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EXHIBIT 10.94
EXECUTION COPY
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PARTICIPATION AGREEMENT
Dated as of March 30, 2001
among
SYMANTEC CORPORATION,
as the Lessee,
THE SYMANTEC 2001 TRUST,
as the Lessor,
WILMINGTON TRUST COMPANY,
THE VARIOUS BANKS, FINANCIAL INSTITUTIONS AND INSTITUTIONAL
LENDERS, OR THEIR INVESTMENT AFFILIATES WHICH ARE PARTIES HERETO
FROM TIME TO TIME, as the Holders,
THE VARIOUS BANKS, FINANCIAL INSTITUTIONS AND OTHER LENDING
INSTITUTIONS WHICH ARE PARTIES HERETO FROM TIME TO TIME, as the
Lenders,
FUJI BANK, LIMITED,
as the Documentation Agent,
KEYBANK NATIONAL ASSOCIATION,
as the Syndication Agent,
and
THE BANK OF NOVA SCOTIA,
as the Administrative Agent for the Lenders and the Holders and as the
Sole Lead Arranger
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TABLE OF CONTENTS
PAGE
SECTION 1. LOANS AND HOLDER ADVANCES.....................................................1
1.1 Loans.........................................................................1
1.2 Holder Advances...............................................................2
1.3 Restrictions on Lease Balance.................................................2
1.4 Interest on Loans.............................................................3
1.5 Yield on Holder Certificates..................................................3
1.6 Construction Period Holder Yield and Lessor Commitment Fees...................4
1.7 Interest Period Selection Elections...........................................4
1.8 Prepayments...................................................................4
1.9 Payments......................................................................5
1.10 Commitment Fee................................................................5
SECTION 2. SUMMARY OF TRANSACTIONS.......................................................5
2.1 Operative Agreements..........................................................5
2.2 Property Purchase.............................................................5
2.3 Construction of Improvements; Lease of Property...............................6
SECTION 3. THE CLOSING...................................................................6
3.1 Closing Date..................................................................6
SECTION 4. FUNDING OF ADVANCES; PLEDGED COLLATERAL.......................................6
4.1 General.......................................................................6
4.2 Procedures for Funding........................................................6
4.3 Allocation of Advances Between Land and Improvements..........................7
4.4 Pledged Collateral............................................................8
SECTION 5. CONDITIONS OF THE CLOSING AND ADVANCES........................................8
5.1 Conditions to the Holders' and Lenders' Obligations to Make Loans and
Holder Advances on the Initial Funding Date...................................8
5.2 Conditions to the Holders' and Lenders' Obligations to Make Loans and
Holder Advances on each Property Closing Date................................10
5.3 Conditions to the Holders' and the Lenders' Obligations to Make
Advances to Pay Project Costs for Construction on the Property or
Properties...................................................................13
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TABLE OF CONTENTS
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5.4 Completion Date Conditions...................................................15
5.5 Restrictions on Liens........................................................15
SECTION 6. REPRESENTATIONS AND WARRANTIES...............................................15
6.1 Representations and Warranties of the Trust Companies........................15
6.2 Representations and Warranties of the Borrower...............................17
6.3 Representations and Warranties of the Lessee.................................19
6.4 Representations and Warranties of the Lessee Upon each Funding Date..........24
6.5 Representations and Warranties of the Lessor Upon each Funding Date..........26
SECTION 7. PAYMENT OF CERTAIN EXPENSES..................................................27
7.1 Payment of Costs and Expenses................................................27
7.2 Brokers' Fees and Stamp Taxes................................................27
SECTION 8. OTHER COVENANTS AND AGREEMENTS...............................................28
8.1 Cooperation with the Lessee..................................................28
8.2 Covenants of the Trust Companies, the Trust, and the Holders.................28
8.3 Proceeds of Casualty.........................................................29
8.4 Lessee Covenants, Consent and Acknowledgment.................................30
8.5 Appointment of the Agent by the Lenders, the Holders and the Trust...........33
8.6 Release of Properties, etc...................................................34
SECTION 9. CREDIT AGREEMENT AND TRUST AGREEMENT.........................................34
9.1 Lessee's Credit Agreement Rights.............................................34
9.2 Lessee's Trust Agreement Rights..............................................35
SECTION 10. TRANSFER OF INTEREST.........................................................35
10.1 Restrictions on Transfer.....................................................35
10.2 Effect of Transfer...........................................................35
10.3 Disclosure of Information; Pledge Under Regulation A.........................36
SECTION 11. INDEMNIFICATION..............................................................37
11.1 General Indemnity............................................................37
11.2 Environmental Indemnity......................................................38
11.3 General Impositions Indemnity................................................39
11.4 LIBOR Lending Unlawful.......................................................44
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TABLE OF CONTENTS
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11.5 Deposits Unavailable.........................................................44
11.6 Increased Costs, etc.........................................................44
11.7 Funding Losses...............................................................46
11.8 Capital Adequacy.............................................................46
11.9 Special Tax Indemnity........................................................47
11.10 Indemnity Payments in Addition to Lease Obligations..........................48
11.11 Lessor Indemnification.......................................................48
11.12 Indemnifications Provided by the Lessor in Favor of the Other
Indemnified Persons..........................................................50
SECTION 12. DISTRIBUTION.................................................................50
12.1 Basic Rent...................................................................50
12.2 Purchase Payments by the Lessee..............................................51
12.3 Payment of Participant Balances..............................................51
12.4 Sales Proceeds of Remarketing of Properties..................................51
12.5 Supplemental Rent............................................................52
12.6 Distribution of Payments after Event of Default..............................52
12.7 Other Payments...............................................................53
12.8 Casualty and Condemnation Amounts............................................54
12.9 Order of Application.........................................................54
SECTION 13. MISCELLANEOUS................................................................54
13.1 Survival of Agreements.......................................................54
13.2 Notices......................................................................54
13.3 Counterparts.................................................................56
13.4 Terminations, Amendments, Waivers, Etc.; Unanimous Vote Matters..............56
13.5 Headings, etc................................................................58
13.6 Parties in Interest..........................................................58
13.7 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL; VENUE.......58
13.8 Severability.................................................................59
13.9 Liability Limited............................................................59
13.10 Rights of the Lessee.........................................................60
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TABLE OF CONTENTS
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13.11 Further Assurances...........................................................60
13.12 Financial Reporting/Tax Characterization.....................................60
13.13 Successors and Assigns.......................................................61
SECTION 14. RENEWALS.....................................................................61
14.1 Extensions of Maturity Date and Expiration Date..............................61
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SCHEDULES
1.2 - Holder Commitments and Addresses
1.9 - Agent's Payment Address
EXHIBITS
A - Form of Requisition - Section 4.2
B - Form of Lessee's Secretary's Certificate - Sections 5.1(e), (f) and (i)
C - Form of Lessee's Officer's Certificate - Section 5.1(g)
D - Form of Trust's Officer's Certificate - Section 5.1(p)
E - Form of Lessee Completion Certificate - Section 5.4(b)
F - Form of Lessee's Officer's Compliance Certificate - Section 8.4(a)(i)
ANNEX A - Rules of Usage and Definitions
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EXECUTION COPY
PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT, dated as of March 30, 2001 (as amended,
extended, supplemented, modified or restated from time to time, this
"Agreement"), is entered into by and among SYMANTEC CORPORATION, a Delaware
corporation (the "Lessee" or "Construction Agent"), THE SYMANTEC 2001 TRUST, a
Delaware business trust (the "Trust," "Borrower" or "Lessor"), the entity
serving as trustee of the Trust (together with any institutional co-trustee and
any successor trustee, the "Trust Companies"), the various banks, financial
institutions and institutional lenders, or their investment affiliates, which
are party hereto from time to time as holders of Certificates (individually, a
"Holder" and collectively, the "Holders"), the various banks, financial
institutions and institutional lenders which are party hereto from time to time
as lenders (individually, a "Lender" and collectively, the "Lenders"), FUJI
BANK, LIMITED, as the documentation agent, KEYBANK NATIONAL ASSOCIATION as the
syndication agent and THE BANK OF NOVA SCOTIA, as the administrative agent for
the benefit and on behalf of the Lenders and with respect to the Security
Documents, as agent for the benefit and on behalf of the Lenders and the
Holders, to the extent of their respective interests, and as the Sole Lead
Arranger (in such capacity, the "Agent"). Capitalized terms used but not
otherwise defined in this Agreement shall have the meanings set forth in
ANNEX A.
In consideration of the mutual agreements herein contained and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. LOANS AND HOLDER ADVANCES.
1.1 LOANS.
(a) Subject to the terms and conditions of this Agreement and
the other Operative Agreements, and in reliance on the representations and
warranties of each of the parties hereto contained herein or made pursuant
hereto, the Lenders have agreed to make Loans to the Trust from time to time in
an aggregate principal amount of up to $62,400,000 in order for the Trust to
acquire each Property to develop the Land related thereto, and to construct the
Improvements thereon in accordance with the Construction Agency Agreement, and
for other purposes described herein, and in consideration of the receipt of
proceeds of the Loans, the Trust will issue the Notes. The Loans shall be made
and the Notes shall be issued pursuant to the Credit Agreement. Pursuant to
SECTION 4 and Section 2 of the Credit Agreement, the Loans will be made to the
Trust at the request of the Construction Agent, in consideration for the
Construction Agent's agreement, for the benefit of the Holders, pursuant to the
Construction Agency Agreement, to purchase each Property and to develop the Land
related thereto and to construct the Improvements thereon in accordance with the
applicable Plans and Specifications.
(b) The Loans and the obligations of the Trust under the
Credit Agreement shall be secured by, inter alia, (i) a first priority
assignment of the Lease, granted pursuant to the Assignment of Lease and
consented to by the Lessee pursuant to the Consent to Lease Assignment, (ii) a
first priority assignment of the Construction Agency Agreement and all
Construction Agency Agreement Supplements thereto granted pursuant to the
Contract
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Assignment and consented to by the Construction Agent pursuant to the Consent to
Contract Assignment; and (iii) a first priority mortgage lien (subject to the
Permitted Exceptions) on each Property and the Lease thereof pursuant to a Deed
of Trust joined by the Lessee.
1.2 HOLDER ADVANCES.
(a) Subject to the terms and conditions of this Agreement and
the other Operative Agreements, including the satisfaction of all applicable
conditions precedent set forth in SECTION 5, and in reliance on the
representations and warranties of each of the parties hereto contained herein or
made pursuant hereto, on each Funding Date, each Holder shall make an advance of
immediately available funds (each, a "Holder Advance"), on a pro rata basis, to
the Trust, based on such Holder's Holder Commitment as set forth on SCHEDULE
1.2; provided, that the Agent shall have received a Requisition from the
Construction Agent in accordance with SECTION 4. The aggregate amount of all
Holder Advances shall be not less than four percent (4.0%) of the amount of all
Advances requested; provided, that no Holder shall be obligated to make any
Holder Advance if, after giving effect to the proposed Holder Advance, the
outstanding aggregate amount of the Holder Advances of such Holder would exceed
such Holder's Holder Commitment; and provided, further, that the aggregate
amount of Holder Advances shall not, at any time, exceed the aggregate amount of
all Holder Commitments.
(b) No prepayment or any other payment with respect to any
Advance shall be permitted if such prepayment or payment would cause the
outstanding Holder Advances to equal less than four percent (4.0%) of the
outstanding amount of all Advances, except in connection with the termination or
expiration of the Term, or in connection with the exercise of remedies relating
to the occurrence of an Event of Default. To the extent the Trust, in its
capacity as Borrower under the Credit Agreement, shall have elected to terminate
or reduce the amount of the aggregate Lender Commitments pursuant to Section
2.4(b) of the Credit Agreement, a pro rata election shall be deemed to have been
made with respect to the Holder Commitment. On any date on which the aggregate
Lender Commitments shall be reduced to zero ($0) as a result of a Credit
Agreement Event of Default, the aggregate Holder Commitments shall also
automatically be reduced to zero ($0) and the Trust shall prepay the Holder
Advances in full, together with accrued but unpaid Holder Yield thereon and all
other amounts owing under the Certificates.
(c) The representations, warranties, covenants and agreements
of the Holders herein and in the other Operative Agreements are several, and not
joint or joint and several.
1.3 RESTRICTIONS ON LEASE BALANCE. The Lease Balance shall not exceed
the lesser of (x) the Estimated Project Costs and (y) 110 percent (110.0%) of
the Fair Market Sales Value of any Property, as set forth in the Appraisal of
such Property delivered pursuant to SECTION 5.2. The Trust shall use the Holder
Advances to pay a portion of the Project Costs simultaneously and pro rata with
the fundings by the Lenders.
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1.4 INTEREST ON LOANS.
(a) Each Loan shall accrue interest computed and payable in
accordance with the terms of the Credit Agreement. Each Loan shall become due
and payable at the dates and times provided under the Credit Agreement.
(b) The Lessor shall, in accordance with SECTION 12,
distribute the Debt Basic Rent and all other amounts due with respect to the
Loans paid to the Lessor by the Lessee under the Lease from time to time.
(c) Interest accruing at the Overdue Rate shall be payable on
demand.
1.5 YIELD ON HOLDER CERTIFICATES.
(a) The amount of the Holder Advances outstanding from time to
time shall accrue yield ("Holder Yield") at the Yield Rate, calculated using the
actual number of days elapsed and, when the Yield Rate is based on the Adjusted
LIBOR, a 360-day year basis and, if calculated at the ABR, a 360-day year basis
if the ABR is calculated at the Federal Funds Effective Rate, and a 365-, or, if
applicable, 366-, day year basis if the ABR is calculated at the Base Rate.
(b) Each Holder shall receive its pro rata portion of the
Holder Yield on Holder Advances from the Trust Estate. Payment of Holder Yield
to each Holder shall be made on each Scheduled Interest Payment Date, or as
otherwise provided herein, in the Trust Agreement or in the Credit Agreement. If
not repaid sooner, the outstanding aggregate amount of Holder Advances shall be
due in full on the Maturity Date. On the Maturity Date, the Trust shall pay to
each Holder its portion of the Holder Advances then due, together with all
accrued but unpaid Holder Yield and all other amounts due to such Holder from
the Trust.
(c) Holder Yield on outstanding Holder Advances shall be due
and payable by the Holders during the Construction Period as provided in SECTION
1.6 and thereafter the Trust shall distribute to the Holders the Holder Yield
and all other amounts due with respect to the Holder Advances paid to the Trust
by the Lessee under the Lease, provided, that Holder Yield accruing at the
Overdue Rate shall be payable on demand and (ii) each prepayment of Holder
Advances shall be accompanied by accrued Holder Yield to the date of such
prepayment on the amount prepaid and breakage costs, if any.
(c) The calculation of Holder Yield shall be made by the
Agent, such calculation being conclusive and binding on the Trust and the
Holders in the absence of manifest error. The Agent shall distribute, in
accordance with SECTION 12, the Lessor Basic Rent and all other amounts due with
respect to the Holder Advances paid to the Lessor by the Lessee under the Lease
or the other Operative Agreements from time to time.
(e) If all or any portion of the Holder Advances, any Holder
Yield payable thereon, or any other amount payable hereunder shall not be paid
within three (3) days after the same is due (whether at stated maturity,
acceleration thereof or otherwise), such overdue amount shall, without limiting
the rights of the Holders under any Operative Agreement, bear interest at a rate
per annum equal to the Overdue Rate, in each case from the date of nonpayment
until paid
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(whether before or after judgment). Upon the occurrence, and during the
continuance of an Event of Default, the amount of, and, to the extent permitted
by law, interest on the Loans and Holder Yield on the Holder Advances and any
other amounts owing hereunder or under the other Operative Agreements shall bear
interest, payable on demand, at a per annum rate equal to the Overdue Rate.
1.6 CONSTRUCTION PERIOD HOLDER YIELD AND LESSOR COMMITMENT FEES.
During the Construction Period, on each date which is one (1) Business Day prior
to any date on which the Holders are entitled to a payment on account of Holder
Yield or their pro rata share of the Commitment Fee, the Construction Agent
shall be deemed to have requested that the Holders make Holder Advances, with an
Interest Period of one month, in an amount equal to their respective Holder
Yield or Commitment Fee due and payable on such date solely for the purpose of
paying such Holder Yield or Commitment Fee which are then due and payable, which
Holder Advances shall not be paid to the Construction Agent or any third party
under the Operative Agreements but shall be capitalized as part of Project
Costs.
1.7 INTEREST PERIOD SELECTION ELECTIONS. By delivering an Interest
Period Selection Notice to the Trust and the Agent with respect to Holder
Advances and Loans, respectively, the Lessee may from time to time during the
Term irrevocably select, on not less than three (3) nor more than five (5)
Business Days' notice (other than the initial Interest Period with respect to
the Advance to be made on the Closing Date, which such Advance is to bear
interest at a rate equal to the ABR and notice may be given on the Closing
Date), the duration for the next succeeding Interest Period; provided, however,
that (a) in the absence of a delivery of an Interest Period Selection Notice
with respect to any Loan or Holder Advance at least three (3) Business Days
before the last day of the then current Interest Period with respect thereto,
the Lessee shall be deemed to have selected that such Loan or Holder Advance
have an Interest Period of one (1) month, (b) each such selection shall be
prorated among the applicable outstanding Loans and Holder Advances of all
Financing Parties, (c) the outstanding Loans and Holder Advances may not be
apportioned into more than three (3) separate Interest Periods at any one time,
and (d) only Interest Periods of one month shall be permitted during the
Construction Period. Each Interest Period Selection Notice so delivered or
deemed delivered by the Lessee shall be deemed an effective election by the
Borrower of the method for computing interest on the Loans under the Credit
Agreement.
1.8 PREPAYMENTS.
(a) VOLUNTARY PREPAYMENTS. The Lessee shall have the right to
prepay an amount equal to the aggregate outstanding Lease Balance in whole, but
not in part, pursuant to the exercise of the purchase options permitted under
the Lease or the Construction Agency Agreement.
(b) MANDATORY PREPAYMENTS.
(i) If at any time the sum of the aggregate amount of
outstanding Loans and Holder Advances shall exceed the Aggregate Commitment
Amount, the Lessee shall immediately make payment on the Loans or Holder
Advances in an amount sufficient to eliminate such excess. Payments required to
be made hereunder shall be applied first to ABR
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Loans or ABR Holder Advances and second to LIBOR Loans or LIBOR Holder Advances
in direct order of their Interest Period maturities.
(ii) The Borrower shall prepay or repay the Loans and
the Holder Advances with the proceeds of all amounts payable by the Lessee
pursuant to Article XV, XVI, XVII, XX or XXI of the Lease or Articles IV or V
of the Construction Agency Agreement, and such prepayments or repayments shall
be applied to the Loans and the Holder Advances in the manner set forth in
SECTION 12.
(c) NOTICE. The Lessee will provide irrevocable notice to the
Agent of any prepayment of Loans or Holder Advances at least three (3) Business
Days prior to the date of prepayment.
1.9 PAYMENTS. All payments (including prepayments) to be made by the
Lessee hereunder and under any other Operative Agreement, whether on account of
Holder Advances, Holder Yield, Loans or interest thereon or otherwise, shall be
made without setoff, deduction or counterclaim and shall be made prior to 1:00
p.m., New York City time, on the due date thereof to the Agent for the account
of the Lenders and the Holders, at the Agent's office specified in SCHEDULE 1.9,
in Dollars and in immediately available funds. Subject to the definition of
"Interest Period" in ANNEX A, whenever any payment under this Agreement or any
other Operative Agreement shall be stated to be due on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time in such case shall be included in the computation of
interest, Holder Yield and fees payable pursuant to the Operative Agreements, as
applicable and as the case may be.
1.10 COMMITMENT FEE. Each Holder and each Lender shall be entitled to
receive its pro rata share of the Commitment Fee. Such fees shall be payable
monthly in arrears based on the daily utilization for that month as calculated
by the Agent and (a) in the case of that portion of the Commitment Fee payable
to the Holder, pursuant to SECTION 1.6, and (b) in the case of that portion of
the Commitment Fee payable to the Lender, pursuant to Section 2.3(b) of the
Credit Agreement.
SECTION 2. SUMMARY OF TRANSACTIONS.
2.1 OPERATIVE AGREEMENTS. On the Closing Date, each of the parties
hereto shall execute and deliver, as applicable, this Agreement, the
Construction Agency Agreement, the Lease, the Credit Agreement, the Notes, the
Trust Agreement, the Certificates, the Pledge Agreement, the Deed of Trust and
such other Operative Agreements and documents, instruments, certificates and
opinions of counsel as agreed to by the parties hereto.
2.2 PROPERTY PURCHASE. On each Property Closing Date and subject to
the terms and conditions of this Agreement, (a) the Holders will each make
Holder Advances in accordance with SECTIONS 1 and 4 and the terms and provisions
of the Trust Agreement; (b) the Lenders will each make Loans in accordance with
SECTIONS 1 and 4 and the terms and provisions of the Credit Agreement; (c) the
Trust will purchase and acquire good and marketable title by Deed or Deeds the
Property or Properties identified by the Construction Agent in any Construction
Agency
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Agreement Supplement, and grant the Lessor and/or the Agent a lien on such
Property by execution of the required Security Documents.
2.3 CONSTRUCTION OF IMPROVEMENTS; LEASE OF PROPERTY. On each Property
Closing Date, the Lessor and the Construction Agent will execute and deliver (i)
a Construction Agency Agreement Supplement, pursuant to which the Lessee will
agree to act as the Construction Agent and to perform the Lessor's obligations
under the applicable Construction Contracts, (ii) a Lease Supplement, pursuant
to which the Lessor will lease, for the Term, all of its right, title and
interest in the applicable Property to the Lessee, and (iii) a Memorandum of
Lease.
SECTION 3. THE CLOSING.
3.1 CLOSING DATE. All documents and instruments required to be
delivered on the Closing Date and any subsequent Property Closing Date shall be
delivered at the offices of Xxxxxx Godward LLP, San Francisco, California or at
such other location as may be determined by the Trust, the Agent and the Lessee.
SECTION 4. FUNDING OF ADVANCES; PLEDGED COLLATERAL.
4.1 GENERAL. To the extent funds have been made available to or
advanced to the Trust as Loans by the Lenders and as Holder Advances by the
Holders, the Trust will make advances of such funds to the Construction Agent
from time to time in accordance with the terms and conditions of this Agreement
and the other Operative Agreements in order to provide sufficient funds to: (i)
allow the Trust, at the direction of the Lessee, to acquire the Property in
accordance with the terms of this Agreement and the other Operative Agreements;
(ii) allow the Trust, on behalf of the Lessee, to pay Transaction Expenses;
(iii) permit the Construction Agent to construct the Improvements in accordance
with the applicable Plans and Specifications and the terms of the Construction
Agency Agreement and any Construction Agency Agreement Supplement thereto, the
Lease, the applicable Construction Contracts and the other Operative Agreements;
and (iv) pay all other Project Costs. The Participants shall have no obligation
to fund Loans or Holder Advances, and the Trust shall have no obligation to fund
any Advance to pay for Property Acquisition Costs, the construction of any
Improvements or other Project Costs until the applicable conditions precedent
set forth in SECTION 5 have been satisfied.
4.2 PROCEDURES FOR FUNDING.
(a) Not less than three (3) Business Days prior to each
proposed Funding Date other than the initial Advance to be made on the initial
Funding Date, where such Advance is to bear interest and Holder Yield at a rate
equal to the ABR, the Construction Agent shall deliver to the Trust and the
Agent a requisition, appropriately completed, in the form of EXHIBIT A (a
"Requisition").
(b) Each Requisition shall: (i) be irrevocable, (ii) request
funds in an amount that is not in excess of the total aggregate amount of the
Available Commitments at such time, and (iii) request that the Holders make
Holder Advances and that the Lenders make Loans to the Trust for the payment of
Property Acquisition Costs or other Project Costs which were not the subject of,
and funded pursuant to, a prior Requisition, in each case as specified in such
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Requisition. The Lessee shall not request more than one (1) Funding Date with
respect to any single Property during any calendar month.
(c) Subject to the satisfaction of the applicable conditions
precedent set forth in SECTION 5, (i) the Lenders shall make Loans based on
their respective Lender Commitments to the Borrower in an aggregate amount equal
to ninety-six percent (96%) of the amount specified in any Requisition plus any
additional amount of Transaction Expenses as referenced in SECTION 7 and any
additional amount respecting any indemnity payment as referenced in SECTION
11.12, unless any such funding of Transaction Expenses or any indemnity payment
is declined in writing by each Lender and each Holder (such decision to be in
the sole discretion of each Lender and each Holder) up to an aggregate principal
amount equal to the aggregate of the Available Lender Commitments; (ii) the
Holders shall make Holder Advances based on their respective Holder Commitments
in an aggregate amount equal to four percent (4%) of the amount specified in
such Requisition plus any additional amount of Transaction Expenses as
referenced in SECTION 7 and any additional amount respecting any indemnity
payment as referenced in SECTION 11.12, unless any such funding of Transaction
Expenses or any indemnity payment is declined in writing by each Lender and each
Holder (such decision to be in the sole discretion of each Lender and each
Holder), up to an amount equal to the Available Commitments; and (iii) the total
amount of such Loans and Holder Advances made on such date shall (x) be used by
the Trust to pay Project Costs or (y) be advanced by the Trust on the date of
such Advance to the Lessee to pay Project Costs, as applicable. The Construction
Agent agrees that it cannot incur Project Costs (i) unless the Lessee, as
Construction Agent, has complied with the applicable provisions of SECTION 5 or
(ii) which would result in the Lease Balance exceeding the Aggregate Commitment
Amount. Notwithstanding that the Operative Agreements state that Advances shall
be directed to the Trust, each Advance shall in fact be directed to the Lessee
(for the benefit of the Trust) and applied by the Lessee (for the benefit of the
Trust) pursuant to the requirements imposed on the Trust under the Operative
Agreements.
(d) All Operative Agreements which are to be delivered to the
Trust, the Agent, the Lenders or the Holders shall be delivered to the Agent, on
behalf of the Trust, the Agent, the Lenders or the Holders, and such items shall
be delivered with originals sufficient for the Trust, the Agent, each Lender and
each Holder (except for Notes, certificates, bills of sale, and chattel paper
originals, with respect to which in each case there shall be only one original).
All other items which are to be delivered to the Trust, the Agent, the Lenders
or the Holders shall be delivered to the Agent, on behalf of the Trust, the
Agent, the Lenders or the Holders, and such other items shall be held by the
Agent. To the extent any such other items are requested in writing from time to
time by the Trust, any Lender or any Holder, the Agent shall provide a copy of
such item to the party requesting it.
(e) Notwithstanding the completion of a Property Closing Date,
each condition precedent set forth in SECTION 5.2 may be subsequently enforced
by the Agent (unless such has been expressly waived in writing by the Agent).
4.3 ALLOCATION OF ADVANCES BETWEEN LAND AND IMPROVEMENTS. In the
event the Fair Market Sales Value of any Land purchased and leased pursuant to
the Operative Agreements, as set forth in the Appraisal, is greater than
twenty-five percent (25.0%) of the aggregate Fair Market Sales Value of such
Property as set forth in the Appraisal, Lessor shall
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determine a separate Land Investment Balance and Improvement Investment Balance
for such Property, and Lessee shall execute and deliver a separate Lease
Supplement for each of the Land and Improvements.
4.4 PLEDGED COLLATERAL. Lessee shall deliver Pledged Collateral to
and maintain such Pledged Collateral with the Collateral Agent or the Depositary
Bank, as applicable, in the amount set forth in and pursuant to the terms and
conditions of the Pledge Agreement. No Advances shall be made unless the Agent
shall have received on the Funding Date for such Advance confirmation from the
Depositary Bank that the Value of the Pledge Collateral equals or exceeds that
amount which is required by Section 3.1(a) of the Pledge Agreement. The Pledged
Collateral shall be held and administered in accordance with the Pledge
Agreement.
SECTION 5. CONDITIONS OF THE CLOSING AND ADVANCES.
5.1 CONDITIONS TO THE HOLDERS' AND LENDERS' OBLIGATIONS TO MAKE LOANS
AND HOLDER ADVANCES ON THE INITIAL FUNDING DATE. The agreement of each Lender to
make Loans, and of each Holder to make Holder Advances on the initial Funding
Date, and the agreement of the Trust to acquire the Property or Properties, as
applicable, on the initial Funding Date, is subject to the satisfaction,
immediately prior to or concurrently therewith, of the following conditions
precedent:
(a) OPERATIVE AGREEMENTS. Each of the Operative Agreements
entered into on the Closing Date or subsequently shall have been duly
authorized, executed, acknowledged (if required) and delivered by the parties
thereto and shall be in full force and effect, and no Default shall exist
thereunder (both before and after giving effect to the transactions contemplated
by the Operative Agreements), and the Agent, the Lenders, the Holders and the
Lessor shall have received a fully executed copy of each of the Operative
Agreements (other than the Notes of which the Agent shall have received the
originals).
(b) TAXES. All taxes, fees and other charges in connection
with the execution, delivery, and, where applicable, recording, filing and
registration of the Operative Agreements shall have been paid or provisions for
such payment shall have been made to the reasonable satisfaction of the Agent
and the Lessor.
(c) LITIGATION. No action or proceeding shall have been
instituted before any Governmental Authority, nor shall any order, judgment or
decree have been issued or proposed to be issued by any Governmental Authority
(i) to set aside, restrain, enjoin or prevent the full performance of this
Agreement, any other Operative Agreement or any of the transactions contemplated
hereby or thereby or (ii) which is reasonably likely to have a Material Adverse
Effect.
(d) LEGAL REQUIREMENTS. In the opinion of the Agent, the
Lessor and their respective counsel, the transactions contemplated by the
Operative Agreements do not and will not violate in any material respect any
Legal Requirements and do not and will not subject the Lenders, the Holders or
the Lessor to any adverse regulatory prohibitions or constraints.
(e) CORPORATE PROCEEDINGS OF THE LESSEE. The Agent and the
Lessor shall have received a copy of the resolutions or minutes of the Board of
Directors of the Lessee, in
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form and substance reasonably satisfactory to the Agent and the Lessor,
authorizing the execution, delivery and performance of this Agreement and the
other Operative Agreements to which it is a party, certified by the Secretary or
an Assistant Secretary of the Lessee as of the Closing Date, which certification
shall be in the form attached as EXHIBIT B.
(f) LESSEE INCUMBENCY CERTIFICATE. The Agent and the Lessor
shall have received a certificate of the Lessee, dated as of the Closing Date,
as to the incumbency and signature of the officers of the Lessee executing any
Operative Agreement, executed by the Secretary or any Assistant Secretary of the
Lessee, which certificate shall be in the form attached as EXHIBIT B.
(g) LESSEE'S OFFICER'S CERTIFICATE. The Agent and the Lessor
shall each have received a certificate of the president or any vice president of
the Lessee and Construction Agent, dated as of the Closing Date, in the form
attached as EXHIBIT C, stating that (i) each and every representation and
warranty of the Lessee and the Construction Agent contained in the Operative
Agreements to which it is a party is true and correct in all material respects
on and as of the Closing Date; (ii) no Default or Event of Default has occurred
and is continuing under any Operative Agreement; (iii) each Operative Agreement
to which the Lessee and the Construction Agent are a party is in full force and
effect with respect to it; and (iv) the Lessee and the Construction Agent have
duly performed and complied in all material respects with all covenants,
agreements and conditions contained herein or in any Operative Agreement
required to be performed or complied with by each on or prior to the Closing
Date.
(h) GOOD STANDING. The Agent and the Lessor shall have
received (i) Certificates of the Secretaries of the States of Delaware, Oregon
and California, each dated as of a recent date stating that the Lessee is a
corporation in good legal standing under the laws of such states, and (ii) a
Certificate of the Franchise Tax Board of the State of California dated as of a
recent date stating that the Lessee is in good standing with such agency.
(i) LESSEE'S CORPORATE DOCUMENTS. The Agent and the Lessor
shall have received true and complete copies of the certificate of incorporation
and bylaws of the Lessee, certified as of the Closing Date as complete and
correct copies thereof by the Secretary or an Assistant Secretary of the Lessee,
which certification shall be in the form attached as EXHIBIT B.
(j) LEGAL OPINIONS.
(i) The Agent and the Lessor shall have received
executed and customary legal opinions of Pillsbury Winthrop LLP, general counsel
to the Lessee and Hershner, Hunter, Xxxxxxx, Xxxxx & Xxxxx, LLP, Oregon counsel
to the Lessee, each in form and substance acceptable to the Agent.
(ii) The Lessee, the Agent, the Holders and the Lenders
shall have received the executed legal opinion of Xxxxxxxx, Xxxxxx & Finger,
counsel to the Lessor, in form and substance acceptable to the Agent.
(k) LIEN SEARCHES. The Lessor and the Agent shall have
received the results of a recent search by a Person reasonably satisfactory to
the Agent, of the Uniform Commercial Code, judgement and tax lien filings which
may have been filed in States of Oregon, Delaware,
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California and the Commonwealth of Virginia with respect to personal property of
the Lessee, and the results of such search shall be satisfactory to the Lessor
and the Agent.
(l) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Lessee and the Lessor contained herein and in each of the
other Operative Agreements shall be true and correct in all material respects.
(m) PERFORMANCE OF AGREEMENTS. The parties hereto and thereto
shall have performed in all material respects their respective agreements to be
performed on or prior to the initial Funding Date contained herein and in the
other Operative Agreements on or prior to the initial Funding Date.
(n) REQUISITION. The Agent and the Lessor shall have received
a fully-executed counterpart of a Requisition, appropriately completed.
(o) FEES. The Agent, the Lessor, the Holders and the Lenders
shall have received the fees pursuant to the Fee Letter.
(p) LESSOR CERTIFICATE. The Agent shall have received a
certificate, duly executed on behalf of the Lessor, dated as of the Closing
Date, in the form attached as EXHIBIT D, stating that (i) each and every
representation and warranty of the Lessor contained in the Operative Agreements
to which it is a party is true and correct on and as of the Closing Date, (ii)
each Operative Agreement to which it is a party is in full force and effect with
respect to it, and (iii) Lessor has duly performed and complied with all
covenants, agreements and conditions contained herein and in any other Operative
Agreement required to be performed or complied with by it on or prior to the
Closing Date.
(q) TRUST COMPANY CERTIFICATES. The Agent shall have received
from each Trust Company (i) a certificate of the Secretary, an Assistant
Secretary, Trust Officer or Vice President of the Trust Company in such form as
is acceptable to the Agent, attaching and certifying (A) the resolutions duly
authorizing the execution, delivery and performance by such Trust Company of
each of the Operative Agreements to which it is or will be a party, (B) such
Trust Company's articles of association or other equivalent charter documents,
and its bylaws, as the case may be, certified as of a recent date by an
appropriate officer of such Trust Company, and (C) the incumbency and signature
of persons authorized to execute and deliver on such Trust Company's behalf the
Operative Agreements to which it is a party and (ii) a certificate from the
applicable governmental authority indicating that the Trust Company is in good
standing.
5.2 CONDITIONS TO THE HOLDERS' AND LENDERS' OBLIGATIONS TO MAKE LOANS
AND HOLDER ADVANCES ON EACH PROPERTY CLOSING DATE. The agreement of each Lender
to make Loans, and of each Holder to make Holder Advances on each Property
Closing Date, including the initial Property Closing Date, and the agreement of
the Trust to acquire the Property or Properties, as applicable, on such Property
Closing Date, is subject to the satisfaction, immediately prior to or
concurrently therewith, of the following additional conditions precedent:
(a) GOVERNMENTAL APPROVALS. All necessary (or, in the
reasonable opinion of the Agent, the Lessor and their respective counsel,
advisable) Governmental Actions shall have been obtained or made and be in full
force and effect with respect to each Property.
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(b) CONSENTS, LICENSES AND APPROVALS. The Agent and the Lessor
shall have received a certificate of the President or a Vice President of the
Lessee stating that any consents, authorizations, licenses and filings required
in connection with this Agreement and the acquisition of the Property or
Properties, as applicable, are in full force and effect, except such as are not
required for Completion of any Improvements in accordance with the terms of the
Operative Agreements. Each such consent, authorization, license and filing shall
be in form and substance reasonably satisfactory to the Agent and the Lessor.
(c) ENVIRONMENTAL AUDIT.
(i) The Lessor and the Agent shall have received not
less than ten (10) days prior to such Property Closing Date an Environmental
Audit with respect to the Property or Properties, as applicable, being acquired
on such Property Closing Date, prepared by the Environmental Engineer, and the
results of such Environmental Audit shall be in form and substance satisfactory
to the Lessor and the Agent, it being understood and agreed that the Lessee
agrees to remedy any environmental conditions requiring further action to comply
with Environmental Law indicated in such Environmental Audit within ninety (90)
days following such Property Closing Date, and to deliver to the Agent and the
Lessor, upon completion of such remedial action, a written statement by the
Environmental Engineer indicating that all such environmental conditions have
been remedied in compliance with Environmental Laws; and
(ii) the Lessor and the Agent shall have received
letters from the Environmental Engineer stating, among other things, that the
Agent, the Lenders, the Holders and the Lessor may rely in all respects on such
Environmental Audit and other environmental reports with respect to the Property
or Properties, as applicable, which have been prepared by such firm as if they
were addressed to them in all respects.
(d) SURVEY. The Lessor and the Agent shall have received, and
the Title Company shall have received, a survey of the Property or Properties,
as applicable, certified to the Lessor and the Title Company in a manner
satisfactory to them, dated as of a date within three (3) months of such
Property Closing Date, by an independent professionally licensed land surveyor
satisfactory to the Agent, which survey shall be made in accordance with the
Minimum Standard Detail Requirements for Land Title Surveys jointly established
and adopted by the American Land Title Association and the American Congress on
Surveying and Mapping in 1999, and, without limiting the generality of the
foregoing, there shall be surveyed and shown on such survey the following: (i)
the locations on such Property of all the buildings, structures and other
improvements, if any, and the established building setback lines; (ii) the lines
of streets abutting such Property; (iii) all access and other easements
appurtenant to such Property; (iv) all roadways, paths, driveways, easements,
encroachments and overhanging projections and similar encumbrances affecting
such Property, whether recorded, apparent from a physical inspection of the
Property or otherwise known to the surveyor; (v) any encroachments on any
adjoining property by the building, structures and improvements on such
Property; and (vi) if such Property is described as being on a filed map, a
legend relating the survey to said map.
(e) APPRAISAL. The Lessor and the Agent shall have received an
Appraisal covering the Property or Properties, as applicable, which Appraisal
shall show, as of the projected Completion Date for such Property or Properties,
the Fair Market Sales Value of such
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Property or Properties, and such Appraisal shall meet the other applicable
requirements set forth in the definition of the term "Appraisal" contained in
ANNEX A.
(f) TITLE. Title to the Property or Properties, as applicable,
being acquired on such Property Closing Date shall conform to the
representations and warranties set forth in SECTION 6.3.
(g) TITLE INSURANCE.
(i) The Agent and Lessor shall have received an owner's
title policy, or an unconditional written undertaking of the Title Company to
issue such insurance, dated as of such Property Closing Date, for the Property
or Properties being acquired on such Property Closing Date, insuring the Lessor
that the Lien of the Lease is a first and primary Lien in the Lessee's interest
in such Property or Properties; and the Lessor shall have received evidence
reasonably satisfactory to it that all premiums in respect of such policy have
been paid or provision made therefor.
(ii) The Agent shall have received with respect to the
applicable Deed of Trust a mortgage title policy or an unconditional written
undertaking of the Title Company to issue such insurance dated as of such
Property Closing Date; such policy shall (i) be in an amount equal to the amount
attributable to such Property (with a pending disbursements clause); (ii) be
issued at ordinary rates; (iii) insure that such Deed of Trust insured thereby
creates a valid first Lien on the Lessor's interest in the Lease and in the fee
title to such Property or Properties, free and clear of all defects and
encumbrances, except Permitted Exceptions; (iv) name the Agent for the benefit
of the Lenders as the insured thereunder; (v) be in the form of ALTA Loan Policy
- 1992; (vi) contain such endorsements and affirmative coverage as the Agent may
reasonably request, including mechanics' lien coverage, to the extent such
endorsements and coverage are available; and (vii) be issued by the Title
Company; and the Agent shall have received evidence reasonably satisfactory to
it that all premiums in respect of such policy, and all charges for mortgage
recording tax with respect to such Deed of Trust have been paid or provision
made therefor.
(h) TITLE DOCUMENTS. The Lessor and the Agent shall have
received evidence in form and substance satisfactory to them that all of the
requirements of Article 14 of the Lease shall have been satisfied.
(i) ACTIONS TO TRANSFER OWNERSHIP AND PERFECT LIENS. Each
applicable Deed, Memorandum of Lease, Assignment of Lease, Consent to Assignment
of Leases and Rents and Deed of Trust shall have been delivered to the Title
Company which shall have undertaken an obligation to promptly record the same
with the appropriate Governmental Authorities in the order set forth in this
paragraph, and the UCC Financing Statements with respect to the Property or
Properties shall have been delivered to the Title Company which shall have
undertaken an obligation to promptly file the same with the appropriate
Governmental Authorities. The Agent shall have received evidence in form and
substance satisfactory to it that arrangements have been made for the completion
of all filings, recordings, registrations and other actions, including the
filing of duly executed financing statements on form UCC-1, and each Deed of
Trust necessary,
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or in the opinion of the Agent, desirable to perfect the Liens created by the
Security Documents shall have been completed.
(j) SUFFICIENT FUNDS. Based on the Budget, the Available
Commitments will be sufficient to finance the purchase of the Property or
Properties, as applicable, and the construction of the Improvements and to pay
the other Project Costs.
(k) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Lessee, the Lessor and the Trust Company contained herein and
in each of the other Operative Agreements shall be true and correct in all
material respects.
(l) REQUISITION. To the extent not already provided on such
Property Closing Date, the Agent and the Lessor shall have received a
fully-executed counterpart of a Requisition, appropriately completed.
(m) LESSOR CERTIFICATE. To the extent not already provided on
the applicable Property Closing Date, the Agent shall have received a
certificate, duly executed on behalf of the Lessor, dated as such Property
Closing Date, in such form as is acceptable to the Agent, stating that (i) each
and every representation and warranty of the Lessor contained in the Operative
Agreements to which it is a party is true and correct on and as of the Closing
Date, (ii) each Operative Agreement to which it is a party is in full force and
effect with respect to it and (iii) the Lessor has duly performed and complied
with all covenants, agreements and conditions contained herein and in any other
Operative Agreement required to be performed or complied with by it on or prior
to the Closing Date.
(n) NO DEFAULT. There shall not have occurred and be
continuing any Default or Event of Default under any of the Operative Agreements
attributable to the Lessee or the Construction Agent and no such Default or
Event of Default under any of the Operative Agreements will occur after giving
effect to such Property Closing Date.
(o) LEGAL OPINIONS. The Agent and the Lessor shall have
received executed and customary legal opinions from Lessee's counsel qualified
to give an opinion on the law of the jurisdiction in which the applicable
Property is located, each in form and substance acceptable to the Agent.
5.3 CONDITIONS TO THE HOLDERS' AND THE LENDERS' OBLIGATIONS TO MAKE
ADVANCES TO PAY PROJECT COSTS FOR CONSTRUCTION ON THE PROPERTY OR PROPERTIES.
(a) LESSOR'S CONDITIONS. The obligations of the Holders to
make Holder Advances to the Lessor and of the Lessor to advance the proceeds of
Loans from the Lenders and Holder Advances from the Holders on each Funding Date
for the purpose of providing funds to or at the direction of the Construction
Agent necessary to pay for the construction of the Improvements or Transaction
Expenses, or other Project Costs (other than Property Acquisition Costs and
Transaction Expenses payable on the initial Funding Date or any Property Closing
Date) are subject to the satisfaction or waiver of the following additional
conditions precedent:
(i) REPRESENTATION AND WARRANTIES. On such date, the
representations and warranties of the Lessee and the Construction Agent
contained herein and in
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each of the other Operative Agreements shall be true and correct, in all
material respects, unless such representations or warranties speak as of a
particular date, in which case they shall be true and correct as of such date.
(ii) PERFORMANCE OF AGREEMENTS. The Lessee and the
Construction Agent shall have performed their respective agreements contained
herein and in the other Operative Agreements on or prior to such Funding Date.
(iii) REQUISITION. The Agent and Lessor shall have
received a fully-executed counterpart of a Requisition, appropriately completed.
(iv) SUFFICIENT FUNDS; PROGRESS OF CONSTRUCTION. Based
upon the Budget, (a) the Available Commitments will be sufficient to complete
the Improvement or Improvements for which the Requisition relates and (b) the
Budget is In Balance. Based on the construction schedule (x) no delays in
construction attributable to Force Majeure Events have occurred such that
Completion will not be achieved on or prior to the Commitment Termination Date
and (y) Completion will be achieved on or prior to the Commitment Termination
Date.
(v) NO DEFAULT. There shall not have occurred and be
continuing any Default or Event of Default under any of the Operative Agreements
attributable to the Lessee or the Construction Agent and no such Default or
Event of Default under any of the Operative Agreements will occur after giving
effect to the Advance requested by such Requisition.
(vi) LIEN WAIVERS OR TITLE ENDORSEMENT. The Agent shall
have received (A) copies of lien waivers, in form and substance reasonably
satisfactory to the Agent, from each contractor, subcontractor, supplier and
materialman which the Lessee reasonably believes will receive total compensation
for services rendered or materials supplied in connection with the construction
of the related Improvements of $250,000 or more; each such lien waiver shall
evidence that such contractor, subcontractor, supplier or materialmen has been
paid in full for all work performed or materials supplied to the date of the
request for such Advance, other than work which is the subject of such request
or (B) an updated title search from the Title Company with an endorsement to the
Lender's title insurance policy insuring the continuing validity and priority of
the Agent's Liens subsequent to such Advance.
(vii) PERMITS. The Lessee shall have received all
required building and other permits and authorizations permitting construction
of the Improvements on the Land in accordance with the applicable Plans and
Specifications.
(viii) INSURANCE. The Lessee, as Construction Agent, shall
have obtained the hazard and builder's risk insurance policies insuring the
construction of the Property or Properties, as applicable, required by Article
VI of the Construction Agency Agreement.
(ix) CONSTRUCTION SCHEDULE. The Agent shall have
received a copy of the schedule prepared by or at the direction of the
Construction Agent showing the estimated timetable (a) for construction of the
initial Improvements to be constructed on the Land, including construction
milestones in critical path form; and (b) for the making of Loans and Holder
Advances.
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(x) BUDGET. The Agent and the Lessor shall have
received a copy of the Budget with respect to the construction of the initial
Improvements to be constructed on the Land, and such Budget shall be in form and
substance reasonably satisfactory to the Agent.
(xi) PLANS. The Agent and the Lessor shall have received
a copy of the applicable Plans and Specifications with respect to the
Improvements to be constructed on the Land.
(xii) LEGAL OPINIONS. The Agent and the Lessor shall have
received executed and customary legal opinions of Pillsbury Winthrop LLP,
general counsel to the Lessee, and of separate local counsel as may be required,
each in form and substance acceptable to the Agent.
(xiii) CORPORATE PROCEEDINGS OF THE LESSEE. The Agent and
the Lessor shall have received a copy of the resolutions or minutes of the Board
of Directors of the Lessee, in form and substance reasonably satisfactory to the
Agent and the Lessor, authorizing the execution, delivery and performance of the
Operative Agreements to be delivered on such Property Closing Date, certified by
the Secretary or an Assistant Secretary of the Lessee as of such Property
Closing Date, which certification shall be in the form of paragraph 1 of EXHIBIT
B.
(b) LENDERS' CONDITIONS. The obligations of the Lenders to
make Loans to the Lessor on each Funding Date for the purpose of providing funds
to the Lessor necessary to pay for the construction of Improvements or the
payment of Transaction Expenses or other Project Costs (other than Property
Acquisition Costs) are subject to the satisfaction or waiver by the Lenders of
each of the applicable conditions precedent set forth in this SECTION 5 and
Section 4.2 of the Credit Agreement.
(c) RETURN OF FUNDS IF NO FUNDING. If the applicable
conditions set forth in this SECTION 5 are not satisfied or waived with respect
to each Funding Date and the Lenders have funded their respective Loans to the
Lessor, the Lessor shall return such funds to the Lenders funding the same,
together with interest at the Federal Funds Effective Rate from the day such
funds were advanced until the date such funds are returned.
5.4 COMPLETION DATE CONDITIONS. The occurrence of Completion shall be
subject to the fulfillment to the satisfaction of, or waiver by, the Majority
Secured Parties and the Required Holders of the following conditions precedent,
at which time "Completion" shall be deemed to have occurred:
(a) CONSTRUCTION COMPLETION. The construction of the
Improvements shall have been completed substantially in accordance with the
applicable Plans and Specifications and in compliance with all material Legal
Requirements and Insurance Requirements, and the Property or Properties, as
applicable, shall be ready for occupancy and use. This shall require, without
limiting the generality of the preceding sentence, that (i) all utilities to
adequately service the Improvements for their intended use are available and
"tapped on" and hooked up pursuant to adequate permits (including any that may
be required under applicable Environmental Laws) and (ii) access to the
Improvements for pedestrians and motor vehicles from publicly dedicated streets
and public highways is available.
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(b) LESSEE CERTIFICATION. The Lessee shall have furnished the
Lessor and the Agent with a completion certificate substantially in the form
attached as EXHIBIT E.
5.5 RESTRICTIONS ON LIENS. On the date the Property or Properties, as
applicable, are either sold to a third party in accordance with the terms of the
Operative Agreements or, pursuant to Section 22.1(a) of the Lease Agreement,
retained by the Lessor, the Lessee shall cause such Property to be free and
clear of all Liens (other than Lessor Liens and such other Liens that are
expressly set forth as title exceptions on the title commitment issued with
respect to such Property, to the extent such title commitment has been approved
by the Agent).
SECTION 6. REPRESENTATIONS AND WARRANTIES.
6.1 REPRESENTATIONS AND WARRANTIES OF THE TRUST COMPANY. The Trust
Company represents and warrants to each of the other parties hereto as of the
Closing Date and each Funding Date as follows:
(a) Wilmington Trust Company is a banking corporation
organized under the laws of the State of Delaware, duly organized and validly
existing and in good standing under the laws of the State of Delaware and the
United States of America, as applicable, and has the power and authority to
enter into and perform its obligations under the Trust Agreement and (assuming
due authorization, execution and delivery of the Trust Agreement by the Holders)
the corporate and trust power and authority to act as a trustee and to enter
into and perform the obligations under each of the other Operative Agreements to
which it is or will be a party and each other agreement, instrument and document
to be executed and delivered by it on or before the Closing Date in connection
with or as contemplated by each such Operative Agreement to which such Trust
Company is or will be a party;
(b) The execution, delivery and performance of each Operative
Agreement to which it is or will be a party has been duly authorized by all
necessary action on its part and neither the execution and delivery thereof, nor
the consummation of the transactions contemplated thereby, nor compliance by it
with any of the terms and provisions thereof (i) does or will require any
approval or consent of any trustee or holders of any of its indebtedness or
obligations, (ii) does or will contravene any Legal Requirement relating to its
banking or trust powers, (iii) does or will contravene or result in any breach
of or constitute any default under, (A) its charter or bylaws or (B) any
indenture, mortgage, chattel mortgage, deed of trust, conditional sales
contract, bank loan or credit agreement or other agreement or instrument to
which it is a party, which contravention, breach or default under clause (B)
would materially and adversely affect its ability to perform its obligations
under the Operative Agreements to which it is a party, or (iv) does or will
require any Governmental Action by any Governmental Authority regulating its
banking or trust powers;
(c) This Agreement and each other Operative Agreement to which
it is or will be a party, if any, have been, or on or before such Closing Date
will be, duly executed and delivered by it, and the Trust Agreement constitutes,
or upon execution and delivery will constitute, a legal, valid and binding
obligation enforceable against it in accordance with the terms thereof, subject,
in each case as to enforceability, to bankruptcy, insolvency, reorganization and
other similar laws affecting enforcement of creditor rights generally (insofar
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as any such law relates to the bankruptcy, insolvency, reorganization or similar
event of the Trust Company) and, as to the availability of specific performance
or other injunctive relief, subject to the discretionary power of a court to
deny such relief and to general equitable principles;
(d) There is no action or proceeding pending or, to its
knowledge, threatened to which it is or will be a party before any Governmental
Authority that, if adversely determined, would materially and adversely affect
its ability to perform its obligations under the Operative Agreements to which
it is a party or would question the validity or enforceability of any of the
Operative Agreements to which it is or will become a party;
(e) Wilmington Trust Company's principal place of business and
chief executive office are located at:
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
(f) All documents, accounts and records relating to the
transactions contemplated by this Agreement and the other Operative Agreements
shall be located at Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx, 00000-0000.
6.2 REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower
represents and warrants to each of the other parties hereto as of the Closing
Date and each Funding Date as follows:
(a) It is a business trust and is duly formed and validly
existing and in good standing under the laws of the State of Delaware and has
the power and authority to enter into and perform its obligations under the
Operative Agreements to which it is a party and (assuming due authorization,
execution and delivery of the Trust Agreement by the parties thereto) the trust
power and authority to enter into and perform the obligations under each of the
other Operative Agreements to which it is or will be a party and each other
agreement, instrument and document to be executed and delivered by it on or
before the Closing Date in connection with or as contemplated by each such
Operative Agreement to which it is or will be a party;
(b) The execution, delivery and performance of each Operative
Agreement to which it is or will be a party (assuming due authorization,
execution and delivery of the Trust Agreement by the parties thereto) has been
duly authorized by all necessary action on its part and neither the execution
and delivery thereof, nor the consummation of the transactions contemplated
thereby, nor compliance by it with any of the terms and provisions thereof (i)
does or will require any approval or consent of any trustee or holders of any of
its indebtedness or obligations, (ii) does or will contravene any Legal
Requirement relating to its trust powers, (iii) does or will contravene or
result in any breach of or constitute any default under, or result in the
creation of any Lien upon any of its property under, (A) the Trust Agreement or
Certificate of Trust, or (B) any indenture, mortgage, chattel mortgage, deed of
trust, conditional sales contract, bank loan or credit agreement or other
agreement or instrument to which it is a party or by which it or its properties
may be bound or affected, which contravention, breach, default or Lien under
clause (B) would materially and adversely affect its ability to perform its
obligations under the
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Operative Agreements to which it is a party or (iv) does or will require any
Governmental Action by any Governmental Authority regulating its trust powers;
(c) The Trust Agreement and, assuming the Trust Agreement is
the legal, valid and binding obligation of the parties hereto, each other
Operative Agreement to which the Borrower is or will be a party have been, or on
or before such Closing Date will be, duly executed and delivered by it, and each
Operative Agreement to which it is a party constitutes, or upon execution and
delivery will constitute, a legal, valid and binding obligation enforceable
against it in accordance with the terms thereof subject, in each case as to
enforceability, to bankruptcy, insolvency, reorganization and other similar laws
affecting enforcement of creditor rights generally (insofar as any such law
relates to the bankruptcy, insolvency, reorganization or similar event of the
Borrower) and, as to the availability of specific performance or other
injunctive relief, subject to the discretionary power of a court to deny such
relief and to general equitable principles;
(d) There is no action or proceeding pending or, to its
knowledge, threatened to which it is or will be a party before any Governmental
Authority that, if adversely determined, would materially and adversely affect
its ability to perform its obligations under the Operative Agreements to which
it is a party or would question the validity or enforceability of any of the
Operative Agreements to which it is or will become a party;
(e) It has not assigned or transferred any of its right, title
or interest in or under the Lease or its interest in any of the Properties, or
any portion thereof, except in accordance with the Operative Agreements;
(f) No Default or Event of Default under the Operative
Agreements attributable to it has occurred and is continuing;
(g) Except as otherwise contemplated in the Operative
Agreements, the proceeds of the Loans and Holder Advances shall not be applied
by it for any purpose other than the purchase or lease of the Property or
Properties, as applicable, and the payment of Transaction Expenses and the fees,
expenses and other disbursements referenced in SECTION 7;
(h) Neither it nor any Person authorized by it to act on its
behalf has offered or sold any interest in the Trust Estate or the Notes, or in
any similar security relating to any Property, or in any security the offering
of which for the purposes of the Securities Act would be deemed to be part of
the same offering as the offering of the aforementioned securities to, or
solicited any offer to acquire any of the same from, any Person other than, in
the case of the Notes, the Agent, and neither it nor any Person authorized by it
to act on its behalf will take any action which would subject, as a direct
result of such action alone, the issuance or sale of any interest in the Trust
Estate or the Notes to the provisions of Section 5 of the Securities Act or
require the qualification of any Operative Agreement under the Trust Indenture
Act of 1939, as amended;
(i) The principal place of business, chief executive office
and office where the documents, accounts and records relating to the
transactions contemplated by this Agreement
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and the other Operative Agreements are located at Xxxxxx Square North, 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000-0000;
(j) It is not engaged principally in, and does not have as one
of its important activities, the business of extending credit for the purpose of
purchasing or carrying any margin stock (within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System of the United States), and
no part of the proceeds of the Loans or the Holder Advances will be used by it
to purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock or for any purpose that
violates, or is inconsistent with, the provisions of Regulations T, U, or X of
the Board of Governors of the Federal Reserve System of the United States;
(k) Each Property is free and clear of all Lessor Liens
attributable to it;
(l) It is not (i) an "investment company" or a company
controlled by an "investment company" within the meaning of the Investment
Company Act, or (ii) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935; and
(m) It is not a party to any documents, instruments or
agreements other than the Operative Agreements executed by it.
6.3 REPRESENTATIONS AND WARRANTIES OF THE LESSEE. Subject to SCHEDULE
6.3, the Lessee represents and warrants to each of the other parties hereto as
of the Closing Date and each Funding Date as follows:
(a) ORGANIZATION; POWERS. Each of the Lessee and its
Subsidiaries (i) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (ii) has all requisite power
and authority to own its property and assets and to carry on its business as now
conducted and as proposed to be conducted, (iii) is qualified to do business in
every jurisdiction where such qualification is required, except where the
failure so to qualify would not result in a Material Adverse Effect, and (iv)
has the power and authority to execute, deliver and perform its obligations
under each of the Operative Agreements and each other agreement or instrument
contemplated thereby to which it is or will be a party.
(b) AUTHORIZATION. The execution, delivery and performance by
the Lessee and the Construction Agent of each of the Operative Agreements to
which either is a party (i) have been duly authorized by all requisite action on
the part of the Lessee and the Construction Agent, including, if required,
stockholder action and (ii) will not (A) violate (1) any provision of law,
statute, rule or regulation, or of the certificate of incorporation or other
constitutive documents or bylaws of the Lessee or any Material Subsidiary, (2)
any order of any Governmental Authority, or (3) any provision of any indenture,
agreement or other instrument to which the Construction Agent, the Lessee or any
Material Subsidiary is a party or by which any of them or any of their property
is or may be bound, (B) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, or (C) result in the creation or
imposition of any Lien upon or with respect to any property or assets now owned
or hereafter acquired by the Construction
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Agent, the Lessee or any Material Subsidiary except in accordance with the
Operative Agreements.
(c) ENFORCEABILITY. This Agreement and each of the other
Operative Agreements to which the Construction Agent or Lessee is a party have
been duly executed and delivered and constitute a legal, valid and binding
obligation of the Construction Agent and the Lessee enforceable against either
in accordance with its terms, subject, in each case as to enforceability, to
bankruptcy, insolvency, reorganization and other similar laws affecting
enforcement of creditor rights generally (insofar as any such law relates to the
bankruptcy, insolvency, reorganization or similar event of the Lessee) and, as
to the availability of specific performance or other injunctive relief, subject
to the discretionary power of a court to deny such relief and to general
equitable principles.
(d) GOVERNMENTAL APPROVALS. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority
(the "Required Action") is or will be required by the Lessee in connection with
the purchase, leasing or financing of any Property (the "Transactions"), except
such as (i) have been made, taken or obtained and are in full force and effect,
or (ii) are not yet required to be made, taken or obtained in order for
construction to proceed in accordance with the construction schedule, provided,
that such Required Action shall be made, taken or obtained on or prior to the
time so required.
(e) FINANCIAL STATEMENTS. The consolidated balance sheet of
the Lessee and its Subsidiaries as at March 31, 2000, and the related
consolidated statements of income and cash flows of the Lessee and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion of Ernst
& Young LLP, independent auditors, and the consolidated balance sheet of the
Lessee and its Subsidiaries as at December 31, 2000, and the related
consolidated statements of income and cash flows of the Lessee and its
Subsidiaries for the nine (9) months then ended, copies of which have been
furnished to the Agent, fairly present, subject in the case of said balance
sheet as at December 31, 2000, and said statements of income and cash flows for
the nine (9) months then ended, to year-end audit adjustments, the consolidated
financial condition of the Lessee and its Subsidiaries as at such dates and the
consolidated results of the Lessee and its Subsidiaries for the periods ended on
such dates, all in accordance with GAAP consistently applied. Since March 31,
2000, no event has occurred which could have a Material Adverse Effect.
(f) NO MATERIAL ADVERSE CHANGE. There has been no material
adverse change in the business, assets, operations, prospects, property or
condition, financial or otherwise, of the Lessee and its Subsidiaries since
March 31, 2000.
(g) LITIGATION, COMPLIANCE WITH LAWS.
(i) There is no action, suit or proceeding at law or in
equity or by or before any Governmental Authority now pending or threatened
against the Lessee or any Subsidiary or any business, property or rights of any
such person (A) which involves any Operative Agreements or the Transactions or
(B) which is reasonably likely to have a Material Adverse Effect.
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(ii) Neither the Lessee nor any of its Subsidiaries is
in violation of any law, rule or regulation, or in default with respect to any
judgment, writ, injunction or decree of any Governmental Authority, where such
violation or default could reasonably be anticipated to result in a Material
Adverse Effect.
(h) FEDERAL RESERVE REGULATIONS. Neither the Lessee nor any of
its Subsidiaries is engaged principally in, or has as one of its most important
activities, the business of extending credit for the purpose of purchasing or
carrying any margin stock (within the meaning of Regulation U of the Board), and
no part of the proceeds of the Advances will be used by it to purchase or carry
any margin stock or to extend credit to others for the purpose of purchasing or
carrying any such margin stock or for any purpose that violates, or is
inconsistent with, the provisions of Regulations T, U or X of the Board.
(i) INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY
ACT. Neither the Lessee nor any of its Subsidiaries is (i) an "investment
company" or a company controlled by an "investment company" within the meaning
of the Investment Company Act, or (ii) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
(j) AGREEMENTS.
(i) Neither the Lessee nor any of its Subsidiaries is a
party to any agreement or instrument or subject to any corporate or other
restriction that has resulted or could reasonably be anticipated to result in a
Material Adverse Effect.
(ii) Neither the Lessee nor any of its Subsidiaries is
in default in any manner under any provision of any indenture or other agreement
or instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be anticipated
to result in a Material Adverse Effect.
(k) TAX RETURNS. Each of the Lessee and its Subsidiaries has
filed or caused to be filed all Federal, state, local and foreign tax returns
required to have been filed by it and has paid or caused to be paid all taxes
shown to be due and payable on such returns or on any assessments received by
it, except taxes that are being contested in good faith by appropriate
proceedings and for which the Lessee or such Subsidiary shall have set aside on
its books adequate reserves, or taxes the nonpayment of which would not result
in fines, penalties or other charges in excess of $500,000 in the aggregate.
(l) NO MATERIAL MISSTATEMENTS. No information, report,
financial statement, exhibit or schedule furnished by or on behalf of the Lessee
to the Lessor, the Holders, the Agent or any Lender in connection with the
negotiation of any Operative Agreement or included therein or delivered pursuant
thereto contained, contains or will contain any misstatement of a material fact
or omitted, omits or will omit to state any material fact necessary to make the
statements therein not misleading in light of the circumstances under which they
were, are or will be made.
(m) EMPLOYEE BENEFIT PLANS. Each of the Lessee and its ERISA
Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the
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regulations and published interpretations thereunder. No Reportable Event has
occurred as to which the Lessee or any ERISA Affiliate was required to file a
report with the PBGC, and the present value of all benefit liabilities under
each Plan (based on those assumptions used to fund such Plan) did not, as of the
last annual valuation date applicable thereto, exceed by more than $1,000,000
the value of the assets of such Plan. Neither the Lessee nor any ERISA Affiliate
has incurred any Withdrawal Liability which remains unpaid and that could result
in a Material Adverse Effect. Neither the Lessee nor any ERISA Affiliate has
received any notification that any Multiemployer Plan is in reorganization or
has been terminated within the meaning of Title IV of ERISA, and to the best
knowledge of the Lessee no Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, where such reorganization or termination has
resulted or could reasonably be expected to result, through increases in the
contributions required to be made to such Plan or otherwise, in a Material
Adverse Effect.
(n) ENVIRONMENTAL MATTERS. Except as set forth in the
Environmental Audit, each Property is free of contamination from any Release of
Hazardous Substances. Neither the Lessee nor any of its Subsidiaries has any
material contingent liability related to noncompliance with any Environmental
Laws, or related to any Release or threatened Release of a Hazardous Substance
or the generation, use, storage or disposal of Hazardous Substances associated
with any Property. The Lessee and each Subsidiary is conducting its respective
business in compliance with all applicable Environmental Laws except such as
would not result in a fine, penalty or cost to remediate in excess of $500,000.
Neither the Lessee nor any of its Subsidiaries has received notice of any
failure to so comply. The Lessee and its Subsidiaries, at the Lessee's and its
Subsidiaries' facilities, do not manage any hazardous wastes, hazardous
substances, hazardous materials, toxic substances, toxic pollutants or
substances similarly denominated, as those terms or similar terms are used in
the Environmental Laws, in violation of any such law or any regulations
promulgated pursuant thereto. Neither the Lessee nor any of its Subsidiaries has
caused or suffered to occur any Release with respect to any Hazardous Substance
at, under, above or upon any real property which it owns or leases or to which
it transported, disposed or arranged for disposal of Hazardous Substances that
would result in a Material Adverse Effect. Neither the Lessee nor any of its
Subsidiaries is involved in operations which are reasonably likely to result in
the imposition of any material liability on the Lessee or any of its
Subsidiaries under any Environmental Law, and neither the Lessee nor any of its
Subsidiaries has permitted any tenant or occupant of such premises to engage in
any such activities.
(o) INSURANCE. The Lessee has obtained insurance coverage
covering each Property which meets the requirements of Section 14.1 of the Lease
and Section 6.1 of the Construction Agency Agreement before commencing
construction, repairs or modifications, as the case may be, and such coverage is
in full force and effect.
(p) REPRESENTATIONS AND WARRANTIES; NO DEFAULT. The
representations and warranties of the Construction Agent and the Lessee set
forth in the Operative Agreements are true and correct. The Construction Agent
and the Lessee are in compliance with their respective obligations under the
Operative Agreements and there exists no Default or Event of Default.
(q) NATURE OF EACH PROPERTY. The Lessee, as Construction Agent
on behalf of the Lessor, shall construct office buildings on the Land
substantially in accordance with the applicable Plans and Specifications. The
Lessee has performed all actions necessary to ensure
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that it and all other Lessee Persons will be able to obtain, and the Lessee and
all other Lessee Persons will obtain, all subdivision, platting, zoning,
construction, environmental and other permits, licenses, consents, approvals and
authorizations from all Governmental Authorities in connection with the
acquisition of the Land and the development and construction of the Improvements
in accordance with the applicable Plans and Specifications when required to be
obtained. The Lessee, as Construction Agent, has performed, or will perform, all
examinations and has made, or will make, all inquiries reasonably necessary to
ensure that each of the other Lessee Persons, and each of the other contractors,
subcontractors and suppliers that are currently or will be involved in the
development and construction of the Property or Properties, as applicable, is
capable of, and each of them will, obtain all necessary materials, supplies and
labor at the points in time required by the construction schedule for the
Property or Properties, as applicable, in order to enable them to complete
construction of such Property or Properties in accordance with the applicable
Plans and Specifications and the requirements of such construction schedule.
There is no local opposition known to Lessee to any of the proposed or approved
development plans for any Property that could reasonably be expected to have any
effect on the ability of the Construction Agent to construct the Improvements or
obtain the permits and other authorizations from Governmental Authorities for
the Improvements.
(r) PRIORITY OF LIENS. As to each Property, (i) upon proper
recordation in the applicable governmental recording office in the country in
which such Property is located, the Deed of Trust, the Assignment of Lease and
the Memorandum of Lease with respect to such Property will constitute a valid
and perfected first lien on the Lessor's interest and the Lessee's interest in
such Property, and the Improvements thereon, subject only to the Permitted
Exceptions including the Lien of the Lease and the Lessor's Liens, and (ii) upon
proper filing in the applicable governmental filing office, the Lessor Financing
Statements will perfect the Lessor's interest under the Lease to the extent the
Lease is a security agreement governed by Article 9 of the Uniform Commercial
Code, and to the extent the security interest can be perfected by filing a
financing statement under Article 9 of the Uniform Commercial Code.
(s) FLOOD ZONE. No portion of any Property is located in an
area identified as a special flood hazard area by the Federal Emergency
Management Agency or other applicable agency, or if any Property is located in
an area identified as a special flood hazard area by the Federal Emergency
Management Agency or other applicable agency, then flood insurance has been
obtained for such Property in accordance with Section 14.2(b) of the Lease and
in accordance with the National Flood Insurance Act of 1968, as amended.
(t) LEGAL REQUIREMENTS. The Property or Properties, as
applicable, being acquired by the Trust comply with all Legal Requirements
(including all zoning and land use laws and Environmental Laws).
(u) CONSENTS, ETC. All consents, licenses and building permits
required by all Legal Requirements for construction, completion, occupancy and
operation of each Property have been or will be obtained and are or will be in
full force and effect by the time required to satisfy such Legal Requirements.
(v) SOLVENCY. The fair salable value of the Lessee's assets
exceeds the fair value of its liabilities; the Lessee is not left with
unreasonably small capital after consummation
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of the transactions contemplated by the Operative Agreements; and the Lessee is
able to pay its debts (including trade debts) as they mature.
(w) TITLE TO PROPERTY. Upon the acquisition of each Property
on the applicable Property Closing Date, the Lessor will have good and
marketable title to such Property, subject only to the Permitted Exceptions,
including the Lien of the Lease and Lessor Liens. Upon the acquisition of title
to such Property on such Property Closing Date, the Lessor will have the right
to grant the Deed of Trust on such Property. The Lessor will at all times have
good and marketable title to the Land and the Improvements, subject only to
Permitted Exceptions, including the Lien of the Lease and Lessor Liens.
(x) CONDITIONS PRECEDENT IN OPERATIVE AGREEMENTS. All
conditions precedent contained in this Agreement and in the other Operative
Agreements to be satisfied by the Lessee or the Lessor, as applicable, relating
to the acquisition of each Property, will be satisfied in full on or prior to
the date on which an Advance is requested to be made in respect of Property
Acquisition Costs for such Property.
(y) OFFERING. Neither Lessee nor anyone acting on behalf of
the Lessee has directly or indirectly offered any interest in any Property or
the Notes for sale to, or solicited any offer to acquire any of the same from,
anyone other than the Lessor, the Holders, the Lenders, and other institutions,
each of which is believed capable of evaluating and bearing the risks of
investment in the transactions contemplated hereby.
(z) TAX REGISTRATION. The transactions contemplated hereby are
either (i) not required to be registered pursuant to Code Section 6111 and any
regulations promulgated thereunder or (ii) required to be registered pursuant to
Code Section 6111, and, if so required, the Lessee will properly and timely
register such transaction in accordance with Code Section 6111 and any
regulations promulgated thereunder and will provide the correct registration
number to the Lessor. No inference is to be drawn from this SECTION 6.3(dd) or
SECTION 11.9 that (i) the transactions contemplated by the Operative Agreements
(or any provision thereof) are a confidential corporate tax shelter subject to
registration within the meaning of Code Section 6111 (and the regulations
thereunder), a "potentially abusive tax shelter" within the meaning of Code
Section 6112 (and the regulations thereunder) or a transaction requiring a
disclosure statement under Temporary Regulation ss. 1.6011-4T or (ii) the Lessee
or any other signatory to this Agreement or any other Operative Agreement is a
promoter, organizer, manager, seller or investor in a corporate tax shelter, as
any of those terms are defined under Code Section 6111 or 6112 (and any other
regulations thereunder). It is understood and agreed that the representations,
warranties and covenants contained in this SECTION 6.3(dd) are for the purpose
of SECTION 11.9.
(aa) NO CONFIDENTIAL OFFERS. Each Participant or other offeree
(and each employee, representative, or other agent of such Participant or
offeree) shall be permitted to disclose the structure as it relates to the tax
aspects of the transaction contemplated by the Operative Agreements to any and
all Persons, without limitation of any kind on such disclosure.
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6.4 REPRESENTATIONS AND WARRANTIES OF THE LESSEE UPON EACH FUNDING
DATE. The Lessee and the Construction Agent hereby represent and warrant as of
each Funding Date as follows:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Construction Agent and the Lessee set forth in the Operative
Agreements are true and correct (with respect to Funding Dates following the
initial Funding Date) on and as of such Funding Date. The Construction Agent and
the Lessee are in compliance with their respective obligations under the
Operative Agreements and there exists no Default or Event of Default
attributable to the Lessee or the Construction Agent under any of the Operative
Agreements. No Default or Event of Default attributable to the Lessee or the
Construction Agent will occur under any of the Operative Agreements as a result
of, or after giving effect to, the Advance requested by the related Requisition
on such date.
(b) TITLE TO LAND AND PROPERTY. The Lessor has good and
marketable title to the Land, subject only to the Permitted Exceptions,
including the Lien of the Lease and Lessor Liens. The Lessor has good and
marketable title to any Improvements theretofore financed under the Operative
Agreements, subject only to Permitted Exceptions including the Lien of the Lease
and Lessor Liens.
(c) PRIORITY OF LIENS. As to each Property, assuming proper
recordation in the applicable governmental recording office in the county where
such Property is located, the Deed of Trust and the Assignment of Lease and the
Lease Supplement with respect to such Property constitute a valid and perfected
first lien on the Property or Properties, as applicable, subject only to
Permitted Exceptions, including the Lien of the Lease and Lessor's Liens.
(d) EXECUTION AND DELIVERY BY THE CONSTRUCTION AGENT. The
execution and delivery of each Operative Agreement delivered by the Construction
Agent on such date and the performance of the Construction Agent's obligations
under such Operative Agreements have been duly authorized by all requisite
corporate action of the Construction Agent.
(e) VALID AND BINDING OBLIGATIONS OF THE CONSTRUCTION AGENT.
Each Operative Agreement delivered by the Construction Agent on such date is a
legal, valid and binding obligation of the Construction Agent, enforceable
against the Construction Agent in accordance with its terms, subject, in each
case, as to enforceability, bankruptcy, insolvency, reorganization and other
similar laws affecting enforcement of creditor rights generally and, as to the
availability of specific performance or other injunctive relief, subject to the
discretionary power of a court to deny such relief and to general equitable
principles.
(f) INSURANCE. The Construction Agent has obtained insurance
coverage covering the Property or Properties, as applicable, which meets the
requirements of the Construction Agency Agreement and the other Operative
Agreements before commencing construction, repairs or Modifications, as the case
may be, and such coverage is in full force and effect.
(g) PROPERTY-RELATED MATTERS. Each Property, as improved in
accordance with the applicable Plans and Specifications, will comply with all
Legal Requirements (including
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all applicable zoning and land use laws and Environmental Laws) in all material
respects and all Insurance Requirements. All Plans and Specifications have been
or will be prepared in accordance with all applicable Legal Requirements
(including all applicable Environmental Laws and building, planning, zoning and
fire codes) and upon completion of the applicable Improvements in accordance
with the applicable Plans and Specifications, such Improvements on any Property
will not encroach in any manner onto any adjoining land (except as permitted by
express written easements or variance) and such Improvements and the use thereof
by the Lessee and its agents, assignees, employees, invitees, lessees, licensees
and tenants will comply in all material respects with all applicable Legal
Requirements (including all applicable Environmental Laws and building,
planning, zoning and fire codes) in all material respects. Upon completion of
such Improvements in accordance with the applicable Plans and Specifications,
(i) there will be no defects to such Improvements, including the plumbing,
heating, air conditioning and electrical systems thereof, that will adversely
effect the Fair Market Sales Value of the Property, and (ii) all water, sewer,
electric, gas, telephone and drainage facilities and all other utilities
required to adequately service such Improvements for their intended use will be
available pursuant to adequate permits (including any that may be required under
applicable Environmental Laws). There is no action, suit or proceeding
(including any proceeding in condemnation or eminent domain or under any
Environmental Law) pending or threatened which adversely affects the title to,
or the use, operation or value of, any Property. No fire or other casualty with
respect to the Property has occurred, which fire or other casualty has had a
Material Adverse Effect on the Lessee's ability to perform its obligations under
the Construction Agency Agreement and the other Operative Agreements. All
utilities serving each Property, or proposed to serve each Property in
accordance with the applicable Plans and Specifications, are located in, and in
the future will be located in, and vehicular access to the Improvements on each
Property is provided by, either public rights-of-way abutting each Property or
Appurtenant Rights. All applicable licenses, approvals, authorizations,
consents, permits (including building, demolition and environmental permits,
licenses, approvals, authorizations and consents), easements and rights-of-way,
including proof of dedication, required for (i) the use, treatment, storage,
transport, disposal or disposition of any Hazardous Substance on, at, under or
from any Property during the construction of the Improvements thereon and the
use and operation of the Improvements following such construction, (ii) the
construction of the Improvements in accordance with the applicable Plans and
Specifications and the Construction Agency Agreement and (iii) the use and
operation of the Improvements following such construction as permitted pursuant
to the Lease have been obtained from the appropriate Governmental Authorities
having jurisdiction or from private parties, except those which are not yet
required to be obtained in order for construction to proceed in accordance with
the construction schedule, so long as they shall be obtained on or prior to the
time so required.
(h) LEASE REQUIREMENTS. The Improvements, when completed, will
comply with all requirements and conditions set forth in the Lease and all other
conditions and requirements of the Operative Agreements.
(i) CONDITIONS PRECEDENT CONTAINED IN THE OPERATIVE
AGREEMENTS. All conditions precedent contained in this Agreement and in the
other Operative Agreements to be satisfied by the Construction Agent relating to
the relevant Advance have been satisfied in full.
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6.5 REPRESENTATIONS AND WARRANTIES OF THE LESSOR UPON EACH FUNDING
DATE. The Lessor hereby represents and warrants as of each Funding Date as
follows:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Lessor set forth in the Operative Agreements are true and
correct in all material respects (with respect to Fundings following the initial
Funding Date). The Lessor is in compliance with its respective obligations under
the Operative Agreements.
(b) AUTHORITY OF THE LESSOR. The execution and delivery of
each Operative Agreement delivered by the Lessor on such date and the
performance of the obligations of the Lessor under each such Operative Agreement
has been duly authorized by all requisite action of the Lessor.
(c) EXECUTION AND DELIVERY BY THE LESSOR. Each Operative
Agreement delivered by the Lessor on such date has been duly executed and
delivered by the Lessor.
(d) VALID AND BINDING OBLIGATIONS OF THE LESSOR. Each
Operative Agreement delivered by the Lessor on such date is a legal, valid and
binding obligation of the Lessor, enforceable against the Lessor in accordance
with its terms, subject, in each case, as to enforceability, bankruptcy,
insolvency, reorganization and other similar laws affecting enforcement of
creditor rights generally and, as to the availability of specific performance or
other injunctive relief, subject to the discretionary power of a court to deny
such relief and to general equitable principles.
SECTION 7. PAYMENT OF CERTAIN EXPENSES.
The Lessee agrees, for the benefit of the Lessor, the Holders, the
Lenders and the Agent, that:
7.1 PAYMENT OF COSTS AND EXPENSES. The Construction Agent or the
Lessee shall pay (on behalf of the Lessor in the case of amounts incurred by the
Lessor) all amounts described in this SECTION 7.1 as set forth herein; provided,
however, that the amounts set forth in clauses (a) through (d) below will, so
long as the conditions set forth herein for an Advance are satisfied, be paid
with the proceeds of Advances and capitalized as part of Project Costs:
(a) Transaction Expenses not otherwise referenced in this
SECTION 7.1 which shall be payable from time to time.
(b) All reasonable expenses of the Lessor, the Trust
Companies, the Holders, the Lenders and the Agent, including the following
(which expenses shall include the reasonable fees, charges and disbursements of
legal counsel and of local counsel, if any, who may be retained by such legal
counsel in connection with any of the following): (1) the initial and annual fee
of the Trust Companies and all reasonable expenses of the Trust Companies and
any co-trustees (including reasonable counsel fees and expenses) or any
successor trustee or co-trustee, for acting as a trustee under the Trust
Agreement; (2) the reasonable fees, charges and expenses incurred in connection
with the negotiation, preparation, execution and delivery of any amendment,
supplement or other modification to this Agreement or any other Operative
Agreement, whether or not such amendment, supplement or modification is
ultimately entered
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into, or giving or withholding of waivers or consents hereto or thereto
requested by the Lessee or (3) all reasonable costs and expenses incurred by the
Agent, the Lenders, the Holders or the Lessor in connection with any exercise of
remedies under any Operative Agreement or any purchase of any Property by the
Lessee or any third party, including in connection with any workout,
restructuring or negotiations in respect thereof; (4) all reasonable costs and
expenses incurred by the Deposit Taker or Depositary Bank in connection with the
Pledged Collateral; (5) reasonable syndication expenses and all reasonable
expenses relating to the Appraisals; and (6) all reasonable costs and expenses
incurred by the Agent, the Lenders, the Holders or the Lessor in connection with
any transfer or conveyance of any Property, whether or not such transfer or
conveyance is ultimately accomplished, each of which shall be payable within ten
(10) Business Days of demand.
(c) THE COMMITMENT FEES. From the Closing Date until the
Commitment Termination Date, the Lessee agrees to pay, or cause to be paid, the
Commitment Fee to the Agent for the account of the Lenders and the Holders.
(d) OTHER FEES. Lessee agrees to pay or cause to be paid to
the Agent, Lenders and Holders the fees set forth in the Fee Letter.
7.2 BROKERS' FEES AND STAMP TAXES. Lessee agrees to pay or cause to
be paid brokers' fees relating to any Property and any and all stamp, transfer
and other similar taxes, fees and excises, if any, including any interest and
penalties, which are payable in connection with the transactions contemplated by
this Agreement and the other Operative Agreements; provided, however, that in
connection with the acquisition of any Property by the Lessor, each party shall
bear its own costs relating to brokers retained by such party in connection with
such acquisition.
SECTION 8. OTHER COVENANTS AND AGREEMENTS.
8.1 COOPERATION WITH THE LESSEE. The Holders, the Lenders, the Lessor
(at the direction of the Majority Secured Parties) and the Agent shall, at the
expense of and to the extent reasonably requested by the Lessee (but without
assuming additional liabilities on account thereof and only to the extent such
is acceptable to the Holders, the Lenders, the Lessor (at the direction of the
Majority Secured Parties) and the Agent in their reasonable discretion),
cooperate with the Lessee in connection with the Lessee satisfying its covenant
obligations contained in the Operative Agreements and its other obligations
respecting any Property including, at any time and from time to time, promptly
and duly executing and delivering any and all such further instruments,
documents and financing statements (and continuation statements related thereto)
as the Lessee may reasonably request in order to perform such covenants. The
Lessor agrees that, to the extent it shall obtain actual knowledge of the
occurrence of a Default or Event of Default caused by the Lessor or any of its
Affiliates, it shall promptly notify the Lessee describing the same in
reasonable detail.
8.2 COVENANTS OF THE TRUST COMPANIES, THE TRUST, AND THE HOLDERS.
Each of the Trust Companies, the Trust, and the Holders hereby agrees that so
long as this Agreement is in effect:
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(a) Neither the Trust Companies, the Trust nor any Holder will
create or permit to exist at any time, and each of them will, at its own cost
and expense, promptly take such action as may be necessary duly to discharge, or
to cause to be discharged, all Lessor Liens on any Property attributable to it;
provided, however, that the Trust Companies, the Trust and the Holders shall not
be required to so discharge any such 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 the
Liens of the Security Documents or of the sale, forfeiture or loss of, and shall
not interfere with the use or disposition of, any Property or title thereto or
any interest therein or the payment of Rent;
(b) Without prejudice to any right under the Trust Agreement
of the Trust Companies to resign (subject to the requirement set forth in the
Trust Agreement that such resignation shall not be effective until a successor
shall have agreed to accept such appointment), or the Holders' rights under the
Trust Agreement to remove the institution acting as the trustee (after consent
to such removal by the Agent as provided in the Trust Agreement), each of the
Trust Companies and the Holders hereby agrees with the Lessee and the Agent (i)
not to terminate or revoke the trust created by the Trust Agreement except as
permitted by Article X of the Trust Agreement, (ii) not to amend, supplement,
terminate or revoke or otherwise modify any provision of the Trust Agreement in
such a manner as to adversely affect the rights of any such party without the
prior written consent of such party and (iii) to comply with all of the terms of
the Trust Agreement, the nonperformance of which would adversely affect such
party;
(c) The Trust Companies or any successor may resign or be
removed by the Holders as the trustee, a successor trustee may be appointed and
a corporation may become the trustee under the Trust Agreement, only in
accordance with the provisions of Article X of the Trust Agreement and, with
respect to such appointment, with the consent of the Lessee (so long as there
shall be no Event of Default that shall have occurred and be continuing), which
consent shall not be unreasonably withheld or delayed;
(d) The Trust shall not contract for, create, incur or assume
any Indebtedness, or enter into any business or other activity or enter into any
contracts or agreements, other than pursuant to or under the Operative
Agreements;
(e) The Holders will not instruct the Trust Companies or the
Trust to take any action in violation of the terms of any Operative Agreement;
(f) Neither any Holder, the Trust Companies nor the Trust
shall (i) commence any case, proceeding or other action with respect to the
Trust under any existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, arrangement, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, or (ii) seek appointment of a receiver, trustee, custodian or other
similar official with respect to the Trust or for all or any substantial benefit
of the creditors of the Trust; and neither any Holder, the Trust Companies nor
the Trust shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in this paragraph;
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(g) Each Trust Company and the Trust shall give prompt notice
to the Lessee, the Holders and the Agent if such party's principal place of
business or chief executive office, or the office where the records concerning
the accounts or contract rights relating to any Property are kept, shall cease
to be located at the addresses set forth in SECTION 6.1, or if any such party
shall change its name; and
(h) The Trust shall take or refrain from taking such actions
and grant or refrain from granting such approvals with respect to the Operative
Agreements or relating to any Property, in each case as directed in writing by
the Agent (until such time as the Loans are paid in full, and then by the
Required Holders); provided, however, that notwithstanding the foregoing
provisions of this subparagraph (h), the Trust Companies, the Trust, the Agent,
the Lenders and the Holders each acknowledge, covenant and agree that neither
the Trust nor the Agent shall act or refrain from acting, regarding each
Unanimous Vote Matter, until such party has received the approval of each Lender
and each Holder affected by such matter.
8.3 PROCEEDS OF CASUALTY. The Lessor agrees, for the benefit of the
Agent, the Holders, and the Lenders, that if at any time the Lessor receives any
proceeds as a result, directly or indirectly, of any Casualty with respect to
any Property which the Lessor is entitled to retain and hold in accordance with
the terms of the Lease, the Lessor agrees that it will promptly deposit such
amounts in an account with the Agent. The Lessor also agrees that it will
execute and deliver such documents and instruments as the Agent may request in
order to grant the Agent, for the benefit of the Holders and the Lenders, a
valid and perfected, first priority security interest in such proceeds.
8.4 LESSEE COVENANTS, CONSENT AND ACKNOWLEDGMENT.
(a) INFORMATION. The Lessee will deliver to the Lessor and the
Agent:
(i) as soon as available and in any event within one
hundred (100) days after the end of each fiscal year of the Lessee a statement
of financial position of the Lessee and its consolidated subsidiaries as of the
end of such fiscal year and the related consolidated statements of income,
shareholder's equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all reported
on by Ernst & Young LLP or other independent accountants of nationally
recognized standing, together with a Compliance Certificate, in the form
attached as EXHIBIT F (the "Compliance Certificate"), from the chief financial
officer of the Lessee substantially containing a computation of, and showing
compliance with, each of the financial covenants, ratios and restrictions
contained in this SECTION 8.4 and stating that no Default or Event of Default
has occurred or is continuing or, if any Default or Event of Default has
occurred and is continuing, describing it and the steps, if any, being taken to
cure it;
(ii) as soon as available and in any event within sixty
(60) days after the end of each of the first three (3) quarters of each fiscal
year of the Lessee, an unaudited consolidated statement of financial position of
the Lessee as of the end of such period and the related consolidated statements
of income, shareholders' equity and cash flows for such period and for the
portion of the Lessee's fiscal year ended at the end of such period, setting
forth in each case in comparative form the figures for the same period in the
previous fiscal year,
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together with a Compliance Certificate of the chief financial officer of the
Lessee or other officer responsible for the financial affairs of the Lessee
containing a computation of, and showing compliance with, each of the financial
covenants, ratios and restrictions contained in this SECTION 8.4 and stating
that no Default or Event of Default has occurred or is continuing or, if any
Default or Event of Default has occurred and is continuing, describing it and
the steps, if any, being taken to cure it;
(iii) promptly after the filing thereof, if applicable,
copies of all reports on Forms 10-K, 10-Q and 8-K (or their equivalents),
prospectuses and registration statements which the Lessee shall have filed with
the Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended;
(iv) if and when any member of the ERISA Group (1) gives
or is required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV or ERISA, or knows that
the plan administrator of any Plan has given or is required to give notice of
any such reportable event, a copy of the notice of such reportable event given
or required to be given to the PBGC; (2) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (3) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (4) applies for a waiver of the minimum funding standard under
Section 412 of the Code, a copy of such application; (5) gives notice of intent
to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (6) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (7) fails to
make any payment or contribution to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security, a certificate of the chief financial
officer or the chief accounting officer of the Lessee setting forth details as
to such occurrence and action, if any, which the Lessee or applicable member of
the ERISA Group is required or proposes to take;
(v) promptly after the occurrence of any Default or
Event of Default attributable to Lessee, notice thereof in writing by an
authorized officer of the Lessee, together with information regarding the steps,
if any, being taken or proposed to be taken to cure it;
(vi) at least ten (10) Business Days prior to the
expiration of any policy of insurance required by Section 14 of the Lease,
confirmation of renewal; and
(vii) from time to time such additional information
regarding the Lessee or any Property as the Lessor or the Agent, at the request
of the Lessor, any Lender or any Holder, may reasonably request.
(b) COMPLIANCE WITH LAWS. The Lessee will, and will cause its
Subsidiaries to, comply with all Requirements of Law (including Environmental
Laws and ERISA and the rules and regulations thereunder), except where the
necessity of compliance therewith is
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contested in good faith by appropriate proceedings and such contest is not
reasonably likely to result in a Material Adverse Effect.
(c) FURTHER ASSURANCES. The Lessee shall take or cause to be
taken from time to time all action necessary to assure during the Construction
Period and the Term that title to each Property remains in the Lessor as
contemplated by Section 12.1 of the Lease, that the Lessor holds a perfected
Lien on each Property securing the Lease Balance as contemplated by Section 7.1
of the Lease, and that the Lessor and the Agent, for the benefit of the Holders
and the Lenders, hold a perfected Lien on the Pledged Collateral securing the
Obligations.
(d) EXISTENCE; FRANCHISES; BUSINESSES. Except as otherwise
expressly permitted in this Agreement, the Lessee shall, and shall cause each
Material Subsidiary to (i) maintain in full force and effect its separate
existence and all rights, licenses, leases and franchises reasonably necessary
to the conduct of its business, and (ii) continue doing business as a whole in
the lines of business in which they were engaged on the Closing Date or those
related thereto.
(e) BOOKS AND RECORDS. The Lessee shall, and shall cause each
Subsidiary to, maintain its books and records in accordance with GAAP, and
permit the Lessor and the Agent to make or cause to be made inspections and
audits of any books, records and papers of the Lessee and its Subsidiaries and
to make extracts therefrom at all such reasonable times and as often as any such
Person may reasonably require.
(f) FUNDAMENTAL CHANGES. The Lessee shall not, nor shall it
permit any Subsidiary via any merger, consolidation, amalgamation, liquidation,
wind-up or dissolution, to convey, sell, assign, transfer or otherwise dispose
of all or substantially all of the property, business or assets of the Lessee
and its Subsidiaries on a consolidated basis, nor shall the Lessee or any
Subsidiary approve of any such action if, in either case, a Default attributable
to the Lessee or a Lease Event of Default shall have occurred before or after
giving effect thereto.
(g) NO IMPAIRMENT OF DEPOSITS. The Lessee shall not, nor shall
it permit any of its Subsidiaries to, directly or indirectly, enter into or
become bound by any agreement, instrument, indenture or other obligation which
could directly or indirectly restrict, prohibit or require the consent of any
Person to the making by the Lessee of any deposit constituting part of the
Pledged Collateral or the realization thereon or utilization thereof (or of any
earnings thereon or of any other Collateral) by the Agent, the Lessor, the
Holders or the Lenders.
(h) CHANGE IN NAME OR LOCATION. The Lessee hereby covenants
and agrees that it shall give prompt notice to the Agent if the Lessee's
principal place of business or chief executive office, or the office where the
records concerning the accounts or contract rights relating to each Property are
kept, shall cease to be located at 00000 Xxxxxxx Xxxxx Xxxx., Xxxxxxxxx,
Xxxxxxxxxx 00000, or if it shall change its name.
(i) FINANCIAL COVENANTS OF LESSEE. The Lessee and its
Subsidiaries shall maintain, on a consolidated basis, all of the following
financial covenants.
(i) MINIMUM CASH. Maintain an unrestricted Cash Balance
of at least $150,000,000 in the aggregate.
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(ii) MINIMUM TANGIBLE NET WORTH. Maintain Tangible Net
Worth of no less than the sum of: (A) 85% of the greater of (1) $421,899,000 or
(2) Lessee's Tangible Net Worth as of March 31, 2001; (B) 75% of its net income
after income taxes (without subtracting losses) earned in each quarterly
accounting period commencing after March 31, 2001; and (C) 100% of Equity
Proceeds less any amount up to $75,000,000 annually reflecting costs related to
Acquisitions.
(iii) TOTAL DEBT TO ADJUSTED EBITDA RATIO. Maintain a
ratio of (A) total debt (which shall include letter of credit reimbursement
obligations) to (B) Adjusted EBITDA (as measured for the immediately preceding
four (4) Fiscal Quarters ending on the date of such measurement if such date is
the last day of a Fiscal Quarter, or ending on the last day of the immediately
preceding Fiscal Quarter if such measurement is made on a day that is not the
last day of a Fiscal Quarter) not to exceed 1.00 to 1.00.
(j) AGENT TO ACT FOR LESSOR. The Lessor hereby instructs
Lessee and Lessee hereby acknowledges and agrees, that until such time as the
Loans and the Holder Advances are paid in full and the Liens evidenced by the
Pledge Agreement, Security Agreement and the Deed of Trust have been released
(i) 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 12, (ii) all rights of the Lessor under
the Lease shall be exercised by the Agent and (iii) Lessee shall cause all
notices, certificates, financial statements, communications and other
information which are delivered, or are required to be delivered, to the Lessor,
to also to be delivered at the same time to the Agent.
(k) APPRAISALS. The Lessee hereby covenants and agrees to
cause an Appraisal or reappraisal (in form and substance satisfactory to the
Agent and from an appraiser selected by the Agent) to be issued respecting each
Property as requested by the Agent from time to time (i) at each and every time
as such shall be required to satisfy any regulatory requirements imposed on the
Agent, the Lessor, the Trust Company, any Lender or any Holder and (ii) after
the occurrence of an Event of Default.
(l) SUPPLEMENTAL RENT. The Lessee hereby covenants and agrees
that, except for amounts payable as Basic Rent, any and all payment obligations
owing from time to time under the Operative Agreements by Lessee or Lessor to
the Agent, any Lender, any Holder or any other Person shall (without further
action) be deemed to be Supplemental Rent obligations payable by the Lessee.
Such obligations of the Lessee shall include the Supplement Rent obligations
pursuant to Section 3.3 of the Lease, arrangement fees, administrative fees,
participation fees, commitment fees, unused fees, prepayment penalties, breakage
costs, indemnities, trustee fees and transaction expenses incurred by the
parties hereto in connection.
8.5 APPOINTMENT OF THE AGENT BY THE LENDERS, THE HOLDERS AND THE
TRUST. The Holders hereby appoint the Agent to act as collateral agent for the
Holders in connection with the Lien granted by the Security Documents to secure
the Holder Amount and all other amounts due
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and owing to the Holders. The Lenders and the Holders acknowledge and agree and
direct that the rights and remedies of the beneficiaries of the Lien of the
Security Documents shall be exercised by the Agent on behalf of the Lenders and
the Holders as directed from time to time by the Majority Secured Parties or,
pursuant to SECTION 13.4, all of the Lenders and the Holders, as the case may
be; provided, in all cases, the Agent shall allocate payments and other amounts
received in accordance with SECTION 12. The Agent is further appointed to
provide notices under the Operative Agreements on behalf of the Trust (as
determined by the Agent, in its reasonable discretion), to receive notices under
the Operative Agreements on behalf of the Trust and to take such other action
under the Operative Agreements on behalf of the Trust as the Agent shall
determine in its reasonable discretion from time to time. The Agent hereby
accepts such appointments. For purposes hereof, the provisions of Section 7 of
the Credit Agreement, together with such other terms and provisions of the
Credit Agreement and the other Operative Agreements as required for the full
interpretation and operation of Section 7 of the Credit Agreement are hereby
incorporated by reference as if restated herein for the mutual benefit of the
Agent and each Holder as if each Holder were a Lender thereunder. Outstanding
Holder Advances and outstanding Loans shall each be taken into account for
purposes of determining Majority Secured Parties. Further, the Agent shall be
entitled to take such action on behalf of the Trust as is delegated to the Agent
under any Operative Agreement (whether express or implied) as may be reasonably
incidental thereto. The parties hereto hereby agree to the provisions contained
in this SECTION 8.5. Any appointment of a successor agent under Section 7.9 of
the Credit Agreement shall also be effective as an appointment of a successor
agent for purposes of this SECTION 8.5.
8.6 RELEASE OF PROPERTIES, ETC. If (a) the Lessee shall at any time
purchase any Property pursuant to the Lease, (b) any Property shall be sold in
accordance with Article XXII of the Lease or (c) any portion of a Property is
dedicated, transferred or the subject of a lot line adjustment pursuant to
Section 12.2 of the Lease, then, upon satisfaction by the Trust of its
obligation to prepay the Loans and Holder Advances in respect of such Property
and all other amounts owing to the Lenders and the Holders under the Operative
Agreements, if any, the Agent is hereby authorized and directed to release such
Property from the Liens created by the Security Documents to the extent of its
interest therein. In addition, upon the termination of the Commitments and the
Holder Commitments and the payment in full of the Loans, the Holder Advances and
all other amounts owing by the Trust and the Lessee hereunder or under any other
Operative Agreement, the Agent is hereby authorized and directed to release such
Property from the Liens created by the Security Documents to the extent of its
interest therein. Upon request of the Trust following any such release, the
Agent shall, at the sole cost and expense of the Lessee, execute and deliver to
the Trust and the Lessee such documents as the Trust or the Lessee shall
reasonably request to evidence such release.
SECTION 9. CREDIT AGREEMENT AND TRUST AGREEMENT.
9.1 LESSEE'S CREDIT AGREEMENT RIGHTS. Notwithstanding anything to the
contrary contained in the Operative Agreements, the Agent, the Lenders, the
Holders, and the Trust hereby agree that, prior to the occurrence and
continuation of any Default or Event of Default, the Lessee shall have the
following rights:
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(a) the right to designate an account to which amounts funded
under the Operative Agreements shall be credited pursuant to Section 2.3 of the
Credit Agreement;
(b) the right to terminate or reduce the Commitments pursuant
to Section 2.4 of the Credit Agreement;
(c) the right to exercise the continuation option pursuant to
Section 2.6 of the Credit Agreement;
(d) the right to approve any successor agent pursuant to
Section 7.9 of the Credit Agreement; and
(e) the right to consent to any assignment by a Lender
pursuant to the Credit Agreement, which consent shall not be unreasonably
withheld or delayed (except when a Default attributable to the Lessee or Lease
Event of Default has occurred and is continuing, in which case no such consent
shall be required).
9.2 LESSEE'S TRUST AGREEMENT RIGHTS. Notwithstanding anything to the
contrary contained in the Operative Agreements, the Trust and the Holders hereby
agree that, prior to the occurrence and continuation of any Default or Event of
Default, the Lessee shall have the following rights:
(a) the right to exercise the removal options contained in
Article IX of the Trust Agreement; provided, however, that no removal of either
Trust Company and appointment of a successor trustee pursuant to such Article IX
of the Trust Agreement shall be made without the prior written consent (not to
be unreasonably withheld or delayed) of the Holders; and
(b) the right to consent to any assignment by a Holder
pursuant to the Trust Agreement, which consent shall not be unreasonably
withheld or delayed.
SECTION 10. TRANSFER OF INTEREST.
10.1 RESTRICTIONS ON TRANSFER. Each Lender may participate, assign or
transfer all or a portion of its interest hereunder and under the other
Operative Agreements in accordance with Section 9 of the Credit Agreement. The
Holders may, directly or indirectly, assign, convey or otherwise transfer any of
their right, title or interest in or to the Trust Estate or the Trust Agreement
with the prior written consent of the Agent (which consent shall not be
unreasonably withheld or delayed) and in accordance with the terms of Section
11.15 of the Trust Agreement. The Lessor may, subject to the rights of the
Lessee under the Lease and the other Operative Agreements and to the Lien of the
applicable Security Documents but only with the prior written consent of the
Agent (which consent may be withheld by the Agent in its sole discretion) and
(provided, no Default or Event of Default has occurred and is continuing) with
the consent of the Lessee, directly or indirectly, assign, convey, appoint an
agent with respect to enforcement of, or otherwise transfer any of its right,
title or interest in or to any Property, the Lease, the Trust Agreement and the
other Operative Agreements (including any right to indemnification thereunder),
or any other document relating to any Property or any interest in the Property
or Properties as provided in the Trust Agreement and the Lease. The provisions
of the immediately preceding sentence shall not apply to the obligations of the
Lessor to transfer the Property or
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Properties to the Lessee or a third party purchaser pursuant to Article XXII of
the Lease upon payment for such Property or Properties in accordance with the
terms and conditions of the Lease. Lessee may not assign any of the Operative
Agreements or any of its rights or obligations thereunder or with respect to any
Property in whole or in part to any Person without the prior written consent of
the Agent, the Lenders, the Holders and the Lessor. Any participation,
assignment or transfer effected in breach of this SECTION 10 shall be void.
10.2 EFFECT OF TRANSFER. From and after any transfer effected in
accordance with this SECTION 10, the transferor shall be released, to the extent
of such transfer, from its liability hereunder and under the other documents to
which it is a party in respect of obligations to be performed on or after the
date of such transfer; provided, however, that any transferor shall remain
liable hereunder and under such other documents to the extent that the
transferee shall not have assumed the obligations of the transferor thereunder.
Upon any transfer by the Lessor, a Holder or a Lender as above provided, any
such transferee shall assume the obligations of the Lessor, the Holder or the
Lender, as the case may be, and shall be deemed the "Lessor," or a "Holder" or
"Lender," as the case may be, for all purposes of such documents and each
reference herein to the transferor shall thereafter be deemed a reference to
such transferee for all purposes, except as provided in the preceding sentence.
Notwithstanding any transfer of all or a portion of the transferor's interest as
provided in this SECTION 10, the transferor shall be entitled to all benefits
accrued and all rights vested prior to such transfer including rights to
indemnification under any such document except to the extent transferred.
10.3 DISCLOSURE OF INFORMATION; PLEDGE UNDER REGULATION A.
(a) Any Participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this SECTION
10, disclose to such assignee or participant or proposed assignee or
participant, any information relating to Lessee or the Transactions, provided,
that prior to such disclosure such proposed assignee or participant shall have
agreed in writing to keep any such information confidential substantially on the
terms of SECTION 10.3(B).
(b) The Agent and the Lessor understand that some of the
information and documents furnished pursuant to the Operative Agreements may be
confidential and each of them agrees that it will keep all non-public
information, documents and agreements so furnished to it confidential and will
make no disclosure to other Persons of such information or agreements until it
shall have become public, except disclosure may be made (i) to the extent
required in connection with matters involving operations under or enforcement or
amendment of the Operative Agreements; (ii) to the Lenders' and the Holders'
examiners and auditors or in accordance with the Lenders' or the Holders'
obligations under law or regulations or pursuant to subpoenas or other process
to make information available to governmental agencies and examiners or to
others; (iii) to any corporate affiliate of any Participant so long as such
affiliate agrees to accept such information or agreement subject to the
restrictions provided in this SECTION 10.3(B); (iv) to the Participant's counsel
and other professional advisors so long as such Persons are instructed to keep
such information confidential in accordance with the provisions of this SECTION
10.3(b); (v) to proposed assignees and participants in accordance with SECTION
10.3(a); and (vi) with the prior written consent of the Lessee.
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(c) Anything in this SECTION 10 to the contrary
notwithstanding, any Participant may without the consent of Lessee, the Agent or
the Lessor, assign and pledge all or any portion of the Notes held by it to any
Federal Reserve Bank, the United States Treasury or to any other financial
institution as collateral security pursuant to Regulation A of the Federal
Reserve Board and any operating circular issued by the Federal Reserve System
and/or the Federal Reserve Bank or otherwise; provided, any payment by Lessee
for the benefit of the assigning or pledging Participant shall be deemed to
satisfy Lessee's obligations with respect thereto.
SECTION 11. INDEMNIFICATION.
11.1 GENERAL INDEMNITY.
(a) The Lessee, whether or not any of the transactions
contemplated hereby shall be consummated, hereby assumes liability for and
agrees to defend, indemnify and hold harmless each Indemnified Person on an
After Tax Basis from and against any Claims arising from events occurring during
the Basic Term following the Construction Period, any Renewal Term and
thereafter which may be imposed on, incurred by or asserted against an
Indemnified Person (whether because of an action or omission of such Indemnified
Person or otherwise, whether or not such Indemnified Person shall also be
indemnified as to any such Claim by any other Person and whether or not such
Claim arises or occurs prior to the Closing Date or after the Expiration Date,
in any way relating to or arising or alleged to arise out of (i) the financing,
refinancing, ground lease, purchase, acceptance, rejection, ownership, design,
construction, delivery, acceptance, nondelivery, leasing, subleasing,
possession, use, operation, repair, maintenance, modification, transportation,
condition, operation, sale, return, repossession (whether by summary proceedings
or otherwise), or any other disposition of any Property or any part thereof,
(ii) any latent or other defects in any Property whether or not discoverable by
an Indemnified Person or the Lessee; (iii) a violation of any Legal Requirement
or Requirement of Law by the Lessee or relating to any Property or the
transactions contemplated by the Operative Agreements, including any violation
of Environmental Laws, the Release, presence or use of Hazardous Substances on,
at, under or emanating from any Property or other loss of or damage relating to
any Property; (iv) the Operative Agreements, or any transaction contemplated
thereby; (v) any breach by the Lessee of any of its representations or
warranties under the Operative Agreements or failure by the Lessee to perform or
observe any covenant or agreement to be performed by it under any of the
Operative Agreements or under any other contract or agreement by which the
Lessee is bound; (vi) the invalidation of Lessee's insurance policies related to
any Property; (vii) personal injury, death or property damage relating to any
Property, including Claims based on strict liability in tort; (viii) the
existence of any Lien on or with respect to any Property, the Improvements, the
Equipment, any Basic Rent or Supplemental Rent, title thereto, or any interest
therein, including any Liens which arise out of the possession, use, occupancy,
construction, repair or rebuilding of any Property or by reason of labor or
materials furnished or claimed to have been furnished to the Lessee, the Lessor,
the Construction Agent, or any of their contractors or agents or by reason of
the financing of any Property or any personality or equipment purchased or
leased by the Lessee or Improvements or Modifications constructed by the Lessee,
except Lessor Liens and Liens in favor of the Agent or the Lessor; and (ix) the
Transactions contemplated hereby or by any other Operative Agreement, in respect
of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA and any
prohibited
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transaction described in Section 4975(c) of the Code; but in any event excluding
(x) Claims to the extent such Claims arise solely out of events occurring after
the expiration of the Term and after the Lessee's discharge of all its
obligations under the Lease and the other Operative Agreements or (y) as to any
Indemnified Person, any Claim to the extent resulting from the willful
misconduct or gross negligence of such Indemnified Person. The Lessee shall be
entitled to control, and shall assume full responsibility for the defense of,
any Claim; provided, however, that any Indemnified Person named in such Claim
may retain separate counsel reasonably acceptable to the Lessee at the expense
of the Lessee in the event of and to the extent of a conflict; provided,
further, that the Lessee shall be required to pay for no more than one such
separate counsel in connection with each Claim for all Indemnified Persons. The
Lessee and each Indemnified Person agree to give each other prompt written
notice of any Claim hereby indemnified against but the giving of any such notice
by an Indemnified Person shall not be a condition to the Lessee's obligations
under this SECTION 11.1, except to the extent failure to give such notice
materially prejudices the Lessee's rights hereunder. After an Indemnified Person
has been fully indemnified for a Claim pursuant to this SECTION 11.1, and so
long as no Event of Default shall have occurred and be continuing, the Lessee
shall be subrogated to any right of such Indemnified Person with respect to such
Claim. None of the Indemnified Persons shall settle a Claim without the consent
of the Lessee, which consent shall not be unreasonably withheld or delayed.
(b) The Construction Agent agrees to assume liability for, and
to indemnify, protect, defend, save and keep harmless the Lessor, the Trust
Companies and the Holders (the "Lessor Parties") on an After Tax Basis (which
right to indemnity may be assigned by the Lessor Parties), from and against any
and all Claims (including Losses (as defined in SECTION 11.10)) arising from
events occurring during the Construction Period that may be imposed on, incurred
by or asserted against the Lessor Parties, whether or not the Lessor Parties
shall also be indemnified as to any such Claim by any other Person and whether
or not such claim arises or accrues prior to the Closing Date, in any way
relating to or arising out of the circumstances described in clauses (i) through
(ix) of SECTION 11.1(A), and subject to exceptions (x) and (y) of SECTION
11.1(A), but only to the extent (1) such Claims result from acts or omissions of
the Construction Agent or any Lessee Person and (2)(A) are not related to
construction completion, or (B) if such Claims are related to construction
completion, the Lessee's recourse liability for such Claims shall not exceed the
Construction Period Maximum Recourse Amount. The Construction Agent acknowledges
and agrees in this connection that the Property or Properties, as applicable,
are in its control and possession during the Construction Period, that it is
responsible as Construction Agent for the acts and omissions of its
subcontractors and agents and all Lessee Persons and that it has agreed to
maintain each Property free from injury or mishap to third persons; provided,
however, that the occurrence of injury or mishap to third persons shall not give
rise to an Event of Default.
(c) Nothing contained in this Section 11.1 shall prevent
Lessee from bringing a separate action against any Indemnified Person for any
breach of contract, gross negligence, willful misconduct or other causes of
action permitted by the Operative Agreements.
11.2 ENVIRONMENTAL INDEMNITY. Without limitation of the other
provisions of this SECTION 11, during the Construction Period, the Lessee hereby
agrees to indemnify, hold harmless and defend each Lessor Party, and during the
Basic Term following the Construction
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Period, any Renewal Term and thereafter, each Indemnified Person, on an After
Tax Basis from and against any and all Claims (including third party Claims for
personal injury or real or personal property damage), losses (including, but not
limited to, to the extent the Lease Balance and all other Obligations have not
been fully paid, any loss of value of any Property), damages, liabilities,
fines, penalties, charges, and all reasonable costs and expenses incurred in
connection therewith (including, but not limited to, reasonable consultants' and
attorneys' fees and expenses), including, but not limited to, all costs incurred
in connection with any investigation or monitoring of site conditions or any
clean-up, remedial removal or restoration work, arising in whole or in part, out
of:
(a) the presence on or under any Property of any Hazardous
Substances, or any Release of any Hazardous Substances on, under, from or onto
any Property,
(b) any activity, including construction, carried on at any
Property, and whether by the Lessee or any predecessor in title or any
employees, agents, contractors or subcontractors of the Lessee or any
predecessor in title, or any other Persons (including such Indemnified Person),
in connection with the handling, treatment, removal, storage, decontamination,
clean-up, transport or disposal of any Hazardous Substances that at any time are
located or present on or under any Property,
(c) loss of or damage to any Property or the environment
(including clean-up costs, response costs, remediation and removal costs, cost
of corrective action, costs of financial assurance, fines and penalties and
natural resource damages), or death or injury to any Person, and all expenses
associated with the protection of wildlife, aquatic species, vegetation, flora
and fauna, and any mitigative action required by or under Environmental Laws, in
each case arising from activities on or conditions with respect to any Property,
(d) any claim concerning lack of compliance with Environmental
Laws, or any act or omission causing an environmental condition that requires
remediation or would allow any Governmental Authority to record a Lien on the
land records, in each case arising from activities on or conditions with respect
to any Property, or
(e) any residual contamination on or under any parcel of Land,
or affecting any natural resources, and any contamination of any property or
natural resources arising in connection with the generation, use, handling,
storage, transport or disposal of any such Hazardous Substances from any parcel
of Land, and irrespective of whether any of such activities were or will be
undertaken accordance with all Requirements of Law;
provided, however, the Lessee shall not be required to indemnify
any Indemnified Person under this SECTION 11.2 for (1) Claims to the extent such
Claims arise solely out of events occurring after the expiration of the Term and
after the Lessee's discharge of all its obligations under the Lease and the
other Operative Agreements or (2) as to any Indemnified Person, any Claim to the
extent resulting from the willful misconduct or gross negligence of such
Indemnified Person. It is expressly understood and agreed that the indemnity
provided for herein shall survive the expiration or termination of, and shall be
separate and independent from, any remedy under the Lease or any other Operative
Agreement.
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11.3 GENERAL IMPOSITIONS INDEMNITY.
(a) INDEMNIFICATION. During the Construction Period, the
Lessee shall pay and assume liability for, and does hereby agree to indemnify,
protect and defend each Property and all Lessor Parties, and the Lessor agrees
to pay and assume liability for and does hereby indemnify, protect and defend
the other Indemnified Persons (for which obligation the Construction Agent
agrees to indemnify the Lessor), and hold it and them harmless against, all
Impositions on an After Tax Basis. During the Basic Term following the
Construction Period, and any Renewal Term, the Lessee shall pay and assume
liability for, and does hereby agree to indemnify, protect and defend each
Property and each Indemnified Person, and hold it and them harmless against, all
Impositions on an After Tax Basis.
(b) PAYMENTS.
(i) Subject to the terms of SECTION 11.3(f), the Lessee
shall pay or cause to be paid all Impositions directly to the taxing authorities
where feasible and otherwise to the Indemnified Person, as appropriate, and the
Lessee shall at its own expense, upon such Indemnified Person's reasonable
request, furnish to such Indemnified Person copies of official receipts or other
satisfactory proof evidencing such payment.
(ii) In the case of Impositions for which no contest is
conducted pursuant to SECTION 11.2(F) and which the Lessee pays directly to the
taxing authorities, the Lessee shall pay such Impositions thirty (30) days prior
to the latest time permitted by the relevant taxing authority for timely
payment. In the case of Impositions for which the Lessee reimburses an
Indemnified Person, the Lessee shall do so within twenty (20) days after receipt
by the Lessee of demand by such Indemnified Person describing in reasonable
detail the nature of the Imposition and the basis for the demand (including the
computation of the amount payable), but in no event shall the Lessee be required
to pay such reimbursement prior to thirty (30) days before the latest time
permitted by the relevant taxing authority for timely payment. In the case of
Impositions for which a contest is conducted pursuant to SECTION 11.2(f), the
Lessee shall pay such Impositions or reimburse such Indemnified Person for such
Impositions, to the extent not previously paid or reimbursed pursuant to
subsection (a), thirty (30) days prior to the latest time permitted by the
relevant taxing authority for timely payment after conclusion of all contests
under SECTION 11.2(f).
(iii) Impositions imposed with respect to any Property
for a billing period during which the Lease expires or terminates (unless a
Renewal Term is to apply or the Lessee has exercised the Purchase Option or the
Maturity Date Purchase Option with respect to such Property) shall be adjusted
and prorated on a daily basis between the Lessee and the Lessor, whether or not
such Imposition is imposed before or after such expiration or termination and
each party shall pay or reimburse the other for each party's pro rata share
thereof.
(iv) At the Lessee's request, the amount of any
indemnification payment by the Lessee pursuant to subsection (a) shall be
verified and certified by an independent public accounting firm mutually
acceptable to the Lessee and the Indemnified Person. The fees and expenses of
such independent public accounting firm shall be paid by the Lessee unless such
verification shall result in an adjustment in the Lessee's favor of 10% or more
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of the payment as computed by the Indemnified Person, in which case such fee
shall be paid by the Indemnified Person.
(c) REPORTS AND RETURNS. (i) The Lessee shall be responsible
for preparing and filing any real and personal property or ad valorem tax
returns in respect of each Property. In case any other report or tax return
shall be required to be made with respect to any obligations of the Lessee under
or arising out of subsection (a) and of which the Lessee has knowledge or should
have knowledge, the Lessee, at its sole cost and expense, shall notify the
relevant Indemnified Person of such requirement and (except if such Indemnified
Person notifies the Lessee that such Indemnified Person intends to file such
report or return) (A) to the extent required or permitted by and consistent with
applicable law, make and file in its own name such return, statement or report;
and (B) in the case of any other such return, statement or report required to be
made in the name of such Indemnified Person, advise such Indemnified Person of
such fact and prepare such return, statement or report for filing by such
Indemnified Person or, where such return, statement or report shall be required
to reflect items in addition to any obligations of the Lessee under or arising
out of subsection (a), provide such Indemnified Person at the Lessee's expense
with information sufficient to permit such return, statement or report to be
properly made with respect to any obligations of the Lessee under or arising out
of subsection (a). Such Indemnified Person shall, upon the Lessee's request and
at the Lessee's expense, provide any data maintained by such Indemnified Person
(and not otherwise available to or within the control of the Lessee) with
respect to any Property which the Lessee may reasonably require to prepare any
required tax returns or reports. Each Indemnified Person agrees to use
commercially reasonable efforts to send to the Lessee a copy of any written
request or other notice that the Indemnified Person receives with respect to any
reports or returns required to be filed with respect to each Property or the
transactions contemplated by the Operative Agreements, it being understood that
no Indemnified Person shall have any liability for failure to provide such
copies.
(d) INCOME INCLUSIONS. If as a result of the payment or
reimbursement by the Lessee of any expenses of the Lessor or the payment of any
Transaction Expenses incurred in connection with the transactions contemplated
by the Operative Agreements, the Lessor, any Holder or any Lender or any of
their respective Affiliates shall suffer a net increase in any federal, state or
local income tax liability, the Lessee shall indemnify such Persons (without
duplication of any indemnification required by subsection (a)) on an After Tax
Basis for the amount of such increase. The calculation of any such net increase
shall take into account any current or future tax savings realized or reasonably
expected to be realized by such person in respect thereof, as well as any
interest, penalties and additions to tax payable by the Lessor, the Holder, the
Lender or such Affiliate, in respect thereof.
(e) WITHHOLDING TAXES. As between the Lessee on one hand, and
any Financing Party on the other hand, the Lessee shall be responsible for, and,
subject to the provisions of SECTIONS 12.2(g) and (h), the Lessee shall
indemnify and hold harmless the Financing Parties (without duplication of any
indemnification required by subsection (a)) on an After Tax Basis against, any
obligation for United States or foreign withholding taxes imposed in respect of
payments with respect to the Loans or the Holder Advances or with respect to
Rent payments under the Lease or payments of the Lease Balance, Permitted Lease
Investment Balance, or Purchase Option Price (and, if any Financing Party
receives a demand for such
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payment from any taxing authority, the Lessee shall discharge such demand on
behalf of such Financing Party).
(f) CONTESTS OF IMPOSITIONS.
(i) If a written claim is made against any Indemnified
Person or if any proceeding shall be commenced against such Indemnified Person
(including a written notice of such proceeding), for any Impositions, such
Indemnified Person shall promptly notify the Lessee in writing and shall not
take action with respect to such claim or proceeding without the consent of the
Lessee for thirty (30) days after the receipt of such notice by the Lessee;
provided, however, that, in the case of any such claim or proceeding, if action
shall be required by law or regulation to be taken prior to the end of such
30-day period, such Indemnified Person shall, in such notice to the Lessee,
inform the Lessee of such shorter period, and no action shall be taken with
respect to such claim or proceeding without the consent of the Lessee before two
days before the end of such shorter period; provided, further, that the failure
of such Indemnified Person to give the notices referred to in this sentence
shall not diminish the Lessee's obligation hereunder except to the extent such
failure precludes the Lessee from contesting all or part of such claim.
(ii) If, within thirty (30) days of receipt of such
notice from the Indemnified Person (or such shorter period as the Indemnified
Person has notified the Lessee as required by law or regulation for the
Indemnified Person to commence such contest), the Lessee shall request in
writing that such Indemnified Person contest such Imposition, the Indemnified
Person shall, at the expense of the Lessee, in good faith conduct and control
such contest (including by pursuit of appeals) relating to the validity,
applicability or amount of such Impositions (provided, however, that (A) if such
contest involves a tax other than a tax on net income and can be pursued
independently from any other proceeding involving a tax liability of such
Indemnified Person, the Indemnified Person, at the Lessee's request, shall allow
the Lessee to conduct and control such contest and (B) in the case of any
contest, the Indemnified Person may request the Lessee to conduct and control
such contest) by, in the sole discretion of the Person conducting and
controlling such contest, (1) resisting payment thereof, (2) not paying the same
except under protest, if protest is necessary and proper, or (3) if the payment
be made, using reasonable efforts to obtain a refund thereof in appropriate
administrative and judicial proceedings.
(iii) The party controlling any contest shall consult in
good faith with the non-controlling party and shall keep the non-controlling
party reasonably informed as to the conduct of such contest; provided, that all
decisions ultimately shall be made in the sole discretion of the controlling
party. The parties agree that an Indemnified Person may at any time decline to
take further action with respect to the contest of any Imposition and may settle
such contest if such Indemnified Person shall waive its rights to any indemnity
from the Lessee that otherwise would be payable in respect of such claim and
shall pay to the Lessee any amount previously paid or advanced by the Lessee
pursuant to this SECTION 11.2 by way of indemnification or advance for the
payment of an Imposition other than expenses of such contest.
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(iv) Notwithstanding the foregoing provisions of this
SECTION 11.2, an Indemnified Person shall not be required to take any action and
the Lessee shall not be permitted to contest any Impositions in its own name or
that of the Indemnified Person unless (A) the Lessee shall have agreed to pay in
writing and shall pay to such Indemnified Person on demand and on an After Tax
Basis all reasonable costs, losses and expenses that such Indemnified Person
actually incurs in connection with contesting such Impositions, including all
reasonable legal, accounting and investigatory fees and disbursements and the
contested claim if ultimately required to be paid, (B) in the case of a claim
that must be pursued in the name of an Indemnified Person (or an Affiliate
thereof), the amount of the potential indemnity exceeds $50,000, (C) the
Indemnified Person shall have reasonably determined that the action to be taken
will not result in any material danger of sale, forfeiture or loss of any
Property or the Pledged Collateral, or any part thereof or interest therein,
will not interfere with the payment of Rent, and will not result in risk of
criminal liability, (D) if such contest shall involve the payment of the
Imposition prior to the contest, the Lessee shall provide to the Indemnified
Person an interest-free advance in an amount equal to the Imposition that the
Indemnified Person is required to pay (with no additional net after-tax cost to
such Indemnified Person), (E) the Lessee shall have provided to such Indemnified
Person an opinion of independent tax counsel selected by the Lessee and
reasonably satisfactory to the Indemnified Person stating that a reasonable
basis exists to contest such claim (or, in the case of an appeal of an adverse
determination, an opinion of such counsel to the effect that the position
asserted in such appeal will more likely than not prevail), and (F) no Event of
Default shall have occurred and be continuing. In no event shall an Indemnified
Person be required to appeal an adverse judicial determination to the United
States Supreme Court. In addition, an Indemnified Person shall not be required
to contest any claim in its name (or that of an Affiliate) if the subject matter
thereof shall be of a continuing nature and shall have previously been decided
adversely by a court of competent jurisdiction pursuant to the contest
provisions of this SECTION 11.2, unless there shall have been a change in law
(or interpretation thereof) and the Indemnified Person shall have received, at
the Lessee's expense, an opinion of independent tax counsel selected by the
Indemnified Person and reasonably acceptable to the Lessee stating that as a
result of such change in law (or interpretation thereof), it is more likely than
not that the Indemnified Person will prevail in such contest.
(g) DOCUMENTATION OF WITHHOLDING STATUS. Each Financing Party
and each Trust Company (or any successor thereto or transferee thereof) that is
organized under the laws of a jurisdiction outside of the United States of
America shall:
(i) on or before the date it becomes a party to any
Operative Agreement, deliver to the Lessee any certificates, documents or other
evidence that shall be required by the Code or Treasury Regulations issued
pursuant thereto to establish its exemption from United States Federal
withholding requirements, including two (2) valid, duly completed, original
copies of (A) Internal Revenue Service Form W-8BEN or successor applicable form,
or (B) Internal Revenue Service Form W-8ECI or successor applicable form,
properly and duly executed, certifying in each case that such party is entitled
to receive payments pursuant to the Operative Agreements without deduction or
withholding of United States Federal income taxes; and
(ii) or before the date that any such form described
above expires or becomes obsolete, or after the occurrence of any event
requiring a change in the most recent such
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form previously delivered to the Lessee, deliver to the Lessee two (2) further
valid, duly completed, original copies of any such form or certification,
properly and duly executed.
(h) LIMITATION ON TAX INDEMNIFICATION. The Lessee shall not be
required to indemnify any Indemnified Person, or to pay any increased amounts to
any Indemnified Person or tax authority with respect to any Impositions pursuant
to this SECTION 11.3 to the extent that (i) any obligation to withhold, deduct,
or pay amounts with respect to Tax existed on the date such Indemnified Person
became a party to any Operative Agreement (and, in such case, the Lessee may
deduct and withhold such Tax from payments pursuant to the Operative
Agreements), or (ii) such Indemnified Person fails to comply with the provisions
of SECTION 11.2(g) (and, in such case, the Lessee may deduct and withhold all
Taxes required by law as a result of such noncompliance from payments made by
the Lessee pursuant to the Operative Agreements). With respect to any transferee
of any Financing Party (including a transfer resulting from any change in the
designation of the lending office of a Financing Party), the transferee shall
not be entitled to any greater payment or indemnification under this SECTION
11.3 than the transferor would have been entitled to.
11.4 LIBOR LENDING UNLAWFUL. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof occurring after the Closing Date shall
make it unlawful for any Financing Party to make, continue or maintain LIBOR
Loans or LIBOR Holder Advances as contemplated by the Operative Agreements, (a)
such Financing Party shall promptly give written notice of such circumstances to
the Lessee, the Lessor and the Agent (which notice shall be withdrawn whenever
such circumstances no longer exist), (b) such Financing Party shall undertake
reasonable efforts to propose a money rate comparable to LIBOR (the "LIBOR
Alternative"), (c) the commitment of such Lender or Holder, as the case may be,
hereunder to make, continue or maintain LIBOR Loans or LIBOR Holder Advances
shall forthwith be canceled and, until such time as it shall no longer be
unlawful for such Financing Party to make, continue or maintain LIBOR Loans or
LIBOR Holder Advances, such Financing Party shall then have a commitment only to
make or maintain Loans or the Holder Advances based on ABR or the LIBOR
Alternative, if any, when a LIBOR Loan or LIBOR Holder Advance is requested and
(d) such Financing Party's Loans and Holder Advances then outstanding as LIBOR
Loans or LIBOR Holder Advances, if any, shall be converted automatically to
Loans or Holder Advances based on ABR or the LIBOR Alternative, if any, on the
respective last days of the then current Interest Periods with respect to such
Loans and Holder Advances or within such earlier period as required by law. If
any such conversion of LIBOR Loans or LIBOR Holder Advances occurs on a day
which is not the last day of the then current Interest Period with respect
thereto, the Lessee shall pay to such Financing Party such amounts, if any, as
may be required pursuant to SECTION 11.6. In any such case, interest and
principal (if any) shall be payable contemporaneously with the related LIBOR
Loans or LIBOR Holder Advances of the other Financing Parties.
11.5 DEPOSITS UNAVAILABLE. If any of the Financing Parties shall have
determined that:
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to the Financing Party in its
relevant market; or
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(b) by reason of circumstances affecting the Financing Party's
relevant market, adequate means do not exist for ascertaining the interest rate
or Yield, as the case may be, applicable to such Financing Party's LIBOR Loans
or LIBOR Holder Advances;
(c) then, upon notice from such Financing Party to the Lessee
and the other Financing Parties, (x) the obligations of the Financing Parties to
make or continue any Loans or the Holder Advances as, or to convert any Loans or
the Holder Advance into, LIBOR Loans or LIBOR Holder Advances shall be
suspended, and (y) each outstanding LIBOR Loan or LIBOR Holder Advance shall
automatically convert into a Loan or Holder Advance based on ABR or the LIBOR
Alternative, if any, on the last day of the current Interest Period applicable
thereto.
11.6 INCREASED COSTS, ETC.
(a) If the adoption of or any change in a Requirement of Law
or in the interpretation or application thereof applicable to any Financing
Party, or compliance by any Financing Party with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority, in each case made subsequent to the Closing Date (or, if
later, the date on which such Financing Party becomes a Financing Party):
(i) shall subject such Financing Party to any
Imposition whatsoever with respect to any LIBOR Loans or LIBOR Holder Advances
made, continued or maintained by it or its obligation to make, continue or
maintain LIBOR Loans or LIBOR Holder Advances, or change the basis of taxation
of payments to such Financing Party in respect thereof; or
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of, Loans and the
Holder Advances, advances or other extensions of credit by, or any other
acquisition of funds by, any office of such Financing Party which is not
otherwise included in the determination of the Adjusted LIBOR hereunder; or
(iii) shall impose on such Financing Party any other
condition (excluding any Tax of any kind) whatsoever in connection with the
Operative Agreements;
(iv) and the result of any of the foregoing is to
increase the cost to such Financing Party, by an amount which such Financing
Party reasonably deems to be material, of making, continuing or maintaining
LIBOR Advances or LIBOR Holder Advances or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, upon notice to the Lessee
from such Financing Party, through the Lessor or the Agent, in accordance
herewith, during the Construction Period the Participants shall fund through
Advances and capitalize, and during the Basic Term following the Construction
Period and any Renewal Term the Lessee shall pay such Financing Party any
additional amounts necessary to compensate such Financing Party for such
increased cost or reduced amount receivable; provided, that, in any such case,
the Lessee may elect to convert the LIBOR Loans or LIBOR Holder Advances made by
such Financing Party hereunder to Loans or Holder Advances based on ABR or the
LIBOR Alternative, if any, by giving the Lessor and the Agent at least one (1)
Business Day's notice of such election, in which case during the Construction
Period, the Lessor, and during the Term, the Lessee shall promptly pay to such
Financing Party, upon demand, without duplication, such
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amounts, if any, as may be required pursuant to SECTION 11.7. All payments
required by this SECTION 11.6 shall be made by the Lessee within ten (10)
Business Days after demand by the affected Financing Party. If any Financing
Party becomes entitled to claim any additional amounts pursuant to this
subsection, it shall provide prompt notice thereof to the Lessee, through the
Lessor and Agent, certifying (x) that one of the events described in this clause
(a) has occurred and describing in reasonable detail the nature of such event,
(y) as to the increased cost or reduced amount resulting from such event, and
(z) as to the additional amount demanded by such Financing Party and a
reasonably detailed explanation of the calculation thereof (including the method
by which such Financing Party allocated such amounts to the Lessee). Such a
certificate as to any additional amounts payable pursuant to this clause
submitted by such Financing Party, through the Agent and the Lessor, to the
Lessee shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and the
Holder Advance and all other amounts payable hereunder.
(b) Each Financing Party shall use its reasonable efforts to
reduce or eliminate any claim for compensation pursuant to this SECTION 11.6,
including a change in the office of such Financing Party at which its
obligations related to this Agreement are maintained if such change will avoid
the need for or reduce the amount of, such compensation and will not, in the
reasonable judgment of such Financing Party, be otherwise disadvantageous to it.
If any such claim for compensation shall not be eliminated or waived, the Lessee
shall have the right to replace the affected Financing Party with a new
financial institution that shall succeed to the rights of such Financing Party
under this Agreement; provided, that such Financing Party shall not be replaced
hereunder until it has been paid in full such claim and all other amounts owed
to it hereunder.
11.7 FUNDING LOSSES. During the Construction Period, the Lessee agrees
to indemnify and hold harmless each Lessor Person and the Lessor agrees to
indemnify and hold harmless each other Indemnified Person, and thereafter the
Lessee agrees to indemnify and hold harmless each Indemnified Person, on an
After Tax Basis, from any loss or expense which such Indemnified Person may
sustain or incur (other than through such Person's own gross negligence or
willful misconduct) as a consequence of (a) default by the Lessee in making a
borrowing of or continuation of Loans or Holder Advances which are LIBOR Loans
or LIBOR Holder Advances after Lessee has given a notice requesting the same in
accordance with the provisions of this Agreement, (b) default by the Lessee in
making any prepayment of a Loan or Holder Advance which is a LIBOR Loans or
LIBOR Holder Advances after the Lessee has given a notice thereof in accordance
with the provisions of this Agreement, or (c) the making of a prepayment of
Loans or Holder Advances which are LIBOR Loans or LIBOR Holder Advances on a day
which is not the last day of an Interest Period with respect thereto.
11.8 CAPITAL ADEQUACY.
(a) If the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Participant with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, in each case made subsequent to
the Closing Date, has or will have
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the effect of reducing the rate of return on any Participant's or its parent
company's capital by an amount such Participant reasonably deems to be material,
as a consequence of its commitments or obligations hereunder to a level below
that which such Participant or its parent company could have achieved but for
such adoption, effectiveness, change or compliance (taking into consideration
such Participant's or its parent company's policies with respect to capital
adequacy), then, upon notice from such Participant, (i) during the Construction
Period the Participants shall fund through Advances and capitalize, and (ii)
thereafter, the Lessee shall pay to such Participant, such additional amount or
amounts as will compensate such Participant and its parent company on or After
Tax Basis for such reduction (it being understood that such parent company shall
not be reimbursed to the extent its subsidiary Participant is reimbursed by the
Lessee in connection with the same or a similar law, rule, regulation, change,
request or directive applicable to such Participant). All payments required by
this SECTION 11.8 shall be made by the Lessee within 10 Business Days after
demand by the affected Participant. The Lessee shall not be obligated to
reimburse any Participant for any reduced return incurred more than 120 days
after the date that such Participant receives actual notice of such reduced
return unless such Participant gives notice thereof to the Lessee in accordance
with this SECTION 11.8 during such 120 day period. If any Participant becomes
entitled to claim any additional amounts pursuant to this Section, it shall
provide prompt notice thereof to the Lessee, through the Agent and/or the
Lessor, certifying (x) that one of the events described in this clause (a) has
occurred and describing in reasonable detail the nature of such event, (y) as to
the increased cost or reduced amount resulting from such event and (z) as to the
additional amount demanded by such Participant and a reasonably detailed
explanation of the calculation thereof. Such a certificate as to any additional
amounts payable pursuant to this clause submitted by such Participant, through
the Agent and/or the Lessor, to the Lessee shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this
Participation Agreement and the other Operative Agreements and the payment of
the Loans, Holder Advances and all other amounts payable hereunder and
thereunder.
(b) Each Participant shall use its commercially reasonable
efforts to reduce or eliminate any claim for compensation pursuant to this
SECTION 11.8, including a change in the office of such Participant at which its
obligations related to the Operative Agreements are maintained if such change
will avoid the need for, or reduce the amount of, such compensation and will
not, in the reasonable judgment of such Participant, be otherwise
disadvantageous to it. If any such claim for compensation shall not be
eliminated or waived, the Lessee shall have the right to replace the affected
Participant with a new financial institution that shall succeed to the rights of
such Participant under the Operative Agreements; provided, however, that such
Participant shall not be replaced hereunder until it has been paid in full such
claim and all other amounts owed to it hereunder.
11.9 SPECIAL TAX INDEMNITY.
(a) Lessee shall pay and assume all liability for and does
hereby agree to indemnify each Indemnified Person and, in each case, their
accountants, lawyers, and other advisors (each, a "Tax Registration Indemnitee")
on an After Tax Basis for any tax, addition to tax, penalty or other cost as a
result of a breach, inaccuracy or incorrectness of the representation found in
SECTION 6.3(dd); provided, however, that this indemnity shall not apply to any
tax, additional tax, penalty or other cost arising from (i) the gross negligence
or willful misconduct of
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such Tax Registration Indemnitee; (ii) the inaccuracy or incompleteness of any
information provided by such Tax Registration Indemnitee to Lessee to the extent
such information is included in the registration form or other related materials
and to the extent such failure results in the imposition of increased taxes,
additions to tax, penalties or other costs; or (iii) the activities of such Tax
Registration Indemnitee unrelated to the transactions contemplated herein that
result in the transactions contemplated herein being deemed to be a confidential
corporate tax shelter if the transactions contemplated herein would not
otherwise have been deemed to be a confidential corporate tax shelter.
(b) If a written claim is made or any proceeding is commenced
by the Internal Revenue Service against any Tax Registration Indemnitee for any
amount as to which Lessee has an indemnity obligation pursuant to this SECTION
11.9, such Tax Registration Indemnitee agrees to notify the Lessee promptly in
writing of such proposed claim or proceeding, but the failure to provide such
notice shall not release Lessee from its indemnity obligation hereunder except
to the extent that it is materially adversely affected thereby. Lessee shall be
entitled, at its expense, to require that any amount for which it may be
obligated to indemnify a Tax Registration Indemnitee pursuant to this SECTION
11.9 be contested and to withhold payment during pendency of such contest (if
such forbearance is permitted by law), provided, that Lessee will pay any cost,
expense, interest or penalty associated with such forbearance. A Tax
Registration Indemnitee shall have control over any contest commenced pursuant
to this SECTION 11.9(b) but Lessee shall have, upon request, the right to
participate (including its counsel) in all proceedings and such Tax Registration
Indemnitee shall keep Lessee informed as to all material developments in such
contest and afford Lessee an opportunity to discuss with such Tax Registration
Indemnitee Lessee's interests with respect to such contest.
(c) Lessee and each Tax Registration Indemnitee agree to
cooperate with each other with respect to maintaining any required documentation
or other information in connection with the tax shelter registration provisions
of Code Section 6111, the investor list provisions of Code Section 6112 and the
disclosure statement provisions of Code Section 6011 (and any of the regulations
thereunder).
11.10 INDEMNITY PAYMENTS IN ADDITION TO LEASE OBLIGATIONS. The
Construction Agent and Lessee acknowledge and agree that the Construction
Agent's and Lessee's obligations to make indemnity payments under this SECTION
11 are separate from, in addition to, and do not reduce their obligations under
the Lease.
11.11 LESSOR INDEMNIFICATION.
(a) INDEMNIFIED LOSSES. During the Construction Period, the
Lessor, for and on behalf of the Lessor Parties, shall pay, indemnify, protect,
defend, save and keep harmless each Indemnified Person (other than the Lessor
Parties, their Affiliates, successors, assigns, directors, shareholders,
partners, officers, employees and agents) (a "Non-Lessor Party") on an After Tax
Basis from and against any Losses (as hereinafter defined) arising from Covered
Matters (as hereinafter defined), subject to the limitations set forth in this
SECTION 11.11.
(b) DEFINITIONS. For purposes of this SECTION 11.11, the
following terms shall have the meanings set forth below:
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"Covered Matters" means each of the matters set forth in
SECTION 11.1(b) or under any of SECTIONS 11.2, 11.3(a) or 11.7
("Indemnification Sections").
"Losses" means each of the Claims, costs, losses or
Impositions indemnified against pursuant to any of the
Indemnification Sections and arising during the Construction
Period.
(c) NO INDEMNIFICATION FOR CERTAIN MATTERS. The Lessor shall
not be required to indemnify or hold harmless any Non-Lessor Party hereunder
against any matter referred to in clause (a) of this SECTION 11.11 (i) to the
extent such party would be required to be indemnified by the Construction Agent
pursuant to any Indemnification Section for such matter or (ii) to the extent of
the exceptions or exclusions from indemnification contained in any of the
Indemnification Sections or in SECTION 11.1(a).
(d) LIMITATIONS ON INDEMNIFICATION BY LESSOR PARTIES. The
Lessor's obligation to indemnify and hold harmless any Non-Lessor Party under
this SECTION 11.11:
(i) is not an individual or personal obligation of the
Lessor, but solely its obligation in its capacity as a Lessor, and nothing
herein shall be construed as creating any liability on any Lessor Party,
individually or personally, to pay, indemnify or hold harmless any Non-Lessor
Party under this Section;
(ii) is not an obligation binding on the Lessor, except
to the extent of any payments received by the Lessor Parties pursuant to an
Indemnification Section;
(iii) shall be paid and discharged solely and exclusively
from amounts received by the Lessor pursuant to an Indemnification Section and
it is expressly agreed by each Non-Lessor Party that the sole recourse of each
such Person for payment or discharge of the indemnification obligations created
under this SECTION 11.11 shall be to such amounts paid by the Construction Agent
pursuant to an Indemnification Section; and
(iv) is the sole and exclusive right of each Non-Lessor
Party against the Lessor Parties, and any right to proceed against any Lessor
Party individually or otherwise under common law, federal or state securities
laws or otherwise for indemnification or contribution in connection with the
matters covered by this SECTION 11.11 is hereby expressly waived by each
Non-Lessor Party (other than claims that may be made against any Lessor Party,
individually or personally, for fraud, gross negligence or willful misconduct).
Nothing in this SECTION 11.11 is intended as or should be construed as a
limitation on the right of any Non-Lessor Party to make indemnification,
contribution or other claims of any kind against the Construction Agent, to the
extent that such claims otherwise may be made, with respect to any matter,
including indemnification for Losses of the type referred to in this SECTION
11.11.
(e) REPAYMENT TO THE LESSOR PARTIES. To the extent that any
payments made pursuant to any Indemnification Section are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid by the Lessor to a trustee, debtor in possession, receiver or other
Person under any bankruptcy law, common law or equitable cause, then to such
extent, the Non-Lessor Parties who received any such payments from the Lessor
(or any portion
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thereof) shall repay any such amounts to the Lessor, or as may otherwise be
directed by a court of competent jurisdiction.
(f) SURVIVAL, REINSTATEMENT. The indemnification obligations
of the Lessor under this SECTION 11.11 shall survive and be reinstated to the
same extent, for the same period and in the same manner as the indemnification
obligations of the Construction Agent under the applicable Indemnification
Section.
(g) INDEMNIFICATION PROCEDURES. The right of any Non-Lessor
Party to seek indemnification from the Lessor under this SECTION 11.11 is
subject to and conditioned upon compliance by any such Non-Lessor Party with the
notice, cooperation, appointment of counsel, contest rights and other provisions
in the Indemnification Sections as fully as if such Sections were set forth
herein, except that any reference in the Indemnification Sections to the
Construction Agent/Lessee shall be deemed to be a reference to the Lessor or, if
the Lessor so directs in any case, the Lessor and/or the Construction Agent for
purposes of this SECTION 11.11.
11.12 INDEMNIFICATIONS PROVIDED BY THE LESSOR IN FAVOR OF THE OTHER
INDEMNIFIED PERSONS. To the extent the Lessee or the Construction Agent is not
obligated to indemnify each Indemnified Person with respect to the various
matters described in this SECTION 11, the Lessor shall provide such indemnities
(but only to the extent amounts sufficient to pay such indemnity are funded by
the Lenders and the Holders) in favor of each Indemnified Person in accordance
with this SECTION 11.12 and shall pay all such amounts owed with respect to this
SECTION 11.12 with amounts advanced by the Lenders and the Holders (a) to the
extent, but only to the extent, amounts are available therefor with respect to
the Available Commitments and (b) unless each Lender and each Holder has
declined in writing to fund such amount. Notwithstanding any other provision in
any other Operative Agreement to the contrary, all amounts so advanced shall be
deemed added to the Project Costs.
Whether or not any of the transactions contemplated hereby shall be
consummated, the Trust hereby assumes liability for and agrees to defend,
indemnify and hold harmless each Indemnified Person on an After Tax Basis from
and against any Claims, which may be imposed on, incurred by or asserted against
an Indemnified Person by any third party, including Claims arising from the
negligence of an Indemnified Person (but not to the extent such Claims arise
from the gross negligence or willful misconduct of such Indemnified Person
itself, as determined by a court of competent jurisdiction, as opposed to gross
negligence or willful misconduct imputed to such Indemnified Person or breach of
such Indemnified Person's obligations under this Agreement, the Lease or any
other Operative Agreement) in any way relating to or arising or alleged to arise
out of the execution, delivery, performance or enforcement of this Agreement,
the Lease or any other Operative Agreement or on or with respect to any Property
or any component thereof, including Claims in any way relating to or arising or
alleged to arise out of the matters set forth in SECTION 11.1.
The Trust shall pay and assume liability for, and does hereby agree to
indemnify, protect and defend each Property and all Indemnified Persons, and
hold them harmless against, all Impositions on an After Tax Basis, and all
payments pursuant to the Operative Agreements shall be made free and clear of
and without deduction for any and all present and future Impositions.
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SECTION 12. DISTRIBUTION
12.1 BASIC RENT. Each payment of Basic Rent (and any payment of
interest or Holder Yield on overdue installments of Basic Rent) received by the
Lessor shall be distributed by the Agent to the Lenders and the Holders pro rata
in accordance with, and for application to, the Basic Rent then due, as well as
any overdue interest or Holder Yield due to the Lenders or the Holders (to the
extent permitted by applicable law) in the following order of priority:
First, to the Lenders pro rata to pay the Debt Basic Rent; and
Second, to the Lessor pro rata to pay the Lessor Basic Rent.
12.2 PURCHASE PAYMENTS BY THE LESSEE. Any payment received by the
Lessor as a result of:
(a) the purchase of the Properties in connection with the
exercise of the Purchase Option or Maturity Date Purchase Option under Section
20.1 or 20.2 of the Lease or Section 4.2(b) or Article V of the Construction
Agency Agreement, or
(b) compliance with the obligation to purchase the Properties
in accordance with Section 17.2 of the Lease or Section 4.2(b) or Article V of
the Construction Agency Agreement, or
(c) the payment of the Lease Balance in accordance with
Section 16.1 of the Lease, or
(d) the payment of the Lease Balance in accordance with
Article V of the Construction Agency Agreement,
shall be distributed by the Agent to the Lenders and the Holders in the
following order of
priority:
first, to the Lenders, pro rata, to pay the Lease Balance Debt;
and
second, to the Holders, pro rata, to pay the Lease Balance
Equity.
12.3 PAYMENT OF PARTICIPANT BALANCES. In accordance with Section 21.1
of the Lease upon the exercise of the remarketing option or upon a return of the
Properties to the Lessor or a remarketing thereof pursuant to Sections 4.2(b),
5.3 or 5.5 of the Construction Agency Agreement or Section 16.1 of the Lease,
the payment of the Maximum Residual Guarantee Amount, the Construction Period
Maximum Recourse Amount or the Permitted Lease Investment Balance to the Agent
shall be distributed by the Agent to the Lenders for application to the payment
in full of the Lease Balance Debt of each Lender, pro rata among the Lenders
without priority of one over the other in the proportion that the Lease Balance
Debt of each such Lender bears to the aggregate Lease Balance Debt of all
Lenders. Any excess shall be distributed to the Holders pro rata based upon each
Holder's respective interest in the Lease Balance Equity.
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12.4 SALES PROCEEDS OF REMARKETING OF PROPERTIES. Any payments
received by the Lessor as proceeds from the sale of the Properties sold pursuant
to the exercise of the remarketing option pursuant to Article XXI of the Lease
or in connection with termination of the Lease under Section 16.1 of the Lease,
or pursuant to any remarketing under Section 4.2(b), 5.3 or 5.5 of the
Construction Agency Agreement, together with any payment made as a result of an
appraisal pursuant to Section 21.3 of the Lease, shall be distributed by the
Agent in the funds so received in the following order of priority:
first, to cover the costs and expenses of such sale including,
if applicable, the Lessor Remarketing Fee;
second, an amount equal to the difference between (x) the
Permitted Lease Investment Balance and (y) the Construction Period Maximum
Recourse Amount, Maximum Residual Guarantee Amount or Permitted Lease Investment
Balance, if any, as the case may be, previously paid by Lessee shall be
distributed: (i) first, to the Lenders to be applied to the unpaid Lease Balance
Debt remaining after the application of SECTION 12.3; and (ii) second, to the
Holders to be applied to the unpaid Lease Balance Equity;
third, to the Lessee to the extent of the Construction Period
Maximum Recourse Amount, Maximum Residual Guarantee Amount or Permitted Lease
Investment Balance, as the case may be, previously paid to the Lessor;
fourth, (i) first, to the Lenders to be applied to the Lease
Balance Debt remaining unpaid; and (ii) second, to the Holders to be applied to
the Lease Balance Equity remaining unpaid and which, in the case of clauses (i)
and (ii) shall include the Nonrecourse Portion, if any; and
fifth, the balance, if any, shall be returned to the Lessee.
12.5 SUPPLEMENTAL RENT. All payments of Supplemental Rent received by
the Lessor (excluding any amounts payable pursuant to the preceding provisions
of this SECTION 12) shall be distributed promptly by the Agent upon receipt
thereof to the Persons entitled thereto pursuant to the Operative Agreements.
12.6 DISTRIBUTION OF PAYMENTS AFTER EVENT OF DEFAULT.
(a) During the continuance of an Event of Default and subject
to clause (b) below, all proceeds from the sale of the Properties and the
Pledged Collateral and all payments from the Lessee shall be distributed by the
Agent in the following order of priority:
first, so much of such payment or amount as shall be required to
pay or reimburse the Agent and the Lessor for any tax, fees, expense,
indemnification or other loss incurred by the Agent or the Lessor (to the extent
incurred in connection with any duties as the Agent or the Lessor, as the case
may be, and to the extent the Lessee is permitted to pay such items under the
Operative Agreements), shall be distributed to the Lessor for its own account
and that of the Agent in accordance with the amount of such payment or amount
payable to such Person;
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second, so much of such payments or amounts as shall be required
to pay the Financing Parties and the Lessor the amounts payable to them pursuant
to any expense reimbursement or indemnification provisions of the Operative
Agreements, and to the extent the Lessee is permitted to pay such items under
the Operative Agreements, shall be distributed to each Financing Party and the
Lessor without priority of one over the other in accordance with the amount of
such payment or payments payable to each such Person;
third, in the case of a sale of the Properties following an Event
of Default, as provided in SECTION 12.4; otherwise, to the Lenders for
application to pay in full the Lease Balance Debt, pro rata among the Lenders
without priority of one over the other in the proportion that the Lease Balance
Debt of each such Lender bears to the aggregate Lease Balance Debt and, in the
case where the amounts so distributed shall be insufficient to pay in full as
aforesaid, then pro rata among the Lenders without priority of one over the
other in the proportion that the Lease Balance Debt of each such Lender bears to
the aggregate Lease Balance Debt;
fourth, to the Holders to pay in full the Lease Balance Equity,
pro rata among the Holders without priority of one over the other in the
proportion that the Lease Balance Equity of each such Holder bears to the
aggregate Lease Balance Equity of all Holders and, in the case where amounts so
distributed shall be insufficient to pay in full as aforesaid, then pro rata
among the Holders without priority of one over the other in the proportion that
the Lease Balance Equity of each such Holder bears to the aggregate Lease
Balance Equity; and
fifth, the balance, if any, of such payment or amounts remaining
thereafter shall be returned to the Lessee.
(b) All payments received and amounts realized by the Lessor
in connection with any Casualty or Condemnation during the continuance of a
Default shall be distributed by the Lessor as follows:
(i) in the event that the Lessor (at the direction of
the Holders) elects to pay all or a portion of such amounts to the Lessee for
the repair of damage caused by such Casualty or Condemnation, then such amounts
shall be distributed to the Lessee, and
(ii) in the event that the Lessor (at the direction of
the Holders) elects to apply all or a portion of such amounts to the purchase
price of the Properties, then such amounts shall be distributed in accordance
with clause (a).
12.7 OTHER PAYMENTS.
(a) Except as otherwise provided in SECTIONS 12.1, 12.2, 12.6
and clause (b) below, any payment received by the Lessor for which no provision
as to the application thereof is made in the Operative Agreements or elsewhere
in this SECTION 12 (including any balance remaining after the application in
full of amounts to satisfy any expressed provision) shall be distributed pro
rata among the Lenders and the Holders without priority of one over the other,
in the proportion that the Lease Balances of each bears to the aggregate of all
the Lease Balances.
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(b) Except as otherwise provided in SECTIONS 12.1, 12.2 and
12.6, all payments received and amounts realized by the Lessor under the Lease
or otherwise with respect to the Properties to the extent received or realized
at any time after the indefeasible payment in full of the Lease Balances of all
of the Lenders and the Holders and any other amounts due and owing to the
Lenders or the Holders, shall be distributed forthwith by the Lessor, in the
order of priority set forth in SECTION 12.6(a).
(c) Except as otherwise provided in SECTIONS 12.1 and 12.2,
any payment received by the Lessor for which provisions as to the application
thereof is made in an Operative Agreement but not elsewhere in this SECTION 12
shall be distributed forthwith by the Lessor to the Person and for the purpose
for which such payment was made in accordance with the terms of such Operative
Agreement.
12.8 CASUALTY AND CONDEMNATION AMOUNTS. Subject to SECTION 12.6(b),
any amounts payable to and received by the Lessor as a result of a Casualty or
Condemnation pursuant to Section 15.1 of the Lease and the Assignment of Lease
shall be distributed as follows:
(a) all amounts payable to the Lessee for the repair of damage
caused by such Casualty or Condemnation in accordance with Section 15.1(a) of
the Lease shall be distributed to the Lessee, and
(b) all other amounts shall be distributed by the Lessor to
the Lenders and the Holders in the following order of priority:
first, to the Lenders, pro rata, to pay the Lease Balance Debt;
and
second, to the Holders, pro rata, to pay the Lease Balance
Equity.
12.9 ORDER OF APPLICATION. To the extent any payment made to any
Lender or the Lessor for any Holder pursuant to SECTIONS 12.2, 12.3, 12.4, 12.6,
12.7 or 12.8 is insufficient to pay in full the Lease Balance of such Lender or
Holder, then each such payment shall first be applied to accrued interest and
Holder Yield and then to the principal amount of the Loans and the Holder
Advances, as applicable.
SECTION 13. MISCELLANEOUS.
13.1 SURVIVAL OF AGREEMENTS. The representations, warranties,
covenants, indemnities and agreements of the parties provided for in the
Operative Agreements, and the parties' obligations under any and all thereof,
shall survive the execution and delivery of this Agreement, the construction of
any Improvements, the transfer of any Property to the Trust, the acquisition of
any Property, any disposition of any interest of the Trust in any Property or
any interest of the Holders in the Trust Estate, the payment of the Notes and
any disposition thereof and shall be and continue in effect notwithstanding any
investigation made by any party and the fact that any party may waive compliance
with any of the other terms, provisions or conditions of any of the Operative
Agreements. Except as otherwise expressly set forth herein or in other Operative
Agreements, the indemnities of the parties provided for in the Operative
Agreements shall survive the expiration or termination of any thereof.
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13.2 NOTICES. All notices required or permitted to be given under any
Operative Agreement shall be in writing. Notices may be served by certified or
registered mail, postage paid with return receipt requested; by private courier,
prepaid; by facsimile or other telecommunication device capable of transmitting
or creating a written record; or personally. Mailed notices shall be deemed
delivered five (5) days after mailing, properly addressed. Couriered notices
shall be deemed delivered when delivered as addressed, or if the addressee
refuses delivery, when presented for delivery notwithstanding such refusal.
Notices sent via facsimile shall be deemed delivered when receipt is either
confirmed by confirming transmission equipment or acknowledged by the addressee
or its office. Personal delivery shall be effective when accomplished. Unless a
party changes its address by giving notice to the other party as provided
herein, notices shall be delivered to the parties at the following addresses: If
to the Lessee or the Construction Agent, to such entity at the following
address:
Symantec Corporation
00000 Xxxxxxx Xxxxx Xxxx.
Xxxxxxxxx, XX 00000
Attention: Treasury
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Pillsbury Winthrop LLP
00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Trust, to it at the following address:
The Symantec 2001 Trust
c/o Wilmington Trust FSB
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 000 X
Xxx Xxxxx, XX 00000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to Wilmington Trust Company, to it at the following address:
Wilmington Trust FSB
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 000 X
Xxx Xxxxx, XX 00000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Agent, to it at the following address:
The Bank of Nova Scotia
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to any Holder, to it at the address set forth for such Holder
on SCHEDULE 1.2 hereof.
If to any Lender, to it at the address set forth for such Lender
on Schedule 2.1 of the Credit Agreement.
From time to time any party may designate additional parties and/or
another address for notice purposes by notice to each of the other parties
hereto. Each notice hereunder shall be effective in the manner set forth above,
or upon refusal thereof.
13.3 COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
13.4 TERMINATIONS, AMENDMENTS, WAIVERS, ETC.; UNANIMOUS VOTE MATTERS.
Each Operative Agreement may be terminated, amended, supplemented, waived or
modified only by an instrument in writing signed by, subject to Article X of the
Trust Agreement regarding termination of the Trust Agreement, the Majority
Secured Parties and the Lessee (to the extent Lessee is a party to such
Operative Agreement, and to the extent Lessee is not a party to such Operative
Agreement but is expressly accorded rights in a particular provision therein,
such provision may be terminated, amended, supplemented, waived or modified only
by an instrument in writing signed by the Majority Secured Parties and Lessee).
In addition, the Unanimous Vote Matters shall require the consent of each Lender
and each Holder affected by such matter.
Notwithstanding the foregoing, no such termination, amendment,
supplement, waiver or modification shall, without the consent of the Agent and,
to the extent affected thereby, each Lender and each Holder (collectively, the
"Unanimous Vote Matters") (i) reduce the amount of any Note or any Certificate,
extend the scheduled date of maturity of any Note, extend the scheduled
Expiration Date, extend any payment date of any Note or Certificate, reduce the
stated
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rate of interest payable on any Note, reduce the stated Holder Yield payable on
any Certificate (other than as a result of waiving the applicability of any
post-default increase in interest rates or Holder Yields), modify the priority
of or release any Lien in favor of the Agent under any Security Document,
subordinate any obligation owed to any Lender or Holder, elect to decline the
funding of any Transaction Expense with respect to SECTION 7, elect to decline
the funding of any indemnity payment by the Trust with respect to SECTION 11.8
or increase the amount or extend the expiration date of any Lender's Commitment
or the Holder Commitment of any Holder; or (ii) terminate, amend, supplement,
waive or modify any provision of this SECTION 13.4 or reduce the percentages
specified in the definitions of Majority Lenders, Majority Holders or Majority
Secured Parties, or consent to the assignment or transfer by the Trust of any of
its rights and obligations under any Credit Document or release a material
portion of the Collateral (except in accordance with SECTION 9.5) or release
Lessee from its obligations under any Operative Agreement or otherwise alter any
payment obligations of Lessee to the Lessor or any Financing Party under the
Operative Agreements; or (iii) terminate, amend, supplement, waive or modify any
provision of Section 9.1 of the Credit Agreement (which shall also require the
consent of the Agent). Any such termination, amendment, supplement, waiver or
modification shall apply equally to each of the Lenders and the Holders and
shall be binding upon all the parties to this Agreement. In the case of any
waiver, each party to this Agreement shall be restored to its former position
and rights under the Operative Agreements, and any Default or Event of Default
waived shall be deemed to be cured and not continuing; but no such waiver shall
extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon.
If at a time when the conditions precedent set forth in the Operative
Agreements to any Loan are, in the opinion of the Agent, satisfied, any Lender
shall fail to fulfill its obligations to make such Loan (any such Lender, a
"Defaulting Lender") then, for so long as such failure shall continue, the
Defaulting Lender shall (unless the Lessee and the Majority Lenders, determined
as if the Defaulting Lender were not a "Lender," shall otherwise consent in
writing) be deemed for all purposes relating to terminations, amendments,
supplements, waivers or modifications under the Operative Agreements to have no
Loans, shall not be treated as a "Lender" when performing the computation of
Majority Lenders or Majority Secured Parties, and shall have no rights under
this SECTION 13.4; provided that any action taken pursuant to the second
paragraph of this SECTION 13.4 shall not be effective as against the Defaulting
Lender.
If at a time when the conditions precedent set forth in the Operative
Agreements to any Holder Advance are, in the opinion of the Majority Holders,
satisfied, any Holder shall fail to fulfill its obligations to make such Holder
Advance (any such Holder, a "Defaulting Holder") then, for so long as such
failure shall continue, the Defaulting Holder shall (unless the Lessee and the
Majority Holders, determined as if the Defaulting Holder were not a "Holder,"
shall otherwise consent in writing) be deemed for all purposes relating to
terminations, amendments, supplements, waivers or modifications under the
Operative Agreements to have no Holder Advances, shall not be treated as a
"Holder" when performing the computation of Majority Holders or Majority Secured
Parties, and shall have no rights under this SECTION 13.4; provided that any
action taken pursuant to the second paragraph of this SECTION 13.4 shall not be
effective as against the Defaulting Holder.
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13.5 HEADINGS, ETC. The Table of Contents and headings of the various
Articles and Sections of this Agreement are for convenience of reference only
and shall not modify, define, expand or limit any of the terms or provisions
hereof.
13.6 PARTIES IN INTEREST. Except as expressly provided herein, none of
the provisions of this Agreement are intended for the benefit of any Person
except the parties hereto.
13.7 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL;
VENUE.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO RULES
RELATING TO CONFLICTS OF LAW (OTHER THAN GENERAL OBLIGATIONS LAW SECTION
5-1401). Any legal action or proceeding with respect to this Agreement or any
other Operative Agreement may be brought in the courts of the State of New York
in the City of New York or of the United States for the Southern District of New
York, and, by execution and delivery of this Agreement, each of the parties to
this Agreement hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the nonexclusive jurisdiction of such
courts. Each of the parties to this Agreement further irrevocably consents to
the service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address set out for notices pursuant to
SECTION 13.2, such service to become effective three (3) days after such
mailing. Nothing herein shall affect the right of any party to serve process in
any other manner permitted by Law or to commence legal proceedings or to
otherwise proceed against any party in any other jurisdiction.
(b) EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, WAIVES TRIAL
BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY OTHER
OPERATIVE AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
(c) Each of the parties to this Agreement hereby irrevocably
waives any objection which it may now or hereafter have to the laying of venue
of any of the aforesaid actions or proceedings arising out of or in connection
with this Agreement or any other Operative Agreement brought in the courts
referred to in subsection (a) above and hereby further irrevocably waives and
agrees not to plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an inconvenient forum.
(d) The Agent on behalf of the Lenders and the Holders shall
have the right to proceed in any court of proper jurisdiction or by self-help to
exercise or prosecute the following remedies, as applicable (i) all rights to
foreclose against any real or personal property or other security by exercising
a power of sale granted under any Operative Agreement or under applicable Law or
by judicial foreclosure and sale, including a proceeding to confirm the sale;
(ii) all rights of self-help including peaceful occupation of real property and
collection of rents, set-off and peaceful possession of personal property; (iii)
obtaining provisional or ancillary
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remedies including injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and filing an involuntary bankruptcy proceeding; and
(iv) when applicable, a judgment by confession of judgment. Preservation of
these remedies does not limit the power of an arbitrator to grant similar
remedies that may be requested by a party in a Dispute.
The parties to this Agreement and/or any other Operative Agreement agree that
they shall not have a remedy of special, punitive or exemplary damages against
any other party in any Dispute and hereby waive any right or claim to special,
punitive or exemplary damages they have now or which may arise in the future in
connection with any Dispute.
13.8 SEVERABILITY. Any provision of this Agreement that 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.
13.9 LIABILITY LIMITED.
(a) The Lenders, the Agent, the Lessee, the Trust Companies,
the Trust and the Holders each acknowledge and agree that the Trust Companies
shall not be liable or accountable under any circumstances whatsoever for or on
account of any statements, representations, warranties, covenants or obligations
stated to be those of the Trust, Borrower or Lessor except for their own gross
negligence or willful misconduct and as otherwise expressly provided herein or
in the other Operative Agreements.
(b) Anything to the contrary contained in this Agreement, the
Credit Agreement, the Notes or in any other Operative Agreement notwithstanding,
no Exculpated Person shall be personally liable in any respect for any liability
or obligation arising hereunder or in any other Operative Agreement including
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 the
Credit Agreement, the Notes, this Agreement, the Security Documents or any of
the other Operative Agreements. The Lenders, the Holders and the Agent agree
that, in the event any remedies under any Operative Agreement are pursued,
neither the Lenders, the Holders nor the Agent shall have any recourse against
any Exculpated Person, for any deficiency, loss or Claim for monetary damages or
otherwise resulting therefrom and recourse shall be had solely and exclusively
against the Trust Estate (excluding Excepted Payments) and the Lessee (with
respect to the Lessee's obligations under the Operative Agreements); but nothing
contained herein shall be taken to prevent recourse against or the enforcement
of remedies against the Trust Estate (excluding Excepted Payments) in respect of
any and all liabilities, obligations and undertakings contained herein and/or in
any other Operative Agreement. Notwithstanding the provisions of this Section,
nothing in any Operative Agreement shall: (i) constitute a waiver, release or
discharge of any indebtedness or obligation evidenced by the Notes and/or the
Certificates arising under any Operative Agreement or secured by any Operative
Agreement, but the same shall continue until paid or discharged; (ii) relieve
any Exculpated Person from liability and responsibility for (but only to the
extent of the damages arising by reason of): active waste knowingly committed by
any Exculpated Person with respect to any Property, any fraud, gross negligence
or willful misconduct on the part of any Exculpated Person; (iii) relieve any
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Exculpated Person from liability and responsibility for (but only to the extent
of the moneys misappropriated, misapplied or not turned over) (A) except for
Excepted Payments, misappropriation or misapplication by the Lessor (i.e.,
application in a manner contrary to any of the Operative Agreements) of any
insurance proceeds or condemnation award paid or delivered to the Lessor by any
Person other than the Agent, or (B) except for Excepted Payments, any rent or
other income received by the Lessor from Lessee that is not turned over to the
Agent; or (iv) affect or in any way limit the Agent's rights and remedies under
any Operative Agreement with respect to the Rents and rights and powers of the
Agent under the Operative Agreements or to obtain a judgment against the
Lessee's interest in the Properties or the Agent's rights and powers to obtain a
judgment against the Lessor or the Lessee (provided, that no deficiency judgment
or other money judgment shall be enforced against any Exculpated Person except
to the extent of the Lessor's interest in the Trust Estate (excluding Excepted
Payments) or to the extent the Lessor may be liable as otherwise contemplated in
clauses (II) and (III) of this SECTION 13.9(b)).
13.10 RIGHTS OF THE LESSEE. If at any time all obligations (i) of the
Borrower under the Credit Agreement, the Security Documents and the other
Operative Agreements and (ii) of the Lessee under the Operative Agreements have
in each case been satisfied or discharged in full, then the Lessee shall be
entitled to (a) terminate the Lease and (b) receive all amounts then held under
the Operative Agreements and all proceeds with respect to each Property. Upon
the termination of the Lease pursuant to the foregoing clause (a), the Trust
shall transfer to the Lessee all of its right, title and interest free and clear
of the Lien of the Lease, the Lien of the Security Documents and all Lessor
Liens in and to each Property then subject to the Lease and any amounts or
proceeds referred to in the foregoing clause (b) shall be paid over to the
Lessee.
13.11 FURTHER ASSURANCES. The parties hereto shall promptly cause to be
taken, executed, acknowledged or delivered, at the sole expense of the Lessee,
all such further acts, conveyances, documents and assurances as the other
parties may from time to time reasonably request in order to carry out and
effectuate the intent and purposes of this Agreement, the other Operative
Agreements and the transactions contemplated hereby and thereby (including the
preparation, execution and filing of any and all Uniform Commercial Code
financing statements, filings of the Deed of Trust and other filings or
registrations which the parties hereto may from time to time request to be filed
or effected). The Lessee, at its own expense and without need of any prior
request from any other party, shall take such action as may be reasonably
requested (including any action specified in the preceding sentence), in order
to maintain and protect all security interests provided for hereunder or under
any other Operative Agreement. In addition, in connection with the sale or other
disposition of any Property or any portion thereof, the Lessee agrees to execute
such instruments of conveyance as may be reasonably required in connection
therewith.
13.12 FINANCIAL REPORTING/TAX CHARACTERIZATION. Lessee agrees to obtain
advice from its own accountants and tax counsel regarding the financial
reporting treatment and the tax characterization of the transactions described
in the Operative Agreements. Lessee further agrees that Lessee shall not rely
upon any statement of any Financing Party or any of their respective Affiliates
and/or Subsidiaries regarding any such financial reporting treatment and/or tax
characterization.
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13.13 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
SECTION 14. RENEWALS.
14.1 EXTENSIONS OF MATURITY DATE AND EXPIRATION DATE. So long as the
Lessee has not elected the remarketing option, and no Default or Event of
Default shall then exist, the Lessee may, not earlier than one (1) year after
the Closing Date and not later than one hundred eighty (180) days prior to the
Maturity Date, direct a written request to the Lessor and the Agent that the
Expiration Date then in effect under the Lease be extended on terms mutually
agreeable to the Lessor, the Agent, the Lenders, the Holders and the Lessee. Any
renewal term shall be effective only upon the consent of all Financing Parties
and each Financing Party may grant or deny its consent to a renewal of the Lease
in its sole discretion.
[The signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
LESSEE AND CONSTRUCTION AGENT: SYMANTEC CORPORATION
By:______________________________________
Name:____________________________________
Title:___________________________________
TRUST, BORROWER AND LESSOR: THE SYMANTEC 2001 TRUST
By: Wilmington Trust Company, not in its
individual capacity but solely as trustee
By:______________________________________
Name:____________________________________
Title:___________________________________
THE AGENT, THE SOLE LEAD
ARRANGER AND A LENDER: THE BANK OF NOVA SCOTIA
By:______________________________________
Name:____________________________________
Title:___________________________________
THE DOCUMENTATION AGENT
AND A LENDER: FUJI BANK, LIMITED
By:______________________________________
Name: Mano Xxxxxxxxxx
Title:___________________________________
THE SYNDICATION AGENT
AND A LENDER: KEYBANK NATIONAL ASSOCIATION
By:______________________________________
Name: Xxxxxx Xxxxxxxx
Title:___________________________________
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THE
LENDERS: AIB INTERNATIONAL FINANCE
By:______________________________________
Name: Xxxxx X'Xxxxx
Title:___________________________________
XXXXX FARGO BANK
By:______________________________________
Name: Xxxxx Xxxxxx
Title:___________________________________
BANK HAPOALIM BM
By:______________________________________
Name:____________________________________
Title:___________________________________
By:______________________________________
Name:____________________________________
Title:___________________________________
BNP PARIBAS
By:______________________________________
Name: Xxxxxx Xxxxxx
Title:___________________________________
By:______________________________________
Name:____________________________________
Title:___________________________________
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THE
HOLDERS: SCOTIABANC INC.
By:______________________________________
Name:____________________________________
Title:___________________________________
FBTC LEASING CORP.
By:______________________________________
Name:____________________________________
Title:___________________________________
KEYBANK NATIONAL ASSOCIATION
By:______________________________________
Name: Xxxxxx Xxxxxxxx
Title:___________________________________
AIB INTERNATIONAL FINANCE
By:______________________________________
Name: Xxxxx X'Xxxxx
Title:___________________________________
WITH RESPECT TO SECTIONS 6.1
AND 11.3(g) OF THE PARTICIPATION
AGREEMENT ONLY:
THE TRUST COMPANIES: WILMINGTON TRUST COMPANY, a banking
corporation organized under the laws of
the State of Delaware
By:______________________________________
Name:____________________________________
Title:___________________________________
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71
EXECUTION COPY
SCHEDULE 1.2
HOLDER COMMITMENTS AND ADDRESSES
Amount of Holder
Name and Address of Holder Commitment
-------------------------- ----------------
1. Scotiabanc Inc. $650,000
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
2. FBTC Leasing Corp. $650,000
Xxx Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Server
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
3. KeyBank National Association $650,000
0 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
000 000xx Xxx. XX, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx and Xxx Xxxxxxxx
Telephone: (000) 000-0000
4. AIB International Finance $650,000
AIB Xxxxxxxxxxxxx Xxxxxx
X.X.X.X. Xxxxxx 0
Xxxxxxx 4869964A
Attention: Xxxxx X'Xxxxx
Telephone: 000-0-0000000
Facsimile: 000-0-0000000
A-1.
72
SCHEDULE 1.9
AGENT'S PAYMENT ADDRESS
THE BANK OF NOVA SCOTIA
New York Agency
0 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Eudia Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ABA #000000000
Credit Account #0000000
BNS San Francisco - Loan Service
Reference - Symantec Corporation
A-2.
73
SCHEDULE 6.3
EXHIBIT A
REQUISITION FORM
(PURSUANT TO SECTION 4.2 OF THE PARTICIPATION AGREEMENT)
Symantec Corporation, a Delaware corporation (the "Company") hereby
certifies as true and correct and delivers the following Requisition to The Bank
of Nova Scotia, as the agent for the Lenders (hereinafter defined) and
respecting the Security Documents, as the agent for the Lenders and the Holders
(hereinafter defined), to the extent of their interests (the "Agent"):
Reference is made herein to that certain Participation Agreement dated
as of March 30, 2001 (as supplemented, amended, modified or restated from time
to time, the "Participation Agreement") among the Company, in its capacity as
the Lessee and the Construction Agent, The Symantec 2001 Trust, Wilmington Trust
Company, the various banks and other lending institutions which are parties
thereto from time to time, as holders (the "Holders"), the various banks and
other lending institutions which are parties thereto from time to time, as
lenders (the "Lenders"), Fuji Bank, Limited, as the documentation agent, KeyBank
National Association, as the syndication agent and the Agent. Capitalized terms
used herein but not otherwise defined herein shall have the meanings set forth
therefor in the Participation Agreement.
Check one:
____ CLOSING DATE:________________
(three (3) Business Days prior notice required for LIBOR Advance; same
day for ABR Advance)
____ FUNDING DATE:_________________
(three (3) Business Days prior notice required for Advance)
1. Transaction Expenses and other fees, expenses and disbursements under
Section 7 of the Participation Agreement and any and all other amounts
contemplated to be financed under the Participation Agreement including any
broker's fees, taxes, recording fees and the like (with supporting invoices or
closing statement attached):
Party to Whom Amount Owed
Amount is Owed (in U.S. Dollars)
-------------- --------------
-------------- --------------
-------------- --------------
-------------- --------------
-------------- --------------
2. Description of Land (which shall be a legal description of the Land in
connection with an Advance to pay Property Acquisition Costs): See attached
Schedule 1
3. Description of Improvements: See attached Schedule 2
A-3.
74
4. Aggregate Loans and Holder Advances requested since the Closing Date
with respect to the Property for which Advances are requested under this
Requisition, including all amounts requested under this Requisition:
$______________ [Property]
In connection with this Requisition, the Company hereby requests that
the Lenders make Loans to the Lessor in the amount of $______________ and that
the Holders make Holder Advances to the Lessor in the amount of
$________________. The Company hereby certifies (i) that the foregoing amounts
requested do not exceed the total aggregate of the Available Commitments plus
the Available Holder Commitments and (ii) each of the provisions of the
Participation Agreement applicable to the Loans and Holder Advances requested
hereunder have been complied with as of the date of this Requisition.
The Company requests the Loans be allocated as follows:
$____________ ABR Loans
$____________ LIBOR Loans*
The Company requests the Holder Advances be allocated as follows:
$______________ ABR Holder Advances
$______________ LIBOR Holder Advances*
The Company has caused this Requisition to the executed by its duly
authorized officer as of this _____ day of ________________ 200__.
Symantec Corporation
By:______________________________________
Name:____________________________________
Title:___________________________________
*ATTACH INTEREST PERIOD SELECTION NOTICE
A-4.
75
EXECUTION COPY
SCHEDULE 1
DESCRIPTION OF LAND
(LEGAL DESCRIPTION AND STREET ADDRESS)
76
EXECUTION COPY
SCHEDULE 2
DESCRIPTION OF IMPROVEMENTS
77
EXECUTION COPY
EXHIBIT B
SYMANTEC CORPORATION
SECRETARY'S CERTIFICATE
(PURSUANT TO SECTIONS 5.1(e), (f) AND (i) OF THE PARTICIPATION AGREEMENT)
Symantec Corporation, a Delaware corporation (the "Company") DOES HEREBY
CERTIFY as follows:
1. Attached as SCHEDULE 1 is a true, correct and complete copy of
the resolutions of the Board of Directors of the Company duly adopted by the
Board of Directors of the Company on __________. Such resolutions have not been
amended, modified or rescinded since their date of adoption and remain in full
force and effect as of the date hereof.
2. Attached as SCHEDULE 2 is a true, correct and complete copy of
the Certificate of Incorporation of the Company on file in the Office of the
Secretary of State of Delaware. Such Certificate of Incorporation has not been
amended, modified or rescinded since its date of adoption and remain in full
force and effect as of the date hereof.
3. Attached as SCHEDULE 3 is a true, correct and complete copy of
the Bylaws of the Company. Such Bylaws have not been amended, modified or
rescinded since their date of adoption and remain in full force and effect as of
the date hereof.
4. The persons named below now hold the offices set forth opposite
their names, and the signatures opposite their names and titles are their true
and correct signatures.
Name Office Signature
------------------- ------------------- -------------------
------------------- ------------------- -------------------
IN WITNESS WHEREOF, the Company has caused this Secretary's Certificate
to be duly executed and delivered as of this 30th day of March, 2001.
SYMANTEC CORPORATION
By:______________________________________
Name:____________________________________
Title:___________________________________
B-1.
78
EXECUTION COPY
EXHIBIT C
SYMANTEC CORPORATION
OFFICER'S CERTIFICATE
(PURSUANT TO SECTION 5.1(g) OF THE PARTICIPATION AGREEMENT)
Symantec Corporation, a Delaware corporation (the "Company"), DOES
HEREBY CERTIFY as follows:
5. Each and every representation and warranty of Lessee contained in
the Operative Agreements to which it is a party is true and correct in all
material respects on and as of the Closing Date.
6. No Default or Event of Default by Lessee has occurred and is
continuing under any Operative Agreement.
7. Each Operative Agreement to which Lessee is a party is in full
force and effect with respect to it.
8. The Lessee and the Construction Agent have duly performed and
complied in all material respects with all covenants, agreements and conditions
contained in the Participation Agreement (hereinafter defined) or in any
Operative Agreement required to be performed or complied with by either on or
prior to the date hereof.
Capitalized terms used in this Officer's Certificate and not otherwise defined
herein have the respective meanings ascribed thereto in the Participation
Agreement dated as of March 30, 2001 among the Company, as the Lessee and as the
Construction Agent, The Symantec 2001 Trust, Wilmington Trust Company, the
various banks and other lending institutions which are parties thereto from time
to time, as holders (the "Holders"), the various banks and other lending
institutions which are parties thereto from time to time, as lenders (the
"Lenders"), Fuji Bank, Limited, as the documentation agent, KeyBank National
Association, as the syndication agent and The Bank of Nova Scotia, as the
administrative agent for the benefit and on behalf of the Lenders and with
respect to the Security Documents, as agent for the benefit and on behalf of the
Lenders and the Holders, to the extent of their respective interests, and as the
Sole Lead Arranger.
IN WITNESS WHEREOF, the Company has caused this Officer's Certificate to
be duly executed and delivered as of this ___ day of ______________ 2001.
SYMANTEC CORPORATION
By:______________________________________
Name:____________________________________
Title:___________________________________
C-1.
79
EXECUTION COPY
EXHIBIT D
[TRUST]
CERTIFICATE
(PURSUANT TO SECTION 5.1(p) OF THE PARTICIPATION AGREEMENT)
THE SYMANTEC 2001 TRUST, a Delaware business trust (the "Trust"), DOES
HEREBY CERTIFY as follows:
1. Each and every representation and warranty of the Trust contained
in the Operative Agreements to which it is a party is true and correct on and as
of the date hereof.
2. Each Operative Agreement to which the Trust is a party is in full
force and effect with respect to it.
3. The Trust has duly performed and complied with all covenants,
agreements and conditions contained in the Participation Agreement (hereinafter
defined) or in any Operative Agreement required to be performed or complied with
by it on or prior to the date hereof.
4. The provisions of Section 13.9 of the Participation Agreement,
referenced below, shall apply to this Certificate.
Capitalized terms used in this Certificate and not otherwise defined herein have
the respective meanings ascribed thereto in the Participation Agreement dated as
of March 30, 2001 among Symantec Corporation, as the Lessee and as the
Construction Agent, the Trust, Wilmington Trust Company, the various banks and
other lending institutions which are parties thereto from time to time, as
holders (the "Holders"), the various banks and other lending institutions which
are parties thereto from time to time, as lenders (the "Lenders"), Fuji Bank,
Limited, as the documentation agent, KeyBank National Association, as the
syndication agent and The Bank of Nova Scotia, as the administrative agent for
the benefit and on behalf of the Lenders and with respect to the Security
Documents, as agent for the benefit and on behalf of the Lenders and the
Holders, to the extent of their respective interests, and as the Sole Lead
Arranger.
IN WITNESS WHEREOF, the Trust has caused this Certificate to be duly
executed and delivered as of this ____ day of ______________ 2001.
THE SYMANTEC 2001 TRUST
By: Wilmington Trust Company, not in its
individual capacity but solely as trustee
By:__________________________________
Name:________________________________
Title:_______________________________
D-1.
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EXECUTION COPY
EXHIBIT E
SYMANTEC CORPORATION
FORM OF LESSEE COMPLETION CERTIFICATE
(PURSUANT TO SECTION 5.4(b) OF THE PARTICIPATION AGREEMENT)
SYMANTEC CORPORATION, a Delaware corporation, ("Lessee" and
"Construction Agent"), pursuant to that certain Participation Agreement, dated
as of March 30, 2001 among Lessee, Construction Agent, The Symantec 2001 Trust
(the "Trust"), Wilmington Trust Company, the various banks and other lending
institutions which are parties thereto from time to time, as holders (the
"Holders"), the various banks and other lending institutions which are parties
thereto from time to time, as lenders (the "Lenders"), Fuji Bank, Limited, as
the documentation agent, KeyBank National Association, as the syndication agent
and The Bank of Nova Scotia, as the administrative agent for the benefit and on
behalf of the Lenders and with respect to the Security Documents, as agent for
the benefit and on behalf of the Lenders and the Holders, to the extent of their
respective interests, and as the Sole Lead Arranger (the "Participation
Agreement"), does hereby certify as follows that:
(a) The construction of the improvements (the "Improvements") on
the property commonly known as ________________________ (the "Property")
has been completed substantially in accordance with the applicable Plans
and Specifications and in compliance with all material Legal
Requirements and Insurance Requirements, and the Property is ready for
occupancy and use.
(b) All utilities to adequately service the Improvements for
their intended use are available and "tapped on" and hooked up pursuant
to adequate permits (including any that may be required under applicable
Environmental Laws).
(c) Access to the Improvements for pedestrians and motor vehicles
from publicly dedicated streets and public highways is available.
All capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in Annex A to the Participation Agreement.
IN WITNESS WHEREOF, I have signed my name in the capacity set forth
above on this ____ day of ____________ 200__.
SYMANTEC CORPORATION, a Delaware
corporation, as Lessee and Construction Agent
By:______________________________________
Name:____________________________________
Title:___________________________________
E-1.
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EXECUTION COPY
EXHIBIT F
SYMANTEC CORPORATION
OFFICER'S COMPLIANCE CERTIFICATE
(PURSUANT TO SECTION 8.4(a)(i) OF THE PARTICIPATION AGREEMENT)
The undersigned, on behalf of Symantec Corporation, a Delaware
corporation (the "Company"), hereby certifies to The Bank of Nova Scotia, as
agent for the Lenders and the Holders, to the extent of their interests (the
"Agent"), under the Participation Agreement dated as of March 30, 2001 (as
amended, supplemented, modified or restated from time to time, the
"Participation Agreement") among the Company in its capacity as the Lessee and
the Construction Agent, The Symantec 2001 Trust, Wilmington Trust Company, the
Holders, the Lenders, Fuji Bank, Limited, as the documentation agent, KeyBank
National Association, as the syndication agent and the Agent, as follows:
1. This Certificate is delivered to you pursuant to Section
8.4(a)(i) of the Participation Agreement. Capitalized terms used herein and not
defined herein shall have the meanings assigned thereto in the Participation
Agreement.
2. I have reviewed the financial statements of the Company and its
Subsidiaries dated as of ___________, ______ for the fiscal quarter ended
____________________, and such statements fairly present the financial condition
of the Company and its Subsidiaries as of the dates indicated and the results of
its operations and cash flows for the period indicated.
3. I have reviewed the terms of the Operative Agreements to which
the Company is a party and have made, or caused to be made under my supervision,
a review in reasonable detail of the transactions and the condition of the
Company and its Subsidiaries at the end of the accounting period covered by the
financial statements referred to in Paragraph 2 above. Such review has not
disclosed the existence at the end of such accounting period of any condition or
event that constitutes a Default or Event of Default.
4. The ratios and calculations determining such figures are set
forth on the attached Schedule 1 and the Company and its Subsidiaries are in
compliance with the covenants contained in Section 8.4(i) of the Participation
Agreement as shown on such Schedule 1.
WITNESS the following signature as of the ____ day of ______________
2001.
SYMANTEC CORPORATION
By:______________________________________
Name:____________________________________
Title:___________________________________
F-1.
82
EXECUTION COPY
SCHEDULE 1
TO
OFFICER'S COMPLIANCE CERTIFICATE
AS OF FISCAL QUARTER ENDED _______
83
DISTRIBUTION LIST
The Bank of Nova Scotia, as the Agent, the Sole Lead Arranger and a Lender
Fuji Bank, Limited, as the Documentation Agent and a Lender
KeyBank National Association, as the Syndication Agent, a Lender and a Holder
AIB International Finance, as a Lender and a Holder
Xxxxx Fargo Bank, as a Lender
BNP Paribas, as a Lender
Scotiabanc Inc., as a Holder
Fuji Bank, Limited, as a Holder
The various banks and other lending institutions which are parties to the
Participation Agreement from time to time, as additional Holders
The various banks and other lending institutions which are parties to the
Participation Agreement from time to time, as additional Lenders
Symantec Corporation, as the Lessee and the Construction Agent
The Symantec 2001 Trust
Wilmington Trust Company
