EXHIBIT 10.83
AMENDMENT NO. 4 TO PARTICIPATION AGREEMENT
THIS AMENDMENT NO. 4 TO PARTICIPATION AGREEMENT, dated as of December
27, 2002 (this "AMENDMENT"), is entered into by and among XXX RESEARCH
CORPORATION, a Delaware corporation (the "LESSEE"), SCOTIABANC INC., a Delaware
corporation (subject to the definition of "Lessor" in Annex A to the
Participation Agreement (as defined below) the "LESSOR") and THE BANK OF NOVA
SCOTIA (subject to the definition of "Rent Purchaser" in the Participation
Agreement, the "RENT PURCHASER") and as Agent for the Rent Purchasers (in such
capacity, the "AGENT").
RECITALS
A. The Lessee, the Lessor, the Rent Purchaser and the Agent are
parties to that certain Participation Agreement, dated as of January 19, 2000
(as amended by that certain Amendment No. 1 to Participation Agreement and to
certain Operative Agreements, dated as of June 22, 2001, that certain Amendment
No. 2 to Participation Agreement and Limited Waiver, dated as of February 11,
2002, that certain Amendment No. 3 to Participation Agreement, dated as of March
31, 2002, and as the same may be amended, restated or otherwise modified
further, the "PARTICIPATION AGREEMENT").
B. The Lessee has requested an amendment to the EBITDAR covenant
in the Participation Agreement. The Participants are willing to amend the
Participation Agreement in the manner in which the Lessee desires, but only to
the extent, subject to the terms and conditions, and in reliance upon the
representations and warranties set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties hereto agree
as follows:
SECTION 1. DEFINITIONS. Capitalized terms used herein without definitions
shall have the meanings given to such terms in Annex A to the Participation
Agreement.
SECTION 2. AMENDMENTS TO PARTICIPATION AGREEMENT AND ANNEX A TO
PARTICIPATION AGREEMENT. The Participation Agreement is hereby amended as
follows:
2.1 A new definition is added to Annex A of the Participation Agreement
as follows:
"CONTROL AGREEMENT" shall mean the Securities Account Control
Agreement by and among Lessee, Agent, Lessor and The Bank of
Nova Scotia Trust Company (Cayman) Limited.
2.2 The definition of "COLLATERAL AGENT" in Annex A to the
Participation Agreement is hereby amended to read as follows:
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"COLLATERAL AGENT" shall mean The Bank of Nova Scotia, or, for
purposes of the Pledge Agreement, as set forth in the Recitals
thereto.
2.3 The definition of "OPERATIVE AGREEMENTS" in Annex A to the
Participation Agreement is hereby amended by adding a new item (e): "The Control
Agreement".
2.4 The definition of "VALUE" in Annex A to the Participation Agreement
is hereby amended to read as follows:
"VALUE" shall have the meaning given it in Section 1 of the
Pledge Agreement for purposes thereof, and, with respect to
the Collateral Account, shall mean the aggregate Dollar value
of the principal balances thereof on the date of
determination.
2.5 SECTION 5.4 of the Participation Agreement is hereby deleted in its
entirety and replaced with the following:
"Lessee shall deliver Pledged Collateral (as defined below) to
the Collateral Agent in an amount equal to 100% of the aggregate
outstanding Advances. Thereafter, the Lessee covenants to maintain the
Value of the Pledged Collateral at a level equal to 100% of the
aggregate outstanding Advances, and within two (2) Business Days after
receipt of notice from the Collateral Agent that the Value of the
Pledged Collateral is less than 100% of the aggregate outstanding
Advances, the Lessee shall be obligated to deliver Pledged Collateral
in an amount required to maintain the Value of the Pledged Collateral
at a level equal to 100% of the aggregate outstanding Advances. Lessee
hereby assigns, pledges, hypothecates, charges, mortgages, delivers and
transfers to Collateral Agent, for its benefit and the ratable benefit
of each of the Participants, and hereby grants to Collateral Agent, for
its benefit and the ratable benefit of each of the Participants, a
continuing first priority security interest in and against all right,
title and interest, whether beneficial or otherwise, of Lessee in and
to the following, whether now or hereafter existing or acquired by
Lessee (collectively, the "Pledged Collateral"): Account No. 4929
maintained by Lessee with The Bank of Nova Scotia Trust Company
(Cayman) Limited (the "Collateral Account"), and the securities,
securities entitlements or other investment property, instruments and
financial assets contained or at any time held or maintained in the
Collateral Account, together with all investment property, instruments
and financial assets substituted therefore or for any part thereof, all
interest, dividends, increases, profits, new financial assets or other
increments, distributions or rights of any kind received on account of
any of the foregoing, and all other income received in connection
therewith and all products or proceeds thereof (whether cash or
non-cash). For so long as Lessee maintains the Pledged Collateral in
accordance with this Section 5.4 the Applicable Margin shall be forty
basis points (0.40%)."
2.6 SECTION 9.3(i)(v) of the Participation Agreement is hereby modified
by replacing the amount "$450,000,000" in line two thereof with the amount
"$350,000,000".
2.7 SECTION 9.3(i)(vi) of the Participation Agreement is hereby deleted
in its entirety and replaced with the following:
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(vi) MINIMUM QUARTERLY EBITDAR.
(A) Beginning with the Fiscal Quarter
ending in June 2002 through and including
the Fiscal Quarter ending in June 2003,
maintain EBITDAR of not less than the
following for the applicable period:
----------------------------------------------------------
PERIOD MINIMUM EBITDAR
----------------------------------------------------------
For the Fiscal Quarter $ 5,000,000
ending in June 2002
----------------------------------------------------------
For the Fiscal Quarter $10,000,000
ending in September 2002
----------------------------------------------------------
For the Fiscal Quarter $10,000,000
ending in December 2002
----------------------------------------------------------
For the Fiscal Quarter $10,000,000
ending in March 2003
----------------------------------------------------------
For the Fiscal Quarter $15,000,000
ending in June 2003
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SECTION 3. REFERENCE TO AND EFFECT ON THE PARTICIPATION AGREEMENT. Upon
the effectiveness of this Amendment, each reference in the Participation
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of like
import shall mean and be a reference to the Participation Agreement as amended
by this Amendment, and each reference in any other document in which the
Participation Agreement is referenced shall also mean and be a reference to the
Participation Agreement as amended by this Amendment.
SECTION 4. REFERENCES TO "PLEDGED COLLATERAL". Upon the effectiveness of
this Amendment, each reference in the Operative Agreements to "Pledged
Collateral" shall, after the date hereof, be understood to refer to collateral
pledged pursuant to either or both of the Pledge Agreement and Section 5.4 of
the Participation Agreement.
SECTION 5. LIMITATION OF AMENDMENTS. The amendments set forth in SECTION
2, above, shall be limited precisely as written and shall not be deemed to (i)
be an amendment to any other term or condition of the Participation Agreement,
(ii) prejudice any right or remedy which any party may now have or may have in
the future under or in connection with the Participation Agreement or any other
Operative Agreement, or (iii) be a consent to any future amendment.
SECTION 6. REPRESENTATIONS AND WARRANTIES. In order to induce the
Participants to enter into this Amendment, the Lessee hereby represents and
warrants to each Participant as follows:
6.1 Immediately after giving effect to this Amendment (a) the
representations and warranties contained in the Participation Agreement and in
the other Operative Agreements
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(other than those which expressly speak as of a particular date, which shall be
true as of such date) are true, accurate and complete in all material respects
as of the date hereof and (b) no Default or Event of Default attributable to the
Lessee has occurred and is continuing;
6.2 The Lessee has the corporate power and authority to execute
and deliver this Amendment and to perform its obligations under the
Participation Agreement, as amended by this Amendment, and each of the other
Operative Agreements to which it is a party;
6.3 The certificate of incorporation, bylaws and other
organizational documents of the Lessee delivered to the Participants as a
condition precedent to the effectiveness of the Participation Agreement and the
other Operative Agreements are true, accurate and complete and have not been
amended, supplemented or restated, except to the extent that copies thereof have
been previously provided to Agent, and are and continue to be in full force and
effect;
6.4 The execution and delivery by the Lessee of this Amendment and
the performance by the Lessee of its obligations under the Participation
Agreement, as amended by this Amendment, have been duly authorized by all
necessary corporate action on the part of the Lessee;
6.5 The execution and delivery by the Lessee of this Amendment and
the performance by the Lessee of its obligations under the Participation
Agreement, as amended by this Amendment, do not and will not contravene (a) any
law or regulation binding on or affecting the Lessee, (b) the certificate of
incorporation, bylaws or other organizational documents of the Lessee, (c) any
order, judgment or decree of any court or other governmental or public body or
authority, or subdivision thereof, binding on the Lessee, or (d) any contractual
restriction binding on or affecting the Lessee; and
6.6 The execution and delivery by the Lessee of this Amendment and
the performance by the Lessee of its obligations under the Participation
Agreement, as amended by this Amendment, do not require any order, consent,
approval, license, authorization or validation of, or filing, recording or
registration with, or exemption by any governmental or public body or authority,
or subdivision thereof, except as already has been obtained or made.
SECTION 7. FEES AND EXPENSES. The Lessee agrees to pay to the Agent, upon
demand, the amount of any and all out-of-pocket expenses, including the
reasonable fees and expenses of its counsel, which the Agent may incur in
connection with the preparation, documentation, and negotiation of this
Amendment.
SECTION 8. CONDITIONS PRECEDENT TO EFFECTIVENESS. This Amendment shall be
deemed effective as of the date set forth in the preamble to this Amendment once
each of the following conditions shall have been satisfied:
(a) The Agent shall have received a copy of this Amendment
originally executed by the Lessee and the Rent Purchasers;
(b) The Agent shall have received a copy of the Control Agreement
originally executed by Lessee and the securities intermediary with respect to
the Collateral Account;
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(c) The Agent shall have received confirmation of the filing of a
UCC financing statement with respect to the Pledged Collateral; and
(b) In consideration of the Rent Purchasers agreeing to enter into
this Amendment, the Agent shall have received, for the ratable benefit of the
Rent Purchasers and the Lessor, in immediately available funds, an amendment fee
equal to 0.25% of the Aggregate Commitment Amount.
SECTION 9. FULL FORCE AND EFFECT; REAFFIRMATION. It is hereby agreed that
all terms and conditions of the Participation Agreement and the other Operative
Agreements, as previously amended to date, shall remain in full force and effect
as amended pursuant to the terms of this Amendment. The Lessee hereby reaffirms
its obligations under each of the Operative Agreements to which it is a party.
SECTION 10. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 11. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when so delivered shall be deemed an original, but
all such counterparts taken together shall constitute but one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above.
LESSEE XXX RESEARCH CORPORATION
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President of Finance and Treasurer
LESSOR SCOTIABANC INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
AGENT AND RENT PURCHASER THE BANK OF NOVA SCOTIA, as the Agent and as
the Rent Purchaser
By: /s/ X.X. Xxxxx
Name: X.X. Xxxxx
Title: Director, Technology Group
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