Commitments and the Tranche
B Commitments respectively. Any prepayments of the Loans, whether mandatory or
at the Borrower's election, shall not be subject to reborrowing except as set
forth in Section 5.2(d) of the Participation Agreement.
(b) The Loans may from time to time be (i) Eurodollar Loans, (ii) ABR
Loans, or (iii) a combination thereof, as determined by the Borrower and
notified to the Agent in accordance with Sections 2.3 and 2.7. In the event the
Borrower fails to provide notice pursuant to Section 2.3, the Loan shall be an
ABR Loan. Further, any Loan by any Lender in an amount less than $100,000 shall
be an ABR Loan, unless the remaining Available Commitment for such Lender is
less than $100,000, in which case, the Borrower may elect a Eurodollar Loan for
such remaining amount.
2.2 NOTES.
The Loans made by each Lender shall be evidenced by promissory notes of the
Borrower, substantially in the form of EXHIBIT A-1 in the case of the Tranche A
Loans (each, a "Tranche A Note") or EXHIBIT A-2 in the case of the Tranche B
Loans (each, a "Tranche B Note," and with the Tranche A Notes, the "Notes"),
with appropriate insertions as to payee, 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 accuracy of the information so recorded, provided, that the failure to
make any such recordation or any error in such recordation shall not affect the
borrower's obligations hereunder or under such Note. Each Note shall (i) be
dated on or about 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.
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2.3 PROCEDURE FOR BORROWING.
(a) The Borrower may borrow under the Commitments during the Commitment
Period on any Business Day that an Advance may be requested pursuant to the
terms of Section 5.2 of the Participation Agreement, provided, that the Borrower
shall give the Agent irrevocable notice (which must be received by the Agent
prior to 12:00 Noon, Charlotte, North Carolina time, at least three (3) Business
Days prior to the requested Borrowing Date specifying (i) the amount to be
borrowed (which on any date shall not be in excess of the then Available
Commitments), (ii) the requested Borrowing Date, (iii) whether the borrowing is
to be of Eurodollar Loans, ABR Loans or a combination thereof, (iv) if the
borrowing is to be a combination of Eurodollar Loans and ABR Loans, the
respective amounts of each Type of Loan and (v) the Interest Period applicable
to each Eurodollar Loan. Pursuant to the terms of the Participation Agreement,
the Borrower shall be deemed to have delivered such notice upon the delivery of
a notice by the Construction Agent or the Lessee containing such required
information. Upon receipt of any such notice from the Borrower, the Agent shall
promptly notify each Lender thereof. Each Lender will make the amount of its
pro rata share of each borrowing available to the Agent for the account of the
Borrower at the office of the Agent specified in Section 9.2 prior to 12:00
Noon, Charlotte, North Carolina time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Agent. Such borrowing will then
be made available to the Borrower by the Agent crediting an account designated,
subject to Section 9.1 of the Participation Agreement, by the Borrower on the
books of such office with the aggregate of the amounts made available to the
Agent by the Lenders and in like funds as received by the Agent. No amount of
any Loan which is repaid or prepaid by the Borrower may be reborrowed hereunder,
except as set forth in Section 5.2(d) of the Participation Agreement.
(b) Interest accruing on each Loan during the Construction Period with
respect to any Property shall, subject to the limitations set forth in Section
5.1(b) of the Participation Agreement, be added to the principal amount of such
Loan on the relevant Scheduled Interest Payment Date. On each such Scheduled
Interest Payment Date, the Loan Property Cost and Construction Loan Property
Cost shall be increased by the amount of interest added to the Loans.
2.4 LENDER FACILITY FEES.
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.
(a) The Borrower shall have the right, upon not less than three (3)
Business Days' written notice to the Agent, to terminate the Commitments or,
from time to time, to reduce the amount of the Commitments, provided, that (i)
after giving effect to such reduction, the aggregate outstanding principal
amount of the Loans shall not exceed the aggregate Commitments and (ii) such
notice shall be accompanied by a certificate of the Construction
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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 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.
(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' (in the case of Eurodollar Loans) and at least one (1) Business
Day's (in the case of ABR Loans) 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, except as set forth in Section 5.2(d) of the
Participation Agreement.
(b) If on any date the Agent or the Lessor shall receive any payment in
respect of (i) any Casualty, Condemnation or Environmental Violation pursuant to
Sections 15.1(a) or 15.1(g) or Article XVI of the Lease (excluding any payments
in respect thereof which are payable to the Lessee in accordance with the
Lease), or (ii) the Termination Value of any Property in connection with the
delivery of a Termination Notice pursuant to Article XVI of the Lease, or (iii)
the Termination Value of any Property in connection with the exercise of the
Purchase Option under Article XX of the Lease or the exercise of the option of
the Lessor to transfer the Properties to the Lessee pursuant to Section 20.3 of
the Lease, or (iv) any payment required to be made or elected to be made by the
Construction Agent to the Lessor pursuant to the terms of the Agency Agreement,
then in each case, the Borrower shall pay such amounts to the Agent and the
Agent shall be required to apply and pay such amounts in accordance with the
provisions of Section 8.7(b) of the Participation Agreement.
(c) Each prepayment of the Loans pursuant to Section 2.6(a) shall be
allocated to reduce the respective Loan Property Costs of all Properties pro
rata according to the Loan Property Costs of such Properties immediately before
giving effect to such prepayment. Each prepayment of the Loans pursuant to
Section 2.6(b) shall be allocated to reduce the Loan Property Cost of the
Property or Properties subject to the respective Casualty, Condemnation,
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Environmental Violation, termination, purchase, transfer or other circumstance
giving rise to such prepayment. Any amounts applied to reduce the Loan Property
Cost of any Construction Period Property pursuant to this paragraph (c) shall
also be applied to reduce the Construction Loan Property Cost of such Property
until such Construction Loan Property Cost has been reduced to zero (0).
(d) The outstanding principal balance of the Loans and all other amounts
then due and owing under this Agreement or otherwise with respect to the Loans
shall be due and payable in full on the Maturity Date.
2.7 CONVERSION AND CONTINUATION OPTIONS.
(a) The Borrower may elect from time to time to convert Eurodollar Loans to
ABR Loans by giving the Agent (subject to the last proviso of Section 2.7(b)) at
least one (1) Business Day's prior irrevocable notice of such election,
provided, that any such conversion of Eurodollar Loans may only be made on the
last day of an Interest Period with respect thereto, and provided, further, to
the extent an Event of Default has occurred and is continuing on the last day of
any such Interest Period, the applicable Eurodollar Loan shall automatically be
converted to an ABR Loan. The Borrower may elect from time to time to convert
ABR Loans to Eurodollar Loans by giving the Agent at least three (3) Business
Days' prior irrevocable notice of such election. Upon receipt of any such
notice, the Agent shall promptly notify each Lender thereof. All or any part of
outstanding Eurodollar Loans or ABR Loans may be converted as provided herein,
provided, that (i) no ABR Loan may be converted into a Eurodollar Loan after the
date that is one (1) month prior to the Maturity Date and (ii) such notice of
conversion regarding any Eurodollar Loan shall contain an election by the
Borrower of an Interest Period for such Eurodollar Loan to be created by such
conversion and such Interest Period shall be in accordance with the terms of the
definition of the term "Interest Period" including without limitation
subparagraphs (A) through (D) thereof.
(b) Subject to the restrictions set forth in Section 2.3 hereof, any
Eurodollar Loan may be continued as such upon the expiration of the current
Interest Period with respect thereto by the Borrower giving irrevocable notice
to the Agent, in accordance with the applicable notice provision for the
conversion of ABR Loans to Eurodollar Loans set forth herein, of the length of
the next Interest Period to be applicable to such Loans, provided, that no
Eurodollar Loan may be continued as such after the date that is one (1) month
prior to the Maturity Date, and provided further no Eurodollar Loans may be
continued as such if an Event of Default has occurred and is continuing as of
the last day of the Interest Period for such Eurodollar Loan, and provided,
further, that if the Borrower shall fail to give any required notice as
described above or otherwise herein, or if such continuation is not permitted
pursuant to the proceeding proviso, such Loan shall automatically be converted
to an ABR Loan on the last day of such then expiring Interest Period.
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2.8 INTEREST RATES AND PAYMENT DATES.
(a) Subject to Section 9.19, 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 Margin or (ii) with respect to an ABR Loan, the ABR,
as selected by the Borrower in accordance with the provisions hereof; provided,
however, (A) upon delivery by the Agent of the notice described in Section
2.9(c), the Loans of each of the Lenders shall bear interest at the ABR
applicable from time to time from and after the dates and during the periods
specified in Section 2.9(c), (B) upon the delivery by a Lender of the notice
described in Section 11.3(f) of the Participation Agreement, the Loans of such
Lender shall bear interest at the ABR applicable from time to time from and
after the dates and during the periods specified in Section 11.3(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
paragraph (b) of this Section 2.8 shall be payable from time to time on demand
and (ii) each prepayment of the Loans shall be accompanied by accrued interest
to the date of such prepayment on the amount prepaid.
2.9 COMPUTATION OF INTEREST.
(a) Whenever it is calculated on the basis of the Prime Lending Rate,
interest shall be calculated on the basis of a year of three hundred sixty-five
(365) days (or three hundred sixty-six (366) days, as the case may be) for the
actual days elapsed; and, otherwise, interest shall be calculated on the basis
of a year of three hundred sixty (360) days for the actual days elapsed. The
Agent shall as soon as practicable notify the Borrower and the Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the ABR or the Eurocurrency Reserve Requirements
shall become effective as of the day on which such change becomes effective. The
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error.
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(c) If the Eurodollar Rate cannot be determined by the Agent in the manner
specified in the definition of the term "Eurodollar Rate", the Agent shall give
telecopy or telephonic notice thereof to the Borrower and the Lenders as soon as
practicable thereafter. Until such time as the Eurodollar Rate can be
determined by the Agent in the manner specified in the definition of such term,
no further Eurodollar Loans shall be made or shall be continued as such at the
end of the then current Interest Period nor shall the Borrower have the right to
convert ABR Loans to Eurodollar Loans.
2.10 PRO RATA TREATMENT AND PAYMENTS.
(a) Each borrowing by the Borrower from the Lenders hereunder and any
reduction of the Commitments of the Lenders shall be made pro rata according to
their respective Commitments. Subject to the provisions of Section 8.7 of the
Participation Agreement and Section 2.11(b) hereof, each payment (including
without limitation each prepayment) by the Borrower on account of principal of
and interest on the Loans shall be made pro rata according to the respective
outstanding principal amounts on the Loans then held by the Lenders. All
payments (including without limitation prepayments) to be made by the Borrower
hereunder and under the Notes, whether on account of principal, interest or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, Charlotte, North Carolina time, on the due date thereof to the
Agent, for the account of the Lenders, at the Agent's office specified in
Section 9.2, in Dollars and in immediately available funds. The Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder becomes due and payable on a day other than
a Business Day, such payment shall be extended to the next succeeding Business
Day; provided, however, if such payment includes an amount of interest
calculated with reference to the Eurodollar Rate and the result of such
extension would be to extend such payment into another calendar month, then such
payment shall be made on the immediately preceding Business Day. In the case of
any extension of any payment of principal pursuant to the preceding two (2)
sentences, interest thereon shall be payable at the then applicable rate during
such extension.
(b) Unless the Agent shall have been notified in writing by any Lender
prior to a borrowing that such Lender will not make its share of such borrowing
available to the Agent, the Agent may assume that such Lender is making such
amount available to the Agent, and the Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to the Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available to
the Agent. A certificate of the Agent submitted to any Lender with respect to
any amounts owing under this Section 2.10(b) shall be conclusive in the absence
of manifest error. If such Lender's share of such borrowing is not made
available to the Agent by such Lender within three (3) Business Days of such
Borrowing Date, the Agent shall also be entitled to recover such amount with
interest thereon at the rate as set forth above on demand from the Borrower.
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2.11 NOTICE OF AMOUNTS PAYABLE; MANDATORY ASSIGNMENT.
(a) In the event that any Lender becomes aware that any amounts are or will
be owed to it pursuant to Sections 11.2(e), 11.3 or 11.4 of the Participation
Agreement or that it is unable to make Eurodollar Loans for any of the reasons
set forth in Section 11.3(f) of the Participation Agreement, then it shall
promptly notify the Borrower, the Lessee and the Agent thereof and, as soon as
possible thereafter, such Lender shall submit to the Borrower (with a copy to
the Agent) a certificate indicating the amount owing to it and the calculation
thereof. The amounts set forth in such certificate shall be prima facie
evidence of the obligations of the Borrower hereunder.
(b) In the event that any Lender delivers to the Borrower a certificate in
accordance with Section 2.11(a) in connection with amounts payable pursuant to
Sections 11.2(e), 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(d) of the
Participation Agreement then, subject to Section 9.1 of the Participation
Agreement, the Borrower may, at its own expense (provided, such amounts shall be
reimbursed or paid entirely (as elected by the Borrower) by the Lessee, as
Supplemental Rent) and in the discretion of the Borrower, (i) require such
Lender to transfer or assign, in whole or (with such Lender's consent) in part,
without recourse (in accordance with Section 9.8), all or (with such Lender's
consent) part of its interests, rights (except for rights to be indemnified for
actions taken while a party hereunder) and obligations under this Agreement from
and after the effective date of such transfer or assignment to a replacement
bank or institution if the Borrower (subject to Section 9.1 of the Participation
Agreement and 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) terminate the Commitment
of such Lender and prepay all outstanding Loans of such Lender; provided,
however, that (x) subject to Section 9.1 of the Participation Agreement, the
Borrower or such replacement bank or institution, as the case may be, shall have
paid to such Lender in immediately available funds the principal of and interest
accrued to the date of such payment on the Loans made by it hereunder and all
other amounts owed to it hereunder (and, if such Lender is also a Holder, all
Holder Advances and Holder Yield accrued and unpaid thereon), (y) any
termination of Commitments shall be subject to the terms of Section 2.5(a) and
(z) such assignment or termination of the Commitment of such Lender and
prepayment of Loans does not conflict with any law, rule or regulation or order
of any court or Governmental Authority.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this Agreement and to
make the Loans, each of the Trust Company and the Owner Trustee hereby makes and
affirms the representations and warranties set forth in Section 6.1 of the
Participation Agreement to the same extent as if such representations and
warranties were set forth in this Agreement in their entirety.
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SECTION 4. CONDITIONS PRECEDENT
4.1 CONDITIONS TO EFFECTIVENESS.
The effectiveness of this Agreement is subject to the satisfaction of all
conditions precedent set forth in Section 5.3 of the Participation Agreement
required by said Section to be satisfied on or prior to the Initial Closing
Date.
4.2 CONDITIONS TO EACH LOAN.
The agreement of each Lender to make any Loan requested to be made by it on
any date is subject to the satisfaction of all conditions precedent set forth in
Section 5.3 and 5.4 of the Participation Agreement required by said Sections to
be satisfied on or prior to the date of the applicable Loan; provided, that a
request for any conversion or extension of any then outstanding Loan (in each
case, only to the extent no new funds are advanced) shall only require the
delivery of the applicable notice (if any) required therefor, that no Default or
Event of Default shall have occurred and be continuing on such date, both
immediately before and after giving effect to the Loan to be made on such date
and that the security interest in the Collateral previously pledged to the
Agent, for the benefit of the Lenders and the Holders, pursuant to the Operative
Agreements shall remain in full force and effect.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such Loan that the conditions
contained in this Section 4.2 have been satisfied.
SECTION 5. COVENANTS
So long as any Loan or Note remains outstanding and unpaid or any other
amount is owing to any Lender or the Agent hereunder:
5.1 OTHER ACTIVITIES.
The Borrower shall not conduct, transact or otherwise engage in, or commit
to transact, conduct or otherwise engage in, any business or operations other
than the entry into, and exercise of rights and performance of obligations in
respect of, the Bridge Financing and/or the Operative Agreements and other
activities incidental or related to the foregoing.
5.2 OWNERSHIP OF PROPERTIES, INDEBTEDNESS.
The Borrower shall not own, lease, manage or otherwise operate any
properties or assets other than in connection with the activities described in
Section 5.1, or incur, create, assume or suffer to exist any Indebtedness or
other consensual liabilities or financial obligations other than as may be
incurred, created or assumed or as may exist in connection with the activities
9
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 or as may otherwise be necessary with regard to properties subject to
the Bridge Financing to the extent such properties are not financed under the
Operative Agreements.
5.4 COMPLIANCE WITH OPERATIVE AGREEMENTS.
The Borrower shall at all times (a) observe and perform all of the
covenants, conditions and obligations required to be performed by it (whether in
its capacity as the Lessor, the Owner Trustee or otherwise) under each Operative
Agreement to which it is a party and (b) observe and perform, or cause to be
observed and performed, all of the covenants, conditions and obligations of the
Lessor under the Lease, even in the event that the Lease is terminated at stated
expiration following a Lease Event of Default or otherwise.
5.5 FURTHER ASSURANCES.
At any time and from time to time, upon the written request of the Agent,
and at the expense of the Borrower (provided, such amounts shall be reimbursed
or paid entirely (as elected 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 carrying out and
effectuating the intent and purpose 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,
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 involving any danger of the sale, forfeiture or
loss of, and shall not materially interfere with
10
the disposition of, any material part of any Property or title thereto or any
interest therein or the payment of Rent.
5.8 TRUST AGREEMENT.
Without prejudice to any right under the Trust Agreement of the Owner
Trustee to resign, the Owner Trustee (a) agrees not to terminate or revoke the
trust created by the Trust Agreement except as permitted by Article VIII of the
Trust Agreement, (b) agrees not to amend, supplement, terminate, revoke or
otherwise modify any provision of the Trust Agreement in any manner which could
reasonably be expected to have an adverse effect on the rights or interests of
the Agent or the Lenders hereunder or under the other Operative Agreements and
(c) agrees to comply with all of the terms of the Trust Agreement.
SECTION 6. EVENTS OF DEFAULT
Upon the occurrence of any of the following specified events (each an
"Event of Default"):
(a) Except as provided in Sections 6(c), the Borrower shall default in the
payment when due of any principal on the Loans or default in the payment when
due of any interest on the Loans, and in either such case, such default shall
continue for three (3) or more days; or
(b) Except as provided in paragraphs (a) and (c), the Borrower shall
default, and such default shall continue for three (3) or more days, in the
payment of any amount owing under any Credit Document; or
(c) (i) The Borrower shall default in the payment of any amount due on the
Maturity Date owing under any Credit Document or (ii) the Borrower shall default
in the payment when due of any principal or interest on the Loans payable with
regard to any obligation of Lessee to pay Termination Value when due or to pay
Basic Rent or Supplemental Rent at such time as any Termination Value is due; or
(d) The Borrower shall default in the due performance or observance by it
of any term, covenant or agreement contained in any Credit Document to which it
is a party (other than those referred to in paragraphs (a), (b) and (c) above),
provided, that in the case of any such default under Sections 5.4, 5.5 or
5.8(c), such default shall have continued unremedied for a period of at least
thirty (30) days after notice to the Borrower by the 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, warranty or statement made or deemed made by the
Borrower herein or in any other Credit Document or by the Borrower or any Credit
Party in the
11
Participation Agreement, or in any statement or certificate required to be
delivered pursuant hereto or thereto, shall prove to be untrue in any material
respect on the date as of which made or deemed made; or
(f) (i) Any Lease Event of Default shall have occurred and be continuing,
or (ii) the Owner Trustee shall default in the due performance or observance by
it of any term, covenant or agreement contained in the Participation Agreement
or in the Trust Agreement to or for the benefit of the 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 commence a voluntary case concerning itself under
the Bankruptcy Code or an involuntary case is commenced against the Borrower and
the petition is not contravened within ten (10) days after commencement of the
case or an involuntary case is commenced against the Borrower and the petition
is not dismissed within ninety (90) days after commencement of the case; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge
of, all or substantially all of the property of the Borrower; or the Borrower
commences any other proceeding under any reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency or liquidation or similar
law of any jurisdiction whether now or hereafter in effect relating to the
Borrower, or there is commenced against the Borrower any such proceeding which
remains undismissed for a period of ninety (90) days; or the Borrower is
adjudicated insolvent or bankrupt, or any order of relief or other order
approving any such case or proceeding is entered; or the Borrower suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of ninety (90) days;
or the Borrower makes a general assignment for the benefit of creditors; or any
corporate or partnership action is taken by the Borrower for the purpose of
effecting any of the foregoing; or
(h) Any Security Document shall cease to be in full force and effect, or
the Agent ceases to have a perfected first priority security interest in any
material portion of the Collateral (subject to Permitted Liens); or
(i) The Lease shall cease to be enforceable against the Lessee; or
(j) One (1) or more judgments or decrees shall be entered against the
Borrower involving a liability of $100,000 or more in the aggregate for all such
judgments and decrees for the Borrower and any such judgments or decrees shall
not have been vacated, discharged, satisfied or stayed or bonded pending appeal
within sixty (60) days from the entry thereof or any greater time period
required by law,
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then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (g) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the Notes
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i)
with the consent of the Majority Lenders, the Agent may, or upon the request of
the Majority Lenders, the Agent shall, by notice to the Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Majority Lenders, the
Agent may, or upon the request of the Majority Lenders, the Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the Notes to be
due and payable forthwith, whereupon the same shall immediately become due and
payable (any of the foregoing occurrences or actions referred to in clause (A)
or (B) above, an "Acceleration"). Except as expressly provided above in this
Section 6, presentment, demand, protest and all other notices of any kind are
hereby expressly waived to the extent permitted by 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 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.
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SECTION 7. THE AGENT
7.1 APPOINTMENT.
Each Lender hereby irrevocably designates and appoints the Agent as the
agent of such Lender under this Agreement and the other Operative Agreements,
and each such Lender irrevocably authorizes the Agent, in such capacity, to
execute the Operative Agreements as agent for and on behalf of such Lender, to
take such action on behalf of such Lender under the provisions of this Agreement
and the other Operative Agreements and to exercise such powers and perform such
duties as are expressly delegated to the Agent by the terms of this Agreement
and other Operative Agreements, together with such other powers as are
reasonably incidental thereto. Without limiting the generality of the
foregoing, each of the Lenders hereby specifically acknowledges the terms and
provisions of the Participation Agreement and directs the Agent to exercise such
powers, make such decisions and otherwise perform such duties as are delegated
to the Agent thereunder without being required to obtain any specific consent
with respect thereto from any Lender, unless the matter under consideration is a
Unanimous Vote Matter or otherwise requires the consent of the Majority Lenders
and/or the Majority Secured Parties. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Operative Agreement or otherwise exist against the Agent.
7.2 DELEGATION OF DUTIES.
The Agent may execute any of its duties under this Agreement and the other
Operative Agreements by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel 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 to any of the Lenders 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 any Credit Party 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 any Credit Party 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
14
Agreement or any other Operative Agreement, or to inspect the properties, books
or records of the Borrower or any Credit Party.
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 Credit Parties), independent accountants and
other experts selected with due care by the Agent. The Agent may deem and treat
the payee of any Note as the owner thereof for all purposes unless a written
notice of assignment, negotiation or transfer thereof shall have been filed with
the Agent. The Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Operative Agreement unless it shall
first receive such advice or concurrence of the Majority Lenders, the Majority
Secured Parties or all Secured Parties, as the case may be, as it reasonably
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 from the Lenders 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
15
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 Credit
Parties, 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
Credit Parties 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 Credit Parties. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of the
Borrower or the Credit Parties 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 OR 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 Credit Parties
as though the Agent were
16
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 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
17
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.
7.12 APPLICABLE PARTIES.
The provisions of Section 7, other than the provisions of Section 7.9, are
solely for the benefit of the Agent and the Lenders, and the Borrower shall not
have any rights as a third party beneficiary or otherwise or any obligations
under any provision of Section 7, other than as provided in Section 7.9.
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL
8.1 COLLECTION AND ALLOCATION OF PAYMENTS AND OTHER AMOUNTS.
The Credit Parties, 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:
(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.
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SECTION 8B. MATTERS RELATING TO GUARANTY OF TRANCHE A OBLIGATIONS
8B.1. TRANCHE A GUARANTY OF PAYMENT AND PERFORMANCE.
Subject to Section 8B.7, the Tranche A Guarantors hereby unconditionally
guarantee on a joint and several basis to the Tranche A Lenders the prompt
payment and performance of the Tranche A Obligations in full when due (whether
at stated maturity, as a mandatory prepayment, by acceleration or otherwise) or
when such is otherwise to be performed. This Section 8B is a guaranty of
payment and performance and not of collection and is a continuing guaranty and
shall apply to all Tranche A Obligations whenever arising. All rights granted
to the Tranche A Lenders under this Section 8B shall be subject to the
provisions of Sections 8.2(h) and 8.6 of the Participation Agreement.
8B.2. OBLIGATIONS UNCONDITIONAL.
The Tranche A Guarantors agree, to the extent permitted by law, that the
obligations of the Tranche A Guarantors under this Section 8B are absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Operative Agreements, or any other agreement or
instrument referred to therein, or any substitution, release or exchange of any
other guarantee of or security for any of the Tranche A Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever which might otherwise constitute a legal or equitable
discharge or defense of a surety, guarantor or co-obligor, it being the intent
of this Section 8B.2 that the obligations of the Tranche A Guarantors hereunder
shall be absolute and unconditional under any and all circumstances. The
Tranche A Guarantors agree that this Section 8B may be enforced by the Agent on
behalf of the Tranche A Lenders without the necessity at any time of resorting
to or exhausting any other security or collateral and without the necessity at
any time of having recourse to the Tranche A Notes or any other of the Operative
Agreements or any collateral, if any, hereafter securing the Tranche A
Obligations or otherwise and the Tranche A Guarantors hereby waive the right to
require the Agent on behalf of the Tranche A Lenders to proceed against any
Person (including without limitation any co-guarantor) or to require the Agent
on behalf of the Tranche A Lenders to pursue any other remedy or enforce any
other right. Each Tranche A Guarantor further agrees not to exercise any right
of subrogation, indemnity, reimbursement or contribution against any Person for
amounts paid under this Section 8B until such time as the Tranche A Loans,
accrued but unpaid interest thereon and all other amounts owing under the
Operative Agreements have been paid in full. Without limiting the generality of
the waiver provisions of this Section 8B, the Tranche A Guarantors hereby waive
any rights to require the Agent on behalf of the Tranche A Lenders to proceed
against any Person or to require the Agent on behalf of the Tranche A Lenders to
pursue any other remedy or enforce any other right, including without limitation
any and all rights under N.C. Gen, Stat. (S) 26-7 through 26-9. The Tranche A
Guarantors further agree that nothing contained in this Section 8B shall prevent
the Agent on behalf of the Tranche A Lenders from suing on any Operative
Agreement or foreclosing any security interest in or Lien on any collateral, if
any, securing the Tranche A Obligations or from exercising any other rights
available to the Agent on behalf of the Tranche A Lenders under any Operative
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Agreement, or any other instrument of security, if any, and the exercise of any
of the aforesaid rights and the completion of any foreclosure proceedings shall
not constitute a discharge of the Tranche A Guarantors' obligations hereunder;
it being the purpose and intent of the Tranche A Guarantors that their
obligations hereunder shall be absolute, independent and unconditional under any
and all circumstances; provided, that any amounts due under this Section 8B
which are paid to or for the benefit of any Tranche A Lender shall reduce the
Tranche A Obligations by a corresponding amount (unless required to be rescinded
at a later date). To the extent permitted by law, neither the Tranche A
Guarantors' obligations under this Section 8B nor any remedy for the enforcement
thereof shall be impaired, modified, changed or released in any manner
whatsoever by an impairment, modification, change, release or limitation of the
liability of any firm or by reason of the bankruptcy or insolvency of any
Person. The Tranche A Guarantors waive any and all notice of the creation,
renewal, extension or accrual of any of the Tranche A Obligations and notice of
or proof of reliance by the Agent or any Tranche A Lender upon this Section 8B
or acceptance of this Section 8B. The Tranche A Obligations shall conclusively
be deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon this Section 8B. All dealings between any or
all of the Credit Parties, on the one hand, and the Agent or the Tranche A
Lenders, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon this Section 8B.
8B.3. MODIFICATIONS.
The Tranche A Guarantors agree that (a) all or any part of the security now
or hereafter held for the Tranche A Obligations, if any, may be exchanged,
compromised or surrendered from time to time; (b) neither the Agent nor any
Tranche A Lender shall have any obligation to protect, perfect, secure or insure
any such security interests, liens or encumbrances now or hereafter held, if
any, for the Tranche A Obligations or the properties subject thereto; (c) the
time or place of payment of the Tranche A Obligations may be changed or
extended, in whole or in part, to a time certain or otherwise, and may be
renewed or accelerated, in whole or in part; (d) any or all of the Credit
Parties and any other party liable for payment under the Operative Agreements
may be granted indulgences generally; (e) any of the provisions of the Notes,
the Certificates or any of the other Operative Agreements may be modified,
amended or waived; (f) any party (including without limitation any co-guarantor)
liable for the payment thereof may be granted indulgences or be released; and
(g) any deposit balance for the credit any or all of the Credit Parties or any
other party liable for the payment of the Tranche A Obligations or liable upon
any security therefor may be released, in whole or in part, at, before or after
the stated, extended or accelerated maturity of the Tranche A Obligations, all
without notice to or further assent by any Tranche A Guarantor, which shall
remain bound thereon, notwithstanding any such exchange, compromise, surrender,
extension, renewal, acceleration, modification, indulgence or release (except to
the extent any such exchange, compromise, surrender, extension, renewal,
acceleration, modification, indulgence or release is expressly for the benefit
of such Tranche A Guarantor).
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8B.4. WAIVER OF RIGHTS.
Each Tranche A Guarantor expressly waives to the fullest extent permitted
by applicable law: (a) notice of acceptance of this Section 8B by the Agent and
any Tranche A Lender and of all extensions of credit or other Advances to any
Credit Party by any Tranche A Lender pursuant to the terms of the Operative
Agreements; (b) presentment and demand for payment or performance of any of the
Tranche A Obligations; (c) protest and notice of dishonor or of default with
respect to the Tranche A Obligations or with respect to any security therefor;
(d) notice of the Agent on behalf of the Tranche A Lenders obtaining, amending,
substituting for, releasing, waiving or modifying any security interest, lien or
encumbrance, if any, hereafter securing the Tranche A Obligations, or the Agent
on behalf of the Tranche A Lenders subordinating, compromising, discharging or
releasing such security interests, liens or encumbrances, if any; and (e) all
other notices to which the Tranche A Guarantors might otherwise be entitled.
Notwithstanding anything to the contrary herein, (i) the Tranche A Guarantors'
payments hereunder shall be due three (3) days after written demand by the Agent
for such payment (unless the Tranche A Obligations are automatically accelerated
pursuant to the applicable provisions of the Operative Agreements in which case
the Tranche A Guarantors' payments shall be automatically due) and (ii) any
modification of the Operative Agreements which has the effect of increasing the
Tranche A Obligations shall not be enforceable against the Tranche A Guarantors
unless each Tranche A Guarantors executes the document evidencing such
modification or otherwise reaffirms its guaranty in writing in connection with
such modification.
8B.5. REINSTATEMENT.
The obligations of the Tranche A Guarantors under this Section 8B shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Tranche A Obligations is rescinded
or must be otherwise restored by any holder of any of the Tranche A Obligations,
whether as a result of any proceedings in bankruptcy or reorganization or
otherwise, and the Tranche A Guarantors agree that each of them will indemnify
the Agent and each Tranche A Lender on demand for all reasonable costs and
expenses (including, without limitation, reasonable fees of counsel) incurred by
the Agent and/or any Tranche A Lender in connection with such rescission or
restoration, including without limitation any such costs and expenses incurred
in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
8B.6. REMEDIES.
The Tranche A Guarantors agree that, as between the Tranche A Guarantors,
on the one hand, and the Agent and each Tranche A Lender, on the other hand, the
Tranche A Obligations may be declared to be forthwith due and payable as
provided in the applicable provisions of the Operative Agreements (and shall be
deemed to have become automatically due and payable in the circumstances
provided therein) notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing such Tranche A Obligations from
becoming automatically due and payable) as against any other Person and that, in
the event of such
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declaration (or such Tranche A Obligations being deemed to have become
automatically due and payable), such Tranche A Obligations (whether or not due
and payable by any other Person) shall forthwith become due and payable by the
Tranche A Guarantors in accordance with the applicable provisions of the
Operative Agreements.
8B.7. LIMITATION OF TRANCHE A GUARANTY.
Notwithstanding any provision to the contrary contained herein or in any of
the other Operative Agreements, to the extent the Tranche A Obligations shall be
adjudicated to be invalid or unenforceable for any reason (including without
limitation because of any applicable state or federal law relating to fraudulent
conveyances or transfers) then the obligations of the Tranche A Guarantors
hereunder shall be limited to the maximum amount that is permissible under
applicable law (whether federal or state and including without limitation the
Bankruptcy Code).
Subject to Section 8B.5, upon the satisfaction of the Tranche A Obligations in
full, regardless of the source of payment, the Tranche A Guarantors' obligations
hereunder shall be deemed satisfied, discharged and terminated other than
indemnifications set forth herein that expressly survive.
8B.8. PAYMENT OF AMOUNTS TO THE AGENT.
Each Tranche A Lender hereby instructs the Tranche A Guarantors, and the
Tranche A Guarantors hereby acknowledge and agree, that until such time as the
Tranche A Loans are paid in full and the Liens evidenced by the Security
Agreement and the Mortgage Instruments have been released any and all Rent
(excluding Excepted Payments which shall be payable to each Holder or other
Person as appropriate) and any and all other amounts of any kind or type under
any of the Operative Agreements due and owing or payable to any Person shall
instead be paid directly to the Agent (excluding Excepted Payments which shall
be payable to each Holder or other Person as appropriate) or as the Agent may
direct from time to time for allocation and distribution in accordance with the
procedures set forth in Section 8.7 of the Participation Agreement.
SECTION 8C. MATTERS RELATING TO GUARANTY OF COMPANY OBLIGATIONS
8C.1. GUARANTY OF PAYMENT AND PERFORMANCE OF COMPANY OBLIGATIONS.
Subject to Section 8C.7, AOR hereby unconditionally guarantees to the
Financing Parties the prompt payment and performance of the Company Obligations
in full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration or otherwise) or when such is otherwise to be performed. This
Section 8C is a guaranty of payment and performance and not of collection and is
a continuing guaranty and shall apply to all Company Obligations whenever
22
arising. All rights granted to the Financing Parties under this Section 8C
shall be subject to the provisions of Sections 8.2(h) and 8.6 of the
Participation Agreement.
8C.2. OBLIGATIONS UNCONDITIONAL.
AOR agrees, to the extent permitted by law, that the obligations of AOR
under this Section 8C are absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the Operative
Agreements, or any other agreement or instrument referred to therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Company Obligations, and, to the fullest extent permitted by applicable
law, irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety, guarantor or
co-obligor, it being the intent of this Section 8B.2 that the obligations of AOR
hereunder shall be absolute and unconditional under any and all circumstances.
AOR agrees that this Section 8C may be enforced by the Agent on behalf of the
Financing Parties without the necessity at any time of resorting to or
exhausting any other security or collateral and without the necessity at any
time of having recourse to the Notes, the Certificates or any other of the
Operative Agreements or any collateral, if any, hereafter securing the Company
Obligations or otherwise and AOR hereby agrees not to exercise the right to
require the Agent on behalf of the Financing Parties to proceed against any
Person (including without limitation any co-guarantor) or to require the Agent
on behalf of the Financing Parties to pursue any other remedy or enforce any
other right. AOR further agrees not to exercise any right of subrogation,
indemnity, reimbursement or contribution against any Person for amounts paid
under this Section 8C until such time as the Loans, Holder Advances accrued but
unpaid interest thereon, accrued but unpaid Holder Yield and all other amounts
owing under the Operative Agreements have been paid in full. Without limiting
the generality of the waiver provisions of this Section 8C, AOR hereby waives
any rights to require the Agent on behalf of the Financing Parties to proceed
against any Person or to require the Agent on behalf of the Financing Parties to
pursue any other remedy or enforce any other right, including without limitation
any and all rights under N.C. Gen, Stat. (S) 26-7 through 26-9. AOR further
agrees that nothing contained in this Section 8C shall prevent the Agent on
behalf of the Financing Parties from suing on any Operative Agreement or
foreclosing any security interest in or Lien on any collateral, if any, securing
the Company Obligations or from exercising any other rights available to the
Agent on behalf of the Financing Parties under any Operative Agreement, or any
other instrument of security, if any, and the exercise of any of the aforesaid
rights and the completion of any foreclosure proceedings shall not constitute a
discharge of AOR's obligations hereunder; it being the purpose and intent of AOR
that its obligations hereunder shall be absolute, independent and unconditional
under any and all circumstances; provided, that any amounts due under this
Section 8C which are paid to or for the benefit of any Financing Party shall
reduce the Company Obligations by a corresponding amount (unless required to be
rescinded at a later date). To the extent permitted by law, neither AOR's
obligations under this Section 8C nor any remedy for the enforcement thereof
shall be impaired, modified, changed or released in any manner whatsoever by an
impairment, modification, change, release or limitation of the liability of any
firm or by reason of the bankruptcy or insolvency of any Person. AOR waives any
and all notice of the creation, renewal, extension or accrual of any of the
Company Obligations and notice of or proof of reliance by the Agent or any
Financing Party upon this
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Section 8C or acceptance of this Section 8C. The Company Obligations shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon this Section 8C. All dealings
between any or all of the Credit Parties, on the one hand, and the Agent or the
Financing Parties, on the other hand, likewise shall be conclusively presumed to
have been had or consummated in reliance upon this Section 8C (except to the
extent any such exchange, compromise, surrender, extension, renewal,
acceleration, modification, indulgence or release is expressly for the benefit
of AOR).
8C.3. MODIFICATIONS.
AOR agrees that (a) all or any part of the security now or hereafter held
for the Company Obligations, if any, may be exchanged, compromised or
surrendered from time to time; (b) neither the Agent nor any Financing Party
shall have any obligation to protect, perfect, secure or insure any such
security interests, liens or encumbrances now or hereafter held, if any, for the
Company Obligations or the properties subject thereto; (c) the time or place of
payment of the Company Obligations may be changed or extended, in whole or in
part, to a time certain or otherwise, and may be renewed or accelerated, in
whole or in part; (d) any or all of the Credit Parties and any other party
liable for payment under the Operative Agreements may be granted indulgences
generally; (e) any of the provisions of the Notes, the Certificates or any of
the other Operative Agreements may be modified, amended or waived; (f) any party
(including without limitation any co-guarantor) liable for the payment thereof
may be granted indulgences or be released; and (g) any deposit balance for the
credit of any or all of the Credit Parties or any other party liable for the
payment of the Company Obligations or liable upon any security therefor may be
released, in whole or in part, at, before or after the stated, extended or
accelerated maturity of the Company Obligations, all without notice to or
further assent by AOR, which shall remain bound thereon, notwithstanding any
such exchange, compromise, surrender, extension, renewal, acceleration,
modification, indulgence or release.
8C.4. WAIVER OF RIGHTS.
AOR expressly waives to the fullest extent permitted by applicable law: (a)
notice of acceptance of this Section 8C by the Agent and any Financing Party and
of all extensions of credit or other Advances to any Credit Party by any
Financing Party pursuant to the terms of the Operative Agreements; (b)
presentment and demand for payment or performance of any of the Company
Obligations; (c) protest and notice of dishonor or of default with respect to
the Company Obligations or with respect to any security therefor; (d) notice of
the Agent on behalf of the Financing Parties obtaining, amending, substituting
for, releasing, waiving or modifying any security interest, lien or encumbrance,
if any, hereafter securing the Company Obligations, or the Agent on behalf of
the Financing Parties subordinating, compromising, discharging or releasing such
security interests, liens or encumbrances, if any; and (e) all other notices to
which AOR might otherwise be entitled. Notwithstanding anything to the contrary
herein, (i) AOR's payments hereunder shall be due three (3) days after written
demand by the Agent for such payment (unless the Company Obligations are
automatically accelerated pursuant to the applicable provisions of the Operative
Agreements in which case AOR's payments shall be automatically due) and (ii) any
modification of the Operative Agreements which has the effect of
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increasing the Company Obligations shall not be enforceable against the AOR
unless AOR executes the document evidencing such modification or otherwise
reaffirms its guaranty in writing in connection with such modification.
8C.5. REINSTATEMENT.
The obligations of AOR under this Section 8C shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of any Person in respect of the Company Obligations is rescinded or must be
otherwise restored by any holder of any of the Company Obligations, whether as a
result of any proceedings in bankruptcy or reorganization or otherwise, and AOR
agrees that AOR will indemnify the Agent and each Financing Party on demand for
all reasonable costs and expenses (including, without limitation, reasonable
fees of counsel) incurred by the Agent and/or any Financing Party in connection
with such rescission or restoration, including without limitation any such costs
and expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law.
8C.6. REMEDIES.
AOR agrees that, as between AOR, on the one hand, and the Agent and each
Financing Party, on the other hand, the Company Obligations may be declared to
be forthwith due and payable as provided in the applicable provisions of the
Operative Agreements (and shall be deemed to have become automatically due and
payable in the circumstances provided therein) notwithstanding any stay,
injunction or other prohibition preventing such declaration (or preventing such
Company Obligations from becoming automatically due and payable) as against any
other Person and that, in the event of such declaration (or such Company
Obligations being deemed to have become automatically due and payable), such
Company Obligations (whether or not due and payable by any other Person) shall
forthwith become due and payable by AOR in accordance with the applicable
provisions of the Operative Agreements.
8C.7. LIMITATION OF GUARANTY.
Notwithstanding any provision to the contrary contained herein or in any of
the other Operative Agreements, to the extent the Company Obligations shall be
adjudicated to be invalid or unenforceable for any reason (including without
limitation because of any applicable state or federal law relating to fraudulent
conveyances or transfers) then the obligations of AOR hereunder shall be limited
to the maximum amount that is permissible under applicable law (whether federal
or state and including without limitation the Bankruptcy Code).
Subject to Section 8C.5, upon the satisfaction of the Company Obligations
in full, regardless of the source of payment, AOR's obligations hereunder shall
be deemed satisfied, discharged and terminated other than indemnifications set
forth herein that expressly survive.
8C.8. PAYMENT OF AMOUNTS TO THE AGENT.
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Each Financing Party hereby instructs AOR, and AOR hereby acknowledges and
agrees, that until such time as the Loans, Holder Advances, and all other
amounts due and payable under the Operative Agreements are paid in full and the
Liens evidenced by the Security Agreement and the Mortgage Instruments have been
released any and all Rent (excluding Excepted Payments which shall be payable to
each Holder or other Person as appropriate) and any and all other amounts of any
kind or type under any of the Operative Agreements due and owing or payable to
any Person shall instead be paid directly to the Agent (excluding Excepted
Payments which shall be payable to each Holder or other Person as appropriate)
or as the Agent may direct from time to time for allocation and distribution in
accordance with the procedures set forth in Section 8.7 of the Participation
Agreement.
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.
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,
26
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 Moore & Van Allen, 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 upon the
occurrence and during the continuance of an Event of Default 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 stamp or similar 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 Persons
engaged in making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business (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 (to the extent such Lender's interest in this Agreement and the Notes is
less than $2,000,000) which may be sold without violating the provisions of the
following proviso; provided, further, no Lender shall sell any participating
interest, when taken together with all other participating interests, if any,
sold by such Lender or such lesser amount constitutes 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
27
to the extent subject to such participation or (b) release all or substantially
all of the Collateral. The Borrower agrees that, 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 Sections 9.1 and 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 Eligible Assignee (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 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, no such assignment
shall be made to a Purchasing Lender without the prior written consent of the
Borrower, not to be unreasonably withheld, and, unless requested by the rekevant
Purchasing Lender and/or Assigning Lender, new Notes shall not be required to be
executed and delivered by the Borrower, for any assignment which occurs at any
time when any of the events described in Section 6(g) shall have occurred and be
continuing.
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(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. 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);
29
(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 clearly demonstrable 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 with
each of the Lenders; provided, however, that if all or any portion of such
excess payment or
30
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, each of 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 the extent permitted by law), to
set off and to appropriate and apply any and all deposits (general or special)
and any other Indebtedness at any time held or owing by the 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 of whether or not the
Agent or such Lender shall have made any demand and although said obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.
9.11 COUNTERPARTS.
This Agreement may be executed by one (1) or more of the parties to this
Agreement on any number of separate counterparts (including without limitation
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one (1) and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Agent.
9.12 SEVERABILITY.
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.13 INTEGRATION.
This Agreement and the other Credit Documents represent the agreement of
the Borrower, the Agent, and the Lenders with respect to the subject matter
hereof and thereof, and there are no promises, undertakings, representations or
warranties by the Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Credit Documents.
31
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 ACKNOWLEDGEMENTS.
The Borrower hereby acknowledges that:
(a) neither the Agent nor any Lender has any fiduciary relationship with
or duty to the Borrower arising out of or in connection with this Agreement or
any of the other Credit Documents, and the relationship between the Agent and
the Lenders, 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.
In addition to and not in limitation of Section 12.9 of the Participation
Agreement, anything to the contrary contained in this Agreement or in any other
Operative Agreement notwithstanding, no officer, director or shareholder (other
than a Credit Party) of any party to any Operative Agreement 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
32
remedies available to them under this Agreement, the Notes or any other
Operative Agreement, neither the Agent nor the Lenders shall have any recourse
against the Borrower, nor any officer, director or shareholder (other than a
Credit Party) of any party to any Operative Agreement, 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 Credit
Parties; 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.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER
OPERATIVE AGREEMENT, IT IS THE INTENT OF THE PARTIES HERETO TO CONFORM TO AND
CONTRACT IN STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN
EFFECT. ANY PAYMENTS HEREUNDER CONSTITUTING INTEREST UNDER ANY APPLICABLE LAW
FROM TIME TO TIME IN EFFECT MAY BE REFERRED TO HEREIN AS "INTEREST." ALL
AGREEMENTS AMONG THE PARTIES HERETO (INCLUDING ALL OF THE OPERATIVE AGREEMENTS)
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
OR THE EARLY TERMINATION OF THE LEASE FOR ANY REASON), SHALL ANY INTEREST TAKEN,
RESERVED, CONTRACTED FOR, CHARGED, OR RECEIVED UNDER THIS AGREEMENT OR
OTHERWISE, EXCEED THE MAXIMUM NONUSURIOUS AMOUNT PERMISSIBLE UNDER APPLICABLE
LAW NOR SHALL ANY PROVISION CREATE AN OBLIGATION TO PAY UNEARNED INTEREST IN
VIOLATION OF APPLICABLE LAW. IF, FROM ANY POSSIBLE CONSTRUCTION OF ANY OF THE
OPERATIVE AGREEMENTS OR ANY OTHER DOCUMENT OR
33
AGREEMENT, UNEARNED INTEREST WOULD BE PAYABLE OR INTEREST WOULD OTHERWISE BE
PAYABLE IN EXCESS OF THE MAXIMUM NONUSURIOUS AMOUNT, ANY SUCH CONSTRUCTION SHALL
BE SUBJECT TO THE PROVISIONS OF THIS PARAGRAPH AND SUCH AMOUNTS UNDER SUCH
DOCUMENTS OR AGREEMENTS SHALL BE AUTOMATICALLY REDUCED TO THE MAXIMUM
NONUSURIOUS AMOUNT PERMITTED UNDER APPLICABLE LAW, WITHOUT THE NECESSITY OF
EXECUTION OF ANY AMENDMENT OR NEW DOCUMENT OR AGREEMENT. IF THE AGENT, ANY
LENDER OR ANY OTHER FINANCING PARTY SHALL EVER RECEIVE ANYTHING OF VALUE WHICH
CONSTITUTES INTEREST UNDER ANY APPLICABLE LAW FROM TIME TO TIME 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,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, 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 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.
9.20 ACCEPTANCES AND AGREEMENTS.
Each of the Credit Parties (other than AOR) executing this Agreement as a
Tranche A Guarantor is doing so for the sole purpose of accepting and agreeing
to the provisions of Sections 8B.1 through 8B.8, and AOR is executing this
Agreement for the sole purposes set forth above its signature hereto.
34
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 AOR
Trust 1997-1
By:_____________________________________
Name:___________________________________
Title:__________________________________
FIRST UNION NATIONAL BANK, as the Agent and a
Lender
By:_____________________________________
Name:___________________________________
Title:__________________________________
AOR HAS EXECUTED THIS AGREEMENT FOR THE PURPOSE OF ACCEPTING AND AGREEING TO THE
PROVISIONS OF SECTIONS 8B.1 THROUGH 8B.8 AND SECTIONS 8C.1 THROUGH 8C.8 OF THIS
AGREEMENT AND HEREBY CONFIRMS THAT THIS AGREEMENT SHALL BE DEEMED A CREDIT
AGREEMENT OF AOR. THE OBLIGATION OF AOR PURSUANT TO SECTIONS 8B.1 THROUGH 8B.8
AND 8C.1 THROUGH 8C.8 CONSTITUTE OBLIGATIONS UNDER THE LESSEE CREDIT AGREEMENT.
AMERICAN ONCOLOGY RESOURCES, INC.,
as the Guarantor and as a Tranche A Guarantor
AOR SYNTHETIC REAL ESTATE, INC., as a Tranche A Guarantor
AOR REAL ESTATE, INC., as a Tranche A Guarantor
AOR, INC., as a Tranche A Guarantor
RMCC CANCER CENTER, INC., as a Tranche A Guarantor
AOR MANAGEMENT COMPANY OF OREGON, INC., as a Tranche A Guarantor
AOR MANAGEMENT COMPANY OF INDIANA, INC., as a Tranche A Guarantor
AOR MANAGEMENT COMPANY OF MISSOURI, INC., as a Tranche A Guarantor
AOR MANAGEMENT COMPANY OF ARIZONA, INC., as a Tranche A Guarantor
AOR MANAGEMENT COMPANY OF SOUTH CAROLINA, INC., as a Tranche A Guarantor
AOR MANAGEMENT COMPANY OF OKLAHOMA, INC., as a Tranche A Guarantor
[SIGNATURE PAGES CONTINUED]
AOR MANAGEMENT COMPANY OF PENNSYLVANIA, INC., as a Tranche A Guarantor
AOR MANAGEMENT COMPANY OF VIRGINIA, INC., as a Tranche A Guarantor
AOR MANAGEMENT COMPANY OF NORTH CAROLINA, INC., as a Tranche A Guarantor
AOR MANAGEMENT COMPANY OF NEW YORK, INC., as a Tranche A Guarantor
AOR MANAGEMENT COMPANY OF FLORIDA, INC., as a Tranche A Guarantor
AOR MANAGEMENT COMPANY OF NEVADA, INC., as a Tranche A Guarantor
AOR HOLDING COMPANY OF INDIANA, INC., as a Tranche A Guarantor
AOR MANAGEMENT COMPANY OF TEXAS, INC., as a Tranche A Guarantor
AORT HOLDING COMPANY, INC., as a Tranche A Guarantor
AORIP, INC., as a Tranche A Guarantor
By:____________________________
Name: L. Fred Pounds
Title: Treasurer of each of the foregoing Entities
AOR OF TEXAS MANAGEMENT LIMITED
PARTNERSHIP, A TEXAS LIMITED PARTNERSHIP, as a Tranche A Guarantor
BY: AOR MANAGEMENT COMPANY OF TEXAS, INC.,
a Delaware corporation, as general partner
BY:____________________________
Name: L. Fred Pounds
Title: Treasurer
AOR OF INDIANA MANAGEMENT PARTNERSHIP,
an Indiana General Partnership, as a Tranche A Guarantor
BY: AOR MANAGEMENT COMPANY OF INDIANA, INC.,
a Delaware Corporation, as general partner
BY:____________________________
Name: L. Fred Pounds
Title: Treasurer
BY: AOR HOLDING COMPANY OF INDIANA, INC.,
a Delaware Corporation, as general partner
BY:____________________________
Name: L. Fred Pounds
Title: Treasurer
[SIGNATURE PAGES CONTINUED]
THE FIRST NATIONAL BANK OF CHICAGO, as a Lender
By:______________________________________
Name:____________________________________
Title:___________________________________
[SIGNATURE PAGES CONTINUED]
CREDIT LYONNAIS NEW YORK BRANCH, as a Lender
By:______________________________________
Name:____________________________________
Title:___________________________________
[SIGNATURE PAGES CONTINUED]
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED,
as a Lender
By:______________________________________
Name:____________________________________
Title:___________________________________
[SIGNATURE PAGES CONTINUED]
SUNTRUST BANK, TAMPA BAY, as a Lender
By:______________________________________
Name:____________________________________
Title:___________________________________
[SIGNATURE PAGES CONTINUED]
WELLS FARGO BANK (TEXAS) NATIONAL ASSOCIATION, as a Lender
By:______________________________________
Name:____________________________________
Title:___________________________________
[SIGNATURE PAGES CONTINUED]
CORESTATES BANK, N.A., as a Lender
By:______________________________________
Name:____________________________________
Title:___________________________________
[SIGNATURE PAGES CONTINUED]
THE FUJI BANK, LIMITED, as a Lender
By:______________________________________
Name:____________________________________
Title:___________________________________
[SIGNATURE PAGES CONTINUED]
NATIONAL CITY BANK OF KENTUCKY, as a Lender
By:______________________________________
Name:____________________________________
Title:___________________________________
[SIGNATURE PAGES CONTINUED]
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as a Lender
By:______________________________________
Name:____________________________________
Title:___________________________________
[SIGNATURE PAGES CONTINUED]
ABN AMRO BANK N.V., as a Lender
By:______________________________________
Name:____________________________________
Title:___________________________________
[SIGNATURE PAGES CONTINUED]
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, as a Lender
By:______________________________________
Name:____________________________________
Title:___________________________________
By:______________________________________
Name:____________________________________
Title:___________________________________
[SIGNATURE PAGES CONTINUED]
NATIONSBANK OF TEXAS, N.A.,
as a Lender
By:______________________________________
Name:____________________________________
Title:___________________________________
Schedule 1.1
------------
Tranche A Tranche B
Commitment Commitment
-------------- ----------------
Name and Address of Lenders Amount Percentage Amount Percentage
- --------------------------- ------ ---------- -------- ----------
First Union National Bank $6,080,700 9.538% $859,400 9.549%
c/o First Union Capital Markets Group
DC-6
301 South College Street
Charlotte, North Carolina 28288-0166
Attention: Ms. Jane O. Hurley,
Capital Markets Services
Telephone: (704) 383-3812
Telecopy: (704) 383-7989
The First National Bank of Chicago $5,652,450 8.867% $797,900 8.866%
One First National Plaza
Suite 0091
Chicago, Illinois 60670
Attention: Richard L. Schiller
Vice President
Telephone: (312) 732-5932
Telecopy: (312) 732-2016
Credit Lyonnais New York Branch $5,724,000 8.979% $808,000 8.978%
1301 Avenue of the Americas
New York, New York 10019
Attention: Martin Golden
Vice President
Telephone: (212) 261-7791
Telecopy: (212) 261-3440
The Long -Term Credit Bank of Japan, Limited $3,434,400 5.387% $484,800 5.387%
N.Y. Branch - BP II
165 Broadway, 49th Floor
New York, New York 10006
Attention: Kathleen Dorsch-Santiago
Telephone: (212) 3335-4553
Telecopy: (212) 608-2371
CoreStates Bank, N.A. $5,724,000 8.979% $808,000 8.978%
FC 1-8-3-22
1339 Chestnut Street
Philadelphia, Pennsylvania 19107
Attention: Dierdre McAleer
Vice President
Telephone: (215) 973-7560
Telecopy: (215) 973-2738
ABN AMRO Bank N.V. $5,652,450 8.867% $797,000 8.866%
One Ravinia Drive, Suite 1200
Atlanta, Georgia 30346
Attention: Thomas Thornhill
Senior Vice President and
Managing Director
Telephone: (770) 396-0066
Telecopy: (770) 399-7397
NationsBank of Texas, N.A. $5,724,000 8.979% $808,000 8.978%
700 Louisiana Street, 8th Floor
Houston, Texas 77002-2700
Attention: Larry Gordon
Corporate Banking Officer
Telephone: (713) 247-6619
Telecopy: (713) 247-6719
The Fuji Bank, Limited $2,862,000 4.489% $404,000 4.489%
One Houston Center
1221 McKinney, Suite 4100
Houston, Texas 77010
Attention: Philip C. Lauinger III
Vice President and Manager
Telephone: (713) 759-0717
Telecopy: (713) 650-7852
Wells Fargo Bank (Texas) National Association $4,865,400 7.632% $686,800 7.631%
1000 Louisiana, 3rd Floor
Houston, Texas 77002
Attention: Christopher King
Assistant Vice President
Telephone: (713) 250-7150
Telecopy: (713) 250-7029
National City Bank of Kentucky $3,434,400 5.387% $484,800 5.387%
101 South Fifth Street
Louisville, Kentucky 40202
Attention: Roderic M. Brown
Vice President
Telephone: (502) 581-4369
Telecopy: (502) 581-4424
SunTrust Bank, Tampa Bay $3,434,400 5.387% $484,800 5.387%
2520 Countryside Boulevard
Clearwater, Florida 33763
Attention: Charles T. Falk
First Vice President
Telephone: (813) 892-4037
Telecopy: (813) 752-2315
Cooperatieve Centrale Raiffeisen- $5,652,450 8.867% $797,900 8.866%
Boerenleenbank B.A., "Rabobank"
Nederland", New York Branch
13355 Noel Road, Suite 1000
Dallas, Texas 75240-6645
Attention: J. David Thomas
Vice President
Telephone: (972) 419-5266
Telecopy: (972) 419-6315
Texas Commerce Bank National Association $5,509,350 8.642% $777,700 8.641%
6550 Fannin, Suite 237
Houston, TX 77030
Attention: Jerry Boyd
Vice President
Telephone: (713) 795-7344
Telecopy: (713) 795-7309
TOTAL $63,750,000 100% $9,000,000 100%