EXHIBIT 10.AAc
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AMENDED AND RESTATED PARTICIPATION AGREEMENT
Dated as of May 8, 2000
among
TECH DATA CORPORATION,
as Construction Agent,
TECH DATA CORPORATION,
as Lessee,
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
formerly known as First Security Bank of Utah, N.A.
not individually, except as expressly
stated herein, but solely as Owner Trustee
under the TD 1996 Real Estate Trust,
THE VARIOUS BANKS AND OTHER
LENDING INSTITUTIONS WHICH ARE PARTIES
HERETO FROM TIME TO TIME,
as the Holders,
THE VARIOUS BANKS AND OTHER
LENDING INSTITUTIONS WHICH
ARE PARTIES HERETO FROM TIME TO TIME,
as the Lenders,
and
BANK OF AMERICA, N.A.,
successor in interest to NationsBank, N.A. (South),
as Administrative Agent for the Lenders,
and
BANK ONE, N.A.,
as Syndication Agent,
SCOTIABANC, INC.,
as Documentation Agent,
and
FIRST UNION NATIONAL BANK,
as Managing Agent
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TABLE OF CONTENTS
PAGE
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SECTION 1. THE LOANS.....................................................................................1
SECTION 2. HOLDER FUNDINGS...............................................................................2
SECTION 3. SUMMARY OF TRANSACTIONS.......................................................................2
3.1. Operative Agreements..........................................................................2
3.2. Property Purchase.............................................................................2
3.3. Construction of Improvements; Lease or Disposition of Properties..............................2
3.4. Repayment of Existing Loans and Existing Holder Fundings......................................2
3.5. Increase in Commitments and Holder Commitments................................................3
SECTION 4. THE CLOSINGS..................................................................................3
4.1. Initial Closing Date..........................................................................3
4.2. Initial Closing Date; Property Closing Dates; Construction Fundings...........................3
SECTION 5. FUNDINGS; REPORTING REQUIREMENTS ON COMPLETION DATE; CONSTRUCTION AGENT DELIVERY OF NOTICES;
INCREASE IN COMMITMENTS AND HOLDER COMMITMENTS; IMPROVEMENTS ON COMPLETED PROPERTY;
INTERCREDITOR AGREEMENT...................................................................... 3
5.1. General.......................................................................................3
5.2. Procedures for Funding........................................................................4
5.3. Conditions to the Holders' and the Lenders' Obligations to advance
funds on the Initial Closing Date or funds for the Acquisition of
Property......................................................................................6
5.4. Conditions to the Holders' and the Lenders' Obligations to Make
Construction Fundings for the Commencement of Construction of any
Improvements.................................................................................11
5.5. Conditions to the Holders' and the Lenders' Obligations to Make
Construction Fundings for the Ongoing Construction on any Property
Prior to the Construction Period Termination Date............................................13
5.6. Reporting and Delivery Requirements on Completion Date.......................................14
5.7. Construction Agent Delivery of Allocation Notice and Construction
Budget Modifications.........................................................................14
5.8. Inspection of Documents; Hold Harmless; Removal of Properties................................15
5.9. Unilateral Right to Increase the Commitments and the Holder
Commitments..................................................................................15
5.10. Expansion of Improvements for a Completed Property...........................................15
5.11. Intercreditor Agreement......................................................................16
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SECTION 6. CONDITIONS OF THE INITIAL CLOSING............................................................17
6.1. Conditions to the Lessor's and the Holders' Obligations......................................17
6.2. Conditions to the Lessee's Obligations.......................................................18
6.3. Conditions to the Agent's Obligations........................................................20
SECTION 7. REPRESENTATIONS AND WARRANTIES ON THE INITIAL CLOSING DATE...................................20
7.1. Representations and Warranties of the Construction Agent and the Lessee......................20
SECTION 8. REPRESENTATIONS AND WARRANTIES ON FUNDING DATES..............................................28
8.1. Representations and Warranties on Property Closing Dates.....................................28
8.2. Representations and Warranties Upon Initial Construction Fundings............................30
8.3. Representations and Warranties Upon the Date of Each Construction
Funding that is not an Initial Construction Funding..........................................32
SECTION 9. PAYMENT OF CERTAIN EXPENSES..................................................................32
9.1. Transaction Expenses.........................................................................32
9.2. Certain Fees and Expenses....................................................................33
9.3. Commitment Fee and Holder Commitment Fee.....................................................34
SECTION 10. OTHER COVENANTS AND AGREEMENTS...............................................................34
10.1. Cooperation with the Construction Agent or the Lessee........................................34
10.2. Covenants of the Owner Trustee and the Holders...............................................35
10.3. Lessee Covenants, Consent and Acknowledgment; Construction Agent
Covenants....................................................................................37
10.4. Sharing of Certain Payments..................................................................39
10.5. Grant of Easements, Voting at Meetings, etc..................................................39
10.6. Release of Liens on Certain Equipment........................................................39
SECTION 11. CREDIT AGREEMENT AND TRUST AGREEMENT.........................................................40
11.1. Construction Agent's and Lessee's Credit Agreement Rights....................................40
11.2. Construction Agent's and Lessee's Trust Agreement Rights.....................................41
SECTION 12. TRANSFER OF INTEREST.........................................................................42
12.1. Restrictions on Transfer.....................................................................42
12.2. Effect of Transfer...........................................................................42
SECTION 13. INDEMNIFICATION..............................................................................42
13.1. General Indemnity............................................................................42
13.2. General Tax Indemnity........................................................................45
13.3. Environmental Indemnity; Funding/Contribution Indemnity......................................49
13.4. Additional Provisions Regarding Indemnification During Construction
Period of a Property.........................................................................50
13.5. Indemnification provided by the Owner Trustee in Favor of the Other
Indemnified Persons..........................................................................50
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SECTION 14. MISCELLANEOUS................................................................................51
14.1. Survival of Agreements.......................................................................51
14.2. No Broker, etc...............................................................................52
14.3. Transmission and Effectiveness of Communications and Signatures..............................52
14.4. Counterparts.................................................................................53
14.5. Terminations, Amendments, Waiver, Etc.; Unanimous Vote Matters...............................53
14.6. Headings, etc................................................................................55
14.7. Parties in Interest..........................................................................55
14.8. GOVERNING LAW; WAIVERS OF JURY TRIAL.........................................................55
14.9. Submission to Jurisdiction; Waivers..........................................................55
14.10. Severability.................................................................................56
14.11. Liability Limited............................................................................56
14.12. Rights of Lessee.............................................................................57
14.13. Further Assurances...........................................................................57
14.14. Calculations under Operative Agreements......................................................58
14.15. Confidentiality..............................................................................58
14.16. Calculation of Rent, Interest, Holder Yield and Fees.........................................59
Schedule 1 Initial Holders SCH-1
Schedule 7.1(t) Environmental Conditions..............................................................SCH-7.1.1
Schedule 14.3 FUNDING OFFICES, ADDRESSES FOR NOTICES...............................................SCH-14.3.1
EXHIBIT A REQUISITION FORM......................................................................................A-1
Schedule 1 Legal Description of Land..................................................................A-4
Schedule 2 Description of Improvements................................................................A-5
Schedule 3 Description of Equipment...................................................................A-6
Schedule 4 Work.......................................................................................A-7
EXHIBIT B TECH DATA CORPORATION OFFICER'S CERTIFICATE........................................................B-1
Schedule 1 [itemized expenditures]....................................................................B-3
EXHIBIT C FORM OF OPINION OF COUNSEL TO LESSEE, CONSTRUCTION AGENT AND GUARANTORS............................C-1
EXHIBIT D TECH DATA CORPORATION OFFICER'S CERTIFICATE........................................................D-1
EXHIBIT E TECH DATA CORPORATION SECRETARY'S CERTIFICATE......................................................E-1
EXHIBIT F FIRST SECURITY BANK, NATIONAL ASSOCIATION OFFICER'S CERTIFICATE....................................F-1
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EXHIBIT G FIRST SECURITY BANK, NATIONAL ASSOCIATION CERTIFICATE OF ASSISTANT SECRETARY.......................G-1
EXHIBIT H FORM OF OPINION OF COUNSEL TO FIRST SECURITY BANK, NATIONAL ASSOCIATION............................H-1
EXHIBIT I EXISTING PROPERTIES LEGAL DESCRIPTIONS.............................................................I-1
Appendix A Rules of Usage and Definitions............................................................Appendix A-1
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AMENDED AND RESTATED PARTICIPATION AGREEMENT
THIS AMENDED AND RESTATED PARTICIPATION AGREEMENT, dated as of May 8,
2000 (as amended, modified, restated or supplemented from time to time, this
"Agreement"), is by and among TECH DATA CORPORATION, a Florida corporation (the
"Construction Agent"); TECH DATA CORPORATION, as Lessee (the "Lessee ); FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association formerly
known as First Security Bank of Utah, N.A., not individually (in its individual
capacity, the "Trust Company"), except as expressly stated herein, but solely as
Owner Trustee under the TD 1996 Real Estate Trust (the "Owner Trustee" or the
"Lessor"); BANK OF AMERICA, N.A., a national banking association, successor in
interest to NationsBank, N.A. (South), as Administrative Agent (in such
capacity, the "Agent") for the Lenders; BANK OF AMERICA, N.A. and the various
other banks and lending institutions which are parties hereto from time to time
as Holders; BANK OF AMERICA, N.A. and the various other banks and lending
institutions which are parties hereto from time to time as Lenders. Capitalized
terms used but not otherwise defined in this Agreement shall have the meanings
set forth in Appendix A hereto.
WHEREAS, the Construction Agent, the Lessee, the Owner Trustee, the
Agent, and the Holder party thereto have entered in to that certain
Participation Agreement dated as of April 26, 1996 (as amended, the "Existing
Participation Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Existing
Participation Agreement upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the Existing Participation Agreement is hereby amended and
restated in its entirety as follows, and the parties hereby agree as follows:
SECTION 1. THE LOANS.
The Lenders have agreed to make Loans to the Lessor from time to time
in an aggregate principal amount of up to the aggregate amount of the
Commitments of the Lenders in order for the Lessor to acquire the Properties,
Equipment and certain Improvements and to develop and construct certain
Improvements and install certain Equipment in accordance with the Agency
Agreement and the terms and provisions hereof, and in consideration of the
receipt of the proceeds of such Loans, the Lessor will issue the Notes (together
with any note or notes issued in exchange or substitution therefor in accordance
with the Credit Agreement, the "Notes"). The Loans shall be made and the Notes
shall be issued pursuant to the Credit Agreement. Pursuant to SECTION 5 of this
Agreement and SECTION 2 of the Credit Agreement, the Loans will be made to the
Lessor from time to time upon the appropriate submission by the Construction
Agent of a Requisition therefor, in accordance with this Agreement and the other
Operative Agreements. The Loans and the obligations of the Lessor under the
Credit Agreement shall be secured by the Collateral. The Lessee and the
Construction Agent agree that each Property shall be improved for business
purposes and shall not merely be held as unimproved Land for speculative
purposes.
SECTION 2. HOLDER FUNDINGS.
Subject to the terms and conditions of this Agreement and the Trust
Agreement and in reliance on the representations and warranties of each of the
parties hereto contained herein or made pursuant hereto on each date Fundings
are made in accordance with SECTION 5 hereof, each Holder shall make a Holder
Funding on a pro rata basis to the Owner Trustee with respect to the TD 1996
Real Estate Trust based on its Holder Commitment in an amount in immediately
available funds such that the aggregate of all Holder Fundings shall be three
percent (3%) of the amount of the Funding being funded on such date; provided,
no Holder shall be obligated for any Holder Funding in excess of its pro rata
share of the Available Holder Commitment. The aggregate amount of Holder
Fundings shall be up to the aggregate amount of the Holder Commitments. No
prepayment or any other payment with respect to any Funding shall be permitted
such that the Holder Funding with respect to such Funding is less than 3% of the
outstanding amount of such Funding, except in connection with termination or
expiration of the Term or in connection with the exercise of remedies relating
to the occurrence of a Lease Event of Default. The representations, warranties,
covenants and agreements of the Holders herein and in the other Operative
Agreements are several, not joint, and not joint and several.
SECTION 3. SUMMARY OF TRANSACTIONS.
3.1. OPERATIVE AGREEMENTS. As of the date hereof (the "Initial Closing
Date"), each of the respective parties hereto and thereto shall execute and
deliver this Agreement, the Lease, the Agency Agreement, the Credit Agreement,
the Notes, the Certificates, the Trust Agreement, the Security Agreement and
such other documents, instruments, certificates and opinions of counsel as
agreed to by the parties hereto.
3.2. PROPERTY PURCHASE. On each Property Closing Date and subject to
the terms and conditions of this Agreement (a) the Holders will each make a
Holder Funding in accordance with SECTIONS 2 AND 5 of this Agreement and the
terms and provisions of the Trust Agreement, (b) the Lenders will make Loans in
accordance with SECTIONS 1 AND 5 of this Agreement and the terms and provisions
of the Credit Agreement, and (c) the Lessor will purchase, or lease pursuant to
a Ground Lease, the applicable Property identified by the Construction Agent,
and grant the Agent a Lien on such Property by execution of the required
Security Documents.
3.3. CONSTRUCTION OF IMPROVEMENTS; LEASE OR DISPOSITION OF PROPERTIES.
Construction Fundings will be made with respect to particular Improvements to be
constructed and with respect to ongoing Work regarding the Equipment and ongoing
construction of particular Improvements, in each case, pursuant to the terms and
conditions of this Agreement and the Agency Agreement. The Construction Agent
will act as a construction agent on behalf of the Lessor respecting such Work
and the construction of such Improvements and the expenditures of the
Construction Fundings related thereto. The Construction Agent shall promptly
notify the Lessor upon Completion of the Improvements with respect to each
Property.
3.4 REPAYMENT OF EXISTING LOANS AND EXISTING HOLDER FUNDINGS. (In order
to re-align outstanding Loans and Holder Fundings with the Commitments and
Holder Commitments, as amended and restated by this Agreement and the other
Operative Agreements) on the Initial
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Closing Date, the Lenders and Holders shall make Fundings to the Borrower, the
proceeds of which Fundings will be used immediately to (a) repay to the
respective Existing Lenders the outstanding principal amount of Existing Loans
and (b) repay to the respective Existing Holders the outstanding principal
amount of Existing Holder Fundings.
3.5. INCREASE IN COMMITMENTS AND HOLDER COMMITMENTS. On any date prior
to the Maturity Date, the Construction Agent may elect to increase the Total
Commitments and Total Holder Commitment by giving written notice of such
increase to the Agent, PROVIDED that (a) such increase shall be apportioned as
follows: 87% to the Total Commitment for Series A Loans, 10% to the Total
Commitment for Series B Loans, and 3% to the Total Holder Commitment; (b) the
sum of (i) the Total Commitments with respect to Series A Loans and Series B
Loan and (ii) the Total Holder Commitment shall not exceed $175,000,000; and (c)
in no event shall any Commitment of any Lender, Holder or other Person be
increased without the prior written consent of such Lender, Holder or other
Person.
SECTION 4. THE CLOSINGS.
4.1. INITIAL CLOSING DATE. All documents and instruments required to be
delivered on the Initial Closing Date shall be delivered at the offices of Xxxxx
Xxxxx Mulliss & Xxxxx, L.L.P., Charlotte, North Carolina, or at such other
location as may be determined by the Lessor, the Agent and the Lessee.
4.2. INITIAL CLOSING DATE; PROPERTY CLOSING DATES; CONSTRUCTION
FUNDINGS. The Construction Agent shall deliver to the Lessor and the Agent a
requisition (a "Requisition"), in the form attached hereto as EXHIBIT A or in
such other form as is reasonably satisfactory to the Lessor, the Construction
Agent and the Agent (together with such additional schedules, affidavits,
releases, waivers, statements, invoices, bills, and other documents,
certificates and information required by the Agent), in connection with (a) the
Initial Closing Date relating to the repayment of outstanding Existing Loans and
Existing Holder Fundings on such date, and relating to the Transaction Expenses
and other fees, expenses and disbursements payable by the Lessor pursuant to
SECTION 9.1(A) with invoices (in form and substance reasonably acceptable to the
Agent and the Lessor) for such Transaction Expenses and other fees, expenses and
disbursements attached to such Requisition, (b) each Property Closing Date
relating to each Acquisition Funding pursuant to SECTION 5.3 and (c) each date
of a Construction Funding pursuant to SECTIONS 5.4 OR 5.5.
SECTION 5. FUNDINGS; REPORTING REQUIREMENTS ON COMPLETION DATE;
CONSTRUCTION AGENT DELIVERY OF NOTICES; INCREASE IN COMMITMENTS AND HOLDER
COMMITMENTS; IMPROVEMENTS ON COMPLETED PROPERTY; INTERCREDITOR AGREEMENT.
5.1. GENERAL. To the extent funds have been made available to the
Lessor as Loans by the Lenders and Holder Fundings by the Holders, the Lessor
will use such funds from time to time in accordance with the terms and
conditions of this Agreement and the other Operative Agreements (i) to pay
interest regarding the Loans relating to a Property and to pay the Holder Yield
regarding the Holder Fundings relating to a Property, in each case to the extent
accrued
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under the Credit Agreement or Trust Agreement (as the case may be) during the
period prior to the Basic Rent Commencement Date with respect to such Property,
(ii) at the direction of the Construction Agent to acquire Properties (including
Equipment) in accordance with the terms of this Agreement, the Agency Agreement,
the Lease and the other Operative Agreements, (iii) to make advances to the
Construction Agent to permit the testing, engineering, installation,
development, construction, modification, design and renovation, as applicable,
of Improvements and Equipment in accordance with the terms of the Agency
Agreement, the Lease and the other Operative Agreements, (iv) to pay Transaction
Expenses, fees, expenses and other disbursements payable by the Lessor under
SECTIONS 9.1(A) AND (B), and (v) to repay the outstanding principal amount of
Existing Loans and Existing Holder Fundings.
5.2. PROCEDURES FOR FUNDING.
(a) The Construction Agent shall designate the date for
Fundings hereunder in accordance with the terms and provisions hereof;
provided, however, it is understood and agreed that no more than one
(1) Funding may be requested during any calendar month other than
Acquisition Fundings for New Properties. Not less than (i) one (1)
Business Day prior to the date of any requested Base Rate Funding or
(ii) three (3) Business Days prior to the date of any requested
Eurodollar Funding, the Construction Agent shall deliver to the Lessor
and the Agent, (A) with respect to the Initial Closing Date and each
Property Closing Date, a Requisition as described in SECTION 4.2 hereof
(including without limitation a legal description of the Land, a
schedule of the Improvements, if any, and a schedule of the Equipment,
if any, to be acquired on such date, and a schedule of the Work, if
any, to be performed, each of the foregoing in a form reasonably
acceptable to the Lessor and the Agent) and (B) with respect to each
Construction Funding, a Requisition identifying (among other things)
the Property to which such Work relates. Each such Requisition (other
than a Requisition for an Acquisition Funding) shall be delivered to
the Lessor and the Agent on a date between (and including) the first
(1st) and the fifteenth (15th) day of a calendar month.
(b) Each Requisition shall: (i) be irrevocable, (ii) request
funds in an amount that is not in excess of the total aggregate of the
Available Commitments plus the Available Holder Commitments at such
time, and (iii) request that the Holders make Holder Fundings and that
the Lenders make Loans to the Lessor for repayment of Existing Loans
and Existing Holder Fundings or the payment of the Property Acquisition
Costs (in the case of an Acquisition Funding) or other Property Costs,
including the cost of Improvements (in the case of a Construction
Funding) that have previously been incurred and were not subject to a
prior Requisition, in each case as specified in the Requisition.
(c) Subject to the terms and conditions of the Credit
Agreement and the Trust Agreement and subject to the satisfaction of
the conditions precedent set forth in SECTIONS 5.3, 5.4 or 5.5, as
applicable, on each Property Closing Date or the date on which the
Construction Funding is to be made, as applicable,
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(i) the Lenders shall make Loans to the Lessor in an
aggregate amount equal to 97% of the sum of (A) the Requested
Funds specified in any Requisition, (B) any additional amount
of Transaction Expenses and other fees, taxes, expenses and
disbursements (as described in SECTION 9.1(A) AND 9.1(B))
(unless such funding of fees, taxes, expenses, disbursements
or Transaction Expenses is declined in writing by each Lender
and each Holder, such decision to be in the sole discretion of
each Lender and each Holder), and (C) any additional amount
respecting any indemnity payment (as described in SECTION
13.5) (unless such indemnity payment is declined in writing by
each Lender and each Holder, in the sole discretion of each
Lender and each Holder) -- up to an aggregate principal amount
equal to the Available Commitments (such Loans to be
apportioned 87% to Series A Loans and 10% to Series B Loans);
(ii) each Holder shall make a pro rata Holder Funding
based on its Holder Commitment in an amount such that the
aggregate of all Holder Fundings at such time shall be 3% of
the sum of (A) the Requested Funds specified in any
Requisition, (B) any additional amount of Transaction Expenses
and other fees, taxes, expenses and disbursements (as
described in SECTION 9.1(A) AND 9.1(B)) (unless such funding
of fees, taxes, expenses, disbursements or Transaction
Expenses is declined in writing by each Lender and each
Holder, such decision to be in the sole discretion of each
Lender and each Holder), and (C) any additional amount
respecting any indemnity payment (as described in SECTION
13.5) (unless such indemnity payment is declined in writing by
each Lender and each Holder, in the sole discretion of each
Lender and each Holder) -- provided no such Holder Funding
shall exceed such Holder's pro rata share of the Available
Holder Commitments; and
(iii) the total amount of such Loans and Holder
Fundings made on such date shall (w) be used by the Lessor to
pay the Property Acquisition Costs within three (3) Business
Days of the receipt by the Lessor of such Funding (in the case
of a Property Closing Date), (x) be used by the Lessor on the
date of such Funding to pay interest regarding the Loans
relating to a Property and to pay the Holder Yield regarding
the Holder Fundings relating to a Property, in each case to
the extent accrued under the Credit Agreement or Trust
Agreement (as the case may be) during the period prior to the
Completion Date with respect to such Property, (y) be used by
the Lessor to pay Transaction Expenses, fees, taxes, expenses,
other disbursements and indemnities to the extent permitted
under SECTIONS 5.3, 5.4, 5.5, 9.1(A), 9.1(B) OR 13.5 (as
applicable), or (z) be disbursed by the Lessor, on the date of
such Funding, to the Construction Agent or the Lessee to pay
Property Costs, as applicable. Any such amounts held by the
Lessor (or the Agent on behalf of the Lessor) shall be subject
to the lien of the Security Agreement.
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5.3. CONDITIONS TO THE HOLDERS' AND THE LENDERS' OBLIGATIONS TO ADVANCE
FUNDS ON THE INITIAL CLOSING DATE OR FUNDS FOR THE ACQUISITION OF PROPERTY.
(a) The obligations of each Holder to make Holder Fundings,
and of each Lender to make Loans, to the Lessor on the Initial Closing
Date for the purpose of (1) providing funds to the Lessor necessary to
pay Transaction Expenses, fees, expenses and other disbursements
payable by the Lessor under SECTION 9.1 of this Agreement and (2)
repaying to the respective Existing Lender or Existing Holder, the
entire outstanding principal amount of each Existing Loan and each
Existing Holder Funding, are subject to the prior or contemporaneous
satisfaction or waiver of the following conditions precedent:
(i) the correctness in all material respects on
such date of the representations and warranties of the
Owner Trustee, the Construction Agent, the Lessee and the
Holders (other than such Holder) contained herein and in
each of the other Operative Agreements;
(ii) the performance in all material respects by
the Construction Agent and the Lessee of their respective
agreements contained herein and in the other Operative
Agreements which covenants are to be performed by them on
or prior to such date;
(iii) the satisfaction of all conditions to any
such Holder Funding or Loan set forth in any Operative
Agreement;
(iv) the Agent and the Owner Trustee shall have
received a fully executed copy of a counterpart of the
respective Requisition, appropriately completed;
(v) the Agent shall have received (in form and
substance satisfactory to the Agent and the Majority
Financing Parties) fully executed originals of Operative
Agreements and the Intercreditor Agreement;
(vi) the Agent shall have received (in form and
substance satisfactory to the Agent) fully-executed
originals of all documents (including without limitation
modifications of existing mortgages, deeds of trust,
financing statements, lease supplements, and memoranda of
leases) deemed necessary by the Agent to continue the
perfection and priority of any liens on any Existing
Properties or any other collateral securing any
obligations under any Operative Agreement, PROVIDED THAT
(in the case of memoranda of leases for any Property
located in Florida) the Agent may require fully-executed
originals of a memorandum of lease without explicit
mortgage-granting provisions (the "SHORTER MEMORANDUM") as
well as a memorandum of lease with explicit
mortgage-granting provisions (the "LONGER MEMORANDUM"),
and so long as Tech Data continues to receive an
Investment Grade Rating from either Xxxxx'x or S&P, the
Agent may record the Shorter Memorandum but
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PROVIDED FURTHER THAT if at any time Tech Data does not
maintain an Investment Grade Rating from at least one of
Xxxxx'x or S&P, then the Agent may record the Longer
Memorandum with respect to such Property, and Lessee
shall, immediately upon demand therefor, pay (or reimburse
the Agent for) all costs (including without limitation any
documentary stamp taxes, intangibles taxes, filing fees or
other amounts) that may be required in connection
therewith;
(vii) the repayment to the respective Existing
Lender or Existing Holder all accrued and unpaid interest
on any Existing Loan and all accrued and unpaid Holder
Yield on any Existing Funding (together with any
applicable compensation for break funding costs); and
(viii) no Lease Default or Lease Event of Default
under any of the Operative Agreements shall have occurred
after giving effect to the Funding requested by such
Requisition.
(b) The obligations of each Holder to make Holder Fundings,
and of each Lender to make Loans, to the Lessor on a Property Closing
Date for the purpose of providing funds to the Lessor necessary to pay
the Transaction Expenses, fees, expenses and other disbursements
payable by Lessor under SECTION 9.1 (B) of this Agreement and to
acquire a New Property, are subject to the prior or contemporaneous
satisfaction or waiver of the following conditions precedent:
(i) the correctness in all material respects on
such Property Closing Date of the representations and
warranties of the Owner Trustee, the Construction Agent, the
Lessee and the Holders (other than such Holder) contained
herein and in each of the other Operative Agreements;
(ii) the performance in all material respects by the
Construction Agent and the Lessee of their respective
agreements contained herein and in the other Operative
Agreements which covenants are to be performed by them on or
prior to each such Property Closing Date;
(iii) the satisfaction of all conditions to any such
Holder Funding or Loan set forth in any Operative Agreement;
(iv) the Agent and the Owner Trustee shall have
received a fully executed copy of a counterpart of the
respective Requisition, appropriately completed;
(v) title to each Property being acquired on such
Property Closing Date shall conform to the representations and
warranties set forth in SECTION 8.1(C) hereof;
(vi) the Construction Agent shall have delivered to
the Lessor a copy of the Deed with respect to the Land and
existing Improvements (if any), a copy of
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the Ground Lease (if any) with respect to the Land, and a copy
of the Xxxx of Sale with respect to the Equipment, in each
case for such of the foregoing as are being acquired on such
Property Closing Date; and such Land and existing Improvements
shall be located in an Approved Country;
(vii) there shall not have occurred and be
continuing any Default or Event of Default under any of the
Operative Agreements and no Default or Event of Default under
any of the Operative Agreements shall have occurred after
giving effect to the Funding requested by such Requisition;
(viii) the Construction Agent shall have delivered
to the Agent and the Owner Trustee, title insurance
commitments to issue policies in favor of the Owner Trustee
and the Agent with respect to each Property being acquired on
such Property Closing Date, such policies being in form and
substance reasonably acceptable to the Owner Trustee, the
Agent and the Majority Financing Parties with such title
exceptions thereto as are reasonably acceptable to the Owner
Trustee and the Agent; and the Construction Agent shall
deliver to the Owner Trustee and the Agent, as soon as
possible after such Property Closing Date, the final title
insurance policies for each such Property, taking no specific
exception for any Lien filed on account of materials furnished
or labor performed in connection with the Property, and
otherwise showing no additional exceptions to coverage;
(ix) the Construction Agent shall have delivered to
the Agent and the Owner Trustee a "Phase I" environmental site
assessment with respect to each such Property, prepared by an
independent recognized professional reasonably acceptable to
the Agent, the Owner Trustee and the Majority Financing
Parties and in a form and substance that is reasonably
acceptable to the Agent, the Owner Trustee and the Majority
Financing Parties;
(x) the Construction Agent shall have delivered to
the Agent and the Owner Trustee a survey of each such
Property, prepared by an independent recognized professional
meeting the then current minimum standard detail requirements
for American Land Title Association/American Congress of
Surveying and Mapping (ALTA/ACSM) Land Title Surveys certified
to the Agent and otherwise reasonably acceptable to the Agent;
(xi) the Construction Agent shall have caused to be
delivered to the Agent and the Owner Trustee a legal opinion
(in form and substance reasonably satisfactory to the Agent,
the Owner Trustee and the Majority Financing Parties) from
counsel located in the state where each such Property is
located or, if the Agent and the Owner Trustee have previously
received an opinion from counsel in such state, the Agent and
the Owner Trustee (in their discretion) may accept an update
or a reaffirmation of the previous opinion, in each case
addressed to each Lender;
8
(xii) the Owner Trustee, the Agent and the Majority
Financing Parties shall be satisfied, in their sole
discretion, that the acquisition or ground leasing of each
such Property and the execution of the Mortgage Instrument and
the other Security Documents will not adversely affect in any
material respect the rights of the Owner Trustee, the Holders,
the Agent or the Lenders under or with respect to the
Operative Agreements in effect as of such Property Closing
Date (it being understood and acknowledged that the Agent and
the Owner Trustee may require that the Construction Agent
deliver an acceptable legal opinion in connection with this
condition);
(xiii) the Construction Agent shall have determined
(as set forth in the related Requisition) that such Property
is appropriate for its business operations; and the Agent and
the Majority Financing Parties shall have consented to the
Lessor's acquisition of such Property, which consent (subject
to clause (xii) above) shall not be unreasonably withheld or
delayed;
(xiv) the Construction Agent shall have delivered to
the Agent and the Owner Trustee, respecting each such
Property, invoices for the various Transaction Expenses and
other fees, expenses and disbursements referenced in SECTION
9.1 (A) OR (B) of this Agreement;
(xv) the Lessor shall have delivered to the Agent a
Mortgage Instrument and Lender Financing Statements (or, in
the case of any Existing Property, modifications of existing
mortgage instruments, deeds of trust or financing statements)
with respect to each such Property in a form reasonably
acceptable to the Agent and Lessee;
(xvi) in the case of each Property located in the
United States, the Construction Agent shall have delivered to
the Lessor with respect to each such Property, a Lease
Supplement and a memorandum (or, in the case of any Existing
Property, modifications of any existing lease supplement or
memorandum of lease) regarding the Lease and such Lease
Supplement (such memorandum with respect to New Properties to
be substantially in the form attached to the Lease as Exhibit
B and in each case in form suitable for recording), PROVIDED
THAT (in the case of memoranda of leases for any Property
located in Florida) the Agent may require fully-executed
originals of a memorandum of lease without explicit
mortgage-granting provisions (the "SHORTER MEMORANDUM") as
well as a memorandum of lease with explicit mortgage-granting
provisions (the "LONGER MEMORANDUM"), and so long as Tech Data
continues to receive an Investment Grade Rating from either
Xxxxx'x or S&P, the Agent may record the Shorter Memorandum;
but PROVIDED FURTHER THAT if at any time Tech Data does not
maintain an Investment Grade Rating from at least one of
Xxxxx'x or S&P, then the Agent may record the Longer
Memorandum with respect to such Property, and Lessee shall,
immediately upon demand therefor, pay (or reimburse the Agent
for) all costs (including without limitation any documentary
stamp taxes,
9
intangibles taxes, filing fees or other amounts) that may be
required in connection therewith;
(xvii) in the case of each Property located outside
the United States, the Construction Agent shall have delivered
to the Lessor such other documents as may be necessary or
appropriate to perfect and secure the priority of the Liens of
the Lessor and the Agent on such Property (such documents to
be in form and substance satisfactory to the Agent and the
Lessor);
(xviii) the Construction Agent shall have delivered
to the Lessor with respect to each such Property Lessor
Financing Statements (or, in the case of any Existing
Property, modifications of existing financing statements)
executed by the Lessee and the Lessor;
(xix)if any such Property is subject to a Ground
Lease, the Construction Agent shall have caused a lease
memorandum (or modification of existing lease memorandum), or
in the case of Property located outside the United States,
such other documents as the Agent may require, (in each case,
in form and substance satisfactory to the Agent) to be
delivered to the Agent for such Ground Lease;
(xx) counsel for the ground lessor of each such
Property subject to a Ground Lease shall have issued to the
Lessor, the Agent and the Holders, an opinion satisfactory to
the Agent and the Majority Financing Parties;
(xxi) all necessary (or in the reasonable opinion of
the Owner Trustee, the Agent, or their respective counsel,
advisable) Governmental Actions, in each case required by any
law or regulation enacted, imposed or adopted on or prior to
each such date or by any change in facts or circumstances on
or prior to each such date, shall have been obtained or made
and be in full force and effect;
(xxii) the Construction Agent shall cause (i) Uniform
Commercial Code lien searches, tax lien searches and judgment
lien searches regarding each of the Lessee and the Lessor to
be conducted (and copies thereof to be delivered to the Agent
and the Owner Trustee) in the state and county (or other
jurisdiction) in which such Property is located (or any other
jurisdiction reasonably requested by the Agent), by a
nationally recognized search company acceptable to the Owner
Trustee and the Agent and (ii) the liens referenced in such
lien searches which are objectionable to the Owner Trustee or
the Agent to be either removed or otherwise handled in a
manner reasonably satisfactory to the Owner Trustee and the
Agent;
(xxiii) the Agent shall have received an Appraisal
for such Property (which Appraisal is in form and substance
satisfactory to the Agent and the Majority Financing Parties)
showing that such Property has a value at least equal to
ninety percent (90%) of the expected total Property Cost of
such Property and
10
all Improvements constructed or expected to be constructed
thereon (based on a Construction Budget satisfying the
requirements of Section 5.4(e)); and
(xxiv) in the case of any Property located in a
country other than the United States (a "Foreign Country"),
the Owner Trustee, the Agent and the Majority Financing
Parties shall be satisfied, in their sole discretion, after
such review and analysis of any applicable Laws (including
without limitation any applicable Laws of such Foreign Country
relating to creditors' rights and remedies, lending, leasing,
bankruptcy, insolvency, real property, personal property,
creation and priority of Liens, and liability and
Environmental Laws) as they may deem appropriate, that the
rights, Liens and remedies of the Owner Trustee, any Financing
Parties or the Agent under the Operative Agreements or
otherwise shall not be adversely affected (and the obligations
and potential or actual liabilities of the Owner Trustee, any
Financing Parties or the Agent shall not be increased) by the
fact that such Property is located in such Foreign Country (it
being understood and acknowledged that the Agent and the Owner
Trustee may require the Construction Agent to deliver legal
opinions acceptable to the Owner Trustee, the Agent and the
Majority Financing Parties in connection with this condition).
For purposes of determining compliance with the conditions specified in
SUBSECTIONS 5.3(A) AND 5.3(B), each Lender and Holder that has executed this
Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by Agent to such
Lender or Holder, respectively, for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by or
acceptable or satisfactory to such Lender or Holder.
5.4. CONDITIONS TO THE HOLDERS' AND THE LENDERS' OBLIGATIONS TO MAKE
CONSTRUCTION FUNDINGS FOR THE COMMENCEMENT OF CONSTRUCTION OF ANY IMPROVEMENTS.
The obligations of each Holder to make Holder Fundings, and of each Lender to
make Loans, to the Lessor for the purpose of providing funds to the Lessor
necessary to pay the Transaction Expenses, fees, expenses and other
disbursements payable by Lessor under SECTION 9.1(B) of this Agreement, to make
an advance for the commencement of construction of any Improvements or the
acquisition or installation of Equipment with respect to an Incomplete Existing
Property or a New Property, or to pay interest regarding the Loans relating to
an Incomplete Existing Property or a New Property and to pay the Holder Yield
regarding the Holder Fundings relating to an Incomplete Existing Property or a
New Property, in each case regarding such interest and Holder Yield to the
extent accrued and payable under the Credit Agreement or Trust Agreement (as the
case may be), in each case during the period prior the Completion Date for such
Property, are subject to the satisfaction or waiver of the following conditions
precedent:
(a) the correctness in all material respects on the date of
such Holder Fundings and Loans of the representations and warranties of
the Owner Trustee, the Construction Agent, the Lessee and the Holders
(other than such Holder) contained herein and in each of the other
Operative Agreements;
11
(b) the performance in all material respects by the
Construction Agent and the Lessee of their respective agreements
contained herein and in the other Operative Agreements and to be
performed by them on or prior to each such date;
(c) the satisfaction of all conditions to any such Holder
Funding or Loan set forth in any Operative Agreement;
(d) the Agent and the Owner Trustee shall have received a copy
of a fully executed counterpart of the respective Requisition
appropriately completed, together with copies of all Bills of Sale with
respect to any Equipment acquired as a part of any Improvements;
(e) with respect to each Initial Construction Funding, the
Agent and the Owner Trustee shall have received a copy of the
Construction Budget for the completion of the Improvements to which
such Funding relates, which Construction Budget shall indicate a total
Property Cost for such Property (including, without limitation, the
Improvements, the Land on which such Improvements are to be constructed
and any Equipment located at such Property) of not more than
$50,000,000 and not less than $2,500,000;
(f) with respect to each Initial Construction Funding, (i) the
title insurance commitments to issue policies (and any policies)
delivered in connection with the requirements of SECTION 5.3(B)(VIII)
shall provide (or shall be endorsed and down-dated, in a manner
satisfactory to the Agent, to provide) insurance in an amount at least
equal to the maximum total Property Cost indicated by the Construction
Budget referred to in subparagraph (e) above (and in any event no less
than the total actual Property Cost after giving effect to such
Funding), taking no specific exception for any Lien filed on account of
materials furnished or labor performed in connection with the Property,
and otherwise showing no title change or any additional exceptions to
coverage not approved by the Agent; and (ii) all necessary recording
fees, documentary stamp taxes or similar amounts will be paid in
connection with the related Mortgage Instrument in an amount sufficient
to cover such maximum total Property Cost;
(g) there shall not have occurred and be continuing any Lease
Default or Lease Event of Default, and no Lease Default or Lease Event
of Default will have occurred after giving effect to the Funding
requested by such Requisition;
(h) with respect to each Initial Construction Funding, based
upon Construction Budgets which satisfy the requirements of
subparagraph (e) above, the Available Commitment and the Available
Holder Commitment (after deducting the Unfunded Amount) will be
sufficient to complete the Improvements; and
(i) the Construction Agent shall have determined (as set forth
in the related Requisition) that such Improvements are appropriate to
its business; and the Agent shall have consented to such Improvements,
which consent shall not be unreasonably withheld or delayed.
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5.5. CONDITIONS TO THE HOLDERS' AND THE LENDERS' OBLIGATIONS TO MAKE
CONSTRUCTION FUNDINGS FOR THE ONGOING CONSTRUCTION ON ANY PROPERTY PRIOR TO THE
CONSTRUCTION PERIOD TERMINATION DATE. The obligations of each Holder to make
Holder Fundings, and of each Lender to make Loans, to the Lessor (i) in
connection with all subsequent requests for Fundings to pay the Transaction
Expenses, fees, expense and other disbursements payable by Lessor under SECTION
9.1(B) of this Agreement, (ii) to pay interest regarding the Loans relating to
an Incomplete Existing Property or a New Property and to pay the Holder Yield
regarding the Holder Fundings relating to an Incomplete Existing Property or a
New Property, in each case regarding such interest and Holder Yield to the
extent accrued and payable under the Credit Agreement or Trust Agreement (as the
case may be), during the period prior to the Completion Date for such Property,
and (iii) to pay for the construction of Improvements or the acquisition or
installation of Equipment with respect to an Incomplete Existing Property or a
New Property, in each case prior to the Completion Date for such Property, are
subject to the satisfaction or waiver of the following conditions precedent:
(a) the correctness in all material respects on the date of
such Holder Fundings and Loans of the representations and warranties of
the Owner Trustee, the Construction Agent, the Lessee and the Holders
(other than such Holder) contained herein and in each of the other
Operative Agreements;
(b) the performance in all material respects by the
Construction Agent and the Lessee hereto of their respective agreements
contained herein and in the other Operative Agreements and to be
performed by them on or prior to each such date;
(c) the satisfaction of all conditions to any such Holder
Funding or Loan set forth in any Operative Agreements;
(d) the Agent and the Owner Trustee shall have received a copy
of a fully executed counterpart of the respective Requisition,
appropriately completed;
(e) there shall not have occurred and be continuing any Lease
Default or Lease Event of Default under any of the Operative
Agreements, and no Lease Default or Lease Event of Default will have
occurred after giving effect to the Construction Funding requested by
such Requisition;
(f) (with respect to each Construction Funding) based upon
Construction Budgets which satisfy the requirements of SECTION 5.4(E)
of this Agreement, the Available Commitments and the Available Holder
Commitment (after deducting the Unfunded Amount) will be sufficient to
complete the Improvements; and
(g) with respect to each Construction Funding, the title
insurance commitments to issue policies (or any policies) delivered in
connection with the requirements of SECTION 5.3(B)(III)) shall provide
(or shall be endorsed and down-dated, in a manner satisfactory to the
Agent, to provide) insurance in an amount at least equal to the maximum
total Property Cost indicated by the Construction Budget referred to in
13
SECTION 5.4(E) (and in any event no less than the total actual Property
Cost after giving effect to such Funding), taking no specific exception
for any Lien filed on account of materials furnished or labor performed
in connection with the Property, and otherwise showing no title change
or any additional exceptions to coverage not approved by the Agent.
5.6. REPORTING AND DELIVERY REQUIREMENTS ON COMPLETION DATE. On the
Completion Date for any Incomplete Existing Property or any New Property, the
Construction Agent shall deliver to the Agent, and the Owner Trustee an
Officer's Certificate in the form attached hereto as EXHIBIT B specifying (a)
the Completion Date for the construction of Improvements at the Property, (b)
the aggregate Property Cost for the Property and (c) if any of the Property
consists of Tangible Personal Property, a separate statement of the Property
Cost attributable to such Tangible Personal Property. Such Officer's Certificate
shall also include, in form and in detail reasonably acceptable to the Agent and
the Holders, a summary of the Property Cost figures and a certification to the
effect that all Improvements have been made in accordance with all applicable
material Legal Requirements, in a good and workmanlike manner and otherwise in
substantial compliance with the standards and practices of the Construction
Agent with respect to similar properties and improvements owned by the
Construction Agent, and that no consent or approval of any Person is required
for such Improvements except for consents and approvals which have already been
obtained. Furthermore, (i) on the Completion Date for each Property, the
Construction Agent shall deliver or cause to be delivered originals of the
following to the Agent (and copies thereof to the Owner Trustee) each of which
shall be in a form reasonably acceptable to the Agent: (1) insurance
certificates with respect to the Property as required under the Lease Agreement,
and (2) if requested by the Agent or the Owner Trustee, amendments or
modifications to the Lender Financing Statements or the Lessor Financing
Statements executed by the Lessee and the Lessor; and (ii) within ninety (90)
days after the Completion Date for each such Property, the Construction Agent
shall deliver or cause to be delivered originals of the following to the Agent
(and copies thereof to the Owner Trustee) each of which shall be in a form
reasonably acceptable to the Agent (and, in the case of the endorsement of title
insurance policy, the Majority Financing Parties): (1) a final as-built survey
for the applicable Property, (2) an endorsement of the title insurance policy
regarding such Property, amending the effective date of such policy to the date
of such endorsement and taking no exception for any Lien on account of materials
furnished or labor performed in connection with the Property, and otherwise
showing no title changes or any additional exceptions to coverage that have not
been approved by the Agent, and (3) the final Plans and Specifications for such
Property, PROVIDED THAT the Agent (in its sole discretion) may extend such
ninety-day period for up to an additional sixty (60) days. In addition, on the
Completion Date for such Property the Construction Agent covenants and agrees
that the recording fees, documentary stamp taxes or similar amounts paid or
required to be paid in connection with the related Mortgage Instrument shall be
in an amount required by applicable law.
5.7. CONSTRUCTION AGENT DELIVERY OF ALLOCATION NOTICE AND CONSTRUCTION
BUDGET MODIFICATIONS. The Construction Agent covenants and agrees to deliver (i)
to the Agent at least five (5) Business Days before any Scheduled Interest
Payment Date during the Commitment Period the Allocation Notice referred to in
the first sentence of SECTION 2.3(B) of the Credit Agreement, and (ii) to the
Agent and the Owner Trustee each month any modification to any
14
Construction Budget regarding any Property; provided, no Construction Budget may
be amended unless (a) the title insurance policies referenced in SECTION
5.3(B)(VIII) are also modified or endorsed, if necessary, to provide for
insurance in an amount that satisfies the requirements of SECTION 5.4(F)(I) of
this Agreement and, if necessary, any additional recording fees, documentary
stamp taxes or similar amounts paid in connection with the related Mortgage
Instrument in an amount sufficient to comply with the requirements of SECTION
5.4(F)(II), and (b) after giving effect to any such amendment the Construction
Budget remains in compliance with the requirements of SECTION 5.4(E) of this
Agreement. Any amendment to the Construction Budget is also subject to the
requirements of the Agency Agreement.
5.8. INSPECTION OF DOCUMENTS; HOLD HARMLESS; REMOVAL OF PROPERTIES. Any
document or item (including without limitation any environmental report)
delivered to the Agent shall be available for inspection at any time during
ordinary business hours upon reasonable notice by any Lender or Holder. Without
limiting the generality of SECTION 7 of the Credit Agreement, the Agent shall
not incur any liability to any Lender, any Holder, the Owner Trustee or any
other Person (and each Lender, each Holder, the Owner Trustee, the Lessee and
the Construction Agent hereby holds the Agent harmless from any such liability)
as a result of any such document or item, any information contained therein, the
failure to receive any such document, or the Agent's approval of any Property.
In the event the Majority Financing Parties determine that any environmental
site assessment reveals an Environmental Violation and they or the Agent so
notify the Lessee, then the Lessee shall remedy or purchase such Property in
accordance with SECTIONS 15.2, 16.1 AND 16.2 of the Lease, provided that if the
Property is a Construction Period Property, the Construction Agent shall be
responsible for such remedy or purchase.
5.9. UNILATERAL RIGHT TO INCREASE THE COMMITMENTS AND THE HOLDER
COMMITMENTS. Notwithstanding any other provisions of any Operative Agreement or
any objection by any Person including without limitation any objection by the
Lessee, the Construction Agent or any Guarantor, (a) each Holder, in its sole
discretion, may unilaterally elect to increase its Holder Commitment in order to
fund amounts due and owing pursuant to SECTIONS 9.1(A), 9.1(B), 9.3 or 13.5
hereof or SECTION 2.1(C), 2.1(F), 2.1(G) or 2.3 of the Agency Agreement and (b)
each Lender, in its sole discretion, may unilaterally elect to increase its
Commitments in order to fund amounts due and owing pursuant to SECTIONS 9.1(A),
9.1(B), 9.3 or 13.5 or SECTION 2.1(C), 2.1(F), 2.1(G) or 2.3 of the Agency
Agreement; PROVIDED, HOWEVER, that Lessee shall pay (or shall cause the Lessor
to pay) upon demand of all costs and other amounts arising under SECTION 13.3(B)
hereof as a result of the increase of any Commitment or Holder Commitment of any
Lender or Holder on a date other than the last day of the applicable Interest
Period with respect to any then-outstanding Eurodollar Loan or Eurodollar Holder
Funding.
5.10. FUNDING OF ADDITIONAL IMPROVEMENTS FOR A COMPLETED PROPERTY. If
Completion has occurred for a Property (the "ORIGINAL PROPERTY"), the Owner
Trustee (or the Construction Agent on its behalf) may request, and (subject to
satisfaction of the conditions for Fundings as set forth in the Operative
Agreements) the Lender and Holders shall make, additional Fundings to construct
additional Improvements (the "ADDITIONAL IMPROVEMENTS") (including without
limitation an expansion adjacent to the original Improvements) on any remaining
undeveloped Land in such Property; PROVIDED THAT
15
(a) during the Construction Period for such Additional
Improvements, except as set forth in clause (c) below, the Additional
Improvements shall be deemed (for the purposes of the Operative
Documents) to be a distinct Property separate from the Original
Property, and all Land and Equipment included in the Original Property
(including any Land underlying any Additional Improvements) shall be
deemed to be part of the Original Property;
(b) commencing on the Completion Date for the Additional
Improvements, the Original Property and the Additional Improvements
shall together be deemed to be one Property (the "Final Property") for
all purposes of the Operating Agreements;
(c) notwithstanding clause (a) above, for the purposes of any
rights or obligations of the Lessee, any Alternative Lessee, the
Construction Agent or any other Person to purchase or to cause the sale
or purchase of any Property pursuant to any Operative Agreement, the
Original Property and the Additional Improvements shall together be
considered one Property, and neither the Lessee nor any Alternative
Lessee or the Construction Agent may exercise any right or option to
purchase the Original Property separate from the Additional
Improvements, or to purchase the Additional Improvements separate from
the Original Property; and
(d) without limiting the generality of the foregoing, during
the Construction Period for the Additional Improvements, the
Improvements in the Original Property shall continue to be usable (and
shall be occupied and used by the Lessee) for its ordinary business
purposes in accordance with all Legal Requirements, and (without
limiting any other obligation of the Lessee), the Lessee shall continue
to pay Basic Rent with respect to the Original Property in accordance
with the terms of the Lease.
5.11. INTERCREDITOR AGREEMENT. Notwithstanding anything to the contrary
herein or in the Operative Agreements, in the event that Lessee or any
Subsidiary shall issue any Senior Parity Debt or enter into the Amended Tech
Data Credit Agreement, Administrative Agent is authorized, without the consent
of the Lenders, to enter into one or more intercreditor agreements or other
similar arrangements with the Senior Parity Debt Holders and the lenders party
to the Amended Tech Data Credit Agreement (or the agents on behalf of such
lenders or Senior Parity Debt Holders) in order to effectuate pari passu status
between the obligations of the Lessee and Construction Agent under the Operative
Agreements, such Senior Parity Debt, and the obligations under the Amended Tech
Data Credit Agreement. At the election of the Lessee, Senior Parity Debt and the
Amended Tech Data Credit Agreement may either (i) benefit from a guaranty of
payment by Domestic Subsidiaries, or (ii) have the benefit of a pledge of 65% of
the voting securities or other interests having ordinary voting power and 100%
of the other securities of or other ownership interests in each Direct Foreign
Subsidiary that is a Significant Subsidiary, or (iii) both of the foregoing.
Administrative Agent and Collateral Agent shall take all such further actions as
are necessary to effectuate the transactions contemplated by this SECTION 5.11,
all at the sole expense of Lessee.
16
SECTION 6. CONDITIONS OF THE INITIAL CLOSING.
6.1. CONDITIONS TO THE LESSOR'S AND THE HOLDERS' OBLIGATIONS. The
obligations of the Lessor and the Holders to consummate the transactions
contemplated by this Agreement, including the obligation to execute and deliver
the applicable Operative Agreements to which each is a party on the Initial
Closing Date, are subject to (i) the accuracy and correctness on the Initial
Closing Date of the representations and warranties of the other parties hereto
contained herein, (ii) the accuracy and correctness on the Initial Closing Date
of the representations and warranties of the other parties hereto contained in
any other Operative Agreement or certificate delivered pursuant hereto or
thereto, (iii) the performance by the other parties hereto of their respective
agreements contained herein and in the other Operative Agreements and to be
performed by them on or prior to the Initial Closing Date and (iv) the
satisfaction, or waiver by the Lessor and the Holders, of all of the following
conditions on or prior to the Initial Closing Date:
(a) Each of the Operative Agreements to be entered into as of
the Initial Closing Date shall have been duly authorized, executed and
delivered by the parties thereto, other than the Lessor or such Holder,
and shall be in full force and effect, and no Default or Event of
Default shall exist thereunder (both before and after giving effect to
the transactions contemplated by the Operative Agreements), and the
Lessor shall have received a fully executed copy of each of the
Operative Agreements (other than the Notes of which it shall have
received specimens). The Operative Agreements (or memoranda thereof),
any supplements thereto and any financing statements and fixture
filings in connection therewith required under the Uniform Commercial
Code shall have been filed or shall be promptly filed, if necessary, in
such manner as to enable the Lessee's counsel to render its opinion
referred to in SECTION 6.1(G) hereof;
(b) All taxes, fees and other charges in connection with the
execution, delivery, recording, filing and registration of the
Operative Agreements shall have been paid or provision for such payment
shall have been made to the reasonable satisfaction of the Lessor and
the Agent;
(c) No action or proceeding shall have been instituted, nor
shall any action or proceeding be threatened, 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 transaction contemplated hereby or
thereby or (ii) which is reasonably likely to have a Material Adverse
Effect;
(d) In the reasonable opinion of the Lessor and the Holders
and their counsel, the transactions contemplated by the Operative
Agreements do not and will not violate any Legal Requirements and do
not and will not subject the Lessor or the Holders to any materially
adverse regulatory prohibitions or constraints;
(e) The Lessor and the Agent shall each have received (with a
copy to each of the Financing Parties) an Officer's Certificate of the
Lessee, dated as of the Initial
17
Closing Date, in the form attached hereto as EXHIBIT D or in such other
form as is reasonably acceptable to such parties stating that (i) each
and every representation and warranty of the 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 Initial Closing Date; (ii) no Lease
Default or Lease Event of Default has occurred and is continuing under
any Operative Agreement; (iii) each Operative Agreement to which Lessee
is a party is in full force and effect with respect to it; and (iv) the
Lessee has performed and complied with all covenants, agreements and
conditions contained herein or in any Operative Agreement required to
be performed or complied with by it on or prior to the Initial Closing
Date;
(f) The Lessor and the Agent shall each have received (with a
copy to each of the Financing Parties) (i) a certificate of the
Secretary or an Assistant Secretary of each of the Lessee and each
Guarantor and each other Credit Party in the form attached hereto as
EXHIBIT E or in such other form as is reasonably acceptable to such
parties attaching and certifying as to (A) the resolutions of the Board
of Directors of Lessee or such Guarantor (as the case may be) duly
authorizing the execution, delivery and performance by Lessee or such
Guarantor (as the case may be) of each of the Operative Agreements to
which it is or will be a party, (B) its certificate of incorporation
and by-laws, in each case certified as of a recent date by the
Secretary of State of the State of its incorporation, and (C) the
incumbency and signature of persons authorized to execute and deliver
on its behalf the Operative Agreements to which it is a party and (ii)
a good standing certificate from the appropriate officer of each state
in which it is required to be qualified to do business as to its good
standing in such state;
(g) Counsel for the Lessee and the Guarantors reasonably
acceptable to the other parties hereto shall have issued to the Lessor,
the Agent, the Lenders and the Holders an opinion in the form attached
hereto as EXHIBIT C or in such other form as is reasonably acceptable
to such parties; and
(h) As of the Initial Closing Date, there shall not have
occurred any material adverse change in the consolidated assets,
liabilities, operations, business or financial condition of the Lessee
from that set forth in the audited financial statements of the Lessee
dated January 31, 2000.
6.2. CONDITIONS TO THE LESSEE'S OBLIGATIONS. The obligation of the
Lessee to execute and deliver the Operative Agreements to which it is a party as
of the Initial Closing Date, is subject to (i) the accuracy and correctness on
the Initial Closing Date of the representations and warranties of the other
parties hereto contained herein, (ii) the accuracy and correctness on the
Initial Closing Date of the representations and warranties of the other parties
hereto contained in any other Operative Agreement or certificate delivered
pursuant hereto or thereto, (iii) the performance by the other parties hereto of
their respective agreements contained herein and in the other Operative
Agreements, in each case to be performed by them on or prior to the Initial
Closing Date, and (iv) the satisfaction or waiver by the Lessee of all of the
following conditions on or prior to the Initial Closing Date:
18
(a) Each of the Operative Agreements to be entered into as of
the Initial Closing Date shall have been duly authorized, executed and
delivered by the parties thereto, other than the Lessee, and shall be
in full force and effect, and no Default, other than Defaults of the
Lessee, shall exist thereunder, and the Lessee shall have received a
fully executed copy of each of the Operative Agreements (other than
Notes of which it shall have received a specimen);
(b) In the reasonable opinion of the Lessee and its counsel,
the transactions contemplated by the Operative Agreements do not
violate any material Legal Requirements and will not subject Lessee to
any materially adverse regulatory prohibitions or constraints;
(c) No action or proceeding shall have been instituted nor
shall any action or proceeding be threatened, 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 transaction contemplated hereby or
thereby or (ii) which is reasonably likely to have a Material Adverse
Effect;
(d) The Lessee and the Agent shall each have received (with a
copy to each of the Financing Parties) an Officer's Certificate of the
Lessor dated as of such Closing Date in the form attached hereto as
EXHIBIT F or in such other form as is reasonably acceptable to Lessee
and 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 Initial Closing
Date; (ii) each Operative Agreement to which the Lessor 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 or in any Operative Agreement required to
be performed or complied with by it on or prior to the Initial Closing
Date;
(e) The Lessee and the Agent shall each have received (with a
copy to each of the Financing Parties) (i) a certificate of the
Secretary, an Assistant Secretary, Trust Officer or Vice President of
the Trust Company in the form attached hereto as EXHIBIT G or in such
other form as is reasonably acceptable to Lessee and the Agent,
attaching and certifying as to (A) the signing resolutions, (B) its
articles of incorporation or other equivalent charter documents, as the
case may be, certified as of a recent date by an appropriate officer of
the Trust Company, (C) its by-laws and (D) the incumbency and signature
of persons authorized to execute and deliver on its behalf the
Operative Agreements to which it is a party and (ii) a good standing
certificate from the state of incorporation of the Trust Company; and
(f) Counsel for the Lessor acceptable to the other parties
hereto shall have issued to the Holders, the Lenders and the Agent an
opinion in the form attached hereto as EXHIBIT H or in such other form
as is reasonably acceptable to such parties.
19
6.3. CONDITIONS TO THE AGENT'S OBLIGATIONS. The obligation of the Agent
to consummate the transactions contemplated by this Agreement, including the
obligation to execute and deliver each of the Operative Agreements to which it
is a party as of the Initial Closing Date, is subject to (i) the accuracy and
correctness on the Initial Closing Date of the representations and warranties of
the other parties hereto contained herein, (ii) the accuracy and correctness on
the Initial Closing Date of the representations and warranties of the other
parties hereto contained in any other Operative Agreement or certificate
delivered pursuant hereto or thereto, (iii) the performance by the other parties
hereto of their respective agreements contained herein and in the other
Operative Agreements, in each case to be performed by them on or prior to the
Initial Closing Date, and (iv) the satisfaction, or waiver by the Agent, of all
of the following conditions on or prior to the Initial Closing Date:
(a) Each of the Operative Agreements to be entered into as of
the Initial Closing Date shall have been duly authorized, executed and
delivered by the parties thereto, other than the Agent, and shall be in
full force and effect, and no Default or Event of Default shall exist
thereunder (both before and after giving effect to the transactions
contemplated by the Operative Agreements), and the Agent shall have
received a fully executed copy of each of the Operative Agreements
(including the Notes). The Operative Agreements (or memoranda thereof),
any supplements thereto and any financing statements and fixture
filings in connection therewith required under the Uniform Commercial
Code shall have been filed or shall be promptly filed, if necessary, in
such manner as to enable the Lessor's counsel to render its opinion
referred to in SECTION 6.2(F) hereof;
(b) The satisfaction of each of the conditions set forth in
SECTIONS 6.1(B), (C), (E), (F) AND (H) and SECTIONS 6.2(D), (E) AND (F)
hereof; and
(c) In the reasonable opinion of the Agent, the Majority
Financing Parties and their respective counsel, the transactions
contemplated by the Operative Agreements do not and will not violate
any Legal Requirements and do not and will not subject the Agent or any
Financing Party to any adverse regulatory prohibitions or constraints.
SECTION 7. REPRESENTATIONS AND WARRANTIES ON THE INITIAL CLOSING DATE.
7.1. REPRESENTATIONS AND WARRANTIES OF THE CONSTRUCTION AGENT AND THE
LESSEE. Effective as of the Initial Closing Date, Construction Agent and the
Lessee represent and warrant to each of the other parties hereto that:
(a) Each of the Construction Agent and the Lessee is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Florida; each of their Subsidiaries (except
for any Person that became a Subsidiary since the delivery of the most
recent Compliance Certificate (defined below)) is listed on Schedule 5
hereto or in the most recent financial covenant compliance certificate
(each, a "COMPLIANCE CERTIFICATE") that has been delivered to the
Agent, the Lender and the Holders pursuant to SECTION 28.2 of the
Lease; each Subsidiary of the Lessee or the
20
Counteraction Agent is duly organized and validly existing under the
laws of the jurisdiction of its organization; and each of the
Construction Agent and the Lessee and each of their Subsidiaries is
duly qualified to do business in each other jurisdiction where the
nature of its business makes such qualification necessary, except where
such failure to so qualify would not have a Material Adverse Effect.
Each of the Construction Agent, the Lessee and each of their
Subsidiaries has the power and authority to carry on its business as
now conducted and to enter into and perform its obligations under each
Operative Agreement 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 each 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 by each of the
Construction Agent, the Lessee and any of their Subsidiaries of this
Agreement and the other Operative Agreements to which each is or will
be a party have been duly authorized by all necessary corporate action
on the part of each of the Construction Agent, the Lessee and each such
Subsidiary (including any necessary shareholder action), have received
all necessary governmental approval, and do not and will not (i)
violate any Legal Requirement, decree, judgment or award which is
applicable to or binding on the Construction Agent or the Lessee or any
of their Subsidiaries, (ii) violate or conflict with, or result in a
breach of, any provision of the Certificate of Incorporation, By-Laws
or other organizational documents of either the Construction Agent or
the Lessee or any of their Subsidiaries, or any indenture, mortgage,
chattel mortgage, deed of trust, conditional sales contract, bank loan,
credit agreement or other agreement, instrument or document to which
either the Construction Agent or the Lessee or any of their
Subsidiaries is a party or which is binding on either the Construction
Agent or the Lessee or any of their Subsidiaries or any of their
respective properties, or (iii) result in, or require, the creation or
imposition of any Lien (other than pursuant to the terms of the
Operative Agreements) on any asset of either of the Construction Agent
or the Lessee or any of their Subsidiaries;
(c) Each of this Agreement and each other Operative Agreement
to which the Construction Agent, the Lessee or any of their
Subsidiaries is or will be a party has been, or will be, duly executed
and delivered by it and constitutes, or upon execution and delivery
will constitute, the legal, valid or binding obligation of the
Construction Agent, the Lessee or such Subsidiary, as the case may be,
enforceable against it in accordance with the terms thereof, subject to
the effect of any applicable bankruptcy, moratorium, insolvency,
reorganization or other similar laws affecting the enforceability of
creditors' rights generally and to the effect of general principles of
equity (whether considered in a proceeding at law or in equity). The
Construction Agent, the Lessee and each of their Subsidiaries have each
executed the various Operative Agreements required to be executed as of
the Initial Closing Date;
(d) There are no actions, suits or proceedings (including,
without limitation, any derivative action) pending or, to the knowledge
of either the Construction Agent or the Lessee, threatened with respect
to the Construction Agent or Lessee or any of their
21
Subsidiaries which, if adversely decided, are reasonably likely to
result, either individually or collectively, in a Material Adverse
Effect. None of the Construction Agent, the Lessee nor any of their
Subsidiaries has any material contingent liabilities not provided for
or disclosed in the financial statements referred to in SECTION 7.3(F),
which are required in accordance with GAAP to be reported in such
financial statements;
(e) No Governmental Action by any Governmental Authority or
authorization, registration, consent, approval, waiver, notice or other
action by, to or of any other Person is required to authorize or is
required in connection with (i) the execution, delivery or performance
of any Operative Agreement or (ii) the legality, validity, binding
effect or enforceability of any Operative Agreement, in each case,
except those which have been obtained and are in full force and effect;
(f) The audited consolidated financial statements of each of
the Construction Agent and the Lessee as at January 31, 2000, copies of
which have been furnished to the Agent and the Owner Trustee, were
prepared in accordance with GAAP and fairly present the financial
condition of each of the Construction Agent and the Lessee and their
Subsidiaries on a consolidated basis as of such date and their
consolidated results of operations for the fiscal year then ended;
(g) Since the date of the audited financial statements
described in SECTION 7.1(F)(I), there has been no event or occurrence
which has had or is reasonably likely to have a Material Adverse
Effect;
(h) Neither the Construction Agent nor the Lessee knows of any
material proposed tax assessments against it or any of its
Subsidiaries. No extension of time for assessment or payment of any
federal, state or local tax by either the Construction Agent or the
Lessee or any of their Subsidiaries is in effect;
(i) ERISA.
(A) None of the employee benefit plans maintained at
any time by the Construction Agent or the Lessee or any ERISA
Affiliate or the trusts created thereunder has engaged in a
prohibited transaction which could subject any such employee
benefit plan or trust to a material tax or penalty on
prohibited transactions imposed under Code Section 4975 or
ERISA;
(B) None of the employee benefit plans maintained at
any time by the Construction Agent or the Lessee or any ERISA
Affiliate which are employee pension benefit plans and which
are subject to Title IV of ERISA or the trusts created
thereunder has been terminated nor has any such employee
benefit plan of the Construction Agent or Lessee or any ERISA
Affiliate incurred any liability to the PBGC, other than for
required insurance premiums which have been paid; neither the
Construction Agent nor the Lessee or any ERISA Affiliate has
withdrawn from or caused a partial withdrawal to occur with
respect to any Multi-employer Plan; the Construction Agent,
the Lessee and the ERISA
22
Affiliates have made or provided for all contributions to all
such employee pension benefit plans which they maintain and
which are required as of the end of the most recent fiscal
year under each such plan; neither the Construction Agent nor
the Lessee or any ERISA Affiliate has incurred any accumulated
funding deficiency with respect to any such plan, whether or
not waived; nor has there been any reportable event, or other
event or condition, which presents a material risk of
termination of any such employee benefit plan by the PBGC;
(C) The present value of all vested accrued benefits
under the employee pension benefit plans which are subject to
Title IV of ERISA, maintained by the Construction Agent, the
Lessee or any ERISA Affiliate, did not, as of the most recent
valuation date for each such plan, exceed the then current
value of the assets of such employee benefit plans allocable
to such benefits;
(D) The consummation of the transactions contemplated
by the Operative Agreements will not involve any prohibited
transaction under ERISA;
(E) To the best of the Construction Agent's and the
Lessee's knowledge, each employee pension benefit plan subject
to Title IV of ERISA, maintained by the Construction Agent,
the Lessee, or any ERISA Affiliate, has been administered in
accordance with its terms and is in compliance in all material
respects with all applicable requirements of ERISA and other
applicable laws, regulations and rules;
(F) There has been no withdrawal liability incurred
with respect to any Multi-employer Plan to which the
Construction Agent, the Lessee or any ERISA Affiliate is or
was a contributor;
(G) As used in this Agreement, the terms "employee
benefit plan," "employee pension benefit plan," "accumulated
funding deficiency," "reportable event," and "accrued
benefits" shall have the respective meanings assigned to them
in ERISA, and the term "prohibited transaction" shall have the
meaning assigned to it in Code Section 4975 and ERISA;
(H) Neither the Construction Agent nor the Lessee or
any ERISA Affiliate has any liability, contingent or
otherwise, under any plan or program or the equivalent for
unfunded post-retirement benefits, including pension, medical
and death benefits, which liability would have a Material
Adverse Effect;
(j) Upon the execution and delivery of each Lease Supplement
to the Lease, (i) the Lessee will have unconditionally accepted the
Property subject to the Lease Supplement and will have a valid and
subsisting leasehold interest in the Property, subject only to the
Permitted Exceptions, and (ii) no offset will exist with respect to any
Rent or other sums payable under the Lease;
23
(k) Neither the Construction Agent nor the Lessee or any of
their Subsidiaries has filed a voluntary petition in bankruptcy or been
adjudicated bankrupt or insolvent, or filed any petition or answer
seeking any reorganization, liquidation, receivership, dissolution or
similar relief under any bankruptcy, receivership, insolvency, or other
law relating to relief for debtors, or sought or consented to or
acquiesced in the appointment of any trustee, receiver, conservator or
liquidator of all or any part of its properties or its interest in any
Property. No court of competent jurisdiction has entered an order,
judgment, or decree approving a petition filed against the Construction
Agent, the Lessee or any of their Subsidiaries seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any federal or state bankruptcy,
receivership, insolvency or other law relating to relief for debtors,
and no other liquidator has been appointed for the Construction Agent,
the Lessee or any of their Subsidiaries or all or any part of its
properties or its interest in any Property, and no such action is
pending. Neither the Construction Agent nor the Lessee or any of their
Subsidiaries has given notice to any Governmental Authority or any
Person of insolvency or pending insolvency, or suspension or pending
suspension of operations;
(l) Each of the Construction Agent, the Lessee and their
Subsidiaries owns marketable title to, or a subsisting leasehold
interest in, all of its Properties free and clear of all Liens, except
Permitted Liens;
(m) Neither the Construction Agent, the Lessee nor any of
their Subsidiaries is (a) an "investment company" or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act or an "investment adviser" within the meaning of
the Investment Advisers Act of 1940, as amended, or (b) a "holding
company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company", or a "public utility", within the meaning of the
Public Utility Holding Company Act of 1935, as amended, or a "public
utility" within the meaning of the Federal Power Act, as amended;
(n) Neither the Construction Agent, the Lessee nor any of
their Subsidiaries is engaged principally in, or has 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 Federal Reserve Board), and no part of the proceeds
of the Loans or the Holder Fundings will be used for the purpose,
whether immediate, incidental or ultimate, of purchasing or carrying
any margin stock or maintaining or extending credit to others for such
purpose, or for any purpose that violates, or is inconsistent with
Regulations T, U, or X of the Federal Reserve Board;
(o) Each of the Construction Agent, the Lessee and their
Subsidiaries has filed all tax returns and reports required by Law to
have been filed by it and has paid all Taxes and governmental charges
thereby shown to be owing, except any such Taxes or charges which are
being diligently contested in good faith by appropriate proceedings and
for which adequate reserves shall in accordance with GAAP have been set
aside on its books;
24
(p) To the best of the knowledge of each of the Construction
Agent and the Lessee, after inquiry it has deemed appropriate, each of
the Construction Agent, the Lessee and their Subsidiaries is in
material compliance with all Environmental Laws and Occupational Safety
and Health Laws where failure to comply could have a Material Adverse
Effect. None of the Construction Agent, the Lessee nor any of their
Subsidiaries has received notice of any claims that any of them is not
in compliance in all material respects with any Environmental Law where
failure to comply could have a Material Adverse Effect;
(q) Each of the Construction Agent, the Lessee and their
Subsidiaries is in compliance with all statutes, judicial and
administrative orders, permits and governmental rules and regulations
which are material to its business or the non-compliance with which
could have a Material Adverse Effect;
(r) All information heretofore or contemporaneously herewith
furnished by either the Construction Agent or the Lessee or any of
their Subsidiaries to the Agent, the Owner Trustee, any Lender or any
Holder for purposes of or in connection with this Agreement and the
transactions contemplated hereby is, and all information hereafter
prepared and furnished by the Construction Agent, the Lessee or any of
their Subsidiaries to the Agent, the Owner Trustee, any Lender or any
Holder pursuant hereto or in connection herewith will be, true and
accurate in every material respect on the date as of which such
information is dated or certified, and such information, taken as a
whole, does not and will not omit to state any material fact necessary
to make such information, taken as a whole, not misleading;
(s) There are no wetlands, tidelands or swamp or overflow
lands on any Property that interfere with the intended or expected
current or future use of such Property, or that interfere with the
value of any such Property; and each of the Construction Agent, the
Lessee and each of their Subsidiaries is in compliance with all
Environmental Laws relating to any such wetland, tideland or swamp or
overflow land on any Property;
(t) Except as listed on SCHEDULE 7.1(T), there is no condition
arising from or affecting any Property or arising from or affecting any
lands nearby or adjacent to any Property that is having or is
reasonably likely to have a significant adverse effect upon human
health or the environment at such Property or upon the use or value of
such Property; and
(u) The Lessee and the Construction Agent have done the proper
due diligence to determine, and have determined, that there is no
reasonable likelihood that any Property will be condemned, taken by
eminent domain or otherwise taken by any Governmental Authority.
(v) Upon filing of each of the UCC Financing Statements (with
respect to each Existing Property) in the filing offices designated by
the Construction Agent or the Lessee, such UCC Financing Statements
will have been filed with the appropriate
25
Governmental Authorities in order to perfect a security interest in
each Existing Property (to the extent perfection can be obtained by
filing under the UCC);
(w) Upon filing in the filing offices designated by the
Construction Agent or the Lessee, the Lender Financing Statements,
together with an assignment to the Agent of the filed Lessor Financing
Statements, will perfect a valid first priority security interest in
all Equipment included in any Existing Property and all other
collateral described therein in which a security interest or mortgage
can be perfected by filing under the UCC, subject only to Permitted
Exceptions, and upon filing, the Lessor Financing Statements will
protect Lessor's interest under the Lease to the extent the Lease is a
security agreement and mortgage;
(x) No portion of any Existing 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 such Property
is located in an area identified as a special flood hazard area by any
such 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;
(y) The Construction Agent has obtained insurance coverage for
each Existing Property which meets the requirements of ARTICLE XIV of
the Lease and all of such coverage is in full force and effect;
(z) Each Existing Property complies with all Legal
Requirements (including, without limitation, all zoning and land use
laws and Environmental Laws); and
(aa) All utility services and facilities necessary for the
construction of the Improvements existing on, or to be constructed
after, the Initial Closing Date (including, without limitation, gas,
electrical, water and sewage services and facilities) are available at
the boundaries of the real property upon which such Improvements exist
or will be constructed on each Existing Property prior to the
Completion Date for such Property.
(bb) All consents, licenses, permits, authorizations,
assignments and building permits required as of the Initial Closing
Date by all Legal Requirements or pursuant to the terms of any
contract, indenture, instrument or agreement for construction,
completion, occupancy, operation, leasing or subleasing of each
Existing Property have been obtained and are in full force and effect,
except to the extent that the failure to so obtain would not,
individually or in the aggregate, have a Material Adverse Effect;
(cc) The Construction Agent has obtained insurance coverage
covering each Incomplete Existing Property which coverage meets the
requirements of SECTION 2.6 of the Agency Agreement before commencing
construction, repairs or modifications, as the case may be, and such
coverage is in full force and effect;
(dd) The Improvements located or to be located on any Existing
Property will comply (or, in the case of any Incomplete Existing
Property, will comply as of the
26
Completion Date therefor) with all applicable Legal Requirements and
Insurance Requirements (including, without limitation, all zoning and
land use laws and Environmental Laws). The Plans and Specifications for
each Existing Property have been (or, in the case of any Incomplete
Existing Property, will be) prepared in accordance with all applicable
Legal Requirements (including, without limitation, all applicable
Environmental Laws and building, planning, zoning and fire codes), and
such Improvements do not and, in the case of any Incomplete Existing
Property, upon completion of such Improvements in accordance with the
Plans and Specifications, such Improvements will not) encroach in any
manner onto any adjoining land (except as permitted by express written
easements) and such Improvements and the use thereof by the Lessee and
its agents, assignees, employees, invitees, lessees, licensees and
tenants comply (and, in the case of each Incomplete Existing Property,
such Improvement will comply as of the applicable Completion Date) in
all respects with all applicable Legal Requirements (including, without
limitation, all applicable Environmental Laws and building, planning,
zoning and fire codes). There are (and, in the case of any Incomplete
Existing Property, upon completion of such Improvements in accordance
with the Plans and Specifications, there will be) no material defects
to such Improvements including, without limitation, the plumbing,
heating, air conditioning and electrical systems thereof. All water,
sewer, electric, gas, telephone and drainage facilities and all other
utilities required to adequately service such Improvements for their
intended use are (and, in the case of any Incomplete Existing Property,
upon completion of such Improvements in accordance with the Plans and
Specifications will be) available pursuant to adequate permits at any
Existing Property (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, to the best knowledge of the Lessee or
the Construction Agent, threatened which adversely affects the title
to, or the use, operation or value of, any of the Existing Properties.
No fire or other casualty with respect to any of the Existing
Properties has occurred which (1) has had a Material Adverse Effect or
(2) is not fully covered by insurance. All utilities serving the
related Existing Properties, or proposed to serve any Incomplete
Existing Property in accordance with the Plans and Specifications
therefor, are located in (or will be located in) and vehicular access
to such Improvements is provided by (or will be provided by), either
public rights-of-way abutting the related Property or Appurtenant
Rights. All licenses, approvals, authorizations, consents, permits
(including, without limitation, 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 the real property underlying
any Improvements at any Existing Property during the construction of
such Improvements and the use and operation of such Improvements
following such construction, (ii) the construction of such Improvements
in accordance with the Plans and Specifications and the Agency
Agreement and (iii) the use and operation of such Improvements
following such construction with the applicable Equipment which such
Improvements support for the purposes for which they were intended have
been obtained from the appropriate Governmental Authorities or from
private parties, as the case may be, or (in the case of any Incomplete
Existing Property) will be obtained from the appropriate Governmental
27
Authorities or from private parties, as the case may be, prior to
commencing any such construction or use and operation, as applicable;
and
(ee) The Improvements on each Existing Property are (and, in
the case of each Incomplete Existing Property, when completed, the
Improvements will be) wholly within any building restriction lines
(unless consented to by applicable Government Authorities), however
established; and
(ff) All Fundings are secured by the Lien of the Security
Agreement and the Mortgage Instruments with respect to the Existing
Properties, and there have been no Liens against the Improvements on
any Existing Property other than Permitted Liens.
SECTION 8. REPRESENTATIONS AND WARRANTIES ON FUNDING DATES.
8.1. REPRESENTATIONS AND WARRANTIES ON PROPERTY CLOSING DATES. The
Construction Agent and the Lessee hereby represent and warrant as of each
Property Closing Date as follows:
(a) The representations and warranties of the Construction
Agent and the Lessee set forth in the Operative Agreements (including
without limitation the representations and warranty set forth in
SECTION 7 of this Agreement) are true and correct in all material
respects on and as of such Property Closing Date as if made on and as
of such date. The Construction Agent, the Lessee and their Subsidiaries
are in all material respects in compliance with their respective
obligations under the Operative Agreements and there exists no Default
or Event of Default under any of the Operative Agreements. No Default
or Event of Default will occur under any of the Operative Agreements as
a result of, or after giving effect to, the Funding requested by the
Requisition on such Property Closing Date;
(b) The Properties to be acquired are being acquired at a
price that is not in excess of fair market value and such Properties
consist of (i) unimproved Land, or (ii) Land and existing Improvements
thereon which Improvements are either suitable for occupancy at the
time of acquisition or will be renovated or modified in accordance with
the terms of this Agreement, or (iii) Equipment. Each of the Properties
is located at the site set forth on the applicable Requisition, which
is in one of the Approved Countries;
(c) Upon the acquisition of each Property on such Property
Closing Date, and at all times thereafter, the Lessor will have
marketable title to such Property, subject only to Permitted
Exceptions;
(d) The execution and delivery of each Operative Agreement
delivered by the Construction Agent, the Lessee or any of their
Subsidiaries on such Property Closing Date and the performance of the
obligations of the Construction Agent, the Lessee and each of their
Subsidiaries under each Operative Agreement have been duly authorized
by all requisite corporate action of the Construction Agent or the
Lessee, as applicable;
28
(e) Each Operative Agreement delivered on such Property
Closing Date by the Construction Agent, the Lessee or any of their
Subsidiaries has been duly executed and delivered by the Construction
Agent, the Lessee or such Subsidiary;
(f) Each Operative Agreement delivered by the Construction
Agent, the Lessee or any of their Subsidiaries on such Property Closing
Date is a legal, valid and binding obligation of the Construction
Agent, the Lessee or such Subsidiary, as applicable, enforceable
against the Construction Agent, the Lessee or such Subsidiary, as
applicable, in accordance with its respective terms, subject to the
effect of any applicable bankruptcy, moratorium, insolvency,
reorganization or other similar laws affecting the enforceability of
creditors' rights generally and to the effect of general principles of
equity (whether considered in a proceeding at law or in equity);
(g) Upon filing of each of the UCC Financing Statements (with
respect to the Property being acquired) in the filing offices
designated by the Construction Agent or the Lessee, such UCC Financing
Statements will have been filed with the appropriate Governmental
Authorities in order to perfect a security interest in the Property
described therein (to the extent perfection can be obtained by filing
under the UCC);
(h) Upon filing in the filing offices designated by the
Construction Agent or the Lessee, the Lender Financing Statements,
together with an assignment to the Agent of the filed Lessor Financing
Statements, will perfect a valid first priority security interest in
all Equipment and other collateral described therein in which a
security interest or mortgage can be perfected by filing under the UCC,
subject only to Permitted Exceptions, and upon filing, the Lessor
Financing Statements will protect Lessor's interest under the Lease to
the extent the Lease is a security agreement and mortgage;
(i) No portion of any Property being acquired by the Lessor on
such Property Closing Date 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 such Property is located in an area
identified as a special flood hazard area by any such 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;
(j) The Construction Agent has obtained insurance coverage for
each Property being acquired by the Lessor on such Property Closing
Date which meets the requirements of ARTICLE XIV of the Lease and all
of such coverage is in full force and effect;
(k) Each Property being acquired by the Lessor on such
Property Closing Date complies with all Legal Requirements (including,
without limitation, all zoning and land use laws and Environmental
Laws); and
(l) All utility services and facilities necessary for the
construction of the Improvements existing on, or to be constructed
after, such Property Closing Date (including, without limitation, gas,
electrical, water and sewage services and facilities)
29
are available at the boundaries of the real property upon which such
Improvements exist or will be constructed on each such Property prior
to the Completion Date for such Property.
8.2. REPRESENTATIONS AND WARRANTIES UPON INITIAL CONSTRUCTION FUNDINGS.
The Construction Agent and the Lessee hereby represent and warrant as of each
date on which an Initial Construction Funding is made as follows:
(a) The representations and warranties of the Construction
Agent and the Lessee set forth in the Operative Agreements (including
without limitation the representations and warranties set forth in
SECTIONS 7 AND 8.1) are true and correct in all material respects on
and as of the date of such Initial Construction Funding as if made on
and as of such date. The Construction Agent and the Lessee are in all
material respects in compliance with their respective obligations under
the Operative Agreements and there does not exist any Default or Event
of Default under any of the Operative Agreements. No Default or Event
of Default will occur under any of the Operative Agreements as a result
of, or after giving effect to, the Funding requested by the Requisition
on such date;
(b) The Lessor has marketable title to each Property, subject
only to Permitted Exceptions;
(c) Upon filing in the filing offices designated by the
Construction Agent or the Lessee, the Lender Financing Statements,
together with an assignment of the filed Lessor Financing Statements,
will perfect a valid first priority security interest in all the
Properties and other collateral described therein in which a security
interest can be perfected by filing under the UCC, subject only to
Permitted Liens;
(d) All consents, licenses, permits, authorizations,
assignments and building permits required as of the date on which such
Funding is made by all Legal Requirements or pursuant to the terms of
any contract, indenture, instrument or agreement for construction,
completion, occupancy, operation, leasing or subleasing of each
Property with respect to which a Funding is being made have been
obtained and are in full force and effect, except to the extent that
the failure to so obtain would not, individually or in the aggregate,
have a Material Adverse Effect;
(e) The Construction Agent has obtained insurance coverage
covering the Property which is the subject of such Funding which
coverage meets the requirements of SECTION 2.6 of the Agency Agreement
before commencing construction, repairs or modifications, as the case
may be, and such coverage is in full force and effect;
(f) The Improvements which are the subject of the Funding, as
improved in accordance with the Plans and Specifications, will comply
as of the applicable Completion Date with all applicable Legal
Requirements and Insurance Requirements (including, without limitation,
all zoning and land use laws and Environmental Laws). The Plans and
Specifications have been or will be prepared in accordance with all
applicable Legal Requirements (including, without limitation, all
applicable
30
Environmental Laws and building, planning, zoning and fire codes), and
upon completion of such Improvements in accordance with the Plans and
Specifications, such Improvements will not encroach in any manner onto
any adjoining land (except as permitted by express written easements)
and such Improvements and the use thereof by the Lessee and its agents,
assignees, employees, invitees, lessees, licensees and tenants will
comply as of the applicable Completion Date in all respects with all
applicable Legal Requirements (including, without limitation, all
applicable Environmental Laws and building, planning, zoning and fire
codes). Upon completion of such Improvements in accordance with the
Plans and Specifications, (i) there will be no material defects to such
Improvements including, without limitation, the plumbing, heating, air
conditioning and electrical systems thereof 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, to the
best knowledge of the Lessee or the Construction Agent, threatened
which adversely affects the title to, or the use, operation or value
of, such Properties. No fire or other casualty with respect to such
Properties has occurred which (1) has had a Material Adverse Effect or
(2) is not fully covered by insurance. All utilities serving the
related Properties, or proposed to serve the related Properties in
accordance with the Plans and Specifications, are located in (or will
be located in) and vehicular access to such Improvements is provided by
(or will be provided by), either public rights-of-way abutting the
related Property or Appurtenant Rights. All licenses, approvals,
authorizations, consents, permits (including, without limitation,
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 the real property underlying such Improvements during the
construction of such Improvements and the use and operation of such
Improvements following such construction, (ii) the construction of such
Improvements in accordance with the Plans and Specifications and the
Agency Agreement and (iii) the use and operation of such Improvements
following such construction with the applicable Equipment which such
Improvements support for the purposes for which they were intended have
either been obtained from the appropriate Governmental Authorities or
from private parties, as the case may be, or will be obtained from the
appropriate Governmental Authorities or from private parties, as the
case may be, prior to commencing any such construction or use and
operation, as applicable;
(g) When completed, the Improvements shall be wholly within
any building restriction lines (unless consented to by applicable
Government Authorities), however established;
(h) The Funding is secured by the Lien of the Security
Agreement and the respective Mortgage Instruments, and there have been
no Liens against the applicable Improvements other than Permitted
Liens; and
31
(i) All conditions precedent contained in this Agreement and
in the other Operative Agreements relating to the Initial Construction
Funding have been substantially satisfied.
8.3. REPRESENTATIONS AND WARRANTIES UPON THE DATE OF EACH CONSTRUCTION
FUNDING THAT IS NOT AN INITIAL CONSTRUCTION Funding. The Construction Agent and
the Lessee hereby represent and warrant as of each date on which a Construction
Funding is made, when such advance is not an Initial Construction Funding, as
follows:
(a) The representations and warranties of the Construction
Agent and the Lessee set forth in the Operative Agreements (including
the representations and warranties set forth in SECTIONS 7, 8.1 AND
8.2) are true and correct in all material respects on and as of the
date of such Construction Funding as if made on and as of such date.
The Construction Agent and the Lessee are in all material respects in
compliance with their respective obligations under the Operative
Agreements and there does not exist any Default or Event of Default
under any of the Operative Agreements. No Default or Event of Default
will occur under any of the Operative Agreements as a result of, or
after giving effect to, the Funding requested by the Requisition on
such date;
(b) Construction of the Improvements to date has been
performed in a good and workmanlike manner, substantially in accordance
with the Plans and Specifications and in compliance with all Insurance
Requirements and Legal Requirements, except to the extent noncompliance
with any Legal Requirements would not, individually or in the
aggregate, have a Material Adverse Effect;
(c) All consents, licenses, permits, authorizations,
assignments and building permits required as of the date on which such
Funding is made by all Legal Requirements or pursuant to the terms of
any contract, indenture, instrument or agreement for construction,
completion, occupancy, operation, leasing or subleasing of each
Property have been obtained and are in full force and effect;
(d) When completed, the Improvements shall be wholly within
any building restriction lines (unless consented to by applicable
Government Authorities), however established; and
(e) The Funding is secured by the Lien of the Security
Agreement and the respective Mortgage Instruments, and there have been
no Liens against the applicable Improvements other than Permitted
Liens.
SECTION 9. PAYMENT OF CERTAIN EXPENSES.
9.1. TRANSACTION EXPENSES.
(a) Lessor agrees on the Initial Closing Date, to pay, or
cause to be paid, all reasonable fees, expenses and disbursements of
the various outside legal counsels for the Lessor and the Agent in
connection with the transactions contemplated by the Operative
32
Agreements and incurred in connection with the Initial Closing Date,
including all Transaction Expenses (arising in connection with the
Initial Closing Date), and all other reasonable fees, expenses and
disbursements in connection with the Initial Closing Date, including,
without limitation, all fees, taxes and expenses for the recording,
registration and filing of documents and (to the extent not paid by
Lessee) the cost of all insurance required by the Operative Agreements;
PROVIDED, HOWEVER, that the Lessor shall pay such amounts described in
this SECTION 9.1(A) only if (i) such amounts are reasonably described
in a Requisition delivered on or before such date (or, in the absence
of such a Requisition, if requested by the Agent, subject to SECTION
5.2(C)), and (ii) funds are made available by the Lenders and the
Holders in connection with such Requisition in an amount sufficient to
allow such payment. On the Initial Closing Date, after delivery and
receipt of the Requisition referenced in SECTION 4.2(A) hereof and
satisfaction of the other conditions precedent for such date, the
Holders shall make Holder Fundings and the Lenders shall make Loans to
the Lessor to pay for the Transaction Expenses, fees, expenses and
other disbursements referenced in this SECTION 9.1(A).
(b) Lessor agrees on each Property Closing Date, on the date
of any Construction Funding and on the Completion Date to pay, or cause
to be paid, all reasonable fees, expenses and disbursements of the
various legal counsels for the Lessor and the Agent in connection with
the transactions contemplated by the Operative Agreements and billed in
connection with such Property Closing Date, the date of such Funding,
or such Completion Date, including all Transaction Expenses (arising
with respect to the Initial Closing Date, such Property Closing Date,
the date of such Funding or such Completion Date), all fees, expenses
and disbursements incurred with respect to the various items referenced
in SECTIONS 5.3, 5.4, 5.5 OR 5.6 (including without limitation the cost
of any Appraisals or environmental site assessments, any developer's
fees, any premiums for title insurance and charges for any updates to
such policies) and all other reasonable fees, expenses and
disbursements in connection with such Property Closing Date, the date
of such Funding or such Completion Date including, without limitation,
all expenses relating to and all fees (including brokers' fees), taxes
(including any and all stamp, transfer or similar taxes) and expenses
for the recording, registration and filing of documents, and all
expenses relating to insurance on any Property; PROVIDED, HOWEVER, the
Lessor shall pay such amounts described in this SECTION 9.1(B) only if
(i) such amounts are properly described in a Requisition delivered on
the applicable date (or, in the absence of such a Requisition, if
requested by the Agent, subject to SECTION 5.2(C)), and (ii) funds are
made available by the Lenders and the Holders in connection with such
Requisition in an amount sufficient to allow such payment. On each
Property Closing Date, on the date of any Construction Funding or any
Completion Date, after delivery of the applicable Requisition and
satisfaction of the other conditions precedent for such date, the
Holders shall make a Holder Funding and the Lenders shall make Loans to
the Lessor to pay for the Transaction Expenses, fees, expenses and
other disbursements referenced in this SECTION 9.1(B).
9.2. CERTAIN FEES AND EXPENSES. Lessee agrees to pay or cause to be
paid (i) the initial and annual Owner Trustee's fee and all reasonable expenses
of the Owner Trustee and any necessary co-trustees (including reasonable outside
counsel fees and expenses) or any successor
33
owner trustee, for acting as owner trustee under the Trust Agreement, (ii) all
reasonable costs and expenses (including reasonable counsel fees and expenses)
incurred by the Construction Agent, the Lessee, the Agent, or the Lessor in
entering into any future amendments or supplements requested by the Lessee with
respect to any of the Operative Agreements, whether or not such amendments or
supplements are ultimately entered into, or giving or withholding of waivers of
consents hereto or thereto which have been requested by the Lessee, or any
purchase of any Property by the Lessee pursuant to ARTICLE XX of the Lease, and
(iii) all costs and expenses (including reasonable counsel fees and expenses)
incurred by the Lessor, the Construction Agent, the Lessee, the Holders, the
Lenders or the Agent in connection with the enforcement of any Operative
Agreement or any exercise of remedies under any Operative Agreement.
9.3. COMMITMENT FEE AND HOLDER COMMITMENT FEE. From the date hereof
through the Construction Period Termination Date, the Lessee, at its option,
either (x) shall cause the Lessor to pay (in which case Lessor shall so pay,
provided funds are available by the Lenders and Holders through Fundings) as a
Transaction Expense, or (y) to the extent such amounts are not otherwise paid by
the Lessor, shall timely pay, in either case (a) to the Agent for the pro rata
benefit of the Lenders of each Category of Loans based on the Commitment
Percentage of each such Lender during the period for which payment is made, the
Commitment Fee; and (b) to the Lessor, for the pro rata benefit of the Holders
based on the Holder Commitment of each such Holder during the period for which
payment is made, the Holder Commitment Fee; PROVIDED that such amounts under
clauses (a) and (b) shall be paid by the Owner Trustee (i) to the extent, but
only to the extent, amounts are available therefor under the Available
Commitments and Available Holder Commitments and (ii) 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 Property Cost of all the Properties
(ratably with respect to each Property, based on the ratio of the Property Cost
for such Property individually to the aggregate Property Cost of all Properties
at such time). Such payments of fees provided for in this SECTION 9.3 shall be
due in arrears on each Commitment Fee Payment Date. Notwithstanding the
foregoing, so long as any Lender or Holder fails (in violation of the Operative
Agreements) to make available any portion of its Commitment or Holder Commitment
when requested, such Person shall not be entitled to receive payment of its pro
rata share of its Commitment Fee or Holder Commitment Fee (as the case may be)
until such Person shall make available such portion. Each such fee shall be
calculated on the basis of a year of 360 days for the actual number of days
elapsed. If all or a portion of any Commitment Fee or Holder Commitment Fee
shall not be paid when due, such overdue amount shall bear interest, payable by
the Lessee on demand, at a rate per annum equal to the Base Rate plus 2%, from
the date of such non-payment until such amount is paid in full (as well after as
before judgment).
SECTION 10. OTHER COVENANTS AND AGREEMENTS.
10.1. COOPERATION WITH THE CONSTRUCTION AGENT OR THE LESSEE. The
Holders, the Owner Trustee (at the direction of the Holders) and the Agent
shall, to the extent reasonably requested by the Construction Agent or Lessee
(but without assuming additional liabilities on account thereof), at the
Construction Agent's or the Lessee's expense, cooperate with the Construction
34
Agent or the Lessee in connection with its covenants contained herein including,
without limitation, at any time and from time to time, upon the request of the
Construction Agent or the Lessee, promptly and duly executing and delivering any
and all such further instruments, documents and financing statements (and
continuation statements related thereto) as the Construction Agent or the Lessee
may reasonably request in order to perform such covenants.
10.2. COVENANTS OF THE OWNER TRUSTEE AND THE HOLDERS. Each of the Owner
Trustee and the Holders hereby agree that so long as this Agreement is in
effect:
(a) None of the Holders and the Owner Trustee (both in its
trust capacity and in its individual capacity) will create or permit to
exist at any time, and each of the Holders and the Owner Trustee will,
at its own cost and expense, promptly take such action (and notify
Lessee of such action) as may be necessary duly to discharge, or to
cause to be discharged, all Lessor Liens attributable to it on the
Properties; PROVIDED, HOWEVER, that the Holders and the Owner Trustee
shall not be required to discharge any such Lessor Lien while the same
is being contested in good faith by appropriate proceedings diligently
prosecuted so long as (a) such proceedings shall not involve any danger
of impairment of the Liens of the Security Documents or of the sale,
forfeiture or loss of, any Property or title thereto or any interest
therein or the payment of Rent, and (b) such proceedings shall not
interfere with the disposition of any Property or title thereto or
interest therein or the payment of Rent;
(b) Without prejudice to any right of the Owner Trustee under
the Trust Agreement to resign (subject to 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 Owner Trustee (after consent to such removal by the Agent as
provided in the Trust Agreement), each of the Holders and the Owner
Trustee 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 VIII 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 the Lessee or the Agent 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 any such party;
(c) The Owner Trustee or any successor may resign or be
removed by the Holders as Owner Trustee, a successor Owner Trustee may
be appointed and a corporation may become the Owner Trustee under the
Trust Agreement, only in accordance with the provisions of ARTICLE IX
of the Trust Agreement and, with respect to such appointment, with the
consent of the Lessee, which consent shall not be unreasonably
withheld, conditioned or delayed;
(d) The Owner Trustee, in its capacity as Owner Trustee under
the Trust Agreement, and not in its individual capacity, shall not
contract for, create, incur or
35
assume any indebtedness, or enter into any business or other activity,
other than pursuant to or under the Operative Agreements;
(e) The Holders will not instruct the Owner Trustee to take
any action in violation of the terms of any Operative Agreement;
(f) Neither any Holder nor the Owner Trustee shall (i)
commence any case, proceeding or other action with respect to the Owner
Trustee 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 Owner Trustee or for all or any substantial benefit of the
creditors of the Owner Trustee; and neither any Holder nor the Owner
Trustee 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;
(g) The Owner Trustee shall give prompt notice to the Lessee
and the Agent if the Owner Trustee's chief place of business or chief
executive office, or the office where the records concerning the
accounts or contract rights relating to a Property are kept, shall
cease to be located at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx
00000, or if it shall change its name;
(h) Provided that no Lease Event of Default has occurred and
is continuing, neither the Owner Trustee nor any Holder shall, without
the prior written consent of the Lessee, consent to or permit any
amendment, supplement or other modification of the terms and provisions
of the Credit Agreement or the Notes or (to the extent such amendment,
supplement or modification would have an adverse effect on the rights
or obligations of the Lessee under the Lease) any other Operative
Agreement;
(i) Neither the Owner Trustee nor any Holder shall consent to
or permit any amendment, supplement or other modification of the terms
and provisions of any Operative Agreement, in each case without the
prior written consent of the Agent except as described in SECTION 10.5
of this Agreement;
(j) The Owner Trustee (i) shall take such actions and shall
refrain from taking such actions with respect to the Operative
Agreements or the Properties and shall grant such approvals and
otherwise act or refrain from acting with respect to the Operative
Agreements or the Properties in each case as directed in writing by the
Agent or, to the extent required by SECTION 10.5 hereof, the Lessee,
notwithstanding any contrary instruction or absence of instruction by
any Holder or Holders; and (ii) shall not take any action, grant any
approvals or otherwise act under or with respect to the Operative
Agreements or any matters relating to the Properties without first
obtaining the prior written consent of the Agent (and without regard to
any contrary instruction or absence of instruction by any Holder);
PROVIDED, HOWEVER, that notwithstanding the foregoing provisions of
this subparagraph (j) the Owner Trustee, the Agent and the Holders each
acknowledge, covenant and agree that, with respect to all matters under
the Operative
36
Agreements that require the consent or concurrence of all of the
Lenders pursuant to the terms of SECTION 9.1 of the Credit Agreement
(the "Unanimous Vote Matters"), neither the Owner Trustee nor the Agent
shall act or refrain from acting with respect to any Unanimous Vote
Matter until such party has received the approval of each Lender and
each Holder with respect thereto;
(k) Except as otherwise contemplated by the Operative
Agreements, neither the Owner Trustee nor any Holder shall use the
proceeds of any Loan or Holder Funding for any purpose other than the
payment of Transaction Expenses and the fees, expenses and other
disbursements referenced in SECTIONS 9.1(A) and (B) of this Agreement,
the repayment of Existing Loans and Existing Holder Fundings, the
purchase or lease of Properties, the acquisition of Equipment, the
construction of Improvements and the payment of interest regarding the
Loans and the payment of the Holder Yield regarding the Holder
Fundings, in each case accrued under the Credit Agreement or Trust
Agreement, as the case may be, during the period prior to the
Completion Date with respect to a particular Property; and
(l) during the period prior to the earlier of (i) the
Completion Date for the first Incomplete Existing Property to achieve
Completion or (ii) the Completion Date for the first New Property to
achieve Completion, the Lessee shall cause the Lessor to pay (when and
as due) any fees pursuant to the Fee Letter (A) to the extent, but only
to the extent, amounts are available therefor under the Available
Commitments and Available Holder Commitments and (B) unless each Lender
and each Holder has declined in writing to fund such amount; and
(m) following the earlier of (i) the Completion Date for the
first Incomplete Existing Property to achieve Completion, or (ii) the
Completion Date for the first New Property to achieve Completion, the
Lessee shall pay (when and as due) any fees pursuant to the Fee Letter.
10.3. LESSEE COVENANTS, CONSENT AND ACKNOWLEDGMENT; CONSTRUCTION AGENT
COVENANTS.
(a) Lessee acknowledges and agrees that the Owner Trustee,
pursuant to the terms and conditions of the Security Agreement and the
Mortgage Instruments, shall create Liens respecting the various
personal property, fixtures and real property described therein in
favor of the Agent. Lessee hereby irrevocably consents to the creation,
perfection and maintenance of such Liens.
(b) Lessor hereby instructs Lessee, and Lessee hereby
acknowledges and agrees, that until such time as the Loans are paid in
full and the Liens evidenced by the Security Agreement and the Mortgage
Instruments have been released, (i) any and all Rent and any and all
other amounts of any kind or type under any of the Operative Agreements
due and owing or payable to the Lessor or the Owner Trustee shall
instead be paid directly to the Agent or as the Agent may direct from
time to time and (ii) Lessee shall cause all notices, certificates,
financial statements, communications and other
37
information which is delivered, or is required to be delivered, to the
Lessor, the Owner Trustee or any Holder also to be delivered at the
same time to the Agent.
(c) Lessee shall not consent to or permit any amendment,
supplement or other modification of the terms or provisions of any
Operative Agreement without, in each case, obtaining the prior written
consent of the Agent and, to the extent required by the proviso at the
end of SECTION 10.2(J) hereof, each of the Holders.
(d) Except as otherwise contemplated by the Operative
Agreements, the Construction Agent shall not use the proceeds of any
Holder Funding or Loan for any purpose other than the payment of
Transaction Expenses and the fees, expenses and other disbursements
referenced in Section 9.1(A) and (B) of this Agreement, the purchase or
lease of Properties, the acquisition of Equipment, the construction of
Improvements, the payment of interest regarding the Loans and the
payment of the Holder Yield regarding the Holder Fundings, in each case
accrued under the Credit Agreement or Trust Agreement, as the case may
be, during the period prior to the Basic Rent Commencement Date with
respect to a particular Property.
(e) The Construction Agent and the Lessee shall restrict the
amount of Equipment (including without limitation racking and
conveyors) located in or on (or included in the Property Cost of) each
Property, so that at all times the Property Cost of the Equipment
located in or on (or included in the Property Cost of) each Property
shall be less than or equal to 35% of the total Property costs of such
Property, provided however that this percentage limitation shall not
apply to any Equipment consisting of Fixtures or other goods
incorporated into a Property that are customarily considered to be part
of a building or structure erected on real property (such as heating,
ventilating, air-conditioning, electrical and mechanical equipment or
systems, escalators, elevators, wall and floor coverings, plumbing,
pumps, tanks, conduits, wiring, lighting, security systems, sprinklers
and other fire prevention and extinguishing apparatus).
(f) Neither the Lessee nor the Construction Agent shall create
or permit to exist at any time (and each of the Lessee and the
Construction Agent shall, at its own expense, take such action as may
be necessary to duly discharge, or cause to be discharged) any Lien
against any Property other than Permitted Liens.
(g) The Lessee shall pay (or cause to be paid) to the Agent
the Administrative Fee (described in the Fee Letter) when and as due
from time to time, and shall pay to the respective Persons entitled
thereto all other fees required by the Fee Letter when and as due from
time to time.
(h) The Lessee agrees to perform each of the Incorporated
Covenants and any other covenants set forth in (or incorporated by
reference into) Article XXVIII of the Lease, in accordance with their
respective terms.
(i) The Lessee and the Construction Agent shall take all
reasonable and necessary steps to identify any wetlands, tidelands or
swamp and overflow lands on any
38
Property prior to development of, or construction of any Improvements
on, such Property, and each Property will be developed in a manner
consistent with all applicable wetlands regulations.
(j) The Lessee and the Construction Agent shall give immediate
notice to the Agent and the Owner Trustee in the event that any
condition arising from or affecting any Property or arising from or
affecting any lands nearby or adjacent to any Property has or threatens
to have a significant adverse effect upon human health or the
environment at such Property or upon the use or value of such Property.
10.4. SHARING OF CERTAIN PAYMENTS. The parties hereto acknowledge and
agree that all payments due and owing by the Lessee to the Lessor under the
Lease or any of the other Operative Agreements shall be made by the Lessee
directly to the Agent as more particularly provided in SECTION 10.3 hereof. The
Holders and the Agent, on behalf of the Lenders, acknowledge the terms of
SECTION 8 of the Credit Agreement regarding the allocation of payments and other
amounts made or received from time to time under the Operative Agreements and
agree all such payments and amounts are to be allocated as provided in SECTION 8
of the Credit Agreement. In connection therewith the Holders hereby (a) appoint
the Agent to act as collateral agent for the Holders in connection with the Lien
granted by the Mortgage Instruments to secure the Holder Amount and (b)
acknowledge and agree and direct that the rights and remedies of the
beneficiaries of the Lien of the Mortgage Instruments shall be exercised by the
Agent on behalf of the Lenders and the Holders as directed from time to time by
the Lenders without notice to or consent from the Holders.
10.5. GRANT OF EASEMENTS, VOTING AT MEETINGS, ETC. The Agent and the
Holders hereby agree that, so long as no Event of Default shall have occurred
and be continuing, and until such time as the Agent gives instructions to the
contrary to the Owner Trustee, the Owner Trustee shall, from time to time at the
request of the Lessee, in connection with the transactions contemplated by the
Agency Agreement, the Lease or the other Operative Agreements, (i) grant
easements and other rights in the nature of easements with respect to any
Property, (ii) release existing easements or other rights in the nature of
easements which are for the benefit of any Property, (iii) execute and deliver
to any Person any instrument appropriate to confirm or effect such grants or
releases, and (iv) execute and deliver to any Person such other documents or
materials in connection with the acquisition, development or operation of any
Property, including, without limitation, reciprocal easement agreements,
operating agreements, development agreements, plats, replats or subdivision
documents; provided, that each of the agreements and documents referred to in
this SECTION 10.5 shall be of the type normally executed by the Lessee in the
ordinary course of the Lessee's business and shall be on commercially reasonable
terms so as not to diminish the value of any Property in any material respect.
10.6. RELEASE OF LIENS ON CERTAIN EQUIPMENT. So long as no Default or
Event of Default has occurred and is continuing, the Agent and the Owner Trustee
agree, upon the request of the Lessee, to release the Liens under the Operating
Agreements with respect to specified equipment acquired after the Initial
Closing Date by the Lessee but only if (a) a third-party financier will finance
the Lessee's acquisition of such equipment, (b) such equipment has not been
financed or acquired (in whole or in part) with any proceeds of any Loan or
Holder
39
Funding, (c) such equipment may be readily removed from the Property without any
damage to such equipment or any Property, (d) the third-party financier has no
Lien on any portion of any Property other than such equipment, and (e) such
equipment does not consist of a Fixture or other goods incorporated into a
Property that is customarily considered to be part of a building or structure
erected on real property (such as heating, ventilating, air-conditioning,
electrical and mechanical equipment or systems, escalators, elevators, wall and
floor coverings, plumbing, pumps, tanks, conduits, wiring, lighting, security
systems, sprinklers and other fire prevention and extinguishing apparatus).
10.7. OBLIGATIONS TO COLLATERAL AGENT. Each of the Lessee and the
Construction Agent hereby agrees vis-a-vis the Collateral Agent that it shall
pay to the Collateral Agent all amounts which the Lessee or the Construction
Agent is now or may at any time and from time to time hereafter be obligated to
pay in respect of any of its obligations under the Operative Agreements,
including without limitation amounts payable to the Owner Trustee, each Lender,
each Holder and the Administrative Agent under this Agreement, the Lease, the
Agency Agreement and Guaranty (the "Covenant to Pay Obligations"), if and when
such amounts become due and payable in accordance with the terms of this
Agreement or such other document.
The Lessee, the Construction Agent and the Collateral Agent agree and
acknowledge that the Covenant to Pay Obligations consist of obligations and
liabilities of the Lessee and the Construction Agent to the Collateral Agent
separate and independent from and without prejudice to the liabilities and
obligations which the Lessee or the Construction Agent has or may have at any
time to the Owner Trustee, any Lender, any Holder, the Administrative Agent or
other Person under this Agreement or other Operative Agreements, provided that
the total liability of the Lessee and the Construction Agent under the Covenant
to Pay Obligations shall be decreased from time to time to the extent that the
Lessee or the Construction Agent shall have paid to the Owner Trustee, any
Lender, any Holder, or the Administrative Agent or other appropriate payee any
amount due under this Agreement or other applicable Operative Agreement, and the
total liability of the Lessee and the Construction Agent vis-a-vis the Owner
Trustee, any Lender, any Holder, the Administrative Agent under this Agreement
or other applicable Operative Agreement, shall be decreased to the extent that
the Lessee or the Construction Agent shall have paid to the Collateral Agent
such amount due pursuant to the Covenant to Pay Obligations.
SECTION 11. CREDIT AGREEMENT AND TRUST AGREEMENT.
11.1. Construction Agent's and Lessee's Credit Agreement Rights.
Notwithstanding anything to the contrary contained in the Credit Agreement, the
Agent, the Construction Agent, the Lessee and the Owner Trustee hereby agree
that, prior to the occurrence and continuation of any Lease Default or Lease
Event of Default, the Construction Agent and the Lessee (as designated below)
shall have the following rights:
(a) the Construction Agent shall have the right and obligation (as more
specifically provided in Section 5.7 hereof) to designate the portion of the
Loans on which interest is due and payable for purposes of the definition of
"Allocated Interest";
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(b) the Construction Agent shall have the right to give the notice
referred to in Section 2.3 of the Credit Agreement, to designate the account to
which a borrowing under the Credit Agreement is to be credited pursuant to
Section 2.3 of the Credit Agreement and to provide the Allocation Notice;
(c) the Lessee shall have the right to terminate or reduce the
Commitments pursuant to SECTION 2.5(A) of the Credit Agreement;
(d) the Lessee shall have the right to exercise the conversion
and continuation options pursuant to SECTION 2.7 of the Credit
Agreement;
(e) the Lessee shall have the right to approve any successor
agent pursuant to SECTION 7.9 of the Credit Agreement;
(f) the Lessee shall have the right to consent to any
assignment by a Lender to which the Lessor has the right to consent
pursuant to SECTION 9.8 of the Credit Agreement; and
(g) without limiting the foregoing clauses (a) through (f),
and in addition thereto, the Lessee shall have the right to exercise
any other right of the Owner Trustee under the Credit Agreement upon
not less than five (5) Business Days' prior written notice from the
Lessee to the Owner Trustee and the Agent.
11.2. CONSTRUCTION AGENT'S AND LESSEE'S TRUST AGREEMENT RIGHTS.
Notwithstanding anything to the contrary contained in the Trust Agreement, the
Construction Agent, the Lessee, the Owner Trustee and the Holders hereby agree
that, prior to the occurrence and continuation of any Lease Default or Lease
Event of Default, the Construction Agent and the Lessee (as designated below)
shall have the following rights:
(a) the Construction Agent shall have the right and the
obligation (as more specifically provided in SECTION 5.7 hereof) to
designate the portion of the Holder Fundings on which Holder Yield is
due and payable for purposes of the definition of Allocated Return in
this Agreement;
(b) the Lessee shall have the right to exercise the conversion
and continuation options pursuant to SECTION 3.8 of the Trust
Agreement;
(c) no removal of the Owner Trustee or appointment of a
successor Owner Trustee pursuant to SECTION 9.1 of the Trust Agreement
shall be made without the prior written consent (not to be unreasonably
withheld or delayed) of the Lessee; and
(d) the Holders and the Owner Trustee shall not amend,
supplement or otherwise modify any provision of the Trust Agreement in
such a manner as to adversely affect the rights of the Lessee without
the prior written consent (not to be unreasonably withheld or delayed)
of the Lessee.
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SECTION 12. TRANSFER OF INTEREST.
12.1. RESTRICTIONS ON TRANSFER. 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, and (provided no Default or Event of Default has occurred
and is continuing) the Lessee, and (only if such proposed assignee is not a
Lender) the Majority Financing Parties (which consent in each case shall not be
unreasonably withheld or delayed), PROVIDED that such consents shall not be
required for an assignment to a Lender or an Affiliate of a Lender. The Owner
Trustee may, subject to the Lien of the applicable Security Documents, but only
with the prior written consent of the Agent, the Holders (which consent may be
withheld by the Agent or the Holders in their sole discretion) and (provided no
Default or Event of Default has occurred and is continuing) the Lessee, directly
or indirectly, assign, convey, appoint an agent with respect to enforcement of,
or otherwise transfer any of the Owner Trustee's right, title or interest in or
to any Property, the Lease, the Trust Agreement, this Agreement (including,
without limitation, any right to indemnification thereunder), or any other
document relating to a Property or any interest in a Property as provided in the
Trust Agreement and the Lease. The provisions of the immediately preceding
sentence shall not apply to the obligations of the Owner Trustee to transfer
Property to the Lessee or a third party purchaser pursuant to ARTICLE XXII of
the Lease upon payment for such Property in accordance with each of the terms
and conditions of the Lease.
12.2. EFFECT OF TRANSFER. From and after any transfer effected in
accordance with this SECTION 12, 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 Holder shall
remain liable under ARTICLE XI of the Trust Agreement to the extent that the
transferee Holder shall not have assumed the obligations of the transferor
Holder thereunder. Upon any transfer by the Owner Trustee or a Holder as above
provided, any such transferee shall assume the obligations of the Owner Trustee
and Lessor or the obligations of a Holder, as the case may be, and shall be
deemed an "Owner Trustee", "Lessor" or "Holder", 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 12, the
transferor shall be entitled to all benefits accrued and all rights vested prior
to such transfer including, without limitation, rights to indemnification under
any such document.
SECTION 13. INDEMNIFICATION.
13.1. GENERAL INDEMNITY. Subject to the provisions of SECTIONS 13.4 AND
13.5, and whether or not any of the transactions contemplated hereby shall be
consummated, the Indemnity Provider 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 other Person (but not to the
extent such Claims arise from the gross negligence or willful misconduct of such
Indemnified Person) in any way relating to or arising, or alleged (by any Person
asserting such a Claim
42
against an Indemnified Person) to arise, out of the execution, delivery,
performance or enforcement of this Agreement, the Lease, any other Operative
Agreement or on or with respect to any Property or any part thereof, including,
without limitation, Claims in any way relating to or arising or alleged to arise
out of (a) the financing, refinancing, purchase, acceptance, rejection,
ownership, design, construction, refurbishment, development, delivery,
acceptance, nondelivery, leasing, subleasing, possession, use, operation,
maintenance, repair, modification, transportation, condition, sale, return,
repossession (whether by summary proceedings or otherwise), or any other
disposition of a Property, or any part thereof, including the acquisition,
holding or disposition of any interest in any Property, lease or agreement
comprising a portion of any thereof; (b) any latent or other defect in any
property whether or not discoverable by an Indemnified Person or the Indemnity
Provider; (c) any Environmental Claim, any violation of Environmental Laws, or
any other loss of or damage to any property or the environment relating to any
Property, the Lease, the Agency Agreement or the Indemnity Provider; (d) the
Operative Agreements, or any transaction contemplated thereby; (e) any breach by
the Construction Agent or the Lessee of any of its representations or warranties
under the Operative Agreements to which it is a party or failure by the
Construction Agent or the Lessee to perform or observe any covenant or agreement
to be performed by it under any of the Operative Agreements; (f) 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; (g) any
personal injury, death or property damage, including without limitation Claims
based on strict or absolute liability in tort; (h) any easement, right,
agreement or document referred to in SECTION 10.5 of this Agreement; or (i) any
Lien on any Property (other than Liens created by the Operative Agreements).
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 Claim, such Indemnified Person shall
promptly notify the Indemnity Provider in writing and shall not take action with
respect to such Claim without the consent of the Indemnity Provider for thirty
(30) days after the receipt of such notice by the Indemnity Provider; PROVIDED,
HOWEVER, that, in the case of any such Claim, 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 endeavor, in such notice to the Indemnity Provider, to
inform the Indemnity Provider of such shorter period, and no action shall be
taken with respect to such Claim without the consent of the Indemnity Provider
before seven (7) 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 Indemnity Provider's obligation hereunder
except to the extent such failure materially precludes the Indemnity Provider
from contesting such Claim.
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 Indemnity Provider is required by law or regulation for the
Indemnified Person to respond to such Claim), the Indemnity Provider shall
request in writing that such Indemnified Person respond to such Claim, the
Indemnified Person shall, at the expense of the Indemnity Provider, in good
faith conduct and control such action (including, without limitation by pursuit
of appeals) (provided, however, that (A) if such Claim can be pursued by the
Indemnity Provider on behalf of or in the name of such Indemnified Person, the
Indemnified Person, at the Indemnity Provider's request, shall allow the
Indemnity Provider to conduct and control the response to such Claim and (B) in
the case of any Claim, the
43
Indemnified Person may request the Indemnity Provider to conduct and control the
response to such Claim (with counsel to be selected by the Indemnity Provider
and consented to by such Indemnified Person, such consent not to be unreasonably
withheld, conditioned or delayed; provided, however, that any Indemnified Person
may retain separate counsel at the expense of the Indemnity Provider in the
event of a conflict)) by, in the sole discretion of the Person conducting and
controlling the response to such Claim, (1) resisting payment thereof, (2) not
paying the same except under protest, if protest is necessary and proper, (3) if
the payment be made, using reasonable efforts to obtain a refund thereof in
appropriate administrative and judicial proceedings, or (4) taking such other
action as is reasonably requested by the Indemnity Provider from time to time.
The party controlling the response to any Claim shall consult in good
faith with the non-controlling party and shall keep the non-controlling party
reasonably informed as to the conduct of the response to such Claim; PROVIDED,
that all decisions ultimately shall be made in the discretion of the controlling
party, except that the Indemnity Provider may not agree to any dismissal or
settlement of, or other agreement in connection with, any claim without the
prior written consent of such Indemnified Person, if such dismissal, settlement
or agreement would require any admission or acknowledgment of any culpability or
wrongdoing by such Indemnified Person or provide for any nonmonetary relief to
be performed by such Indemnified Person. The parties agree that an Indemnified
Person may at any time decline to take further action with respect to the
response to such Claim and may settle such Claim if such Indemnified Person
shall waive its rights to any indemnity from the Indemnity Provider that
otherwise would be payable in respect of such Claim (and any future Claim, the
pursuit of which is precluded by reason of such resolution of such Claim) and
shall pay to the Indemnity Provider any amount previously paid or advanced by
the Indemnity Provider pursuant to this SECTION 13.1 by way of indemnification
or advance for the payment of any amount regarding such Claim other than
expenses of the action relating to such Claim.
Notwithstanding the foregoing provisions of this SECTION 13.1, an
Indemnified Person shall not be required to take any action and no Indemnity
Provider shall be permitted to respond to any Claim in its own name or that of
the Indemnified Person unless (A) the Indemnity Provider shall have agreed to
pay 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 such Claim, including, without limitation, all
reasonable legal, accounting and investigatory fees and disbursements, (B) 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 any part thereof or interest therein, will not interfere with the
payment of Rent, and will not result in risk of criminal liability, (C) if such
Claim shall involve the payment of any amount prior to the resolution of such
Claim, the Indemnity Provider shall provide to the Indemnified Person an
interest-free advance in an amount equal to the amount that the Indemnified
Person is required to pay (with no additional net after-tax cost to such
Indemnified Person), (D) in the case of a Claim that must be pursued in the name
of an Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall
have provided to such Indemnified Person an opinion of independent counsel
selected by the Indemnified Person and reasonably satisfactory to the Indemnity
Provider stating that a reasonable basis exists to contest such Claim, (E) such
claim is covered by insurance and (F) no Event of Default shall have
44
occurred and be continuing. 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 13.1, unless there shall have been a change
in law (or interpretation thereof) and the Indemnified Person shall have
received, at the Indemnity Provider's expense, an opinion of independent counsel
selected by the Indemnified Person and reasonably acceptable to the Indemnity
Provider 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.
13.2. GENERAL TAX INDEMNITY.
(a) Subject to the provisions of SECTIONS 13.4 AND 13.5, and
the Indemnity Provider 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.
(b) (i) Subject to the terms of SECTION 13.2(F), the Indemnity
Provider 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
Indemnity Provider 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 13.2(F) and which the
Indemnity Provider pays directly to the taxing authorities,
the Indemnity Provider shall pay such Impositions prior to the
latest time permitted by the relevant taxing authority for
timely payment. In the case of Impositions for which the
Indemnity Provider reimburses an Indemnified Person, the
Indemnity Provider shall do so within thirty (30) days after
receipt by the Indemnity Provider 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). In the case of Impositions
for which a contest is conducted pursuant to SECTION 13.2(F),
the Indemnity Provider shall pay such Impositions or reimburse
such Indemnified Person for such Impositions, to the extent
not previously paid or reimbursed pursuant to subsection (a),
prior to the latest time permitted by the relevant taxing
authority for timely payment after conclusion of all contests
under SECTION 13.2(F).
(iii) Impositions imposed with respect to a Property
for a billing period during which the Lease expires or
terminates with respect to such Property (unless the Lessee
has exercised the Purchase Option with respect to such
Property or the Lessee has otherwise purchased such Property)
shall be adjusted and prorated on a daily basis between the
Indemnity Provider and the Lessor, whether or not such
Imposition is imposed before or after such expiration or
termination and each party shall pay its pro rata share
thereof.
45
(iv) At the Indemnity Provider's request, the amount
of any indemnification payment by the Indemnity Provider
pursuant to subsection (a) shall be verified and certified by
an independent public accounting firm mutually acceptable to
the Indemnity Provider and the Indemnified Person. The fees
and expenses of such independent public accounting firm shall
be paid by the Indemnity Provider unless such verification
shall result in an adjustment in the Indemnity Provider's
favor of 15% or more of the payment as computed by the
Indemnified Person, in which case such fee shall be paid by
the Indemnified Person.
(v) The Indemnified Persons shall use good faith
efforts to take lawful deductions in their respective tax
returns so as to reduce the Impositions required to be
reimbursed by the Indemnity Provider hereunder; PROVIDED,
HOWEVER, that the failure of any Indemnified Person to take
any deduction shall not impair in any way such Person's right
to indemnification from the Indemnity Provider for any
Impositions.
(c) The Indemnity Provider shall be responsible for preparing
and filing any real and personal property or ad valorem tax returns
with respect to each Property. In case any other report or tax return
shall be required to be made with respect to any obligations of the
Indemnity Provider under or arising out of subsection (a) and of which
the Indemnity Provider has knowledge or should have knowledge, the
Indemnity Provider, at its sole cost and expense, shall notify the
relevant Indemnified Person of such requirement and (except if such
Indemnified Person notifies the Indemnity Provider that such
Indemnified Person intends to file such report or return) (A) to the
extent required or permitted by and consistent with Legal Requirements,
make and file in Indemnity Provider's 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 Indemnity Provider under or arising
out of subsection (a), provide such Indemnified Person at the Indemnity
Provider's expense with information sufficient to permit such return,
statement or report to be properly made with respect to any obligations
of the Indemnity Provider under or arising out of subsection (a). Such
Indemnified Person shall, upon the Indemnity Provider's request and at
the Indemnity Provider's expense, provide any data maintained by such
Indemnified Person (and not otherwise available to or within the
control of the Indemnity Provider) with respect to any Property which
the Indemnity Provider may reasonably require to prepare any required
tax returns or reports.
(d) If as a result of the payment or reimbursement by the
Indemnity Provider of any Imposition or other reasonable expenses of
the Lessor or the payment of any Transaction Expenses incurred in
connection with the transactions contemplated by the Operative
Agreements, the Lessor, the Holders or partners of any Holder shall
suffer a net increase in any federal, state or local income tax
liability, the Indemnity Provider
46
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 (including tax deductions, net operating loss
carry-forward or tax credits) 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 such Lessor, or such Holder, or such Affiliate, in respect
thereof.
(e) As between the Indemnity Provider on one hand, and the
Lessor or the Agent, any Lender or any Holder on the other hand, the
Indemnity Provider shall be responsible for, and the Indemnity Provider
shall indemnify and hold harmless the Lessor, the Agent, the Lenders
and each Holder (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 on the Notes or Certificates or with respect to Rent payments
under the Lease (and, if the Lessor, the Agent, any Lender or any
Holder receives a demand for such payment from any taxing authority,
the Indemnity Provider shall discharge such demand on behalf of the
Lessor, the Agent, such Lender or such Holder); provided, however, that
the right of any Lender to make a claim for indemnification under this
SECTION 13.2(E) is subject to the compliance by such Lender with the
requirements of SECTION 2.13 of the Credit Agreement.
(f) (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 Indemnity Provider in writing and
shall not take action with respect to such Claim or proceeding
without the consent of the Indemnity Provider for thirty (30)
days after the receipt of such notice by the Indemnity
Provider; 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 Indemnity
Provider, inform the Indemnity Provider of such shorter
period, and no action shall be taken with respect to such
Claim or proceeding without the consent of the Indemnity
Provider before seven (7) days before the end of such shorter
period; PROVIDED, FURTHER, that the failure of such
Indemnified Person to give the notices referred to this
sentence shall not diminish the Indemnity Provider's
obligation hereunder except to the extent such failure
precludes the Indemnity Provider from contesting 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 Indemnity Provider is
required by law or regulation for the Indemnified Person to
commence such contest), the Indemnity Provider shall request
in writing that such Indemnified Person contest such
Imposition, the Indemnified Person shall, at the expense of
the Indemnity Provider, in good faith conduct and control such
contest (including, without limitation, by pursuit of appeals)
relating
47
to the validity, applicability or amount of such Imposition
(provided, however, that (A) if such contest can be pursued
independently from any other proceeding involving a tax
liability of such Indemnified Person, the Indemnified Person,
at the Indemnity Provider's request, shall allow the Indemnity
Provider to conduct and control such contest and (B) in the
case of any contest, the Indemnified Person may request the
Indemnity Provider to conduct and control such contest (with
counsel to be selected by the Indemnity Provider and consented
to by such Indemnified Person, such consent not to be
unreasonably withheld, conditioned or delayed; provided,
however, that any Indemnified Person may retain separate
counsel at the expense of the Indemnity Provider in the event
of a conflict)) 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, (3) if the payment be made,
using reasonable efforts to obtain a refund thereof in
appropriate administrative and judicial proceedings, or (4)
taking such other action as is reasonably requested by the
Indemnity Provider from time to time.
(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, except that the Indemnity Provider may not
agree to any dismissal or settlement of, or other agreement in
connection with, any claim without the prior written consent
of such Indemnified Person, if such dismissal, settlement or
agreement would require any admission or acknowledgment of any
culpability or wrongdoing by such Indemnified Person or
provide for any nonmonetary relief to be performed by such
Indemnified Person. 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 Indemnity Provider that otherwise would
be payable in respect of such Imposition (and any future Claim
by any taxing authority, the contest of which is precluded by
reason of such resolution of such contest) and shall pay to
the Indemnity Provider any amount previously paid or advanced
by the Indemnity Provider pursuant to this SECTION 13.2 by way
of indemnification or advance for the payment of any amount
regarding such Imposition other than expenses of such contest.
(iv) Notwithstanding the foregoing provisions of this
SECTION 13.2, an Indemnified Person shall not be required to
take any action and no Indemnity Provider shall be permitted
to contest any Imposition in its own name or that of the
Indemnified Person unless (A) the Indemnity Provider shall
have agreed to pay 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 Imposition, including, without
limitation, all reasonable legal, accounting and investigatory
fees and disbursements, (B) the Indemnified Person shall have
reasonably determined that
48
the action to be taken will not result in any material danger
of sale, forfeiture or loss of any Property, or any part
thereof or interest therein, will not interfere with the
payment of Rent, and will not result in risk of criminal
liability, (C) if such contest shall involve the payment of
the Imposition prior to or during the contest, the Indemnity
Provider 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), (D)
in the case of a Claim that must be pursued in the name of an
Indemnified Person (or an Affiliate thereof), the Indemnity
Provider shall have provided to such Indemnified Person an
opinion of independent tax counsel selected by the Indemnified
Person and reasonably satisfactory to the Indemnity Provider
stating that a reasonable basis exists to contest such Claim,
and (E) no Event of Default shall have occurred and be
continuing. 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 13.2, unless there shall
have been a change in law (or interpretation thereof) and the
Indemnified Person shall have received, at the Indemnity
Provider's expense, an opinion of independent tax counsel
selected by the Indemnified Person and reasonably acceptable
to the Indemnity Provider 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.
13.3. ENVIRONMENTAL INDEMNITY; FUNDING/CONTRIBUTION INDEMNITY.
(a) ENVIRONMENTAL INDEMNITY. Without limiting the generality
of the foregoing, whether or not the transactions contemplated hereby
shall be consummated, the Indemnity Provider 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 other Person (but not to the extent such Claims arise from the
gross negligence or willful misconduct of such Indemnified Person) in
any way relating to or arising, or alleged (by any Person asserting
such a Claim against an Indemnified Person) to arise, out of any
Environmental Claim, any violation of Environmental Laws, or any other
loss of or damage to any Property or the environment (including without
limitation the presence on any Property of wetlands, tidelands or swamp
or overflow lands, or any condition arising from or affecting any
Property or arising from or affecting any lands nearby or adjacent to
any Property that has or threatens to have any adverse effect upon
human health or the environment at such Property or upon the use or
value of such Property), in each case relating to any Property, the
Lease, the Agency Agreement or the Indemnity Provider.
(b) CONTRIBUTION INDEMNITY. Without limiting the generality of
the provisions of SECTION 2.12 of the Credit Agreement or SECTION 3.10
of the Trust Agreement, as the case may be, the Lessee agrees to
indemnify each Lender and each Holder and to hold each Lender and each
Holder harmless from any loss or expense which such Lessor or
49
Holder may sustain or incur as a consequence of (a) default by the
Lessee or the Construction Agent in payment when due of a principal
amount or interest on any Eurodollar Loan or Eurodollar Holder Funding,
(b) default by the Lessee or the Construction Agent in making a
borrowing of, conversion into or continuation of Eurodollar Loans or
Eurodollar Holder Fundings, (c) default by the Lessee or the
Construction Agent in making any prepayment after the Lessee has given
a notice thereof in accordance with the provisions of the Operative
Agreements or (d) the making by the Lessee or the Construction Agent of
a prepayment of Eurodollar Loans or Eurodollar Holder Fundings on a day
which is not the last day of an Interest Period with respect thereto
for any reason whatsoever, including, without limitation, in each case,
any such loss or expense arising from the reemployment of funds
obtained by it or from fees payable to terminate the deposits from
which such funds were obtained. The covenant shall survive the
termination of the Operative Agreements and the payment of the Notes,
the Holder Certificates and all other amounts payable hereunder or
under any other Operative Agreement.
13.4. ADDITIONAL PROVISIONS REGARDING INDEMNIFICATION DURING
CONSTRUCTION PERIOD OF A PROPERTY. Notwithstanding the provisions of SECTIONS
13.1, 13.2 AND 13.3,
(a) the Owner Trustee shall be the only beneficiary of the
provisions set forth in SECTIONS 13.1, 13.2 AND 13.3, with respect to
any Property during the Construction Period for such Property (except
that other Indemnified Persons may benefit from the Environmental
Indemnities to the extent set forth in clause (c) below);
(b) in the case of third-party Claims with respect to a
Property during the Construction Period for such Property, the
indemnity benefiting the Owner Trustee referred to in clause (a) above
shall be limited to (i) Claims caused by or resulting from the acts or
omissions of the Indemnity Provider, any contractor or subcontractor of
the Indemnity Provider, or any other Person acting by, through or under
the Indemnity Provider or any such contractor or subcontractor, (ii)
Environmental Indemnities, or (iii) Claims for personal injury or
death, property damage, loss or theft, strict liability, workmen's
compensation, and other similar insurable liabilities; and
(c) during the Construction Period of a Property, the
indemnity provided with respect to such Property to Indemnified Persons
other than the Owner Trustee shall be limited to Environmental
Indemnities for environmental risks or conditions that exist on the
Property Closing Date for such Property. After the Construction Period
for a Property, each Indemnified Person shall be a beneficiary of the
provisions of SECTIONS 13.1, 13.2 AND 13.3 to the fullest extent of
such provisions.
13.5. INDEMNIFICATION PROVIDED BY THE OWNER TRUSTEE IN FAVOR OF THE
OTHER INDEMNIFIED PERSONS. To the extent the Indemnity Provider is not obligated
to indemnify any Indemnified Person with respect to the various matters
described in this SECTION 13.5, the Owner Trustee shall, and does hereby,
provide such indemnities in favor of each Indemnified Person (subject to clauses
(a) and (b) below) and shall pay all such amounts owed pursuant to this SECTION
13.5 with amounts advanced by the Lenders and the Holders (a) to the extent, but
only to the extent,
50
amounts are available therefor under the Available Commitments and Available
Holder 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 Property Cost of all the Properties (ratably with respect to each
Property, based on the ratio of the Property Cost for such Property individually
to the aggregate Property Cost of all Properties at such time).
Whether or not any of the transactions contemplated hereby shall be
consummated, the Owner Trustee 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 other Person (but not to the
extent such Claims arise from the gross negligence or willful misconduct of such
Indemnified Person) in any way relating to or arising, or alleged (by any Person
asserting such a Claim against an Indemnified Person) to arise, out of the
execution, delivery, performance or enforcement of this Agreement, the Lease,
any other Operative Agreement or on or with respect to any Property or any part
thereof, including, without limitation, Claims in any way relating to or arising
or alleged to arise out of any of the matters set forth in SECTION 13.1
(including any Claims that would be indemnified by the Indemnity Provider
pursuant to SECTION 13.1 but for the effect of SECTION 13.4).
The Owner Trustee 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
(including any Impositions that would be paid, assumed or indemnified by the
Indemnity Provider pursuant to SECTION 13.2 but for the effect of SECTION 13.4).
THE INDEMNITY OBLIGATIONS UNDERTAKEN BY THE OWNER TRUSTEE PURSUANT TO
THIS SECTION 13.5 ARE IN ALL RESPECTS SUBJECT TO THE LIMITATIONS ON LIABILITY
DESCRIBED IN SECTION 14.11.
SECTION 14. MISCELLANEOUS.
14.1. 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 transfer of any
Property to the Owner Trustee, the acquisition of any Equipment, the
construction of any Improvements, any disposition of any interest of the Owner
Trustee in any Property or any interest of the Holders in the Owner Trust, 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. In furtherance and not in limitation of the foregoing and
notwithstanding the occurrence of any Closing Date or the completion of any
Funding under this Agreement pursuant to SECTION 5.3 OR 5.5, each condition
precedent in connection with any such Closing Date or Funding which is not fully
51
satisfied may be subsequently required by the Agent to be satisfied (unless such
has been expressly waived in writing by the Agent).
14.2. NO BROKER, ETC. Each of the parties hereto represents to the
others that it has not retained or employed any broker, finder or financial
adviser to act on its behalf in connection with this Agreement, nor has it
authorized any broker, finder or financial adviser retained or employed by any
other Person so to act. Any party who is in breach of this representation shall
indemnify and hold the other parties harmless from and against any liability
arising out of such breach of this representation.
14.3. TRANSMISSION AND EFFECTIVENESS OF COMMUNICATIONS AND SIGNATURES.
(a) MODES OF DELIVERY. Except as otherwise provided in any
Operative Agreement, notices, requests, demands, directions, agreements
and documents delivered in connection with the Operative Agreements
(collectively, "COMMUNICATIONS") shall be transmitted by Requisite
Notice to the number and address set forth on SCHEDULE 14.3 may be
delivered by the following modes of delivery, and shall be effective as
follows:
Mode of Delivery Effective on earlier of actual receipt and:
--------------------------------------------------------------
Courier Scheduled delivery date
Facsimile When transmission in legible form complete
Mail Fourth Business Day after deposit in U.S.
mail first class postage pre-paid
Personal delivery When received
Telephone When conversation completed
Electronic Mail When received
PROVIDED, HOWEVER, that communications delivered to Administrative
Agent pursuant to SECTIONS 1, 2 OR 5 of this Agreement, SECTIONS 2.1,
2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9 OR 2.10 of the Credit Agreement,
or SECTIONS 3.1, 3.2, 3.3, 3.4, 3.6, 3.7 OR 3.8 of the Trust Agreement
must be in writing and shall not be effective until actually received
by Administrative Agent.
(b) RELIANCE BY ADMINISTRATIVE AGENT, LENDERS AND HOLDERS.
Administrative Agent, Lessor, Lenders and Holders shall be entitled to
rely and act on any communications purportedly given by or on behalf of
any Lessee/Borrower Party even if (i) such communications (A) were not
made in a manner specified herein, (B) were incomplete or (C) were not
preceded or followed by any other notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any
subsequent related communications provided for herein. Lessee shall
indemnify Administrative Agent, the Lessor, the Lenders and the Holders
from any loss, cost, expense or liability as a result of relying on any
communications permitted herein so long as such Administrative Agent,
Lessor, Lenders and Holders have acted in good faith.
52
(c) EFFECTIVENESS OF FACSIMILE DOCUMENTS AND SIGNATURES.
Operative Agreements may be transmitted and/or signed by facsimile. The
effectiveness of any such documents and signatures shall, subject to
applicable Law, have the same force and effect as hardcopies with
manual signatures and shall be binding on all Lessee/Borrower Parties
and Administrative Agent, Lenders and the Holders. Administrative Agent
may also require that any such documents and signatures be confirmed by
a manually-signed hardcopy thereof; PROVIDED, HOWEVER, that the failure
to request or deliver any such manually-signed hardcopy shall not
affect the effectiveness of any facsimile document or signature.
(d) EFFECTIVENESS OF ELECTRONIC MAIL. Electronic mail and
internet and intranet websites may be used to distribute routine
communications, such as financial statements and other information and
to distribute agreements and other documents to be signed by Lenders or
Holders; PROVIDED, HOWEVER, that no Requisition or executed or
legally-binding notice, agreement, waiver, amendment or other
communication may be sent by electronic mail.
(e) NEW ADDRESSES. From time to time any party may designate a
new address, attention party, telephone number, telefacsimile number or
e-mail address for purposes of notice hereunder by notice to the Agent,
with copies to each of the other parties hereto.
14.4. 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.
14.5. TERMINATIONS, AMENDMENTS, WAIVER, ETC.; UNANIMOUS VOTE MATTERS.
Each Basic Document 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 Financing
Parties and each Credit Party (to the extent such Credit Party is a party to
such Basic Document); PROVIDED, to the extent no Lease Default or Lease Event of
Default shall have occurred and be continuing, the Majority Financing Parties
shall not amend, supplement, waive or modify any provision of any Basic Document
in such a manner as to adversely affect the rights of the Lessee without the
prior written consent (not to be unreasonably withheld or delayed) of the
Lessee. Each Operative Agreement which is not a Basic Document may be
terminated, amended, supplemented, waived or modified only by an instrument in
writing signed by the parties thereto and (without the consent of any other
Financing Party) the Agent. 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 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 rate of
53
interest payable on any Note or 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), reduce the stated
rate of any Commitment Fees or Holder Commitment Fees, extend the scheduled date
of payment of any Commitment Fees or Holder Commitment Fees, increase the amount
of any Person's Commitment or Holder Commitment, modify the priority of any Lien
in favor of the Agent under any Security Document, subordinate any obligation
owed to such Lender or Holder, or (ii) terminate, amend, supplement, waive or
modify any provision of this SECTION 14.5 or reduce the percentage specified in
the definition of Majority Financing Parties, or consent to the assignment or
transfer by the Owner Trustee of any of its rights and obligations under any
Basic Document or release a material portion of the Collateral (except in
accordance with SECTION 8.3 of the Credit Agreement) or release the Lessor, the
Lessee, the Construction Agent or any Alternative Lessee from its obligations
under any Operative Agreement or otherwise alter any payment obligations of the
Lessor, the Lessee, the Construction Agent or any Alternative Lessee to the
Lessor or any Financing Party under the Operative Agreements, or (iii)
terminate, amend, supplement, waive or modify any provision of SECTION 7 of the
Credit Agreement. 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 Majority Financing Parties,
satisfied, and 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
Financing Parties, 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 Financing Parties, and shall have no
rights under SECTION 14.5, PROVIDED that any action taken pursuant to the second
paragraph of this SECTION 14.5 shall not be effective against any Defaulting
Lender unless such Defaulting Lender has consented thereto.
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 Financing
Parties, 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 Financing Parties, 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 Financing Parties, and
shall have no rights under this SECTION 14.5, PROVIDED that any action taken
pursuant to the second paragraph of this SECTION 14.5 shall not be effective as
against the Defaulting Holder unless such Defaulting Holder has consented
thereto.
54
14.6. 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.
14.7. 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; provided, that the Lenders are intended to be
third-party beneficiaries of this Agreement.
14.8. GOVERNING LAW; WAIVERS OF JURY TRIAL.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF FLORIDA,
WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICT OF
LAWS.
(b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF
THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY
OTHER OPERATIVE AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
14.9. SUBMISSION TO JURISDICTION; WAIVERS. Each of the parties hereto
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Operative
Agreements to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of Florida and the courts of
the United States of America, for the Middle District of Florida, Tampa
Division, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same,
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail) postage
prepaid, to the respective party at its address set forth in Section
14.3 hereof or at such other address of which the Administrative Agent
shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction; and
55
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section 14.9 any special, exemplary, punitive or
consequential damages.
14.10. 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 such
provision unenforceable in any other jurisdiction.
14.11. LIABILITY LIMITED.
(a) The Agent, the Lessee and the Holders each acknowledge and
agree that the Owner Trustee is (except as otherwise expressly provided
herein or therein) entering into this Agreement and the other Operative
Agreements to which it is a party (other than the Trust Agreement and
other than as set forth in SECTION 7.2 of this Agreement), solely in
its capacity as trustee under the Trust Agreement and not in its
individual capacity and that Trust Company shall not be liable or
accountable under any circumstances whatsoever in its individual
capacity for or on account of any statements, representations,
warranties, covenants or obligations stated to be those of the Owner
Trustee, except for its own gross negligence or willful misconduct and
except 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, neither the Lessor nor any Holder (in its capacity as
a Holder) nor any officer, director, shareholder, or partner thereof,
nor any of the successors or assigns of the foregoing (all such Persons
being hereinafter referred to collectively as the "Exculpated
Persons"), shall be personally liable in any respect for any liability
or obligation hereunder or under 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 Agreement or any of the other Operative Agreements. The
Agent (for itself and on behalf of the Lenders) agrees that, in the
event the Agent or any Lender pursues any remedies available to them
under the Credit Agreement, the Notes, this Agreement, the Security
Agreement, the Mortgage Instruments or under any other Operative
Agreement, neither the Lenders 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 and the Lessee
(with respect to the Lessee's obligations under the Lease, the
Participation Agreement and the Agency Agreement); but nothing
contained herein shall be taken to prevent recourse against or the
enforcement of remedies against the Trust Estate in respect of any and
all liabilities, obligations and undertakings contained herein, in the
Credit Agreement, in the Notes, in the Security Agreement, the Mortgage
Instruments or in any other Operative Agreement. Notwithstanding the
provisions of this Section, nothing in this Agreement, the Credit
56
Agreement, the Notes, the Security Agreement, the Mortgage Instruments
or any other Operative Agreement shall: (i) constitute a waiver,
release or discharge of any indebtedness or obligation evidenced by the
Notes or arising under this Agreement, the Security Agreement, the
Mortgage Instruments or the Credit Agreement or secured by the Security
Agreement, the Mortgage Instruments or any other Operative Agreement,
but the same shall continue until paid or discharged; (ii) relieve the
Lessor or any Exculpated Person from liability and responsibility for
(but only to the extent of the damages arising by reason of): (a)
active waste knowingly committed by such Lessor or such Exculpated
Person with respect to the Properties or (b) any fraud, gross
negligence, willful misconduct or willful breach on the part of such
Lessor or such Exculpated Person; (iii) relieve such Lessor or such
Exculpated Person from liability and responsibility for (but only to
the extent of the moneys misappropriated, misapplied or not turned
over) (a) misappropriation or misapplication by such Lessor (I.E.,
application in a manner contrary to any Operative Agreement) of any
insurance proceeds or condemnation award paid or delivered to such
Lessor by any Person other than the Agent, (b) any deposits or any
escrows or amounts owed by the Lessee under the Agency Agreement held
by such Lessor or (c) any rents or other income received by such Lessor
from the Lessee that are 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 its rights thereunder or its
right to obtain a judgment against the Lessor's interest in the
Properties.
14.12. RIGHTS OF LESSEE. Notwithstanding any provision of the Operative
Agreements, if at any time all obligations (i) of the Owner Trustee under the
Credit Agreement, the Security Documents, the Trust Agreement 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 any of the Properties.
Upon the termination of the Lease pursuant to the foregoing clause (a), the
Lessor shall transfer to the Lessee all of its right, title and interest free
and clear of the Lien of the Lease and all Lessor Liens in and to any Properties
then subject to the Lease and any amounts or proceeds referred to in the
foregoing clause (b) shall be paid over to the Lessee.
14.13. 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 Participation Agreement, the other
Operative Agreements and the transactions contemplated hereby and thereby
(including, without limitation, the preparation, execution and filing of any and
all Uniform Commercial Code financing statements 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 necessary
(including any action specified in the preceding sentence), or (if Owner Trustee
shall so request) as so requested, in order to maintain and protect all security
interests provided for hereunder or under any other Operative Agreement. The
Owner Trustee, the Construction Agent and the Lessee each agrees to deliver to
the Agent (at the Lessee's expense), promptly upon the request of the Agent, the
Owner Trustee or the Majority Financing Parties,
57
any document that was required to be delivered with respect to any Existing
Property pursuant to the terms of the Existing Participation Agreement or any
other "Operative Agreement" (as defined in the Existing Participation
Agreement), including without limitation any document required by SECTION 5.6 of
the Existing Participation Agreement.
14.14. CALCULATIONS UNDER OPERATIVE AGREEMENTS. The parties hereto
agree that all calculations and numerical determinations to be made under the
Operative Agreements by the Owner Trustee shall be made by the Agent and that
such calculations and determinations shall be conclusive and binding on the
parties hereto in the absence of manifest error.
14.15. CONFIDENTIALITY. Each of the Owner Trustee, the Holders, the
Agent and the Lenders severally agrees to use reasonable efforts to keep
confidential all non-public information pertaining to the Lessee or its
Subsidiaries which is provided to it by the Lessee or its Subsidiaries, and
shall not intentionally disclose such information to any Person except:
(a) to the extent such information is public when received by
such Person or becomes public thereafter due to the act or omission of
any party other than such Person;
(b) to the extent such information is independently obtained
from a source other than the Lessee or any of its Subsidiaries and such
information from such source is not, to such Person's knowledge,
subject to an obligation of confidentiality or, if such information is
subject to an obligation of confidentiality, that disclosure of such
information is permitted;
(c) to any Affiliate of any such Person or to counsel,
auditors or accountants retained by any such Person or any such
Affiliate, provided they agree to keep such information confidential as
if such Person or Affiliate were party to this Agreement and to
financial institution regulators, including examiners of any Lender,
the Agent or the Owner Trustee, any Holder or any Affiliate in the
course of examinations of such Persons;
(d) in connection with any litigation or the enforcement or
preservation of the rights of the Agent, the Owner Trustee, the Lessor,
any Lender or any Holder under the Operative Agreements;
(e) to the extent required by any applicable statute, rule or
regulation or court order (including, without limitation, by way of
subpoena) or pursuant to the request of any regulatory or Governmental
Authority having jurisdiction over any such Person; PROVIDED, HOWEVER,
that such Person shall endeavor (if not otherwise prohibited by Law) to
notify the Lessee prior to any disclosure made pursuant to this clause
(e), except that no such Person shall be subject to any liability
whatsoever for any failure to so notify the Lessee;
(f) to the Agent, any Lender or any Holder; or
58
(g) to the extent disclosure to any other financial
institution or other Person is appropriate in connection with any
proposed or actual (i) assignment or grant of a participation by any of
the Lenders of interests in the Credit Agreement or any Note to such
other financial institution or (ii) assignment by any Holder of
interests in the Trust Agreement to another Person.
14.16. CALCULATION OF RENT, INTEREST, HOLDER YIELD AND FEES. Except as
otherwise expressly set forth in the Operative Agreements, all calculation of
Rent, interest, Holder Yield, Overdue Rate, Holder Overdue Rate, Commitment
Fees, or Holder Commitment Fees payable hereunder shall be computed based on the
actual number of days elapsed over a year of 360 days.
14.17. SYNDICATION AGENT, DOCUMENTATION AGENT AND MANAGING AGENT. None
of the Lenders or Holders identified on the facing page or any other page of
this Agreement or any other Operative Agreement as a "syndication agent",
"documentation agent" or "managing agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement or any other
Operative Document other than those applicable to all Lenders as such, or all
Holders as such, as the case may be. Without limiting the foregoing, none of the
Lenders or Holders so identified as "syndication agent", "documentation agent"
or "managing agent" shall have or be deemed to have any fiduciary relationship
with any Lender, Holder or Owner Trustee. Each Lender, each Holder and the Owner
Trustee acknowledges that it has not relied, and will not rely, on any of the
Lenders or Holders so identified in deciding to enter into this Agreement or any
other Operative Agreement or in taking or not taking action hereunder or
thereunder.65
[Signatures on following pages.]
59
IN WITNESS WHEREOF, the parties hereto have caused this Participation
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
TECH DATA CORPORATION,
as Construction Agent
By: /s/
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of Finance and
Chief Financial Officer
TECH DATA CORPORATION,
as Lessee
By: /s/
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of Finance and
Chief Financial Officer
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, except as
expressly stated herein, but solely as Owner
Trustee under the TD 1996 Real Estate Trust
By: /s/
---------------------------
Name: C. Xxxxx Xxxxxxx
Title: Vice President
SIGNATURE PAGE 1
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/
---------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
as a Lender and as a Holder
By: /s/
---------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Vice President
BANK ONE, N.A.,
as a Lender and as a Holder
By: /s/
---------------------------
Name: XXXXX XXXXXXXX
Title: VICE PRESIDENT
SCOTIABANC, INC.,
as a Lender and as a Holder
By: /s/
---------------------------
Name: XXXXX X. XXXXXXX
Title: RELATIONSHIP MANAGER
FIRST UNION NATIONAL BANK,
as a Lender and as a Holder
By: /s/
---------------------------
Name: XXXXXXX X. XXXXX
Title: ASSISTANT VICE PRESIDENT
SIGNATURE PAGE 2
DG BANK DEUTSCHE
GENOSSENSCHAFTSBANK AG, CAYMAN
ISLANDS BRANCH,
as a Lender and as a Holder
By: /s/
---------------------------
Name: X.X. XXXXXX
Title: SENIOR VICE PRESIDENT
By: /s/
---------------------------
Name: XXXX X. XXXXXX
Title: VICE PRESIDENT
REPUBLIC BANK,
as a Lender and as a Holder
By: /s/
---------------------------
Name: XXXXXXXX X. XXXXXX
Title:SENIOR VICE PRESIDENT
SUNTRUST BANK,
as a Lender and as a Holder
By: /s/
---------------------------
Name: XXXXX X. XXX
Title: VICE PRESIDENT
SIGNATURE PAGE 0
XXXXXXXXXX XXXX-XXX XXXXXXXXXXX
XX, XXX XXXX BRANCH,
as a Lender and as a Holder
By: /s/
-----------------------
Name: XXXXXXXX XXXXXXXXXX
Title: DIRECTOR
By: /s/
-----------------------
Name: XXXXXXX XXXXXXX
Title: ASSOCIATE DIRECTOR
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES,
as a Lender and as a Holder
By: /s/
-----------------------
Name: XINYUE XXXXXXX XXXXXXX
Title:ASSISTANT VICE PRESIDENT
By: /s/
-----------------------
Name: B. XXXXX XXXXXXXX
Title: VICE PRESIDENT
XXXXXXX XXXXX BANK, FSB,
as a Lender and as a Holder
By: /s/
------------------------
Name: XXXX X. XXXXXXXXX
Title: VICE PRESIDENT
SIGNATURE PAGE 4
ACKNOWLEDGED AND AGREED TO:
TECH DATA PRODUCT MANAGEMENT, INC.,
as Alternative Lessee
By: /s/
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of Finance and
Chief Financial Officer
TD FACILITIES, LTD.,
as Alternative Lessee
By: /s/
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of Finance and
Chief Financial Officer
SIGNATURE PAGE 5
Appendix A
Rules of Usage and Definitions
--------------------------------------------------------------------------------
I. Rules of Usage
The following rules of usage shall apply to this Participation
Agreement and the Operative Agreements (and each appendix, schedule, exhibit and
annex to the foregoing) unless otherwise required by the context or unless
otherwise defined therein:
(a) Except as otherwise expressly provided, any definitions
set forth herein or in any other document shall be equally applicable
to the singular and plural forms of the terms defined.
(b) Except as otherwise expressly provided, references in any
document to articles, sections, paragraphs, clauses, annexes,
appendices, schedules or exhibits are references to articles, sections,
paragraphs, clauses, annexes, appendices, schedules or exhibits in or
to such document.
(c) The headings, subheadings and table of contents used in
any document are solely for convenience of reference and shall not
constitute a part of any such document nor shall they affect the
meaning, construction or effect of any provision thereof.
(d) References to any Person shall include such Person, its
successors and permitted assigns and transferees.
(e) Except as otherwise expressly provided, reference to any
agreement means such agreement as amended, modified, extended,
supplemented, restated or replaced from time to time in accordance with
the applicable provisions thereof.
(f) Except as otherwise expressly provided, references to any
law includes any amendment or modification to such law and any rules or
regulations issued thereunder or any law enacted in substitution or
replacement therefor.
(g) When used in any document, words such as "hereunder",
"hereto", "hereof" and "herein" and other words of like import shall,
unless the context clearly indicates to the contrary, refer to the
whole of the applicable document and not to any particular article,
section, subsection, paragraph or clause thereof.
(h) References to "including" means including without limiting
the generality of any description preceding such term and for purposes
hereof the rule of ejusdem generis shall not be applicable to limit a
general statement, followed by or referable to an enumeration of
specific matters, to matters similar to those specifically mentioned.
Appendix A-1
(i) Unless the context indicates otherwise, the disjunctive
"or" shall include the conjunctive "and."
(j) Each of the parties to the Operative Agreements and their
counsel have reviewed and revised, or requested revisions to, the
Operative Agreements, and the usual rule of construction that any
ambiguities are to be resolved against the drafting party shall be
inapplicable in the construing and interpretation of the Operative
Agreements and any amendments or exhibits thereto.
II. Definitions
"Abandonment" shall mean, with respect to any Construction Period
Property, the cessation of construction and development of such Property for a
period of thirty (30) days or more for reasons other than a Force Majeure Event.
"Acceleration" shall have the meaning given to such term in SECTION 6
of the Credit Agreement.
"acquire" or "purchase" shall mean, with respect to any Property,
unless the context indicates otherwise, the acquisition or purchase of such
Property by the Owner Trustee from any Person.
"Acquisition Funding" shall mean an advance of funds (consisting of
Loans by the Lenders and Holder Fundings by the Holders) to the Lessor on a
specified date to pay Property Acquisition Costs and other expenses pursuant to
SECTION 5.3(B) of the Participation Agreement.
"Acquisition Loan" shall mean any Loan made in connection with and as
part of an Acquisition Funding.
"Additional Improvements" shall have the meaning assigned thereto in
SECTION 5.10 of the Participation Agreement.
"Administrative Agent" or "Agent" shall mean, collectively, (a) Bank of
America, together with its Affiliates, as the administrative agent for the
Lenders under this Agreement and the other Operative Agreements and any
successor Administrative Agent who may be appointed pursuant to SECTION 7.9 of
the Credit Agreement, (b) Bank of America, together with its affiliates, as
agent and Collateral Agent for itself, the Lenders and the Holders under the
Security Documents (other than the Pledge Agreement), and (c) Bank of America in
its capacity as Collateral Agent under the Pledge Agreement.
"Administrative Agent-Related Persons" shall mean Administrative Agent
(including any successor agent), together with its Affiliates and the Collateral
Agent, and the officers, directors, employees, agents and attorneys-in-fact of
such Persons and Affiliates and Collateral Agent.
"Affiliate" shall mean any Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, another Person.
A Person shall be deemed to be
Appendix A-2
"controlled by" any other Person if such other Person possesses, directly or
indirectly, power (a) to vote 10% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors or managing
general partners; or (b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"After Tax Basis" shall mean, with respect to any payment to be
received, the amount of such payment increased so that, after deduction of the
amount of all taxes required to be paid by the recipient calculated at the rate
believed by such recipient to be the highest marginal rate then applicable to
the recipient (less any tax savings realized as a result of the payment of the
indemnified amount) with respect to the receipt by the recipient of such
amounts, such increased payment (as so reduced) is equal to the payment
otherwise required to be made.
"Agency Agreement" shall mean the Amended and Restated Agency
Agreement, dated as of the Initial Closing Date, between the Construction Agent
and the Lessor, as such agreement may be amended, modified, restated or
supplemented from time to time in accordance with the terms thereof.
"Agency Agreement Event of Default" shall mean an "Event of Default" as
defined in SECTION 5.1 of the Agency Agreement.
"Allocated Interest" with respect to any Construction Period Property
shall mean as of any Scheduled Interest Payment Date, the amount of interest due
and payable on such date with respect to a portion of the Loans (which portion
shall be designated by the Borrower by written notice (an "ALLOCATION NOTICE")
to the Administrative Agent) having an aggregate principal amount equal to the
Loan Property Cost of such Property as of such date.
"Allocated Return" with respect to any Construction Period Property
shall mean, as of any Scheduled Interest Payment Date, the amount of Holder
Yield due and payable on such date with respect to a portion of the Holder
Fundings (which portion shall be designated by the Owner Trustee by written
notice to the Holders) having an aggregate stated amount equal to the Holder
Property Cost of such Property as of such date.
"Allocation Notice" shall have the meaning given to such term in the
definition of "Allocated Interest."
"Alternative Lessee" shall mean any Subsidiary of Tech Data that is an
alternative Lessee of any Property pursuant to SECTION 2.5 of the Lease.
"Amended Tech Data Credit Agreement" shall mean the Credit Agreement
dated as May 8, 2000, among Tech Data, Bank of America, as administrative agent,
swing line and letter of credit issuing lender, and the lender parties thereto,
as such agreement may be amended, modified or restated from time to time.
Appendix A-3
"Applicable Commitment Fee Rate" shall mean the following rates per
annum, based upon the Debt Rating:
Applicable Commitment Fee Rate
(in basis points per annum)
PRICING DEBT RATINGS APPLICABLE COMMITMENT
LEVEL S&P/XXXXX'X FEE RATE
------- ------------ ---------------------
1 =>BBB+/Baa1 15.0
2 BBB/Baa2 17.5
3 BBB-/Baa3 20.0
4 BB+/Ba1 25.0
5 BB/Ba2 37.5
6 BB-/Ba3 50.0
From the Initial Closing Date until the date of any change in the Debt Rating,
the Applicable Commitment Fee Rate shall be Pricing Level 3 (based on the
certificate delivered to Bank of America pursuant to Section 5.01(a)(viii) of
the Amended Tech Data Credit Agreement).
"Applicable Expiration Date" shall have the meaning assigned thereto in
SECTION 20.1(B) of the Lease.
"Applicable Funding Office" means for each Lender or Holder and for
each Type of Loan or Holder Funding, the "Funding Office" of such Lender or
Holder (or of an affiliate of such Lender or Holder) designated for such Type of
Loan or Holder Funding on the signature pages of the Participation Agreement or
the respective Assignment and Acceptance, or such other office of such Lender or
Holder (or an affiliate of such Lender or Holder) as such Lender or Holder may
from time to time specify to the Agent and the Borrower by written notice in
accordance with the terms of the Operative Agreements as the office by which its
Loans or Holder Fundings of such Type are to be made and maintained.
"Applicable Margin" shall mean the following rates per annum, based
upon the Debt Rating:
Applicable Margin
(in basis points per annum)
PRICING DEBT RATINGS EURODOLLAR BASE
LEVEL S&P/XXXXX'X RATE RATE
------- ------------ ---------- ----
1 =>BBB+/Baa1 50.0 0
2 BBB/Baa2 75.0 0
3 BBB-/Baa3 100.0 0
4 BB+/Ba1 125.0 50.0
5 BB/Ba2 175.0 75.0
6 BB-/Ba3 225.0 100.0
Appendix A-4
From the Initial Closing Date until the date of any change in the Debt Rating,
the Applicable Margin for Base Rate and Eurodollar Rate shall be Pricing Level 3
(based on the certificate delivered to Bank of America pursuant to Section
5.01(a)(viii) of the Amended Tech Data Credit Agreement).
"Appraisal" shall mean, with respect to any Property an appraisal to be
delivered in connection with SECTION 5.3 of the Participation Agreement, SECTION
3.2 of the Agency Agreement, SECTION 10.1(e) of the Lease, or any other
provision of the Operative Agreements, in each case prepared by a reputable
appraiser reasonably acceptable to the Agent, which complies with all of the
provisions of the Financial Institutions Reform, Recovery and Enforcement Act of
1989, as amended, the rules and regulations adopted pursuant thereto, and all
other applicable Legal Requirements.
"Appraisal Procedure" shall have the meaning given such term in SECTION
22.4 of the Lease.
"Approved Country" shall mean any of the United States, Germany,
France, Sweden, Switzerland, Belgium, the Netherlands, Luxembourg or the United
Kingdom.
"Appurtenant Rights" shall mean (i) all agreements, easements, rights
of way or use, rights of ingress or egress, privileges, appurtenances,
tenements, hereditaments and other rights and benefits at any time belonging or
pertaining to the Land underlying any Improvements, or the Improvements,
including, without limitation, the use of any streets, ways, alleys, vaults or
strips of land adjoining, abutting, adjacent or contiguous to the Land and (ii)
all permits, licenses and rights, whether or not of record, appurtenant to such
Land.
"Assignment and Acceptance" shall mean the Assignment and Acceptance in
the form attached as EXHIBIT C to the Credit Agreement.
"Assignment of Project Rights" shall mean the Assignment of Project
Rights and Contract Documents dated as of the Initial Closing Date, between the
Owner Trustee and the Agent, as such agreement may be amended, modified,
restated or supplemented from time to time in accordance with the terms thereof.
"Attorney Costs" shall mean and include all fees and disbursements of
any law firm or other external counsel and the allocated cost of internal legal
services and all disbursements of internal counsel.
"Available Commitment" shall mean, as to any Lender at any time, an
amount equal to the excess, if any, of (a) the amount of such Lender's
Commitment over (b) the aggregate principal amount of all Loans made by such
Lender.
"Available Holder Commitments" shall mean an amount equal to the
excess, if any, of (i) the amount of the Holder Commitments over (ii) the
aggregate amount of the Holder Fundings made since the Initial Closing Date.
Appendix A-5
"Bank of America" shall mean Bank of America, N.A., a national banking
association.
"Bankruptcy Code" shall mean Title 11 of the U.S. Code entitled
"Bankruptcy" as now or hereafter in effect, or any successor thereto;
"BAS" shall mean Bank of America Securities LLC, a Delaware limited
liability company.
"Base Rate" shall mean a fluctuating rate per annum equal to the sum of
(i) the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "prime rate" plus (ii) the Applicable Margin. The "prime rate"
is a rate set by Bank of America based upon various factors including Bank of
America's costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate. Any change in the "prime rate"
announced by Bank of America shall take effect at the opening of business on the
day specified in the public announcement of such change.
"Base Rate Funding" shall mean a Funding that bears interest (with
respect to the Loans included therein) and Holder Yield (with respect to the
Holder Fundings included therein) based on the Base Rate.
"Base Rate Holder Funding" shall mean a Holder Funding bearing a Holder
Yield based on the Base Rate.
"Base Rate Loans" shall mean Loans the rate of interest applicable to
which is based upon the Base Rate.
"Basic Documents" shall mean, collectively, the Participation
Agreement, the Agency Agreement, the Lease, the Credit Agreement, the Trust
Agreement, the Guaranty Agreement, the Notes and the Certificates.
"Basic Rent" shall mean, the sum of (i) the Loan Basic Rent and (ii)
the Lessor Basic Rent, calculated as of the applicable date on which Basic Rent
is due.
"Basic Rent Commencement Date" shall have the meaning set forth in
Section 3.1(a)(ii) of the Lease.
"Basic Term" shall have the meaning specified in Section 2.2 of the
Lease.
"Basic Term Commencement Date" or "Term Commencement Date" shall have
the meaning specified in SECTION 2.2 of the Lease.
"Basic Term Expiration Date" shall have the meaning specified in
SECTION 2.2 of the Lease.
Appendix A-6
"Xxxx of Sale" shall mean a Xxxx of Sale regarding Equipment in form
and substance satisfactory to the Owner Trustee, the Holders and the Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrowing Date" shall mean any Business Day specified in a notice
delivered pursuant to SECTION 2.3 of the Credit Agreement as a date on which the
Borrower requests the Lenders to make Loans hereunder.
"Budgeted Total Loan Property Cost" shall mean, at any date of
determination, with respect to any Construction Period Property, an amount equal
to the aggregate amount which the Construction Agent in good faith expects to be
expended in order to achieve Completion with respect to such Property (including
amounts expected to be expended to pay Allocated Interest and Allocated Return
with respect to such Property).
"Business Day" shall mean a day other than a Saturday, Sunday or other
day on which commercial banks in Florida or California are authorized or
required by law to close; PROVIDED, HOWEVER, that when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Casualty" shall mean any damage or destruction of all or any portion
of a Property as a result of a fire or other casualty.
"Category" with respect to any Commitment or Loan shall mean a
Commitment or Loan with respect to Series A Loans or Series B Loans, as the case
may be.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 X.X.X.xx.xx. 9601 et seq., as
amended by the Superfund Amendments and Reauthorization Act of 1986.
"Certificate" shall mean a Certificate in favor of each Holder
evidencing the Holder Fundings made by such Holder and issued pursuant to the
Trust Agreement.
"Claims" shall mean any and all obligations, liabilities, losses,
actions, suits, penalties, claims, demands, costs and expenses (including,
without limitation, reasonable attorney's fees and expenses) of any nature
whatsoever (including without limitation claims brought against the Owner
Trustee by an Indemnified Person pursuant to SECTION 13.5).
"Closing Date" shall mean the Initial Closing Date and each Property
Closing Date.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute thereto.
Appendix A-7
"Collateral" shall mean all assets of the Lessor or the Lessee, now
owned or hereafter acquired, upon which a lien is purported to be created by the
Security Documents.
"Collateral Agent" shall mean Bank of America, in its capacity as
collateral agent under any of the Operative Agreements, or any successor
collateral agent.
"Commitment" shall mean, as to any Lender, the obligation of such
Lender to make Series A Loans or Series B Loans, as the case may be, to the
Borrower hereunder in an aggregate principal amount at any one time outstanding
not to exceed the respective amounts for such Category set forth opposite such
Lender's name on SCHEDULE 1.2 of the Credit Agreement, as such amounts may be
reduced or increased from time to time in accordance with the provisions of this
Agreement, the Credit Agreement or the Lease.
"Commitment Fee" shall mean, at any time, the product of (a) the
Applicable Commitment Fee Rate, MULTIPLIED BY (b) the actual daily amount by
which (i) the aggregate Commitments of the Lenders for all Categories of Loans
(under the Operative Agreements) exceeds (ii) the outstanding principal amount
of all Categories of Loans.
"Commitment Fee Payment Date" shall mean (a) the first Business Day
following the last day of each fiscal quarter of Tech Data, and (b) the last day
of the Commitment Period, or such earlier date as the Commitments shall
terminate as provided in the Credit Agreement.
"Commitment Percentage" shall mean, as to any Lender at any time, the
percentage which such Lender's Commitment with respect to a Category of Loans
then constitutes of the aggregate Commitments of all Lenders with respect to the
same Category (or, at any time after the Commitments of any such Category shall
have expired or terminated, the percentage which the aggregate principal amount
of such Lender's Loans of such Category then outstanding constitutes of the
aggregate principal amount of all of the Loans of such Category then
outstanding).
"Commitment Period" shall mean the period from the Initial Closing Date
to and including the Construction Period Termination Date, or such earlier date
as the Commitments shall terminate as provided in the Credit Agreement.
"Completed Property" shall mean a Property for which Completion has
occurred or will occur on the date of determination or on the respective
Property Closing Date.
"Completion" shall mean, with respect to a Property, such time as final
completion of the Improvements on such Property has been achieved in accordance
with the Plans and Specifications (excluding punch list items), the Agency
Agreement and the Lease, and in compliance in all material respects with all
Legal Requirements and Insurance Requirements, a certificate of occupancy has
been issued with respect to such Property by the appropriate Governmental
Authority, and no additional Fundings are needed for such Property (other than
Fundings for Additional Improvements pursuant to SECTION 5.10 of the
Participation Agreement). If the Lessor purchases a Property that includes
existing Improvements that are to be immediately occupied by the Lessee, the
date of Completion for such Property shall be the
Appendix A-8
Property Closing Date. The Lessee and the Construction acknowledges, represents
and warrants that Completion has occurred for all Existing Properties (except
the Incomplete Existing Properties) prior to the Initial Closing Date.
"Completion Date" shall mean, with respect to a Property, the earlier
of (i) the date on which Completion for such Property has occurred, and (ii) the
Construction Period Termination Date. The foregoing notwithstanding, for the
purposes of Section 2.1, 2.6(b), 3.2(a)(x) or 3.3 of the Agency Agreement,
"Completion Date" shall mean, with respect to a Property, the date on which
Completion for such Property has occurred.
"Condemnation" shall mean any taking or sale of the use, access,
occupancy, easement rights or title to any Property or any part thereof, wholly
or partially (temporarily or permanently), by or on account of: (a) any actual
or threatened eminent domain proceeding or other taking of action by any Person
having the power of eminent domain, including any action by a Governmental
Authority to change the grade of, or widen the streets adjacent to, any Property
or alter the pedestrian or vehicular traffic flow to any Property so as to
result in a change in access to such Property, or (b) an eviction by paramount
title or any transfer made in lieu of any such proceeding or action.
"Construction Agent" shall mean Tech Data, as construction agent under
the Agency Agreement.
"Construction Agent Options" shall have the meaning given to such term
in SECTION 2.1 of the Agency Agreement.
"Construction Budget" shall mean, with respect to any Property, the
cost of constructing and developing any Improvements on such Property as
determined by the Construction Agent in its reasonable, good faith judgment.
"Construction Commencement Date" shall mean, with respect to
Improvements, the date on which construction of such Improvements commences
pursuant to the Agency Agreement.
"Construction Funding" shall mean an advance of funds (consisting of
Loans by the Lenders and Holder Fundings by the Holders) on a specified date to
pay Property Costs pursuant to SECTION 5.4 OR 5.5 of the Participation
Agreement.
"Construction Loan" shall mean any Loan made in connection with and as
part of a Construction Funding .
"Construction Loan Property Cost" shall mean, with respect to each
Construction Period Property at any date of determination, an amount equal to
(a) the aggregate principal amount of Construction Loans and Interest Payment
Loans made on or prior to such date with respect to such Property minus (b) the
aggregate principal amount of prepayments or repayments, as the case may be, of
the Loans allocated to reduce the Construction Loan Property Cost of such
Property pursuant to SECTION 2.6(c) of the Credit Agreement.
Appendix A-9
"Construction Period" shall mean, with respect to a Property, the
period commencing on the Construction Commencement Date for such Property and
ending on the Completion Date for such Property.
"Construction Period Property" shall mean, at any date of
determination, any Property as to which the Basic Rent Commencement Date has not
occurred on or prior to such date.
"Construction Period Termination Date" shall mean the earlier of (i)
the date that the Commitments have been terminated in their entirety in
accordance with the terms of Section 2.5(a) of the Credit Agreement, or (ii) May
8, 2003.
"Contractual Obligation" shall mean, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control" (including the correlative meanings of the terms "controlled
by" and "under common control with"), as used with respect to any Person, shall
mean the possession directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or by contract or otherwise.
"Co-Owner Trustee" shall have the meaning specified in SECTION 9.2 of
the Trust Agreement.
"Credit Agreement" shall mean the Amended and Restated Credit
Agreement, dated as of the Initial Closing Date, among the Lessor, the Agent,
and the Lenders, as specified therein, as such agreement may be amended,
modified, restated or supplemented from time to time in accordance with the
terms thereof.
"Credit Agreement Default" shall mean any event or condition which,
with the lapse of time or the giving of notice, or both, would constitute a
Credit Agreement Event of Default.
"Credit Agreement Event of Default" shall mean any event or condition
defined as an "Event of Default" in Section 6 of the Credit Agreement.
"Credit Documents" shall mean the Credit Agreement, the Notes, and the
Security Documents.
"Credit Parties" shall mean, collectively, the Lessee, the Construction
Agent, the Guarantors, and all Subsidiaries parties to the Pledge Agreement.
"Debt Rating" shall mean, as of any date of determination, the rating
as determined by S&P and Xxxxx'x (collectively, the "Debt Ratings") of
(a) Tech Data's senior unsecured long-term debt;
Appendix A-10
(b) if the foregoing debt is not outstanding, then the rating
of the credit facility represented by the Amended Tech Data Credit
Agreement or the implied rating of Tech Data's senior unsecured debt
securities, PROVIDED THAT if both ratings in this clause (b) are
available, then both shall apply; or
(c) if neither (a) nor (b) applies, then the rating of
long-term debt issued by an equipment trust guaranteed by Tech Data;
PROVIDED THAT if a Debt Rating is issued by each of the foregoing rating
agencies, then the higher of such Debt Ratings shall apply (with Pricing Level 1
being the highest and Pricing Level 6 being the lowest), unless there is a split
in Debt Ratings of more than one level, in which case the average of the two
Debt Ratings (or the higher of any two intermediate Debt Ratings) shall apply.
Initially, the Debt Ratings shall be determined from the certificate delivered
to Bank of America pursuant to SECTION 5.01(A)(VIII) OF THE AMENDED TECH DATA
CREDIT AGREEMENT. Thereafter, the Debt Ratings shall be determined from the most
recent public announcement of any changes in the Debt Ratings. Any change in the
Applicable Margin or Applicable Commitment Fee Rate shall become effective on
and as of the date of any public announcement by a rating agency of any Debt
Rating that indicates a different Applicable Margin or Applicable Commitment Fee
Rate in accordance with this definition and the above chart set forth in the
definition of "Applicable Margin" or "Applicable Commitment Fee Rate" (as the
case may be).
"Deed" shall mean a warranty deed regarding Land or Improvements in
form and substance satisfactory to the Owner Trustee, the Holders and the Agent.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Direct Foreign Subsidiary" means a Subsidiary other than a Domestic
Subsidiary a majority of the shares of securities or other interests having
ordinary voting power for the election of directors or other governing body
(other than securities or interest having such power only by reason of the
happening of a contingency) are at the time beneficially owned, or the
management of which is otherwise controlled, directly by Tech Data or a Domestic
Subsidiary.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"Domestic Subsidiary" shall mean any Subsidiary of Tech Data organized
under the laws of the United States, any state or territory thereof or the
District of Columbia.
"Election Notice" shall have the meaning given to such term in SECTION
20.1 of the Lease.
"Environmental Claim" shall mean any investigation, notice, violation,
demand, allegation, action, suit, injunction, judgment, order, consent decree,
penalty, fine, lien, proceeding, or claim (whether administrative, judicial, or
private in nature) arising (a) pursuant to, or in connection with, any actual or
alleged violation of, any Environmental Law, (b) in
Appendix A-11
connection with any Hazardous Substance, (c) from or with respect to any
abatement, removal, remedial, corrective, or other response action in connection
with a Hazardous Material, Environmental Law, or other similar order of a
Governmental Authority or (d) from or with respect to any actual or alleged
damage, injury, threat, or harm to health, safety, natural resources, or the
environment.
"Environmental Indemnity" means any indemnity pursuant to SECTION 13.3,
or any indemnity with respect to an Environmental Claim.
"Environmental Law" shall mean any Law, permit, consent, approval,
license, award, or other authorization or requirement of any Governmental
Authority relating to emissions, discharges, releases, threatened releases of
any Hazardous Substance into ambient air, surface water, ground water, publicly
owned treatment works, septic system, or land, or otherwise relating to the
handling, storage, treatment, generation, use, emission or disposal of any
Hazardous Substance or pollution or to the protection of health or the
environment, including without limitation CERCLA, the Resource Conservation and
Recovery Act, 42 U.S.C. ss. 6901, et seq., and state or local statutes analogous
thereto.
"Environmental Violation" shall mean any activity, occurrence or
condition that violates or threatens to violate (if the threat requires
correction or remediation under any Environmental Law and is not corrected or
remediated during any grace period allowed under such Environmental Law) or
results in or threatens (if the threat requires correction or remediation under
any Environmental Law and is not corrected or remediated during any grace period
allowed under such Environmental Law) to result in noncompliance with any
Environmental Law.
"Equipment" shall mean equipment, apparatus, furnishings, fittings and
personal property of every kind and nature whatsoever purchased, leased or
otherwise acquired using the proceeds of the Loans or the Holder Fundings by the
Construction Agent, the Lessee or the Lessor as specified or described in either
a Requisition or a Lease Supplement, whether or not now or subsequently attached
to, contained in or used or usable in any way in connection with any operation
of any Improvements or other improvements to real property, including without
limitation, all equipment described in the Appraisal, all heating, electrical,
and mechanical equipment, lighting, switchboards, plumbing, ventilation, air
conditioning and air-cooling apparatus, refrigerating, and incinerating
equipment, escalators, elevators, loading and unloading equipment and systems,
sprinkler systems and other fire prevention and extinguishing apparatus and
materials, security systems, motors, engines, machinery, pipes, pumps, tanks,
conduits, fittings and fixtures of every kind and description.
"Equipment Schedule" shall mean (a) each Equipment Schedule attached to
the applicable Requisition and (b) each Equipment Schedule attached to the
applicable Lease Supplement as Schedule I-A.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
Appendix A-12
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with Tech Data within the meaning of Sections
414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes
of provisions relating to Section 412 of the Code).
"Eurodollar Funding" shall mean a Funding that bears interest (with
respect to the Loans included therein) and Holder Yield (with respect to the
Holder Fundings included therein) based on the Eurodollar Rate.
"Eurodollar Holder Funding" shall mean a Holder Funding bearing a
Holder Yield based on the Eurodollar Rate.
"Eurodollar Loans" shall mean Loans the rate of interest applicable to
which is based upon the Eurodollar Reserve Rate.
"Eurodollar Rate" or "Eurodollar Reserve Rate" shall mean for any
Interest Period with respect to any Eurodollar Loan or Eurodollar Funding, a
rate per annum determined by the Administrative Agent according to the following
formula:
Eurodollar = INTERBANK OFFERED RATE + Applicable
Rate ---------------------- Margin
1 - Reserve Requirement
"Event of Default" shall mean a Lease Event of Default, a Guaranty
Event of Default, an Agency Agreement Event of Default or a Credit Agreement
Event of Default.
"Excepted Payments" shall mean:
(a) all indemnity payments (including indemnity payments made pursuant
to SECTION 13 of the Participation Agreement), whether made by adjustment to
Basic Rent or otherwise, to which the Owner Trustee, any Holder or any of their
respective Affiliates, agents, officers, directors or employees is entitled;
(b) any amounts (other than Basic Rent, Termination Value, or Purchase
Option Price) payable under any Operative Agreement to reimburse the Owner
Trustee, any Holder or any of their respective Affiliates for performing or
complying with any of the obligations of the Lessee under and as permitted by
any Operative Agreement (including without limitation any reimbursement of the
reasonable expenses of the Owner Trustee, the Trust Company and the Holders
incurred in connection with any such payment);
(c) any amount payable to a Holder by any transferee of such interest
of a Holder as the purchase price of such Holder's interest in the Trust Estate
(or portion thereof);
(d) any insurance proceeds (or payments with respect to risks
self-insured or policy deductibles) under liability policies other than such
proceeds or payments payable to the Agent or any Lender;
Appendix A-13
(e) any insurance proceeds under policies maintained by the Owner
Trustee or any Holder other than such proceeds payable to the Agent or any
Lender;
(f) Transaction Expenses or other amounts or expenses paid or payable
to or for the benefit of the Owner Trustee or any Holder;
(g) all right, title and interest of any Holder or the Owner Trustee to
any Property or any portion thereof or any other property to the extent any of
the foregoing has been released from the Liens of the Security Documents and the
Lease pursuant to the terms thereof;
(h) upon termination of the Credit Agreement pursuant to the terms
thereof, all remaining property covered by the Lease or Security Documents;
(i) all payments in respect of the Holder Yield;
(j) any payments in respect of interest to the extent attributable to
payments referred to in clauses (a) through (i) above; and
(k) any rights of either the Owner Trustee or Trust Company to demand,
collect, xxx for or otherwise receive and enforce payment of any of the
foregoing amounts, provided that such rights shall not include the right to
terminate the Lease.
"Excepted Rights" shall mean the rights retained by the Owner Trustee
pursuant to SECTION 8.2(A) of the Credit Agreement.
"Excess Proceeds" shall mean the excess, if any, of the aggregate of
all awards, compensation or insurance proceeds payable in connection with a
Casualty or Condemnation over the Termination Value paid by the Lessee pursuant
to the Lease with respect to such Casualty or Condemnation.
"Existing Additional Improvements" shall mean the Additional
Improvements to the Existing Property located in Fort Worth, Texas, which
Additional Improvements are or were constructed after November 18, 1996 (the
Completion Date for the original Improvements to such Property).
"Existing Credit Agent" shall mean the "Agent" as defined in the
Existing Tech Data Credit Agreement.
"Existing Credit Agreement" shall have the meaning assigned thereto in
the Credit Agreement.
"Existing Holder" shall mean any "Holder" as defined in the Existing
Participation Agreement.
Appendix A-14
"Existing Holder Funding" shall mean any "Holder Funding" as defined in
the Existing Participation Agreement, which holder funding was advanced prior to
the Initial Closing Date hereunder.
"Existing Lender" shall mean any "Lender" as defined in the Existing
Participation Agreement.
"Existing Loan" shall mean any "Loan" as defined in the Existing
Participation Agreement, which Loan was advanced prior to the Initial Closing
Date hereunder.
"Existing Participation Agreement" shall have the meaning assigned
thereto in the recitals to the Participation Agreement.
"Existing Property" shall mean any "Property" as defined in the
Existing Participation Agreement, which property was subject to the Existing
Participation Agreement prior to the Initial Closing Date hereunder. The
Existing Properties include, without limitation, each of the parcels of Land
identified on EXHIBIT I to the Participation Agreement, all Improvements on any
such Land, and all Equipment in or on any such Land or Improvements.
"Existing Series A Loan" shall mean any "Series A Loan" as defined in
the Existing Credit Agreement, which loan was advanced prior to the Initial
Closing Date hereunder.
"Existing Series B Loan" shall mean any "Series B Loan" as defined in
the Existing Credit Agreement, which loan was advanced prior to the Initial
Closing Date hereunder.
"Existing Tech Data Credit Agreement" shall have the meaning assigned
thereto in SECTION 28.1 of the Lease.
"Existing Trust Agreement" shall have the meaning assigned thereto in
the Trust Agreement.
"Expected Maximum Property Cost" at any time shall mean the sum of (a)
the then outstanding aggregate Property Cost of all Properties (whether or not
subject to the Lease), plus (b) the maximum total additional Property Cost
expected to be advanced or incurred, on such date or at any time thereafter,
with respect to any Properties (including without limitation any expected
Acquisition Funding, Contribution Funding or other expected Property Costs, and
including without limitation any expected Property Cost referred to in a
Construction Budget).
"Expiration Date" shall mean the Basic Term Expiration Date.
"Expiration Date Purchase Option" shall mean the Lessee's option to
purchase all (but not less than all) of the Properties on the Applicable
Expiration Date.
"Fair Market Sales Value" shall mean, with respect to any Property, the
amount, which in any event, shall not be less than zero, that would be paid in
cash in an arms-length transaction between an informed and willing purchaser and
an informed and willing seller, neither of whom
Appendix A-15
is under any compulsion to purchase or sell, respectively, such Property. Fair
Market Sales Value of any Property shall be determined based on the assumption
that, except for purposes of SECTION 17 of the Lease, such Property is in the
condition and state of repair required under SECTION 10.1 of the Lease and the
Lessee is in compliance with the other requirements of the Operative Agreements.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate charged to Bank of
America on such day on such transactions as determined by the Agent.
"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System or any successor thereto.
"Fee Letter" shall mean that certain letter agreement dated March 20,
2000, between Tech Data, Bank of America and BAS.
"Financing Parties" shall mean, collectively, the Lenders and the
Holders.
"Fiscal Quarter" shall mean any quarter of a Fiscal Year.
"Fiscal Year" shall mean any period of twelve consecutive calendar
months ending on January 31; references to a Fiscal Year with a number
corresponding to any calendar year (E.G., the "1996 Fiscal Year") refer to the
Fiscal Year ending on January 31 of such calendar year.
"Fixtures" shall mean all fixtures relating to the Improvements,
including all components thereof, located in or on the Improvements, together
with all replacements, modifications, alterations and additions thereto.
"Force Majeure Event" shall mean any event beyond the control of the
Construction Agent, other than a Casualty or Condemnation, including, but not
limited to, strikes or lockouts (but only when the Construction Agent is legally
prevented from securing replacement labor or materials as a result thereof),
adverse soil conditions, acts of God, adverse weather conditions, inability to
obtain labor or materials after all possible efforts have been expended by the
Construction Agent, governmental activities, civil commotion and enemy action;
but excluding any event, cause or condition that results from the Construction
Agent's financial condition.
"Funding" shall mean a Construction Funding, an Acquisition Funding, or
any other advance of funds (consisting of Loans by the Lenders and Holder
Fundings by the Holders).
Appendix A-16
"GAAP" shall have the meaning assigned thereto in the Existing Tech
Data Credit Agreement.
"Governmental Action" shall mean all permits, authorizations,
registrations, consents, approvals, waivers, exceptions, variances, orders,
judgments, written interpretations, decrees, licenses, exemptions, publications,
filings, notices to and declarations of or with, or required by, any
Governmental Authority, or required by any Legal Requirement, and shall include,
without limitation, all environmental and operating permits and licenses that
are required for the full use, occupancy, zoning and operation of any Property.
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, including without limitation any court or governmental body,
agency, department, commission, board, bureau or instrumentality of a
governmental body.
"Ground Lease" shall mean (a) a ground lease (in form and substance
satisfactory to the Agent and the Lessor) with respect to any Property owned by
the Lessee and leased to the Lessor where such lease has a term of ninety years
or more and payments set at $1.00 or less per year, or (b) a ground lease or
ground sub-lease of any Property by any Person to the Lessor, where such lease
or sub-lease (as well as any other lease or sub-lease with respect to such
Property) is in form and substance, and contains such terms and conditions, as
are satisfactory in all respects to the Agent and the Lessor.
"Guarantors" shall mean, collectively, Tech Data, (b) each of the
Domestic Subsidiaries of Tech Data that is a Significant Subsidiary, and (c) any
other Domestic Subsidiary that has executed (or is required by SECTION 28.6 of
the Lease to execute) a Guaranty Agreement.
"Guaranty Agreement" or "Guaranty" shall mean, collectively, (a) the
Guaranty Agreement (Lessee and Construction Agent Obligations) dated as of the
Initial Closing Date by each Guarantor to the Lessor and the Agent, (for the
benefit of itself, the Lessor, the Lenders and the Holders), and (b) any other
Guaranty Agreement by any Guarantor in favor of the Lessor, the Agent, the
Lenders or the Holders, as each such agreement may be amended, supplemented,
restated or modified from time to time in accordance with the terms thereof.
"Guaranty Event of Default" shall mean any an "Event of Default" as
defined in the Guaranty Agreement.
"Hazardous Substance" shall mean any of the following: (i) any
petroleum or petroleum product, explosives, radioactive material, asbestos,
formaldehyde, polychlorinated biphenyls, lead and radon gas; (ii) any substance,
material, product, derivative, compound or mixture, mineral, chemical, waste,
gas, medical waste, or pollutant, in each case whether naturally occurring,
man-made or the by-product of any process, that is toxic, harmful or hazardous
to the environment or human health or safety as determined in accordance with
any Environmental Law; or (iii) any substance, material, product, derivative,
compound or mixture, mineral, chemical, waste, gas, medical waste or pollutant
that would support the assertion of any claim
Appendix A-17
under any Environmental Law, whether or not defined as hazardous as such under
any Environmental Law.
"Hedging Obligations" shall mean, with respect to any Person, all
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
"Holder Amount" shall mean as of any date, the aggregate amount of
Holder Fundings made by each Holder to the Trust Estate pursuant to SECTION 2 of
the Participation Agreement or SECTION 3.1 of the Trust Agreement less any
payments of any Holder Fundings received by the Holders pursuant to SECTION 3.4
of the Trust Agreement.
"Holder Applicable Margin" shall mean a rate per annum equal to
three-fourths of one percent (.75%).
"Holder Commitment" shall mean, as to any Holder, the obligation of
such Holder to make Holder Fundings to the Lessor in an aggregate principal
amount at any time outstanding not to exceed the respective amount set forth
opposite such Holder's name on Schedule 1, as such amounts may be increased or
reduced from time to time in accordance with the provisions of this Agreement,
the Trust Agreement or the Lease.
"Holder Commitment Fee" shall mean, at any time, the product of (a) the
Applicable Commitment Fee Rate, MULTIPLIED BY (b) the actual daily amount by
which (i) the aggregate Holder Commitments of the Holders (under the Operative
Agreements) exceeds (ii) the aggregate outstanding principal amount of Holder
Fundings.
"Holder Commitments" shall mean the aggregate of all Holder
Commitments.
"Holder Construction Property Cost" shall mean, with respect to any
Construction Period Property at any date of determination, an amount equal to
(a) the outstanding Holder Fundings made on or prior to such date in connection
with and as part of any Construction Funding for such Property, PLUS (b) the
outstanding Holder Fundings made on or prior to such date to fund the payment of
Allocated Holder Return with respect to such Property, MINUS (c) the aggregate
principal amount of prepayments or repayments, as the case may be, of Holder
Fundings described in clause (a) or clause (b).
"Holder Funding" shall mean any Funding made by any Holder to the Owner
Trustee pursuant to the terms of the Trust Agreement or the Participation
Agreement.
"Holder Overdue Rate" shall mean the rate specified in SECTION 3.13 of
the Trust Agreement.
"Holder Property Cost" shall mean with respect to a Property an amount
equal to the outstanding Holder Fundings with respect thereto (including Holder
Fundings with respect to
Appendix A-18
Allocated Return allocated to such Property, and Holder Fundings made on the
Initial Closing Date to repay Existing Holder Fundings with respect to such
Property).
"Holder Yield" shall mean with respect to Holder Fundings from time to
time either the Eurodollar Rate (including the Applicable Margin) plus the
Holder Applicable Margin, or the Base Rate plus the Holder Applicable Margin, as
elected by the Owner Trustee from time to time with respect to such Holder
Fundings in accordance with the terms of the Trust Agreement; PROVIDED, however,
that (i) upon delivery of the notice described in SECTION 3.7(C) of the Trust
Agreement, the outstanding Holder Fundings of each Holder shall bear a yield at
the Base Rate plus the Holder Applicable Margin from time to time from and after
the dates and during the periods specified in SECTION 3.7(C) of the Trust
Agreement, and (ii) upon the delivery by a Holder of the notice described in
SECTION 3.9(E) of the Trust Agreement or as otherwise set forth in SECTION 3.8
of the Trust Agreement, the Holder Fundings of such Holder shall bear a yield at
the Base Rate plus the Holder Applicable Margin applicable from time to time
after the dates and during the periods specified in SECTION 3.9(E) or 3.8 (as
the case may be) of the Trust Agreement.
"Holders" shall mean the several banks and other financial institutions
which are from time to time holders of Certificates in connection with the TD
1996 Real Estate Trust.
"Impositions" shall mean, except to the extent described in the
following sentence, any and all liabilities, losses, expenses, costs, charges
and Liens of any kind whatsoever for fees, taxes, levies, imposts, duties,
charges, assessments or withholdings ("Taxes") including without limitation (i)
any real and personal property taxes, including personal property taxes on any
property covered by the Lease that is classified by Governmental Authorities as
personal property, frontage taxes and real estate or ad valorem taxes in the
nature of property taxes; (ii) any sales taxes, use taxes and other similar
taxes (including rent taxes and intangibles taxes); (iii) any excise taxes; (iv)
any real estate transfer taxes, conveyance taxes, mortgage taxes, stamp taxes
and documentary recording taxes and fees; (v) any taxes that are or are in the
nature of franchise, income, value added, privilege and doing business taxes,
license and registration fees; (vi) any assessments on any Property, including
all assessments for public Improvements or benefits, whether or not such
improvements are commenced or completed within the Term; and (vii) any tax,
Lien, assessment or charge asserted, imposed or assessed by the PBGC or any
governmental authority succeeding to or performing functions similar to, the
PBGC; and in each case all interest, additions to tax and penalties thereon,
which at any time prior to, during or with respect to the Term or in respect of
any period for which the Lessee shall be obligated to pay Supplemental Rent, may
be levied, assessed or imposed by any Governmental Authority upon or with
respect to (a) any Property or any part thereof or interest therein; (b) the
leasing, financing, refinancing, demolition, construction, substitution,
subleasing, assignment, control, condition, occupancy, servicing, maintenance,
repair, ownership, possession, activity conducted on, delivery, insuring, use,
operation, improvement, transfer of title, return or other disposition of any
Property or any part thereof or interest therein; (c) the Certificates or the
Notes or other indebtedness with respect to any Property or any part thereof or
interest therein; (d) the rentals, receipts or earnings arising from any
Property or any part thereof or interest therein; (e) the Operative Agreements,
the performance thereof, or any payment made or accrued pursuant thereto; (f)
the income or other proceeds received with respect to any Property or any part
thereof or interest therein upon the sale or disposition thereof; (g) any
contract (including the Agency
Appendix A-19
Agreement) relating to the construction, acquisition or delivery of the
Improvements or any part thereof or interest therein; (h) the issuance of the
Certificates or the Notes; or (i) otherwise in connection with the transactions
contemplated by the Operative Agreements.
The term "Imposition" shall not mean or include:
(i) Taxes and impositions (other than Taxes that are, or are
in the nature of, withholding, sales, use, rental, value added,
transfer or property taxes) that are imposed on an Indemnified Person
(other than Lessor) by the United States federal government or (in the
case of a Person organized under the laws of a foreign country) by a
Governmental Authority of such country, and that are in each case based
on or measured by the net income (including taxes based on capital
gains and minimum taxes or franchise taxes) of such Person; PROVIDED
that this clause (i) shall not apply to (and shall not exclude) any Tax
or imposition imposed with respect to a payment (including any Rent
payment) except for (A) the portion of such payment constituting
interest on a Loan or Holder Yield or (B) any such Tax or imposition to
the extent it arises because an Indemnified Person has previously
written off as uncollectable (and reduced the tax basis for) an
Obligation which it has subsequently collected, and PROVIDED, FURTHER
that this clause (i) shall not be interpreted to prevent a payment from
being made on an After Tax Basis if such payment is otherwise required
to be so made;
(ii) Taxes and impositions (other than Taxes that are, or are
in the nature of, sales, use, rental, value added, transfer or property
taxes) that are imposed on any Indemnified Person (other than Lessor)
by any state or local jurisdiction or taxing authority within any state
or local jurisdiction and that are based upon or measured by the net
income or net receipts; PROVIDED that this clause (ii) shall not apply
to (and shall not exclude) (A) any Tax or imposition imposed with
respect to a payment (including any Rent payment) except for (I) the
portion of such payment constituting interest on a Loan or Holder Yield
or (II) any such Tax or imposition to the extent it arises because an
Indemnified Person has previously written off (and reduced the tax
basis for) an Obligation which it has subsequently collected, or (B)
any Tax or imposition imposed on an Indemnified Person by any state or
local jurisdiction if such Tax or imposition would not arise as to such
Person but for the location, possession or use of any Property in such
jurisdiction; and PROVIDED, FURTHER, that this clause (ii) shall not be
interpreted to prevent a payment from being made on an After Tax Basis
if such payment is otherwise required to be so made;
(iii) any Tax or imposition to the extent, but only to such
extent, it relates to any act, event or omission that occurs after the
termination of the Lease and redelivery or sale of the property in
accordance with the terms of the Lease (but not any Tax or imposition
that relates to such termination, redelivery or sale or to any period
prior to such termination, redelivery or sale); or
(iv) any Taxes which are imposed on an Indemnified Person as a
result of the gross negligence or willful misconduct of such
Indemnified Person itself (as opposed to
Appendix A-20
any gross negligence or willful misconduct imputed to such Indemnified
Person), but not Taxes imposed as a result of the ordinary negligence
of such Person.
Any Tax or imposition excluded from the defined term "Imposition" by any one of
the foregoing clauses (i) through (iv) shall not be construed as constituting an
Imposition by any provision of any other of the aforementioned clauses.
"Improvements" shall mean, with respect to the construction, renovation
or Modification of a Property, all buildings, structures, Fixtures, and other
improvements of every kind existing at any time and from time to time on or
under the Land purchased, leased or otherwise acquired using the proceeds of the
Loans or the Holder Fundings, together with any and all appurtenances to such
buildings, structures or improvements, including sidewalks, utility pipes,
conduits and lines, parking areas and roadways, and including all Modifications
and other additions to or changes in the Improvements at any time, including
without limitation (a) any Improvements existing as of the Property Closing Date
as such Improvements may be referenced on the applicable Requisition and (b) any
Improvements made subsequent to such Property Closing Date.
"Incomplete Existing Properties" shall mean collectively, the Miami
Property and the Existing Additional Improvements.
"Incorporated Covenants" shall have the meaning assigned thereto in
SECTION 28.1 of the Lease.
"Indebtedness" shall have the meaning assigned thereto in the Existing
Tech Data Credit Agreement.
"Indemnified Claims" shall mean, collectively, any and all Claims for
which the Indemnity Provider is required to (or would, but for the effect of
SECTION 13.3 of the Participation Agreement, be required to) indemnify any
Person pursuant to SECTION 13.1, 13.2 OR 13.3 of the Participation Agreement.
"Indemnified Person" shall mean each of the Lessor, the Owner Trustee,
the Trust Company, the Agent, BAS, the Holders, the Lenders and their respective
successors, assigns, directors, shareholders, partners, officers, employees,
agents and Affiliates.
"Indemnity Provider" shall mean, collectively, the Construction Agent,
the Lessee and each Alternative Lessee, whose obligations as Indemnity Provider
under the Operative Agreements shall be joint and several.
"Initial Closing Date" shall mean the date of the Participation
Agreement.
"Initial Construction Funding" shall mean any initial Funding to pay
for: (i) Property Costs for construction of any Improvements; and (ii) the
Property Costs of restoring or repairing any Property which is required to be
restored or repaired in accordance with SECTION 15.1(e) of the Lease.
Appendix A-21
"Insurance Requirements" shall mean (a) all terms and conditions of any
insurance policy either required by the Lease to be maintained by the Lessee or
required by the Agency Agreement to be maintained by the Construction Agent, and
(b) all requirements of the issuer of any such policy.
"Interbank Offered Rate" shall mean, for any Interest Period with
respect to any Eurodollar Loan or Eurodollar Funding:
(a) the rate per annum equal to the rate determined by Administrative
Agent to be the offered rate that appears on the page of the Telerate screen (as
provided by Bridge Information Systems, Inc.) that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or
(b) in the event the rate referenced in the preceding subsection (a)
does not appear on such page or service or such page or service shall cease to
be available, the rate per annum equal to the rate determined by Administrative
Agent to be the offered rate on such other page or other service that displays
an average British Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period,
or
(c) in the event the rates referenced in the preceding subsections (a)
and (b) are not available, the rate per annum determined by Administrative Agent
as the rate of interest (rounded upward to the next 1/100th of 1%) at which
deposits in the applicable currency for delivery on the first day of such
Interest Period in same day funds in the approximate amount of the Eurodollar
Loan or Eurodollar Funding being made, continued or converted by Administrative
Agent (or its Affiliate) in its capacity as a Lender or Holder (as applicable)
and with a term equivalent to such Interest Period would be offered by Bank of
America's London Branch to major banks in the offshore Dollar market at their
request at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period.
"Intercreditor Agreement" means one or more Intercreditor Agreements
substantially in the form of EXHIBIT J attached hereto among the Lessee, the
Administrative Agent, the agent for the lenders under the Amended Tech Data
Credit Agreement, agents for Senior Parity Debt Holders, or Senior Parity Debt
Holders, all as provided for in SECTION 5.11 of the Participation Agreement.
"Interest Payment Loan" shall mean any Loan made to fund the payment of
Allocated Interest with respect to a Construction Period Property.
"Interest Period" shall mean, for each Eurodollar Loan and Eurodollar
Holder Fundings for a specified Property (a) prior to the Completion Date for
such Property, the period beginning on the date the first Eurodollar Loan (and
related Eurodollar Holder Funding) are extended,
Appendix A-22
continued or converted pursuant to the terms of the Operative Agreements and
ending one month later, and thereafter, the period commencing on the last day of
the preceding Interest Period and ending one month later, and (b) during the
period from and after the Completion Date for such Property, (i) initially, the
period commencing on the conversion or continuation date, as the case may be,
with respect to such Eurodollar Loan or Eurodollar Holder Funding and ending, in
the case of any Eurodollar Loan or Eurodollar Holder Funding, one, two, three,
four or six months thereafter, as selected by the Borrower (in the case of a
Eurodollar Loan) or the Owner Trustee (in the case of a Eurodollar Holder
Funding) in its notice of borrowing, Funding, continuation or conversion, as the
case may be, given with respect thereto; and (ii) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Eurodollar Loan or Eurodollar Holder Funding and ending one, two, three,
four or six months thereafter, as selected by the Borrower by irrevocable notice
to Administrative Agent (in the case of a Eurodollar Loan) or by the Owner
Trustee by irrevocable notice to the Holders (in the case of a Eurodollar Holder
Funding) in each case not less than three Business Days prior to the last day of
the then current Interest Period with respect thereto; PROVIDED, HOWEVER, that
all of the foregoing provisions relating to Interest Periods are subject to the
following: (A) if any Interest Period would end on a day which is not a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
(except that where the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day), (B) no Interest Period
shall extend beyond the Maturity Date, (C) where an Interest Period begins on a
day for which there is no numerically corresponding day in the calendar month in
which the Interest Period is to end, such Interest Period shall end on the last
Business Day of such calendar month, and (D) on any day the sum of the Interest
Periods in effect under the Operative Agreements for all Eurodollar Loans and
Eurodollar Holder Fundings shall not exceed six (6) in the aggregate.
"Investment Company Act" shall mean the Investment Company Act of 1940,
as amended, together with the rules and regulations promulgated thereunder.
"Investment Grade Rating" shall mean (a) a Debt Rating of Baa3 or
higher by Xxxxx'x, or (b) a Debt Rating of BBB- or higher by S&P.
"IRS" shall mean the United States Internal Revenue Service, or any
successor or analogous organization.
"Land" shall mean (a) a parcel or parcels of real property that (i) is
described on the Requisition issued by the Construction Agent on the Property
Closing Date relating to such parcel, or (ii) is described on Schedule I-C to
each applicable Lease Supplement executed and delivered in accordance with the
requirements of SECTION 2.4 of the Lease and, to the extent set forth in any
such Requisition or Schedule, may include without limitation a leasehold
interest (pursuant to a Ground Lease) in such Land, or (iii) is the land
included in any Existing Property (including without limitation each parcel of
Land identified in EXHIBIT I to the Participation Agreement), and (b) all
Appurtenant Rights with respect to any such Land.
"Law" shall mean any statute, law, ordinance, code, regulation, rule,
directive, order, writ, injunction or decree of any Governmental Authority.
Appendix A-23
"Lease" or "Lease Agreement" shall mean the Amended and Restated Lease
Agreement dated as of the Initial Closing Date, between the Lessor and the
Lessee, together with any Lease Supplements thereto, as such Lease Agreement may
from time to time be supplemented, amended, restated or modified in accordance
with the terms thereof.
"Lease Default" shall mean any event or condition which, with the lapse
of time or the giving of notice, or both, would constitute a Lease Event of
Default.
"Lease Event of Default" shall have the meaning specified in SECTION
17.1 of the Lease.
"Lease Supplement" shall mean each Lease Supplement or Amended and
Restated Lease Supplement substantially in the form of Exhibit A to the Lease,
together with all attachments and schedules thereto, as such Lease Supplement or
Amended and Restated Lease Supplement may be supplemented, amended, restated or
modified from time to time.
"Legal Requirements" shall mean all foreign, Federal, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations,
ordinances, judgments, decrees and injunctions affecting the Owner Trustee, the
Holders, the Agent, any Lender or any Improvements or the taxation, demolition,
construction, use or alteration of such Improvements, whether now or hereafter
enacted and in force, including without limitation any that require appraisals,
repairs, modifications or alterations in or to any Property or in any way limit
the use and enjoyment thereof (including all building, zoning and fire codes and
the Americans with Disabilities Act of 1990, 42 U.S.C. ss. 12101 et seq., and
any other similar Federal, state or local laws or ordinances and the regulations
promulgated thereunder) and any that may relate to environmental requirements
(including all Environmental Laws), and all permits, certificates of occupancy,
licenses, authorizations and regulations relating thereto, and all covenants,
agreements, restrictions and encumbrances contained in any instruments which are
either of record or known to the Lessee affecting any Property or the
Appurtenant Rights.
"Lender Financing Statements" shall mean UCC financing statements and
fixture filings appropriately completed and executed for filing in the
applicable jurisdiction in order to evidence or perfect the Agent's security
interest (for itself and on behalf of the Lenders) in any Equipment or in any
Improvements.
"Lenders" shall mean the several banks and other financial institutions
from time to time party to the Credit Agreement.
"Lessee" shall have the meaning set forth in the Lease.
"Lessee/Borrower Party" shall mean the Lessee, the Owner Trustee, the
Trust Company, any Guarantor or any Person (except the Lenders, the Holders, the
Administrative Agent or any of their respective Affiliates, other than the Owner
Trustee or the Trust Company) from time to time party to any Operative
Agreement.
"Lessor" shall mean the Owner Trustee, not in its individual capacity,
but as Lessor under the Lease.
Appendix A-24
"Lessor Basic Rent" shall mean the scheduled Holder Yield due on the
Holder Fundings on any Scheduled Interest Payment Date pursuant to the Trust
Agreement (but not including interest on (i) any such scheduled Holder Yield due
on the Holder Fundings prior to the Basic Rent Commencement Date with respect to
the Property to which such Holder Fundings relate or (ii) overdue amounts under
the Trust Agreement or otherwise).
"Lessor Financing Statements" shall mean UCC financing statements and
fixture filings appropriately completed and executed for filing in the
applicable jurisdictions in order to evidence or perfect the Lessor's interest
under the Lease to the extent the Lease is a security agreement or a mortgage.
"Lessor Lien" shall mean any Lien, true lease or sublease or
disposition of title arising as a result of (a) any claim against the Lessor or
Trust Company, in its individual capacity, not resulting from the transactions
contemplated by the Operative Agreements, (b) any act or omission of the Lessor
or Trust Company, in its individual capacity, which is not required by the
Operative Agreements or is in violation of any of the terms of the Operative
Agreements, (c) any claim against the Lessor or Trust Company, in its individual
capacity, with respect to Taxes or Transaction Expenses against which the Lessee
is not required to indemnify Lessor or Trust Company, in its individual
capacity, pursuant to SECTION 13 of the Participation Agreement or (d) any claim
against the Lessor or Trust Company, in its individual capacity, arising out of
any transfer by the Lessor of all or any portion of the interest of the Lessor
in the Properties, the Trust Estate or the Operative Agreements other than the
transfer of title to or possession of any Properties by the Lessor pursuant to
and in accordance with the Lease, the Credit Agreement, the Security Agreement
or the Participation Agreement or pursuant to the exercise of the remedies set
forth in ARTICLE XVII of the Lease.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien, option or charge of any kind.
"Limited Recourse Amount" shall mean, with respect to any Properties on
an aggregate basis as of a specified date, an amount equal to the sum of the
Termination Values with respect to such Properties on such date, less the
Maximum Residual Guarantee Amount as of such date with respect to the
Properties.
"Loan Basic Rent" shall mean the interest due on the Loans on any
Scheduled Interest Payment Date pursuant to the Credit Agreement (but not
including interest on (i) any such Loan prior to the Basic Rent Commencement
Date with respect to the Property to which such Loan relates or (ii) any overdue
amounts under SECTION 2.8(c) of the Credit Agreement or otherwise).
"Loan Property Cost" shall mean, with respect to each Property at any
date of determination, an amount equal to (a) the aggregate principal amount of
Acquisition Loans, Construction Loans, Interest Payment Loans and any other
Loans (including without limitation Loans made on the Initial Closing Date to
repay Existing Loans with respect to such Property) made on or prior to such
date with respect to such Property minus (b) the aggregate amount of
Appendix A-25
prepayments or repayments as the case may be of the Loans allocated to reduce
the Loan Property Cost of such Property pursuant to SECTION 2.6(C) of the Credit
Agreement.
"Loans" shall mean, collectively, the Series A Loans and the Series B
Loans.
"Majority Financing Parties" shall mean, at any time, Lenders and
Holders the sum of whose Commitments and Holder Commitments represent at least
51% of the sum of the aggregate Commitments and Holders Commitments, PROVIDED
THAT upon and during the continuance of an Event of Default, "Majority Financing
Parties" shall mean Lenders and Holders who have Loans and Holder Fundings with
an aggregate outstanding principal amount representing at least 51% of the
aggregate outstanding principal amount of all Loans and Holder Fundings.
"Marketing Period" shall mean, if the Lessee has given an Election
Notice in accordance with SECTION 20.1 of the Lease, the period commencing on
the date such Sale Notice is given and ending on the Applicable Expiration Date.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, condition (financial or otherwise), assets, liabilities or
operations of Tech Data or any of its Subsidiaries, (b) the ability of the
Lessee, the Construction Agent or any of their Subsidiaries to perform its
respective obligations under any Operative Agreement to which it is a party, (c)
the validity or enforceability of any Operative Agreement or the rights and
remedies of the Agent, the Lenders, the Holders, or the Lessor thereunder, (d)
the validity, priority or enforceability of any Lien on any Property created by
any of the Operative Agreements, or (e) the value, utility or useful life of any
Property or the use, or ability of the applicable Lessee to use, any Property
for the purpose for which it was intended.
"Maturity Date" shall mean the earliest to occur of (a) May 6, 2005, or
(b) (if the Lessee delivers a timely Election Notice with respect to the
Preliminary Expiration Date pursuant to SECTION 20.1 of the Lease) the
Preliminary Expiration Date, or (c) in either case, such earlier date as the
Lease may terminate.
"Maximum Amount" shall mean:
(a) one hundred percent (100%) of the cost of the Land or the
Ground Lease (as the case may be) for all, but not less than all, of
the Properties (collectively, the "Land Cost"), PLUS
(b) the product of eighty-nine and nine-tenths percent (89.9%)
multiplied by the following: (i) the aggregate Property Cost of all,
but not less than all, of the Properties, minus (ii) the Land Cost,
minus (iii) accrued, unpaid Holder Yield respecting any and all
Construction Period Properties, MINUS
(c) the accreted value (calculated at a rate of seven and
14/100 percent (7.14%) per annum) of any payments previously made by
the Construction Agent or the Lessee regarding any and all Construction
Period Properties and not reimbursed; PLUS
Appendix A-26
(d) one hundred percent (100%) of all Rent and other amounts
then due and owing by the Lessee or the Construction Agent pursuant to
the Operative Agreements.
"Maximum Property Cost" shall mean the aggregate amount of the Property
Costs for all Properties subject to the Lease as of the applicable determination
date.
"Maximum Residual Guarantee Amount", with respect to any Properties,
shall mean an amount equal to the sum of (a) eighty-seven percent (87%) of the
aggregate Property Cost for all of such Properties plus (b) one hundred percent
(100%) of all Rent and other amounts then due and owing by the Lessee or the
Construction Agent under the Lease and the other Operative Agreements.
"Miami Property" shall mean the Existing Property located in Dade
County, Florida.
"Modifications" shall have the meaning specified in SECTION 11.1(A) of
the Lease.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Mortgage Instrument" shall mean any mortgage, deed of trust or any
other instrument executed by the Owner Trustee in favor of the Agent and
evidencing a Lien on a Property, in form and substance reasonably acceptable to
the Agent.
"Multiemployer Plan" shall mean any plan described in Section
4001(a)(3) of ERISA to which contributions are or have been made or are required
to be made by Tech Data or any of its ERISA Affiliates.
"Net Proceeds" shall mean all amounts paid in connection with any
Casualty or Condemnation, and all interest earned thereon, less the expense of
claiming and collecting such amounts, including all costs and expenses in
connection therewith for which the Agent or Lessor is entitled to be reimbursed
pursuant to the Lease.
"Net Sale Proceeds Shortfall" shall mean the amount by which the
proceeds of a sale described in SECTION 22.1 of the Lease (net of all expenses
of sale) are less than the Limited Recourse Amount with respect to the
Properties if it has been determined that the Fair Market Sales Value of the
Properties at the expiration of the term of the Lease has been impaired by
greater than expected wear and tear during the Term of the Lease.
"New Facility" shall have the meaning assigned thereto in SECTION 28.1
of the Lease.
"New Property" shall mean (a) any Property other than an Existing
Property, or (b) any Additional Improvements (other than Existing Additional
Improvements) that are treated as a distinct Property pursuant to SECTION 5.10
of the Participation Agreement.
"Non-Excluded Taxes" shall have the meaning given to such term in
SECTION 2.13 of the Credit Agreement.
Appendix A-27
"Notes" shall mean, collectively, the Series A Notes and the Series B
Notes.
"Occupational Safety and Health Law" shall mean the Occupational Safety
and Health Act of 1970 and any other federal, state or local statute, law,
ordinance, code, rule, regulation, order or decree regulating or relating to, or
imposing liability or standards of conduct concerning, employee health or
safety, as now or at any time hereafter in effect.
"Officer's Certificate" shall mean a certificate signed by any
individual holding the office of vice president or higher, which certificate
shall certify as true and correct the subject matter being certified to in such
certificate.
"Operative Agreements" shall mean, collectively, the Participation
Agreement, the Agency Agreement, the Trust Agreement, the Certificates, the
Credit Agreement, the Notes, the Lease (and a memorandum thereof in a form
reasonably acceptable to the Agent), each Lease Supplement (and a memorandum
thereof in a form reasonably acceptable to the Agent), the Guaranty Agreement,
the Pledge Agreement, the Security Agreement, the Assignment of Project Rights,
each Ground Lease and each Mortgage Instrument.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws; (b) with respect to
any limited liability company, the articles of formation and operating
agreement; and (c) with respect to any partnership, joint venture, trust or
other form of business entity, the partnership or joint venture agreement and
any agreement, instrument, filing or notice with respect thereto filed in
connection with its formation with the secretary of state or other department in
the state of its formation, in each case as amended from time to time.
"Overdue Interest" shall mean any interest payable pursuant to SECTION
2.8(C) of the Credit Agreement.
"Overdue Rate" shall mean (i) with respect to Loan Basic Rent, and any
other amount owed under or with respect to the Credit Agreement or the Security
Documents, the rate specified in SECTION 2.8(C) of the Credit Agreement, (ii)
with respect to Lessor Basic Rent, the Holder Yield and any other amount owed
under or with respect to the Trust Agreement, the Holder Overdue Rate and (iii)
with respect to any other amount, the Base Rate plus 2%.
"Owner Trustee" shall mean First Security Bank, National Association,
not individually, except as expressly stated in the various Operative
Agreements, but solely as Owner Trustee under the TD 1996 Real Estate Trust, and
any successor or replacement Owner Trustee expressly permitted under the
Operative Agreements.
"Participant" shall have the meaning given to such term in SECTION 9.7
of the Credit Agreement.
"Participation Agreement" shall mean the Participation Agreement dated
as of the date hereof among the Construction Agent, the Lessee, the Owner
Trustee, the Holders party thereto,
Appendix A-28
the Lenders party thereto, and the Administrative Agent, as amended,
supplemented, restated or otherwise modified from time to time in accordance
with the terms thereof.
"Payment Date" shall mean any Scheduled Interest Payment Date and any
date on which interest or Holder Yield in connection with a prepayment of
principal on the Loans or of the Holder Fundings is due under the Credit
Agreement or the Trust Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation created by
Section 4002(a) of ERISA or any successor thereto.
"Permitted Exceptions" shall mean:
(i) Liens of the types described in clauses (i), (ii) and (v)
of the definition of Permitted Liens;
(ii) Liens for Taxes not yet due; and
(iii) all encumbrances, exceptions, restrictions, easements,
rights of way, servitudes, encroachments and irregularities in title,
other than Liens which, in the reasonable assessment of the Agent,
materially impair the use of any Property for its intended purpose.
"Permitted Liens" shall mean:
(i) the respective rights and interests of the parties to the
Operative Agreements as provided in the Operative Agreements;
(ii) the rights of any sublessee or assignee under a sublease
or an assignment expressly permitted by the terms of the Lease;
(iii) Liens for Taxes that either are not yet due or are being
contested in accordance with the provisions of SECTION 13.1 of the
Lease;
(iv) Liens arising by operation of law, materialmen's,
mechanics', workmen's, repairmen's, employees', carriers',
warehousemen's and other like Liens relating to the construction of the
Improvements or in connection with any Modifications or arising in the
ordinary course of business, which Liens have been bonded for not less
than the full amount in dispute (or as to which other security
arrangements satisfactory to the Lessor and the Agent have been made),
which bonding (or arrangements) shall comply with applicable Legal
Requirements, and shall have effectively stayed any execution or
enforcement of such Liens;
(v) Liens arising out of judgments or awards with respect to
which appeals or other proceedings for review are being prosecuted in
good faith and for the payment of which adequate reserves have been
provided as required by GAAP or other appropriate provisions have been
made, so long as such proceedings have the effect of staying the
Appendix A-29
execution of such judgments or awards and satisfy the conditions for
the continuation of proceedings to contest Taxes set forth in SECTION
13.1 of the Lease;
(vi) Liens in favor of municipalities to the extent agreed to
by the Lessor and the Agent; and
(vii) Permitted Exceptions.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company, limited liability partnership, governmental authority
or any other entity.
"Plans and Specifications" shall mean, with respect to Improvements,
the plans and specifications for such Improvements to be constructed or already
existing, as such Plans and Specifications may be amended, modified or
supplemented from time to time in accordance with the terms of the Participation
Agreement and the Agency Agreement.
"Pledge Agreement" shall mean, collectively or individually as the
context may indicate, any pledge agreement, charge, agreement, document,
instrument or conveyance, in form and substance acceptable to Administrative
Agent, conferring under applicable foreign law upon Administrative Agent, for
the benefit of Administrative Agent, the Owner Trustee, the Lenders and the
Holders, a Lien upon 65% of the voting securities or other interests having
ordinary voting power and 100% of the other securities or other ownership
interests of a Direct Foreign Subsidiary that is a Significant Subsidiary, as
are owned by Tech Data or any Domestic Subsidiary, in each case as hereafter
amended, modified, supplemented or amended and restated from time to time.
"Preliminary Expiration Date" shall mean May 8, 2003.
"Prime Rate" shall mean the per annum rate of interest established from
time to time by Bank of America as its prime rate, which rate may not be the
lowest rate of interest charged by Bank of America to its customers.
"Property" shall mean, with respect to each real property site that is
acquired, constructed or renovated pursuant to the terms of the Operative
Agreements (or that is an Existing Property), the Land and each item of
Equipment and the various Improvements, in each case located on such Land. Each
Property shall be suitable for, and used by Lessee (or a permitted sublessee)
only for, Tech Data's and its Subsidiaries' corporate office space or
distribution facilities, with ancillary space used for other business purposes
of Tech Data and such Subsidiaries.
"Property Acquisition Cost" shall mean the cost to Lessor to purchase a
Property on a Property Closing Date.
"Property Closing Date" shall mean each date on which the Lessor
purchases a Property, or leases the Land included in a Property pursuant to a
Ground Lease.
Appendix A-30
"Property Cost" shall mean with respect to a Property the aggregate
amount of the Loan Property Cost plus the Holder Property Cost for such Property
(as such amounts shall be increased equally among all Properties respecting the
Holder Fundings and the Loans extended from time to time to pay for the
Transaction Expenses, fees, taxes, expenses and other disbursements referenced
in SECTIONS 9.1(A) AND (B) of the Participation Agreement and indemnity payments
referenced in SECTION 13.5 of the Participation Agreement).
"Purchase Option" shall have the meaning given to such term in SECTION
20.1 of the Lease.
"Purchase Option Price" shall have the meaning specified in SECTION
20.1 of the Lease.
"Purchasing Lender" shall have the meaning given to such term in
SECTION 9.8(A) of the Credit Agreement.
"Register" shall have the meaning given to such term in SECTION 9.9(A)
of the Credit Agreement.
"Release" shall mean any release, pumping, pouring, emptying,
injecting, escaping, leaching, dumping, seepage, spill, leek, flow, discharge,
disposal or emission of a Hazardous Substance.
"Rent" shall mean, collectively, the Basic Rent and the Supplemental
Rent, in each case payable under the Lease.
"Reportable Event" shall have the meaning specified in ERISA.
"Requested Funds" shall mean any funds requested by the Lessee or the
Construction Agent, as applicable, in accordance with SECTION 5 of the
Participation Agreement.
"Requirement of Law" shall mean, as to any Person, the Certificate of
Incorporation and By-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Requisite Notice" shall mean, unless otherwise provided herein, (a)
irrevocable written notice to the intended recipient or (b) irrevocable
telephonic notice to the intended recipient, promptly followed by a written
notice to such recipient. Such notices shall be (i) delivered to such recipient
at the address or telephone number specified on SCHEDULE 14.3 or as otherwise
designated by such recipient by written notice in accordance with SECTION
14.3(E), and (ii) if made by any Lessee/Borrower Party, given or made by a
Responsible Officer of such Lessee/Borrower Party. Any written notice delivered
in connection with any Operative Agreement shall be in the form, if any,
prescribed herein or therein. Any notice sent by other than hardcopy shall be
promptly confirmed by a telephone call to the recipient and, if requested by
Administrative Agent, by a manually-signed hardcopy thereof.
Appendix A-31
"Requisition" shall have the meaning specified in SECTION 4.2 of the
Participation Agreement.
"Reserve Requirement" means, for any day during any Interest Period,
the reserve percentage (expressed as a decimal, rounded upward to the next
1/100th of 1%) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Eurodollar Rate for each outstanding Eurodollar Loan or
Eurodollar Funding shall be adjusted automatically as of the effective date of
any change in the Reserve Requirement.
The determination of the Reserve Requirement by Administrative Agent
shall be conclusive in the absence of manifest error.
"Responsible Officer" shall mean the President or Executive Vice
President and Chief Financial Officer of Tech Data or with respect to financial
matters, the Chief Financial Officer or Senior Vice President and Worldwide
Controller, Corporate Vice President and Treasurer of Tech Data, except that
when used with respect to the Trust Company or the Owner Trustee, "Responsible
Officer" shall also include the Cashier, any Assistant Cashier, any Trust
Officer or Assistant Trust Officer, the Controller and any Assistant Controller
or any other officer of the Trust Company or the Owner Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Sale Date" shall have the meaning given to such term in SECTION
22.1(A) of the Lease.
"Sale Notice" shall mean a notice given to Lessor in connection with
the election by Lessee of its Sale Option.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"Sale Option" shall have the meaning given to such term in SECTION 20.1
of the Lease.
"Scheduled Interest Payment Date" shall mean (a) as to any Eurodollar
Loan (or Eurodollar Holder Funding), the last day of the Interest Period
applicable to such Eurodollar Loan (or Holder Funding), and if such Interest
Period is for more than three months, at intervals of three months after the
first day of such Interest Period, (b) as to any Base Rate Loan (or Base Rate
Holder Funding), the first Business Day following the last day of each fiscal
quarter of Tech Data, and the date of conversion of such Loan to a Eurodollar
Loan (or conversion of such Holder Funding to a Eurodollar Holder Funding), and
(c) as to any Loan (or Holder Funding), the Maturity Date.
Appendix A-32
"Securities Act" shall mean the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
"Security Agreement" shall mean the Amended and Restated Security
Agreement dated as of the Initial Closing Date between the Owner Trustee and
Bank of America, N.A., as agent, as such agreement may be amended, supplemented,
restated or otherwise modified from time to time in accordance with the terms
thereof.
"Security Documents" shall mean the collective reference to the Lease,
the Lease Supplements, the Security Agreement, the Pledge Agreement, the
Mortgage Instruments, and all other security documents hereafter delivered to
the Administrative Agent granting a lien on any asset or assets of any Person to
secure the obligations and liabilities of the Lessee or the Borrower hereunder
or under any of the other Operative Agreements or to secure any guarantee of any
such obligations and liabilities.
"Senior Parity Debt" shall have the meaning set forth in the Existing
Tech Data Credit Agreement.
"Senior Parity Debt Holders" shall have the meaning set forth in the
Existing Tech Data Credit Agreement.
"Series A Loans" shall mean the loans described as such in SECTION 2.1
of the Credit Agreement.
"Series A Notes" shall mean the promissory notes issued to the Lenders
pursuant to SECTION 2.2 of the Credit Agreement evidencing the Series A Loans.
"Series B Loans" shall mean the loans described as such in SECTION 2.1
of the Credit Agreement.
"Series B Notes" shall mean the promissory notes issued to the Lenders
pursuant to SECTION 2.2 of the Credit Agreement evidencing the Series B Loans.
"Significant Subsidiary" means any Subsidiary which has either (a)
total assets of more than $25,000,000 or (b) total revenues of more than
$25,000,000 during any four fiscal quarter period; provided, however,
Significant Subsidiary shall not include (w) any Subsidiary which is a
partnership whose sole purpose is holding a single real estate asset, (x) a
Subsidiary established to act as a foreign sales corporation under the Code, and
(y) Tech Data Finance SPV, Inc.
"Subsidiary" shall mean, as to any Person, any corporation or other
entity in which more than 50% of its outstanding voting stock or more than 50%
of all equity interests is owned directly or indirectly by such Person and/or by
one or more of such Persons' Subsidiaries.
"Supplemental Rent" shall mean all amounts, liabilities and obligations
(other than Basic Rent) which the Lessee assumes or agrees to pay to Lessor, the
Holders, the Agent, the Lenders or any other Person under the Lease or under any
of the other Operative Agreements including,
Appendix A-33
without limitation, payments of the Purchase Option Price, the Termination
Value, the Deficiency Balance and the Maximum Residual Guarantee Amount and all
indemnification amounts, liabilities and obligations.
"TD 1996 Real Estate Trust" shall mean the grantor trust created
pursuant to the terms and conditions of the Trust Agreement.
"Tangible Personal Property" shall mean that portion of the Equipment
which is subject to the 35% limitation referred to in SECTION 10.3(E) of the
Participation Agreement.
"Taxes" shall have the meaning specified in the definition of
Impositions.
"Tech Data" shall mean Tech Date Corporation, a Florida corporation.
"Tech Data Credit Agreement Event of Default" shall mean an "Event of
Default" as defined in the Amended Tech Data Credit Agreement or any New
Facility.
"Term" shall mean the Basic Term.
"Termination Date" shall have the meaning specified in SECTION 16.2(A)
of the Lease.
"Termination Notice" shall have the meaning specified in SECTION 16.1
of the Lease.
"Termination Value" shall mean, as of any date of determination, the
sum of (a) either (i) with respect to all Properties, an amount equal to the
aggregate outstanding Property Cost for all the Properties, or (ii) with respect
to a particular Property, an amount equal to the outstanding Property Cost
allocable to the particular Property in question, plus (b) respecting the
amounts described in each of the foregoing subclause (i) or (ii), as applicable,
any and all accrued interest on the Loans and any and all Holder Yield on the
Holder Advances related to the applicable Property Cost, plus (c) to the extent
not otherwise paid on such date of determination, all other Rent and other
amounts then due and payable for all Properties under the Agency Agreement, the
Lease or any other Operative Agreement (including without limitation all amounts
due and payable under SECTIONS 13.1 or 13.2 of the Participation Agreement and
all costs and expenses referred to in clause FIRST of SECTION 22.2 of the
Lease).
"Total Commitment" shall mean (a) with respect to the Series A Loans,
$117,450,000, and (b) with respect to the Series B Loans, $13,500,000, in each
case as such amount may be increased pursuant to SECTION 3.4 of the
Participation Agreement.
"Total Condemnation" shall mean a Condemnation that involves a taking
of Lessor's entire title to a Property.
"Total Holder Commitment" shall mean $4,050,000, as such amount may be
increased pursuant to SECTION 3.4 of the Participation Agreement.
Appendix A-34
"Transaction Expenses" shall mean all costs and expenses incurred in
connection with the preparation, execution and delivery of the Operative
Agreements and the transactions contemplated by the Operative Agreements
including without limitation:
(a) the reasonable fees, out-of-pocket expenses and
disbursements of counsel in negotiating the terms of the Operative
Agreements and the other transaction documents, preparing for the
closings under, and rendering opinions in connection with, such
transactions and in rendering other services customary for counsel
representing parties to transactions of the types involved in the
transactions contemplated by the Operative Agreements;
(b) any and all reasonable fees, charges or other amounts
payable to the Lenders, Agent, the Holders, the Owner Trustee or any
broker which arise under any of the Operative Agreements;
(c) any other reasonable fee, out-of-pocket expenses,
disbursement or cost of any party to the Operative Agreements or any of
the other transaction documents;
(d) any and all Taxes and fees incurred in recording or filing
any Operative Agreement or any other transaction document, any deed,
declaration, mortgage, security agreement, notice or financing
statement with any public office, registry or governmental agency in
connection with the transactions contemplated by the Operative
Agreement; and
(e) real estate taxes on a Property paid during the
Construction Period.
"Trust Agreement" shall mean the Second Amended and Restated Trust
Agreement dated as of the Initial Closing Date between the Holders and the Owner
Trustee, as such agreement may be amended, modified, restated or supplemented
from time to time in accordance with the terms thereof.
"Trust Company" shall mean First Security Bank, National Association in
its individual capacity, and any successor owner trustee under the Trust
Agreement, in each case in its individual capacity.
"Trust Estate" shall have the meaning specified in SECTION 2.2 of the
Trust Agreement.
"Type" shall mean, (a) as to any Loan, whether it is a Base Rate Loan
or a Eurodollar Loan, and (b) as to any Holder Funding, whether it is a Base
Rate Holder Funding or Eurodollar Holder Funding.
"UCC Financing Statements" shall mean collectively the Lender Financing
Statements and the Lessor Financing Statements.
"Unfunded Amount" shall have the meaning specified in SECTION 3.2 of
the Agency Agreement.
Appendix A-35
"Uniform Commercial Code" and "UCC" shall mean the Uniform Commercial
Code as in effect in any applicable jurisdiction.
"United States Bankruptcy Code" shall mean Title 11 of the United
States Code.
"U.S." shall mean the United States of America, its territories, its
possessions and all other areas subject to its jurisdiction.
"Voting Stock" shall mean, with respect to any Person, capital stock
issued by a corporation or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to vote for
the election of directors (or persons performing similar functions) of such
Person, even though the right to vote may have been suspended by the happening
of such a contingency.
"Work" shall mean the furnishing of labor, materials, components,
furniture, furnishings, fixtures, appliances, machinery, equipment, tools,
power, water, fuel, lubricants, supplies, goods or services with respect to any
Property.
Appendix A-36
