Exhibit 10(u)
ACQUISITION, AGENCY, INDEMNITY AND
SUPPORT AGREEMENT
Between
SCIENTIFIC-ATLANTA, INC.
and
WACHOVIA CAPITAL MARKETS, INC.
Dated as of July 30, 1997
ACQUISITION, AGENCY, INDEMNITY AND SUPPORT AGREEMENT dated as of JULY 30,
1997 (as it may be amended or supplemented from time to time, this "Agreement"),
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by and between SCIENTIFIC-ATLANTA, INC., a Georgia corporation (the "Company"),
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and WACHOVIA CAPITAL MARKETS, INC. a Georgia corporation (the "Lessor"). All
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capitalized terms used in this Agreement and not otherwise defined herein shall
have the meanings assigned to them in Schedule 1.02 to that certain Credit and
Investment Agreement dated of even date herewith (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement") by and among the
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Lessor, the Company, the lenders party thereto upon the Syndication Effective
Date (the "Lenders"), and Wachovia Bank, N.A., as agent for the Lenders (the
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"Agent").
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RECITALS
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A. The Lessor and the Company are parties to that certain Lease
dated of even date herewith (as amended, supplemented or otherwise modified, the
"Lease") pursuant to which the Company, as Lessee, has agreed to lease the
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Facility for the Permitted Use in accordance with the terms and conditions set
forth in the Lease.
B. To induce the Lessor to enter into the Lease and the other
Operative Documents, the Company has agreed to assume all obligations with
respect to the design, acquisition, construction and fit up, maintenance and
operation of the Facility and all components thereof, and has agreed to
indemnify Lessor, Agent and the Lenders for certain environmental risks relating
to the Facility, all as hereinafter provided.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound by this Agreement, the Company and the Lessor hereby agree as
follows:
ARTICLE I
Agency Appointment
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Section 1.1 Appointment of Acquisition/Construction Agent. The Lessor
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hereby appoints the Company, as its agent and attorney-in-fact (in such
capacity, the "Acquisition/Construction Agent"), and the
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Acquisition/Construction Agent hereby agrees to act as the Lessor's agent and
attorney-in-fact, to perform certain of the obligations and responsibilities of
the Lessor under the Credit Agreement, to cause the Facility to be purchased and
designed and to be constructed and completed substantially in accordance with
the Permitted Use and in accordance with all Governmental Requirements and
Insurance Requirements and to undertake such other powers, duties and
obligations as are set forth herein.
Section 1.2 Term of Agency Relationship. The agency relationship created
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herein between the Acquisition/Construction Agent and the Lessor shall commence
as of the date hereof and shall
end on the sooner to occur of: (a) the date that the Lessor no longer owns any
interest in any portion of the Facility, (b) an "Event of Default" occurs under
Section 17 of the Lease, or (c) the date the Company gives the Agent and the
Lessor notice that it will not exercise the option to purchase the Facility
pursuant to the terms of the Lease, on which any such date or event the Lessor
revokes the Company's right to act as Acquisition/Construction Agent hereunder
except to the extent and solely to the extent that such agency relationship
expressly continues under Section 1.3(k) hereof and provided that the
Acquisition/Construction Agent pays the Final Rent Payment when due. The Lessor
may, but is not obligated to, revoke the Company's right and obligation to act
as Acquisition/Construction Agent hereunder, any time after a Cancellation Date,
Lease Termination Date or Option Date.
Section 1.3 Powers, Duties and Obligations. The Acquisition/Construction
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Agent shall have the following powers, duties and obligations:
(a) To make all funding requests for Loans and LI Fundings under
Section 2.02 of the Credit Agreement in compliance with the terms of the Credit
Agreement and use the proceeds of each funding received by it only to pay the
actual costs set forth in the Advance Notice, make all elections to terminate or
to reduce the Commitments under Section 2.03 of the Credit Agreement, and make
all elections to continue the Loans and LI Fundings under Section 2.09 of the
Credit Agreement and to make any request for extension of the Maturity Date
under Section 2.10 of the Credit Agreement;
(b) To make all payments due under the Lease directly to the Agent
for the account of the Lessor;
(c) To perform all acts which the Acquisition/Construction Agent may
deem necessary on behalf of the Lessor, as agent for but only in the name of the
Lessor, in connection with Completion, including, without limitation, performing
or arranging the purchasing, designing, construction, engineering, assembling
and installing of the Facility, and execution and delivery to the Lessor and the
Agent of the Completion Certificate in the form attached hereto as Exhibit A
upon Completion of the Facility;
(d) To perform or cause to be performed all work in connection with
Completion to be done in a good and workmanlike manner and in compliance with
all Governmental Requirements and Insurance Requirements, and in accordance with
the Permitted Use;
(e) (i) To take all actions in effecting the Completion in accordance
with the requirements set forth on Schedule 1.3 hereto and in operating and
managing the Facility as it would take as a reasonably prudent operator in the
management and operation of its own Properties consistent with applicable
Governmental Requirements, including, without limitation, fencing or otherwise
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securing the Site and maintaining with financially sound and reputable insurers,
insurance against loss or damage of the kinds and in the amounts customarily
insured against by corporations engaged in the ownership and occupancy of
Property for the Permitted Use (including without limitation such insurance as
may be required pursuant to the Lease), and (ii) to construct, or cause to be
constructed by entering into Related Contracts with Vendors, the Facility in a
manner necessary to meet Completion on or before the Completion Date.
(f) To pay, or cause to be paid, in accordance with prudent industry
practices in compliance with applicable Governmental Requirements all costs and
expenses of Completion and perform all obligations of such Completion, and to
perform or cause to be performed all contracts and other agreements, including
without limitation all Related Contracts, entered into by or on behalf of the
Lessor, and to preserve the Lessor's rights in the Facility and under all
Related Contracts;
(g) To keep the Facility free of all Liens except Permitted Liens,
provided that the Company shall have the right to contest Impositions and
certain other nonconsensual Liens in accordance with Section 13 of the Lease;
(h) To transfer and hold all of the evidence of ownership of the
Facility in the name of the Lessor;
(i) To cause all contracts and other agreements, including without
limitation all Related Contracts, entered into by the Acquisition/Construction
Agent on behalf of the Lessor to be assignable, including, without limitation,
the right to be subject to the Security Instruments;
(j) To avoid purchasing Property from or entering into any agreement
with Affiliates of the Acquisition/Construction Agent in connection with the
Facility unless upon fair and reasonable terms that are not less favorable to
the Lessor than those which might be obtained in an arm's-length transaction
between unaffiliated Persons in the same business at the time such terms are
agreed upon;
(k) In the event the Company does not exercise its option to purchase
the Facility pursuant to Section 15 of the Lease, to attempt to sell the
Facility for cash upon the termination or cancellation of the Lease (with the
exclusive right with respect to effecting any such sale for a period not to
exceed six (6) months after the Lease Termination Date (the "Exclusivity
Period"), but subject to (i) payment of the Final Rent Payment when due, and
(ii) the Lessor's and Agent's prior written approval of the terms of any such
sale, unless the net proceeds of such sale are determined by the Agent and the
Lessor to be sufficient to pay in full all Tranche B Loans, interest thereon,
all unrecovered Lessor Investment, LI Yield, Support Expenses, and all other
amounts owed hereunder at such time), and to grant, bargain, sell,
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convey or contract for the sale or conveyance of the Facility in connection with
the duties in this paragraph (k), provided that the Lessor and the Agent shall
also have the right (but not the obligation) to sell the Facility and/or solicit
bids, each in its sole and absolute discretion, after the Exclusivity Period;
and
(l) To substantially complete the Facility during the Construction
Term and if the cost of the Facility exceeds the sum of the Commitments, use the
Acquisition/Construction Agent's own funds to complete the Facility during the
Construction Term up to the amount of the Completion Costs Payment Limitation,
and assign all Property necessary for Completion of the Facility and purchased
with the funds of the Acquisition/Construction Agent or its Affiliates to the
Lessor to be owned as part of the Facility, provided, however, only such
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Property as is necessary to fulfill the requirements of Completion shall be
assigned to the Lessor;
(m) To contract with all Vendors and contractors for supplies,
equipment, materials and services, including, without limitation, necessary
design work affecting the Facility;
(n) To keep and maintain proper books and records relating to the
accounts of the Facility and the book value of the Facility and the Property
comprising the Facility;
(o) To pay for, exchange or otherwise settle accounts for the
acquisition of supplies, equipment, materials or services affecting the
Facility;
(p) To ask for, demand, collect, recover, and receive all moneys
which may become due and owing by reason of conveyances, whether by deed,
contract, xxxx of sale or other instruments or to pay for, exchange or otherwise
settle accounts for the acquisition of supplies, equipment, materials or
services affecting the Facility.
(q) To ask for, demand, collect, and recover, each in the name of
Lessor, any and all sums that may be due on account of any damage to any of the
Facility;
(r) To manage correspondence and conduct communications with all
Governmental Authorities with regard to matters affecting the Facility,
including, but not limited to, the acquisition of all Permits and satisfaction
of all Governmental Requirements and Insurance Requirements and with regard to
rights of way and easements, if any, affecting the Facility; and
(s) To provide the Lessor and the Acquisition/Construction Agent with
copies of material Related Contracts executed by the Acquisition/Construction
Agent on behalf of the Lessor promptly following such execution.
Section 1.4 Disclosure. The Facility Plan will be developed solely by the
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Company. The Acquisition/Construction
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Agent shall act in its sole discretion in choosing materials for the Facility
and hiring any contractors and subcontractors to work on the Facility. The
Lessor, the Agent and the Lenders have no liability for or in respect of the
Facility as provided in Section 11 of the Lease and shall be indemnified and
held harmless by the Company as provided herein, in the Lease, the Credit
Agreement and the other Operative Documents.
ARTICLE II
Basic Services, Contracts and Rights, Etc.
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Section 2.1 Plans and Design Specifications. As soon as available, the
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Company, at no cost to the Lessor, shall deliver, or cause to be delivered, to
the Lessor the Facility Plan and promptly following completion a complete set of
all "as-built" plans, drawings and specifications for the Facility, as well as
all design information on all equipment, safety systems, and associated
improvements and amenities which comprise a portion of the Facility, which items
and information to the best of the Company's knowledge shall be true, correct
and complete.
Section 2.2 Access and Parking. Subject to and in compliance with
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existing safety regulations on the Site and applicable Governmental Requirements
and Insurance Requirements, the Company, at no cost to the Lessor, shall provide
or cause to be provided, either on site or via easement agreements acceptable to
the Lessor and the Agent with adjacent property owners, vehicular (including
maintenance and construction equipment) and pedestrian access routes to the Site
from a public street and shall make such parking space available thereon as may
be necessary for the full use and enjoyment of the Site and the Facility.
Section 2.3 Easements, Utilities, Services and Contracts. Within 120 days
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prior to the Scheduled Lease Termination Date (or immediately if the Lease
terminates on any Cancellation Date or Lease Termination Date which is not a
Scheduled Lease Termination Date), and provided that the Company shall not have
elected to purchase, or purchased, the Facility pursuant to the terms of the
Lease, at all times thereafter for the term of this Agreement, the Company, at
no cost to the Lessor, shall provide, either directly or indirectly, to the
Lessor, in compliance with all Governmental Requirements (including, without
limitation, all Environmental Requirements, Environmental Authorizations and
Environment Judgments and Orders and Insurance Requirements), as confirmed by
the Agent, (a) all rights of ingress and egress, rights-of-way, easements (which
easements shall be reasonably direct and shall provide for access over any
servient estate created thereby, including the rights to use existing
transmission lines), access and real property licenses and rights in real
property over or to the Site, (b) access to storage, transportation and
maintenance facilities, fixtures and appurtenances, (c) an inventory of supplies
necessary for the full and efficient operation of the
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Facility, and (d) services (whether on- or off-Site, including any shared off-
site facilities), including, without limitation, water, electricity, heating,
ventilation, air conditioning, lighting, security, steam, waste water treatment
and sanitation, receiving and shipping facilities as such rights, licenses,
easements, services and utilities are or may be necessary for the full and
efficient operation of the Facility.
Section 2.4 Compliance with Governmental Requirements. The Company
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represents and warrants to the Lessor that as of the Closing Date, and the
Completion Date, and at all times thereafter during the term of this Agreement,
the construction, assembly, ownership, use, occupancy, maintenance and operation
of the Facility and Property included therein does not and will not cause a
violation of any Governmental Requirements or Insurance Requirements.
Section 2.5 Cost of Services and Rights. Any and all services described
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in Section 2.3(d) and all easements and other rights in real property existing
or necessary for the full and efficient operation of the Facility during the
term of this Agreement shall be provided (x) to the Lessor at the cost specified
in Section 2.3, and (y) in the case of such easements and other rights in real
property as aforesaid, on the terms set forth in Section 2.5(b) to any Person
acquiring title or use of the Facility other than the Lessor (or the Agent and
the Lenders).
ARTICLE III
Operation and Management of the Facility Following Lease Termination.
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Section 3.1 Engagement. From the date on which the Lease terminates as
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provided therein, including any Lease Termination Date or Cancellation Date,
through the date this Agreement terminates in accordance with Section 8.4, the
Company hereby agrees to (a) provide and perform, or cause to be provided or
performed, all services, labor, supervision, management, maintenance, repairs,
common facilities and consumables necessary for the operation of the Facility
for the Permitted Use, in accordance with all Governmental Requirements and
Insurance Requirements, and (b) to perform the additional duties as set forth in
this Agreement. In consideration for the Company's performance of its
obligations under this Article III, the Lessor agrees to pay the Company a fair
market monthly operation and management fee. In the event that the Company and
the Lessor are unable to agree on such fee within 15 days of the Lease
Termination Date, such fee shall be determined by arbitration proceedings
conducted in accordance with the terms of Section 12 of the Ground Lease.
Section 3.2 Duties and Responsibilities of the Company as Operator of the
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Facility.
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During the period specified in Section 3.1:
(a) Services. The Company shall (i) perform, or cause to be performed
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on behalf of Lessor, all operation and maintenance of the Facility whatsoever,
(ii) supply, or cause to be supplied, all services, goods and materials required
to operate and maintain the Facility, including without limitation, those
services, goods and materials referenced in Article II, and (iii) provide such
additional services as may be reasonably requested by the Lessor or the Agent
for the full and efficient operation of the Facility, all of the foregoing to be
done or performed in accordance with the terms and conditions set forth herein.
(b) Standard of Care. The Company shall perform all of its duties and
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obligations under Article II and this Article III in accordance with the
standards mandated under Section 7 of the Lease as if fully set forth herein
(which standards are hereby incorporated, with any necessary changes in points
of detail, herein by reference) and in a good, workmanlike and commercially
reasonable manner. The Company shall exercise such care and in the same manner
as a prudent Person engaged in the business of managing and operating Property
similar to the Facility and used in a similar location for the Permitted Use
would in the advancement and protection of such Person's own economic interests.
Maintenance shall be scheduled so as to minimize interference with the use,
occupation and operation of the Facility and cost consistent with good industry
operating and safety standards and all Governmental Requirements and Insurance
Requirements.
(c) Compliance with Governmental Requirements and Insurance
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Requirements. The Company shall comply with, and cause the Facility (including
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the maintenance, use, occupation and operation thereof) and all personnel of the
Company, and all contractors or other entities, to comply with, the Insurance
Requirements (which Insurance Requirements are hereby incorporated, with any
necessary changes in points of detail, herein by reference as if fully set forth
herein) and all Governmental Requirements in effect from time to time.
(d) Personnel. The Company shall at all times employ, or cause to be
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employed, qualified and properly trained personnel to perform the Company's
obligations under this Agreement, and shall pay all wages and benefits required
by law or contract. The Company shall be responsible for all matters relating to
labor relations, working conditions, training, employee benefits, safety
programs and related matters pertaining to such employees. The Lessor and the
Agent shall have the right to request the removal from the Facility of any
personnel deemed unqualified by the Lessor or the Agent.
(e) Warranties and Guarantees. The Company shall use its best
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reasonable efforts consistent with good industry practices to obtain warranties
for the Lessor for parts, equipment, materials or services provided by third-
party suppliers in fulfilling the
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Company's obligations under this Agreement. The Company shall comply with all
applicable warranties and guarantees presented by Vendors or contractors, and
shall take no action that in any way impairs any rights or claims of the Lessor
under this Agreement or any Vendor's or other Person's warranty.
(f) Consultations. Notwithstanding any other provision of this
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Agreement, the Company will consult with the Lessor and/or the Agent and any
other independent experts appointed by or on behalf of the Lessor or the Agent
to review any matter pertaining directly or indirectly to the performance of the
Company's obligations under this Agreement and the Company shall provide them
with access, during normal business hours and upon no less than two (2) days'
prior written notice, to the Facility and shall make available to such experts,
at the Company's expense, all information, reports, logs and other documents,
and shall make the Company's personnel available for consultation with such
experts, all as requested by the Lessor or the Agent.
(g) Permits. The Company shall apply for and maintain in full force
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and effect, at the cost and expense of the Company, any and all Applicable
Permits required to be obtained, maintained or held by either the Company or the
Lessor as and when required by law to be obtained and in proper form therefor
and maintain all such Applicable Permits in full force and effect.
(h) Compliance with Law; Certain Agreements.
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(i) The Company shall also comply with, and cause the Facility
(and its operation) to comply with, the various requirements imposed on the
Lessee set forth in Sections 7, 9, 10, 12, 13, 14, 16 and 20 of the Lease (which
sections are hereby incorporated, with any necessary changes in points of
detail, herein by reference as if fully set forth herein).
(ii) The Company shall also not take or fail to take any action
which would result in the failure of the Facility to be operated on a continuing
basis for the Permitted Use in accordance with in the Facility design as
specified in the Facility Plan.
(i) Removal. The Lessor, with the prior written consent of the Agent,
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may at any time, terminate its engagement of the Company under this Article III
to maintain and operate the Facility, without terminating this Agreement
pursuant to Section 8.4; provided, however, that the Lessor shall, upon two
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week's written notice to the Company, be entitled to request the Company to
resume its duties under this Agreement for the duration of the term of this
Article III to maintain and operate the Facility and the Company shall comply
with such request.
(j) Independent Contractor Status. The Lessor acknowledges that the
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Company, in performing its duties under this Article III to maintain and operate
the Facility, is acting as an independent contractor and except as otherwise
expressly provided
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by this Agreement, the Lessor shall have no right to control the conduct of the
Company or its personnel in the proper performance of the obligations of the
Company under this Agreement. The Company acknowledges that the Lessor is the
owner of the Facility and, as such, is entitled to control the Facility and its
use, subject to the provisions of this Agreement and of the Lease.
ARTICLE IV
Environmental Due Diligence
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The Company hereby certifies and represents to the Lessor, the Agent and
the Lenders that the Company (both in its individual capacity and in its
capacity as Acquisition/Construction Agent) has performed or caused to be
performed an Environmental Assessment and such other inspections, investigations
and analyses of the Facility as is necessary to carry out its obligations
hereunder and under the other Operative Documents and to enable the Company to
provide knowledgeably the warranties, representations and covenants regarding
environmental matters affecting or which could affect the Facility under
Sections 8.11, 8.12 and 8.13 of the Credit Agreement and under applicable
provisions of the other Operative Documents, including without limitation,
representations, warranties and covenants relating any environmental conditions
existing prior to the acquisition of the Ground Lease pertaining to the Site and
of the Improvements, by the Lessor. The Company further understands and agrees
that Lessor's willingness to acquire the Ground Lease pertaining to the Site and
the Improvements and enter into the Operative Documents is, inter, alia, in
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reliance upon and in consideration of the fulfillment by the Company of the
environmental due diligence requirements required herein, the representations,
warranties and covenants set forth in the Credit Agreement and the other
Operative Documents and the indemnities set forth under Article V below.
ARTICLE V
Indemnification
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Section 5.1 Indemnities; Defending Claims. The Company agrees that its
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obligations and liabilities set forth in clauses (b) through and including (h)
of Section 11.03 of the Credit Agreement survive the termination of the Credit
Agreement and, without limitation, apply to the agreements set forth in this
Agreement between the Company and the Lessor.
Section 5.2 Survival. The obligations of the Company under this Article
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V shall survive the expiration or any termination of this Agreement (whether by
operation of law or otherwise) and the payment of amounts owed by the Lessor and
the Company under this Agreement, the Credit Agreement, the Notes, and the other
Operative Documents.
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Section 5.3 Payment upon Demand. Upon demand for payment by any
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Indemnified Party of any Indemnified Risks incurred by it for which
indemnification is sought, the Company shall pay when due and payable the full
amount of such Indemnified Risks to the appropriate party as provided in Section
11.03 of the Credit Agreement.
Section 5.4 Acknowledgement of Scope of Indemnity. The Company
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acknowledges and agrees that (a) its obligations under this Article V are
intended to include and extend to (without limitation) any and all liabilities,
Liens, Taxes, losses, obligations, claims, damages (including, without
limitation, penalties, fines, court costs and administrative service fees),
penalties, demands, causes of action, suits, proceedings (including any
investigations, litigation or inquiries), judgments, orders, sums paid in
settlement of claims, costs and expenses (including, without limitation,
response and mediation costs, stabilization costs, encapsulation costs, and
treatment, storage or disposal costs), imposed upon or incurred by or asserted
at any time against any Indemnified Party (whether or not indemnified against by
any other party) as a result of, arising directly or indirectly out of or in any
way related to (i) the treatment, storage, disposal, generation, use, transport,
movement, presence, release, threatened release, spill, installation, sale,
emission, injection, leaching, dumping, escaping or seeping of any Hazardous
Materials containing or alleged to contain hazardous substance at, under, onto,
above, within or from the Facility or any part thereof or any business conducted
on or related to the Facility or the Site; (ii) the violation or alleged
violation of any Environmental Requirements relating to or in connection with
the Facility or any part thereof or any acts or omissions thereon or relating
thereto; (iii) all other federal, state and local laws designed to protect the
environment or persons or property therein, whether now existing or hereinafter
enacted, promulgated or issued by any governmental authority relating to or in
connection with the Facility or any part thereof or any acts or omissions
thereon or relating thereto; (iv) the Company's failure to comply with its
obligations under Section 7 of the Lease; and (v) any abandonment of the
Facility by the Company.
Section 5.5 Best Efforts Notice. In case any action shall be brought
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against any Indemnified Party in respect of which indemnity may be sought
against the Company, such Indemnified Party shall use best efforts to promptly
notify the Company in writing, but the failure to give such prompt notice shall
not relieve the Company from liability hereunder.
ARTICLE VI
Reversion of Rights and Contracts.
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Upon payment of the Purchase Price as provided in Section 15 of the Lease:
(a) the various agreements, licenses, Applicable
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Permits and contracts, including without limitation Related Contracts, to be
provided hereunder by Company to the Lessor shall revert to the Company (or be
transferred to the Company), (b) service contracts with the Company, property
rights and licenses granted by the Company to the Lessor shall terminate or be
transferred to the Company, and (c) third-party service contracts shall be
assigned by the Lessor to the Company, all the foregoing transfers and
assignments to be made without recourse and without any representation or
warranty whatsoever. Upon the termination of the Lease and the failure of the
Company or one of its Affiliates to purchase the Facility as provided in Section
15 of the Lease, all such agreements, Applicable Permits, contracts, property
rights and licenses and Third Party service contracts, including without
limitation Related Contracts, shall remain in place unless terminated by the
Lessor with the consent of the Agent.
ARTICLE VII
Additional Support.
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In the event that none of the Company, or any of its Affiliates purchases
the Facility from the Lessor pursuant to the Lease, the parties hereto agree to
negotiate in good faith to provide to the Lessor such support in addition to
that provided for in this Agreement as the Lessor or the Agent may deem
necessary to maintain, use, occupy and operate the Facility for the Permitted
Use or any other purpose requested by the Lessor.
ARTICLE VIII
Miscellaneous.
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Section 8.1 Governing Law; Assignability, etc. This Agreement (including,
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but not limited to, the validity and enforceability hereof) shall be construed
in accordance with the laws of the State of Georgia. This Agreement supersedes
all prior agreements among or between the parties with respect to the matters
addressed herein and shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto,
subject to Section 11.06 of the Credit Agreement. After the expiration or the
termination of the Lease, and provided that the Company (or an Affiliate
thereof) shall not have purchased the Facility in accordance with the terms of
the Lease, the Lessor may, at any time, assign its rights hereunder to any
permitted sublessee of the Site or assignee of the Lessor under the Lease,
without the prior written consent of the Company. The Company may not delegate
all or any part of its obligations or assign any of its rights hereunder without
the prior written consent of the Lessor and the Agent.
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Section 8.2 Jurisdiction. Jurisdiction hereunder shall be governed by the
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provisions governing jurisdiction set forth in Section 11.14 of the Credit
Agreement which provisions are hereby incorporated herein, with any necessary
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changes in points of detail, by reference as if fully set forth herein.
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Section 8.3 Amendments. No change, waiver, amendment or modification of
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any of the provisions of this Agreement shall be valid unless set forth in a
written instrument signed by the parties hereto, in compliance with the
requirements set forth in the Credit Agreement.
Section 8.4 Term; Option. Except as otherwise expressly provided herein,
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this Agreement and the parties' obligations hereunder shall commence on
the date hereof and shall terminate upon the expiration or other termination of
the Exclusivity Period, subject to the provisions of Section 3.2 hereof.
Section 8.5 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, and all of which together
shall constitute but one and the same instrument. This Agreement may be
delivered by facsimile transmission of the relevant signature pages hereof.
Section 8.6 Further Assurances. The Company shall take all appropriate
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actions and shall execute any documents, instruments or conveyances of any kind
which may be necessary or advisable to carry out the provisions hereof,
including, without limitation, all actions and documents required by
Governmental Authorities, and respond to all inquiries of Governmental
Authorities concerning the Facility.
IN WITNESS WHEREOF, the parties hereto have caused this Agency Agreement
hereto to be entered into by one of its officers thereunto duly authorized.
SCIENTIFIC-ATLANTA, INC.
By: /s/ X.X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President-Finance,
Chief Financial Officer and
Treasurer
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WACHOVIA CAPITAL MARKETS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Senior Vice President
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