1
Exhibit 10.24
AMENDMENT NO. 1 TO PARTICIPATION AGREEMENT
Dated as of October 16, 1997
(amending the Participation Agreement,
dated as of June 23, 1997)
among
CARDINAL HEALTH, INC.,
as a Lessee, as the Construction Agent and as Guarantor,
XXXXXXX DRUG COMPANY
and
XXXXXXXX DISTRIBUTION CORPORATION,
as Lessees,
BMO LEASING (U.S.), INC.,
as Lessor,
BANK OF MONTREAL
and
VARIOUS FINANCIAL INSTITUTIONS
IDENTIFIED HEREIN,
as Lenders,
and
BANK OF MONTREAL,
as Administrative Agent for the Lenders
AMENDMENT NO. 1 TO PARTICIPATION AGREEMENT
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THIS AMENDMENT NO. 1 TO PARTICIPATION AGREEMENT (this "Amendment"),
dated as of October 16, 1997, among CARDINAL HEALTH, INC., an Ohio corporation,
as the Guarantor (together with its permitted successors and assigns, the
"Company" or the "Guarantor") and as the Construction Agent (together with its
permitted successors and assigns, in its capacity as Construction Agent, the
"Construction Agent"); XXXXXXX DRUG COMPANY, a Tennessee corporation ("Xxxxxxx")
and XXXXXXXX DISTRIBUTION CORPORATION, a Delaware corporation ("Xxxxxxxx")
(Xxxxxxx, Xxxxxxxx and the Company are collectively referred to herein as the
"Lessees"); BMO LEASING (U.S.), INC., a Delaware corporation, as Lessor (the
"Lessor"); BANK OF MONTREAL and the various other financial institutions as are
or may from time to time become Lenders under the Loan Agreement referred to in
the Participation Agreement (together with their respective permitted successors
and assigns, the "Lenders"); and BANK OF MONTREAL, as Administrative Agent for
the Lenders (together with its successors in such capacity, the "Administrative
Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company, the Lessees, the Lessor, the Lenders and the
Administrative Agent have heretofore entered into a certain Participation
Agreement, dated as of June 23, 1997 (the "Participation Agreement"); and
WHEREAS, pursuant to certain Adoption Agreements dated as of September
30, 1997 and October 10, 1997, Xxxxxxx and Xxxxxxxx, respectively, became
parties to the Participation Agreement as Lessees; and
WHEREAS, the Company, the Lessees, the Lessor, the Lenders and the
Administrative Agent now desire to amend the Participation Agreement in certain
respects, as hereinafter provided;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Defined Terms. The following terms (whether or not
underscored) when used in this Amendment, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Administrative Agent" is defined in the preamble.
"Amendment" is defined in the preamble.
"Company" is defined in the preamble.
"Construction Agent" is defined in the preamble.
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"Effective Date" is defined in Section 5.3(b).
"Guarantor" is defined in the preamble.
"Lenders" is defined in the preamble.
"Lessees" is defined in the preamble.
"Lessor" is defined in the preamble.
"Participation Agreement" is defined in the first recital.
SECTION 1.2. Other Defined Terms; Construction. For purposes of this
Amendment, capitalized terms used but not defined herein shall have the meanings
assigned to them in Appendix A to the Participation Agreement (such definitions
to be equally applicable to both the singular and plural forms of the terms
defined). Any terms defined by reference to an agreement, instrument or other
documents shall have the meanings so assigned to it whether or not such document
is in effect. Unless otherwise indicated, references in this Amendment to
sections, paragraphs, clauses, appendices, schedules and exhibits are to the
same contained in or attached to this Amendment and the definition of any Person
herein shall include permitted successors and assigns.
ARTICLE II
AMENDMENTS
SECTION 2.1. Amendment to Section 3.1. The last paragraph of Section
3.1 of the Participation Agreement is hereby deleted in its entirety and
replaced with the following:
Notwithstanding any other provision hereof, the Lessor shall
not be obligated to make any Advance with respect to any Property, if,
after giving effect thereto, (i) the aggregate outstanding amounts of
the Loans and Equity Amounts would exceed the aggregate Loan
Commitments or the Lessor Commitment, respectively, (ii) the Land
Acquisition Costs and Existing Improvement Costs for such Property
would exceed 117.6% of the Fair Market Sales Value of such Property as
set forth in the Acquisition Date Appraisal therefor delivered pursuant
to Section 6.3(i) or (iii) the sum of the Land Acquisition Costs,
Existing Improvement Costs, and Property Improvement Costs for such
Property would exceed 117.6% of the Fair Market Sales Value of the
Property as set forth in the As-Built Appraisal of such Property
delivered pursuant to Section 6.2(c) or, if the Lessee has delivered or
caused to be delivered a subsequent Appraisal of such Property to the
Administrative Agent and the Lessor, the sum of the Land Acquisition
Costs, Existing Improvement Costs and Property Improvement Costs for
such Property would exceed 117.6% of the Fair Market Sales Value of
such Property set forth in such subsequent Appraisal. Lessor shall not
be obligated to make any Advance with respect to any Property not
meeting the requirements
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set forth under this Section 3.1 regardless of whether Lessor
previously waived such requirements with regard to any Property on any
previous occasion.
SECTION 2.2. Amendments to Article VI.
(a) Section 6.2(c) of the Participation Agreement is hereby deleted in
its entirety and replaced with the following.
(c) As-Built Appraisal. With respect to the first Construction
Advance for each Property, each of the Administrative Agent and the
Lessor shall have received, at least five (5) Business Days prior to
such Construction Advance, an As-Built Appraisal of the applicable
Property, in form and substance satisfactory to the Administrative
Agent and the Lessor, which As-Built Appraisal shall show that (i) in
the case of Property to be acquired by the Lessor in fee simple, as of
the Completion Date and as of the last day of the Basic Term, with
respect to such Property, the Fair Market Sales Value of such Property,
including all Improvements thereon and to be constructed thereon in
accordance with the Plans and Specifications for such Property
(excluding material handling equipment), shall not be less than 85% of
the sum of the Land Acquisition Cost, Existing Improvement Costs, and
Estimated Improvement Costs (excluding material handling equipment) for
such Property and (ii) in the case of Property covered by a Ground
Lease, as of the Completion Date and as of the last day of the Basic
Term with respect to such Property, the Fair Market Sales Value of the
Improvements to be constructed thereon in accordance with the Plans and
Specifications for such Property (excluding material handling
equipment) shall not be less than 85% of the Estimated Improvement
Costs (excluding material handling equipment) for such Property. With
respect to the As-Built Appraisal, it is agreed that the value of any
material handling equipment will not be included therein.
(b) Section 6.3(i) of the Participation Agreement is hereby deleted in
its entirety and replaced with the following.
(i) Acquisition Date Appraisal. At least five (5) Business
Days prior to such Acquisition Date, the Administrative Agent and the
Lessor shall have received an Acquisition Date Appraisal of the
applicable Property in form and substance satisfactory to the
Administrative Agent and the Lessor (which may be in the form of a
summary report with comparables if such Acquisition Date Appraisal is
for Land only), which Acquisition Date Appraisal shall show that, as of
such Acquisition Date, the Fair Market Sales Value of such Property is
not less than 85% of the sum of (i) the Land Acquisition Cost for such
Property and (ii) all Existing Improvement Costs.
(c) Section 6.2 of the Participation Agreement is hereby amended to
include the following Section 6.2(o) after Section 6.2(n):
(o) Subsequent Appraisal. With respect to any Advance relating
to the purchase of material handling equipment for each Property, each
of the Administrative Agent and the Lessor shall have received, at
least five (5) Business Days prior to such Advance, an Appraisal of the
applicable Property, in form and substance satisfactory to the
Administrative Agent and the Lessor, which Subsequent Appraisal shall
show that (i) in the case of Property acquired by the Lessor in fee
simple, as of the Completion Date and as of the last day of the Basic
Term, with respect to such Property, the Fair Market
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Sales Value of such Property, including all Improvements thereon and to
be constructed thereon in accordance with the Plans and Specifications
for such Property, shall not be less than 85% of the sum of the Land
Acquisition Cost, Existing Improvement Costs, and Estimated Improvement
Costs for such Property and (ii) in the case of Property covered by a
Ground Lease, as of the Completion Date and as of the last day of the
Basic Term with respect to such Property, the Fair Market Sales Value
of the Improvements to be constructed thereon in accordance with the
Plans and Specifications for such Property shall not be less than 85%
of the Estimated Improvement Costs for such Property. With respect to
the Subsequent Appraisal, it is agreed that material handling equipment
will be valued definitively at its installed cost, based upon purchase
orders, contracts or other similar documentation, as opposed to its
salvage value and such valuation shall not be based upon samples of
such Equipment.
SECTION 2.3. Amendment to Exhibit A of the Participation Agreement.
Exhibit A to the Participation Agreement is hereby amended and restated as
described on Exhibit A hereto.
SECTION 2.4. Amendment to Exhibit B of the Participation Agreement.
Section 3 of Exhibit B to the Participation Agreement is hereby deleted in its
entirety and replaced with the following:
3. With respect to each Subject Property, after giving effect
to the making of the Current Advance and the allocation thereof among
the Subject Properties, the sum of the Land Acquisition Costs, Existing
Improvement Costs and Property Improvement Costs for such Subject
Property will not exceed 117.6% of the Fair Market Sales Value of such
Property as of the Completion Date set forth in the Appraisal delivered
pursuant to Section 6.2(c) of the Participation Agreement, or, if the
Lessee has delivered or caused to be delivered a subsequent Appraisal
of such Subject Property to the Administrative Agent and the Lessor,
the sum of the Land Acquisition Costs, Existing Improvement Costs and
Property Improvement Costs for such Subject Property will not exceed
117.6% of the Fair Market Sales Value of such Property set forth in
such subsequent Appraisal.
SECTION 2.5. Amendment to Appendix A of the Participation Agreement.
(a) The definition of "Estimated Improvement Costs" in Appendix A to
the Participation Agreement is hereby deleted in its entirety and replaced with
the following:
"Estimated Improvement Costs" means, with respect to any
Property as of the date of the first Construction Advance therefor, an
amount equal to the aggregate amount which the Construction Agent for
such Property in good faith expects to be expended in order to achieve
Completion with respect to Improvements for such Property; provided,
however, that in no event shall the sum of the Land Acquisition Costs,
Existing Improvement Costs and Estimated Improvement Costs for any
Property exceed 117.6% of the Fair Market Sales Value of such Property
indicated on the As-Built Appraisal of such Property delivered pursuant
to Section 6.2(c) of the Participation Agreement or, if the Lessee has
delivered or caused to be delivered a subsequent Appraisal of such
Property to the Administrative Agent and the Lessor, the sum of the
Land Acquisition Costs, Existing Improvement Costs and Estimated
Improvement Costs for such Subject Property will not exceed 117.6% of
the Fair Market Sales Value of such Property set forth in such
subsequent Appraisal.
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(b) The definition of "As-Built Appraisal" in Appendix A to the
Participation Agreement is hereby deleted in its entirety and replaced with the
following:
"As-Built Appraisal" means, with respect to any Property, an
Appraisal of such Property appraising the Fair Market Sales Value of
such Property as built in accordance with the Plans and Specifications
therefor, as such As-Built Appraisal is described in Section 6.2(c) of
the Participation Agreement.
(c) Appendix A to the Participation Agreement shall be amended to
include therein in alphabetical order the following definition:
"Subsequent Appraisal" means, with respect to any Property, an
Appraisal of such Property appraising the Fair Market Sales Value of
such Property as built in accordance with the Plans and Specifications
therefor, as such Subsequent Appraisal is described in Section 6.2(o)
of the Participation Agreement.
SECTION 2.6. Amendment to Schedule I to the Participation Agreement.
Schedule I to the Participation Agreement is hereby amended and restated in its
entirety as set forth on Exhibit B hereto and shall be effective retroactive to
the Documentation Date.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1. Conditions to Effectiveness. The effectiveness of this
Amendment shall be subject to the prior or concurrent satisfaction of each of
the conditions precedent set forth in this Article III.
SECTION 3.1.1. The Company hereby represents and warrants that the
execution, delivery and performance of this Amendment and each other document,
if any, to be executed on behalf of the Company in connection with this
Amendment, is duly authorized, valid and binding, and the Lenders, the Lessor
and the Administrative Agent may conclusively rely on such representation and
warranty.
SECTION 3.1.2. Compliance with Warranties, No Default, etc. Both before
and after giving effect to this Amendment the following statements shall be true
and correct:
(a) to the best knowledge of a Responsible Officer of the
Company, no Default shall have occurred and be continuing as of the
date hereof;
(b) no Applicable Law shall exist that would (i) make it
illegal for the Company to (x) execute and deliver this Amendment and
each other document, if any, to be executed by it in connection with
this Amendment, (y) perform any obligation under this Amendment and
each other document, if any, to be executed by it in connection with
this Amendment or any of the other Operative Documents, or (ii) subject
the Company, the Lessees, the Lessor, the Administrative Agent or any
Lender to any penalty or to other liability under or pursuant to any
Applicable Law in connection with any of the foregoing, subject,
however, in the case of (i)(x) and (y) and (ii), to Section 11.5(b) of
the Participation Agreement;
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(c) no actions or proceedings shall have been instituted or
threatened by or before any Governmental Authority nor shall any
Applicable Law have been issued or proposed to be issued by any
Governmental Authority to set aside, restrain, enjoin or prevent the
consummation of the transactions contemplated by any of the Operative
Documents, this Amendment and each other document, if any, to be
executed by it in connection with this Amendment;
(d) each representation and warranty made by the Company in
this Amendment or any of the Operative Documents that is (i) qualified
as to materiality shall be true and correct (to the extent of such
qualification) on and as of the date hereof (unless such representation
and warranty specifically relates only to an earlier date set forth
therein, in which case such representation and warranty shall be true
and correct (to the extent of such qualification) on and as of such
earlier date) in all respects and (ii) not qualified as to materiality
shall be true and correct on and as of the date hereof (unless such
representation and warranty specifically relates only to an earlier
date set forth therein, in which case such representation and warranty
shall be true and correct on and as of such earlier date) in all
material respects; and
(e) since June 30, 1997, no material adverse change shall have
occurred with respect to the Company.
SECTION 3.1.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Company shall be satisfactory
in form and substance to the Lessor, each Lender, the Administrative Agent and
their respective counsel.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lessor, each Lender and the Administrative Agent
to enter into this Amendment, the Company hereby reaffirms, as of the date
hereof, its representations and warranties contained in Section 7.2, 7.3 and 7.4
of the Participation Agreement and additionally represents and warrants unto the
Lessor, each Lender and the Administrative Agent as set forth in this Article
IV.
SECTION 4.1. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Company of this Amendment and each other
document, if any, executed or to be executed by it in connection with this
Amendment, are within the Company's corporate powers, have been duly authorized
by all necessary corporate action, and do not
(a) contravene the Company's charter or bylaws;
(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting the Company; or
(c) result in, or require the creation or imposition of, any
Lien on any of the Company's properties except as expressly
contemplated by the Operative Documents.
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SECTION 4.2. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person is required for the due execution,
delivery or performance by the Company of this Amendment or any other document,
if any, to be executed by it in connection with this Amendment.
SECTION 4.3. Validity, etc. This Amendment constitutes, and each other
document executed by the Company in connection with this Amendment, if any,
will, on the due execution and delivery thereof, constitute, the legal, valid
and binding obligations of the Company enforceable in accordance with their
respective terms.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. Ratification of and References to the Participation
Agreement. This Amendment shall be deemed to be an amendment to the
Participation Agreement, and the Participation Agreement, as amended hereby, is
hereby ratified, approved and confirmed in each and every respect. All
references to the Participation Agreement in any other document, instrument,
agreement or writing shall hereafter be deemed to refer to the Participation
Agreement as amended hereby.
SECTION 5.2. Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provisions hereof.
SECTION 5.3. Execution in Counterparts, Effectiveness, etc.
(a) This Amendment may be executed by the parties hereto in any number
of counterparts and on separate counterparts, each of which shall be an original
but all of which together shall constitute one and the same instrument.
(b) This Amendment shall become effective as of October 16, 1997 (the
"Effective Date") upon satisfaction of each of the conditions precedent set
forth in Article III.
SECTION 5.4. GOVERNING LAW. THIS PARTICIPATION AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (EXCLUDING ANY
CONFLICT-OF-LAW OR CHOICE-OF-LAW RULES WHICH MIGHT LEAD TO THE APPLICATION OF
THE INTERNAL LAWS OF ANY OTHER JURISDICTION) AS TO ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
CARDINAL HEALTH, INC.,
as Lessee, Construction Agent and
Guarantor
By /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Financial Officer
XXXXXXX DRUG COMPANY,
as Lessee
By /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Executive Vice President - Finance
XXXXXXXX DISTRIBUTION COMPANY,
as Lessee
By /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Executive Vice President - Finance
BMO LEASING (U.S.), INC.,
as Lessor
By /s/
--------------------------------
Name:
Title:
BANK OF MONTREAL,
as Administrative Agent
for Lenders
By /s/
--------------------------------
Name:
Title:
BANK OF MONTREAL,
as Lender
By /s/
--------------------------------
Name:
Title:
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EXHIBIT A
---------
EXHIBIT A
TO PARTICIPATION AGREEMENT
FORM OF FUNDING REQUEST
TO: Bank of Montreal,
as Administrative Agent for the Lenders
BMO Leasing (U.S.), Inc.,
as Lessor
This Funding Request is delivered to you pursuant to Section 6.2(a) of the
Participation Agreement dated as of June 23, 1997 (the "Participation
Agreement"), entered into by and among Cardinal Health, Inc., a corporation
organized under the laws of the State of Ohio (together with its permitted
successors and assigns, the "Company"), as a Lessee, as Construction Agent and
as the Guarantor; the Subsidiaries of the Company that may from time to time
become parties thereto, as Lessees; BMO LEASING (U.S.), INC., a Delaware
corporation, as Lessor under the Master Lease (the "Lessor"); the various
financial institutions as are or may from time to time become Lenders under the
Loan Agreement (together with their respective permitted successors and assigns,
the "Lenders"); and BANK OF MONTREAL, as Administrative Agent for the Lenders.
Capitalized terms used but not otherwise defined herein have the respective
meanings specified in Appendix A to the Participation Agreement, and the rules
of interpretation set forth in Appendix A to the Participation Agreement shall
apply to this Funding Request.
[NAME OF APPLICABLE LESSEE] (the "Lessee") hereby notifies you that:
(i) The Lessee requests the making of an Advance in the amount of
$_____________ on [INSERT REQUESTED FUNDING DATE] (the "Proposed
Funding Date");
(ii) The Proposed Funding Date [will] [will not] also be an
Acquisition Date [and will relate to the first Construction Advance
for such Property];
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(iii) the Advance will be allocated among the Subject Properties
and their respective costs as set forth on Schedule A hereto (and pro
rata portions of the related Equity Amounts and Loans shall likewise
be deemed to be so allocated);
(iv) after giving effect to the Advance requested hereby, the
Property Cost for each Property in respect of which the Advance is
being drawn is set forth on Schedule A hereto;
(v) with respect to each acquisition of Property, the following
information is set forth on Schedule B hereto: (A) a description of
the Subject Property, (B) the Seller of the Subject Property (or, in
the case of the Headquarters Building, the ground lessor of such
Subject Property), (C) the Land Acquisition Cost and Existing
Improvement Costs, if any, for the Subject Property, (D) the
Transaction Expenses relating to Subject Property that are to be paid
with such Advance, and (E) the Estimated Improvement Costs for the
Subject Property;
(vi) the aggregate amount of Transaction Expenses relating to the
Subject Property that is to be paid with this Advance is set forth on
Schedule A hereto;
(vii) the Proposed Funding Date [will] [will not] relate to the
funding of material handling equipment for such Property; and
(viii) with respect to the acquisition of material handling
equipment, the following information is set forth on Schedule C
hereto: (A) a description of the Subject Property, (B) the cost of the
material handling equipment and (C) the Estimated Improvement Costs
for the Subject Property.
In connection with such requested Advance, the Lessee hereby represents and
warrants to you as follows:
(a) On the Proposed Funding Date, both immediately before and
after giving effect to the making of the requested Advance and the
application of the proceeds thereof, the statements made by the
Company and the Lessee in Section 7.4 of the Participation Agreement
are true and correct in all material respects.
(b) After giving effect to the Advance requested hereby (i) the
aggregate outstanding amounts of each of the Loans and the Equity
Amounts would not exceed the aggregate Loan Commitments or the Lessor
Commitment, respectively, (ii) the Land Acquisition Costs and Existing
Improvement Costs for such Property will not exceed 117.6% of the Fair
Market Sales Value of such Property as set forth in the Acquisition
Date Appraisal therefor delivered pursuant to Section 6.3(i) of the
Participation Agreement and (iii) the sum of the Land Acquisition
Costs, Existing Improvement Costs, and Property Improvement Costs for
such Property would not exceed 117.6% of the Fair Market Sales Value
of the Property as set forth in the As-Built Appraisal of such
Property delivered pursuant to Section 6.2(c) of the Participation
Agreement or, if the Lessee has delivered or caused to be delivered a
subsequent Appraisal of such Property to the Administrative Agent and
the Lessor, the sum of the Land Acquisition Costs, Existing
Improvement Costs and Property Improvement Costs for such Property
will not exceed 117.6% of the Fair Market Sales Value of such Property
set forth in such subsequent Appraisal.
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(c) All of the conditions precedent set forth in Article VI of
the Participation Agreement applicable to the Advance requested hereby
have been satisfied or waived.
Please wire transfer the proceeds of the Advance to the accounts specified
by the Lessee in written notice to the Administrative Agent.
The Lessee has caused this Funding Request to be executed and delivered by
its duly authorized Responsible Employee as of this _____ day of _________,
199_*/.
[Name of Lessee
By
-----------------------------
Name:
Title:
SCHEDULE A TO FUNDING REQUEST
ALLOCATION OF ADVANCES
----------------------
==================================================================================================================================
Land Acquisition
Costs (excluding Property Aggregate
Transaction Improvement Cost of Property Cost Transaction
Expenses) and Costs (excluding Material (all Advances Transaction Expenses Estimated
Existing Material Handling to date, Expenses (all Advances Equipment
Property Improvement Handling Equipment) including (Current to date, Cost of
Description Lease Supp. Cost (Current (Current Advance (Current Current Advance including Property at
(City, State) No. Advance Only) Only) Advance Only) Advance) Only) Current Advance) Completion
----------------------------------------------------------------------------------------------------------------------------------
1.__________ No. __ $___________ $___________ $________ $________ $________ $________ $________
----------------------------------------------------------------------------------------------------------------------------------
2.__________ No. __ $___________ $___________ $________ $________ $________ $________ $________
----------------------------------------------------------------------------------------------------------------------------------
3.__________ No. __ $___________ $___________ $________ $________ $________ $________ $________
----------------------------------------------------------------------------------------------------------------------------------
4.__________ No. __ $___________ $___________ $________ $________ $________ $________ $________
----------------------------------------------------------------------------------------------------------------------------------
5.__________ No. __ $___________ $___________ $________ $________ $________ $________ $________
----------------------------------------------------------------------------------------------------------------------------------
------------------------
*/ The Funding Request is required to be delivered not later than 12:00 noon,
New York City time, three (3) Business Days prior to the proposed Funding
Date.
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SCHEDULE B TO FUNDING REQUEST
INFORMATION REQUIRED
--------------------
FOR FUNDING ACQUISITION OF LAND
-------------------------------
1. Description of the Subject Property: ______________________.
2. The Subject Property consists of [Land only] [Land and Improvements]..
3. Seller of the Subject Property: ____________________.
4. Land Acquisition Cost and Existing Improvement Cost, if any, for the
Subject Property: Indicated on Schedule A.
5. Aggregate amount of Transaction Expenses relating to the Subject
Property that is to be paid with this Advance: $_______________.
6. Estimated Improvement Costs for the Subject Property:
$_________________.
SCHEDULE C TO FUNDING REQUEST
INFORMATION REQUIRED
--------------------
FOR FUNDING MATERIAL HANDLING EQUIPMENT
---------------------------------------
1. Description of the Subject Property: ______________________________.
2. Cost of material handling equipment: $_____________.
3. Estimated Improvement Costs for the Subject Property: $____________.
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EXHIBIT B
---------
SCHEDULE I
TO PARTICIPATION AGREEMENT
COMMITMENTS
==============================================================================
PARTICIPANT COMMITMENT COMMITMENT
PERCENTAGE
Lenders
-------
Bank of Montreal $66,400,000 83.00%
Total Lender Commitments $66,400,000 83.00%
Lessor
------
BMO Leasing (U.S.), Inc. $13,600,000 17.00%
======
TOTAL: $80,000,000 100.00%
==============================================================================
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================================================================================
AMENDMENT NO. 2 TO PARTICIPATION AGREEMENT
Dated as of June ___, 1999
(amending the Participation Agreement,
dated as of June 23, 1997, as amended by
Amendment No. 1 to Participation Agreement,
dated as of October 16, 1997)
among
CARDINAL HEALTH, INC.,
as a Lessee, as the Construction Agent and as Guarantor,
CARDINAL SOUTHEAST, INC.
(successor by merger with XXXXXXX DRUG COMPANY)
and
XXXXXXXX DISTRIBUTION CORPORATION,
as Lessees,
BMO GLOBAL CAPITAL SOLUTIONS, INC.
(successor in interest to BMO LEASING (U.S.), INC.),
as Lessor,
BANK OF MONTREAL
and
VARIOUS FINANCIAL INSTITUTIONS
IDENTIFIED HEREIN,
as Lenders,
and
BANK OF MONTREAL,
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as Administrative Agent for the Lenders
================================================================================
AMENDMENT NO. 2 TO PARTICIPATION AGREEMENT
THIS AMENDMENT NO. 2 TO PARTICIPATION AGREEMENT (this "AMENDMENT"),
dated as of June ___, 1999, among CARDINAL HEALTH, INC., an Ohio corporation, as
the Guarantor (together with its permitted successors and assigns, the "COMPANY"
or the "GUARANTOR") and as the Construction Agent (together with its permitted
successors and assigns, in its capacity as Construction Agent, the "CONSTRUCTION
AGENT"); CARDINAL SOUTHEAST, INC. (successor by merger with XXXXXXX DRUG
COMPANY), a Mississippi corporation ("CARDINAL SOUTHEAST") and XXXXXXXX
DISTRIBUTION CORPORATION, a Delaware corporation ("XXXXXXXX") (Cardinal
Southeast, Xxxxxxxx and the Company are collectively referred to herein as the
"Lessees"); BMO GLOBAL CAPITAL SOLUTIONS, INC. (successor in interest to BMO
LEASING (U.S.), INC.), a Delaware corporation, as Lessor (the "LESSOR"); BANK OF
MONTREAL and the various other financial institutions as are or may from time to
time become Lenders under the Loan Agreement referred to in the Participation
Agreement (together with their respective permitted successors and assigns, the
"LENDERS"); and BANK OF MONTREAL, as Administrative Agent for the Lenders
(together with its successors in such capacity, the "ADMINISTRATIVE AGENT").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company, the Lessees, the Lessor, the Lenders and the
Administrative Agent have heretofore entered into a certain Participation
Agreement, dated as of June 23, 1997, as amended by Amendment No. 1 to
Participation Agreement, dated as of October 16, 1997 (collectively, the
"PARTICIPATION AGREEMENT"); and
WHEREAS, pursuant to certain Adoption Agreements dated as of September
30, 1997 and October 10, 0000, Xxxxxxxx Xxxxxxxxx and Xxxxxxxx, respectively,
became parties to the Participation Agreement as Lessees; and
WHEREAS, the Company, the Lessees, the Lessor, the Lenders and the
Administrative Agent now desire to amend the Participation Agreement in certain
respects, as hereinafter provided;
NOW, THEREFORE, the parties hereto agree as follows:
17
ARTICLE I
DEFINITIONS
SECTION I.1. CERTAIN DEFINED TERMS. The following terms (whether or not
underscored) when used in this Amendment, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE.
"AMENDMENT" is defined in the PREAMBLE.
"COMPANY" is defined in the PREAMBLE.
"CONSTRUCTION AGENT" is defined in the PREAMBLE.
"EFFECTIVE DATE" is defined in SECTION 5.3(b).
"GUARANTOR" is defined in the PREAMBLE.
"LENDERS" is defined in the PREAMBLE.
"LESSEES" is defined in the PREAMBLE.
"LESSOR" is defined in the PREAMBLE.
"PARTICIPATION AGREEMENT" is defined in the FIRST RECITAL.
SECTION I.2. OTHER DEFINED TERMS; CONSTRUCTION. For purposes of this
Amendment, capitalized terms used but not defined herein shall have the meanings
assigned to them in Appendix A to the Participation Agreement (such definitions
to be equally applicable to both the singular and plural forms of the terms
defined). Any terms defined by reference to an agreement, instrument or other
documents shall have the meanings so assigned to it whether or not such document
is in effect. Unless otherwise indicated, references in this Amendment to
sections, paragraphs, clauses, appendices, schedules and exhibits are to the
same contained in or attached to this Amendment and the definition of any Person
herein shall include permitted successors and assigns.
-3-
18
ARTICLE II
AMENDMENTS
SECTION II.1. AMENDMENT TO SECTION 3.1. The last paragraph of SECTION
3.1 of the Participation Agreement is hereby deleted in its entirety and
replaced with the following:
Notwithstanding any other provision hereof, the
Lessor shall not be obligated to make any Advance with respect
to any Property, if, after giving effect thereto, the
aggregate outstanding amounts of the Loans and Equity Amounts
would exceed the aggregate Loan Commitments or the Lessor
Commitment, respectively.
SECTION II.2. AMENDMENTS TO ARTICLE VI.
SECTION 6.2 of the Participation Agreement is hereby amended to delete
Section 6.2(o).
SECTION 2.3. AMENDMENT TO EXHIBIT A OF THE PARTICIPATION AGREEMENT.
EXHIBIT A to the Participation Agreement is hereby amended and restated as
described on EXHIBIT A hereto.
SECTION 2.4. AMENDMENT TO EXHIBIT B OF THE PARTICIPATION AGREEMENT.
SECTION 3 of EXHIBIT B to the Participation Agreement is hereby deleted in its
entirety.
SECTION 2.5. AMENDMENT TO APPENDIX A OF THE PARTICIPATION AGREEMENT.
(a) The definition of "ESTIMATED IMPROVEMENT COSTS" in APPENDIX A to
the Participation Agreement is hereby deleted in its entirety and replaced with
the following:
"ESTIMATED IMPROVEMENT COSTS" means, with respect to any
Property as of the date of the first Construction Advance therefor, an
amount equal to the aggregate amount which the Construction Agent for
such Property in good faith expects to be expended in order to achieve
Completion with respect to Improvements for such Property.
(b) The definition of "Outside Completion Date" in Appendix A to the
Participation Agreement is hereby deleted in its entirety and replaced with the
following:
------------------------------------------------ -----------------------------------------------
Project Outside Completion Date
------------------------------------------------ -----------------------------------------------
1. Corporate Headquarters September 30, 1999
------------------------------------------------ -----------------------------------------------
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19
------------------------------------------------ -----------------------------------------------
Project Outside Completion Date
------------------------------------------------ -----------------------------------------------
2. Knoxville, Tennessee September 30, 1999
------------------------------------------------ -----------------------------------------------
3. Auburn, Washington September 30, 1999
------------------------------------------------ -----------------------------------------------
4. Hudson, Wisconsin October 30, 1999
------------------------------------------------ -----------------------------------------------
5. Greensboro, North Carolina December 26, 1999
------------------------------------------------ -----------------------------------------------
(c) Appendix A to the Participation Agreement shall be amended to
delete the definition of SUBSEQUENT APPRAISAL.
SECTION 2.6. GREENSBORO FACILITY. The Lessees, the Construction Agent
and the Guarantor acknowledge and agree that there shall be no further Funding
Requests with respect to the Property located in Greensboro, North Carolina, and
that the applicable Lessee or its designee shall, in accordance with Section
18.1 of the Lease, purchase the Property located in Greensboro, North Carolina
on or before June 30, 1999. Lessor and the Administrative Agent waive the
requirement for delivery of a Purchase Notice required in Section 18.1 of the
Lease and the restriction governing the purchase of less than all of the
Properties.
SECTION 2.7. ACCURACY OF INFORMATION. The Lessee, the Construction
Agent and the Guarantor acknowledge and agree that (i) the information set forth
on Schedule 1 attached hereto provided by the Cardinal Health, Inc. Corporate
Treasury Department is true and correct in all respects, and is intended to
replace and supersede the financial information previously provided to the
Lessor and the Lenders with respect only to those specific categories delineated
on SCHEDULE 1 and (ii) the amounts referenced on SCHEDULE 1 with respect to each
Property represent, in each case, the current good faith estimate of the total
amounts required to be expended after the date hereof to achieve Completion of
each such Property. In the event that during the Construction of the Properties
on or after the date hereof, any funds in excess of the aggregate of the Loan
Commitments and Lessor Commitment shall be required to Complete the Properties,
then immediately upon becoming aware of the need for such additional funds, the
Lessees and the Guarantor shall provide such additional funds, and all
obligations of the Lessor and the Lenders to make additional Advances shall be
suspended until the Lessees and the Guarantor shall have provided such
additional funds. The Lessees shall, within twenty (20) Business Days of the
date hereof, increase the insured amount of each title policy insuring the
Lessor and Lenders for each Property (other than the Greensboro Property) to the
amounts reflected on SCHEDULE 1 as Total Estimated Cost, which increase shall
be evidenced by an
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20
endorsement to each title policy, satisfactory in form and substance to the
Lessor and the Lenders.
SECTION 2.8. MECHANIC'S LIENS. The Lessor and the Lenders agree that,
provided no other Event of Default shall have occurred, the Lessor and the
Lenders shall not exercise any remedies under the Operative Documents solely as
a result of the mechanic's liens described on SCHEDULE 2 (the "MECHANIC'S
LIENS") until such time as (i) a legal or other proceeding shall have been
commenced against the Lessor, any Lender or the Dublin, Ohio Property or any
interest therein in connection with or in any way arising from any such
Mechanic's Lien or (ii) in the good faith determination of the Lessor or any
Lender, any such Mechanic's Lien shall cease to be subordinate in all respects
to, or may impair, the liens of any of the Operative Documents. The Lessees and
the Guarantor agree that they shall (x) immediately upon notice from the Lessor
or any Lender of the occurrence of, and immediately upon any Lessee or the
Guarantor obtaining knowledge of, any event described in CLAUSE (i) or (ii)
above, cause all of the Mechanic's Liens to be bonded and released in a manner
satisfactory to the Lessor and the Lenders and (y) provide the Lessor and the
Lenders with copies of all notices, correspondence, proceedings and other
documents and information relating to such Mechanic's Liens within three (3)
Business Days of receipt thereof.
SECTION 2.9. FUNDING RESTRICTIONS. Any restrictions on Fundings in any
of the Operative Documents based on the Fair Market Sales Value of any Property
are hereby deleted in their entirety.
ARTICLE III
CONDITIONS PRECEDENT
SECTION III.1. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Amendment shall be subject to the prior or concurrent satisfaction of each of
the conditions precedent set forth in this ARTICLE III.
SECTION III.1.1. The Company hereby represents and warrants that the
execution, delivery and performance of this Amendment and each other document,
if any, to be executed on behalf of the Company in connection with this
Amendment, is duly authorized, valid and binding, and the Lenders, the Lessor
and the Administrative Agent may conclusively rely on such representation and
warranty.
SECTION III.1.2. COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC. Both
before (other than with respect to statement (a)) and
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21
after giving effect to this Amendment the following statements shall be true and
correct:
(a) to the best knowledge of a Responsible Officer of the
Company, no Default shall have occurred and be continuing as of the
date hereof;
(b) no Applicable Law shall exist that would (i) make it
illegal for the Company to (x) execute and deliver this Amendment and
each other document, if any, to be executed by it in connection with
this Amendment, (y) perform any obligation under this Amendment and
each other document, if any, to be executed by it in connection with
this Amendment or any of the other Operative Documents, or (ii) subject
the Company, the Lessees, the Lessor, the Administrative Agent or any
Lender to any penalty or to other liability under or pursuant to any
Applicable Law in connection with any of the foregoing.
(c) no actions or proceedings shall have been instituted or
threatened by or before any Governmental Authority nor shall any
Applicable Law have been issued or proposed to be issued by any
Governmental Authority to set aside, restrain, enjoin or prevent the
consummation of the transactions contemplated by any of the Operative
Documents, this Amendment and each other document, if any, to be
executed by it in connection with this Amendment;
(d) each representation and warranty made by the Company in
this Amendment or any of the Operative Documents that is (i) qualified
as to materiality shall be true and correct (to the extent of such
qualification) on and as of the date hereof (unless such representation
and warranty specifically relates only to an earlier date set forth
therein, in which case such representation and warranty shall be true
and correct (to the extent of such qualification) on and as of such
earlier date) in all respects and (ii) not qualified as to materiality
shall be true and correct on and as of the date hereof (unless such
representation and warranty specifically relates only to an earlier
date set forth therein, in which case such representation and warranty
shall be true and correct on and as of such earlier date) in all
material respects; and
(e) since March 31, 1999, no material adverse change shall
have occurred with respect to the Company.
SECTION III.1.3. SATISFACTORY LEGAL FORM. All documents executed or
submitted pursuant hereto by or on behalf of the Company shall be satisfactory
in form and substance to the
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Lessor, each Lender, the Administrative Agent and their respective counsel.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Lessor, each Lender and the Administrative Agent
to enter into this Amendment, the Company hereby reaffirms, as of the date
hereof, its representations and warranties contained in Section 7.2, 7.3 and 7.4
of the Participation Agreement and additionally represents and warrants unto the
Lessor, each Lender and the Administrative Agent as set forth in this ARTICLE
IV.
SECTION IV.1. DUE AUTHORIZATION, NON-CONTRAVENTION, ETC. The execution,
delivery and performance by the Company of this Amendment and each other
document, if any, executed or to be executed by it in connection with this
Amendment, are within the Company's corporate powers, have been duly authorized
by all necessary corporate action, and do not
(a) contravene the Company's charter or bylaws;
(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting the Company; or
(c) result in, or require the creation or imposition of, any
Lien on any of the Company's properties except as expressly
contemplated by the Operative Documents.
SECTION IV.2. GOVERNMENT APPROVAL, REGULATION, ETC. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person is required for the due execution,
delivery or performance by the Company of this Amendment or any other document,
if any, to be executed by it in connection with this Amendment.
SECTION IV.3. VALIDITY, ETC. This Amendment constitutes, and each other
document executed by the Company in connection with this Amendment, if any,
will, on the due execution and delivery thereof, constitute, the legal, valid
and binding obligations of the Company enforceable in accordance with their
respective terms.
-8-
23
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION V.1. RATIFICATION OF AND REFERENCES TO THE PARTICIPATION
AGREEMENT. This Amendment shall be deemed to be an amendment to the
Participation Agreement, and the Participation Agreement, as amended hereby, is
hereby ratified, approved and confirmed in each and every respect. All
references to the Participation Agreement in any other document, instrument,
agreement or writing shall hereafter be deemed to refer to the Participation
Agreement as amended hereby.
SECTION V.2. HEADINGS. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provisions hereof.
SECTION V.3. EXECUTION IN COUNTERPARTS, EFFECTIVENESS, ETC.
(a) This Amendment may be executed by the parties hereto in any number
of counterparts and on separate counterparts, each of which shall be an original
but all of which together shall constitute one and the same instrument.
(b) This Amendment shall become effective (the "EFFECTIVE DATE") upon
satisfaction of each of the conditions precedent set forth in ARTICLE III.
SECTION V.4. GOVERNING LAW. THIS PARTICIPATION AGREEMENT SHALL IN ALL
RESPECTS BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (EXCLUDING ANY
CONFLICT-OF-LAW OR CHOICE-OF-LAW RULES WHICH MIGHT LEAD TO THE APPLICATION OF
THE INTERNAL LAWS OF ANY OTHER JURISDICTION) AS TO ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE.
-9-
24
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
CARDINAL HEALTH, INC.,
as Lessee, Construction Agent and Guarantor
By /s/ Xxxxxxx Xxxx
-------------------------------
Name: Xxxxxxx Xxxx
Title: Corporate Vice-President and
Treasurer
S-1
25
CARDINAL SOUTHEAST, INC.
(successor by merger with
Xxxxxxx Drug Company), as Lessee
By /s/ Xxxxxxx Xxxx
-------------------------------
Name: Xxxxxxx Xxxx
Title: Corporate Vice-President and
Treasurer
S-2
26
XXXXXXXX DISTRIBUTION COMPANY,
as Lessee
By /s/ Xxxxxxx Xxxx
-------------------------------
Name: Xxxxxxx Xxxx
Title: Corporate Vice-President and
Treasurer
S-3
27
BMO GLOBAL CAPITAL SOLUTIONS, INC.
(successor in interest to BMO LEASING
(U.S.), INC.),
as Lessor
By /s/ Xxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
S-4
28
BANK OF MONTREAL,
as Administrative Agent
for Lenders
By /s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director
S-5
29
BANK OF MONTREAL,
as Lender
By /s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director
S-6
30
EXHIBIT A
---------
EXHIBIT A
TO PARTICIPATION AGREEMENT
FORM OF FUNDING REQUEST
TO: Bank of Montreal,
as Administrative Agent for the Lenders
BMO Global Capital Solutions, Inc.
(successor in interest to BMO Leasing
(U.S.), Inc.),
as Lessor
This Funding Request is delivered to you pursuant to Section 6.2(a) of the
Participation Agreement dated as of June 23, 1997 (the "Participation
Agreement"), entered into by and among Cardinal Health, Inc., a corporation
organized under the laws of the State of Ohio (together with its permitted
successors and assigns, the "Company"), as a Lessee, as Construction Agent and
as the Guarantor; the Subsidiaries of the Company that may from time to time
become parties thereto, as Lessees; BMO GLOBAL CAPITAL SOLUTIONS, INC.
(successor in interest to BMO LEASING (U.S.), INC.), a Delaware corporation, as
Lessor under the Master Lease (the "Lessor"); the various financial institutions
as are or may from time to time become Lenders under the Loan Agreement
(together with their respective permitted successors and assigns, the
"Lenders"); and BANK OF MONTREAL, as Administrative Agent for the Lenders.
Capitalized terms used but not otherwise defined herein have the respective
meanings specified in Appendix A to the Participation Agreement, and the rules
of interpretation set forth in Appendix A to the Participation Agreement shall
apply to this Funding Request.
[NAME OF APPLICABLE LESSEE] (the "Lessee") hereby notifies you that:
(i) The Lessee requests the making of an Advance in the amount of
$_____________ on [INSERT REQUESTED FUNDING DATE] (the "Proposed
Funding Date");
(ii) The Proposed Funding Date [will] [will not] also be an
Acquisition Date [and will relate to the first Construction Advance
for such Property];
(iii) the Advance will be allocated among the Subject Properties
and their respective costs as set forth on Schedule A hereto (and pro
rata portions of
31
the related Equity Amounts and Loans shall likewise be deemed to be so
allocated);
(iv) after giving effect to the Advance requested hereby, the
Property Cost for each Property in respect of which the Advance is
being drawn is set forth on Schedule A hereto;
(v) with respect to each acquisition of Property, the following
information is set forth on Schedule B hereto: (A) a description of
the Subject Property, (B) the Seller of the Subject Property (or, in
the case of the Headquarters Building, the ground lessor of such
Subject Property), (C) the Land Acquisition Cost and Existing
Improvement Costs, if any, for the Subject Property, (D) the
Transaction Expenses relating to Subject Property that are to be paid
with such Advance, and (E) the Estimated Improvement Costs for the
Subject Property;
(vi) the aggregate amount of Transaction Expenses relating to the
Subject Property that is to be paid with this Advance is set forth on
Schedule A hereto;
(vii) the Proposed Funding Date [will] [will not] relate to the
funding of material handling equipment for such Property; and
(viii) with respect to the acquisition of material handling
equipment, the following information is set forth on Schedule C
hereto: (A) a description of the Subject Property, (B) the cost of the
material handling equipment and (C) the Estimated Improvement Costs
for the Subject Property.
In connection with such requested Advance, the Lessee hereby represents and
warrants to you as follows:
(a) On the Proposed Funding Date, both immediately before and
after giving effect to the making of the requested Advance and the
application of the proceeds thereof, the statements made by the
Company and the Lessee in Section 7.4 of the Participation Agreement
are true and correct in all material respects.
(b) After giving effect to the Advance requested hereby the
aggregate outstanding amounts of each of the Loans and the Equity
Amounts would not exceed the aggregate Loan Commitments or the Lessor
Commitment, respectively.
(c) All of the conditions precedent set forth in Article VI of
the Participation Agreement applicable to the Advance requested hereby
have been satisfied or waived.
32
Please wire transfer the proceeds of the Advance to the accounts specified
by the Lessee in written notice to the Administrative Agent.
The Lessee has caused this Funding Request to be executed and delivered by
its duly authorized Responsible Employee as of this _____ day of _________,
199_*/.
[Name of Lessee]
By
-----------------------------
Name:
Title:
SCHEDULE A TO FUNDING REQUEST
ALLOCATION OF ADVANCES
----------------------
==================================================================================================================================
Current
Aggregate Advance:
Transaction Property
Aggregate Expenses Improvement Aggregate
Property (all advances Costs Current Property
Cost (all to date, (excluding Advance: Cost (all
Property advances to excluding Material Material advances to Remaining Total
Description Lease date, excluding current Handling Handling date, including Costs to Project
(City, State) Supp. No. current advance) advance) Equipment) Equipment current advance) be Funded Cost
----------------------------------------------------------------------------------------------------------------------------------
1.__________ No. __ $___________ $___________ $________ $________ $________ $________ $________
----------------------------------------------------------------------------------------------------------------------------------
2.__________ No. __ $___________ $___________ $________ $________ $________ $________ $________
----------------------------------------------------------------------------------------------------------------------------------
3.__________ No. __ $___________ $___________ $________ $________ $________ $________ $________
----------------------------------------------------------------------------------------------------------------------------------
4.__________ No. __ $___________ $___________ $________ $________ $________ $________ $________
----------------------------------------------------------------------------------------------------------------------------------
5.__________ No. __ $___________ $___________ $________ $________ $________ $________ $________
==================================================================================================================================
General Transaction Expenses:
Transaction Expenses With Respect to the first two Fundings after execution of
this Amendment:
-----------
*/ The Funding Request is required to be delivered not later than 12:00 noon,
New York City time, three (3) Business Days prior to the proposed Funding
Date.
33
SYNTHETIC LEASE TRANSACTIONS
BREAKDOWN OF FUNDINGS
BANK OF MONTREAL
DUBLIN, CORPORATE HQ - COMPLETION ESTIMATE OF SEPTEMBER 30, 1999
Land Prop Improv MHE Transaction General Total
----------- ----------- --------- ----------- -------- -----------
Amount Expended 0 44,564,553 0 53,500 0 44,618,053
Estimated Costs to Complete 0 3,400,000 0 0 0 3,400,000
----------- ----------- --------- -------- -------- -----------
Total Estimated Costs 0 47,964,553 0 53,500 0 48,018,053
Amount Funded 0 (38,231,836) 0 (53,500) 0 (38,285,336)
----------- ----------- --------- -------- -------- -----------
Total Not Yet Funded 0 9,732,717 0 0 0 9,732,717
=========== =========== ========= ======== ======== ===========
KNOXVILLE - COMPLETION ESTIMATE OF SEPTEMBER 30, 1999
Land Prop Improv MHE Transaction General Total
----------- ----------- --------- ----------- -------- -----------
Amount Expended 655,793 5,829,005 1,819,419 19,168 0 8,323,385
Estimated Costs to Complete 0 0 0 0 0 0
----------- ----------- --------- -------- -------- -----------
Total Estimated Costs 655,793 5,829,005 1,819,419 19,168 0 8,323,385
Amount Funded (655,793) (6,028,649) (712,916) (19,168) 0 (7,416,526)
----------- ----------- --------- -------- -------- -----------
Total Not Yet Funded 0 (199,644)(a) 1,106,503 (0) 0 906,859
=========== =========== ========= ======== ======== ===========
AUBURN - COMPLETION ESTIMATE OF SEPTEMBER 30, 1999
Land Prop Improv MHE Transaction General Total
----------- ----------- --------- ----------- -------- -----------
Amount Expended 9,271,791 1,796,597 1,810,437 30,402 0 12,909,227
Estimated Costs to Complete 0 1,450,000 515,000 0 0 1,965,000
----------- ----------- --------- -------- -------- -----------
Total Estimated Costs 9,271,791 3,246,597 2,325,437 30,402 0 14,874,227
Amount Funded (9,271,791) (1,762,334) 0 (30,402) 0 (11,064,527)
----------- ----------- --------- -------- -------- -----------
Total Not Yet Funded 0 1,484,263 2,325,437 (0) 0 3,809,699
=========== =========== ========= ======== ======== ===========
34
XXXXXX - COMPLETION ESTIMATE OF OCTOBER 30, 1999
Land Prop Improv MHE Transaction General Total
----------- ----------- --------- ----------- -------- -----------
Amount Expended 500,000 5,604,342 1,625,857 43,364 0 7,773,563
Estimated Costs to Complete 0 100,000 0 0 0 100,000
----------- ----------- --------- -------- -------- -----------
Total Estimated Costs 500,000 5,704,342 1,625,857 43,364 0 7,873,563
Amount Funded (500,000) (5,578,674) (124,315) (43,364) 0 (6,246,353)
----------- ----------- --------- -------- -------- -----------
Total Not Yet Funded 0 125,668 1,501,542 0 0 1,627,210
=========== =========== ========= ======== ======== ===========
GREENSBORO - COMPLETION ESTIMATE OF DECEMBER 26, 1999
Land Prop Improv MHE Transaction General Total
----------- ----------- --------- ----------- -------- -----------
Amount Expended 5,770,000 2,352,690 2,505,111 60,626 0 10,688,427
Estimated Costs to Complete 0 320,000 0 0 0 320,000
----------- ----------- --------- -------- -------- -----------
Total Estimated Costs 5,770,000 2,672,690 2,505,111 60,626 0 11,008,427
Amount Funded (5,770,000) (1,923,552) (1,006) (60,626) 0 (7,755,184)
----------- ----------- --------- -------- -------- -----------
Total Not Yet Funded 0 749,138 2,504,105 0 0 3,253,243
=========== =========== ========= ======== ======== ===========
GENERAL
Land Prop Improv MHE Transaction General Total
----------- ----------- --------- ----------- -------- -----------
Amount Expended 0 0 0 0 453,263 453,263
Estimated Costs to Complete 0 0 0 0 0 0
----------- ----------- --------- -------- -------- -----------
Total Estimated Costs 0 0 0 0 453,263 453,263
Amount Funded 0 0 0 0 (453,263) (453,263)
----------- ----------- --------- -------- -------- -----------
Total Not Yet Funded 0 0 0 0 0 0
=========== =========== ========= ======== ======== ===========
GRAND TOTALS
After Removing
Land Prop Improv MHE Transaction General Total Greensboro
----------- ----------- --------- ----------- -------- ----------- --------------
Amount Expended 16,197,584 60,147,187 7,760,824 207,060 453,263 84,765,918 74,077,491
Estimated Costs to Complete 0 5,270,000 515,000 0 0 5,785,000 5,465,000
----------- ----------- --------- -------- -------- ----------- -----------
Total Estimated Costs 16,197,584 65,417,187 8,275,824 207,060 453,263 90,550,918 79,542,491
Amount Funded (16,197,584) (53,525,045) (838,237) (207,060) (453,263) (71,221,189) (63,466,005)
----------- ----------- --------- -------- -------- ----------- -----------
Total Not Yet Funded 0 11,892,142 7,437,587 0 0 19,329,728 16,076,485
=========== =========== ========= ======== ======== =========== ===========
NOTE:
(a) - Amount due to classification of expenditures for purposes of funding
request.
35
SCHEDULE 2
TO AMENDMENT NO. 2 TO PARTICIPATION AGREEMENT
Description of Mechanic's Liens
-------------------------------
1. Affidavit for Mechanic's Lien in the amount of $691,000.00 filed by
Spectrum Interiors of Ohio, Inc. and recorded as Instrument Number
199904230101687 in the Recorder's Office of Franklin County, Ohio.
2. Affidavit for Mechanic's Lien in the amount of $353,916.00 filed by
Accurate Fabrication, Inc. and recorded as Instrument Number
199906030109859 in the Recorder's Office of Franklin County, Ohio.
