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EXHIBIT 10.12
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PARTICIPATION AGREEMENT
Dated as of October 19, 2000
among
LEXICON GENETICS INCORPORATED,
as the Construction Agent and as the Lessee,
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not individually, except as expressly
stated herein, but solely as the Owner Trustee
under the Lexi Trust 2000-1,
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.
as the Agent for the Lenders
and, respecting the Security Documents,
as the Agent for the Secured Parties
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TABLE OF CONTENTS
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SECTION 1A. INITIAL LENDER AND INITIAL HOLDER...............................1
SECTION 1. THE LOANS........................................................1
SECTION 2. HOLDER ADVANCES..................................................2
SECTION 3. SUMMARY OF TRANSACTIONS..........................................2
3.1. Operative Agreements.............................................2
3.2. Property Purchase................................................2
3.3. Construction of Improvements; Commencement of Basic Rent.........3
SECTION 4. THE CLOSINGS.....................................................3
4.1. Initial Closing Date.............................................3
4.2. Initial Closing Date; Property Closing Dates; Acquisition
Advances; Construction Advances................................3
SECTION 5. FUNDING OF ADVANCES; CONDITIONS PRECEDENT; REPORTING
REQUIREMENTS ON COMPLETION DATE; THE LESSEE'S DELIVERY OF
NOTICES; RESTRICTIONS ON LIENS...................................3
5.1. General..........................................................3
5.2. Procedures for Funding...........................................4
5.3. Conditions Precedent for the Lessor, the Agent, the Lenders and
the Holders Relating to the Initial Closing Date and the
Advance of Funds for the Acquisition of a Property.............6
5.4. Conditions Precedent for the Lessor, the Agent, the Lenders and
the Holders Relating to the Advance of Funds after the
Acquisition Advance............................................12
5.5. Additional Reporting and Delivery Requirements on Completion Date
and on Punch List Completion Date..............................14
5.6. The Construction Agent Delivery of Construction Budget
Modifications..................................................14
5.7. Restrictions on Liens............................................15
5.8. Payments.........................................................15
5.9. Unilateral Right to Increase the Holder Commitments and the
Lender Commitments.............................................15
5.10 Collateral Account...............................................16
5.11 Funding of Escrow Account for Punch List Items...................16
5.12 Delayed Delivery of Construction Contracts and Plans and
Specifications.................................................17
5.13 Extension of Construction Period Termination Date................18
5.14 Purchase and Sale Rights and Obligations to relinquish Interest
in Properties..................................................18
5.15 Limited Obligations regarding the Purchase Agreements............18
5.16 Limitation on CD Collateral......................................19
SECTION 6. REPRESENTATIONS AND WARRANTIES...................................19
6.1. Representations and Warranties of the Borrower...................19
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6.2. Representations and Warranties of the Construction Agent and the
Lessee.........................................................21
SECTION 7. PAYMENT OF CERTAIN EXPENSES.......................................29
7.1. Transaction Expenses.............................................29
7.2. Brokers' Fees....................................................30
7.3. Certain Fees and Expenses........................................30
7.4. Unused Fee.......................................................31
7.5. Administrative Fee...............................................31
7.6. Other Fees.......................................................31
7.7. Clarification regarding the Lessor's Payment Obligations Pursuant
to Section 7...................................................31
SECTION 8. OTHER COVENANTS AND AGREEMENTS...................................31
8.1. Cooperation with the Construction Agent or the Lessee............31
8.2. Covenants of the Owner Trustee and the Holders...................32
8.3. The Lessee Covenants, Consent and Acknowledgment.................33
8.3A Additional Affirmative Covenants of Lessee.......................37
8.3B Additional Negative Covenants of Lessee..........................41
8.4. Sharing of Certain Payments......................................44
8.5. Grant of Easements, etc..........................................44
8.6. Appointment by the Agent, the Lenders, the Holders and the Owner
Trustee........................................................45
8.7. Collection and Allocation of Payments and Other Amounts..........45
8.8. Release of Properties, etc.......................................49
SECTION 9. CREDIT AGREEMENT AND TRUST AGREEMENT.............................49
9.1. The Construction Agent's and the Lessee's Credit Agreement Rights49
9.2. The Construction Agent's and the Lessee's Trust Agreement Rights.50
SECTION 10. TRANSFER OF INTEREST............................................51
10.1. Restrictions on Transfer.........................................51
10.2. Effect of Transfer...............................................51
SECTION 11. INDEMNIFICATION.................................................52
11.1. General Indemnity................................................52
11.2. General Tax Indemnity............................................54
11.3. Increased Costs, Illegality, etc.................................59
11.4. Funding/Contribution Indemnity...................................60
11.5. EXPRESS INDEMNIFICATION FOR ORDINARY NEGLIGENCE, STRICT
LIABILITY, ETC.................................................61
11.6. Additional Provisions Regarding Environmental Indemnification....61
11.7. Additional Provisions Regarding Indemnification..................62
11.8. Indemnifications Provided by the Owner Trustee in Favor of the
Other Indemnified Persons......................................62
SECTION 12. MISCELLANEOUS...................................................63
12.1. Survival of Agreements...........................................63
12.2. Notices..........................................................63
12.3. Counterparts.....................................................64
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12.4. Terminations, Amendments, Waivers, Etc.; Unanimous Vote Matters..65
12.5. Headings, etc....................................................67
12.6. Parties in Interest..............................................67
12.7. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL;
VENUE..........................................................67
12.8. Severability.....................................................68
12.9. Liability Limited................................................68
12.10.Rights of the Lessee.............................................69
12.11.Further Assurances...............................................69
12.12.Calculations under Operative Agreements..........................70
12.13.Confidentiality..................................................70
00.00.Xxxxxxxxx Reporting/Tax Characterization.........................70
12.15.Set-off..........................................................70
SCHEDULES
Schedule 6.1(z) -- Brokers' Fees
Schedule 8.3B(a)(ii) -- Indebtedness
EXHIBITS
A - Form of Requisition - Sections 4.2, 5.2, 5.3 and 5.4
B - [reserved]
C - Form of Officer's Certificate - Section 5.3(z)
D- Form of Secretary's Certificate - Section 5.3(aa)
E - Form of Officer's Certificate - Section 5.3(bb)
F - Form of Secretary's Certificate - Section 5.3(cc)
G - [reserved]
H - [reserved]
I - Form of Officer's Certificate - Section 5.5
J - Description of Material Litigation - Section 6.2(d)
K - Interest Rate/Holder Yield Selection Notice - Section 8.3(r)
L - Form of Officer's Certificate as to Borrowing Base - Section 5.10(c)
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M - Form of Officer's Certificate as to Financial Covenant - Section
8.3A(a)(iii)
Appendix A - Rules of Usage and Definitions
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PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT dated as of October 19, 2000 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
this "Agreement") is by and among LEXICON GENETICS INCORPORATED, a Delaware
corporation (the "Lessee" or the "Construction Agent"); FIRST SECURITY BANK,
NATIONAL ASSOCIATION, a national banking association, not individually (in its
individual capacity, the "Trust Company"), except as expressly stated herein,
but solely as the Owner Trustee under the Lexi Trust 2000-1 (the "Owner
Trustee", the "Borrower" or the "Lessor"); the various banks and other lending
institutions which are parties hereto from time to time as holders of
certificates issued with respect to the Lexi Trust 2000-1 (subject to the
definition of Holders in Appendix A hereto, individually, a "Holder" and
collectively, the "Holders"); the various banks and other lending institutions
which are parties hereto from time to time as lenders (subject to the definition
of Lenders in Appendix A hereto, individually, a "Lender" and collectively, the
"Lenders"); and BANK OF AMERICA, N.A., a national banking association, as the
agent for the Lenders and respecting the Security Documents, as the agent for
the Secured Parties (in such capacity, the "Agent"). Capitalized terms used but
not otherwise defined in this Agreement shall have the meanings set forth in
Appendix A hereto.
In consideration of the mutual agreements herein contained and other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto hereby agree as follows:
SECTION 1A. INITIAL LENDER AND INITIAL HOLDER.
Notwithstanding the various references in the Operative Agreements to
multiple Lenders and multiple Holders, Bank of America, N.A. is the only Lender
and the only Holder as of the date of this Agreement. Additional Lenders and
additional Holders may become parties to the Operative Agreements subsequent to
the date hereof pursuant to the assignment provisions set forth in the
applicable Operative Agreements.
SECTION 1. THE LOANS.
Subject to the terms and conditions of this Agreement and the other
Operative Agreements and in reliance on the representations and warranties of
each of the parties hereto contained herein or made pursuant hereto, the Lenders
have agreed to make Loans to the 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 and certain Improvements, to
develop and construct certain Improvements in accordance with the Agency
Agreement and the terms and provisions hereof and for the other purposes
described herein, and in consideration of the receipt of proceeds of the Loans,
the Lessor will issue 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 at the request of the Construction Agent in consideration for the
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Construction Agent agreeing, for the benefit of the Lessor, pursuant to the
Agency Agreement, to acquire the Properties, to acquire the Equipment, to
construct certain Improvements and to cause the Lessee to lease the Properties,
each in accordance with the Agency Agreement and the other Operative Agreements.
The Loans and the obligations of the Lessor under the Credit Agreement shall be
secured by the Collateral.
SECTION 2. HOLDER ADVANCES.
Subject to the terms and conditions of this Agreement and the other
Operative Agreements and in reliance on the representations and warranties of
each of the parties hereto contained herein or made pursuant hereto, on each
date Advances are requested to be made in accordance with Section 5 hereof, each
Holder shall make a Holder Advance on a pro rata basis to the Lessor with
respect to the Lexi Trust 2000-1 based on its Holder Commitment in an amount in
immediately available funds such that the aggregate of all Holder Advances on
such date shall be four and one-half percent (4.5%) of the amount of the
Requested Funds on such date; provided, that no Holder shall be obligated for
any Holder Advance in excess of its pro rata share of the Available Holder
Commitment. The aggregate amount of Holder Advances shall be up to the aggregate
amount of the Holder Commitments. No prepayment or any other payment with
respect to any Advance shall be permitted such that the Holder Advance with
respect to such Advance is less than four and one-half percent (4.5%) of the
outstanding amount of such Advance, 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, and not joint or joint and several. The Holder Advances
and the obligations of the Lessor under the Trust Agreement shall be secured by
the Collateral.
SECTION 3. SUMMARY OF TRANSACTIONS.
3.1. OPERATIVE AGREEMENTS.
On the date hereof, each of the respective parties hereto and thereto
shall execute and deliver this Agreement, the Lease, each applicable Ground
Lease, the Agency Agreement, the Credit Agreement, the Notes, the Trust
Agreement, the Certificates, the Security Agreement, the Collateral Agreement,
the Control Agreement, each applicable Mortgage Instrument 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 Advance in accordance
with Sections 2 and 5 of this Agreement and the terms and provisions of the
Trust Agreement, (b) the Lenders will each make Loans in accordance with
Sections 1 and 5 of this Agreement and the terms and provisions of the Credit
Agreement, (c) the Lessor will purchase and acquire good and indefeasible title
to or ground lease pursuant to a Ground Lease, the applicable Property, each to
be within an Approved
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State, identified by the Construction Agent, in each case pursuant to a Deed,
Xxxx of Sale or Ground Lease, as the case may be, and grant the Agent a lien on
such Property by execution of the required Security Documents, (d) the Agent,
the Lessee and the Lessor shall execute and deliver a Lease Supplement relating
to such Property and (e) the Basic Term shall commence with respect to such
Property.
3.3. CONSTRUCTION OF IMPROVEMENTS; COMMENCEMENT OF BASIC RENT.
Construction Advances will be made with respect to particular
Improvements to be constructed and with respect to ongoing Work regarding the
Equipment and 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 the Work regarding the Equipment, the construction of such
Improvements and the expenditures of the Construction Advances related to the
foregoing. The Construction Agent shall promptly notify the Lessor upon
Completion of the Improvements and the Lessee shall commence to pay Basic Rent
as of the Rent Commencement Date.
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 & Xxx Xxxxx, PLLC,
Charlotte, North Carolina, or at such other location as may be determined by the
Lessor, the Agent and the Lessee; provided, however, the Construction Agent and
the Lessee reserve the right to close in escrow rather than physically attending
a closing outside of the State of Texas.
4.2. INITIAL CLOSING DATE; PROPERTY CLOSING DATES; ACQUISITION
ADVANCES; CONSTRUCTION ADVANCES.
The Construction Agent shall deliver to the Agent a requisition (a
"Requisition"), in the form attached hereto as Exhibit A or in such other form
as is satisfactory to the Agent, in its reasonable discretion, in connection
with (a) the Transaction Expenses and other fees, expenses and disbursements
payable, pursuant to Section 7.1, by the Lessor and (b) each Acquisition Advance
pursuant to Section 5.3 and (c) each Construction Advance pursuant to Section
5.4
SECTION 5. FUNDING OF ADVANCES; CONDITIONS PRECEDENT;
REPORTING REQUIREMENTS ON COMPLETION DATE;
THE LESSEE'S DELIVERY OF NOTICES; RESTRICTIONS ON LIENS.
5.1. GENERAL.
(a) To the extent funds have been advanced to the Lessor as
Loans by the Lenders and to the Lessor as Holder Advances by the
Holders, the Lessor will use such funds from time to time in accordance
with the terms and conditions of this Agreement
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and the other Operative Agreements (i) at the direction of the
Construction Agent to acquire the Properties in accordance with the
terms of this Agreement, the Agency Agreement and the other Operative
Agreements, (ii) to make Advances to the Construction Agent to permit
the acquisition, testing, engineering, installation, development,
construction, modification, design, and renovation, as applicable,
of the Improvements (or components thereof) in accordance with the terms
of the Agency Agreement and the other Operative Agreements, and (iii) to
pay the Lessor Funding Obligations.
(b) In lieu of the payment of interest on the Loans and
Holder Yield on the Holder Advances on any Scheduled Interest Payment
Date with respect to any Property during the period prior to the Rent
Commencement Date with respect to such Property and subject to Section
5.9 and until such time as a Default or an Event of Default shall have
occurred and be continuing, (i) each Lender's Loan shall automatically
be increased by the amount of interest accrued and unpaid on such Loan
for such period (except to the extent that at any time such increase
would cause such Lender's Loan to exceed such Lender's Available
Commitment, in which case the Lessee shall pay such excess amount to
such Lender in immediately available funds on the date such Lender's
Available Commitment was exceeded), and (ii) each Holder's Holder
Advance shall automatically be increased by the amount of Holder Yield
accrued and unpaid on such Holder Advance for such period (except to the
extent that at any time such increase would cause the Holder Advance of
such Holder to exceed such Holder's Available Holder Commitment, in
which case the Lessee shall pay such excess amount to such Holder in
immediately available funds on the date the Available Holder Commitment
of such Holder was exceeded). Such increases in a Lender's Loan and a
Holder's Holder Advance shall occur without any disbursement of funds by
any Person.
5.2. PROCEDURES FOR FUNDING.
(a) The Construction Agent shall designate the date for
Advances hereunder in accordance with the terms and provisions hereof;
provided, however, it is understood and agreed that no more than two (2)
Advances (excluding any conversion and/or continuation of any Loan or
Holder Advance) may be requested during any calendar month and no such
designation from the Construction Agent is required for funding of any
Lessor Funding Obligation payable in favor of or for the benefit of one
or more Financing Parties. Not less than (i) three (3) Business Days
prior to the date that the first Advance is requested hereunder and (ii)
three (3) Business Days prior to the date on which any subsequent
Acquisition Advance or Construction Advance is to be made, the
Construction Agent shall deliver to the Agent, (A) with respect to the
date that the first Advance is requested hereunder and each subsequent
Acquisition Advance, a Requisition as described in Section 4.2 hereof
(including without limitation a legal description of the Land, if any, a
schedule of the Improvements, if any, and a schedule of the Equipment,
if any, acquired or 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 Agent) and (B) with respect to each
Construction Advance, a Requisition identifying (among other things) the
Property to which such Construction Advance relates.
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(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 Advances and that
the Lenders make Loans to the Lessor for the payment of Transaction
Expenses, Property Acquisition Costs (in the case of an Acquisition
Advance) or other Property Costs (in the case of a Construction Advance)
that have previously been incurred or are to be incurred on the date of
such Advance to the extent such were not subject to a prior Requisition,
in each case as specified in the Requisition; provided, notwithstanding
the foregoing, the anticipated final Requisition with regard to each
Property shall be submitted for the purposes described in Section 5.11.
(c) Subject to the satisfaction of the conditions precedent
set forth in Sections 5.3 or 5.4 (except that satisfaction of such
conditions precedent shall not be required to fund any Lessor Funding
Obligation payable in favor of or for the benefit of one or more
Financing Parties or Persons, excluding the Lessee and the Construction
Agent, working on behalf of one or more Financing Parties), as
applicable, on each Property Closing Date or the date on which the
Construction Advance is to be made, as applicable, (i) the Lenders shall
make Loans based on their respective Lender Commitments to the Lessor in
an aggregate amount equal to (A) ninety-five and one-half percent
(95.5%) of (B)(1) the Requested Funds specified in any Requisition plus
(2) any portion of the Lessor Funding Obligations not otherwise included
in such Requisition, unless any such funding of any Lessor Funding
Obligation not otherwise included in such Requisition is declined in
writing by the Majority Secured Parties (such decision to be in the sole
discretion of the Majority Secured Parties) ratably between the Tranche
A Lenders and the Tranche B Lenders with the Tranche A Lenders funding
eighty-six and thirty-one one hundredths percent (86.31%) of the sum of
the Requested Funds plus such portion of the Lessor Funding Obligations
not otherwise included in the applicable Requisition and the Tranche B
Lenders funding nine and nineteen one-hundredths percent (9.19%) of the
Requested Funds plus such portion of the Lessor Funding Obligations not
otherwise included in the applicable Requisition), up to an aggregate
principal amount equal to the aggregate of the Available Commitments,
(ii) the Holders shall make Holder Advances based on their respective
Holder Commitments in an aggregate amount equal to (A) four and one-half
percent (4.5%) of (B)(1) the Requested Funds specified in such
Requisition plus (2) any portion of the Lessor Funding Obligations not
otherwise included in such Requisition, unless any such funding of any
Lessor Funding Obligation not otherwise included in such Requisition is
declined in writing by the Majority Secured Parties (such decision to be
in the sole discretion of the Majority Secured Parties), up to the
aggregate advanced amount equal to the aggregate of the Available Holder
Commitments and (iii) the total amount of such Loans and Holder Advances
made on such date shall (x) be used by the Lessor to pay Property Costs
including Transaction Expenses within three (3) Business Days of the
receipt by the Lessor of such Advance or (y) be advanced by the Lessor
on the date of such Advance to the Construction Agent or the Lessee to
pay Property Costs, as applicable. Notwithstanding that the Operative
Agreements state that Advances shall be directed to the Lessor, each
Advance shall in fact be directed to the Construction Agent (for the
benefit of the Lessor) and applied by the Construction Agent
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(for the benefit of the Lessor) pursuant to the Operative Agreements.
(d) With respect to an Advance obtained by the Lessor to pay
for Property Costs (including, without limitation, the Lessor Funding
Obligations) and not expended by the Lessor for such purpose on the date
of such Advance, such amounts shall be held by the Agent until the
applicable closing date or payment date or, if such closing date or
payment date does not occur within three (3) Business Days of the date
of the Agent's receipt of such Advance, shall be applied regarding the
applicable Advance to repay the Lenders and the Holders and, subject to
the terms hereof, and of the Credit Agreement and the Trust Agreement,
shall remain available for future Advances; provided, the foregoing is
subject to the provisions of Section 5.11. Any such amounts held by the
Agent (including amounts described in Section 5.11) shall be subject to
the lien of the Security Agreement and shall accrue interest and Holder
Yield from the date any such amount is advanced to the Agent.
(e) All Operative Agreements which are to be delivered to the
Lessor, the Agent, the Lenders or the Holders shall be delivered to the
Agent, on behalf of the Lessor, the Agent, the Lenders or the Holders,
and such items (except for Notes, Certificates, Bills of Sale, the
Ground Leases and chattel paper originals, with respect to which in each
case there shall be only one original) shall be delivered with originals
sufficient for the Lessor, the Agent, each Lender and each Holder. All
other items which are to be delivered to the Lessor, the Agent, the
Lenders or the Holders shall be delivered to the Agent, on behalf of the
Lessor, the Agent, the Lenders or the Holders, and such other items
shall be held by the Agent. To the extent any such other items are
requested in writing from time to time by the Lessor, any Lender or any
Holder, the Agent shall provide a copy of such item to the party
requesting it.
(f) Notwithstanding the completion of any closing under this
Agreement pursuant to Sections 5.3 or 5.4, but subject to Section 5.12,
each condition precedent in connection with any such closing may be
subsequently enforced by the Agent (unless such has been expressly
waived in writing by the Agent).
5.3. CONDITIONS PRECEDENT FOR THE LESSOR, THE AGENT, THE LENDERS AND
THE HOLDERS RELATING TO THE INITIAL CLOSING DATE AND THE ADVANCE
OF FUNDS FOR THE ACQUISITION OF A PROPERTY.
The obligations (i) on the Initial Closing Date of the Lessor, the
Agent, the Lenders and the Holders to enter into the transactions contemplated
by this Agreement, including without limitation the obligation to execute and
deliver the applicable Operative Agreements to which each is a party on the
Initial Closing Date, (ii) on the Initial Closing Date of the Holders to make
Holder Advances, and of the Lenders to make Loans in order to pay the Lessor
Funding Obligations payable on the Initial Closing Date and (iii) on a Property
Closing Date for the purpose of providing funds to the Lessor necessary to pay
the Lessor Funding Obligations and to acquire or ground lease a Property payable
on such Property Closing Date (an "Acquisition Advance"), in each case (with
regard to the foregoing Sections 5.3(i), (ii) and (iii)) are subject to the
satisfaction or waiver of the following conditions precedent on or prior to the
Initial Closing
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Date or the applicable Property Closing Date, as the case may be (except that
satisfaction of such conditions precedent shall not be required to fund any
Lessor Funding Obligation payable in favor of or for the benefit of one or more
Financing Parties or Persons, excluding the Lessee and the Construction Agent,
working on behalf of one or more Financing Parties; provided, notwithstanding
the foregoing, the Majority Secured Parties may elect, in the sole discretion of
the Majority Secured Parties, not to fund any Lessor Funding Obligation if and
to the extent all conditions precedent are not satisfied for such funding);
provided that, to the extent such conditions precedent require the delivery of
any agreement, certificate, instrument, memorandum, legal or other opinion,
appraisal, commitment, title insurance commitment, lien report or any other
document of any kind or type, such shall be in form and substance satisfactory
to the Agent, in its reasonable discretion; and provided further that,
notwithstanding the foregoing, the obligations of each party shall not be
subject to any conditions contained in this Section 5.3 which are required to be
performed by such party:
(a) the correctness of the representations and warranties of
the parties to this Agreement contained herein, in each of the other
Operative Agreements and each certificate delivered pursuant to any
Operative Agreement on each such date;
(b) the performance by the parties to this Agreement of their
respective agreements contained herein and in the other Operative
Agreements to be performed by them on or prior to each such date;
(c) the Agent shall have received a fully executed counterpart
copy of the applicable Requisition, appropriately completed;
(d) title to each such Property shall conform to the
representations and warranties set forth in Section 6.2(l) hereof;
(e) the Construction Agent shall have delivered to the Agent
a good standing certificate for the Construction Agent in the state
where each such Property is located, the Deed with respect to the Land
and existing Improvements (if any), a copy of the Ground Lease (if any),
and a copy of the Xxxx of Sale with respect to the Equipment (if any),
respecting such of the foregoing as are being acquired or ground leased
on each such date with the proceeds of the Loans and Holder Advances or
which have been previously acquired or ground leased with the proceeds
of the Loans and Holder Advances and such Land, existing Improvements
(if any) and Equipment (if any) shall be located in an Approved State;
(f) 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 will
have occurred after giving effect to the Advance requested by each such
Requisition;
(g) as of the Property Closing Date for each Property, the
Construction Agent shall have delivered to the Agent title insurance
commitments to issue policies respecting each such Property in an amount
at least equal to (i) the maximum total Property Cost
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indicated by the Construction Budget referenced in Section 5.3(r) or
(ii) with respect to any Existing Structure or Property for which
construction is complete as of such date, the amount of the Acquisition
Advance requested therefor in the applicable Requisition, in each case
with such endorsements as the Agent deems necessary, provided same are
obtainable in the applicable state, in favor of the Lessor and the Agent
from a title insurance company reasonably acceptable to the Agent, but
only with such title exceptions thereto as are acceptable to the Agent;
(h) the Construction Agent shall have delivered to the Agent
an environmental site assessment respecting each such Property prepared
by an independent recognized professional acceptable to the Agent and
evidencing no pre-existing environmental condition with respect to which
there is more than a remote risk of loss;
(i) the Construction Agent shall have delivered to the Agent
a survey (with a flood hazard certification) respecting each such
Property prepared (i) by an independent recognized professional
acceptable to the Agent and (ii) in a manner and including such
information as is reasonably required by the Agent;
(j) unless such an opinion has previously been delivered with
respect to a particular state, the Construction Agent shall have caused
to be delivered to the Agent a legal opinion in such form as is
acceptable to the Agent with respect to local law real property issues
respecting the state in which each such Property is located addressed to
the Lessor, the Agent, the Lenders and the Holders, from counsel located
in the state where each such Property is located, prepared by counsel
acceptable to the Agent and a separate flood hazard certificate
respecting each such Property prepared by an independent recognized
professional acceptable to the Agent;
(k) the Agent shall be satisfied that the acquisition, ground
leasing and/or holding of each such Property and the execution of the
Mortgage Instrument and the other Security Documents will not result in
a Material Adverse Effect;
(l) the Construction Agent shall have delivered to the Agent
invoices (or copies thereof) for, or other reasonably satisfactory
evidence of, the various Transaction Expenses and other fees, expenses
and disbursements referenced in Section 7 of this Agreement, as
appropriate;
(m) the Construction Agent shall have caused to be delivered
to the Agent a Mortgage Instrument (in such form as is acceptable to the
Agent, with revisions as necessary to conform to applicable state law),
Lessor Financing Statements and Lender Financing Statements respecting
each such Property, all fully executed and in recordable form;
(n) the Lessee shall have delivered to the Agent with respect
to each such Property a Lease Supplement and a memorandum (or short form
lease) regarding the Lease and such Lease Supplement (such memorandum or
short form lease to be in the form attached to the Lease as Exhibit B or
in such other form as is acceptable to the
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Agent, with modifications as necessary to conform to applicable state
law, and in form suitable for recording);
(o) with respect to each Acquisition Advance, the sum of the
Available Commitment plus the Available Holder Commitment (after
deducting the Unfunded Amount, if any, and after giving effect to the
Acquisition Advance) will be sufficient to pay all amounts payable
therefrom;
(p) if any such Property is subject to a Ground Lease, the
Construction Agent shall have caused a lease memorandum (or short form
lease) to be delivered to the Agent for such Ground Lease and, if
requested by the Agent, a landlord waiver and a mortgagee waiver (in
each case, in such form as is acceptable to the Agent);
(q) counsel (acceptable to the Agent) for the ground lessor
of each such Property subject to a Ground Lease shall have issued to the
Lessor, the Agent, the Lenders and the Holders, its opinion;
(r) the Construction Agent shall have delivered to the Agent
a preliminary Construction Budget for each such Property, if applicable;
(s) the Construction Agent shall have provided evidence to
the Agent of insurance with respect to each such Property as provided in
the Lease;
(t) as of the Property Closing Date regarding each Property,
the Construction Agent shall have caused an Appraisal or Appraisals, as
the case may be, regarding each such Property (showing an aggregate "as
built" appraised value for each such Property equal to at least 80% of
the budgeted Property Cost for such Property) to be provided to the
Agent from an appraiser selected by the Agent;
(u) the Construction Agent shall cause (i) Uniform Commercial
Code lien searches, tax lien searches and judgment lien searches
regarding the Lessee to be conducted (and copies thereof to be delivered
to the Agent) in such jurisdictions as determined by the Agent by a
nationally recognized search company acceptable to the Agent and (ii)
the liens referenced in such lien searches which are objectionable to
the Agent to be either removed or otherwise handled in a manner
satisfactory to the Agent;
(v) all taxes, fees and other charges in connection with the
execution, delivery, recording, filing and registration of the Operative
Agreements and/or documents related thereto shall have been paid or
provisions for such payment shall have been made to the satisfaction of
the Agent;
(w) in the opinion of the Agent and its respective counsel,
the transactions contemplated by the Operative Agreements do not and
will not subject the Lessor, the Lenders, the Agent or the Holders to
any adverse regulatory prohibitions, constraints, penalties or fines;
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(x) each of the Operative Agreements to be entered into on
such date shall have been duly authorized, executed and delivered by the
parties thereto, and shall be in full force and effect, and the Agent
shall have received a fully executed copy of each of the Operative
Agreements;
(y) since the date of the most recent audited financial
statements of the Lessee, (as delivered pursuant to the requirements of
(i) with respect to the Initial Closing Date, Section 5.3(gg) and (ii)
with respect to any subsequent date, Section 8.3A(a)(i), there shall not
have occurred any event, condition or state of facts which shall have or
could reasonably be expected to have a Material Adverse Effect, other
than as specifically contemplated by the Operative Agreements;
(z) as of the Initial Closing Date only, the Agent shall have
received an Officer's Certificate, dated as of the Initial Closing Date,
of the Lessee in the form attached hereto as Exhibit C or in such other
form as is acceptable to the Agent 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 on and as of the
Initial Closing Date; (ii) no Default or Event of Default has occurred
and is continuing under any Operative Agreement; (iii) each Operative
Agreement to which the Lessee is a party is in full force and effect
with respect to it; and (iv) the Lessee 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;
(aa) as of the Initial Closing Date only, the Agent shall have
received (i) a certificate of the Secretary or an Assistant Secretary of
the Lessee, dated as of the Initial Closing Date, in the form attached
hereto as Exhibit D or in such other form as is acceptable to the Agent
attaching and certifying as to (1) the resolutions of its Board of
Directors duly authorizing the execution, delivery and performance by
the Lessee of each of the Operative Agreements to which it is or will be
a party, (2) its articles of incorporation certified as of a recent date
by the Secretary of State of its state of incorporation and its by-laws
and (3) the incumbency and signature of persons authorized to execute
and deliver on its behalf the Operative Agreements to which it is or
will be a party and (ii) a good standing certificate (or local
equivalent) from the appropriate office of the respective states where
the Lessee is incorporated and where the principal place of business of
the Lessee is located as to its good standing in each such state. To the
extent the Lessee is a partnership, a limited liability company or is
otherwise organized, such Person shall deliver to the Agent (in form and
substance satisfactory to the Agent) as of the Initial Closing Date (A)
a certificate regarding such Person and any corporate general partners
covering the matters described in Exhibit D and (B) a good standing
certificate, a certificate of limited partnership or a local equivalent
of either of the foregoing, as applicable;
(bb) as of the Initial Closing Date only, the Agent shall have
received an Officer's Certificate of the Lessor dated as of the Initial
Closing Date in the form attached hereto as Exhibit E or in such other
form as is acceptable to the Agent, stating
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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;
(cc) as of the Initial Closing Date only, the Agent shall have
received (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 F or in such other form as is acceptable to
the Agent, attaching and certifying as to (A) the signing resolutions
duly authorizing the execution, delivery and performance by the Lessor
of each of the Operative Agreements to which it is or will be a party,
(B) its articles of association or other equivalent charter documents
and its by-laws, as the case may be, certified as of a recent date by an
appropriate officer of the Trust Company 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 Office of the Comptroller of the Currency;
(dd) as of the Initial Closing Date only, counsel for the
Lessor acceptable to the Agent shall have issued to the Lessee, the
Holders, the Lenders and the Agent its opinion in such form as is
reasonably acceptable to the Agent;
(ee) as of the Initial Closing Date only, the Construction
Agent shall have caused to be delivered to the Agent a legal opinion in
such form as is acceptable to the Agent, addressed to the Lessor, the
Agent, the Lenders and the Holders, from counsel acceptable to the
Agent;
(ff) the Construction Agent shall have deposited Securities
Collateral into the Collateral Account in a sufficient amount so that
after giving effect to the requested Advance the Construction Agent is
in compliance with Section 5.10 hereof;
(gg) as of the Initial Closing Date only, the Lessee shall
have delivered the financial statements referred to in Section
8.3A(a)(ii) as of the most recently ended fiscal quarter of the Lessee
and preceding the Initial Closing date; and
(hh) as of the Property Closing Date regarding each Property
for which Completion has not occurred as of the Property Closing Date
therefor, the Construction Agent shall have caused to be delivered to
the Agent (subject to Section 5.12) the Construction Contract with
respect to such Property and such Construction Contract shall be a
guaranteed maximum price contract with a contractor (i) presenting a
payment and performance bond in an amount equal to the Construction
Budget for such Property and (ii) otherwise reasonably acceptable to the
Agent, the Lenders and the Holders in their sole discretion.
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5.4. CONDITIONS PRECEDENT FOR THE LESSOR, THE AGENT, THE LENDERS AND
THE HOLDERS RELATING TO THE ADVANCE OF FUNDS AFTER THE
ACQUISITION ADVANCE.
The obligations of the Holders to make Holder Advances, and the Lenders
to make Loans in connection with all requests for Advances subsequent to the
acquisition of a Property and to pay the Lessor Funding Obligations, in each
case payable on such date, are subject to the satisfaction or waiver of the
following conditions precedent on the applicable date (except that satisfaction
of such conditions precedent shall not be required to fund any Lessor Funding
Obligation payable in favor of or for the benefit of one or more Financing
Parties or Persons, excluding the Lessee and the Construction Agent, working on
behalf of one or more Financing Parties; provided that, notwithstanding the
foregoing, the Majority Secured parties may elect, in the sole discretion of the
Majority Secured Parties, not to fund any Lessor Funding Obligation if and to
the extent all conditions precedent are not satisfied for such funding);
provided that, to the extent such conditions precedent require the delivery of
any agreement, certificate, instrument, memorandum, legal or other opinion,
appraisal, commitment, title insurance commitment, lien report or any other
document of any kind or type, such shall be in form and substance satisfactory
to the Agent, in its reasonable discretion; and provided further that,
notwithstanding the foregoing, the obligations of each party shall not be
subject to any conditions contained in this Section 5.4 which are required to be
performed by such party:
(a) the correctness on such date of the representations and
warranties of the parties to this Agreement contained herein, in each of
the other Operative Agreements and in each certificate delivered
pursuant to any Operative Agreement;
(b) the performance by the parties to this Agreement of their
respective agreements contained herein and in the other Operative
Agreements to be performed by them on or prior to each such date;
(c) the Agent shall have received a fully executed
counterpart of the Requisition, appropriately completed;
(d) based upon the applicable Construction Budget which shall
satisfy the requirements of this Agreement and the Agency Agreement, the
Available Commitments and the Available Holder Commitment (after
deducting the Unfunded Amount) will be sufficient to complete the
Improvements;
(e) 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 will
have occurred after giving effect to the Construction Advance requested
by the applicable Requisition;
(f) the title insurance policy delivered in connection with
the requirements of Section 5.3(g) shall provide for (or shall be
endorsed to provide for) insurance in an amount at least equal to (i)
the maximum total Property Cost indicated by the Construction Budget
referred to in subparagraph (d) above or (ii) with respect to an
Existing Structure or Property for which construction is complete as of
such date, the
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amount provided therefor in Section 5.3(g), and there shall be no change
in record title or the exceptions thereto objectionable to the Agent;
(g) subject to Section 5.12, the Construction Agent shall
have delivered to the Agent copies of the Plans and Specifications for
the applicable Improvements;
(h) the Construction Agent shall have delivered to the Agent
invoices (or copies thereof) for, or other reasonably satisfactory
evidence of, any Lessor Funding Obligations that the Construction Agent
desires to be paid with the Advance;
(i) the Construction Agent shall have delivered, or caused to
be delivered to the Agent, invoices, Bills of Sale or other documents
acceptable to the Agent, in each case with regard to any Equipment or
other components of such Property then being acquired with the proceeds
of the Loans and Holder Advances and naming the Lessor as purchaser and
transferee;
(j) 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 provisions for such payment shall
have been made to the satisfaction of the Agent;
(k) since the date of the most recent audited financial
statements of the Lessee (as delivered pursuant to the requirements of
Section 8.3A(a)(i)), there shall not have occurred any event, condition
or state of facts which shall have or could reasonably be expected to
have a Material Adverse Effect, other than as specifically contemplated
by the Operative Agreements; and
(l) in the opinion of the Agent and its counsel, the
transactions contemplated by the Operative Agreements do not and will
not subject the Lessor, the Lenders, the Agent or the Holders to any
adverse regulatory prohibitions, constraints, penalties or fines.
(m) the Construction Agent shall have deposited Securities
Collateral into the Collateral Account in a sufficient amount so that
after giving effect to the requested Advance the Construction Agent is
in compliance with Section 5.10 hereof.
(n) prior to any Construction Advance for a Property for
which Completion has not occurred as of the Property Closing Date
therefor, the Construction Agent shall have caused to be delivered to
the Agent (subject to Section 5.12) the Construction Contract with
respect to such Property and such Construction Contract shall be a
guaranteed maximum price contract with a contractor (i) presenting a
payment and performance bond in an amount equal to the Construction
Budget for such Property and (ii) otherwise reasonably acceptable to the
Agent, the Lenders and the Holders in their sole discretion.
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5.5. ADDITIONAL REPORTING AND DELIVERY REQUIREMENTS ON COMPLETION DATE
AND ON PUNCH LIST COMPLETION DATE.
(a) On or prior to the Completion Date for each Property, the
Construction Agent shall deliver to the Agent an Officer's Certificate
in the form attached hereto as Exhibit I-1 or in such other form as is
acceptable to the Agent specifying (i) the address for such Property,
(ii) the Completion Date for such Property, (iii) the aggregate Property
Cost for such Property, (iv) detailed, itemized documentation supporting
the asserted Property Cost figures and (v) that all representations and
warranties of the Construction Agent and Lessee in each of the Operative
Agreements and each certificate delivered pursuant thereto are true and
correct as of the Completion Date. The Agent shall have the right to
contest the information contained in such Officer's Certificate.
(b) On or prior to the Punch List Completion Date for each
Property, the Construction Agent shall deliver to the Agent an Officer's
Certificate in the form attached hereto as Exhibit I-2 or in such other
form as is acceptable to the Agent specifying (i) the address for such
Property, (ii) the Punch List Completion Date for such Property, (iii)
the aggregate Property Cost for such Property, (iv) detailed, itemized
documentation supporting the asserted Property Cost figures (regarding
such components of Property Cost not previously referenced in the
Officer's Certificate delivered pursuant to Section 5.5(a)) and (v) that
all representations and warranties of the Construction Agent and Lessee
in each of the Operative Agreements and each certificate delivered
pursuant thereto are true and correct as of the Punch List Completion
Date. The Agent shall have the right to contest the information
contained in such Officer's Certificate. Furthermore, on or prior to the
Punch List Completion Date for each Property, the Construction Agent
shall deliver or cause to be delivered to the Agent (unless previously
delivered to the Agent) originals of the following, each of which shall
be in form and substance acceptable to the Agent, in its reasonable
discretion: (w) to the extent obtainable in the state where such
Property is located, a title insurance endorsement regarding the title
insurance policy delivered in connection with the requirements of
Section 5.3(g), but only to the extent such endorsement is necessary to
provide for insurance in an amount at least equal to eighty percent
(80%) of the maximum total Property Cost and, if endorsed, the
endorsement shall not include a title change or exception objectionable
to the Agent in its reasonable discretion; (x) an as-built survey for
such Property, (y) insurance certificates respecting such Property as
required hereunder and under the Lease Agreement, and (z) if requested
by the Agent, amendments to the Lessor Financing Statements executed by
the appropriate parties. In addition, on the Punch List Completion Date
for such Property the Construction Agent covenants and agrees that the
recording fees, documentary stamp taxes or similar amounts required to
be paid in connection with the related Mortgage Instrument shall be paid
in an amount required by applicable law, subject, however, to the
obligations of the Lenders and the Holders to fund such costs to the
extent required pursuant to Section 7.1.
5.6. THE CONSTRUCTION AGENT DELIVERY OF CONSTRUCTION BUDGET
MODIFICATIONS.
The Construction Agent covenants and agrees to deliver to the Agent each
month
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notification of any modification to any Construction Budget regarding any
Property if such modification, when aggregated with all other modifications to
such Construction Budget, evidences a cost increase of $100,000 or more or with
respect to which the Available Commitments and the Available Holder Commitments
(after deducting the Unfunded Amount) will be insufficient to complete the
Improvements in accordance with the terms of the Agency Agreement); provided no
Construction Budget may be increased unless (a) the title insurance policies
referenced in Section 5.3(g) are also modified or endorsed, if necessary, to
provide for insurance in an amount that satisfies the requirements of Section
5.4(f) of this Agreement and (b) after giving effect to any such amendment, the
Construction Budget remains in compliance with the requirements of Section
5.4(d) of this Agreement.
5.7. RESTRICTIONS ON LIENS.
On each Property Closing Date, the Construction Agent shall cause each
Property acquired by the Lessor on such date to be free and clear of all Liens
except those referenced in Sections 6.2(r)(i) and 6.2(r)(ii). On each date a
Property is either sold to a third party in accordance with the terms of the
Operative Agreements or, pursuant to Section 22.1(a) of the Lease Agreement,
retained by the Lessor, the Lessee shall cause such Property to be free and
clear of all Liens (other than Lessor Liens, such other Liens that are expressly
set forth as title exceptions on the title commitment issued under Section
5.3(g) with respect to such Property, to the extent such title commitment has
been approved by the Agent, Liens incurred in accordance with Section 8.5 and
inchoate tax Liens subject to pro ration where the Lessee is responsible for
such tax Liens prior to the date of such sale to a third party or retention by
the Lessor).
5.8. PAYMENTS.
All payments of principal, interest, Holder Advances, Holder Yield and
other amounts to be made by the Construction Agent or the Lessee under this
Agreement or any other Operative Agreements (excluding Excepted Payments which
shall be paid directly to the party to whom such payments are owed) shall be
made to the Agent at the office designated by the Agent from time to time in
Dollars and in immediately available funds, without setoff, deduction, or
counterclaim. Subject to the definition of "Interest Period" in Appendix A
attached hereto, whenever any payment under this Agreement or any other
Operative Agreements shall be stated to be due on a day that is not a Business
Day, such payment may be made on the next succeeding Business Day, and such
extension of time in such case shall be included in the computation of interest,
Holder Yield and fees payable pursuant to the Operative Agreements, as
applicable and as the case may be.
5.9. UNILATERAL RIGHT TO INCREASE THE HOLDER COMMITMENTS AND THE
LENDER COMMITMENTS.
Notwithstanding any other provision of any Operative Agreement or any
objection by any Person (including without limitation any objection by the
Lessee), (a) after an increase in the Holder Commitments has been approved by
the Majority Secured Parties, each Holder, in its sole discretion, may
unilaterally elect to increase its Holder Commitment in order to fund the Lessor
Funding Obligations and (b) after an increase in the Lender Commitments has been
approved by
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the Majority Secured Parties, each Lender, in its sole discretion, may
unilaterally elect to increase its Lender Commitment in order to fund the Lessor
Funding Obligations.
5.10 COLLATERAL ACCOUNT.
(a) General. On the date of each Advance, the Lessee shall
pledge to the Agent as security for the obligations of the Lessee and
the Construction Agent under the Operative Agreements, by delivery to
the Securities Intermediary or by otherwise depositing into the
Collateral Account, Securities Collateral in an amount such that the
Margin Base after such pledge or deposit on such date is equal to or
greater than the aggregate Property Cost for all Properties.
(b) Maintenance of Borrowing Base. On and as of the last day
of each fiscal quarter of the Lessee, the Lessee shall maintain Class A
Collateral represented by U.S. dollar denominated certificates of
deposit of Bank of America, N.A. in accordance with the standard
described in subsection (ii) below and shall furnish to the Agent an
Officer's Certificate in the form of Exhibit L: (i) setting forth (A)
the Lessee's calculation, in reasonable detail, of the Borrowing Base as
of such date and (B) the Class A Collateral Percentage as of such date
and (ii) confirming that, as of such date, (A) prior to the Construction
Period Termination Date, the amount of Class A Collateral represented by
U.S. dollar denominated certificates of deposit of Bank of America, N.A.
is not in excess of the Property Cost of all the Properties for which
the Rent Commencement Date has occurred at such time and (B) after the
Construction Period Termination Date, the amount of Class A Collateral
represented by U.S. dollar denominated certificates of deposit of Bank
of America, N.A. is greater than or equal to $5,000,000.
(c) Maintenance of Margin Base.
(i) On each Business Day, the Agent shall calculate
the Margin Base, and shall inform the Lessee if, on any such
day, the Margin Base is less than the aggregate Property Cost
for all Properties.
(ii) If, on any date referred to in paragraph (i) of
this subsection (c), the Agent shall inform the Lessee that the
Margin Base is less than the aggregate Property Cost for all
Properties, then the Lessee shall, within five Business Days,
pledge to the Agent, by delivery to the Securities Intermediary
or by otherwise depositing into the Collateral Account,
additional Securities Collateral in an amount such that the
Margin Base after such pledge or deposit on such date is equal to
or greater than the aggregate Property Cost for all Properties.
5.11 FUNDING OF ESCROW ACCOUNT FOR PUNCH LIST ITEMS.
Prior to the submission by the Construction Agent of the Officer's
Certificate referenced in Section 5.5(a) regarding Completion of a given
Property, the Construction Agent shall submit a Requisition for a Construction
Advance to cover all anticipated punch list items necessary for Final Completion
of the applicable Property. To the extent the conditions precedent set forth in
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Section 5.4 are satisfied or waived and prior to the termination of the Lender
Commitments and the Holder Commitments for the applicable Property, the
above-described Construction Advance shall be funded in accordance with the
terms of the Operative Agreements into an escrow account in the name of and
under the control of the Agent. Neither the Lessor, the Construction Agent nor
the Lessee shall have any interest in the escrow account, its contents or any
proceeds therefrom.
Thereafter, the Construction Agent shall request funding for punch list
items regarding the applicable Property pursuant to Requisitions describing the
punch list items and the amounts payable therefor. The Agent shall advance
amounts from the escrow account regarding such funding requests to the extent
the conditions precedent set forth in Section 5.4 are satisfied or waived at
that time.
All amounts deposited in the escrow account from time to time shall
constitute Advances for purposes of determining the Property Cost of the
applicable Property (the "Prior Property") identified in the relevant
Requisition from the date of such Advance by the Lenders and the Holders for
deposit into the escrow account; provided, amounts deposited in the escrow
account may be thereafter counted as Property Cost of another Property if (a)
the Prior Property reaches Final Completion in accordance with the terms of the
Operative Agreements, (b) there remains a positive balance in the escrow account
regarding the Prior Property and (c) prior to the occurrence and continuation of
any Default or Event of Default, the Construction Agent notifies the Agent in
writing to re-allocate such positive balance in the escrow account from the
Prior Property to a different Property which has not reached Completion at such
time.
Upon the Payment Date immediately following the termination or
expiration of the Lender Commitments, the remaining balance in the escrow
account shall be allocated by the Agent in accordance with Section 8.7(b)(iv)
and returned to the Lenders and the Holders in accordance with Section 2.6(c) of
the Credit Agreement and Section 3.3 of the Trust Agreement, respectively, and
the amounts so returned shall reduce, in each case regarding the last Property
to reach Final Completion, the Property Cost, the outstanding balance of Loans
and the outstanding balance of Holder Amounts.
5.12 DELAYED DELIVERY OF CONSTRUCTION CONTRACTS AND PLANS AND
SPECIFICATIONS.
Respecting the Planned Office Building, the Planned Vivarium and the
Planned Parking Facility, none of the Financing Parties will require
satisfaction of the conditions precedent set forth in (a) Section 5.3(hh) prior
to the Acquisition Advance for any such Structure as a Property or (b) Section
5.4(g) prior to the initial Construction Advances for site preparation only for
any such Property; provided that, notwithstanding the foregoing, such
Construction Advances in accordance with this Section 5.12 shall be limited in
the aggregate for all Properties to $750,000 and the provisions of this Section
5.12 shall not preclude the Agent from subsequently enforcing the provisions of
Sections 5.3(hh) and 5.4(g) regarding the Planned Office Building, the Planned
Vivarium and the Planned Parking Facility to the extent such Structures become
Properties.
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5.13 EXTENSION OF CONSTRUCTION PERIOD TERMINATION DATE.
Unless a Default or an Event of Default shall have occurred or be
continuing, the Construction Agent may in its discretion extend the Construction
Period Termination Date for up to an additional twelve (12) months by giving
written notice of such extension to the Lessor and the Agent.
5.14 PURCHASE AND SALE RIGHTS AND OBLIGATIONS TO RELINQUISH INTEREST
IN PROPERTIES.
Notwithstanding anything to the contrary contained in the Operative
Agreements, each purchase and sale right or obligation to relinquish any right,
title or interest pursuant to the Operative Agreements (including without
limitation pursuant to Sections 17.2 through 17.11 and Articles XVI, XIX, XX and
XXII of the Lease and Sections 2.1 and 5.3 of the Agency Agreement), in each
case of the Lessee, the Construction Agent, Lexicon or any of their designees
regarding one or more Properties shall be exercised or imposed with respect to
all, but not less than all, the Properties. If any such right is not so
exercised or any such obligation to relinquish is not so satisfied (in each case
with respect to all, but not less than all, the Properties) then such attempt to
purchase or sale fewer than all the Properties and such attempt to relinquish
its right, title and interest with respect to fewer than all the Properties
shall be null and void, and Lexicon shall be deemed to have agreed to purchase
all, but not less than all, the Properties for the aggregate Termination Value
on a Business Day specified by the Agent that is not earlier than fifteen (15)
or later than sixty (60) days after delivery of notice from the Agent to Lexicon
regarding this matter.
5.15 LIMITED OBLIGATIONS REGARDING THE PURCHASE AGREEMENTS.
The Construction Agent and the Lessee covenant and agree that after the
Property Closing Date regarding the Property referenced in either of the
Purchase Agreements (a) notwithstanding the submission of any Requisition or
other request by the Construction Agent or the Lessee to the contrary, the
Financing Parties shall have no obligation to make any payment pursuant to or in
connection with either of the Purchase Agreements or any documents related
thereto and (b) the only obligations of, or limitations imposed on, any
Financing Party pursuant to or in connection with either of the Purchase
Agreements or any documents related thereto shall be the obligations or
limitations set forth in Sections 2.01 and 2.02 of the Larger Tract Purchase
Agreement or in Sections 2.01, 2.03, 2.04, 3.02, 3.03(a) and (only to the extent
Section 3.04 relates to Section 3.03(a)) 3.04 of the Smaller Tract Purchase
Agreement. The Construction Agent and the Lessee further covenant and agree that
(x) the Lessee shall perform any and all other obligations and be responsible
for any and all other liabilities in connection with either of the Purchase
Agreements and any documents related thereto except for the obligations
referenced in the foregoing subsection (b) of this Section 5.15 and (y) neither
the Construction Agent nor the Lessee shall cause or permit any amendment or
modification of either of the Purchase Agreements or any documents related
thereto without the prior written consent of the Lessor and the Agent.
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5.16 LIMITATION ON CD COLLATERAL.
Prior to the Construction Period Termination Date, the Lessee shall not
permit the CD Collateral to be in an amount in excess of the aggregate Property
Cost regarding Properties for which the Rent Commencement Date has occurred at
such time.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
6.1. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.
Effective as of the Initial Closing Date, the date of each Advance, the
Rent Commencement Date and the Punch List Completion Date, the Trust Company in
its individual capacity and as the Borrower, as indicated, represents and
warrants to each of the other parties hereto as follows, provided, that the
representations in the following paragraphs (h), (j) and (k) are made solely in
its capacity as the Borrower:
(a) It is a national banking association and is duly
organized and validly existing and in good standing under the laws of
the United States of America and has the power and authority to enter
into and perform its obligations under the Trust Agreement and (assuming
due authorization, execution and delivery of the Trust Agreement by the
Holders) has the corporate and trust power and authority to act as the
Owner Trustee and to enter into and perform the obligations under each
of the other Operative Agreements to which the Trust Company or the
Owner Trustee, as the case may be, is or will be a party and each other
agreement, instrument and document to be executed and delivered by it on
or before such date in connection with or as contemplated by each such
Operative Agreement to which the Trust Company or the Owner Trustee, as
the case may be, is or will be a party;
(b) The execution, delivery and performance of each Operative
Agreement to which it is or will be a party, either in its individual
capacity or (assuming due authorization, execution and delivery of the
Trust Agreement by the Holders) as the Owner Trustee, as the case may
be, has been duly authorized by all necessary action on its part and
neither the execution and delivery thereof, nor the consummation of the
transactions contemplated thereby, nor compliance by it with any of the
terms and provisions thereof (i) does or will require any approval or
consent of any trustee or holders of any of its indebtedness or
obligations, (ii) does or will contravene any Legal Requirement relating
to its banking or trust powers, (iii) does or will contravene or result
in any breach of or constitute any default under, or result in the
creation of any Lien upon any of its property under, (A) its charter or
by-laws, or (B) any indenture, mortgage, chattel mortgage, deed of
trust, conditional sales contract, bank loan or credit agreement or
other agreement or instrument to which it is a party or by which it or
its properties may be bound or affected, which contravention, breach,
default or Lien under clause (B) would materially and adversely affect
its ability, in its individual capacity or as the Owner Trustee, to
perform its obligations under the Operative Agreements to which it is a
party or (iv) does or will require any Governmental Action by any
Governmental
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Authority regulating its banking or trust powers;
(c) The Trust Agreement and, assuming the Trust Agreement is
the legal, valid and binding obligation of the Holders, each other
Operative Agreement to which the Trust Company or the Owner Trustee, as
the case may be, is or will be a party have been, or on or before such
Closing Date will be, duly executed and delivered by the Trust Company
or the Owner Trustee, as the case may be, and the Trust Agreement and
each such other Operative Agreement to which the Trust Company or the
Owner Trustee, as the case may be, is a party constitutes, or upon
execution and delivery will constitute, a legal, valid and binding
obligation enforceable against the Trust Company or the Owner Trustee,
as the case may be, in accordance with the terms thereof;
(d) There is no action or proceeding pending or, to its
knowledge, threatened to which it is or will be a party, either in its
individual capacity or as the Owner Trustee, before any Governmental
Authority that, if adversely determined, would materially and adversely
affect its ability, in its individual capacity or as the Owner Trustee,
to perform its obligations under the Operative Agreements to which it is
a party or would question the validity or enforceability of any of the
Operative Agreements to which it is or will become a party;
(e) It, either in its individual capacity or as the Owner
Trustee, has not assigned or transferred any of its right, title or
interest in or under the Lease, the Agency Agreement or its interest in
any Property or any portion thereof, except in accordance with the
Operative Agreements;
(f) No Default or Event of Default under the Operative
Agreements attributable to it has occurred and is continuing;
(g) Except as otherwise contemplated in the Operative
Agreements, the proceeds of the Loans and Holder Advances shall not be
applied by the Owner Trustee, either in its individual capacity or as
the Owner Trustee, for any purpose other than the purchase and/or lease
of the Properties, the acquisition, installation and testing of the
Equipment, the construction of Improvements and the payment of the
Lessor Funding Obligations, in each case which accrue prior to the Rent
Commencement Date with respect to a particular Property;
(h) Neither the Owner Trustee nor any Person authorized by
the Owner Trustee to act on its behalf has offered or sold any interest
in the Trust Estate or the Notes except as permitted under the Operative
Agreements, or in any similar security relating to a Property, or in any
security the offering of which for the purposes of the Securities Act
would be deemed to be part of the same offering as the offering of the
aforementioned securities to, or solicited any offer to acquire any of
the same from, any Person other than, in the case of the Notes, the
Agent, and neither the Owner Trustee nor any Person authorized by the
Owner Trustee to act on its behalf will take any action which would
subject, as a direct result of such action alone, the issuance or sale
of any interest in the Trust Estate or the Notes to the provisions of
Section 5 of the Securities Act or require
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the qualification of any Operative Agreement under the Trust Indenture
Act of 1939, as amended;
(i) The Owner Trustee's principal place of business, chief
executive office and office where the documents, accounts and records
relating to the transactions contemplated by this Agreement and each
other Operative Agreement are kept are located at 00 Xxxxx Xxxx Xxxxxx,
Xxxx Xxxx Xxxx, Xxxx 00000;
(j) The Owner Trustee is not engaged principally in, and does
not have as one (1) of its important activities, the business of
extending credit for the purpose of purchasing or carrying any margin
stock (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System of the United States), and no part of the
proceeds of the Loans or the Holder Advances will be used by it to
purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any such margin stock or for any
purpose that violates, or is inconsistent with, the provisions of
Regulations T, U, or X of the Board of Governors of the Federal Reserve
System of the United States;
(k) The Owner Trustee is not an "investment company" or a
company controlled by an "investment company" within the meaning of the
Investment Company Act;
(l) Each Property is free and clear of all Lessor Liens
attributable to the Owner Trustee, either in its individual capacity or
as the Owner Trustee; and
(m) The Owner Trustee, in its trust capacity, is not a party
to any documents, instruments or agreements other than the Operative
Agreements executed by the Owner Trustee, in its trust capacity.
6.2. REPRESENTATIONS AND WARRANTIES OF THE CONSTRUCTION AGENT AND THE
LESSEE.
Effective as of the Initial Closing Date, the date of each Advance, the
Rent Commencement Date and the Punch List Completion Date, the Construction
Agent and the Lessee represent and warrant to each of the other parties hereto
that:
(a) [reserved];
(b) (i) Each of the Construction Agent and the Lessee is
a corporation duly organized and validly existing and in good standing
under the laws of the State of Delaware and has the power and authority
to enter into and perform its obligations under the Operative Agreements
to which it is a party and has the corporate power and authority to act
as the Construction Agent or the Lessee, as the case may be, and to
enter into and perform the obligations under each of the other Operative
Agreements to which it is a party or will be a party and each other
agreement, instrument and document to be executed and delivered by it on
or before such date in connection with or as contemplated by each such
Operative Agreement to which it is a party or will be a party;
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(ii) The execution and delivery by each of the
Construction Agent and the Lessee of this Agreement and the other
applicable Operative Agreements as of such date and the performance by
each of the Construction Agent and the Lessee of its respective
obligations under this Agreement and the other applicable Operative
Agreements are within the corporate, partnership or limited liability
company (as the case may be) powers of each of the Construction Agent
and the Lessee, have been duly authorized by all necessary corporate,
partnership or limited liability company (as the case may be) action on
the part of each of the Construction Agent and the Lessee (including
without limitation any necessary shareholder action), have been duly
executed and delivered, have received all necessary governmental
approval, and do not and will not (A) violate any Legal Requirement
which is binding on the Construction Agent, the Lessee or any of their
Subsidiaries, (B) contravene or conflict with, or result in a breach of,
any provision of the Articles of Incorporation, By-Laws or other
organizational documents of any of the Construction Agent, the Lessee or
any of their Subsidiaries or of any agreement, indenture, instrument or
other document which is binding on any of the Construction Agent, the
Lessee or any of their Subsidiaries or (C) 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 any of the Construction Agent,
the Lessee or any of their Subsidiaries;
(c) This Agreement and the other applicable Operative
Agreements to which the Construction Agent or the Lessee are parties,
executed prior to and as of such date, constitute the legal, valid and
binding obligation of the Construction Agent or the Lessee, as
applicable, enforceable against the Construction Agent or the Lessee, as
applicable, in accordance with their terms. The Construction Agent and
the Lessee have each executed the various Operative Agreements required
to be executed as of such date;
(d) There are no material actions, suits or proceedings
pending or, to our knowledge, threatened against either the Construction
Agent or the Lessee in any court or before any Governmental Authority
(nor shall any order, judgment or decree have been issued or proposed to
be issued by any Governmental Authority to set aside, restrain, enjoin
or prevent the full performance of any Operative Agreement or any
transaction contemplated thereby) that (i) concern any Property or the
Lessee's interest therein, (ii) question the validity or enforceability
of any Operative Agreement or any transaction described in the Operative
Agreements or (iii) shall have or could reasonably be expected to have a
Material Adverse Effect; provided, for purposes of disclosure, the
Construction Agent and the Lessee have described the litigation set
forth on Exhibit J;
(e) No Governmental Action by any Governmental Authority or
other authorization, registration, consent, approval, waiver, notice or
other action by, to or of any other Person pursuant to any Legal
Requirement, contract, indenture, instrument or agreement or for any
other reason is required to authorize or is required in connection with
(i) the execution, delivery or performance of any Operative Agreement,
(ii) the legality, validity, binding effect or enforceability of any
Operative Agreement, (iii) the
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acquisition, ownership, construction, completion, occupancy, operation,
leasing or subleasing of any Property or (iv) any Advance, in each case,
except those which have been obtained and are in full force and effect;
(f) 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 such Property, subject only to the
Permitted Liens, and (ii) no offset will exist with respect to any Rent
or other sums payable under the Lease;
(g) Except as otherwise contemplated by the Operative
Agreements, the Construction Agent shall not use the proceeds of any
Holder Advance or Loan for any purpose other than the purchase and/or
lease of the Properties, the acquisition, installation and testing of
the Equipment, the construction of Improvements and the payment of
amounts referenced in Sections 7.1(a), 7.1(b) and 11.8 of this
Agreement, in each case which accrue prior to the Rent Commencement Date
with respect to a particular Property;
(h) 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
furnished by or on behalf of 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, taken as a
whole, 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;
(i) The principal place of business, chief executive office
and office of the Construction Agent and the Lessee where the documents,
accounts and records relating to the transactions contemplated by this
Agreement and each other Operative Agreement are kept are located at (i)
0000 Xxxxxxxx Xxxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx Xxxxxx, Xxxxx,
00000 until Completion of the Planned Office Building and notice thereof
to the Agent and (ii) Technology Xxxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
Xxxxxx, Xxxxx, 00000 after Completion of the Planned Office Building and
notice thereof to the Agent;
(j) The representations and warranties of the Construction
Agent and the Lessee set forth in any of the Operative Agreements are
true and correct in all material respects on and as of each such date 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 exists no Default
or Event of Default under any of the Operative Agreements which is
continuing and which has not been cured within any cure period expressly
granted under the terms of the applicable Operative Agreement or
otherwise waived in accordance with the applicable Operative Agreement.
No Default or Event of Default will occur under any of the Operative
Agreements as a result of, or after giving effect to, the Advance
requested by the
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Requisition on the date of each Advance;
(k) As of each Property Closing Date, the date of each
subsequent Advance and the Rent Commencement Date only, each Property
then being financed consists of (i) unimproved Land or (ii) Land and
existing Improvements thereon which Improvements are either suitable for
occupancy at the time of acquisition or ground leasing or will be
renovated and/or modified in accordance with the terms of this
Agreement. Each Property then being financed is located at the location
set forth on the applicable Requisition, each of which is in one (1) of
the Approved States;
(l) As of each Property Closing Date, the date of each
subsequent Advance and the Rent Commencement Date only, the Lessor has
good and indefeasible fee simple title to each Property, or, if any
Property is the subject of a Ground Lease, the Lessor will have a valid
ground leasehold interest enforceable against the ground lessor of such
Property in accordance with the terms of such Ground Lease, subject only
to (i) such Liens referenced in Sections 6.2(r)(i) and 6.2(r)(ii) on the
applicable Property Closing Date and (ii) subject to Section 5.7,
Permitted Liens after the applicable Property Closing Date;
(m) As of each Property Closing Date, the date of each
subsequent Advance and the Rent Commencement Date only, no portion of
any Property is located in an area identified as a special flood hazard
area by the Federal Emergency Management Agency or other applicable
agency, or if any such Property is located in an area identified as a
special flood hazard area by the Federal Emergency Management Agency or
other applicable agency, then flood insurance has been obtained for such
Property in accordance with Section 14.2(b) of the Lease and in
accordance with the National Flood Insurance Act of 1968, as amended;
(n) As of each Property Closing Date, the date of each
subsequent Advance and the Rent Commencement Date only, each Property
complies with all Insurance Requirements and all standards of Lessee
with respect to similar properties owned by Lessee;
(o) As of each Property Closing Date, the date of each
subsequent Advance and the Rent Commencement Date only, each Property
complies with all Legal Requirements as of such date (including without
limitation all zoning and land use laws and Environmental Laws), except
to the extent that failure to comply therewith, individually or in the
aggregate, shall not have and could not reasonably be expected to have a
Material Adverse Effect;
(p) As of each Property Closing Date, the date of each
subsequent Advance and the Rent Commencement Date only, all utility
services and facilities necessary for the construction and operation of
the Improvements and the installation and operation of the Equipment
regarding each Property (including without limitation gas, electrical,
water and sewage services and facilities) are available at the
applicable Land or will be constructed prior to the Completion Date for
such Property;
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(q) As of each Property Closing Date, the date of each
subsequent Advance and the Rent Commencement Date only, acquisition,
installation and testing of the Equipment (if any) and construction of
the Improvements (if any) to such date shall have been performed in a
good and workmanlike manner, substantially in accordance with the
applicable Plans and Specifications;
(r) (i) The Security Documents create, as security for the
Obligations (as such term is defined in the Security Agreement),
valid and enforceable security interests in, and Liens on, all of
the Collateral (including, without limitation, the Collateral
Account), in favor of the Agent, for the ratable benefit of the
Secured Parties, as their respective interests appear in the
Operative Agreements, and such security interests and Liens are
subject to no Liens other than (A) as of the applicable Property
Closing Date, Liens that are expressly set forth as title
exceptions on the title commitment issued under Section 5.3(g)
with respect to the applicable Property to the extent such title
commitment has been approved by the Agent and (B) thereafter, (x)
those Liens referred to in clause (A) above to the extent the
Lessor previously accepted title for the applicable Property or
received a leasehold estate pursuant to a Ground Lease with
respect thereto and (y) Permitted Liens. Upon recordation of the
Mortgage Instrument in the real estate recording office in the
applicable Approved State identified by the Construction Agent or
the Lessee, the Lien created by the Mortgage Instrument in the
real property described therein shall be a perfected first
priority mortgage Lien on such real property (or, in the case of
a Ground Lease, on the leasehold estate under such Ground Lease)
in favor of the Agent, for the ratable benefit of the Secured
Parties, as their respective interests appear in the Operative
Agreements. To the extent that the security interests in the
portion of the Collateral comprised of personal property can be
perfected by filing in the filing offices in the applicable
Approved States or elsewhere identified by the Construction Agent
or the Lessee, upon filing of the Lender Financing Statements in
such filing offices, the security interests created by the
Security Agreement shall be perfected first priority security
interests in such personal property in favor of the Agent, for
the ratable benefit of the Secured Parties, as their respective
interests appear in the Operative Agreements;
(ii) The Lease Agreement creates, as security for the
obligations of the Lessee under the Lease Agreement, valid and
enforceable security interests in, and Liens on, each Property
leased thereunder, in favor of the Lessor, and such security
interests and Liens are subject to no other Liens other than (A)
as of the applicable Property Closing Date, Liens that are
expressly set forth as title exceptions on the title commitment
issued under Section 5.3(g) with respect to the applicable
Property to the extent such title commitment has been approved by
the Agent and (B) thereafter, (x) those Liens as described in
clause (A) above to the extent the Lessor previously accepted
title for the applicable Property or received a leasehold estate
pursuant to a Ground Lease with respect thereto and (y) Permitted
Liens. Upon recordation of the memorandum of the Lease Agreement
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and the memorandum of a Ground Lease (or, in either case, a short
form lease) in the real estate recording office in the applicable
Approved State identified by the Construction Agent or the
Lessee, the Lien created by the Lease Agreement in the real
property described therein shall be a perfected first priority
mortgage Lien (subject to the Lien of the Mortgage Instrument
referenced in Section 6.2(r)(i)) on such real property (or, in
the case of a Ground Lease, the leasehold estate under such
Ground Lease) in favor of the Agent, for the ratable benefit of
the Secured Parties, as their respective interests appear in the
Operative Agreements. To the extent that the security interests
in the portion of any Property comprised of personal property can
be perfected by the filing in the filing offices in the
applicable Approved State or elsewhere identified by the
Construction Agent or the Lessee upon filing of the Lessor
Financing Statements in such filing offices, a security interest
created by the Lease Agreement shall be perfected first priority
security interests in such personal property in favor of the
Lessor, which rights pursuant to the Lessor Financing Statements
are assigned to the Agent, for the ratable benefit of the Secured
Parties, as their respective interests appear in the Operative
Agreements;
(s) The Plans and Specifications for each Property will be
prepared prior to the commencement of construction in accordance with
all applicable Legal Requirements (including without limitation all
applicable Environmental Laws and building, planning, zoning and fire
codes), except to the extent the failure to comply therewith,
individually or in the aggregate, shall not have and could not
reasonably be expected to have a Material Adverse Effect. Upon
completion of the Improvements for each Property in accordance with the
applicable Plans and Specifications, such Improvements will be within
any building restriction lines and will not encroach in any manner onto
any adjoining land (except as permitted by express written easements and
shown by the survey referenced in Section 5.3(i), which have been
approved by the Agent);
(t) As of the Rent Commencement Date only, each Property
shall be improved in accordance with the applicable Plans and
Specifications in a good and workmanlike manner and shall be
operational;
(u) As of each Property Closing Date only, each Property has
been acquired or ground leased pursuant to a Ground Lease at a price
that is not in excess of fair market value or fair market rental value,
as the case may be; and
(v) The consolidated balance sheet and income statement of
the Lessee and its Consolidated Subsidiaries as of December 31, 1999,
together with related consolidated statements of operations and retained
earnings and of cash flows as of December 31, 1999 and the consolidated
balance sheet and income statement of the Lessee and its Consolidated
Subsidiaries as of June 30, 2000, together with related consolidated
statements of operations and retained earnings and of cash flows as of
June 30, 2000, fairly present in all material respects the consolidated
financial condition of the Lessee and its Consolidated Subsidiaries as
at such dates and the consolidated results of the operations of the
Lessee and its Consolidated Subsidiaries for the periods ended on such
dates, all in accordance with GAAP, subject with respect to the June 30,
2000 financial
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statements, to changes resulting from audit and normal year-end audit
adjustments.
(w) No Default or Event of Default has occurred and is
continuing.
(x) Except as would not reasonably be expected to have a
Material Adverse Effect:
(i) During the five-year period prior to the date on
which this representation is made or deemed made: (A) no ERISA
Event has occurred, and, to the best knowledge of Lessee, no
event or condition has occurred or exists as a result of which
any ERISA Event could reasonably be expected to occur, with
respect to any Plan; (B) no "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of
the Code, whether or not waived, has occurred with respect to any
Plan; (C) each Plan has been maintained, operated, and funded in
compliance with its own terms and in material compliance with the
provisions of ERISA, the Code, and any other applicable federal
or state laws; and (D) no lien in favor of the PBGC or a Plan has
arisen or is reasonably likely to arise on account of any Plan.
(ii) The actuarial present value of all "benefit
liabilities" (as defined in Section 4001(a)(16) of ERISA),
whether or not vested, under each Single Employer Plan, as of the
last annual valuation date prior to the date on which this
representation is made or deemed made (determined, in each case,
in accordance with Financial Accounting Standards Board Statement
87, utilizing the actuarial assumptions used in such Plan's most
recent actuarial valuation report), did not exceed as of such
valuation date the fair market value of the assets of such Plan.
(iii) No member of the Consolidated Group nor any ERISA
Affiliate has incurred, or, to the best knowledge of Lessee,
could be reasonably expected to incur, any withdrawal liability
under ERISA to any Multiemployer Plan or Multiple Employer Plan.
No member of the Consolidated Group nor any ERISA Affiliate would
become subject to any withdrawal liability under ERISA if any
member of the Consolidated Group or any ERISA Affiliate were to
withdraw completely from all Multiemployer Plans and Multiple
Employer Plans as of the valuation date most closely preceding
the date on which this representation is made or deemed made. No
member of the Consolidated Group nor any ERISA Affiliate has
received any notification that any Multiemployer Plan is in
reorganization (within the meaning of Section 4241 of ERISA), is
insolvent (within the meaning of Section 4245 of ERISA), or has
been terminated (within the meaning of Title IV of ERISA), and no
Multiemployer Plan is, to the best knowledge of Lessee,
reasonably expected to be in reorganization, insolvent, or
terminated.
(iv) No prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) or breach of
fiduciary responsibility has occurred with respect to a Plan
which has subjected or may subject any member of the Consolidated
Group or any ERISA Affiliate to any liability under Sections 406,
409, 502(i), or 502(l) of ERISA or Section 4975 of the Code, or
under any
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agreement or other instrument pursuant to which any member of the
Consolidated Group or any ERISA Affiliate has agreed or is
required to indemnify any person against any such liability.
(v) No member of the Consolidated Group nor any ERISA
Affiliates has any material liability with respect to "expected
post-retirement benefit obligations" within the meaning of the
Financial Accounting Standards Board Statement 106. Each Plan
which is a welfare plan (as defined in Section 3(1) of ERISA) to
which Sections 601-609 of ERISA and Section 4980B of the Code
apply has been administered in compliance in all material
respects of such sections.
(y) Except as would not reasonably be expected to have a
Material Adverse Effect:
(i) Each of the facilities and properties owned,
leased or operated by the members of the Consolidated Group (the
"Subject Properties") and all operations at the Subject
Properties are in compliance with all applicable Environmental
Laws, and there is no Environmental Violation with respect to the
Subject Properties or the businesses operated by the members of
the Consolidated Group (the "Businesses"), and there are no
conditions relating to the Businesses or Subject Properties that
could give rise to liability under any applicable Environmental
Laws.
(ii) None of the Subject Properties contains, or (to
the knowledge of the Construction Agent or the Lessee) has
previously contained, any Hazardous Substances at, on or under
the Subject Properties in amounts or concentrations that
constitute or constituted an Environmental Violation or could
give rise to liability under Environmental Laws.
(iii) None of the members of the Consolidated Group has
received any written or verbal notice of, or inquiry from any
Governmental Authority regarding, any alleged or actual
Environmental Violation or any non-compliance, liability or
potential liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the Subject
Properties or the Businesses, nor does any member of the
Consolidated Group have knowledge or reason to believe that any
such notice will be received or is being threatened.
(iv) Hazardous Substances have not been transported or
disposed of from the Subject Properties, or generated, treated,
stored or disposed of at, on or under any of the Subject
Properties or any other location, in each case by or on behalf
any members of the Consolidated Group in violation of, or in a
manner that would be reasonably likely to give rise to liability
under, any applicable Environmental Law.
(v) No judicial proceeding or governmental or
administrative action is pending or, to the best knowledge of
Lessee, threatened, under any Environmental Law to which any
member of the Consolidated Group is or will be named as a party,
nor are there any consent decrees or other decrees, consent
orders, administrative
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orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect
to any member of the Consolidated Group, the Subject Properties
or the Businesses.
(vi) There has been no release or, threat of release
of Hazardous Substances at or from the Subject Properties, or
arising from or related to the operations (including, without
limitation, disposal) of any member of the Consolidated Group in
connection with the Subject Properties or otherwise in connection
with the Businesses, in violation of or in amounts or in a manner
that could give rise to liability under Environmental Laws.
(z) Set forth on Schedule 6.2(z) are all brokers' fees
incurred in connection with the transactions contemplated by this
Agreement and the other Operative Agreements on and as of the initial
Property Closing Date. No other brokers' fees in connection with any
Property or otherwise with regard to the Operative Agreements have been
or will be so incurred.
SECTION 7. PAYMENT OF CERTAIN EXPENSES.
7.1. TRANSACTION EXPENSES.
(a) The Lessor agrees on the Initial Closing Date, to pay all
Transaction Expenses arising from the Initial Closing Date, including
without limitation 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
incurred in connection with such Initial Closing Date, the initial fees
and expenses of the Owner Trustee due and payable on such Initial
Closing Date, all fees, taxes and expenses for the recording,
registration and filing of documents and all other reasonable fees,
expenses and disbursements incurred in connection with such Initial
Closing Date; provided, however, the Lessor shall pay such amounts
described in this Section 7.1(a) only if funds are made available at the
appropriate time by the Lenders and the Holders in an amount sufficient
to allow such payment.
(b) Only for the period prior to the Rent Commencement Date,
the Lessor agrees on each Property Closing Date, on the date of any
Construction Advance and on the Completion Date to pay, or cause to be
paid, all Transaction Expenses including without limitation 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 Advance or such Completion Date, all amounts
described in Section 7.1(a) of this Agreement which have not been
previously paid, the annual fees and reasonable out-of-pocket expenses
of the Owner Trustee, all fees, expenses and disbursements incurred with
respect to the various items referenced in Sections 5.3, 5.4 and/or 5.5
(including without limitation any premiums for title insurance policies
and charges for any updates to such policies) and all other reasonable
fees, expenses and disbursements in connection with such Advance or such
Completion Date including without limitation all expenses relating to
and all fees,
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taxes and expenses for the recording, registration and filing of
documents and during the Commitment Period, all fees, expenses and costs
referenced in Section 7 (other than Section 7.3(b)); provided, however,
the Lessor shall pay such amounts described in this Section 7.1(b) only
if funds are made available at the appropriate time by the Lenders and
the Holders in an amount sufficient to allow such payment.
(c) All fees payable pursuant to the Operative Agreements
shall be calculated on the basis of a year of three hundred sixty (360)
days for the actual days elapsed.
7.2. BROKERS' FEES.
Only for the period prior to the Rent Commencement Date, the Lessor
agrees to pay or cause to be paid any and all brokers' fees, if any, including
without limitation any interest and penalties thereon, which are payable in
connection with the transactions contemplated by this Agreement and the other
Operative Agreements; provided, however, that the Lessor shall pay such amounts
described in this Section 7.2 only if funds are made available at the
appropriate time by the Lenders and the Holders in an amount sufficient to allow
such payment.
7.3. CERTAIN FEES AND EXPENSES.
(a) Only for the period prior to the Rent Commencement Date,
the Lessor 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 co-trustees (including without limitation reasonable counsel fees
and expenses) or any successor owner trustee and/or co-trustee, for
acting as the owner trustee under the Trust Agreement, (ii) all
reasonable costs and expenses related to this transaction incurred by
the Construction Agent, the Lessee, the Agent, the Lenders, the Holders
or the Lessor in entering into any Lease Supplement and any future
amendments, modifications, supplements, restatements and/or replacements
with respect to any of the Operative Agreements, whether or not such
Lease Supplement, amendments, modifications, supplements, restatements
and/or replacements are ultimately entered into, or giving or
withholding of waivers of consents hereto or thereto, which have been
requested by the Construction Agent, the Lessee, the Agent, the Lenders,
the Holders or the Lessor; provided, however, that the Lessor shall pay
such amounts described in this Section 7.3(a) only if funds are made
available at the appropriate time by the Lenders and the Holders in an
amount sufficient to allow such payment.
(b) The Lessee agrees to pay or cause to be paid in
connection with any Agency Agreement Event of Default and any Lease
Event of Default, (i) all reasonable costs and expenses incurred by the
Construction Agent, the Lessee, the Agent, the Lenders, the Holders or
the Lessor in connection with any exercise of remedies under any
Operative Agreement or any purchase of any Property by the Construction
Agent, the Lessee or any third party in accordance with the Operative
Agreements and (ii) all reasonable costs and expenses incurred by the
Construction Agent, the Lessee, the Agent, the Lenders, the Holders or
the Lessor in connection with any transfer or conveyance of any Property
in accordance with the Operative Agreements, whether or not such
transfer
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or conveyance is ultimately accomplished.
7.4. UNUSED FEE.
During the Commitment Period, the Lessee, at its option, either (x)
shall cause the Lessor to pay or (y) to the extent such amounts are not
otherwise paid by the Lessor, the Lessee shall timely pay, in either case to the
Agent for the account of (a) the Lenders, respectively, an unused fee (the
"Lender Unused Fee") equal to the product of the average daily Available
Commitment of each Lender during the Commitment Period multiplied by a rate per
annum equal to the then current Applicable Percentage for Unused Fees and (b)
the Holders, respectively, an unused fee (the "Holder Unused Fee") equal to the
product of the average daily Available Holder Commitment of each Holder during
the Commitment Period multiplied by a rate of per annum equal to the then
current Applicable Percentage for Unused Fees. Such Unused Fees shall be payable
quarterly in arrears on each Unused Fee Payment Date. If all or a portion of any
such Unused 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 ABR
(or in the case of Holder Yield, the ABR plus the Applicable Percentage for
Eurodollar Holder Advances) plus two percent (2%) from the date of such
non-payment until such amount is paid in full (as well as before judgment).
7.5. ADMINISTRATIVE FEE.
The Lessee shall pay or cause to be paid an administrative fee to the
Agent (for its individual account) on the terms and conditions set forth in the
Fee Letter.
7.6. OTHER FEES.
The Lessee shall pay or cause to be paid all such other fees to the
account of such Persons and on the terms and conditions set forth in the Fee
Letter.
7.7. CLARIFICATION REGARDING THE LESSOR'S PAYMENT OBLIGATIONS PURSUANT
TO SECTION 7.
The Lessor is responsible for satisfying the payment obligations
pursuant to Sections 7.1(a), 7.1(b), 7.2 and 7.3(a) only to the extent funds are
made available by the Lenders and the Holders in amounts and at such times to
allow such payments.
SECTION 8. OTHER COVENANTS AND AGREEMENTS.
8.1. COOPERATION WITH THE CONSTRUCTION AGENT OR THE LESSEE.
The Holders, the Lenders, the Lessor (at the direction of the Majority
Secured Parties) and the Agent shall, at the expense of and to the extent
reasonably requested by the Construction Agent or the Lessee (but without
assuming additional liabilities on account thereof and only to the extent such
is reasonably acceptable to the Holders, the Lenders, the Lessor (at the
direction of the Majority Secured Parties) and the Agent in their reasonable
discretion), cooperate with the
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Construction Agent or the Lessee in connection with the Construction Agent or
the Lessee satisfying its covenant obligations contained in the Operative
Agreements including without limitation at any time and from time to time,
promptly and duly executing and delivering any and all such further instruments,
documents and financing statements (and continuation statements related
thereto).
8.2. COVENANTS OF THE OWNER TRUSTEE AND THE HOLDERS.
Each of the Owner Trustee and the Holders hereby agrees that so long as
this Agreement is in effect:
(a) Neither the Owner Trustee (in its trust capacity or in
its individual capacity) nor any Holder will create or permit to exist
at any time, and each of them will, at its own cost and expense,
promptly take such action as may be necessary duly to discharge, or to
cause to be discharged, all Lessor Liens on the Properties attributable
to it; provided, however, that the Owner Trustee and the Holders shall
not be required to so discharge any such Lessor Lien while the same is
being contested in good faith by appropriate proceedings diligently
prosecuted so long as such proceedings shall not materially and
adversely affect the rights of the Lessee under the Lease and the other
Operative Agreements or involve any material danger of impairment of the
Liens of the Security Documents or of the sale, forfeiture or loss of,
and shall not interfere with the use or disposition of, any Property or
title thereto or any interest therein or the payment of Rent;
(b) Without prejudice to any right under the Trust Agreement
of the Owner Trustee to resign (subject to the requirement set forth in
the Trust Agreement that such resignation shall not be effective until a
successor shall have agreed to accept such appointment), or the Holders'
rights under the Trust Agreement to remove the institution acting as the
Owner Trustee (after consent to such removal by the Agent as provided in
the Trust Agreement), each of the Owner Trustee and the Holders hereby
agrees with the Lessee and the Agent (i) not to terminate or revoke the
trust created by the Trust Agreement except as permitted by Article 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 any such party without the
prior written consent of such party and (iii) to comply with all of the
terms of the Trust Agreement;
(c) The Owner Trustee or any successor may resign or be
removed by the Holders as the 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 (so long as there shall be no Lease Event of
Default that shall have occurred and be continuing), which consent shall
not be unreasonably withheld or delayed;
(d) The Owner Trustee, in its capacity as the Owner Trustee
under the Trust
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Agreement, and not in its individual capacity, shall not contract for,
create, incur or assume any Indebtedness, or enter into any business or
other activity or enter into any contracts or agreements, other than
pursuant to or under the Operative Agreements;
(e) The Holders will not instruct the 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,
the Holders and the Agent if the Owner Trustee's principal place of
business or chief executive office, or the office where the records
concerning the accounts or contract rights relating to any Property are
kept, shall cease to be located at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx,
Xxxx 00000, or if it shall change its name; and
(h) The Owner Trustee shall take or refrain from taking such
actions and grant or refrain from granting such approvals with respect
to the Operative Agreements and/or relating to any Property in each case
as directed in writing by the Agent (until such time as the Loans are
paid in full, and then by the Majority Holders) or, in connection with
Sections 8.5 and 9.2 hereof, the Lessee; provided, however, that
notwithstanding the foregoing provisions of this subparagraph (h) the
Owner Trustee, the Agent, the Lenders and the Holders each acknowledge,
covenant and agree that neither the Owner Trustee nor the Agent shall
act or refrain from acting, regarding each Unanimous Vote Matter, until
such party has received the approval of each Lender and each Holder
affected by such matter.
8.3. THE LESSEE COVENANTS, CONSENT AND ACKNOWLEDGMENT.
(a) The 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. The Lessee hereby irrevocably consents to the creation,
perfection and maintenance of such Liens. Each of the Construction Agent
and the Lessee shall, to the extent reasonably requested by any of the
other parties hereto, cooperate with the other parties in connection
with their covenants herein or in the other Operative Agreements and
shall from time to time duly execute and deliver any and all such future
instruments, documents and financing statements (and continuation
statements related thereto) as any other party hereto may reasonably
request.
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(b) The Lessor hereby instructs the Lessee, and the Lessee
hereby acknowledges and agrees, that until such time as the Loans and
the Holder Advances are paid in full and the Liens evidenced by the
Security Agreement and the Mortgage Instruments have been released (i)
any and all Rent (excluding Excepted Payments which shall be payable to
each Holder or other Person as appropriate) and any and all other
amounts of any kind or type under any of the Operative Agreements due
and owing or payable to any Person shall instead be paid directly to the
Agent (excluding Excepted Payments which shall be payable to each Holder
or other Person as appropriate) or as the Agent may direct from time to
time for allocation and distribution in accordance with the procedures
set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the
Lease shall be exercised by the Agent and (iii) the Lessee shall cause
all notices, certificates, financial statements, communications and
other information which are delivered, or are required to be delivered,
to the Lessor, to also be delivered at the same time to the Agent.
(c) The Lessee shall not consent to or permit any amendment,
supplement or other modification of the terms or provisions of any
Operative Agreement except in accordance with Section 12.4 of this
Agreement.
(d) The Lessee hereby covenants and agrees to cause an
Appraisal or reappraisal (in form and substance satisfactory to the
Agent and from an appraiser selected by the Agent) to be issued
respecting any Property as requested by the Agent from time to time (i)
at each and every time as such shall be required to satisfy any
regulatory requirements imposed on the Agent, the Lessor, the Trust
Company, any Lender and/or any Holder and (ii) after the occurrence and
during the continuation of an Event of Default.
(e) The Lessee hereby covenants and agrees that, except for
amounts payable as Basic Rent, any and all payment obligations owing
from time to time under the Operative Agreements by any Person to the
Agent, any Lender, any Holder or any other Person shall (without further
action) be deemed to be Supplemental Rent obligations payable by the
Lessee. Without limitation, such obligations of the Lessee shall include
the Supplemental Rent obligations pursuant to this Section 8.3(e),
Section 3.3 of the Lease, arrangement fees, administrative fees,
participation fees, commitment fees, unused fees, prepayment penalties,
breakage costs, indemnities, trustee fees and transaction expenses
incurred by the parties hereto in connection with the transactions
contemplated by the Operative Agreements. Prior to the Rent Commencement
Date regarding a Property, all matters giving rise to Supplemental Rent
obligations in connection with such Property (other than indemnity
amounts payable by the Indemnity Provider pursuant to Sections 11.1
through 11.8 or amounts payable pursuant to Section 2.1 of the Agency
Agreement) may be funded pursuant to the Operative Agreements to the
extent the applicable conditions precedent are satisfied.
(f) At any time the Lessor or the Agent is entitled under the
Operative Agreements to possession of a Property or any component
thereof, each of the Construction Agent and the Lessee hereby covenants
and agrees, at its own cost and
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expense, to assemble and make the same available to the Agent (on behalf
of the Lessor).
(g) The Lessee hereby covenants and agrees that, respecting
each Property, Non-Integral Equipment financed under the Operative
Agreements may constitute up to, but shall not exceed, ten percent (10%)
of the aggregate Advances extended at or prior to such time with respect
to such Property.
(h) The Lessee hereby covenants and agrees that as of
Completion each Property shall be a Permitted Facility.
(i) The Lessee hereby covenants and agrees that it shall give
prompt notice to the Agent if the Lessee's principal place of business
or chief executive office, or the office where the records concerning
the accounts or contract rights relating to any Property are kept, shall
cease to be located at 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxx,
00000 or if it shall change its name.
(j) Unless the Agent otherwise agrees in writing, the Lessee
hereby covenants and agrees that the aggregate Property Cost of
Non-Integral Equipment purchased for any reason by the Lessee prior to
the Expiration Date shall not exceed ten percent (10%) of the aggregate
Property Cost for all Properties funded during the Commitment Period.
(k) [reserved]
(l) The Lessee hereby covenants and agrees that the rights of
the Lessee under this Agreement and the Lease shall not impair or in any
way diminish the obligations of the Construction Agent and/or the rights
of the Lessor under the Agency Agreement.
(m) The Lessee shall promptly notify the Agent, or cause the
Agent to be promptly notified, upon the Lessee gaining knowledge of the
occurrence of any Default or Event of Default which is continuing at
such time, specifying in such notice the nature and existence of such
Default or Event of Default and what action Lessee proposes to take with
respect thereto. In any event, such notice shall be provided to the
Agent within ten (10) days of when the Lessee gains such knowledge.
(n) Until all of the obligations under the Operative
Agreements have been finally and indefeasibly paid and satisfied in full
and the Commitments and the Holder Commitments terminated unless consent
has been obtained from the Majority Secured Parties, the Lessee will,
and will, if applicable, cause each of its Subsidiaries to:
(i) except as a result of or in connection with a
dissolution, merger or disposition of a Subsidiary permitted
under Section 8.3B(d), preserve and maintain its separate legal
existence and all rights, franchises, licenses and privileges
necessary to the conduct of its business, and qualify and remain
qualified as a foreign corporation (or partnership, limited
liability company or other such similar entity, as the case may
be) and authorized to do business in
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each jurisdiction in which the failure to so qualify would have a
Material Adverse Effect;
(ii) pay and perform all obligations of the Lessee
under the Operative Agreements and pay and perform (A) all taxes,
assessments and other governmental charges or levies that may be
imposed upon or assessed against it, its income or profits, or
any of its property, before such shall become delinquent, (B) all
lawful claims (including claims for labor, materials and
supplies) which, if unpaid, might give rise to a Lien upon any of
its properties and (C) all other Indebtedness, obligations and
liabilities as it shall become due; provided that the Lessee may
contest any item described in this Section 8.3(n)(ii) in good
faith by appropriate action so long as adequate reserves are
maintained with respect thereto in accordance with GAAP, unless
failure to so pay or perform (y) could give rise to an immediate
right to foreclose on a Lien securing such amounts and such Lien
has not been stayed or (z) could have a Material Adverse Effect;
(iii) to the extent failure to do so would have a
Material Adverse Effect: (x) observe and remain in compliance
with all applicable Laws and maintain in full force and effect
all Governmental Actions, in each case applicable to the conduct
of its business; (y) keep in full force and effect all licenses,
certifications or accreditations necessary for any Property to
carry on its business; and (z) not permit the termination of any
insurance reimbursement program available to any Property; and
(iv) provided that the Agent, the Lenders and the
Holders use reasonable efforts to minimize disruption to the
business of the Lessee, permit representatives of the Agent or
any Lender or Holder, or their representatives (including,
without limitation, independent accountants, agents, attorneys
and appraisers) from time to time, upon reasonable notice and
during normal business hours, to visit and inspect its
properties, facilities and other business assets; inspect, audit
and make copies of or extracts from its books, records and files,
including without limitation management letters prepared by
independent accountants; and to investigate and verify such
information and to discuss its business, assets, liabilities,
financial condition, results of operations and business prospects
with its officers, employees, representatives and independent
accountants.
(o) The Lessee shall perform any and all obligations of
Lessor under, and cause Lessor to otherwise remain in full compliance
with, the terms and provisions of each Ground Lease, if any.
(p) Promptly after obtaining any required architectural
approvals by any business park or any other applicable entity with
oversight responsibility for the applicable Improvements, the
Construction Agent shall deliver to the Agent copies of the same.
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(q) If any credit facility, loan agreement or other financing
arrangement in favor of the Lessee or any Affiliate of the Lessee, other
than pursuant to the Operative Agreements, is ever secured by any
collateral, the Secured Parties shall share on a pari-passu basis (based
on the respective amounts outstanding under the Operative Agreements
relative to the amounts outstanding under any such credit facility, loan
agreement or other financing arrangement) in all such collateral.
(r) The Lessee shall submit the interest rate/Holder Yield
selection notice in the form set forth in Exhibit K as required from
time to time pursuant to the Credit Agreement and the Trust Agreement.
(s) If the Construction Budget for any Property is ever
modified to exceed the amount of title insurance therefor (as such title
insurance is referenced in Section 5.3(g)), then the Construction Agent
shall immediately cause an additional endorsement to be issued to
increase the amount of title insurance to at least equal to the amount
referenced in the modified Construction Budget.
(t) Lessee shall promptly notify Lessor in the event it
receives actual knowledge that a Lien other than a Permitted Lien or
Lessor Lien has occurred with respect to a Property, the Rent or any
other such amounts, and Lessee covenants with Lessor that the Liens in
favor of Lessor and/or the Agent created by the Operative Agreements are
(and until the Financing Parties under the Operative Agreements have
been paid in full shall remain) first priority perfected Liens subject
only to Permitted Liens and Lessor Liens.
(u) Lessee shall cause the date of Final Completion for each
Property to occur no later than 30 days after the Completion Date for
such Property.
8.3A ADDITIONAL AFFIRMATIVE COVENANTS OF LESSEE.
Lessee hereby covenants and agrees that, so long as any Operative
Agreement is in effect or any amounts payable under any Operative Agreement
shall remain outstanding, and until all of the Commitments and Holder
Commitments shall have terminated:
(a) Information Covenants. Lessee will furnish, or cause to
be furnished, to the Agent, the Lenders and the Holder:
(i) Annual Financial Statements. As soon as
available, and in any event within 90 days after the close of
each fiscal year of the Consolidated Group, a consolidated and,
if requested by the Agent, consolidating balance sheet and income
statement of the Consolidated Group as of the end of such fiscal
year, together with related consolidated and, if requested by the
Agent, consolidating statements of operations and retained
earnings and of cash flows for such fiscal year, in each case
setting forth in comparative form consolidated and, if requested
by the Agent, consolidating figures for the preceding fiscal
year, all such financial information described above to be in
reasonable form and detail and audited by independent
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certified public accountants of recognized national standing
reasonably acceptable to the Agent, and whose opinion shall be to
the effect that such financial statements have been prepared in
accordance with GAAP (except for changes with which such
accountants concur) and shall not be limited as to the scope of
the audit or qualified as to the status of the Consolidated Group
as a going concern or any other material qualifications or
exceptions.
(ii) Quarterly Financial Statements. As soon as
available, and in any event within 45 days after the close of
each fiscal quarter of the Consolidated Group (other than the
fourth fiscal quarter, in which case 90 days after the end
thereof) a consolidated and, if requested by the Agent,
consolidating balance sheet and income statement of the
Consolidated Group as of the end of such fiscal quarter, together
with related consolidated and, if requested by the Agent,
consolidating statements of operations and retained earnings and
of cash flows for such fiscal quarter, in each case setting forth
in comparative form consolidated and, if requested by the Agent,
consolidating figures for the corresponding period of the
preceding fiscal year, all such financial information described
above to be in reasonable form and detail and reasonably
acceptable to the Agent, and accompanied by a certificate of a
Responsible Officer of Lessee to the effect that such quarterly
financial statements fairly present in all material respects the
financial condition of the Consolidated Group and have been
prepared in accordance with GAAP, subject to changes resulting
from audit and normal year-end audit adjustments.
(iii) Officer's Certificate. At the time of delivery of
the financial statements provided for in Sections 8.3A(a)(i) and
8.3A(a)(ii) above, a certificate of a Responsible Officer of
Lessee substantially in the form of Schedule 8.3A(a)(iii), (A)
demonstrating compliance with the financial covenant contained in
Section 8.3A(f) by calculation thereof as of the end of each such
fiscal period and (B) stating that no Default or Event of Default
exists, or if any Default or Event of Default does exist,
specifying the nature and extent thereof and what action Lessee
proposes to take with respect thereto.
(iv) Annual Budgets. On or prior to the end of each
fiscal year of the Consolidated Group, an annual budget of the
Consolidated Group for the next fiscal year.
(v) [Reserved].
(vi) Reports. Promptly upon transmission or receipt
thereof, (A) copies of any filings and registrations with, and
reports to or from, the Securities and Exchange Commission, or
any successor agency, and copies of all financial statements,
proxy statements, notices and reports as any member of the
Consolidated Group shall send to its shareholders or to a holder
of any Indebtedness owed by any member of the Consolidated Group
in its capacity as such a holder and (B) upon the request of the
Agent, all reports and written information to and from the United
States Environmental Protection Agency, or any state or local
agency responsible for
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environmental matters, the United States Occupational Health and
Safety Administration, or any state or local agency responsible
for health and safety matters, or any successor agencies or
authorities concerning environmental, health or safety matters.
(vii) Notices. In addition to any other notices
required to be delivered pursuant to any other provisions of any
Operative Agreement, upon any Responsible Officer of Lessee
obtaining knowledge thereof, Lessee will give written notice to
the Agent immediately of the occurrence of any of the following
with respect to any member of the Consolidated Group: (A) the
pendency or commencement of any litigation, arbitral or
governmental proceeding against such Person which if adversely
determined is likely to have a Material Adverse Effect, or (B)
the institution of any proceedings against such Person with
respect to, or the receipt of notice by such Person of potential
liability or responsibility for violation, or alleged violation
of any federal, state or local law, rule or regulation, including
but not limited to, Environmental Laws, the violation of which
could have a Material Adverse Effect.
(viii) ERISA. Upon any Responsible Officer of Lessee
obtaining knowledge thereof, Lessee will give written notice to
the Agent promptly (and in any event within five Business Days)
of: (A) any event or condition, including, but not limited to,
any Reportable Event, that constitutes, or might reasonably lead
to, an ERISA Event; (B) with respect to any Multiemployer Plan,
the receipt of notice as prescribed in ERISA or otherwise of any
withdrawal liability assessed against Lessee or any ERISA
Affiliates, or of a determination that any Multiemployer Plan is
in reorganization or insolvent (both within the meaning of Title
IV of ERISA); (C) the failure to make full payment on or before
the due date (including extensions) thereof of all amounts which
any member of the Consolidated Group or any ERISA Affiliate is
required to contribute to each Plan pursuant to its terms and as
required to meet the minimum funding standard set forth in ERISA
and the Code with respect thereto; or (D) any change in the
funding status of any Plan that could have a Material Adverse
Effect, together with a description of any such event or
condition or a copy of any such notice and a statement by a
Responsible Officer of Lessee briefly setting forth the details
regarding such event, condition, or notice, and the action, if
any, which has been or is being taken or is proposed to be taken
by Lessee with respect thereto. Promptly upon request, Lessee
shall furnish the Agent with such additional information
concerning any Plan as may be reasonably requested, including,
but not limited to, copies of each annual report/return (Form
5500 series), as well as all schedules and attachments thereto
required to be filed with the Department of Labor and/or the
Internal Revenue Service pursuant to ERISA and the Code,
respectively, for each "plan year" (within the meaning of Section
3(39) of ERISA).
(ix) Environmental.
(A) Upon the reasonable written request of
the Agent following
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the occurrence of any event or the discovery of any
condition which the Agent reasonably believes has caused
(or could be reasonably expected to cause) an
Environmental Violation with respect to any Subject
Property or the businesses operated by the members of the
Consolidated Group or could give rise to liability under
any applicable Environmental Laws, Lessee will furnish or
cause to be furnished to the Agent, at Lessee' expense, a
report of an environmental assessment of reasonable
scope, form and depth, (including, where appropriate,
invasive soil or groundwater sampling) by a consultant
reasonably acceptable to the Agent as to the nature and
extent of the presence of any Hazardous Substances on any
Subject Property owned by a member of the Consolidated
Group and as to the compliance by the members of the
Consolidated Group with Environmental Laws at such
Subject Property. If Lessee fails to deliver such an
environmental report within seventy-five (75) days after
receipt of such written request then the Agent may
arrange for same, and the members of the Consolidated
Group hereby grant to the Agent, and its representatives
access to such Subject Property to reasonably undertake
such an assessment (including, where appropriate,
invasive soil or groundwater sampling). The reasonable
cost of any assessment arranged for by the Agent pursuant
to this provision will be payable by Lessee on demand.
(B) The members of the Consolidated Group
will conduct and complete all investigations, studies,
sampling, and testing and all remedial, removal, and
other actions necessary to address all Hazardous
Substances on, from or affecting any Subject Property to
the extent necessary to be in compliance with all
Environmental Laws and with the validly issued orders and
directives of all Governmental Authorities with
jurisdiction over such Subject Property to the extent any
failure could have a Material Adverse Effect.
(x) Other Information. With reasonable promptness
upon any such request, such other information regarding the
business, properties or financial condition of any member of the
Consolidated Group as the Agent may reasonably request.
(b) Books and Records. Lessee will, and will cause each of
its Subsidiaries to, keep complete and accurate books and records of its
transactions in accordance with good accounting practices on the basis
of GAAP (including the establishment and maintenance of appropriate
reserves).
(c) Insurance. Lessee will, and will cause each of its
Subsidiaries to, at all times maintain in full force and effect
insurance (including worker's compensation insurance, liability
insurance, casualty insurance and business interruption insurance) in
such amounts, covering such risks and liabilities and with such
deductibles or self-insurance retentions as are (i) required by this
Participation Agreement, the Lease or any other Operative Agreement and
(ii) in accordance with normal industry practice.
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(d) Maintenance of Property. Lessee will, and will cause each
of its Subsidiaries to, maintain and preserve its properties and
equipment material to the conduct of its business in good repair,
working order and condition, normal wear and tear and casualty and
condemnation excepted, and will make, or cause to be made, in such
properties and equipment from time to time all repairs, renewals,
replacements, extensions, additions, betterments and improvements
thereto as may be needed or proper, to the extent and in the manner
customary for companies in similar businesses.
(e) Performance of Obligations. Lessee will, and will cause
each of its Subsidiaries to, perform in all material respects all of its
obligations under the terms of all material contracts, agreements,
indentures, mortgages, security agreements or other instruments to which
it is a party or by which it is bound.
(f) Financial Covenant. The Consolidated Group shall at all
times maintain Liquidity in an amount greater than or equal to (a) from
the Initial Closing Date to the Final Completion Date, $45,000,000 and
(b) on and after the Final Completion Date, $35,000,000. The
Consolidated Group shall not permit any amount necessary to satisfy the
Liquidity requirements of the previous sentence to be subject to any
Lien or used as security or as a pledge for any obligation.
8.3B ADDITIONAL NEGATIVE COVENANTS OF LESSEE.
Lessee hereby covenants and agrees that, so long as any Operative
Agreement is in effect or any amounts payable under any Operative Agreement
shall remain outstanding, and until all of the Commitments and Holder
Commitments shall have terminated:
(a) Indebtedness.
Lessee will not permit any member of the Consolidated Group to
contract, create, incur, assume or permit to exist any Indebtedness,
except:
(i) Indebtedness existing or arising under the
Operative Agreements;
(ii) Indebtedness set forth on Schedule 8.3B(a)(ii),
and renewals, refinancings and extensions thereof on terms and
conditions no less favorable to the members of the Consolidated
Group than for such existing Indebtedness;
(iii) Indebtedness of any joint venture in which any
member of the Consolidated Group is a joint venturer (but only to
the extent to which there is recourse to such member of the
Consolidated Group for such Indebtedness) in an aggregate amount
not to exceed $50,000,000 at any time;
(iv) Indebtedness and other obligations owing under
interest rate, commodities and foreign currency exchange
protection agreements entered into in the ordinary course of
business to manage existing or anticipated risks and not for
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speculative purposes;
(v) unsecured intercompany Indebtedness owing by any
member of the Consolidated Group to another member of the
Consolidated Group (subject, however, to the limitations of
Section 8.3B(f) in the case of the member of the Consolidated
Group extending the loan, advance or credit);
(vi) other (A) unsecured Indebtedness of the members
of the Consolidated Group and (B) obligations under Capitalized
Leases and other Indebtedness incurred, in each case, to provide
all or a portion of the purchase price or costs of construction
of fixed assets, and renewals, refinancings and extensions
thereof; provided that (1) such Indebtedness referenced in this
subsection (B) when incurred shall not exceed the purchase price
or cost of construction of such asset, (2) no such Indebtedness
referenced in this subsection (B) shall be refinanced for a
principal amount in excess of the principal balance outstanding
thereon at the time of such refinancing; provided, further that
the total aggregate outstanding principal amount of all such
Indebtedness referenced in the foregoing subsections (A) and (B)
shall not exceed $35,000,000 unless such Indebtedness is
otherwise permitted pursuant to Section 8.3B(a)(iii);
(vii) guaranty obligations with respect to Indebtedness
of the Borrower that is permitted under this Section 8.3B(a); and
(viii) Indebtedness by its terms expressly subordinated
to the Loans and Holder Advances in an aggregate amount not to
exceed $100,000,000 and on such other terms and in amounts
satisfactory to the Agent. (Lessee agrees that any and all
convertible debentures with respect to which any member of the
Consolidated Group is obligated shall be expressly subordinated
to the Loans and Holder Advances and issued on such other terms
and in amounts satisfactory to the Agent.)
(b) Liens. Lessee will not permit any member of the
Consolidated Group to contract, create, incur, assume or permit to exist
any Lien with respect to any of its property, whether now owned or after
acquired, except for Permitted Liens.
(c) Nature of Business. Lessee will not permit any member of
the Consolidated Group to substantively alter the character or conduct
of the business conducted by such Person as of the Initial Closing Date.
(d) Merger and Consolidation, Dissolution and Acquisitions.
Lessee will not permit any member of the Consolidated Group to merge
with or into or consolidate or combine with any other Person or sell,
lease, transfer or assign to any other Person or otherwise dispose of
(whether in one transaction or a series of transactions) all or
substantially all its assets (whether now owned or hereafter acquired);
provided, however, that (i) any Subsidiary (direct or indirect) of
Lessee may merge into or consolidate or
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combine with or dispose of all or substantially all of its assets to
Lessee, (ii) any Subsidiary (direct or indirect) of Lessee may merge,
consolidate or combine with another corporation if the surviving
corporation in such transaction shall be a wholly-owned Subsidiary
(direct or indirect) of Lessee and (iii) if no Default or Event of
Default shall have occurred at the time of or immediately after giving
effect to such transaction, Lessee may merge, consolidate or combine
with another corporation, if the surviving corporation shall be Lessee
or such merger, consolidation or combination shall not constitute a
Lease Event of Default (including without limitation pursuant to Section
17.1(o) of the Lease).
(e) Asset Dispositions. Lessee will not permit any member of
the Consolidated Group to make any Asset Disposition (including, without
limitation, any sale/leaseback transaction) other than (i) Asset
Dispositions with respect to assets which, in the aggregate have a Fair
Market Sales Value of $10,000,000 or less and (ii) any Asset Disposition
in connection with a spin-off to any other Person to the extent the Fair
Market Sales Value of the assets then being sold or otherwise disposed
of plus the Fair Market Sales Value of all assets which have previously
been subject to an Asset Disposition is less than 12% of the then
current Consolidated Tangible Net Worth.
(f) Investments. Lessee will not permit any member of the
Consolidated Group to make or permit to exist Investments in or to any
Person, except for Eligible Investments.
(g) Restricted Payments. Lessee will not permit any member of
the Consolidated Group to make any Restricted Payment, unless (i) no
Default or Event of Default shall exist immediately after giving effect
thereto, and (ii) Lessee shall have delivered to the Agent a certificate
of a Responsible Officer of Lessee demonstrating compliance with the
financial covenant set forth in Section 8.3A(f) on a pro forma basis
after giving effect to the Restricted Payment.
(h) Transactions with Affiliates. Lessee will not permit any
member of the Consolidated Group to enter into or permit to exist any
transaction or series of transactions with any officer, director,
shareholder, Subsidiary or Affiliate of such Person other than (i)
advances of working capital to Lessee, (ii) transfers of cash and assets
to Lessee, (iii) transactions permitted by Section 8.3B(a), Section
8.3B(d), Section 8.3B(e), Section 8.3B(f), or Section 8.3B(g), (iv)
normal compensation and reimbursement of expenses of officers and
directors and (v) except as otherwise specifically limited in the
Operative Agreements, other transactions which are entered into in the
ordinary course of such Person's business on terms and conditions
substantially as favorable to such Person as would be obtainable by it
in a comparable transaction at arm's-length with a Person other than an
officer, director, shareholder, Subsidiary or Affiliate.
(i) Limitation on Restricted Actions. Lessee will not permit
any member of the Consolidated Group to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any such Person to (i) pay
dividends or make any other distributions on its capital stock or with
respect to any other interest or participation in, or measured by, its
profits, (ii) pay any Indebtedness
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or other obligation, (iii) make loans or advances, (iv) sell, lease or
transfer any of its properties or assets, or (v) act as a guarantor or
pledge its assets, except for such encumbrances or restrictions existing
under or by reason of (A) the Operative Agreements or (B) pursuant to
the terms of any purchase money or sale/leaseback Indebtedness
(including Capitalized Leases) to the extent permitted under Section
8.3B(a)(iii) to the extent such limitations relate only to the property
which is the subject of such financing.
(j) Ownership of Subsidiaries. Notwithstanding any other
provisions of this Agreement to the contrary, Lessee will not permit any
member of the Consolidated Group to (i) permit any Person (other than
Lessee or any wholly-owned Subsidiary of Lessee) to own any capital
stock of any Subsidiary of Lessee, except as a result of or in
connection with a dissolution, merger, consolidation or disposition of a
Subsidiary permitted under Section 8.3B(d) or Section 8.3B(e), (ii)
permit any Subsidiary of Lessee to issue any shares of preferred capital
stock unless such issuance is in connection with an Eligible Investment
or (iii) permit, create, incur, assume or suffer to exist any Lien on
any Capital Stock of any Subsidiary of Lessee, except for Permitted
Liens.
8.4. SHARING OF CERTAIN PAYMENTS.
Except for Excepted 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 8.3 hereof. The Lessor, the
Holders, the Agent, the Lenders and the Lessee acknowledge the terms of Section
8.7 of this Agreement regarding the allocation of payments and other amounts
made or received from time to time under the Operative Agreements and agree,
that all such payments and amounts are to be allocated as provided in Section
8.7 of this Agreement.
8.5. GRANT OF EASEMENTS, ETC.
The Agent, the Lenders and the Holders hereby agree that, so long as no
Event of Default shall have occurred and be continuing, the Owner Trustee shall,
from time to time at the request of the Lessee (and with the prior consent of
the Agent which consent shall not be unreasonably withheld or delayed), 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, construction, testing or operation of any Property,
including without limitation reciprocal easement agreements, construction
contracts, operating agreements, development agreements, plats, replats or
subdivision documents; provided, that each of the agreements referred to in this
Section 8.5 shall be on commercially reasonable terms so as not to diminish the
value of any Property in any material respect.
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8.6. APPOINTMENT BY THE AGENT, THE LENDERS, THE HOLDERS AND THE OWNER
TRUSTEE.
The Holders hereby appoint the Agent to act as collateral agent for the
Holders in connection with the Lien granted by the Security Documents to secure
the Holder Amount. The Lenders and the Holders acknowledge and agree and direct
that the rights and remedies of the beneficiaries of the Lien of the Security
Documents shall be exercised by the Agent on behalf of the Lenders and the
Holders as directed from time to time by the Majority Secured Parties or,
pursuant to Sections 8.2(h) and 12.4, all of the Lenders and the Holders, as the
case may be; provided, in all cases, the Agent shall allocate payments and other
amounts received in accordance with Section 8.7. The Agent is further appointed
to provide notices under the Operative Agreements on behalf of the Owner Trustee
(as determined by the Agent, in its reasonable discretion), to receive notices
under the Operative Agreements on behalf of the Owner Trustee and (subject to
Sections 8.5 and 9.2) to take such other action under the Operative Agreements
on behalf of the Owner Trustee as the Agent shall determine in its reasonable
discretion from time to time. The Agent hereby accepts such appointments. For
purposes hereof, the provisions of Section 7 of the Credit Agreement, together
with such other terms and provisions of the Credit Agreement and the other
Operative Agreements as required for the full interpretation and operation of
Section 7 of the Credit Agreement are hereby incorporated by reference as if
restated herein for the mutual benefit of the Agent and each Holder as if each
Holder were a Lender thereunder. Further, the Agent shall be entitled to take
such action on behalf of the Owner Trustee as is delegated to the Agent under
any Operative Agreement (whether express or implied) as may be reasonably
incidental thereto. The parties hereto hereby agree to the provisions contained
in this Section 8.6. Any appointment of a successor agent under Section 7.9 of
the Credit Agreement shall also be effective as an appointment of a successor
agent for purposes of this Section 8.6.
8.7. COLLECTION AND ALLOCATION OF PAYMENTS AND OTHER AMOUNTS.
(a) The Lessee and the Construction Agent have agreed
pursuant to Section 5.8 and otherwise in accordance with the terms of
this Agreement to pay to (i) the Agent any and all Rent (excluding
Excepted Payments) and any and all other amounts of any kind or type
under any of the Operative Agreements due and owing or payable to any
Person and (ii) each Person as appropriate the Excepted Payments.
Promptly after receipt, the Agent shall apply and allocate, in
accordance with the terms of this Section 8.7, such amounts received
from the Lessee or the Construction Agent and all other payments,
receipts and other consideration of any kind whatsoever received by the
Agent pursuant to the Security Agreement or otherwise received by the
Agent, the Holders or any of the Lenders in connection with the
Collateral, the Security Documents or any of the other Operative
Agreements. Ratable distributions among the Lenders and the Holders
under this Section 8.7 shall be made based on, in the case of the
Lenders, the ratio of the outstanding Loans to the aggregate Property
Cost and, in the case of the Holders, the ratio of the outstanding
Holder Advances to the aggregate Property Cost. Ratable distributions
among the Tranche A Lenders under this Section 8.7 shall be made based
on the ratio of the individual Tranche A Lender's Commitment for Tranche
A Loans to the aggregate of all the Tranche A Lenders' Commitments for
Tranche A Loans. Ratable distributions among the Tranche B Lenders under
this Section 8.7 shall be made
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based on the ratio of the individual Tranche B Lender's Commitment for
Tranche B Loans to the aggregate of all the Tranche B Lenders'
Commitments for Tranche B Loans. Ratable distributions among the Lenders
(in situations where the Tranche A Lenders are not differentiated from
the Tranche B Lenders) shall be made based on the ratio of the
individual Lender's Commitment to the aggregate of all the Lenders'
Commitments. Ratable distributions among the Holders under this Section
8.7 shall be based on the ratio of the individual Holder's Holder
Commitment to the aggregate of all the Holders' Holder Commitments.
(b) Payments and other amounts received by the Agent from
time to time in accordance with the terms of subparagraph (a) shall be
applied and allocated as follows (subject in all cases to Section
8.7(c)):
(i) Any such payment or amount identified as or
deemed to be Basic Rent shall be applied and allocated by the
Agent first, ratably to the Lenders and the Holders for
application and allocation to the payment of interest on the
Loans and Holder Yield on the Holder Advances, in each case which
is due and payable on such date; second, ratably to the Lenders
for application and allocation to the payment of the principal of
the Loans which is due and payable on such date; third ratably to
the Holders for application and allocation to the payment of the
portion of the Holder Advances which is due and payable on such
date; and fourth, if no Default or Event of Default is in effect,
any excess shall be paid to such Person or Persons as the Lessee
may designate; provided, that if a Default or Event of Default is
in effect, such excess (if any) shall instead be held by the
Agent until the earlier of (I) the first date thereafter on which
no Default or Event of Default shall be in effect (in which case
such payments or returns shall then be made to such other Person
or Persons as the Lessee may designate) and (II) the Maturity
Date or the Expiration Date, as the case may be (or, if earlier,
the date of any Acceleration), in which case such amounts shall
be applied and allocated in the manner contemplated by Section
8.7(b)(iv).
(ii) If on any date the Agent or the Lessor shall
receive any amount in respect of (A) any Casualty or Condemnation
pursuant to Sections 15.1(a) or 15.1(g) of the Lease (excluding
any payments in respect thereof which are payable to the Lessee
in accordance with the Lease), or (B) the Termination Value in
connection with the delivery of a Termination Notice pursuant to
Article XVI of the Lease, or (C) the Termination Value in
connection with the exercise of the Purchase Option under Section
20.1 of the Lease or the exercise of the option of the Lessor to
transfer the Properties to the Lessee pursuant to Section 20.3 of
the Lease, or (D) any payment required to be made or elected to
be made by the Construction Agent to the Lessor pursuant to the
terms of the Agency Agreement (other than any payment of the
Maximum Amount which shall be applied and allocated pursuant to
Section 8.7(b)(iv)), then in each case, the Lessor shall be
required to pay such amount received (1) if no Event of Default
has occurred, (x) to apply and allocate the proceeds respecting
Sections 8.7(b)(ii)(A) and 8.7(b)(ii)(D) in accordance with
Section 8.7(b)(iii)(B) first through sixth and (y)
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to apply and allocate the proceeds respecting Sections
8.7(b)(ii)(B) and 8.7(b)(ii)(C) to prepay the principal balance
of the Loans and the Holder Advances, on a pro rata basis, a
portion of such amount to be distributed to the Lenders and the
Holders or (2) if an Event of Default has occurred, to apply and
allocate the proceeds respecting Sections 8.7(b)(ii)(A) through
8.7(b)(ii)(D) in accordance with Section 8.7(b)(iii) hereof.
(iii) (A) In each case, upon the occurrence of an Event of
Default and the exercise of remedies pursuant to the
Operative Agreements, an amount equal to any proceeds of
the sale, lease or other disposition of the Properties or
any portion thereof and any other amount payable pursuant
to any Casualty or any Condemnation (whether such amounts
relate to a period before or after the Construction Period
Termination Date) shall be applied and allocated by the
Agent first, ratably to the payment of the principal and
interest of the Tranche B Loans then outstanding, second,
ratably to the payment to the Holders of the outstanding
principal balance of all Holder Advances plus all
outstanding Holder Yield with respect to such outstanding
Holder Advances, third, to the extent such amount exceeds
the maximum amount to be returned pursuant to the
foregoing provisions of this paragraph (iii), ratably to
the payment of the principal and interest of the Tranche A
Loans then outstanding, fourth, to any and all other
amounts owing under the Operative Agreements to the
Lenders under the Tranche B Loans, fifth, to any and all
other amounts owing under the Operative Agreements to the
Holders, sixth, to any and all other amounts owing under
the Operative Agreements to the Lenders under the Tranche
A Loans, and seventh, to the extent moneys remain after
application and allocation pursuant to clauses first
through sixth above, to the Owner Trustee for application
and allocation to any and all other amounts owing to the
Holders or the Owner Trustee and as the Holders shall
determine; provided, where no Event of Default shall exist
and be continuing and a prepayment is made for any reason
with respect to less than the full amount of the
outstanding principal amount of the Loans and the
outstanding Holder Advances, the proceeds shall be applied
and allocated in accordance with Section 8.7(b)(iii)(B)
first through sixth.
(B) Except as otherwise expressly provided
pursuant to Section 8.7(b)(iii)(A), all amounts payable
with respect to any disposition of the Properties or any
portion thereof (including without limitation pursuant to
Article XXII of the Lease) and any amount payable in
respect of excess wear and tear pursuant to Section 22.3
of the Lease (whether such amounts relate to a period
before or after the Construction Period Termination Date)
shall be applied and allocated by the Agent first, ratably
to the payment of the principal and interest of the
Tranche B Loans then outstanding, second, to the extent
such amount exceeds the maximum amount to be returned
pursuant to the foregoing provisions of this paragraph
(iii), ratably to the payment of the principal and
interest of the
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Tranche A Loans then outstanding, third, ratably to the
payment to the Holders of the outstanding principal
balance of all Holder Advances plus all outstanding Holder
Yield with respect to such outstanding Holder Advances,
fourth, to any and all other amounts owing under the
Operative Agreements to the Lenders under the Tranche B
Loans, fifth, to any and all other amounts owing under the
Operative Agreements to the Lenders under the Tranche A
Loans, sixth, to any and all other amounts owing under the
Operative Agreements to the Holders, and seventh, to the
extent moneys remain after application and allocation
pursuant to clauses first through sixth above, to the
Owner Trustee for application and allocation to any and
all other amounts owing to the Holders or the Owner
Trustee and as the Holders shall determine; provided,
where no Event of Default shall exist and be continuing
and a prepayment is made for any reason with respect to
less than the full amount of the outstanding principal
amount of the Loans and the outstanding Holder Advances,
the proceeds shall be applied and allocated ratably to the
Lenders and to the Holders.
(iv) An amount equal to (A) any such payment
identified as a payment of the Maximum Amount or any payment
pursuant to Section 22.1(b) of the Lease (or otherwise) of the
Maximum Residual Guarantee Amount (and any such lesser amount as
may be required by Section 22.1(b) of the Lease) in respect of
the Properties and any such payment which derives from the
Collateral Account or the escrow account described in Section
5.11 and (B) any other amount payable upon any exercise of
remedies after the occurrence of an Event of Default not covered
by Sections 8.7(b)(i) or 8.7(b)(iii) above (including without
limitation any amount received in connection with an Acceleration
which does not represent proceeds from the sale or liquidation of
the Properties), shall be applied and allocated by the Agent
first, ratably, to the payment of the principal and interest
balance of Tranche A Loans then outstanding, second, ratably to
the payment of the principal and interest balance of the Tranche
B Loans then outstanding, third, ratably to the payment of the
principal balance of all Holder Advances plus all outstanding
Holder Yield with respect to such outstanding Holder Advances,
fourth, to the payment of any other amounts owing to the Lenders
hereunder or under any of the other Operative Agreement, and
fifth, to the extent moneys remain after application and
allocation pursuant to clauses first through fourth above, to the
Owner Trustee for application and allocation to Holder Advances
and Holder Yield and any other amounts owing to the Holders or
the Owner Trustee as the Holders shall determine.
(v) An amount equal to any such payment identified as
Supplemental Rent shall be applied and allocated by the Agent to
the payment of any amounts then owing to the Agent, the Lenders,
the Holders and the other parties to the Operative Agreements (or
any of them) (other than any such amounts payable pursuant to the
preceding provisions of this Section 8.7(b)) as shall be
determined by the Agent in its reasonable discretion; provided,
however, that Supplemental Rent received upon the exercise of
remedies after the occurrence and continuance
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of an Event of Default in lieu of or in substitution of the
Maximum Residual Guarantee Amount or as a partial payment thereon
shall be applied and allocated as set forth in Section
8.7(b)(iv).
(vi) The Agent in its reasonable judgment shall
identify the nature of each payment or amount received by the
Agent and apply and allocate each such amount in the manner
specified above.
(c) Upon the payment in full of the Loans, the Holder
Advances and all other amounts then due and owing by the Owner Trustee
hereunder or under any Credit Document and the payment in full of all
other amounts then due and owing to the Lenders, the Holders, the Agent,
the Owner Trustee and the other Financing Parties pursuant to the
Operative Agreements, any moneys remaining with the Agent shall be
returned to the Lessee. It is agreed that, prior to the application and
allocation of amounts received by the Agent in the order described in
Section 8.7(b) above or any distribution of money to the Lessee, any
such amounts shall first be applied and allocated to the payment of (i)
any and all sums advanced by the Agent in order to preserve the
Collateral or to preserve its Lien thereon, (ii) the expenses of
retaking, holding, preparing for sale or lease, selling or otherwise
disposing or realizing on the Collateral, or of any exercise by the
Agent of its rights under the Security Documents, together with
reasonable attorneys' fees and expenses and court costs and (iii) any
and all other amounts reasonably owed to the Agent under or in
connection with the transactions contemplated by the Operative
Agreements (including without limitation any accrued and unpaid
administration fees).
8.8. RELEASE OF PROPERTIES, ETC.
If the Lessee shall at any time purchase any Property pursuant to the
Lease, or the Construction Agent shall purchase any Property pursuant to the
Agency Agreement, or if any Property shall be sold in accordance with Article
XXII of the Lease, then, upon satisfaction by the Owner Trustee of its
obligation to prepay the Loans, Holder Advances and all other amounts owing to
the Lenders and the Holders under the Operative Agreements, the Agent is hereby
authorized and directed to release such Property from the liens created by the
Security Documents to the extent of its interest therein. In addition, upon the
termination of the Commitments and the Holder Commitments and the payment in
full of the Loans, the Holder Advances and all other amounts owing by the Owner
Trustee and the Lessee hereunder or under any other Operative Agreement the
Agent is hereby authorized and directed to release all of the Properties from
the Liens created by the Security Documents to the extent of its interest
therein. Upon request of the Owner Trustee following any such release, the Agent
shall, at the sole cost and expense of the Lessee, execute and deliver to the
Owner Trustee and the Lessee such documents as the Owner Trustee or the Lessee
shall reasonably request to evidence such release.
SECTION 9. CREDIT AGREEMENT AND TRUST AGREEMENT.
9.1. THE CONSTRUCTION AGENT'S AND THE LESSEE'S CREDIT AGREEMENT
RIGHTS.
Notwithstanding anything to the contrary contained in the Credit
Agreement, the Agent,
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the Lenders, the Holders, the Construction Agent, the Lessee and the Owner
Trustee hereby agree that, prior to the occurrence and continuation of any
Default or Event of Default, the Construction Agent or the Lessee, as the case
may be, shall have the following rights:
(a) the right to designate an account to which amounts funded
under the Operative Agreements shall be credited pursuant to Section
2.3(a) of the Credit Agreement;
(b) the right to terminate the Commitments pursuant to
Section 2.5(a) of the Credit Agreement;
(c) the right to exercise the conversion and continuation
options pursuant to Section 2.7 of the Credit Agreement;
(d) the right to receive any notice and any certificate, in
each case issued pursuant to Section 2.11(a) of the Credit Agreement;
(e) the right to replace any Lender pursuant to Section
2.11(b) of the Credit Agreement;
(f) the right to approve any successor agent pursuant to
Section 7.9 of the Credit Agreement; and
(g) 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.
9.2. THE CONSTRUCTION AGENT'S AND THE 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 Default or
Event of Default, the Construction Agent or the Lessee, as the case may be,
shall have the following rights:
(a) the right to exercise the conversion and continuation
options pursuant to Section 3.8 of the Trust Agreement;
(b) the right to receive any notice and any certificate, in
each case issued pursuant to Section 3.9(a) of the Trust Agreement;
(c) the right to replace any Holder pursuant to Section
3.9(b) of the Trust Agreement;
(d) the right to exercise the removal options contained in
Section 9.1 of the Trust Agreement; provided, however, that no removal
of the Owner Trustee and appointment of a successor Owner Trustee by the
Holders pursuant to Section 9.1 of the Trust Agreement shall be made
without the prior written consent (not to be unreasonably
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withheld or delayed) of the Lessee.
SECTION 10. TRANSFER OF INTEREST.
10.1. RESTRICTIONS ON TRANSFER.
Each Lender may participate, assign or transfer all or a portion of its
interest hereunder and under the other Operative Agreements in accordance with
Sections 9.7 and 9.8 of the Credit Agreement; provided, that (a) in the case of
an assignment only, such Lender obtains the prior consent of the Lessee, such
consent not to be unreasonably withheld or delayed and (b) each Lender that
participates, assigns or transfers all or a portion of its interest hereunder
and under the other Operative Agreements shall deliver to the Agent a copy of
each Assignment and Acceptance (as referenced in Section 9.8 of the Credit
Agreement) for purposes of maintaining the Register. 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 the Lessee (which consent shall not be unreasonably
withheld or delayed) and in accordance with the terms of Section 11.8(b) of the
Trust Agreement. The Owner Trustee may, subject to the rights of the Lessee
under the Lease and the other Operative Agreements and to the Lien of the
applicable Security Documents but only with the prior written consent of the
Agent (which consent may be withheld by the Agent in its sole discretion) and
(provided, no Default or Event of Default has occurred and is continuing) with
the consent of the Lessee, directly or indirectly, assign, convey, appoint an
agent with respect to enforcement of, or otherwise transfer any of its right,
title or interest in or to any Property, the Lease, the Trust Agreement and the
other Operative Agreements (including 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 the terms and conditions of the Lease. Neither the
Lessee nor the Construction Agent may assign any of the Operative Agreements or
any of their respective rights or obligations thereunder or with respect to any
Property in whole or in part to any Person without the prior written consent of
the Agent, the Lenders, the Holders and the Lessor.
10.2. EFFECT OF TRANSFER.
From and after any transfer effected in accordance with this Section 10,
the transferor shall be released, to the extent of such transfer, from its
liability hereunder and under the other documents to which it is a party in
respect of obligations to be performed on or after the date of such transfer;
provided, however, that any transferor shall remain liable hereunder and under
such other documents to the extent that the transferee shall not have assumed
the obligations of the transferor thereunder. Upon any transfer by the Owner
Trustee, a Holder or a Lender as above provided, any such transferee shall
assume the obligations of the Owner Trustee, the Holder or the Lender, as the
case may be, and shall be deemed an "Owner Trustee", "Holder", or "Lender", as
the case may be, for all purposes of such documents and each reference herein to
the transferor shall thereafter be deemed a reference to such transferee for all
purposes, except as provided in the preceding sentence. Notwithstanding any
transfer of all or a portion of the
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transferor's interest as provided in this Section 10, the transferor shall be
entitled to all benefits accrued and all rights vested prior to such transfer
including without limitation rights to indemnification under any such document.
SECTION 11. INDEMNIFICATION.
11.1. GENERAL INDEMNITY.
Subject to and limited by in all respects the provisions of Sections
11.6 through 11.8 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 third party, including
without limitation Claims arising from the negligence of an Indemnified Person
(but not to the extent such Claims arise from the gross negligence or willful
misconduct of such Indemnified Person, as determined by a court of competent
jurisdiction or to the extent the subject matter of such Claims arise solely
from events or circumstances arising after the Expiration Date) in any way
relating to or arising or alleged to arise out of the execution, delivery,
performance or enforcement of this Agreement, the Lease or any other Operative
Agreement or on or with respect to any Property or any component thereof,
including 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, occupancy,
operation, maintenance repair, modification, transportation, condition, sale,
return, repossession (whether by summary proceedings or otherwise), or any other
disposition of any Property or any part thereof, including without limitation
the acquisition, holding or disposition of any interest in the Property, lease
or agreement comprising a portion of any thereof; (b) any latent or other
defects in any Property or any portion thereof whether or not discoverable by an
Indemnified Person or the Indemnity Provider; (c) a violation of Environmental
Laws, Environmental Claims or other loss of or damage to any property or the
environment relating to the Property, the Lease, the Agency Agreement or the
Indemnity Provider; (d) the Operative Agreements, or any transaction
contemplated thereby; (e) any breach by the Indemnity Provider of any of its
representations or warranties under the Operative Agreements to which the
Indemnity Provider is a party or failure by the Indemnity Provider 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) personal injury, death or property damage, including
without limitation Claims based on strict or absolute liability in tort; and (h)
any fees, expenses and/or other assessments by any business park or any other
applicable entity with oversight responsibility for the applicable Property.
If a written Claim is made against any Indemnified Person or if any
proceeding shall be commenced against such Indemnified Person (including without
limitation a written notice of such proceeding), for any Claim for which the
Indemnified Person is entitled to indemnification hereunder, such Indemnified
Person shall promptly notify the Indemnity Provider in writing and
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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 period of thirty (30) days, such Indemnified Person shall endeavor to, 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 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 and only to the extent such
failure precludes in all respects or materially prejudices the Indemnity
Provider in respect of contesting such Claim and, in the case of any such
material prejudice, the Indemnity Provider's obligation hereunder shall be
diminished only to the extent of such material prejudice.
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, in the Indemnity
Provider's reasonable discretion, 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 (and
notwithstanding the provisions of the foregoing subsection (A)), the 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;
provided, however, that any Indemnified Person may retain separate counsel at
the expense of the Indemnity Provider in the event of a conflict of interest
between such Indemnified Person and the Indemnity Provider)) 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. 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
11.1 by way of indemnification or advance for the payment of an amount regarding
such Claim.
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Notwithstanding the foregoing provisions of this Section 11.1, an
Indemnified Person shall not be required to take any action and the Indemnity
Provider shall not 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 and the
Indemnity Provider shall have agreed that the Claim is an indemnifiable Claim
hereunder, (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 the 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) prior to the date such payment is due, (D) no
Event of Default shall have occurred and be continuing. In no event shall an
Indemnified Person be required to appeal an adverse judicial determination to
the United States Supreme Court. In addition, an Indemnified Person shall not be
required to contest any Claim in its name (or that of an Affiliate) if the
subject matter thereof shall be of a continuing nature and shall have previously
been decided adversely by a court of competent jurisdiction pursuant to the
contest provisions of this Section 11.1, 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 Indemnity Provider and reasonably acceptable to the Indemnified
Person 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. In no event shall the Indemnity Provider be permitted to adjust or
settle any Claim without the consent of the Indemnified Person to the extent any
such adjustment or settlement involves, or is reasonably likely to involve, any
performance by or adverse admission by or with respect to the Indemnified
Person.
11.2. GENERAL TAX INDEMNITY.
(a) Subject to and limited by in all respects the provisions
of Sections 11.6 through 11.8, 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, and all payments
pursuant to the Operative Agreements shall be made free and clear of and
without deduction for any and all present and future Impositions.
(b) Notwithstanding anything to the contrary in Section
11.2(a) hereof, the following shall be excluded from the indemnity
required by Section 11.2(a) (collectively, the "Excluded Taxes"):
(i) Taxes (other than Taxes that are, or are in the
nature of, sales, use, rental, value added, transfer or property
taxes) that are imposed on a Indemnified
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Person (other than the Lessor, the Owner Trustee and the Trust)
by the United States federal government that are based on or
measured by the gross or net income or gross or net receipts
(including without limitation taxes based on capital gains and
minimum taxes or taxes measured on, by or in the nature of
capital net worth, excess profits, items of tax preference,
capital stock or franchise, business privilege or doing business
taxes) of such Person; provided, 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 (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 the
Lessor, the Owner Trustee and the Trust) by any state or local
jurisdiction or taxing authority within any state or local
jurisdiction and that are based upon or measured by the gross or
net income or gross or net receipts (including without limitation
taxes based on capital gains and minimum taxes or taxes measured
on, by or in the nature of capital net worth, excess profits,
items of tax preference, capital stock or franchise, business
privilege or doing business taxes) of such Person; provided that
such Taxes shall not be excluded under this subparagraph (ii) to
the extent such Taxes would have been imposed had the location,
possession or use of any Property in, the location or the
operation of the Lessee in, or the Lessee's making payments under
the Operative Agreements from, the jurisdiction imposing such
Taxes been the sole connection between such Indemnified Person
and the jurisdiction imposing such Taxes; 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 to the 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 that relates to such
termination, redelivery or sale and/or to any period prior to
such termination, redelivery or sale);
(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 determined by a court of
competent jurisdiction, but not Taxes imposed as a result of
ordinary negligence of such Indemnified Person;
(v) Taxes imposed on or payable by a Tax Indemnitee
to the extent such Taxes would not have been imposed but for a
breach by the Tax Indemnitee or any Affiliate thereof of any
representations, warranties or covenants set forth in the
Operative Agreements (unless such breach was in turn caused by a
breach by the Lessee of its representations, warranties or
covenants set forth in the Operative Agreements); and
(vi) Taxes or Impositions imposed on an Indemnified
Person if, as a
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direct result of an event giving rise to an indemnity payment,
such Indemnified Person actually receives a credit (or otherwise
has a reduction in liability for Taxes) in respect thereof
against Taxes that are not indemnified under the Operative
Agreements (but only to the extent such credit is not taken into
account in calculating the indemnity payment on an After Tax
Basis).
(c) (i) Subject to the terms of Section 11.2(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 11.2(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 without limitation the computation of the
amount payable), accompanied by receipts or other reasonable
evidence of such demand. In the case of Impositions for which a
contest is conducted pursuant to Section 11.2(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 11.2(f).
(iii) 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 fifteen
percent (15%) or more of the payment as computed by the
Indemnified Person, in which case such fee shall be paid by the
Indemnified Person.
(d) The Indemnity Provider shall be responsible for preparing
and filing any real and personal property or ad valorem tax returns in
respect of each Property and any other tax returns required for the
Owner Trustee respecting the transactions described in the Operative
Agreements. 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
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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 prepare and file such report or return)
(A) to the extent required or permitted by and consistent with Legal
Requirements, make and file in the 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 each
Property which the Indemnity Provider may reasonably require to prepare
any required tax returns or reports.
(e) As between the Indemnity Provider on one hand, and each
Financing Party on the other hand, the Indemnity Provider shall be
responsible for, and the Indemnity Provider shall indemnify and hold
harmless each Financing Party (without duplication of any
indemnification required by this Section 11.2 on an After Tax Basis
against, any obligation for United States or foreign withholding taxes
or similar levies, imposts, charges, fees, deductions or withholdings
(collectively, "Withholdings") imposed in respect of the interest
payable on the Notes, Holder Yield payable on the Certificates or with
respect to any other payments under the Operative Agreements (all such
payments being referred to herein as "Exempt Payments" to be made
without deduction, withholding or set off) (and, if any Financing Party
receives a demand for such payment from any taxing authority or a
Withholding is otherwise required with respect to any Exempt Payment,
the Indemnity Provider shall discharge such demand on behalf of such
Financing Party); provided, however, that the obligation of the
Indemnity Provider under this Section 11.2(e) shall not apply to:
(i) Withholdings on any Exempt Payment to any
Financing Party which is a non-U.S. Person unless such Financing
Party is, on the date hereof (or on the date it becomes a
Financing Party hereunder) and on the date of any change in the
principal place of business or the lending office of such
Financing Party, entitled to submit a Form 1001 (relating to such
Financing Party and entitling it to a complete exemption from
Withholding on such Exempt Payment) or Form 4224 or is otherwise
subject to exemption from Withholding with respect to such Exempt
Payment (except where the failure of the exemption results from a
change in the principal place of business of the Lessee; provided
if a failure of exemption for any Financing Party results from a
change in the principal place of business or lending office of
any other Financing Party, then such other Financing Party shall
be liable for any Withholding or indemnity with respect thereto),
or
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(ii) Any U.S. Taxes imposed solely by reason of the
failure by a non-U.S. Person to comply with applicable
certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or
connections with the United States of America of such non-U.S.
Person if such compliance is required by statute or regulation of
the United States of America as a precondition to relief or
exemption from such U.S. Taxes.
For the purposes of this Section 11.2(e), (A) "U.S. Person" shall mean a
citizen, national or resident of the United States of America, a
corporation, partnership or other entity created or organized in or
under any laws of the United States of America or any State thereof, or
any estate or trust that is subject to Federal income taxation
regardless of the source of its income, (B) "U.S. Taxes" shall mean any
present or future tax, assessment or other charge or levy imposed by or
on behalf of the United States of America or any taxing authority
thereof or therein, (C) "Form 1001" shall mean Form 1001 (Ownership,
Exemption, or Reduced Rate Certificate) of the Department of the
Treasury of the United States of America and (D) "Form 4224" shall mean
Form 4224(R) (Exemption from Withholding of Tax on Income Effectively
Connected with the Conduct of a Trade or Business in the United States)
of the Department of Treasury of the United States of America (or in
relation to either such Form such successor and related forms as may
from time to time be adopted by the relevant taxing authorities of the
United States of America to document a claim to which such Form
relates). Each of the Forms referred to in the foregoing clauses (C) and
(D) shall include such successor and related forms as may from time to
time be adopted by the relevant taxing authorities of the United States
of America to document a claim to which such Form relates.
If a Financing Party or an Affiliate with whom such Financing
Party files a consolidated tax return (or equivalent) subsequently
receives the benefit in any country of a tax credit or an allowance
resulting from U.S. Taxes with respect to which it has received a
payment of an additional amount under this Section 11.2(e), such
Financing Party will pay to the Indemnity Provider such part of that
benefit as in the opinion of such Financing Party will leave it (after
such payment) in a position no more and no less favorable than it would
have been in if no additional payment had been required to be paid,
provided always that (i) such Financing Party will be the sole judge of
the amount of any such benefit and of the date on which it is received,
(ii) such Financing Party will have the absolute discretion as to the
order and manner in which it employs or claims tax credits and
allowances available to it and (iii) such Financing Party will not be
obliged to disclose to the Indemnity Provider any information regarding
its tax affairs or tax computations.
Each non-U.S. Person that shall become a Financing Party after
the date hereof shall, upon the effectiveness of the related transfer or
otherwise upon becoming a Financing Party hereunder, be required to
provide all of the forms and statements referenced above or other
evidences of exemption from Withholdings.
(f) If a written Claim is made against any Indemnified Person
or if any
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proceeding shall be commenced against such Indemnified Person (including
without limitation a written notice of such proceeding), for any
Impositions, the provisions in Section 11.1 relating to notification and
rights to contest shall apply; provided, however, that the Indemnity
Provider shall have the right to conduct and control such contest only
if such contest involves a Tax other than a Tax on net income of the
Indemnified Person and can be pursued independently from any other
proceeding involving a Tax liability of such Indemnified Person.
11.3. INCREASED COSTS, ILLEGALITY, ETC.
(a) If, due to either (i) the introduction of or any change
in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request hereafter adopted, promulgated
or made by any central bank or other governmental authority (whether or
not having the force of law), there shall be any increase in the cost to
any Financing Party of agreeing to make or making, funding or
maintaining Advances, then the Lessee shall from time to time, upon
demand by such Financing Party (with a copy of such demand to the Agent
but subject to the terms of Section 2.11 of the Credit Agreement and 3.9
of the Trust Agreement, as the case may be), pay to the Agent for the
account of such Financing Party additional amounts sufficient to
compensate such Financing Party for such increased cost. A certificate
as to the amount of such increased cost, submitted to the Lessee and the
Agent by such Financing Party, shall be conclusive and binding for all
purposes, absent manifest error.
(b) Subject to the last sentence of this Section 11.3(b), if
any Financing Party determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law, but in
each case promulgated or made after the date hereof) affects or would
affect the amount of capital required or expected to be maintained by
such Financing Party or any corporation controlling such Financing Party
and that the amount of such capital is increased by or based upon the
existence of such Financing Party's commitment to make Advances and
other commitments of this type or upon the Advances, then, upon demand
by such Financing Party (with a copy of such demand to the Agent but
subject to the terms of Section 2.11 of the Credit Agreement and 3.9 of
the Trust Agreement), the Lessee shall pay to the Agent for the account
of such Financing Party, from time to time as specified by such
Financing Party, additional amounts sufficient to compensate such
Financing Party or such corporation in the light of such circumstances,
to the extent that such Financing Party reasonably determines such
increase in capital to be allocable to the existence of such Financing
Party's commitment to make such Advances. A certificate as to such
amounts submitted to the Lessee and the Agent by such Financing Party
shall be conclusive and binding for all purposes, absent manifest error.
Prior to the Construction Period Termination Date for any particular
Property, this Section 11.3(b) shall only apply to Eurodollar Holder
Advances and Eurodollar Loans.
(c) Without affecting its rights under Sections 11.3(a),
11.3(b) or any other provision of any Operative Agreement, each
Financing Party agrees that if there is any increase in any cost to or
reduction in any amount receivable by such Financing Party
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with respect to which the Lessee would be obligated to compensate such
Financing Party pursuant to Sections 11.3(a) or 11.3(b), such Financing
Party shall use reasonable efforts to select an alternative office for
Advances which would not result in any such increase in any cost to or
reduction in any amount receivable by such Financing Party; provided,
however, that no Financing Party shall be obligated to select an
alternative office for Advances if such Financing Party determines that
(i) as a result of such selection such Financing Party would be in
violation of any applicable law, regulation, treaty, or guideline, or
would incur additional costs or expenses or (ii) such selection would be
inadvisable for regulatory reasons or materially inconsistent with the
interests of such Financing Party.
(d) With reference to the obligations of the Lessee set forth
in Sections 11.3(a) through 11.3(c), the Lessee shall not have any
obligation to pay to any Financing Party amounts owing under such
Sections for any period which is more than 270 days prior to the date
upon which the request for payment therefor is delivered to the Lessee.
(e) Notwithstanding any other provision of this Agreement, if
any Financing Party shall notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts
that it is unlawful, for any Financing Party to perform its obligations
hereunder to make or maintain Eurodollar Loans or Eurodollar Holder
Advances, as the case may be, then (i) each Eurodollar Loan or
Eurodollar Holder Advance, as the case may be, will automatically, at
the earlier of the end of the Interest Period for such Eurodollar Loan
or Eurodollar Holder Advance, as the case may be, or the date required
by law, convert into an ABR Loan or an ABR Holder Advance, as the case
may be, and (iii) the obligation of the Financing Parties to make,
convert or continue Eurodollar Loans or Eurodollar Holder Advances, as
the case may be, shall be suspended until the Agent shall notify the
Lessee that such Financing Party has determined that the circumstances
causing such suspension no longer exist.
11.4. FUNDING/CONTRIBUTION INDEMNITY.
Subject to the provisions of Section 2.11(a) of the Credit Agreement and
3.9(a) of the Trust Agreement, as the case may be, the Lessee agrees to
indemnify each Financing Party and to hold each Financing Party harmless from
any loss or reasonable expense which such Financing Party may sustain or incur
as a consequence of (a) any default in connection with the drawing of funds for
any Advance, (b) any default in making any prepayment after a notice thereof has
been given in accordance with the provisions of the Operative Agreements or (c)
the making of a voluntary or involuntary payment of Eurodollar Loans or
Eurodollar Holder Advances, as the case may be, on a day which is not the last
day of an Interest Period with respect thereto. Such indemnification shall be in
an amount equal to the excess, if any, of (x) the amount of interest or Holder
Yield, as the case may be, which would have accrued on the amount so paid, or
not so borrowed, accepted, converted or continued for the period from the date
of such payment or of such failure to borrow, accept, convert or continue to the
last day of such Interest Period (or, in the case of a failure to borrow,
accept, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable
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Eurodollar Rate plus the Applicable Percentage for such Loan or Holder Advance,
as the case may be, for such Interest Period over (y) the amount of interest (as
determined by such Financing Party in its reasonable discretion) which would
have accrued to such Financing Party on such amount by (i) (in the case of the
Lenders) reemploying such funds in loans of the same type and amount during the
period from the date of payment or failure to borrow to the last day of the then
applicable Interest Period (or, in the case of a failure to borrow, the Interest
Period that would have commenced on the date of such failure) and (ii) (in the
case of the Holders) placing such amount on deposit for a comparable period with
leading banks in the relevant interest rate market. This covenant shall survive
the termination of the Operative Agreements and the payment of all other amounts
payable hereunder.
11.5. EXPRESS INDEMNIFICATION FOR ORDINARY NEGLIGENCE, STRICT
LIABILITY, ETC.
SUBJECT TO AND LIMITED BY IN ALL RESPECTS THE PROVISIONS OF SECTION 11.6
THROUGH 11.8 AND WITHOUT LIMITING THE GENERALITY OF THE INDEMNIFICATION
PROVISIONS OF ANY AND ALL OF THE OPERATIVE AGREEMENTS, EACH PERSON PROVIDING
INDEMNIFICATION OF ANOTHER PERSON UNDER ANY OPERATIVE AGREEMENT HEREBY FURTHER
EXPRESSLY RELEASES EACH BENEFICIARY OF ANY SUCH INDEMNIFICATION FROM ALL CLAIMS
FOR LOSS OR DAMAGE, DESCRIBED IN ANY OPERATIVE AGREEMENT, CAUSED BY ANY ACT OR
OMISSION ON THE PART OF ANY SUCH BENEFICIARY ATTRIBUTABLE TO THE ORDINARY
NEGLIGENCE (WHETHER SOLE OR CONTRIBUTORY) OR STRICT LIABILITY OF ANY SUCH
BENEFICIARY, AND INDEMNIFIES, EXONERATES AND HOLDS EACH SUCH BENEFICIARY FREE
AND HARMLESS FROM AND AGAINST ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS,
CLAIMS, LOSSES, COSTS, LIABILITIES, DAMAGES AND EXPENSES (INCLUDING WITHOUT
LIMITATION ATTORNEY'S FEES AND EXPENSES), DESCRIBED ABOVE, INCURRED BY ANY SUCH
BENEFICIARY (IRRESPECTIVE OF WHETHER ANY SUCH BENEFICIARY IS A PARTY TO THE
ACTION FOR WHICH INDEMNIFICATION UNDER THIS AGREEMENT OR ANY OTHER OPERATIVE
AGREEMENT IS SOUGHT) ATTRIBUTABLE TO THE ORDINARY NEGLIGENCE (WHETHER SOLE OR
CONTRIBUTORY) OR STRICT LIABILITY OF ANY SUCH BENEFICIARY.
11.6. ADDITIONAL PROVISIONS REGARDING ENVIRONMENTAL INDEMNIFICATION.
Each and every Indemnified Person shall at all times have the rights and
benefits, and the Indemnity Provider shall have the obligations, in each case
provided pursuant to the Operative Agreements with respect to environmental
matters, violations of any Environmental Law, any Environmental Claim or other
loss of or damage to any property or the environment relating to any Property,
the Lease, the Agency Agreement or the Indemnity Provider (including without
limitation the rights and benefits provided pursuant to Section 11.1(c)).
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11.7. ADDITIONAL PROVISIONS REGARDING INDEMNIFICATION.
Notwithstanding the provisions of Sections 11.1, 11.2, 11.3, 11.4 and
11.5 (other than with respect to matters concerning environmental
indemnification referenced in Section 11.6), (a) the Owner Trustee shall be the
only beneficiary of the provisions set forth in Sections 11.1, 11.2, 11.3, 11.4
and 11.5 (again, subject to the immediately preceding parenthetical phrase) with
respect to each Property solely for the period prior to the earlier to occur of
the applicable Completion Date or Construction Period Termination Date for such
Property, as applicable, (b) such limited rights of indemnification referenced
in Section 11.7(a) (to the extent relating to third-party claims) shall be
limited to third-party claims caused by or resulting from the Indemnity
Provider's acts or omissions and/or all other Persons acting by, through or
under the Indemnity Provider. After the earlier to occur of the applicable
Completion Date or Construction Period Termination Date for such Property, as
applicable, each Indemnified Person shall be a beneficiary of the provisions set
forth in Sections 11.1, 11.2, 11.3, 11.4 and 11.5. Lessee shall not be obligated
to indemnify an Indemnified Party for any Claim to the extent such Claim is
directly attributable to the imposition of a Lessor Lien that such Indemnified
Party is responsible for discharging under the Operative Agreements.
11.8. INDEMNIFICATIONS PROVIDED BY THE OWNER TRUSTEE IN FAVOR OF THE
OTHER INDEMNIFIED PERSONS.
To the extent the Indemnity Provider is not obligated to indemnify each
Indemnified Person with respect to the various matters described in this Section
11.8, the Owner Trustee shall provide such indemnities (but only to the extent
amounts sufficient to pay such indemnity are funded by the Lenders and the
Holders) in favor of each Indemnified Person in accordance with this Section
11.8 and shall pay all such amounts owed with respect to this Section 11.8 with
amounts advanced by the Lenders and the Holders (a) to the extent, but only to
the extent, amounts are available therefor with respect to the Available
Commitments and the Available Holder Commitments (subject to the rights of the
Lenders and the Holders to increase their respective commitment amounts in
accordance with the provisions of Section 5.9) 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 (ratably, based on the ratio of the Property Cost
for each Property individually to the Aggregate Property Cost of all Properties
at such time) to the Property Cost of all Properties then subject to the terms
of the Operative Agreements.
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 third party, including without
limitation Claims arising from the negligence of an Indemnified Person (but not
to the extent such Claims arise from the gross negligence or willful misconduct
of such Indemnified Person itself, as determined by a court of competent
jurisdiction, as opposed to gross negligence or willful misconduct imputed to
such Indemnified Person or breach of such Indemnified Person's obligations under
this Agreement, the Lease or any other Operative Agreement) in any way relating
to or arising or alleged to arise out of the execution, delivery, performance or
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enforcement of this Agreement, the Lease or any other Operative Agreement or on
or with respect to any Property or any component thereof, including without
limitation Claims in any way relating to or arising or alleged to arise out of
the matters set forth in Sections 11.1(a) through 11.1(h).
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,
and all payments pursuant to the Operative Agreements shall be made free and
clear of and without deduction for any and all present and future Impositions.
Notwithstanding anything to the contrary in this paragraph, the Excluded Taxes
shall be excluded from the indemnity provisions afforded by this paragraph.
THE INDEMNITY OBLIGATIONS UNDERTAKEN BY THE OWNER TRUSTEE PURSUANT TO
THIS SECTION 11.8 ARE IN ALL RESPECTS SUBJECT TO THE LIMITATIONS ON LIABILITY
REFERENCED IN SECTION 12.9.
SECTION 12. MISCELLANEOUS.
12.1. 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 the Operative Agreements, the transfer of any Property to the Owner Trustee,
the acquisition of any Property (or any of its components), the construction of
any Improvements, the Completion of any Property, any disposition of any
interest of the Owner Trustee in any Property or any interest of the Holders in
the Trust Estate, the payment of the Notes and any disposition thereof and shall
be and continue in effect notwithstanding any investigation made by any party
and the fact that any party may waive compliance with any of the other terms,
provisions or conditions of any of the Operative Agreements. Except as otherwise
expressly set forth herein or in other Operative Agreements, the indemnities of
the parties provided for in the Operative Agreements shall survive the
expiration or termination of any thereof.
12.2. NOTICES.
All notices required or permitted to be given under any Operative
Agreement shall be in writing. Notices may be served by certified or registered
mail, postage paid with return receipt requested; by private courier, prepaid;
by telex, facsimile, or other telecommunication device capable of transmitting
or creating a written record; or personally. Mailed notices shall be deemed
delivered five (5) days after mailing, properly addressed. Couriered notices
shall be deemed delivered when delivered as addressed, or if the addressee
refuses delivery, when presented for delivery notwithstanding such refusal.
Telex or telecommunicated notices shall be deemed delivered when receipt is
either confirmed by confirming transmission equipment or acknowledged by the
addressee or its office. Personal delivery shall be effective when accomplished.
Unless a party changes its address by giving notice to the other party as
provided
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herein, notices shall be delivered to the parties at the following addresses:
If to the Construction Agent or the Lessee, to such entity at the
following address:
Lexicon Genetics Incorporated
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx
Director of Administration and Finance
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Owner Trustee, to it at the following address:
First Security Bank, National Association
00 Xxxxx Xxxx Xxxxxx, Xxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxx X. Xxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Holders, to each such Holder at the address set forth
for such Holder on Schedule I of the Trust Agreement.
If to the Agent, to it at the following address:
Bank of America, N.A.
Bank of America Tower
000 Xxxxxxxx Xxxxxx
Mailcode: TX9-329-11-01
Xxxxxx, Xxxxx 00000-0000
Attention: W. Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to any Lender, to it at the address set forth for such Lender
in Schedule 2.1 of the Credit Agreement.
From time to time any party may designate additional parties
and/or another address for notice purposes by notice to each of the
other parties hereto. Each notice hereunder shall be effective upon
receipt or refusal thereof.
12.3. COUNTERPARTS.
This Agreement may be executed by the parties hereto in separate
counterparts, each of
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which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one (1) and the same instrument.
12.4. TERMINATIONS, AMENDMENTS, WAIVERS, 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 VIII of
the Trust Agreement regarding termination of the Trust Agreement, the Majority
Secured Parties and the Lessee and/or the Construction Agent (to the extent the
Lessee and/or the Construction Agent is a party to such Basic Document);
provided, to the extent no Default or Event of Default shall have occurred and
be continuing, the Majority Secured 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 and/or the Construction Agent without the prior
written consent (not to be unreasonably withheld or delayed) of the Lessee
and/or the Construction Agent; and provided further, that the Lessee shall in no
event have the right to consent to modifications to the terms of (a) the Credit
Agreement required by the Lenders pursuant to Section 2.6(e) of the Credit
Agreement in connection with an extension of the maturity date of the Loans
beyond the Basic Term Expiration Date or (b) the Trust Agreement required by the
Holders pursuant to Section 3.3 of the Trust Agreement in connection with an
extension of the maturity date of the Holder Advances beyond the Basic Term
Expiration Date. 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 Lender Commitments and/or the Holder
Commitments except as otherwise provided in Section 2.5 of the Credit Agreement
and Section 3.1(e) of the Trust Agreement, 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 interest payable on any Note,
reduce the stated Holder Yield payable on any Certificate (other than as a
result of waiving the applicability of any post-default increase in interest
rates or Holder Yields), modify the priority of any Lien in favor of the Agent
under any Security Document, subordinate any obligation owed to such Lender or
Holder, reduce any Lender Unused Fees or any Holder Unused Fees payable to such
Lender or Holder (as the case may be) under this Participation Agreement, extend
the scheduled date of payment of any Lender Unused Fees or any Holder Unused
Fees payable to such Lender or Holder (as the case may be), or extend the
expiration date of such Lender's Commitment or the Holder Commitment of such
Holder, or (ii) terminate, amend, supplement, waive or modify any provision of
this Section 12.4 or reduce the percentages specified in the definitions of
Majority Lenders, Majority Holders or Majority Secured Parties, or consent to
the assignment or transfer by the Owner Trustee of any of its rights and
obligations under any Credit Document or release a material portion of the
Collateral (except in accordance with Section 8.8) or release the Lessee from
its obligations under any Operative Agreement or otherwise alter any payment
obligations of the Lessee to the Lessor or any Financing Party under the
Operative Agreements, or (iii)
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terminate, amend, supplement, waive or modify any provision of Section 7 of the
Credit Agreement (which shall also require the consent of the Agent), or (iv)
eliminate the automatic option under Section 5.3(b) of the Agency Agreement
requiring that the Construction Agent pay certain liquidated damages in exchange
for the conveyance of a Property to the Construction Agent, or (v) permit the
extension of the Construction Period beyond the date that is two (2) years from
the Initial Closing Date. 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. The parties to this Agreement agree that any increase
in the aggregate Lender Commitments and/or any increase in the Holder
Commitments shall be a matter decided by the Majority Secured Parties; provided,
the Lender Commitment of any Lender shall not be increased without its consent
(which consent may be given or withheld in the sole discretion of such Lender)
and the Holder Commitment of any Holder shall not be increased without its
consent (which consent may be given or withheld in the sole discretion of such
Holder).
If at a time when the conditions precedent set forth in the Operative
Agreements to any Loan are, in the opinion of the Majority Lenders, satisfied,
any Lender shall fail to fulfill its obligations to make such Loan (any such
Lender, a "Defaulting Lender") then, for so long as such failure shall continue,
the Defaulting Lender shall (unless the Lessee and the Majority Lenders,
determined as if the Defaulting Lender were not a "Lender", shall otherwise
consent in writing) be deemed for all purposes relating to terminations,
amendments, supplements, waivers or modifications under the Operative Agreements
to have no Loans, shall not be treated as a "Lender" when performing the
computation of Majority Lenders or Majority Secured Parties, and shall have no
rights under this Section 12.4; provided that any action taken pursuant to the
second paragraph of this Section 12.4 shall not be effective as against the
Defaulting Lender. Nothing herein shall relieve the Defaulting Lender from any
of its obligations under the Operative Agreements.
If at a time when the conditions precedent set forth in the Operative
Agreements to any Holder Advance are, in the opinion of the Majority Holders,
satisfied, any Holder shall fail to fulfill its obligations to make such Holder
Advance (any such Holder, a "Defaulting Holder") then, for so long as such
failure shall continue, the Defaulting Holder shall (unless the Lessee and the
Majority Holders, determined as if the Defaulting Holder were not a "Holder",
shall otherwise consent in writing) be deemed for all purposes relating to
terminations, amendments, supplements, waivers or modifications under the
Operative Agreements to have no Holder Advances, shall not be treated as a
"Holder" when performing the computation of Majority Holders or Majority Secured
Parties, and shall have no rights under this Section 12.4; provided that any
action taken pursuant to the second paragraph of this Section 12.4 shall not be
effective as against the Defaulting Holder. Nothing herein shall relieve the
Defaulting Holder from any of its obligations under the Operative Agreements.
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12.5. HEADINGS, ETC.
The Table of Contents and headings of the various Articles and Sections
of this Agreement are for convenience of reference only and shall not modify,
define, expand or limit any of the terms or provisions hereof.
12.6. PARTIES IN INTEREST.
Except as expressly provided herein, none of the provisions of this
Agreement are intended for the benefit of any Person except the parties hereto.
12.7. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL;
VENUE.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NORTH
CAROLINA (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO
CONFLICTS OF LAW). Any legal action or proceeding with respect to this
Agreement or any other Operative Agreement may be brought in the courts
of the State of North Carolina in Mecklenburg County or of the United
States for the Western District of North Carolina, and, by execution and
delivery of this Agreement, each of the parties to this Agreement hereby
irrevocably accepts for itself and in respect of its property, generally
and unconditionally, the nonexclusive jurisdiction of such courts. Each
of the parties to this Agreement further irrevocably consents to the
service of process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to it at the address set out for
notices pursuant to Section 12.2, such service to become effective three
(3) days after such mailing. Nothing herein shall affect the right of
any party to serve process in any other manner permitted by Law or to
commence legal proceedings or to otherwise proceed against any party in
any other jurisdiction.
(b) EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT, ANY OTHER OPERATIVE AGREEMENT AND FOR ANY COUNTERCLAIM
THEREIN.
(c) Each of the parties to this Agreement hereby irrevocably
waives any objection which it may now or hereafter have to the laying of
venue of any of the aforesaid actions or proceedings arising out of or
in connection with this Agreement or any other Operative Agreement
brought in the courts referred to in subsection (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum.
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12.8. SEVERABILITY.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
12.9. LIABILITY LIMITED.
(a) The Lenders, the Agent, the Lessee, the Owner Trustee 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 to the extent otherwise provided in
Section 6.1 of this Agreement), solely in its capacity as trustee under
the Trust Agreement and not in its individual capacity and that the
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 as otherwise expressly provided herein or in the
other Operative Agreements.
(b) Anything to the contrary contained in this Agreement, the
Credit Agreement, the Notes or in any other Operative Agreement
notwithstanding, no Exculpated Person shall be personally liable in any
respect for any liability or obligation arising hereunder or in any
other Operative Agreement including without limitation 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 Lenders, the Holders and the
Agent agree that, in the event any remedies under any Operative
Agreement are pursued, neither the Lenders, the Holders nor the Agent
shall have any recourse against any Exculpated Person, for any
deficiency, loss or Claim for monetary damages or otherwise resulting
therefrom and recourse shall be had solely and exclusively against the
Trust Estate (excluding Excepted Payments) and the Lessee (with respect
to the Lessee's obligations under the Operative Agreements); but nothing
contained herein shall be taken to prevent recourse against or the
enforcement of remedies against the Trust Estate (excluding Excepted
Payments) in respect of any and all liabilities, obligations and
undertakings contained herein and/or in any other Operative Agreement.
Notwithstanding the provisions of this Section, nothing in any Operative
Agreement shall: (i) constitute a waiver, release or discharge of any
indebtedness or obligation evidenced by the Notes and/or the
Certificates arising under any Operative Agreement or secured by any
Operative Agreement, but the same shall continue until paid or
discharged; (ii) relieve any Exculpated Person from liability and
responsibility for (but only to the extent of the damages arising by
reason of): active waste knowingly committed by any Exculpated Person
with respect to any Property, any
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fraud, gross negligence or willful misconduct on the part of any
Exculpated Person; (iii) relieve any Exculpated Person from liability
and responsibility for (but only to the extent of the moneys
misappropriated, misapplied or not turned over) (A) except for Excepted
Payments, misappropriation or misapplication by the Lessor (i.e.,
application in a manner contrary to any of the Operative Agreements) of
any insurance proceeds or condemnation award paid or delivered to the
Lessor by any Person other than the Agent, (B) except for Excepted
Payments, any deposits or any escrows or amounts owed by the
Construction Agent under the Agency Agreement held by the Lessor or (C)
except for Excepted Payments, any rent or other income received by the
Lessor from the Lessee that is not turned over to the Agent; or (iv)
affect or in any way limit the Agent's rights and remedies under any
Operative Agreement with respect to the Rents and rights and powers of
the Agent under the Operative Agreements or to obtain a judgment against
the Lessee's interest in the Properties or the Agent's rights and powers
to obtain a judgment against the Lessor (provided, that no deficiency
judgment or other money judgment shall be enforced against any
Exculpated Person except to the extent of the Lessor's interest in the
Trust Estate (excluding Excepted Payments) or to the extent the Lessor
may be liable as otherwise contemplated in clauses (ii) and (iii) of
this Section 12.9(b)).
12.10. RIGHTS OF THE LESSEE.
If at any time all obligations (i) of the Owner Trustee under the Credit
Agreement, the Security Documents and the other Operative Agreements and (ii) of
the Lessee under the Operative Agreements have in each case been satisfied or
discharged in full, then the Lessee shall be entitled to (a) terminate the Lease
and (b) receive all amounts then held under the Operative Agreements and all
proceeds with respect to 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, the Lien of the Security Documents 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.
12.11. FURTHER ASSURANCES.
The parties hereto shall promptly cause to be taken, executed,
acknowledged or delivered, at the sole expense of the Lessee, all such further
acts, conveyances, documents and assurances as the other parties may from time
to time reasonably request in order to carry out and effectuate the intent and
purposes of this 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, filings of Mortgage Instruments 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 without limitation any action specified in the preceding sentence),
or (if the 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. In addition, in connection with the sale or other
disposition of any Property or any portion thereof, the Lessee agrees to execute
such instruments of conveyance as may be reasonably required in connection
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therewith.
12.12. 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.
12.13. CONFIDENTIALITY.
Each Financing Party agrees to keep confidential any information
furnished or made available to it by the Lessee or any of its Subsidiaries
pursuant to this Agreement that is marked confidential; provided that nothing
herein shall prevent any Financing Party from disclosing such information (a) to
any other Financing Party or any Affiliate of any Financing Party, or any
officer, director, employee, agent, or advisor of any Financing Party or
Affiliate of any Financing Party, (b) to any other Person if reasonably
incidental to the administration of the credit facility provided herein, (c) as
required by any law, rule, or regulation, (d) upon the order of any court or
administrative agency, (e) upon the request or demand of any regulatory agency
or authority, (f) that is or becomes available to the public or that is or
becomes available to any Financing Party other than as a result of a disclosure
by any Financing Party prohibited by this Agreement, (g) in connection with any
litigation to which such Financing Party or any of its Affiliates may be a party
(if such Financing Party, in its reasonable good faith judgment, believes such
disclosure is necessary, appropriate or beneficial), (h) to the extent necessary
in connection with the exercise of any remedy under this Agreement or any other
Operative Agreement, and (i) subject to provisions substantially similar to
those contained in this Section, to any actual or proposed participant or
assignee.
12.14. FINANCIAL REPORTING/TAX CHARACTERIZATION.
Lessee agrees to obtain advice from its own accountants and tax counsel
regarding the financial reporting treatment and the tax characterization of the
transactions described in the Operative Agreements. Lessee further agrees that
Lessee shall not rely upon any statement of any Financing Party or any of their
respective Affiliates and/or Subsidiaries regarding any such financial reporting
treatment and/or tax characterization. Lessee further agrees that no Financing
Party shall have any liability (including without limitation with respect to any
act or omission on the part of any Financing Party) with respect to the
financial reporting treatment and/or the tax characterization of the
transactions described in the Operative Agreements.
12.15. SET-OFF.
In addition to any rights now or hereafter granted under applicable Law
and not by way of limitation of any such rights, upon and after the occurrence
of any Event of Default and during the continuance thereof, the Lenders, the
Holders, their respective Affiliates and any assignee or participant of a Lender
or a Holder in accordance with the applicable provisions of the Operative
Agreements are hereby authorized by the Lessee at any time or from time to time
during such
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period, without notice to the Lessee or to any other Person, any such notice
being hereby expressly waived, to set-off and to appropriate and to apply any
and all deposits (general or special, time or demand, including without
limitation indebtedness evidenced by certificates of deposit, whether matured or
unmatured) and any other indebtedness at any time held or owing by the Lenders,
the Holders, their respective Affiliates or any assignee or participant of a
Lender or a Holder in accordance with the applicable provisions of the Operative
Agreements to or for the credit or the account of the Lessee against and on
account of the obligations of the Lessee under the Operative Agreements
irrespective of whether or not (a) the Lenders or the Holders shall have made
any demand under any Operative Agreement or (b) the Agent shall have declared
any or all of the obligations of the Lessee under the Operative Agreements to be
due and payable and although such obligations shall be contingent or unmatured.
Notwithstanding the foregoing, neither the Agent nor any other Financing Party
shall exercise, or attempt to exercise, any right of setoff, banker's lien, or
the like, against any deposit account or property of the Lessee held by the
Agent or any other Financing Party, without the prior written consent of the
Majority Secured Parties, and any Financing Party violating this provision shall
indemnify the Agent and the other Financing Parties from any and all costs,
expenses, liabilities and damages resulting therefrom. The contractual
restriction on the exercise of setoff rights provided in the foregoing sentence
is solely for the benefit of the Agent and the Financing Parties and may not be
enforced by the Lessee.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized as of the
day and year first above written.
CONSTRUCTION AGENT
AND LESSEE: LEXICON GENETICS INCORPORATED, as
the Construction Agent and as the Lessee
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: EVP & CFO
------------------------------------
OWNER TRUSTEE
AND LESSOR: FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not individually, except as
expressly stated herein, but solely as the
Owner Trustee under the Lexi Trust 2000-1
By: /s/ C. Xxxxx Xxxxxxx
------------------------------------
Name: C. Xxxxx Xxxxxxx
------------------------------------
Title: Vice President
------------------------------------
AGENT AND LENDER: BANK OF AMERICA, N.A.,
as a Lender and as the Agent
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
------------------------------------
Title: Vice President
------------------------------------
HOLDER: BANK OF AMERICA, N.A., as a Holder
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
------------------------------------
Title: Vice President
------------------------------------
78
Schedule 6.3(z)
Brokers' Fees
[NONE]
79
Schedule 8.3B(a)(ii)
Indebtedness
[NONE]
80
EXHIBIT A
REQUISITION FORM
(Pursuant to Sections 4.2, 5.2, 5.3 and 5.4 of the Participation Agreement)
LEXICON GENETICS INCORPORATED, a Delaware corporation (the "Company")
hereby certifies as true and correct and delivers the following Requisition to
Bank of America, N.A., as the agent for the Lenders (hereinafter defined) and
respecting the Security Documents, as the agent for the Secured Parties (the
"Agent"):
Reference is made herein to that certain Participation Agreement dated
as of October 19, 2000 (as amended, modified, extended, supplemented, restated
and/or replaced from time to time, the "Participation Agreement") among the
Company, in its capacity as the Lessee and as the Construction Agent, First
Security Bank, National Association, as the Owner Trustee, the various banks and
other lending institutions which are parties thereto from time to time, as
holders (the "Holders"), the various banks and other lending institutions which
are parties thereto from time to time, as lenders (the "Lenders"), and the
Agent. Capitalized terms used herein but not otherwise defined herein shall have
the meanings set forth therefor in the Participation Agreement.
List the street address of each Property, if any, for which this Requisition is
submitted:
Check as applicable:
____ INITIAL CLOSING DATE: _________________
(three (3) Business Days prior notice required for Advance)
____ PROPERTY CLOSING DATE:_________________
(three (3) Business Days prior notice required for Advance)
____ CONSTRUCTION ADVANCE DATE:_____________
(three (3) Business Days prior notice required for Advance)
1. Transaction Expenses and other fees, expenses, disbursements and all
other amounts contemplated to be financed under the Participation
Agreement including without limitation any Work, broker's fees, taxes,
recording fees and the like (with supporting invoices or closing
statement attached):
A-1
81
Party to Whom Amount Owed
Amount is Owed (in U.S. Dollars)
-------------- --------------
-------------- --------------
-------------- --------------
-------------- --------------
-------------- --------------
2. Description of Land (which shall be a legal description of the Land in
connection with an Advance to pay Property Acquisition Costs): See
attached Schedule 1
3. Description of Improvements: See attached Schedule 2
4. Description of Equipment: See attached Schedule 3
5. Description of Work: See attached Schedule 4
6. Aggregate Loans and Holder Advances requested since the Initial Closing
Date with respect to each Property for which Advances are requested
under this Requisition (listed on a Property by Property basis),
including without limitation all amounts requested under this
Requisition: [IDENTIFY ON A PROPERTY BY PROPERTY BASIS]
$______________ [Property]
In connection with this Requisition, the Company hereby requests that
the Lenders make Loans to the Lessor in the amount of $______________ and that
the Holders make Holder Advances to the Lessor in the amount of
$________________. The Company hereby certifies (i) that the foregoing amounts
requested do not exceed the total aggregate of the Available Commitments plus
the Available Holder Commitments and (ii) each of the provisions of the
Participation Agreement applicable to the Loans and Holder Advances requested
hereunder have been complied with as of the date of this Requisition.
The Company requests the Loans be allocated as follows:
$ Tranche A Loans as ABR Loans
----------------------------------
$ Tranche B Loans as ABR Loans
----------------------------------
$ Tranche A Loans as Eurodollar Loans/
---------------------------------- applicable Interest Period
Interest Period
----------
$ Tranche B Loans as Eurodollar Loans/
---------------------------------- applicable Interest Period
Interest Period
----------
The Company requests the Holder Advances be allocated as follows:
$ ABR Holder Advances
----------------------------------
$ Eurodollar Holder Advances/
---------------------------------- applicable Interest Period
Interest Period
----------
A-2
82
7. Each and every representation and warranty of the Company contained in
the Operative Agreements to which it is a party is true and correct on
and as of the date hereof.
8. No Default or Event of Default has occurred and is continuing under any
Operative Agreement.
9. Each Operative Agreement to which the Company is a party is in full
force and effect with respect to it.
10. The Company has duly performed and complied with all covenants,
agreements and conditions contained in the Participation Agreement or in
any Operative Agreement required to be performed or complied with by it
on or prior to the date hereof.
The Company has caused this Requisition to be executed by its duly
authorized officer as of this _____ day of __________,_____.
LEXICON GENETICS INCORPORATED
By:
-------------------------
Name:
-----------------------
Title:
----------------------
A-3
83
Schedule 1
Description of Land
(Legal Description and Street Address)
A-4
84
Schedule 2
Description of Improvements
A-5
85
Schedule 3
Description of Equipment
==================================================================================================================
General Description Make Model Serial Number
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------
==================================================================================================================
A-6
86
Schedule 4
Work
Work Performed for which the Advance is requested:
A-7
87
EXHIBIT B
[reserved]
B-1
88
EXHIBIT C
LEXICON GENETICS INCORPORATED
OFFICER'S CERTIFICATE
(Pursuant to Section 5.3(z) of the Participation Agreement)
LEXICON GENETICS INCORPORATED, a Delaware corporation (the "Company"), DOES
HEREBY CERTIFY as follows:
1. Each and every representation and warranty of the Company
contained in the Operative Agreements to which it is a party is
true and correct on and as of the date hereof.
2. No Default or Event of Default has occurred and is continuing
under any Operative Agreement.
3. Each Operative Agreement to which the Company is a party is in
full force and effect with respect to it.
4. The Company has duly performed and complied with all covenants,
agreements and conditions contained in the Participation
Agreement (hereinafter defined) or in any Operative Agreement
required to be performed or complied with by it on or prior to
the date hereof.
Capitalized terms used in this Officer's Certificate and not otherwise defined
herein have the respective meanings ascribed thereto in the Participation
Agreement dated as of October 19, 2000 among the Company, as the Lessee and as
the Construction Agent, First Security Bank, National Association, as the Owner
Trustee, the various banks and other lending institutions which are parties
thereto from time to time, as holders (the "Holders"), the various banks and
other lending institutions which are parties thereto from time to time, as
lenders (the "Lenders") and Bank of America, N.A., as the agent for the Lenders
and respecting the Security Documents, as the agent for the Secured Parties (the
"Agent").
IN WITNESS WHEREOF, the Company has caused this Officer's Certificate to be duly
executed and delivered as of this _____ day of __________, ______.
LEXICON GENETICS INCORPORATED
By:
-------------------------
Name:
-----------------------
Title:
----------------------
C-1
89
EXHIBIT D
LEXICON GENETICS INCORPORATED
SECRETARY'S CERTIFICATE
(Pursuant to Section 5.3(aa) of the Participation Agreement)
LEXICON GENETICS INCORPORATED, a Delaware corporation (the "Company")
DOES HEREBY CERTIFY as follows:
1. Attached hereto as Schedule 1 is a true, correct and complete
copy of the resolutions of the Board of Directors of the Company
duly adopted by the Board of Directors of the Company on
__________. Such resolutions have not been amended, modified or
rescinded since their date of adoption and remain in full force
and effect as of the date hereof.
2. Attached hereto as Schedule 2 is a true, correct and complete
copy of the Articles of Incorporation of the Company on file in
the Office of the Secretary of State of Delaware. Such Articles
of Incorporation have not been amended, modified or rescinded
since their date of adoption and remain in full force and effect
as of the date hereof.
3. Attached hereto as Schedule 3 is a true, correct and complete
copy of the Bylaws of the Company. Such Bylaws have not been
amended, modified or rescinded since their date of adoption and
remain in full force and effect as of the date hereof.
4. The persons named below now hold the offices set forth opposite
their names, and the signatures opposite their names and titles
are their true and correct signatures.
Name Office Signature
------------------- ----------------------- -------------------------
------------------- ----------------------- -------------------------
IN WITNESS WHEREOF, the Company has caused this Secretary's Certificate to be
duly executed and delivered as of this _____ day of ___________, ______.
LEXICON GENETICS INCORPORATED
By:
-------------------------
Name:
-----------------------
Title:
----------------------
D-1
90
Schedule 1
Board Resolutions
D-2
91
Schedule 2
Articles of Incorporation
X-0
00
Xxxxxxxx 0
Xxxxxx
X-0
93
EXHIBIT E
FIRST SECURITY BANK, NATIONAL ASSOCIATION
OFFICER'S CERTIFICATE
(Pursuant to Section 5.3(bb) of the Participation Agreement)
FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association, not individually (except with respect to paragraph 1 below, to the
extent any such representations and warranties are made in its individual
capacity) but solely as the owner trustee under the Lexi Trust 2000-1 (the
"Owner Trustee"), DOES HEREBY CERTIFY as follows:
1. Each and every representation and warranty of the Owner Trustee
contained in the Operative Agreements to which it is a party is
true and correct on and as of the date hereof.
2. Each Operative Agreement to which the Owner Trustee is a party
is in full force and effect with respect to it.
3. The Owner Trustee has duly performed and complied with all
covenants, agreements and conditions contained in the
Participation Agreement (hereinafter defined) or in any
Operative Agreement required to be performed or complied with by
it on or prior to the date hereof.
Capitalized terms used in this Officer's Certificate and not otherwise defined
herein have the respective meanings ascribed thereto in the Participation
Agreement dated as October 19, 2000 among Lexicon Genetics Incorporated, as the
Lessee and as the Construction Agent, the Owner Trustee, the various banks and
other lending institutions which are parties thereto from time to time, as
holders (the "Holders"), the various banks and other lending institutions which
are parties thereto from time to time, as lenders (the "Lenders") and Bank of
America, N.A., as the agent for the Lenders and respecting the Security
Documents, as the agent for the Secured Parties (the "Agent").
E-1
94
IN WITNESS WHEREOF, the Owner Trustee has caused this Officer's Certificate to
be duly executed and delivered as of this _____ day of __________, ______.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not
individually, except as
expressly stated herein, but
solely as the Owner Trustee
under the Lexi Trust 2000-1
By:
-------------------------
Name:
-----------------------
Title:
----------------------
X-0
00
XXXXXXX X
FIRST SECURITY BANK, NATIONAL ASSOCIATION
SECRETARY'S CERTIFICATE
(Pursuant to Section 5.3(cc) of the Participation Agreement)
CERTIFICATE OF ASSISTANT SECRETARY
I, ______________________, duly elected and qualified Assistant
Secretary of the Board of Directors of First Security Bank, National Association
(the "Association"), hereby certify as follows:
1. The Association is a National Banking Association duly
organized, validly existing and in good standing under the laws of the United
States. With respect thereto the following is noted:
A. Pursuant to Revised Statutes 324, et seq., as amended, 12 U.S.C.
1, et seq., the Comptroller of the Currency charters and
exercises regulatory and supervisory authority over all National
Banking Associations;
B. On December 9, 1881, the First National Bank of Ogden, Utah was
chartered as a National Banking Association under the laws of
the United States and under Charter No. 2597;
C. On October 2, 1922, in connection with a consolidation of The
First National Bank of Ogden, Ogden, Utah, and The Utah National
Bank of Ogden, Ogden, Utah, the title was changed to "The First
& Utah National Bank of Ogden"; on January 18, 1923, The First &
Utah National Bank of Ogden changed its title to "First Utah
National Bank of Ogden"; on January 19, 1926, the title was
changed to "First National Bank of Ogden"; on February 24, 1934,
the title was changed to "First Security Bank of Utah, National
Association"; on June 21, 1996, the title was changed to "First
Security Bank, National Association"; and
D. First Security Bank, National Association, Ogden, Utah,
continues to hold a valid certificate to do business as a
National Banking Association.
2. The Association's Articles of Association, as amended, are in
full force and effect, and a true, correct and complete copy is attached hereto
as Schedule A and incorporated herein by reference. Said Articles were last
amended October 20, 1975, as required by law on notice at a duly called special
meeting of the shareholders of the Association.
3. The Association's By-Laws, as amended, are in full force and
effect; and a true,
F-1
96
correct and complete copy is attached hereto as Schedule B and incorporated
herein by reference. Said By-Laws, still in full force and effect, were adopted
September 17, 1942, by resolution, after proper notice of consideration and
adoption of By-Laws was given to each and every shareholder, at a regularly
called meeting of the Board of Directors with a quorum present.
4. Pursuant to the authority vested in it by an Act of Congress
approved December 23, 1913 and known as the Federal Reserve Act, as amended, the
Federal Reserve Board (now the Board of Governors of the Federal Reserve System)
has granted to the Association now known as "First Security Bank, National
Association" of Ogden, Utah, the right to act, when not in contravention of
State or local law, as trustee, executor, administrator, registrar of stocks and
bonds, guardian of estates, assignee, receiver, committee of estates of
lunatics, or in any other fiduciary capacity in which State banks, trust
companies or other corporations which come into competition with National Banks
are permitted to act under the laws of the State of Utah; and under the
provisions of applicable law, the authority so granted remains in full force and
effect.
5. Pursuant to authority vested by Act of Congress (12 X.X.X. 00x
xxx 00 X.X.X. 000, as amended) the Comptroller of the Currency has issued
Regulation 9, as amended, dealing, in part, with the Fiduciary Powers of
National Banks, said regulation providing in subparagraph 9.7 (a) (1-2):
(1) The board of directors is responsible for the proper exercise of
fiduciary powers by the Bank. All matters pertinent thereto,
including the determination of policies, the investment and
disposition of property held in fiduciary capacity, and the
direction and review of the actions of all officers, employees,
and committees utilized by the Bank in the exercise of its
fiduciary powers, are the responsibility of the board. In
discharging this responsibility, the board of directors may
assign, by action duly entered in the minutes, the
administration of such of the Bank's fiduciary powers as it may
consider proper to assign to such director(s), officer(s),
employee(s) or committee(s) as it may designate.
(2) No fiduciary account shall be accepted without the prior
approval of the board, or of the director(s), officer(s), or
committee(s) to whom the board may have designated the
performance of that responsibility. . . .
6. A Resolution relating to Exercise of Fiduciary Powers was
adopted by the Board of Directors at a meeting held July 26, 1994 at which time
there was a quorum present; said resolution is still in full force and effect
and has not been rescinded. Said resolution is attached hereto as Schedule C and
incorporated herein by reference.
7. A Resolution relating to the Designation of Officers and
Employees to Exercise Fiduciary Powers was adopted by the Trust Policy Committee
at a meeting held February 7, 1996 at which time a quorum was present; said
resolution is still in full force and effect and has
F-2
97
not been rescinded. Said resolution is attached hereto as Schedule D and is
incorporated herein by reference.
8. Attached hereto as Schedule E and incorporated herein by
reference, is a listing of facsimile signatures of persons authorized (herein
"Authorized Signatory or Signatories") on behalf of the Association and its
Trust Group to act in exercise of its fiduciary powers subject to the
resolutions in Paragraphs 6 and 7, above.
9. The principal office of the First Security Bank, National
Association, Trust Group and of its departments, except for the St. Xxxxxx,
Utah, Ogden, Utah, and Provo, Utah, branch offices, is located at 00 Xxxxx Xxxx
Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000 and all records relating to fiduciary
accounts are located at such principal office of the Trust Group or in storage
facilities within Salt Lake County, Utah, except for those of the Ogden, Utah,
St. Xxxxxx, Utah, and Provo, Utah, branch offices, which are located at said
office.
10. Each Authorized Signatory (i) is a duly elected or appointed,
duly qualified officer or employee of the Association; (ii) holds the office or
job title set forth below his or her name on the date hereof; (iii) and the
facsimile signature appearing opposite the name of each such officer or employee
is a true replica of his or her signature.
F-3
98
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the
Association this __________ day of _________________, ______.
(SEAL)
-----------------------------
R. Xxxxx Xxxxxxxxx
Senior Vice President
Assistant Secretary
F-4
99
Schedule A
Articles of Association
F-5
100
Schedule B
Bylaws
F-6
101
Schedule C
Resolution Relating to
Exercise of Fiduciary Powers
F-7
102
Schedule D
Resolution Relating to the
Designation of Officers and Employees
To Exercise Fiduciary Powers
F-8
103
Schedule E
Authorized Signatory or Signatories
F-9
104
EXHIBIT G
[reserved]
G-1
105
EXHIBIT H
[reserved]
H-1
106
EXHIBIT I-1
LEXICON GENETICS INCORPORATED
OFFICER'S CERTIFICATE
(Pursuant to Section 5.5 of the Participation Agreement)
LEXICON GENETICS INCORPORATED, a Delaware corporation (the "Company") DOES
HEREBY CERTIFY as follows:
1. The address for the subject Property is ________________________________
________________________________.
2. The Completion Date for the construction of Improvements at the Property
occurred on ______________.
3. The aggregate Property Cost for the Property was $___________.
4. Attached hereto as Schedule 1 is the detailed, itemized documentation
supporting the asserted Property Cost figures.
5. All representations and warranties of the Company in each Operative
Agreement and in each certificate delivered pursuant thereto are true
and correct as of the Completion Date.
Capitalized terms used in this Officer's Certificate and not otherwise defined
have the respective meanings ascribed thereto in the Participation Agreement
dated as of October 19, 2000 among the Company, as the Lessee and as the
Construction Agent, First Security Bank, National Association, as the Owner
Trustee, the various banks and other lending institutions which are parties
thereto from time to time, as holders (the "Holders"), the various banks and
other lending institutions which are parties thereto from time to time, as
lenders (the "Lenders"), Bank of America, N.A., as the agent for the Lenders and
respecting the Security Documents, as the agent for the Secured Parties.
[The remainder of this page has been intentionally left blank.]
I-1-1
107
IN WITNESS WHEREOF, the Company has caused this Officer's Certificate to be duly
executed and delivered as of this ____ day of ______________, ______.
LEXICON GENETICS INCORPORATED
By:
-------------------------
Name:
-----------------------
Title:
----------------------
I-1-2
108
Schedule I
(Itemized Documentation in Support of Asserted Property Cost)
I-1-3
109
EXHIBIT I-2
LEXICON GENETICS INCORPORATED
OFFICER'S CERTIFICATE
(Pursuant to Section 5.5 of the Participation Agreement)
LEXICON GENETICS INCORPORATED, a Delaware corporation (the "Company") DOES
HEREBY CERTIFY as follows:
1. The address for the subject Property is _______________________________
________________________________.
2. The Punch List Completion Date for the construction of Improvements at
the Property occurred on ______________.
3. The aggregate Property Cost for the Property was $___________.
4. Attached hereto as Schedule 1 is the detailed, itemized documentation
supporting the asserted Property Cost figures (regarding such components
of Property Cost not previously referenced in the Officer's Certificate
delivered pursuant to Section 5.5(a) of the Participation Agreement).
5. All representations and warranties of the Company in each Operative
Agreement and in each certificate delivered pursuant thereto are true
and correct as of the Punch List Completion Date.
Capitalized terms used in this Officer's Certificate and not otherwise defined
have the respective meanings ascribed thereto in the Participation Agreement
dated as of October 19, 2000 among the Company, as the Lessee and as the
Construction Agent, First Security Bank, National Association, as the Owner
Trustee, the various banks and other lending institutions which are parties
thereto from time to time, as holders (the "Holders"), the various banks and
other lending institutions which are parties thereto from time to time, as
lenders (the "Lenders"), Bank of America, N.A., as the agent for the Lenders and
respecting the Security Documents, as the agent for the Secured Parties.
[The remainder of this page has been intentionally left blank.]
I-2-1
110
IN WITNESS WHEREOF, the Company has caused this Officer's Certificate to be duly
executed and delivered as of this ____ day of ______________, ______.
LEXICON GENETICS INCORPORATED
By:
-------------------------
Name:
-----------------------
Title:
----------------------
I-2-2
111
Schedule I
(Itemized Documentation in Support of Asserted Property Cost)
I-2-3
112
EXHIBIT J
[Description of Material Litigation]
(Pursuant to Section 6.2(d) of the Participation Agreement)
None
J-1
113
EXHIBIT K
Interest Rate/Holder Yield Selection Notice
(Pursuant to Section 8.3(r) of the Participation Agreement)
To: Bank of America, N.A., as Agent
Bank of America Tower
000 Xxxxxxxx Xxxxxx
Mail Code TX9-329-11-01
Austin, TX 78701-3503
Attention: Xxxx Xxxxxx
Fax: (000) 000-0000
Reference is made hereby to (a) the Credit Agreement dated as of October
19, 2000 (as amended, modified, supplemented, restated and/or replaced from time
to time, the "Agreement") among First Security Bank, National Association, as
Owner Trustee under the Lexi Trust 2000-1 (the "Borrower"), the Lenders (as
defined in the Agreement) and Bank of America, N.A., as agent for the Lenders
(the "Agent"); (b) the Trust Agreement dated as of October 19, 2000 (as amended,
modified, supplemented, restated and/or replaced from time to time, the "Trust
Agreement") among the Holders and the Borrower; and (c) the Participation
Agreement dated as of October 19, 2000 (as amended, modified, supplemented,
restated and/or replaced from time to time, the "Participation Agreement") among
Lexicon Genetics Incorporated, as the lessee and construction agent (the
"Company"), the Borrower, the various banks and other lending institutions which
are parties thereto from time to time, as holders (the "Holders"), the Lenders
and the Agent. Capitalized terms used but not defined herein shall have the
respective meanings therefor set forth or referenced in Appendix A of the
Participation Agreement.
[PURSUANT TO SECTIONS 9.1(c) AND 9.2(a) OF THE PARTICIPATION AGREEMENT,
THE COMPANY] [THE BORROWER] hereby confirms its prior notice of a selection of
types of Loans and Holder Advances and Interest Periods given to the Agent by
telephone at [_____ _.m] on [______, ____] to the following effect in respect of
the Loans and Holder Advances.
Type of Loan and
Holder Advance
(Check One) Interest Period(1) Amount Effective Date(2)
[ ] Eurodollar Loan
[ ] Eurodollar Holder Advance
[ ] ABR Loan
[ ] ABR Holder Advance
(1) For any Eurodollar Loan or Eurodollar Holder Advance, one, two, three or six
months.
(2) At least three (3) Business Days after date of telephonic notice.
K-1
114
This the _______ day of __________, ______.
[NAME OF BORROWER/COMPANY, AS
APPLICABLE]
By:
-------------------------
Name:
------------------------
Title:
----------------------
K-2
115
EXHIBIT L
LEXICON GENETICS INCORPORATED
OFFICER'S CERTIFICATE
(Pursuant to Section 5.10(b) of the Participation Agreement)
I, ______________________, _____________________ of LEXICON GENETICS
INCORPORATED, (the "Lessee") hereby certify that, to the best of my knowledge
and belief, with respect to that certain Participation Agreement dated as of
October 19, 2000 (as amended, modified, restated or supplemented from time to
time, the "Participation Agreement"; all of the defined terms in the
Participation Agreement are incorporated herein by reference) among the Lessee,
the Lessor, the Lenders, the Holders and Bank of America, N. A., as Agent:
a. The copies of the investment account statements which accompany
this Officer's Certificate are true and correct copies of the
investment account statements relating to the Collateral Account
received by the Lessee from the Securities Intermediary covering
the monthly period beginning on _____________, 200__ and ending
on __________, 200__;
b. Since ___________, 200__ (the date of the last similar
certification, or, if none, the Initial Closing Date) no Default
or Event of Default has occurred;
c. Delivered herewith are detailed calculations demonstrating
compliance by the Lessee with the provisions of Section 5.10(c)
of the Participation Agreement, and setting forth (i) the
Borrowing Base and (ii) the Class A Collateral Percentage, in
each case pursuant to Section 5.10(b) of the Participation
Agreement as of the end of the period referred to above; and
d. As of the date hereof, the amount of Class A Collateral
represented by U.S. dollar denominated certificates of deposit
of Bank of America, N.A. is $__________, which, after the
Construction Period Termination Date, shall be greater than or
equal to $5,000,000.
This ______ day of ___________, ______.
LEXICON GENETICS INCORPORATED
By:
--------------------------
Name:
------------------------
Title:
-----------------------
X-0
000
Xxxxxxxxxx to Officer's Certificate
COMPUTATION OF BORROWING BASE
(ATTACH COPIES OF COLLATERAL ACCOUNT STATEMENTS)
L-2
117
EXHIBIT M
LEXICON GENETICS INCORPORATED
OFFICER'S CERTIFICATE
(Pursuant to Section 8.3A(a)(iii) of the Participation Agreement)
This Certificate is delivered in accordance with the provisions
of Section 8.3A(a)(iii) of that certain Participation Agreement dated as of
October 19, 2000 (as amended, modified, extended, supplemented, restated and/or
replaced from time to time, the "Participation Agreement") among Lexicon
Genetics Incorporated, as the Lessee and as the Construction Agent, First
Security Bank, National Association, as the Owner Trustee and Lessor, Bank of
America, N.A., as holder, the various banks and other lending institutions which
are parties thereto from time to time, as lenders and the Agent. Capitalized
terms used herein but not otherwise defined herein shall have the meanings set
forth therefor in Appendix A to the Participation Agreement.
The undersigned, being a Responsible Officer of Lessee hereby certifies,
in my official capacity and not in my individual capacity, that to the best of
my knowledge and belief, as of the fiscal [quarter/year] ended ___________,
_______:
(a) the financial statements accompanying this Certificate have been
prepared in accordance with GAAP and fairly present the financial condition of
the parties covered by such financial statements in all material respects as of
the end of such fiscal [quarter/year];
(b) during the fiscal [quarter/year] covered by such financial
statements, Lessee observed or performed all of its covenants and other
agreements in all material respects, and satisfied in all material respects
every material condition, contained in the Operative Agreements to be observed,
performed or satisfied by it;
(c) no Default or Event of Default exists; and
(d) attached is a statement of the Liquidity of the Consolidated
Group as of the date hereof and the amount of such Liquidity is in compliance
with the financial covenant set out in Section 8.3A(f) of the Participation
Agreement.
This the _______________ day of ________________________, 200_.
LEXICON GENETICS INCORPORATED
By:
--------------------------
Name:
------------------------
Title:
-----------------------
M-1
118
Attachment to Officer's Certificate
[STATEMENT OF LIQUIDITY]
M-2
119
--------------------------------------------------------------------------------
Appendix A
Rules of Usage and Definitions
--------------------------------------------------------------------------------
I. Rules of Usage
The following rules of usage shall apply to this Appendix A 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, permitted assigns and permitted transferees.
(e) Except as otherwise expressly provided, reference to any
agreement means such agreement as amended, modified, extended, supplemented,
restated and/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
120
(i) References herein to "attorney's fees", "legal fees", "costs of
counsel" or other such references shall be deemed to include the allocated cost
of in-house counsel.
(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 construction
and interpretation of the Operative Agreements and any amendments or exhibits
thereto.
(k) Capitalized terms used in any Operative Agreements which are not
defined in this Appendix A but are defined in another Operative Agreement shall
have the meaning so ascribed to such term in the applicable Operative Agreement.
(l) In computing any period of time for purposes of any Operative
Agreement, the mechanics for counting the number of days set forth in Rule 6 of
the Federal Rules of Civil Procedure shall be observed.
II. Definitions
"ABR" shall mean, for any day, a rate per annum equal to the greater of
(a) the Prime Lending Rate in effect on such day, and (b) the Federal Funds
Effective Rate in effect on such day plus one-half of one percent (0.5%). For
purposes hereof: "Prime Lending Rate" shall mean the rate which the Agent
announces from time to time as its prime lending rate as in effect from time to
time. The Prime Lending Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer. Any Lender
may make commercial loans or other loans at rates of interest at, above or below
the Prime Lending Rate. The Prime Lending Rate shall change automatically and
without notice from time to time as and when the prime lending rate of the Agent
changes. "Federal Funds Effective Rate" shall mean, for any period, a
fluctuating interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions with
members or the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
(3) Federal funds brokers of recognized standing selected by it. Any change in
the ABR due to a change in the Prime Lending Rate or the Federal Funds Effective
Rate shall be effective as of the opening of business on the effective day of
such change in the Prime Lending Rate or the Federal Funds Effective Rate,
respectively.
"ABR Holder Advance" shall mean a Holder Advance bearing a Holder Yield
based on the ABR.
"ABR Loans" shall mean Loans the rate of interest applicable to which is
based upon the ABR.
Appendix A-2
121
"Acceleration" shall have the meaning given to such term in Section 6 of
the Credit Agreement.
"Accounts" shall have the meaning given to such term in Section 1 of the
Security Agreement.
"Acquisition Advance" shall have the meaning given to such term in
Section 5.3 of the Participation Agreement.
"Acquisition Loan" shall mean any Loan made in connection with an
Acquisition Advance.
"Additional Indebtedness" shall mean, with respect to any Person,
without duplication, (a) all obligations of such Person for borrowed money, (b)
all obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered into
in the ordinary course of business), (d) all obligations of such Person issued
or assumed as the deferred purchase price of property or services purchased by
such Person (other than trade debt incurred in the ordinary course of business
and due within six months of the incurrence thereof) which would appear as
liabilities on a balance sheet of such Person, (e) the principal portion of all
obligations of such Person under Capitalized Leases, (f) all Support Obligations
of such Person with respect to Additional Indebtedness of another Person, (g)
the maximum available amount of all standby letters of credit or acceptances
issued or created for the account of such Person, (h) all Additional
Indebtedness of another Person secured by a Lien on any property of such Person,
whether or not such Additional Indebtedness has been assumed, provided that for
purposes hereof the amount of such Additional Indebtedness shall be limited to
the greater of (i) the amount of such Additional Indebtedness as to which there
is recourse to such Person and (ii) the fair market value of the property which
is subject to such Lien, (i) the outstanding attributed principal amount under
any securitization transaction, and (j) the principal balance outstanding under
any synthetic lease, tax retention operating lease, off-balance sheet loan or
similar off-balance sheet financing product to which such Person is a party,
where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance with GAAP. The
Additional Indebtedness of any Person shall include the Additional Indebtedness
of any partnership or joint venture in which such Person is a general partner or
joint venturer, but only to the extent to which there is recourse to such Person
for the payment of such Additional Indebtedness.
"Advance" shall mean a Construction Advance or an Acquisition Advance.
"Affiliate" shall mean, with respect to any Person, any Person or group
acting in concert in respect of the Person in question that, directly or
indirectly, controls or is controlled by or is under common control with such
Person.
"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
Appendix A-3
122
the recipient calculated at the then maximum marginal rates generally applicable
to Persons of the same type as the recipients with respect to the receipt by the
recipient of such amounts (less any tax savings realized as a result of the
payment of the indemnified amount), such increased payment (as so reduced) is
equal to the payment otherwise required to be made.
"Agency Agreement" shall mean the Agency Agreement, dated on or about
the Initial Closing Date between the Construction Agent and the Lessor.
"Agency Agreement Event of Default" shall mean an "Event of Default" as
defined in Section 5.1 of the Agency Agreement.
"Agent" shall mean Bank of America, N.A., as agent for the Lenders
pursuant to the Credit Agreement, or any successor agent appointed in accordance
with the terms of the Credit Agreement and respecting the Security Documents, as
agent for the Secured Parties.
"Applicable Percentage" shall mean for each Eurodollar Loan and each
Eurodollar Holder Advance, the rate per annum set forth below opposite the
corresponding Class A Collateral Percentage determined as of the most recent
Calculation Date:
===============================================================================================
APPLICABLE APPLICABLE
PERCENTAGE PERCENTAGE FOR APPLICABLE
FOR EURODOLLAR PERCENTAGE FOR
CLASS A COLLATERAL PERCENTAGE EURODOLLAR LOANS HOLDER ADVANCES UNUSED FEES
-----------------------------------------------------------------------------------------------
>=75% .15% .90% .15%
-----------------------------------------------------------------------------------------------
>=50% BUT A75% .20% .95% .1875%
-----------------------------------------------------------------------------------------------
>=25% BUT A 50% .25% 1.00% .1875%
-----------------------------------------------------------------------------------------------
<=25% .30% 1.05% .1875%
===============================================================================================
The Applicable Percentage for Eurodollar Loans and Eurodollar Holder
Advances shall be determined and adjusted quarterly on the date (the
"Calculation Date") by which the Officer's Certificate is required to be
delivered to the Agent in accordance with the provisions of Section 5.10(b) of
the Participation Agreement; provided, however, that (x) the Applicable
Percentage for each Eurodollar Loan and Eurodollar Holder Advance from the
Initial Closing Date until the next occurring Calculation Date shall be
determined based on the Class A Collateral Percentage determined as of the date
of such Advance, (y) if the Lessee fails to provide the Officer's Certificate
referenced in Section 5.10(b) of the Participation Agreement to the Agent on or
before any Calculation Date, the Applicable Percentage for Eurodollar Loans
shall be .30%, the Applicable Percentage for Eurodollar Holder Advances shall be
1.05% from such Calculation Date until such time that the Officer's Certificate
referenced in Section 5.10(b) and the Applicable Percentage for Unused Fees
shall be .1875% of the Participation Agreement is provided to the Agent,
whereupon the Applicable Percentage shall be determined as specified above. Each
Applicable Percentage shall be effective from one Calculation Date until the
next Calculation Date. Any adjustment in the Applicable Percentage shall be
applicable to all existing Eurodollar Loans and Eurodollar Holder Advances, as
well as to any new Eurodollar
Appendix A-4
123
Loans and Eurodollar Holder Advances made or issued.
"Appraisal" shall mean, with respect to any Property, an appraisal to be
delivered in connection with the Participation Agreement or in accordance with
the terms of the Lease, in each case prepared by a reputable appraiser
reasonably acceptable to the Agent, which, in the judgment of counsel to the
Agent, 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 Bank" shall mean any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from Xxxxx'x is at
least P-1 or the equivalent thereof.
"Approved State" shall mean each of the following: the State of Texas
and any other state within the continental United States proposed by the Lessee
and consented to in writing by the Agent.
"Appurtenant Rights" shall mean (a) 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 the 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 (b) all permits,
licenses and rights, whether or not of record, appurtenant to such Land or the
Improvements.
"Asset Disposition" shall mean and include the sale, lease or other
disposition of any property or asset (including the capital stock of a
Subsidiary) by any member of the Consolidated Group, in any event excluding, for
purposes hereof, (a) the sale of inventory in the ordinary course of business,
(b) the sale or disposition of machinery and equipment no longer used or useful
in the conduct of business or (c) a sale, lease, transfer or disposition of
property or assets to any other member of the Consolidated Group.
"Assignment and Acceptance" shall mean the Assignment and Acceptance in
the form attached to the Credit Agreement as Exhibit B.
"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 as of such date after giving effect to Section 5.2(d) of the
Participation Agreement (but without giving effect to any other repayments or
prepayments of any Loans hereunder).
"Available Holder Commitments" shall mean an amount equal to the excess,
if any, of (a) the aggregate amount of the Holder Commitments over (b) the
aggregate amount of the Holder Advances made since the Initial Closing Date
after giving effect to Section 5.2(d) of the
Appendix A-5
124
Participation Agreement (but without giving effect to any other repayments or
prepayments of any Holder Advances).
"Bankruptcy Code" shall mean Title 11 of the U. S. Code entitled
"Bankruptcy," as now or hereafter in effect or any successor thereto.
"Base Amount" shall have the meaning given to such term in Section
10.1(e) of the Lease.
"Basic Documents" shall mean the following: the Participation Agreement,
the Agency Agreement, the Trust Agreement, the Certificates, the Credit
Agreement, the Notes, the Lease and the Security Agreement.
"Basic Rent" shall mean, the sum of (a) the Loan Basic Rent and (b) the
Lessor Basic Rent, calculated as of the applicable date on which Basic Rent is
due.
"Basic Term" shall have the meaning specified in Section 2.2 of the
Lease.
"Basic 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.
"Benefited Lender" shall have the meaning specified in Section 9.10(a)
of the Credit Agreement.
"Xxxx of Sale" shall mean a Xxxx of Sale regarding Equipment in form and
substance reasonably satisfactory to the Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrower" shall mean the Owner Trustee, not in its individual capacity
but as Borrower under the Credit Agreement.
"Borrowing Base" shall mean, on any date of determination, the sum of
(i) that Class A Collateral described in clause (a) of the definition of Class A
Collateral; plus (ii) the product of the market value of that Class A Collateral
described in clause (b) of the definition of Class A Collateral multiplied by
90%; plus (iii) the market value of that Class A Collateral described in clause
(c) of the definition of Class A Collateral; plus (iv) the product of the market
value of that Class B Collateral described in clause (a) of the definition of
Class B Collateral multiplied by 80%; plus (v) the product of the market value
of that Class B Collateral described in clause (b) of the definition of Class B
Collateral multiplied by 95%.
"Borrowing Date" shall mean any Business Day specified in a notice
delivered pursuant
Appendix A-6
125
to Section 2.3 of the Credit Agreement as a date on which the Lessor requests
the Lenders to make Loans thereunder.
"Budgeted Total 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.
"Business Day" shall mean a day other than a Saturday, Sunday or other
day on which commercial banks in Charlotte, North Carolina or any other states
from which the Agent, any Lender or any Holder funds or engages in
administrative activities with respect to the transactions under the Operative
Agreements 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.
"Businesses" shall have the meaning assigned to such term in Section
6.2(y) of the Participation Agreement.
"Capitalized Lease" shall mean, as applied to any Person, any lease of
property (whether real, personal, tangible, intangible or mixed of such Person)
by such Person as the lessee which would be capitalized on a balance sheet of
such Person prepared in accordance with GAAP.
"Capital Stock" shall mean any nonredeemable capital stock of the Lessee
or any of its Subsidiaries or of any other applicable Person, whether common or
preferred.
"Cash Equivalents" shall mean (a) securities issued or directly and
fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated certificates of
deposit of (i) any Lender or the Holder, or (ii) any domestic commercial bank of
recognized standing (y) having capital and surplus in excess of $750,000,000 and
(z) whose short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from Xxxxx'x is at least P-1 or the equivalent thereof
(any such bank being an "Approved Bank"), in each case with maturities of not
more than 270 days from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Bank (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing within six
months of the date of acquisition and (d) the common or preferred Capital Stock
of any Person listed on a national securities exchange; provided that all Cash
Equivalents shall be of a type eligible to be held with a Federal Reserve Bank
or the Depository Trust Company.
"Casualty" shall mean any damage or destruction of all or any portion of
the Property as a result of a fire or other casualty.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation, and
Appendix A-7
126
Liability Act of 1980, 42 U.S.C. Section 9601 et seq., as amended by the
Superfund Amendments and Reauthorization Act of 1986.
"Certificate" shall mean a Certificate in favor of each Holder regarding
the Holder Commitment of such Holder issued pursuant to the terms and conditions
of the Trust Agreement in favor of each Holder.
"Chattel Paper" shall have the meaning given to such term in Section 1
of the Security 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 arising out of or related to the Operative Agreements, the
transactions contemplated therein or any Property.
"Class A Collateral" shall mean Securities Collateral consisting of any
of the following types:
(a) [reserved];
(b) securities issued or directly and fully guaranteed by
the United States of America having maturities of not more than five (5)
years from the applicable date of determination; and
(c) U.S. dollar denominated certificates of deposit of Bank
of America, N.A.
"Class A Collateral Percentage" shall mean, at any time, the ratio
(expressed as a percentage) of the market value of Class A Collateral to the
Borrowing Base.
"Class B Collateral" shall mean Securities Collateral consisting of any
of the following types:
(a) securities issued by an agency or instrumentality of,
and insured by, the United States of America, in each case having
maturities of not more than five (5) years from the applicable date of
determination; and
(b) commercial paper issued by any Approved Bank (or by the
parent company thereof) or by any domestic corporation, which commercial
paper (i) is rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and (ii) has a
maturity of not more than one (1) year.
"Closing Date" shall mean the Initial Closing Date and each Property
Closing Date.
"Code" shall mean the Internal Revenue Code of 1986 together with rules
and regulations promulgated thereunder, as amended from time to time, or any
successor statute thereto.
Appendix A-8
127
"Collateral" shall mean all assets of the Lessor, the Construction Agent
and the Lessee, now owned or hereafter acquired, upon which a Lien is purported
to be created by one or more of the Security Documents.
"Collateral Account" shall mean, collectively, the securities collateral
account (including without limitation the Cash Equivalents and other securities
in such account, excluding U.S. dollar denominated certificates of deposit of
Bank of America, N.A. which shall be maintained in the possession, custody and
control of the Agent outside of such securities collateral account) which is the
subject of the Collateral Agreement and held with the Securities Intermediary as
account number 873-758.
"Collateral Agreement" shall mean the Assignment of Collateral Account
and Security Agreement dated on or about the Initial Closing Date executed by
Lexicon Genetics Incorporated and agreed and accepted by Bank of America, N.A.
"Collateral Agreement Event of Default" shall have the meaning specified
in Section 3.1 of the Collateral Agreement.
"Commitment" shall mean, as to any Lender, the Lender Commitment of such
Lender.
"Commitment Percentage" shall mean, as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the aggregate
Commitments (or, at any time after the Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such Lender's
Loans then outstanding constitutes of the aggregate principal amount of all of
the Loans then outstanding), and such Commitment Percentage shall take into
account both the Lender's Tranche A Commitment and the Lender's Tranche B
Commitment.
"Commitment Period" shall mean the period from and including 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 or the Holder Commitment shall terminate as provided in the Trust
Agreement.
"Completion" shall mean, with respect to a Property, such time as the
acquisition, construction, installation, testing and substantial completion
(exclusive of punch list items) of the Improvements on such Property has been
achieved in substantial accordance with the Plans and Specifications, the Agency
Agreement and/or the Lease, and in compliance with all Legal Requirements and
Insurance Requirements and, to the extent attainable in accordance with
applicable law, a certificate of occupancy has been issued with respect to such
Property by the appropriate governmental entity or, if such certificate of
occupancy is not so attainable, then an architect's certificate (in form and
substance reasonably satisfactory to the Agent) has been issued with respect to
such Property certifying Substantial Completion (exclusive of punch list items)
of the Improvements on such Property has been achieved in substantial accordance
with the Plans and Specifications (except if non-compliance, individually or in
the aggregate, shall not have and could not reasonably be expected to have a
Material Adverse Effect or if compliance with any of the foregoing is otherwise
waived by the Agent upon instruction from the Majority Secured Parties). If the
Lessor purchases a Property that includes existing Improvements that are
Appendix A-9
128
to be immediately occupied by the Lessee without any improvements financed
pursuant to the Operative Agreements, the date of Completion for such Property
shall be the Property Closing Date.
"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 any actual or
threatened eminent domain proceeding or other taking of action by any Person
having the power of eminent domain, including without limitation an 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 by or on account of
an eviction by paramount title or any transfer made in lieu of any such
proceeding or action.
"Consolidated Group" shall mean Lessee and its Consolidated
Subsidiaries.
"Consolidated Net Worth" shall mean, as of any date with respect to the
Consolidated Group on a consolidated basis, shareholders' equity or net worth,
as determined in accordance with GAAP.
"Consolidated Subsidiary" shall mean, as to any Person, any Subsidiary
of such Person which under the rules of GAAP consistently applied should have
its financial results consolidated with those of such Person for purposes of
financial accounting statements.
"Consolidated Tangible Net Worth" shall mean, as of any date with
respect to the Consolidated Group on a consolidated basis, Consolidated Net
Worth minus intangible assets as determined in accordance with GAAP.
"Construction Advance" shall mean an advance of funds to pay Property
Costs pursuant to Section 5.4 of the Participation Agreement.
"Construction Agent" shall mean Lexicon Genetics Incorporated, a
Delaware corporation, as the 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 a budget setting forth the cost of
acquisition, installation, testing, constructing and developing any 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.
Appendix A-10
129
"Construction Contract" shall mean any contract entered into between the
Construction Agent or the Lessee with a Contractor for the construction of
Improvements or any portion thereof on the Property.
"Construction Failure" shall have the meaning specified in Section 2.1
of the Agency Agreement.
"Construction Loan" shall mean any Loan made in connection with a
Construction Advance.
"Construction Loan Property Cost" shall mean with respect to each
Construction Period Property at the date of determination, an amount equal to
(a) the aggregate principal amount of Construction Loans made on or prior to
such date with respect to the Property, as increased pursuant to Section 2.3(b)
of the Credit Agreement, minus (b) the aggregate principal amount of prepayments
or repayments of the Loans allocated to reduce the Construction Loan Property
Cost of such Property pursuant to Section 2.6(c) of the Credit Agreement.
"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" means, at any date of determination, any
Property as to which the Rent Commencement Date has not occurred on or prior to
such date.
"Construction Period Termination Date" shall mean (a) 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) the
second anniversary of the Initial Closing Date or (b) such later date as may be
agreed to by the Majority Secured Parties.
"Contractor" shall mean each entity with whom the Construction Agent or
the Lessee contracts to construct any Improvements or any portion thereof on the
Property.
"Control Agreement" shall mean that certain Control Agreement, dated on
or about the Initial Closing Date, among the Agent, the Lessee and the
Securities Intermediary.
"Controlled Group" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Lessee, are treated as a single employer
under Section 414 of the Code.
"Co-Owner Trustee" shall have the meaning specified in Section 9.2 of
the Trust Agreement.
"Credit Agreement" shall mean the Credit Agreement, dated on or about
the Initial Closing Date, among the Lessor, the Agent and the Lenders, as
specified therein.
"Credit Agreement Default" shall mean any event or condition which, with
the lapse of
Appendix A-11
130
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 Participation Agreement, the Agency
Agreement, the Credit Agreement, the Notes and the Security Documents.
"Deed" shall mean a special warranty deed regarding the Land and/or
Improvements in form and substance satisfactory to 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.
"Defaulting Holder" shall have the meaning given to such term in Section
12.4 of the Participation Agreement.
"Defaulting Lender" shall have the meaning given to such term in Section
12.4 of the Participation Agreement.
"Deficiency Balance" shall have the meaning given in Section 22.1(b) of
the Lease Agreement.
"Documents" shall have the meaning given to such term in Section 1 of
the Security Agreement.
"Dollars" and "$" shall mean dollars in lawful currency of the United
States of America.
"EBITDA" means, for the four fiscal quarters immediately preceding any
date of calculation, with respect to any Person and its Consolidated
Subsidiaries (as determined in accordance with GAAP), an amount equal to:
(a) consolidated net income for such period, as determined
in accordance with GAAP (excluding the effect of any extraordinary gains
or losses resulting from the sale of property or non-cash gains or
losses outside of the ordinary course of business); plus
(b) amounts that, in the detemination of consolidated net
income for such period, have been deducted for:
(i) consolidated interest expense for such period,
as determined in accordance with GAAP; and
(ii) total federal, state, local, foreign or other
income or franchise taxes for such period; and
(iii) depreciation and amortization for such period.
Appendix A-12
131
"Election Notice" shall have the meaning given to such term in Section
20.1 of the Lease.
"Eligible Assignee" shall mean (i) a Lender or a Holder, as the case may
be; (ii) an Affiliate of a Lender or a Holder, as the case may be; and (iii) any
other Person approved by the Agent and, unless an Event of Default has occurred
and is continuing at the time any assignment is effected in accordance with the
Operative Agreements, the Lessee or the Construction Agent, such approval not to
be unreasonably withheld or delayed by the Lessee or the Construction Agent and
such approval to be deemed given by the Lessee or the Construction Agent if no
objection is received by the assigning Lender or Holder and the Agent from the
Lessee or the Construction Agent within two Business Days after notice of such
proposed assignment has been provided by the assigning Lender or Holder to the
Lessee or the Construction Agent; provided, however, that neither the Lessee nor
the Construction Agent nor an Affiliate of the Lessee or the Construction Agent
shall qualify as an Eligible Assignee.
"Eligible Investments" shall mean Investments which are: (a) cash and
Cash Equivalents; (b) accounts receivable created, acquired or made in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms; (c) Investments consisting of capital stock, obligations,
securities or other property received in settlement of accounts receivable
(created in the ordinary course of business) from bankrupt obligors; (d)
Investments in joint ventures to the extent such joint ventures are only engaged
in or pursuing the same lines of business in which the Lessee is engaged as of
the Initial Closing Date; and (e) subject to Section 8.3B(d)(iii) of the
Participation Agreement, Investments in the capital stock of any Person (a
"Merged Person") pursuant to the merger of such Merged Person with and into the
Lessee, provided, that, in connection with any such merger, and when aggregated
with all other such mergers occurring within the twelve month period immediately
preceding such merger, (i) the Lessee shall not have issued, and shall not be or
have become obligated to issue, shares of its Capital Stock in an amount in
excess of 15% of the amount of all shares of its Capital Stock (such percentage
to be determined on a class by class basis for the Capital Stock of the Lessee)
issued and outstanding immediately prior to such merger, (ii) the aggregate
EBITDA for all Merged Persons within such twelve month period shall be greater
than or equal to negative $12.5 million, (iii) the shareholders or board of
directors, or both, of such Merged Person shall have approved such merger
pursuant to, and such merger shall be permitted under, applicable Law and (iv)
such Merged Person shall be engaged in or pursuing the same or similar lines of
business in which the Lessee is engaged as of the Initial Closing Date.
"Employee Benefit Plan" or "Plan" shall mean an employee benefit plan
(within the meaning of Section 3(3) of ERISA, including without limitation any
Multiemployer Plan), or any "plan" as defined in Section 4975(e)(1) of the Code
and as interpreted by the Internal Revenue Service and the Department of Labor
in rules, regulations, releases or bulletins in effect on any Closing Date.
"Environmental Claims" 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, an actual or
alleged violation of, any Environmental Law, (b) in connection with any
Hazardous Substance, (c) from any abatement, removal, remedial,
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corrective, or other response action in connection with a Hazardous Substance,
Environmental Law, or other order of a Tribunal or (d) from any actual or
alleged damage, injury, threat, or harm to health, safety, natural resources, or
the environment.
"Environmental Laws" shall mean any Law, permit, consent, approval,
license, award, or other authorization or requirement of any Tribunal 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
manufacture, processing, distribution, handling, storage, treatment, generation,
use, transport or disposal of Hazardous Substances, pollution or to the
protection of health or the environment, including without limitation CERCLA,
the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., and
state statutes analogous thereto.
"Environmental Violation" shall mean any activity, occurrence or
condition that violates or threatens (if the threat requires remediation under
any Environmental Law and is not remediated during any grace period allowed
under such Environmental Law) to violate or results in or threatens (if the
threat requires remediation under any Environmental Law and is not 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 Advances by the
Construction Agent, the Lessee or the Lessor and all improvements and
modifications thereto and replacements thereof, whether or not now owned or
hereafter acquired or now or subsequently attached to, contained in or used or
usable in any way in connection with any operation of any Improvements,
including but without limiting the generality of the foregoing, all equipment
described in the Appraisal including without limitation 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,
cleaning systems (including without limitation window cleaning apparatus),
telephones, communication systems (including without limitation satellite dishes
and antennae), televisions, computers, sprinkler systems and other fire
prevention and extinguishing apparatus and materials, security systems, motors,
engines, machinery, pipes, pumps, tanks, conduits, appliances, 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.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute thereto, as interpreted by the rules and
regulations thereunder, all as the same may be in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections thereto.
"ERISA Affiliate" shall mean an entity which is under common control
with Lessee within
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the meaning of Section 4001(a)(14) of ERISA, or is a member of a group which
includes Lessee and which is treated as a single employer under Section 414(b),
(c), (m) or (o) of the Code.
"ERISA Event" shall mean (a) with respect to any Plan, the occurrence of
a Reportable Event or the substantial cessation of operations (within the
meaning of Section 4062(e) of ERISA); (b) the withdrawal by Lessee, any
Subsidiary of Lessee or any ERISA Affiliate from a Multiple Employer Plan during
a plan year in which it was a substantial employer (as such term is defined in
Section 4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan;
(c) the distribution of a notice of intent to terminate or the actual
termination of a Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (d) the
institution of proceedings to terminate or the actual termination of a Plan by
the PBGC under Section 4042 of ERISA; (e) any event or condition which would
reasonably be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan; (f) the
complete or partial withdrawal of Lessee, any Subsidiary of Lessee or any ERISA
Affiliate from a Multiemployer Plan; (g) the conditions for imposition of a lien
under Section 302(f) of ERISA exist with respect to any Plan; or (h) the
adoption of an amendment to any Plan requiring the provision of security to such
Plan pursuant to Section 307 of ERISA.
"Eurocurrency Reserve Requirements" shall mean for any day as applied to
a Eurodollar Loan or Eurodollar Holder Advance, the aggregate (without
duplication) of the maximum rates (expressed as a decimal) of reserve
requirements in effect on such day (including without limitation basic,
supplemental, marginal and emergency reserves under any regulations of the Board
or other Governmental Authority having jurisdiction with respect thereto)
dealing with reserve requirements prescribed on eurocurrency funding (currently
referred to as "Eurocurrency liabilities" in Regulation D) maintained by a
member bank of the Federal Reserve System.
"Eurodollar Holder Advance" shall mean a Holder Advance 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 Rate.
"Eurodollar Rate" shall mean for the Interest Period for each Eurodollar
Loan or Eurodollar Holder Advance comprising part of the same borrowing or
advance (including without limitation conversions, extensions and renewals), a
per annum interest rate equal to a fraction (a) expressed as a percentage
(rounded upward to the nearest one-sixteenth (1/16) of one percent (1%)) (i)
with the numerator equal to a per annum interest rate determined by the Agent on
the basis of the offered rates for deposits in dollars for a period of time
corresponding to such Interest Period (and commencing on the first day of such
Interest Period), reported on Telerate page 3750 as of 11:00 a.m. (London time)
two (2) Business Days before the first day of such Interest Period and (ii) the
denominator equal to 100% minus the Eurocurrency Reserve Requirements. In the
event no such offered rates appear on Telerate page 3750, "Eurodollar Rate"
shall mean for the Interest Period for each Eurodollar Loan or Eurodollar Holder
Advance comprising part of the same borrowing or advance (including without
limitation conversions, extensions and renewals), a per annum interest rate
equal to a fraction (b) expressed as a percentage (rounded upward to the nearest
one-sixteenth (1/16) of one percent (1%)) (i) with the
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134
numerator equal to a per annum interest rate determined by the Agent on the
basis of the offered rates for deposits in dollars for a period of time
corresponding to such Interest Period (and commencing on the first day of such
Interest Period), which appear on the Reuters Screen LIBO Page as of 11:00 a.m.
(London time) two (2) Business Days before the first day of such Interest Period
(provided that if at least two (2) such offered rates appear on the Reuters
Screen LIBO Page, the rate in respect of such Interest Period will be the
arithmetic mean of such offered rates) and (ii) the denominator equal to 100%
minus the Eurocurrency Reserve Requirements. As used herein, "Reuters Screen
LIBO Page" means the display designated as page "LIBO" on the Reuters Monitor
Money Rates Service (or such other page as may replace the LIBO page on that
service for the purpose of displaying London interbank offered rates of major
banks) ("RMMRS"). In the event the RMMRS is not then quoting such offered rates,
"Eurodollar Rate" shall mean for the Interest Period for each Eurodollar Loan or
Eurodollar Holder Advance comprising part of the same borrowing or advance
(including without limitation conversions, extensions and renewals), a per annum
interest rate equal to a fraction (c) expressed as a percentage (rounded upward
to the nearest one-sixteenth (1/16) of one percent (1%)) (i) with the numerator
equal to the average per annum rate of interest determined by the office of the
Agent (each such determination to be conclusive and binding) as of two (2)
Business Days prior to the first day of such Interest Period, as the effective
rate at which deposits in immediately available funds in U.S. dollars are being,
have been, or would be offered or quoted by the Agent to major banks in the
applicable interbank market for Eurodollar deposits at any time during the
Business Day which is the second Business Day immediately preceding the first
day of such Interest Period, for a term comparable to such Interest Period and
in the amount of the requested Eurodollar Loan and/or Eurodollar Holder Advance
and (ii) the denominator equal to 100% minus the Eurocurrency Reserve
Requirements. If no such offers or quotes are generally available for such
amount, then the Agent shall be entitled to determine the Eurodollar Rate from
another recognized service or interbank quotation, or by estimating in its
reasonable judgment the per annum rate (as described above) that would be
applicable if such quote or offers were generally available.
"Event of Default" shall mean a Lease Event of Default, an Agency
Agreement Event of Default, a Collateral Agreement Event of Default or a Credit
Agreement Event of Default.
"Excepted Payments" shall mean: (a) all indemnity payments (including
without limitation indemnity payments made pursuant to Section 11 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 or Termination Value) payable
under any Operative Agreement to reimburse the Owner Trustee, any Holder or any
of their respective Affiliates (including without limitation the reasonable
expenses of the Owner Trustee, the Trust Company and the Holders incurred in
connection with any such payment) for performing or complying with any of the
obligations of the Lessee under and as permitted by any Operative Agreement;
(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 a portion thereof);
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(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;
(e) any insurance proceeds under policies maintained by the Owner
Trustee or any Holder;
(f) Transaction Expenses or other amounts, fees, disbursements or
expenses paid or payable to or for the benefit of the Owner Trustee or any
Holder;
(g) any payments in respect of interest to the extent attributable
to payments referred to in clauses (a) through (f) above; and
(h) any rights of either the Owner Trustee or the 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.
"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.
"Excluded Costs" shall mean, with respect to the period prior to the
Completion Date for the applicable Property, (a) indemnity payments for damage
claims (excluding damage claims caused by or resulting from the Lessee's actions
or failure to act and damage claims covered pursuant to Sections 11.3, 11.4,
11.6 and/or 11.7 of the Participation Agreement) brought by parties other than
the Financing Parties and (b) property costs arising from acts outside the
control of any Lessee Related Party.
"Excluded Taxes" shall have the meaning given to such term in Section
11.2(b) of the Participation Agreement.
"Exculpated Persons" shall mean the Trust Company (except with respect
to the representations and warranties and the other obligations of the Trust
Company pursuant to the Operative Agreements expressly undertaken in its
individual capacity, including without limitation the representations and
warranties of the Trust Company pursuant to Section 6.1 of the Participation
Agreement, the obligations of the Trust Company pursuant to Section 8.2 of the
Participation Agreement and the obligations of the Trust Company pursuant to the
Trust Agreement), the Holders (except with respect to the obligations of the
Holders pursuant to the Participation Agreement and the Trust Agreement
expressly undertaken in their respective individual capacities), their officers,
directors, shareholders and partners.
"Exempt Payments" shall have the meaning specified in Section 11.2(e) of
the Participation Agreement.
Appendix A-17
136
"Existing Blue Building" shall mean that certain office building
containing approximately 35,060 square feet of rentable area located at 0000
Xxxxxxxx Xxxxxx Xxxxxxxxx, Xxx Xxxxxxxxx, Xxxxx.
"Existing Office Building" shall mean the existing office building
located at 0000 Xxxxxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxx, 00000, used and operated
by Lexicon as of the Initial Closing Date.
"Existing Structure" shall mean any of the Existing Blue Building, the
Existing Office Building and the Existing Vivarium.
"Existing Vivarium" shall mean that certain vivarium containing
approximately 28,865 square feet of rentable area located at 0000 Xxxxxxxx
Xxxxxx Xxxxxxxxx, Xxx Xxxxxxxxx, Xxxxx, used and operated by Lexicon as of the
Initial Closing Date.
"Expiration Date" shall mean either (a) the Basic Term Expiration Date
or (b) the last day of the applicable Renewal Term; provided, in no event shall
the Expiration Date be later than the annual anniversary of the Initial Closing
Date occurring in the year 2013, unless such later date has been expressly
agreed to in writing by each of the Lessor, the Lessee, the Agent, the Lenders
and the Holders.
"Extra Budget Costs" shall mean any cost in excess of the sum of the
Available Commitments and the Available Holder Commitments as of the Initial
Closing Date (less any Unfunded Amounts) necessary for Completion of all
Properties (a) in accordance with the original Construction Budget for each
Property (as modified in accordance with the Operative Agreements) and (b) on or
prior to the Construction Period Termination Date.
"Fair Market Sales Value" shall mean, with respect to any Property or
any other asset, the amount, which in any event, shall not be less than zero
(0), 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 is under any compulsion to purchase or sell, respectively, such Property or
other asset. 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 Effective Rate" shall have the meaning given to such term
in the definition of ABR.
"Fee Letter" shall mean that certain fee letter, dated as of August 3,
2000, between Banc of America Securities, LLC and Lexicon Genetics Incorporated.
"Final Completion" shall mean, with respect to a Property, final
completion of the Property which shall include the Completion thereof and the
completion of all punch list items with respect thereto.
Appendix A-18
137
"Final Completion Date" shall mean the date on which Final Completion
has occurred with respect to all Properties but in no event later than ninety
(90) days after the Construction Period Termination Date.
"Final Completion Escrow Balance" shall mean the aggregate balance of
the escrow account referenced in Section 5.11 of the Participation Agreement as
of the Final Completion Date.
"Financing Parties" shall mean the Lessor, the Owner Trustee, in its
trust capacity, the Trust Company, the Agent, the Holders and the Lenders.
"Fixtures" shall mean all fixtures relating to the Improvements,
including without limitation 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 any
Lessee Related Party, other than a Casualty or Condemnation, including without
limitation 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.
"Form 1001" shall have the meaning specified in Section 11.2(e) of the
Participation Agreement.
"Form 4224" shall have the meaning specified in Section 11.2(e) of the
Participation Agreement.
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the accounting principles board of the
American Institute of Certified Public Accountants, and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, that are applicable to the circumstances as of the
date of determination.
"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 operating of the 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.
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138
"Ground Lease" shall mean a ground lease (in form and substance
satisfactory to the Agent) respecting any Property (a) owned by the Lessee (or a
parent corporation or any Subsidiary of the Lessee) and leased to the Lessor
where such lease has at least a ninety-nine (99) year term and payments set at
no more than $1.00 per year, or (b) where such lease is subject to such other
terms and conditions as are satisfactory to the Agent.
"Hard Costs" shall mean all costs and expenses payable for supplies,
materials, labor and profit with respect to the Improvements under any
Construction Contract.
"Hazardous Substance" shall mean any of the following: (a) any petroleum
or petroleum product, explosives, radioactive materials, asbestos, formaldehyde,
polychlorinated biphenyls, lead and radon gas; (b) 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 (c) any substance, material, product, derivative, compound
or mixture, mineral, chemical, waste, gas, medical waste or pollutant that would
support the assertion of any claim under any Environmental Law, whether or not
defined as hazardous as such under any Environmental Law.
"Holder Advance" shall mean any advance made by any Holder to the Owner
Trustee pursuant to the terms of the Trust Agreement or the Participation
Agreement.
"Holder Amount" shall mean as of any date, the aggregate amount of
Holder Advances made by each Holder to the Trust Estate pursuant to Section 2 of
the Participation Agreement and Section 3.1 of the Trust Agreement less any
payments of any Holder Advances received by the Holders pursuant to Section 3.4
of the Trust Agreement.
"Holder Commitments" shall mean the Holder Commitment of each Holder as
set forth in Schedule I to the Trust Agreement as such Schedule I may be amended
and replaced from time to time.
"Holder Construction Property Cost" shall mean, with respect to each
Construction Period Property, at any date of determination, an amount equal to
the outstanding Holder Advances made with respect thereto under the Trust
Agreement.
"Holder Overdue Rate" shall mean the lesser of (a) the then current rate
of Holder Yield respecting the particular amount in question plus two percent
(2%) and (b) the highest nonusurious rate permitted by applicable law.
"Holder Property Cost" shall mean with respect to a Property an amount
equal to the outstanding Holder Advances with respect thereto.
"Holder Unused Fee" shall have the meaning given to such term in Section
7.4 of the Participation Agreement.
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139
"Holder Yield" shall mean with respect to Holder Advances from time to
time either the Eurodollar Rate plus the Applicable Percentage or the ABR plus
.75% as elected by the Owner Trustee from time to time with respect to such
Holder Advances in accordance with the terms of the Trust Agreement; provided,
however, (a) upon delivery of the notice described in Section 3.7(c) of the
Trust Agreement, the outstanding Holder Advances of each Holder shall bear a
yield at the ABR plus .75% applicable from time to time from and after the dates
and during the periods specified in Section 3.7(c) of the Trust Agreement, (b)
upon the delivery by a Holder of the notice described in Section 11.3(e) of the
Participation Agreement, the Holder Advances of such Holder shall bear a yield
at the ABR plus .75% applicable from time to time after the dates and during the
periods specified in Section 11.3(e) of the Participation Agreement and (c) upon
the increase of the Holder Commitments pursuant to Section 5.9 of the
Participation Agreement, the Holder Advances of each Holder shall bear a yield
at a rate as determined by the Majority Holders.
"Holders" shall mean Bank of America, N.A. and shall include the other
banks and financial institutions which may be from time to time holders of
Certificates in connection with the Lexi Trust 2000-1.
"Impositions" shall mean 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 but
not limited to (i) real and personal property taxes, including without
limitation personal property taxes on any property covered by the Lease that is
classified by Governmental Authorities as personal property, and real estate or
ad valorem taxes in the nature of property taxes; (ii) sales taxes, use taxes
and other similar taxes (including rent taxes and intangibles taxes); (iii)
excise taxes; (iv) real estate transfer taxes, conveyance taxes, stamp taxes and
documentary recording taxes and fees; (v) taxes that are or are in the nature of
franchise, income, value added, privilege and doing business taxes, license and
registration fees; (vi) assessments on any Property, including without
limitation all assessments for public Improvements or benefits, whether or not
such improvements are commenced or completed within the Term; and (vii) taxes,
Liens, assessments or charges 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, sale, transfer of title, return or other disposition of
such Property or any part thereof or interest therein; (c) the Notes, other
indebtedness with respect to any Property, or the Certificates, 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 Agreement) relating to the construction,
acquisition or delivery of the Improvements or any part thereof or interest
therein; (h) the issuance of the Notes or the
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140
Certificates; (i) the Owner Trustee, the Trust or the Trust Estate; or (j)
otherwise in connection with the transactions contemplated by the Operative
Agreements.
"Improvements" shall mean, with respect to the construction, renovations
and/or Modifications on any Land, 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 or otherwise acquired using the proceeds of the Loans
or the Holder Advances or which is subject to a Ground Lease, together with any
and all appurtenances to such buildings, structures or improvements, including
without limitation sidewalks, utility pipes, conduits and lines, parking areas
and roadways, and including without limitation 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.
"Indebtedness" of a Person shall mean, without duplication, such
Person's:
(a) obligations for borrowed money;
(b) obligations representing the deferred purchase price of
Property (whether real, personal, tangible, intangible or mixed) or
services (other than accounts payable arising in the ordinary course of
such Person's business payable on terms customary in the trade);
(c) obligations secured by liens or payable out of the
proceeds or production from property now or hereafter owned or acquired
by such Person;
(d) obligations which are evidenced by notes, acceptances,
convertible debentures or other instruments;
(e) Capitalized Lease obligations and the principal balance
outstanding under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product to
which such Person is a party, where such transaction is considered
borrowed money indebtedness for tax purposes but is classified as an
operating lease in accordance with GAAP;
(f) net liabilities under interest rate swap, exchange or
cap agreements;
(g) Support Obligations with respect to Indebtedness
described in paragraphs (a) through (f) above; and
(h) to the extent not otherwise described in paragraphs (a)
through (g) above, all Additional Indebtedness.
"Indemnified Person" shall mean the Lessor, the Owner Trustee, in its
individual and its trust capacity, the Trust, the Trust Company, the Agent, the
Holders, the Lenders, the Securities Intermediary and their respective
successors, assigns, directors, shareholders, partners, officers,
Appendix A-22
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employees, agents and Affiliates.
"Indemnity Provider" shall mean, respecting each Property, the Lessee.
"Initial Closing Date" shall mean October 19, 2000.
"Initial Construction Advance" shall mean any initial Advance to pay
for: (a) Property Costs for construction of any Improvements; and (b) 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.
"Instruments" shall have the meaning given to such term in Section 1 of
the Security Agreement.
"Insurance Requirements" shall mean 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
all requirements of the issuer of any such policy and, regarding self insurance,
any other requirements of the Lessee.
"Interest Period" shall mean during the Commitment Period and thereafter
as to any Eurodollar Loan or Eurodollar Holder Advance (i) with respect to the
initial Interest Period, the period beginning on the date of the first
Eurodollar Loan and Eurodollar Holder Advance and ending one (1) month, two (2)
months, three (3) months or (to the extent available to all Lenders and all
Holders) six (6) months thereafter, as selected by the Lessor (in the case of a
Eurodollar Loan) or the Owner Trustee (in the case of a Eurodollar Holder
Advance) in its applicable notice 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 Advance
and ending one (1) month, two (2) months, three (3) months or (to the extent
available to all Lenders and all Holders) six (6) months thereafter, as selected
by the Lessor by irrevocable notice to the Agent (in the case of a Eurodollar
Loan) or by the Owner Trustee (in the case of a Eurodollar Holder Advance) in
each case not less than three (3) 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 or the Expiration Date, as the case may
be, (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) there shall not be more than four (4) Interest Periods
outstanding at any one (1) time.
"Investment Company Act" shall mean the Investment Company Act of 1940,
as amended, together with the rules and regulations promulgated thereunder.
"Investments", in any Person, shall mean any loan or advance to such
Person, any purchase
Appendix A-23
142
or other acquisition of any capital stock, warrants, rights, options,
obligations or other securities of, or equity interest in, such Person, any
capital contribution to such Person or any other investment in such Person,
including, without limitation, any guaranty obligation incurred for the benefit
of such Person.
"Land" shall mean a parcel of real property described on (a) the
Requisition issued by the Construction Agent on the Property Closing Date
relating to such parcel and (b) the schedules to the applicable Lease Supplement
executed and delivered in accordance with the requirements of Section 2.4 of the
Lease.
"Larger Tract Purchase Agreement" shall mean the Contract for Purchase
and Sale of Real Property effective as of October 12, 2000 between The Woodlands
Commercial Properties Company, L.P. and Lexicon Genetics Incorporated, with
respect to that certain tract of land containing approximately 6.7677 acres
located in the Xxxx Xxxxxx Survey, A-547, in Xxxxxxxxxx County, Texas, as more
particularly described in Exhibit A thereto.
"Law" shall mean any federal, state, local or foreign statute, law,
ordinance, regulation, rule, directive or any order, writ, injunction or decree
of any Tribunal.
"Lease" or "Lease Agreement" shall mean the Lease Agreement dated on or
about the Initial Closing Date, between the Lessor and the Lessee, together with
any Lease Supplements thereto.
"Lease Accounting Rules" shall have the meaning given such term in
Section 2.2(c) of the Trust Agreement.
"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 substantially in the
form of Exhibit A to the Lease, together with all attachments and schedules
thereto.
"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, any
Holder, the Lessor, the Lessee, the Agent, any Lender or any Property, Land,
Improvement, Equipment 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 repairs, modifications or
alterations in or to any Property or in any way limit the use and enjoyment
thereof (including without limitation all building, zoning and fire codes and
the Americans with Disabilities Act of 1990, 42 U.S.C. Section 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 without limitation all Environmental Laws), and all
permits, certificates of occupancy, licenses, authorizations and regulations
relating thereto, and all covenants, agreements, restrictions and
Appendix A-24
143
encumbrances contained in any instruments which are either of record or known to
the Lessee affecting any Property or the Appurtenant Rights.
"Lender Commitments" shall mean the Lender Commitment of each Lender as
set forth in Schedule 2.1 to the Credit Agreement as such Schedule 2.1 may be
amended and replaced from time to time.
"Lender Financing Statements" shall mean UCC financing statements and
fixture filings appropriately completed and executed for filing in the
applicable jurisdiction in order to procure a security interest in favor of the
Agent in the Collateral subject to the Security Documents.
"Lender Unused Fee" shall have the meaning given to such term in Section
7.4 of the Participation Agreement.
"Lenders" shall mean Bank of America, N.A. and shall include the other
banks and financial institutions which may be from time to time party to the
Participation Agreement and the Credit Agreement.
"Lessee" shall have the meaning set forth in the Lease.
"Lessee Related Party" shall mean the Lessee, the Construction Agent,
any of their respective agents, employees, officers, directors, contractors
and/or subcontractors.
"Lessor" shall mean the Owner Trustee, not in its individual capacity,
but as the Lessor under the Lease.
"Lessor Basic Rent" shall mean the scheduled Holder Yield and the Holder
Amounts (if any) due on the Rent Commencement Date and on any Scheduled Interest
Payment Date pursuant to the Trust Agreement and the Holders Amounts (if any)
due on the Payment Date immediately following the Final Completion Date (but not
including interest on (a) any such scheduled Holder Yield and repayment of
Holder Amounts (if any) due on the Holder Advances prior to the Rent
Commencement Date with respect to the Property to which such Holder Advances
relate or (b) overdue amounts under the Trust Agreement or otherwise), including
specifically, without limitation, any such payments due in connection with any
extension of the Maturity Date of the Holder Advances pursuant to Section 3.3 of
the Trust Agreement; provided, Lessor Basic Rent shall not include Holder Yield
calculated on any Holder Advance used to pay any Excluded Cost unless a Lease
Event of Default shall have occurred and be continuing.
"Lessor Financing Statements" shall mean UCC financing statements and
fixture filings appropriately completed and executed for filing in the
applicable jurisdictions in order to protect the Lessor's interest under the
Lease to the extent the Lease is a security agreement or a mortgage.
"Lessor Funding Obligations" shall mean Transaction Expenses, fees,
expenses, indemnity obligations and other disbursements payable by the Lessor
regarding the Initial Closing Date, any Property Closing Date, any Acquisition
Advance, any Construction Advance
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144
or any Property prior to the Rent Commencement Date as specified pursuant to the
Operative Agreements (excluding amounts payable by the Trust Company but
including, without limitation, amounts payable by the Lessor pursuant to the
applicable provisions of Sections 7 and 11.8 of the Participation Agreement and
Section 2.1 of the Agency Agreement).
"Lessor Lien" shall mean any Lien, true lease or sublease or disposition
of title of any Property arising as a result of (a) any claim against the
Lessor, the Trust Company, the Agent or any Financing Party, not resulting from
the transactions contemplated by the Operative Agreements, (b) any act or
omission of the Lessor, the Trust Company, the Agent or any Financing Party,
which is not required or permitted by the Operative Agreements or is in
violation of any of the terms of the Operative Agreements, (c) any claim against
the Lessor, the Trust Company, the Agent or any Financing Party, with respect to
Taxes or Transaction Expenses against which the Lessee is not required to
indemnify pursuant to Section 11 of the Participation Agreement or (d) any claim
against the Lessor or the Agent 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,
Article V of the Agency Agreement or Section 6 of the Credit Agreement.
"Lexi Trust 2000-1" shall mean the grantor trust created pursuant to the
terms and conditions of the Trust Agreement.
"Lexicon" shall mean Lexicon Genetics Incorporated, a Delaware
corporation, in its individual capacity, in its capacities as Lessee and
Construction Agent, and in any other capacity it may assume under the Operative
Agreements.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), option, preference, priority or charge of any kind, including,
without limitation, any agreement to give any of the foregoing, any conditional
sale or other title retention agreement, and any lease in the nature thereof.
"Limited Recourse Amount" shall mean with respect to all the Properties
on an aggregate basis, an amount equal to the sum of the Termination Values with
respect to all the Properties on an aggregate basis on each Payment Date, less
the Maximum Residual Guarantee Amount as of such date with respect to all the
Properties on an aggregate basis.
"Liquidity" shall mean, as of any date of calculation thereof, the
aggregate of all cash and Cash Equivalents owned by the Consolidated Group on
such date; provided that, Liquidity as calculated hereunder shall exclude all
Cash Equivalents held as Securities Collateral.
"Loan Basic Rent" shall mean the scheduled interest and principal
payments (if any) due on the Loans on the Rent Commencement Date and on any
Scheduled Interest Payment Date pursuant to the Credit Agreement and the
principal payments (if any) due on the Payment Date
Appendix A-26
145
immediately following the Final Completion Date (but not including interest on
(a) any such Loan due prior to the Rent Commencement Date with respect to the
Property to which such Loan relates or (b) any overdue amounts under Section
2.8(b) of the Credit Agreement or otherwise), including specifically, without
limitation, any such payments due in connection with any extension of the
Maturity Date of the Loans pursuant to Section 2.6(e) of the Credit Agreement;
provided, Loan Basic Rent shall not include interest calculated on any Loan used
to pay any Excluded Cost unless a Lease Event of Default shall have occurred and
be continuing.
"Loan Property Cost" shall mean, with respect to each Property at any
date of determination, an amount equal to (a) the aggregate principal amount all
Loans (including without limitation all Acquisition Loans and Construction
Loans) made on or prior to such date with respect to such Property, as increased
pursuant to Section 2.3(b) of the Credit Agreement, minus (b) the aggregate
amount of 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 the loans extended pursuant to the Credit Agreement
and shall include both the Tranche A Loans and the Tranche B Loans.
"Majority Holders" shall mean at any time, Holders whose Holder Advances
outstanding represent at least sixty-six and two thirds percent (66 2/3%) of (a)
the aggregate Holder Advances outstanding or (b) to the extent there are no
Holder Advances outstanding, the aggregate Holder Commitments.
"Majority Lenders" shall mean at any time, Lenders whose Loans
outstanding represent at least sixty-six and two thirds percent (66 2/3%) of (a)
the aggregate Loans outstanding or (b) to the extent there are no Loans
outstanding, the aggregate of the Lender Commitments.
"Majority Secured Parties" shall mean at any time, Lenders and Holders
whose Loans and Holder Advances outstanding represent at least sixty-six and two
thirds percent (66 2/3%) of (a) the aggregate Advances outstanding or (b) to the
extent there are no Advances outstanding, the sum of the aggregate Holder
Commitments plus the aggregate Lender Commitments.
"Margin Base" shall mean on any date of determination, the sum of (i)
that Class A Collateral described in clause (a) of the definition of Class A
Collateral; plus (ii) the product of the market value of that Class A Collateral
described in clause (b) of the definition of Class A Collateral multiplied by
95%; plus (iii) the market value of that Class A Collateral described in clause
(c) of the definition of Class A Collateral; plus (iv) the product of the market
value of that Class B Collateral described in clause (a) of the definition of
Class B Collateral multiplied by 85%; plus (v) the product of the market value
of that Class B Collateral described in clause (b) of the definition of Class B
Collateral multiplied by 95%.
"Marketing Period" shall mean, if the Lessee has given a Sale 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 Expiration Date.
Appendix A-27
146
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, condition (financial or otherwise), assets, liabilities or
operations of the Lessee, (b) the ability of the Lessee to perform its
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 (other than any of same caused by the Agent or a
Lender), or (e) the value, utility or useful life of any Property or the use, or
ability of the Lessee to use, any Property for the purpose for which it was
intended.
"Maturity Date" shall mean the Expiration Date.
"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, the Construction Period Properties (collectively, the "Land Cost"), plus
(b) the product of eighty-nine and nine tenths percent (89.9%) multiplied by the
following: (the aggregate Termination Value for all, but not less than all, the
Construction Period Properties, minus the Land Cost, minus all structuring fees
payable in connection with the transactions evidenced by the Operative
Agreements to Banc of America Securities, LLC, Bank of America, N.A. and/or any
Affiliates of either of the foregoing, minus accrued, unpaid Holder Yield
respecting any and all Construction Period Properties), minus the amount of each
Advance used to pay Excluded Costs minus (c) the accreted value (calculated at a
rate of 6.94% 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 (d) the aggregate Termination Value for all Properties from time
to time for which the Rent Commencement Date has occurred at such time.
"Maximum Residual Guarantee Amount" shall mean an amount equal to the
product of the aggregate Property Cost for all of Properties (minus the amount
of each Advance used to pay Excluded Costs) times eighty-six and thirty-one one
hundredths percent (86.31%).
"Modifications" shall have the meaning specified in Section 11.1(a) of
the Lease.
"Moody's" shall mean Xxxxx'x Investors Service, Inc., or any successor
or assignee of the business of such company in the business of rating
securities.
"Mortgage Instrument" shall mean any mortgage, deed of trust or any
other instrument executed by the Owner Trustee and the Lessee (or regarding any
property subject to a Ground Lease, the applicable Affiliate of the Lessee) in
favor of the Agent (for the benefit of the Lenders and the Holders) and
evidencing a Lien on the Property, in form and substance reasonably acceptable
to the Agent.
"Multiemployer Plan" shall mean any Plan described in Section 4001(a)(3)
or Section 3(37) of ERISA to which contributions are or have been made or
required by the Lessee or any of its Subsidiaries or ERISA Affiliates.
"Multiple Employer Plan" shall mean a Plan to which the Lessee, any
Subsidiary of
Appendix A-28
147
Lessee or any ERISA Affiliate and at least one (1) other employer other than the
Lessee, any Subsidiary of the Lessee or any ERISA Affiliate is making or
accruing an obligation to make, or has made or accrued an obligation to make,
contributions.
"New Facility" shall have the meaning given to such term in Section 28.1
of the Lease.
"Non-Integral Equipment" shall mean Equipment which (a) is personal
property that is readily removable without causing material damage to the
applicable Property and (b) is not integral or necessary, respecting the
applicable Property, for compliance with Section 8.3 of the Lease or otherwise
to the structure thereof, the mechanical operation thereof, the electrical
systems thereof or otherwise with respect to any aspect of the physical plant
thereof.
"Notes" shall mean those notes issued to the Lenders pursuant to the
Credit Agreement and shall include both the Tranche A Notes and the Tranche B
Notes.
"Obligations" shall have the meaning given to such term in Section 1 of
the Security Agreement.
"Officer's Certificate" with respect to any person shall mean a
certificate executed on behalf of such person by a Responsible Officer who has
made or caused to be made such examination or investigation as is necessary to
enable such Responsible Officer to express an informed opinion with respect to
the subject matter of such Officer's Certificate.
"Operative Agreements" shall mean the following: the Participation
Agreement, the Agency Agreement, the Trust Agreement, the Certificates, the
Credit Agreement, the Notes, the Lease, the Lease Supplements (and memoranda of
the Lease and each Lease Supplement in a form reasonably acceptable to the
Agent), the Security Agreement, the Mortgage Instruments, the other Security
Documents, the Ground Leases, the Deeds and the Bills of Sale, the Collateral
Agreement, the Control Agreement and any and all other agreements, documents and
instruments executed in connection with any of the foregoing.
"Original Executed Counterpart" shall have the meaning given to such
term in Section 5 of Exhibit A to the Lease.
"Overdue Interest" shall mean any interest payable pursuant to Section
2.8(b) of the Credit Agreement.
"Overdue Rate" shall mean (a) with respect to the 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(b) of the Credit
Agreement, (b) with respect to the Lessor Basic Rent, the Holder Yield and any
other amount owed under or with respect to the Trust Agreement, the Holder
Overdue Rate, and (c) with respect to any other amount, the amount referred to
in clause (y) of Section 2.8(b) of the Credit Agreement.
"Owner Trustee," "Borrower" or "Lessor" shall mean First Security Bank,
National Association, not individually, except as expressly stated in the
various Operative Agreements,
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148
but solely as the Owner Trustee under the Lexi Trust 2000-1, and any successor,
replacement and/or additional 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
on or about the Initial Closing Date, among the Lessee, the Owner Trustee, not
in its individual capacity except as expressly stated therein, the Holders, the
Lenders and the Agent.
"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 Advances 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.
"Pension Plan" shall mean a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to title IV of ERISA (other than a
Multiemployer Plan), and to which the Lessee or any ERISA Affiliate may have any
liability, including without limitation any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA at any time
during the preceding five (5) years, or by reason of being deemed to be a
contributing sponsor under section 4069 of ERISA.
"Permitted Facility" shall mean any office or other commercial building,
parking facility associated therewith or vivarium located in Xxxxxxxxxx County,
Texas, on parcels identified in Lease Supplement No. 1, that is customarily used
and operated by the Lessee in its ordinary course of business as of the Initial
Closing Date.
"Permitted Liens" shall mean:
(a) the respective rights and interests of the parties to
the Operative Agreements as provided in the Operative Agreements;
(b) the rights of any sublessee or assignee under a sublease
or an assignment expressly permitted by the terms of the Lease for no
longer than the duration of the Lease;
(c) 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;
(d) 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 for amounts that either are not more than
thirty (30) days past due or are being diligently contested in good
faith by appropriate proceedings, so
Appendix A-30
149
long as such proceedings satisfy the conditions for the continuation of
proceedings to contest Taxes set forth in Section 13.1 of the Lease;
(e) Liens of any of the types referred to in clause (d)
above that 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;
(f) 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
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;
(g) Liens in favor of municipalities to the extent agreed to
by the Lessor;
(h) Liens securing purchase money and sale/leaseback
Indebtedness (including Capitalized Leases) to the extent permitted
under Section 8.3B(a)(iii), provided that any such Lien attaches only to
the Subject Property (but not to any Property) financed or leased and
such Lien attaches thereto concurrently with or within 90 days after the
acquisition thereof in connection with the purchase money transactions
and within 30 days after the closing of any sale/leaseback transaction;
and
(i) Liens in renewal, extension or replacement of any Lien
referenced in paragraphs (a) through (h) above; provided such renewal,
extension or replacement Liens shall not cover any additional property
or secure any additional Indebtedness not theretofore covered or secured
by the Lien being renewed, extended or replaced.
"Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, governmental authority or any other entity.
"Plan" shall mean any employee benefit plan (as defined in Section 3(3)
of ERISA) which is covered by ERISA and with respect to which Lessee, any
Subsidiary of Lessee or any ERISA Affiliate is (or, if such plan were terminated
at such time, would under Section 4069 of ERISA be deemed to be) an "employer"
within the meaning of Section 3(5) of ERISA.
"Planned Office Building" shall mean the office building contemplated to
be constructed by the Construction Agent pursuant to the Operative Agreements.
"Planned Parking Facility" shall mean the parking facility contemplated
to be constructed by the Construction Agent pursuant to the Operative
Agreements.
"Planned Vivarium" shall mean the vivarium contemplated to be
constructed by the
Appendix A-31
150
Construction Agent pursuant to the Operative Agreements.
"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 Operative
Agreements.
"Prime Lending Rate" shall have the meaning given to such term in the
definition of ABR.
"Prior Property" shall have the meaning given to such term in Section
5.11 of the Participation Agreement.
"Property" shall mean, with respect to each Permitted Facility that is
(or is to be) acquired, constructed and/or renovated pursuant to the terms of
the Operative Agreements, the Land, and/or the various Improvements, in each
case as identified on the applicable Lease Supplement, and the Equipment
associated with such Property including without limitation each Construction
Period Property, each Property subject to a Ground Lease and each Property for
which the Basic Term has commenced.
"Property Acquisition Cost" shall mean the cost to the Lessor to
purchase a Property on a Property Closing Date.
"Property Closing Date" shall mean the date on which the Lessor
purchases a Property or, with respect to the first Advance, the date on which
the Lessor seeks reimbursement for Property previously purchased by the Lessor.
"Property Cost" shall mean with respect to a Property the aggregate
amount (and/or the various items and occurrences giving rise to such amounts) 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
Advances and the Loans extended from time to time to pay for Lessor Funding
Obligations).
"Punch List Completion Date" shall mean, with respect to a Property, the
date of Final Completion.
"Purchase Agreements" shall mean the Larger Tract Purchase Agreement and
the Smaller Tract Purchase Agreement.
"Purchase Option" shall have the meaning given to such term in Section
20.1 of the Lease.
"Purchase Option Date" shall mean the first Business Day of any calendar
month and the Expiration Date.
"Register" shall have the meaning given to such term in Section 9.9(a)
of the Credit
Appendix A-32
151
Agreement.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
"Regulation T" shall mean Regulation T of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
"Regulation U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
"Regulation X" shall mean Regulation X of the Board of Governors of the
Federal Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.
"Release" shall mean any release, pumping, pouring, emptying, injecting,
escaping, leaching, dumping, seepage, spill, leak, flow, discharge, disposal or
emission of a Hazardous Substance.
"Renewal Term" shall have the meaning specified in Section 2.2 of the
Lease.
"Rent" shall mean, collectively, the Basic Rent and the Supplemental
Rent, in each case payable under the Lease.
"Rent Commencement Date" shall mean, regarding each Property, the
Completion Date.
"Reportable Event" shall mean any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the notice requirement has
been waived by regulation.
"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.
"Required S&P Rating" shall have the meaning specified in Section
17.1(o) of the Lease.
"Requisition" shall have the meaning specified in Section 4.2 of the
Participation Agreement.
"Responsible Officer" shall mean the Chairman or Vice Chairman of the
Board of Directors, the Chairman or Vice Chairman of the Executive Committee of
the Board of Directors, the President, any Senior Vice President or Executive
Vice President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer, or any Assistant Treasurer, 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
Appendix A-33
152
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 knowledge of and familiarity with
the particular subject.
"Restricted Payment" shall mean (a) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock now or
hereafter outstanding, except (i) a dividend payable solely in shares of that
class to the holders of that class and (ii) dividends and other distributions
payable to Lessee, (b) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
shares of any class of stock now or hereafter outstanding and (c) any payment
made to retire, or to obtain the surrender of, any outstanding warrants, options
or other rights to acquire shares of any class of stock now or hereafter
outstanding.
"Right of First Offer" shall mean the Right of First Offer Agreement
dated as of October 19, 2000 by and between The Woodlands Development Company,
L.P. and the Owner Trustee with regard to two (2) certain tracts of real
property located in Xxxxxxxxxx County, Texas, as more particularly described on
Exhibit A attached thereto.
"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 the Lessor in connection with
the election by the Lessee of its Sale Option.
"Sale Option" shall have the meaning given to such term in Section 20.1
of the Lease.
"Sale Proceeds Shortfall" shall mean the amount by which the proceeds of
a sale described in Section 22.1 of the Lease 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 ordinary wear and tear during the Term of the
Lease.
"S&P" shall mean Standard & Poor's Rating Services, a division of McGraw
Hill, Inc., or any successor or assignee of the business of such division in the
business of rating securities.
"Scheduled Interest Payment Date" shall mean (a) as to any Eurodollar
Loan or Eurodollar Holder Advance, the last day of the Interest Period
applicable to such Eurodollar Loan or Eurodollar Holder Advance (and respecting
any Eurodollar Loan or Eurodollar Holder Advance having an Interest Period of
six (6) months, the three (3) month anniversary of such Interest Period), (b) as
to any ABR Loan or any ABR Holder Advance, the fifteenth day of each month,
unless such day is not a Business Day and in such case on the next occurring
Business Day and (c) as to all Loans and Holder Advances, the date of any
voluntary or involuntary payment, prepayment, return or redemption, and the
Maturity Date or the Expiration Date, as the case may be.
"Secured Parties" shall have the meaning given to such term in the
Security Agreement.
Appendix A-34
153
"Securities Act" shall mean the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
"Securities Collateral" shall mean such Cash Equivalents constituting
part of the Collateral pledged by the Construction Agent or the Lessee and
maintained (a) (except as otherwise specified in subsection (b)) in the
Collateral Account, all as referenced in the Collateral Agreement and the
Participation Agreement or (b) (with respect to U.S. dollar denominated
certificates of deposit of Bank of America, N.A.) in the possession, custody and
control of the Agent.
"Securities Intermediary" shall mean Bank of America, N.A., a national
banking association, through its offices at: Xxxx xx Xxxxxxx Xxxxx, Xxxxxxxx
XX0-000-0000, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxx, 00000, Attention: Xxxx X.
Xxxxxxxxx, or such other address as the Securities Intermediary shall give
written notice of to the parties to the Control Agreement.
"Security Agreement" shall mean the Security Agreement dated on or about
the Initial Closing Date between the Lessor and the Agent, for the benefit of
the Secured Parties, and accepted and agreed to by the Lessee.
"Security Documents" shall mean the collective reference to the Security
Agreement, the Collateral Agreement, the Control Agreement, the Mortgage
Instruments, (to the extent the Lease is construed as a security instrument) the
Lease, the UCC Financing Statements and all other security documents hereafter
delivered to the Agent granting a lien on any asset or assets of any Person to
secure the obligations and liabilities of the Lessor under the Credit Agreement
and/or under any of the other Credit Documents or to secure any guarantee of any
such obligations and liabilities.
"Single Employer Plan" shall mean any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan or a Multiple Employer Plan.
"Smaller Tract Purchase Agreement" shall mean the Contract for Purchase
and Sale of Real Property effective as of October 12, 2000 between The Woodlands
Land Development Company, L.P. and Lexicon Genetics Incorporated, with respect
to that certain tract of land containing approximately 5.592 acres located in
the Xxxx Xxxxxx Survey, A-547, in Xxxxxxxxxx County, Texas, as more particularly
described in Exhibit A thereto.
"Soft Costs" shall mean all costs which are ordinarily and reasonably
incurred in relation to the acquisition, development, installation,
construction, improvement and testing of the Properties other than Hard Costs,
including without limitation structuring fees, administrative fees, legal fees,
upfront fees, fees and expenses related to appraisals, title examinations, title
insurance, document recordation, surveys, environmental site assessments,
geotechnical soil investigations and similar costs and professional fees
customarily associated with a real estate closing, the Lender Unused Fee, the
Holder Unused Fee, fees and expenses of the Owner Trustee payable or
reimbursable under the Operative Agreements.
Appendix A-35
154
"Structure" shall mean each of the following structures contemplated to
constitute individual Properties: the Existing Office Building, the Existing
Vivarium, the Existing Blue Building, the Planned Office Building, the Planned
Vivarium and the Planned Parking Facility.
"Subject Properties" shall mean have the meaning given to such term in
Section 6.2(y) of the Participation Agreement.
"Subsidiary" shall mean, as to any Person, any corporation of which at
least a majority of the outstanding stock having by the terms thereof ordinary
voting power to elect a majority of the board of directors of such corporation
(irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person, or by one (1)
or more Subsidiaries, or by such Person and one (1) or more Subsidiaries.
"Supplemental Amounts" shall have the meaning given to such term in
Section 9.18 of the Credit Agreement.
"Supplemental Rent" shall mean all amounts, liabilities and obligations
(other than Basic Rent) which the Lessee assumes or agrees to pay to the Lessor,
the Trust Company, the Holders, the Agent, the Lenders or any other Person under
the Lease or under any of the other Operative Agreements including without
limitation payments of the Termination Value and the Maximum Residual Guarantee
Amount and all indemnification amounts, liabilities and obligations.
"Support Obligations" shall mean, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of any other Person in
any manner, whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (a) to purchase any such Indebtedness or
any property constituting security therefor, (b) to advance or provide funds or
other support for the payment or purchase of any such Indebtedness or to
maintain working capital, solvency or other balance sheet condition of such
other Person (including without limitation keep well agreements, maintenance
agreements, comfort letters or similar agreements or arrangements) for the
benefit of any holder of Indebtedness of such other Person, (c) to lease or
purchase property, securities or services primarily for the purpose of assuring
the holder of such Indebtedness, or (d) to otherwise assure or hold harmless the
holder of such Indebtedness against loss in respect thereof. The amount of any
Support Obligation hereunder shall (subject to any limitations set forth
therein) be deemed to be an amount equal to the outstanding principal amount (or
maximum principal amount, if larger) of the Indebtedness in respect of which
such Support Obligation is made; provided, if the Support Obligation is secured
by a Lien on one or more assets of such Person and the Support Obligation is
expressly limited to the value of such asset or assets, then the amount of such
Support Obligation hereunder shall be deemed to equal the value of such asset or
assets.
"Taxes" shall have the meaning specified in the definition of
"Impositions".
"Term" shall mean the Basic Term and each Renewal Term, if any.
Appendix A-36
155
"Termination Date" shall have the meaning specified in Section 16.2(a)
of the Lease.
"Termination Event" shall mean (a) with respect to any Pension Plan, the
occurrence of a Reportable Event or an event described in Section 4062(e) of
ERISA, (b) the withdrawal of the Lessee or any ERISA Affiliate from a Multiple
Employer Plan during a plan year in which it was a substantial employer (as such
term is defined in Section 4001(a)(2) of ERISA), or the termination of a
Multiple Employer Plan, (c) the distribution of a notice of intent to terminate
a Plan or Multiemployer Plan pursuant to Section 4041(a)(2) or 4041A of ERISA,
(d) the institution of proceedings to terminate a Plan or Multiemployer Plan by
the PBGC under Section 4042 of ERISA, (e) any other event or condition which
might constitute grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Plan or Multiemployer Plan, or
(f) the complete or partial withdrawal of the Lessee or any ERISA Affiliate from
a Multiemployer Plan.
"Termination Notice" shall have the meaning specified in Section 16.1 of
the Lease.
"Termination Value" shall mean the sum of (a) either (i) with respect to
all Properties, an amount equal to the aggregate outstanding Property Cost
(including, without limitation, the amount of each Advance used to pay one or
more Excluded Costs) for all the Properties, in each case as of the last
occurring Payment Date, or (ii) with respect to a particular Property, an amount
equal to the Property Cost (including, without limitation, the amount of each
Advance used to pay one or more Excluded Costs) allocable to such Property, plus
(b) respecting the amounts described in each of the foregoing subclause (i) or
(ii), as applicable, any and all accrued but unpaid interest on the Loans and
any and all Holder Yield on the Holder Advances related to the applicable
Property Cost (including, without limitation, the amount of each Advance used to
pay one or more Excluded Costs), plus (c) to the extent the same is not
duplicative of the amounts payable under clause (b) above, all other Rent and
other amounts then due and payable or accrued under the Agency Agreement, Lease
and/or under any other Operative Agreement (including without limitation amounts
under Sections 11.1 through 11.8 of the Participation Agreement and all costs
and expenses referred to in clause FIRST of Section 22.2 of the Lease). If any
Claim or cost in relation thereto is not satisfied in favor of the Owner Trustee
pursuant to Section 11.7 of the Participation Agreement because Section 11.7(b)
is not satisfied, the amount of such Claim or cost shall be added to the
Termination Value.
"Tranche A Commitments" shall mean the obligation of the Tranche A
Lenders to make the Tranche A Loans to the Lessor in an aggregate principal
amount at any one (1) time outstanding not to exceed the aggregate of the
amounts set forth opposite each Tranche A Lender's name on Schedule 2.1 to the
Credit Agreement, as such amount may be increased or reduced from time to time
in accordance with the provisions of the Operative Agreements; provided, no
Tranche A Lender shall be obligated to make Tranche A Loans in excess of such
Tranche A Lender's share of the Tranche A Commitments as set forth adjacent to
such Tranche A Lender's name on Schedule 2.1 to Credit Agreement.
"Tranche A Lenders" shall mean Bank of America, N.A. and shall include
the several banks and other financial institutions from time to time party to
the Credit Agreement that commit to make the Tranche A Loans.
Appendix A-37
156
"Tranche A Loans" shall mean the Loans made pursuant to the Tranche A
Commitment.
"Tranche A Note" shall have the meaning given to it in Section 2.2 of
the Credit Agreement.
"Tranche B Commitments" shall mean the obligation of the Tranche B
Lenders to make the Tranche B Loans to the Lessor in an aggregate principal
amount at any one (1) time outstanding not to exceed the aggregate of the
amounts set forth opposite each Tranche B Lender's name on Schedule 2.1 to the
Credit Agreement, as such amount may be increased or reduced from time to time
in accordance with the provisions of the Operative Agreements; provided, no
Tranche B Lender shall be obligated to make Tranche B Loans in excess of such
Tranche B Lender's share of the Tranche B Commitments as set forth adjacent to
such Tranche B Lender's name on Schedule 2.1 to Credit Agreement.
"Tranche B Lenders" shall mean Bank of America, N.A. and shall include
the several banks and other financial institutions from time to time party to
the Credit Agreement that commit to make the Tranche B Loans.
"Tranche B Loan" shall mean the Loans made pursuant to the Tranche B
Commitment.
"Tranche B Note" shall have the meaning given to it in Section 2.2 of
the Credit Agreement.
"Transaction Expenses" shall mean all Soft Costs and all other 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, the following:
(a) the reasonable fees, out-of-pocket expenses and
disbursements of counsel to the Agent, the Lenders, the Holders, the
Lessor and the Lessee 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) the reasonable fees, out-of-pocket expenses and
disbursements of accountants for the Lessee or the Construction Agent in
connection with the transaction contemplated by the Operative
Agreements;
(c) any and all other reasonable fees, charges or other
amounts payable to the Lenders, the Agent, the Holders, the Owner
Trustee or any broker which arises under any of the Operative
Agreements;
(d) 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,
Appendix A-38
157
including costs of surveys of the Land, any appraisals or environmental
reports required pursuant to the Operative Agreements and any title
insurance expenses incurred under the Operative Agreements; and
(e) 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
Agreements.
"Tribunal" shall mean any state, commonwealth, federal, foreign,
territorial, or other court or government body, subdivision agency, department,
commission, board, bureau or instrumentality of a governmental body.
"Trust" shall mean the Lexi Trust 2000-1.
"Trust Agreement" shall mean the Trust Agreement dated on or about the
Initial Closing Date between the Holders and the Owner Trustee.
"Trust Company" shall mean First Security Bank, National Association, in
its individual capacity, and any successor owner trustee under the Trust
Agreement in its individual capacity.
"Trust Estate" shall have the meaning specified in Section 2.2 of the
Trust Agreement.
"Type" shall mean, as to any Loan, whether it is an ABR Loan or a
Eurodollar Loan.
"UCC Financing Statements" shall mean collectively the Lender Financing
Statements and the Lessor Financing Statements.
"Unanimous Vote Matters" shall have the meaning given it in Section 12.4
of the Participation Agreement.
"Unfunded Amount" shall have the meaning specified in Section 3.2 of the
Agency Agreement.
"Unfunded Liability" shall mean, with respect to any Plan, at any time,
the amount (if any) by which (a) the present value of all benefits under such
Plan exceeds (b) the fair market value of all Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plan, but only to the extent that such excess represents a potential liability
of the Company or any member of the Controlled Group to the PBGC or such Plan
under Title IV of ERISA.
"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.
Appendix A-39
158
"Unused Fee" shall mean, collectively, the Holder Unused Fee and the
Lender Unused Fee.
"Unused Fee Payment Date" shall mean the last Business Day of each
January, April, July and October and the last Business Day of the Commitment
Period, or such earlier date as the Commitments shall terminate as provided in
the Credit Agreement or the Holder Commitment shall terminate as provided in the
Trust Agreement.
"U.S. Person" shall have the meaning specified in Section 11.2(e) of the
Participation Agreement.
"U.S. Taxes" shall have the meaning specified in Section 11.2(e) of the
Participation Agreement.
"Voting Stock" of any Person, shall mean the capital stock of such
Person entitled to vote in the election of the Board of Directors of such
Person.
"Withholdings" shall have the meaning specified in Section 11.2(e) of
the Participation Agreement.
"Work" shall mean the furnishing of labor, materials, components,
furniture, furnishings, fixtures, appliances, machinery, equipment, tools,
power, water, fuel, lubricants, supplies, goods and/or services with respect to
any Property.
Appendix A-40
159
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AGENCY AGREEMENT
Dated as of October 19, 2000
between
LEXICON GENETICS INCORPORATED,
as the Construction Agent
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Owner Trustee under the Lexi Trust 2000-1,
as the Lessor
------------------------------------------------------------------------------
160
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; RULES OF USAGE.......................................1
1.1 Definitions.......................................................1
1.2 Interpretation....................................................1
ARTICLE II APPOINTMENT OF THE CONSTRUCTION AGENT............................2
2.1 Appointment.......................................................2
2.2 Acceptance and Undertaking........................................4
2.3 Term..............................................................4
2.4 Scope of Authority................................................4
2.5 Delegation of Duties..............................................5
2.6 Covenants of the Construction Agent...............................5
ARTICLE III THE PROPERTIES..................................................7
3.1 Construction......................................................7
3.2 Amendments; Modifications.........................................7
3.3 Abandonment or Permanent Discontinuance...........................8
ARTICLE IV PAYMENT OF FUNDS.................................................8
4.1 Right to Receive Construction Cost................................8
ARTICLE V EVENTS OF DEFAULT.................................................9
5.1 Events of Default.................................................9
5.2 Damages...........................................................9
5.3 Remedies; Remedies Cumulative.....................................9
ARTICLE VI THE LESSOR'S RIGHTS.............................................10
6.1 Exercise of the Lessor's Rights..................................10
6.2 The Lessor's Right to Cure the Construction Agent's Defaults.....10
ARTICLE VII MISCELLANEOUS..................................................11
7.1 Notices..........................................................11
7.2 Successors and Assigns...........................................11
7.3 GOVERNING LAW....................................................11
7.4 Submission To Jurisdiction; Venue; Waivers.......................11
7.5 Amendments and Waivers...........................................11
7.6 Counterparts.....................................................11
7.7 Severability.....................................................11
7.8 Headings and Table of Contents...................................11
7.9 WAIVER OF JURY TRIAL.............................................11
ARTICLE I DEFINITIONS; RULES OF USAGE.......................................1
1.1 Definitions.......................................................1
1.2 Interpretation....................................................1
ARTICLE II APPOINTMENT OF THE CONSTRUCTION AGENT............................2
2.1 Appointment.......................................................2
2.2 Acceptance and Undertaking........................................4
2.3 Term..............................................................4
2.4 Scope of Authority................................................4
2.5 Delegation of Duties..............................................5
2.6 Covenants of the Construction Agent...............................5
i
161
ARTICLE III THE PROPERTIES..................................................7
3.1 Construction......................................................7
3.2 Amendments; Modifications.........................................7
3.3 Abandonment or Permanent Discontinuance...........................8
ARTICLE IV PAYMENT OF FUNDS.................................................8
4.1 Right to Receive Construction Cost................................8
ARTICLE V EVENTS OF DEFAULT.................................................9
5.1 Events of Default.................................................9
5.2 Damages...........................................................9
5.3 Remedies; Remedies Cumulative.....................................9
ARTICLE VI THE LESSOR'S RIGHTS.............................................10
6.1 Exercise of the Lessor's Rights..................................10
6.2 The Lessor's Right to Cure the Construction Agent's Defaults.....10
ARTICLE VII MISCELLANEOUS..................................................11
7.1 Notices..........................................................11
7.2 Successors and Assigns...........................................11
7.3 GOVERNING LAW....................................................11
7.4 Submission To Jurisdiction; Venue; Waivers.......................11
7.5 Amendments and Waivers...........................................11
7.6 Counterparts.....................................................11
7.7 Severability.....................................................11
7.8 Headings and Table of Contents...................................11
7.9 WAIVER OF JURY TRIAL.............................................11
ii
162
AGENCY AGREEMENT
THIS AGENCY AGREEMENT, dated as of October 19, 2000 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, the
"Agreement"), between FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association ("FSB"), as Owner Trustee under the Lexi Trust 2000-1 (the
"Lessor") and LEXICON GENETICS INCORPORATED, a Delaware corporation (the
"Construction Agent").
PRELIMINARY STATEMENT
A. The Lessor and the Construction Agent are parties to that certain
Lease Agreement dated as of even date herewith (as amended, modified, extended,
supplemented, restated and/or replaced from time to time, the "Lease"), pursuant
to which the Construction Agent, as lessee (in such capacity, the "Lessee") has
agreed to lease certain Land, Improvements and Equipment and/or to sublease a
ground leasehold in certain Properties subject to one (1) or more Ground Leases
from the Lessor.
B. In connection with the execution and delivery of the Participation
Agreement, the Lease and the other Operative Agreements, and subject to the
terms and conditions hereof, (i) the Lessor desires to appoint the Construction
Agent as its sole and exclusive agent in connection with the identification and
acquisition or ground lease of the Properties (provided, title to the Properties
shall be held in the name of the Lessor, except that the interest of the Lessor
in certain of the Properties shall be a ground leasehold interest pursuant to
one (1) or more Ground Leases, if requested by the Construction Agent) and the
development, acquisition, installation, construction and testing of the
Improvements and the Equipment in accordance with the Plans and Specifications
and (ii) the Construction Agent desires, for the benefit of the Lessor, to
identify and acquire or ground lease the Properties and to cause the
development, acquisition, installation, construction and testing of the
Improvements, the Equipment and the other components of the Properties in
accordance with the Plans and Specifications and to undertake such other
liabilities and obligations as are herein set forth.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS; RULES OF USAGE
1.1 DEFINITIONS.
For purposes of this Agreement, capitalized terms used in this
Agreement and not otherwise defined herein shall have the meanings assigned to
them in Appendix A to that certain Participation Agreement dated as of October
19, 2000 (as amended, modified, extended, supplemented, restated and/or replaced
from time to time in accordance with the applicable provisions thereof, the
"Participation Agreement") among the Construction Agent, the Lessor, the various
banks and lending institutions parties thereto from time to time, as Holders,
the various banks and lending institutions parties thereto from time to time, as
Lenders, and Bank of America, N.A., as the agent for the Lenders and respecting
the Security Documents, as the agent for the Secured Parties. Unless otherwise
indicated, references in this Agreement to articles, sections, paragraphs,
clauses, appendices, schedules and exhibits are to the same contained in this
Agreement.
1.2 INTERPRETATION.
The rules of usage set forth in Appendix A to the Participation
Agreement shall apply to this Agreement.
163
ARTICLE II
APPOINTMENT OF THE CONSTRUCTION AGENT
2.1 APPOINTMENT.
Subject to the terms and conditions hereof, the Lessor hereby irrevocably
designates and appoints Lexicon as its exclusive agent and as general
contractor, and the Construction Agent accepts such appointment, in connection
with the identification and acquisition from time to time of the Properties
(provided, title to the Properties shall be held in the name of the Lessor,
except that the interest of the Lessor in certain Properties shall be a ground
leasehold interest pursuant to one or more Ground Leases if requested by the
Construction Agent) and the development, acquisition, installation, construction
and testing of the Improvements, the Equipment and the other components of the
Properties in accordance with the Plans and Specifications on the Land, and
pursuant to the terms of the Operative Agreements. Notwithstanding any
provisions hereof or in any other Operative Agreement to the contrary, the
Construction Agent acknowledges and agrees that the Lessor shall advance no more
than the sum of the aggregate Commitment of the Lenders plus the aggregate
amount of the Holder Commitments of the Holders in regard to the Properties
(including without limitation for any and all Advances in the aggregate from the
Lenders under the Credit Agreement and from the Holders under the Trust
Agreement).
After the Construction Agent gains knowledge or a reasonable expectation
that (i) the sum of the Available Commitments and the Available Holder
Commitments (less any Unfunded Amounts) shall be less than the amounts necessary
for Completion of all Properties or (ii) Completion of one or more Properties
shall not occur on or prior to the Construction Period Termination Date (such
occurrences referenced in Sections 2.1(i) and 2.1(ii) may be referred to as the
"Construction Failure"), the Construction Agent shall promptly (and in any event
within ten (10) Business Days of gaining such knowledge or expectation) notify
the Agent in writing of the same.
Notwithstanding any other provision of the Operative Agreements (but
subject to the proviso to this sentence), if at any time prior to the
Construction Period Termination Date, the Lessor or the Agent shall have (x)
determined in its respective reasonable good faith judgment that any
Construction Failure or Extra Budget Cost shall have occurred or is reasonably
likely to occur and shall have given a written notice of such determination to
the Construction Agent or (y) received any notice from the Construction Agent
that any Construction Failure or Extra Budget Cost shall have occurred or is
reasonably likely to occur, then in any such case Lexicon shall have the option
of purchasing all the Properties on a date specified by the Lessor that is not
earlier than fifteen (15) days nor later than sixty (60) days after delivery of
the applicable notice referenced in clauses (x) or (y) directly above (as the
case may be) by paying the Lessor an amount equal to the Termination Value for
all, but not less than all, the Properties plus any and all fees and expenses
incurred by or on behalf of the Lessor, the Agent or the other Financing Parties
in connection with the Properties (including without limitation the transfer
thereof); provided, no breach of any obligation by the Construction Agent or the
Lessee pursuant to Section 5.15 of the Participation Agreement or Section 2.6(l)
of this Agreement shall constitute a Construction Failure or Extra Budget Cost
for purposes of this Section 2.1 or otherwise be subject to the provisions of
this Section 2.1 but instead shall constitute an Event of Default and be subject
to the provisions of Sections 5.2 and 5.3 of this Agreement. If Lexicon does not
exercise its purchase option referenced in the preceding sentence within five
(5) Business Days of the events referenced in subsections (x) or (y) of the
preceding sentence, then Lessor shall have the option, but not in limitation of
any other right of the Lessor pursuant to the Operative Agreements (at the
direction of the Agent) to elect, subject to the last two sentences of this
paragraph, (A), (B), (C) and/or (D) as determined by the Lessor: (A) the Lessor
may replace the Construction Agent with a new construction agent selected by the
Lessor (at the direction of the Agent) to finalize the Completion of the
Properties, (B) the Lessor may instruct the Construction Agent, and the
Construction Agent shall comply with such instructions, to remedy, but not pay
for other than with Advances, each Construction Failure and each Extra Budget
Cost (which may include without limitation modifications to any or all
applicable Properties, changes in contractors and/or subcontractors,
modifications to the Plans and Specifications and/or the Construction Budgets),
(C) only with respect to any Construction Failure or Extra Budget Cost that
could have been avoided by the Construction Agent, the Lessor may instruct
Lexicon to elect, and Lexicon shall comply with such instructions, a
Construction Agent Option and/or (D) the Lessor may instruct the Construction
Agent to cease Work and the Lessor may elect that no additional Work or only
limited Work shall be conducted and all such Work conducted pursuant to this
clause (D) shall be paid for only with Advances (but after the Lessor has
elected the option set forth in this clause (D), all subsequent Advances
regarding the affected Property will be included in the
2
164
definition of Excluded Costs). Notwithstanding the foregoing, the Lessor shall
only elect the option set forth in (D) of the preceding sentence (to the extent
of directing the Construction Agent to cease Work) with regard to any
Construction Failure or Extra Budget Cost that could not have been avoided by
the Construction Agent to the extent such Construction Failure or Extra Budget
Cost prevents Completion of the applicable Property, as such prevention of
Completion shall be determined in the sole discretion of the Majority Secured
Parties. In the instance described in the preceding sentence in which the Lessor
has elected the option set forth in (D) above, (i) with respect to any Property
which has suffered a Construction Failure or Extra Budget Cost, Lexicon will
have no obligation under the Operative Agreements other than pursuant to the
indemnification provisions and such other provisions that by their terms survive
expiration or termination of the Operative Agreements and (ii) Lexicon shall be
irrevocably deemed (upon the election of the Lessor, which election shall be
made only upon direction from the Agent), without any further action, to have
relinquished all right, title and interest in and to all, but not less than all,
the Properties and to have transferred and conveyed all such right, title and
interest to the Lessor.
The "Construction Agent Options" shall refer to the election by Lexicon
within fifteen (15) Business Days of the Lessor's direction to make such
election for Lexicon to (a) pay, or to cause its nominee to pay, to the Lessor,
on a date designated by the Lessor not earlier than fifteen (15) days and not
later than sixty (60) days after the Lessor's receipt of notification of such
election by Lexicon, an aggregate amount equal to (i) the Termination Value for
all, but not less than all, the Properties plus (ii) any and all fees and
expenses incurred by or on behalf of the Lessor, the Agent or the other
Financing Parties in connection with the Properties (including without
limitation the transfer thereof) and on such date the Lessor shall transfer and
convey to Lexicon or to its nominee all right, title and interest of the Lessor
in and to the Properties or (b) pay to the Lessor, on a date designated by the
Lessor not earlier than fifteen (15) days and not later than sixty (60) days
after the Lessor's receipt of notification of such election by Lexicon, an
aggregate amount equal to the Maximum Amount and on and after such date, Lexicon
shall be irrevocably deemed, without any further action, to have relinquished
all right, title and interest in and to all, but not less than all, the
Properties and to have transferred and conveyed all such right, title and
interest to the Lessor.
In connection with any transfer of the Properties as referenced above in
this Section 2.1 by the Lessor to Lexicon, the Lessor shall execute and deliver
to Lexicon, at the cost and expense of Lexicon (subject to the limitations
described in the next sentence), each of the following together with any other
item set forth in Section 19.1 of the Lease: (v) a termination or assignment (as
requested by Lexicon) of each applicable Ground Lease and Deeds conveying each
Property (to the extent it is real property not subject to a Ground Lease) to
Lexicon free and clear of the Lien of the Lease, the Lien of the Credit
Documents and any Lessor Liens; (w) a Xxxx of Sale conveying each Property (to
the extent it is personal property) to Lexicon free and clear of the Lien of the
Lease, the Lien of the Credit Documents and any Lessor Liens; (x) any real
estate tax affidavit or other document required by law to be executed and filed
in order to record the applicable Deed and/or the applicable Ground Lease
termination; (y) Foreign Investment in Real Property Tax Act ("FIRPTA")
affidavits; and (z) closing or settlement statements and other documents as may
be reasonably required by any title company closing such transaction (but,
except for the representation and warranty that such transfer is free and clear
of the Lien of the Lease, the Lien of the Credit Documents and Lessor Liens, the
Lessor shall make no representations or warranties as to title or any other
matter). The Lessor (at the discretion of the Agent) shall elect whether the
out-of-pocket fees and expenses associated with the transfer of the Properties
shall be paid by either (i) sales proceeds from the Properties, (ii) the Lessor
(but only to the extent amounts are available therefor with respect to the
Available Commitments and the Available Holder Commitments or each Lender and
each Holder approves the necessary increases in the Available Commitments and
the Available Holder Commitments to fund such fees and expenses) or (iii)
Lexicon; provided, if Lexicon funds such fees and expenses (as referenced in
subsection (iii)) then the Maximum Amount will be reduced accordingly, as more
specifically described in the definition of "Maximum Amount". Amounts funded by
the Lenders and the Holders with respect to the foregoing shall be added to the
Property Cost. All of the foregoing documentation must be in form and substance
reasonably satisfactory to the Lessor. Subject to the foregoing, all, but not
less than all, the Properties shall be conveyed to the Construction Agent
"AS-IS", "WHERE-IS" and in then present physical condition.
No Construction Failure or Extra Budget Cost will be funded by the Lenders
or the Holders unless the Majority Secured Parties agree to fund such
Construction Failure or Extra Budget Cost at the time of its occurrence;
provided no individual Lender or Holder shall be required to increase its Lender
Commitment or Holder Commitment, as the case may be, unless such Lender or
Holder elects in its sole discretion to do so (in accordance with Section 5.9 of
the Participation Agreement).
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For all purposes of the Operative Agreements, the Construction Agent
agrees that the Construction Agent shall be in absolute control of each Property
and all activities in connection therewith and solely responsible for any and
all acts and/or omissions relating to any Property or activities in connection
therewith, any component of any Property, any event, circumstance or occurrence
at, near or otherwise with respect to any Property or any activity in connection
therewith and any and all Claims resulting from any of the foregoing, including
without limitation those arising under tort, contract, strict liability,
negligence, gross negligence, willful misconduct or any other theory of law or
equity.
2.2 ACCEPTANCE AND UNDERTAKING.
The Construction Agent hereby unconditionally accepts the agency
appointment and undertakes, for the benefit of the Lessor, to identify and
acquire certain Properties (provided, title to the Properties shall be held in
the name of the Lessor, except that the interest of the Lessor in certain
Properties shall be a ground leasehold interest pursuant to one (1) or more
Ground Leases if requested by the Construction Agent) and the development,
acquisition, installation, construction and testing of the Improvements, the
Equipment and the other components of the Properties in accordance with the
Plans and Specifications and the Operative Agreements.
2.3 TERM.
This Agreement shall commence on the date hereof and, unless the Lessor
(in its sole discretion upon the occurrence and during the continuation of any
Event of Default hereunder or upon the occurrence of any of the matters
described in subsections (x) or (y) of the third paragraph of Section 2.1)
elects otherwise, this Agreement shall terminate on the Construction Period
Termination Date; provided, upon the occurrence of any Construction Failure or
any Extra Budget Cost, the Agent (upon instruction from the Majority Secured
Parties) may from time to time unilaterally and independently extend the
Construction Period Termination Date.
2.4 SCOPE OF AUTHORITY.
(a) The Lessor hereby expressly authorizes the Construction
Agent, or any agent or contractor of the Construction Agent, and the
Construction Agent unconditionally agrees for the benefit of the Lessor,
subject to Section 2.4(b), to take all action necessary or desirable for
the performance and satisfaction of any and all of the Lessor's
obligations under any construction agreement and to fulfill all of the
obligations of the Construction Agent including without limitation:
(i) the identification and assistance with the acquisition
of Properties in accordance with the terms and conditions of the
Participation Agreement;
(ii) all design and supervisory functions relating to the
development, acquisition, installation, construction and testing of
the related Improvements, Equipment and other components of the
applicable Property and performing all engineering work related
thereto;
(iii) (A) negotiating, entering into, performing and
enforcing all contracts and arrangements to acquire or ground lease
the Properties and to procure the equipment necessary to construct
the Properties and (B) negotiating, executing, performing and
enforcing all contracts and arrangements to develop, acquire,
install, construct and test the Improvements, the Equipment and
the other components of the Properties on such terms and
conditions as are customary and reasonable in light of local and
national standards and practices and the businesses in which the
Lessee is engaged;
(iv) obtaining all necessary permits, licenses, consents,
approvals, entitlements and other authorizations, including without
limitation all of the foregoing required for the Properties and the
use and occupancy thereof and those required under applicable Law
(including without limitation Environmental Laws), from all
Governmental Authorities in connection with the development,
acquisition, installation, construction and testing of the
Improvements, the
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Equipment and the other components of the Properties in accordance
with the Plans and Specifications;
(v) maintaining all books and records with respect to the
Properties and the construction, operation and management
thereof;
(vi) using proceeds of any property insurance maintained
by, or at the direction of, the Construction Agent to complete
construction of or to rebuild any portion of any Property after the
occurrence of a Casualty with regard to such Property,
(vii) using proceeds of any Condemnation proceeding to
complete construction of or to rebuild any portion of any Property
after a Condemnation with regard to such Property; and
(viii) performing any other acts necessary in connection with
the identification and acquisition or ground leasing of the
Properties and the development, acquisition, installation,
construction and testing of the related Improvements, Equipment and
all other additional components of the Properties in accordance with
the Plans and Specifications.
(b) Neither the Construction Agent nor any of its Affiliates or
agents shall enter into any contract or consent to any contract in the
name of the Lessor without the Lessor's prior written consent, such
consent to be given or withheld in the exercise of the Lessor's reasonable
discretion and not to be unreasonably withheld or delayed; provided,
however, that (i) no such contract will increase the obligations of the
Lessor beyond the obligations of the Lessor as are expressly set forth in
the Operative Agreements and (ii) each such contract shall be expressly
non-recourse to the Lessor on terms and conditions that are reasonably
acceptable to the Lessor.
(c) Subject to the terms and conditions of this Agreement and the
other Operative Agreements, the Construction Agent shall have sole
management and control over the installation, construction and testing
means, methods, sequences and procedures with respect to the Properties.
2.5 DELEGATION OF DUTIES
The Construction Agent may execute any of its duties under this Agreement
by or through agents, contractors, employees or attorneys-in-fact; provided,
however, that no such delegation shall limit or reduce in any way the
Construction Agent's duties and obligations under this Agreement.
2.6 COVENANTS OF THE CONSTRUCTION AGENT.
The Construction Agent hereby covenants and agrees that it will:
(a) following the Construction Commencement Date for each
Property, cause the development, acquisition, installation, construction
and testing of such Property to be prosecuted in a good and workmanlike
manner, and respecting each Property in accordance with the applicable
Plans and Specifications, the Construction Budget, the applicable
contracts relating to the Improvements, the Equipment, other components
of such Property and procurement of construction materials, the
applicable construction contracts, the applicable construction schedule,
prevalent industry practices and otherwise in accordance with Section 3.1
hereof;
(b) not commence construction with respect to any Improvements on
a date that is within six (6) months prior to the Construction Period
Termination Date;
(c) cause the Completion Date for any Improvements to occur on or
before the Construction Period Termination Date, in each case free and
clear (by removal or bonding) of Liens or claims for materials supplied or
labor or services performed in connection with the development,
acquisition, installation, construction or testing thereof; provided, if
the Construction Agent does not timely complete
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its construction obligations referenced in this subsection (c), then the
provisions of the third paragraph of Section 2.1 shall apply;
(d) cause all outstanding punch list items with respect to such
Improvements to be completed by the Final Completion Date; provided, if
the Construction Agent does not timely complete its construction
obligations referenced in this subsection (d), then the provisions of the
third paragraph of Section 2.1 shall apply;
(e) at all times subsequent to the initial Advance respecting a
Property (i) cause good and indefeasible title to the applicable Property
to vest in the Owner Trustee (except that the interest of the Lessor in
certain Properties shall be a ground leasehold interest pursuant to one
(1) or more Ground Leases if requested by the Construction Agent) (ii)
cause a valid, perfected, first priority Lien on the applicable Property
to be in place in favor of the Agent (for the benefit of the Lenders and
the Holders), (iii) file all necessary documents under the applicable real
property law and Article 9 of the Uniform Commercial Code to perfect such
title and Liens and (iv) not permit Liens (other than Permitted Liens and
Lessor Liens) to be filed or maintained respecting the applicable
Property;
(f) no less than five (5) Business Days prior to the scheduled
date for the initial Construction Advance to be made in connection with
any Property, the Construction Agent shall deliver to the Agent (for the
benefit of the Lessor) true, complete and correct copies of the
Construction Budget therefor. Thereafter, the Construction Agent, on a
monthly basis, shall deliver to the Lessor true, correct and complete
copies of any material modifications of the Construction Budget and
progress reports regarding the development, acquisition, installation,
construction and testing of the Properties;
(g) procure insurance for the Properties during the
Construction Period in accordance with the provisions of Article XIV of
the Lease and as the Lessor shall otherwise reasonably request from time
to time for such risks which the Lessor determines are not otherwise
sufficiently covered by the Construction Agent and perform (in its
capacity as Lessee) its obligations pursuant to Article XV of the Lease;
(h) include in each Construction Budget and maintain Available
Commitments and Available Holder Commitments in amounts equal to all
deductible amounts regarding insurance policies related to the Properties
in place from time to time pursuant to the Operative Agreements and also
for the amount of all insurable losses regarding the Properties that are
not insured;
(i) take all commercially reasonable measures necessary to prevent
the occurrence of any and all acts, omissions or circumstances giving rise
to Claims against any Financing Party respecting any Property;
(j) take all commercially reasonable and lawful measures to
prevent any Condemnation by any Governmental Authority regarding any
Property prior to the Completion of such Property;
(k) ensure that each Construction Contract with respect to any
Property is a guaranteed maximum price contract with a contractor (i)
presenting a payment and performance bond in an amount equal to the
Construction Budget for such Property and (ii) otherwise reasonably
acceptable to the Agent, the Lenders and the Holders in their sole
discretion; and
(l) without regard to the occurrence of any Force Majeure Event
or any other matter (except if the Lessor is excused from all obligations
and liabilities pursuant to the Purchase Agreements for the duration of
such Force Majeure Events or such other matters), (i) commence
Construction of Properties (in a manner which is sufficient to "Commence
Construction" (as such term is defined in the Smaller Tract Purchase
Agreement) of properties subject to the Smaller Tract Purchase Agreement)
within three (3) months from the Initial Closing Date and (ii) cause to
be satisfied all obligations of the Lessor pursuant to Section 2.01 of
the Larger Tract Purchase Agreement and Section 2.04 of the Smaller Tract
Purchase Agreement.
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ARTICLE III
THE PROPERTIES
3.1 CONSTRUCTION.
The Construction Agent shall cause the Improvements, the Equipment and all
other components of the Properties to be developed, acquired, installed,
constructed and tested in compliance with all Legal Requirements, all Insurance
Requirements, all manufacturer's specifications and standards and the standards
maintained by the Construction Agent for similar properties owned or operated by
the Construction Agent, unless non-compliance, individually or in the aggregate,
shall not have and could not be reasonably expected to have a Material Adverse
Effect.
3.2 AMENDMENTS; MODIFICATIONS.
(a) Subject to Section 3.2(c), the Construction Agent may at
any time revise, amend or modify (i) the Plans and Specifications without
the consent of the Lessor; provided, that any such amendment to the Plans
and Specifications does not (x) result in the Completion Date of the
Improvements occurring on or after the Construction Period Termination
Date or (y) result in the cost of all Improvements exceeding the amount
specified in the Construction Budget, as amended from time to time, or an
amount equal to the sum of the then Available Commitments plus the then
Available Holder Commitments (reduced by the amount, if any, necessary to
pay for the cost of construction and development of Improvements on other
Properties which are currently under construction but have not yet been
completed (such amount the "Unfunded Amount")), and (ii) the Construction
Budget and enter into any related amendments, modifications or
supplements without the consent of the Lessor (including without
limitation adjusting or amending line items or amounts allocated to a
particular item or reserve in the Construction Budget based upon savings
actually incurred or which are reasonably expected to occur with respect
to such item or reserve or excess amounts originally allocated in the
Construction Budget for a particular item in the Construction Budget);
provided, that such revisions, amendments or modifications to the Plans
and Specifications or related amendments, modifications or supplements to
the Construction Budget do not result in (A) any increase in total
Property Costs greater than the amount specified in the Construction
Budget, as amended from time to time, or the then Available Commitments
and Available Holder Commitment (reduced by the Unfunded Amount) or (B) a
breach of, or default under, the guaranteed maximum price Construction
Contract with respect to such Property.
(b) The Construction Agent agrees that it will not implement
any revision, amendment or modification to the Plans and Specifications
for any Property if the aggregate effect of such revision, amendment or
modification, when taken together with any previous or contemporaneous
revision, amendment or modification to the Plans and Specifications for
any Property, would cause a material reduction in value in excess of the
cost reduction of such revision, amendment or modification of the
Property when completed, unless such revision, amendment or modification
is required by Legal Requirements.
(c) Subject to the rights of Lexicon to purchase all of the
Properties for the Termination Value in accordance with the mechanics for
such a purchase by Lexicon under paragraph three and subsection (a) of
paragraph four of Section 2.1, upon the occurrence of any Construction
Failure or Extra Budget Cost, the Lessor may (i) modify the Plans and
Specifications and the Construction Budget for any Property in the sole
discretion of the Lessor, (ii) inform the Construction Agent that the
Construction Agent no longer has the right to modify any Plans and
Specifications or any Construction Budget without the prior written
consent of the Lessor, (iii) change the location of any Property and (iv)
change the scope and/or intended purpose of any Property.
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3.3 ABANDONMENT OR PERMANENT DISCONTINUANCE.
Until termination of the Lease Agreement and the Agency Agreement, the
Construction Agent shall promptly and diligently complete the development,
acquisition, refinancing, installation, construction and testing of such
Construction Period Property in accordance with the Plans and Specifications and
with the terms hereof and cause the Completion Date with respect to such
Construction Period Property to occur on or prior to the Construction Period
Termination Date; provided, if the Construction Agent does not timely complete
its obligations referenced in this paragraph, then the provisions of the third
paragraph of Section 2.1 shall apply.
If the Construction Agent shall abandon or permanently discontinue the
construction and development of one or more Construction Period Properties
(which abandonment or permanent discontinuance shall be deemed to have occurred
if no work at any such Construction Period Property site is undertaken or
completed during a period of thirty (30) days or more for reasons other than a
Force Majeure Event), then the Construction Agent shall pay to the Lessor, on a
date designated by the Lessor, an aggregate amount equal to the liquidated
damages amount referenced in Section 5.3(b) of this Agreement regarding all, but
not less than all, Properties. On such date, Lessor shall deliver the Properties
to the Construction Agent in accordance with Sections 2.1(v) through (z).
ARTICLE IV
PAYMENT OF FUNDS
4.1 RIGHT TO RECEIVE CONSTRUCTION COST.
(a) In connection with the development, acquisition,
installation, construction and testing of any Property and during the
course of the construction of the Improvements on any Property, the
Construction Agent may request that the Lessor advance funds for the
payment of Property Acquisition Costs or other Property Costs, and the
Lessor will comply with such request to the extent provided for under the
Participation Agreement. The Construction Agent and the Lessor
acknowledge and agree that the Construction Agent's right to request such
funds and the Lessor's obligation to advance such funds for the payment
of Property Acquisition Costs or other Property Costs is subject in all
respects to the terms and conditions of the Participation Agreement and
each of the other Operative Agreements. Without limiting the generality
of the foregoing it is specifically understood and agreed that in no
event shall the aggregate amounts advanced by the Lenders and the Holders
for Property Acquisition Costs or other Property Costs and any other
amounts due and owing hereunder or under any of the other Operative
Agreements exceed the sum of the aggregate Commitment of the Lenders plus
the aggregate amount of the Holder Commitments, including without
limitation such amounts owing for (i) development, acquisition,
installation, construction and testing of the Properties, (ii) additional
amounts which accrue or become due and owing under the Credit Agreement
or Trust Agreement as obligations of the Lessor prior to any Completion
Date or (iii) any other purpose.
(b) The proceeds of any funds made available to the Lessor to
pay Property Acquisition Costs or other Property Costs shall be made
available to the Construction Agent in accordance with the Requisition
relating thereto and the terms of the Participation Agreement. The
Construction Agent will use such proceeds only to pay the Property
Acquisition Costs or other Property Costs set forth in the Requisition
relating to such funds.
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ARTICLE V
EVENTS OF DEFAULT
5.1 EVENTS OF DEFAULT.
If any one (1) or more of the following events (each an "Event of
Default") shall occur:
(a) the Construction Agent fails to apply any funds paid by the
Lessor to the Construction Agent in a manner consistent with the
requirements of the Operative Agreements and as specified in the
applicable Requisition for the development, acquisition, installation,
construction and testing of the Properties and related Improvements and
Equipment or otherwise respecting the Properties to the payment of
Property Acquisition Costs or other Property Costs;
(b) the Construction Agent shall fail to make any payment
required pursuant to the terms of this Agreement (including without
limitation pursuant to Sections 2.1 and 3.3) within five (5) days after
the same has become due and payable;
(c) any Lease Event of Default shall have occurred and not be
cured within any cure period expressly permitted under the terms of the
Lease; and
(d) the Construction Agent shall materially breach any of its
representations or warranties under any Operative Agreement or shall fail
to observe or perform any term, covenant or condition of any Operative
Agreement other than as set forth in paragraphs (a), (b) or (c) of this
Section 5.1 and such failure to observe or perform any such term, covenant
or condition shall continue for more than fifteen (15) days after the
Construction Agent either has gained knowledge thereof or has received
notice thereof;
then, in any such event, the Lessor may, in addition to the other rights and
remedies provided for in this Agreement, terminate this Agreement by giving the
Construction Agent written notice of such termination and upon the expiration of
the time fixed in such notice and the payment of all amounts owing by the
Construction Agent hereunder (including without limitation any amounts specified
under Section 5.3 hereof), this Agreement shall terminate. The Construction
Agent shall pay all costs and expenses incurred by or on behalf of the Lessor,
including without limitation fees and expenses of counsel, as a result of any
Event of Default hereunder.
5.2 DAMAGES.
The termination of this Agreement pursuant to Section 5.1 shall in no
event relieve the Construction Agent of its liability and obligations hereunder,
all of which shall survive any such termination.
5.3 REMEDIES; REMEDIES CUMULATIVE.
(a) If an Event of Default hereunder shall have occurred and be
continuing, then, subject to the provisions of Section 5.3(c), the Lessor
shall have all rights available to the Lessor under the Lease and the
other Operative Agreements and all other rights otherwise available at
law, equity or otherwise.
(b) Upon the occurrence of an Event of Default hereunder, the
Lessor shall have (in addition to its rights otherwise described in this
Agreement or existing at law, equity or otherwise) the option (and shall
be deemed automatically, and without any further action, to have
exercised such option upon the occurrence of any Lease Event of Default
arising under Sections 17.1(g), (h), (i) or (j) of the Lease) to transfer
and convey to the Construction Agent or its nominee upon a date
designated by the Lessor all right, title and interest of the Lessor in
and to any Property or Properties (including without limitation any Land
and/or any Improvements, any interest in any Improvements, any Equipment
and any Property then under construction) for which the Rent Commencement
Date has not yet occurred (a "Construction Period Property"). On any
transfer and conveyance date specified by the Lessor pursuant to this
Section 5.3(b), (i) the Lessor shall transfer and convey (at the cost of
the Construction Agent) all right, title and interest of the Lessor in
and to any or all such Construction Period Properties free and clear of
the Lien of the Lease and
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all Lessor Liens, (ii) the Construction Agent hereby covenants and agrees
that it will accept such transfer and conveyance of right, title and
interest in and to the respective Construction Period Property or
Construction Period Properties and (iii) the Construction Agent hereby
promises to pay to the Lessor, as liquidated damages (it being agreed
that it would be impossible accurately to determine actual damages), an
aggregate amount equal to the Termination Value of any or all such
Construction Period Properties. The Construction Agent specifically
acknowledges and agrees that its obligations under this Section 5.3(b),
including without limitation its obligations to accept the transfer and
conveyance of Construction Period Properties and its payment obligations
described in subparagraph (iii) of this Section 5.3(b), shall be absolute
and unconditional under any and all circumstances and shall be performed
and/or paid, as the case may be, without notice or demand and without any
abatement, reduction, diminution, setoff, defense, counterclaim or
recoupment whatsoever. Notwithstanding the foregoing provisions of this
Section 5.3(b), the Lessor shall have the right in its sole discretion to
rescind any exercise of its option under this Section 5.3(b) upon the
giving of its written confirmation of such rescission to the Construction
Agent on or prior to the earlier to occur of (a) the actual date of
transfer and (b) the date one hundred and twenty (120) days after the
date the Lessor has given notice of its intent to transfer and convey any
Property to the Construction Agent as referenced above in this Section
5.3(b).
(c) Prior to the date the Lessor has entered into any binding
commitment or agreement with another party regarding any given Property
pursuant to the exercise of remedies by the Lessor, the Construction Agent
shall have the right to cure an Event of Default hereunder with respect to
such Property by purchasing all Properties from the Lessor or by causing
its nominee to purchase all Properties for an amount equal to the
liquidated damages amount set forth in Section 5.3(b) of this Agreement
calculated with respect to all Properties.
(d) No failure to exercise and no delay in exercising, on the
part of the Lessor, any right, remedy, power or privilege under this
Agreement or under the other Operative Agreements shall operate as a
waiver thereof; nor shall any single or partial exercise of any right
remedy, power or privilege under this Agreement preclude any other or
further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges provided
in this Agreement are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
ARTICLE VI
THE LESSOR'S RIGHTS
6.1 EXERCISE OF THE LESSOR'S RIGHTS.
Subject to the Excepted Payments, the Construction Agent and the Lessor
hereby acknowledge and agree that, subject to and in accordance with the terms
of the Security Agreement made by the Lessor in favor of the Agent, the rights
and powers of the Lessor under this Agreement have been assigned to the Agent.
6.2 THE LESSOR'S RIGHT TO CURE THE CONSTRUCTION AGENT'S DEFAULTS.
The Lessor, without waiving or releasing any obligation or Event of
Default, may (but shall be under no obligation to) remedy any Event of Default
for the account of and at the sole cost and expense of the Construction Agent.
All out-of-pocket costs and expenses so incurred (including without limitation
fees and expenses of counsel), together with interest thereon at the Overdue
Rate from the date on which such sums or expenses are paid by the Lessor, shall
be paid by the Construction Agent to the Lessor on demand.
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ARTICLE VII
MISCELLANEOUS
7.1 NOTICES.
All notices required or permitted to be given under this Agreement shall
be in writing and delivered as provided in Section 12.2 of the Participation
Agreement.
7.2 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
Lessor, the Construction Agent and their respective successors and the assigns
of the Lessor. The Construction Agent may not assign this Agreement or any of
its rights or obligations hereunder or with respect to any Property in whole or
in part to any Person without the prior written consent of the Agent, the
Lenders, the Holders and the Lessor.
7.3 GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NORTH CAROLINA (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
7.4 SUBMISSION TO JURISDICTION; VENUE; WAIVERS.
The provisions of the Participation Agreement relating to submission to
jurisdiction, venue are hereby incorporated by reference herein, mutatis
mutandis.
7.5 AMENDMENTS AND WAIVERS.
This Agreement may not be terminated, amended, supplemented, waived or
modified except in accordance with the provisions of Section 12.4 of the
Participation Agreement.
7.6 COUNTERPARTS.
This Agreement may be executed in any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument.
7.7 SEVERABILITY.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
7.8 HEADINGS AND TABLE OF CONTENTS.
The headings and table of contents contained in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
7.9 WAIVER OF JURY TRIAL.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE LESSOR AND THE
CONSTRUCTION AGENT IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
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LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND ANY COUNTERCLAIM
THEREUNDER.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
LEXICON GENETICS INCORPORATED, as the
Construction Agent
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: EVP & Chief Financial Officer
------------------------------------
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Owner Trustee under the Lexi Trust
2000-1, as the Lessor
By: /s/ C. Xxxxx Xxxxxxx
------------------------------------
Name: C. Xxxxx Xxxxxxx
------------------------------------
Title: Vice President
------------------------------------
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CREDIT AGREEMENT
Dated as of October 19, 2000
among
First Security Bank, National Association,
as Owner Trustee under the Lexi Trust 2000-1,
as the Borrower,
The Several Lenders
from Time to Time Parties Hereto,
and
BANK OF AMERICA, N.A.,
as the Agent
--------------------------------------------------------------------------------
176
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS......................................................................1
1.1 Definitions.....................................................................1
1.2 Interpretation..................................................................1
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS..................................................1
2.1 Commitments.....................................................................1
2.2 Notes...........................................................................2
2.3 Procedure for Borrowing.........................................................2
2.4 Lender Unused Fees..............................................................2
2.5 Termination of Commitments......................................................2
2.6 Prepayments and Payments........................................................3
2.7 Conversion and Continuation Options.............................................4
2.8 Interest Rates and Payment Dates................................................4
2.9 Computation of Interest.........................................................5
2.10 Pro Rata Treatment and Payments.................................................5
2.11 Notice of Amounts Payable; Mandatory Assignment.................................6
SECTION 3. REPRESENTATIONS AND WARRANTIES...................................................6
SECTION 4. CONDITIONS PRECEDENT.............................................................6
4.1 Conditions to Effectiveness.....................................................6
4.2 Conditions to Each Loan.........................................................7
SECTION 5. COVENANTS........................................................................7
5.1 Other Activities................................................................7
5.2 Ownership of Properties, Indebtedness...........................................7
5.3 Disposition of Assets...........................................................7
5.4 Compliance with Operative Agreements............................................7
5.5 Further Assurances..............................................................7
5.6 Notices.........................................................................8
5.7 Discharge of Liens..............................................................8
5.8 Trust Agreement.................................................................8
SECTION 6. EVENTS OF DEFAULT................................................................8
SECTION 7. THE AGENT.......................................................................10
7.1 Appointment....................................................................10
7.2 Delegation of Duties...........................................................10
7.3 Exculpatory Provisions.........................................................10
7.4 Reliance by the Agent..........................................................10
7.5 Notice of Default..............................................................11
7.6 Non-Reliance on the Agent and Other Lenders....................................11
7.7 Indemnification................................................................11
7.8 The Agent in Its Individual Capacity...........................................12
7.9 Successor Agent................................................................12
7.10 Actions of the Agent on Behalf of Holders......................................12
7.11 The Agent's Duty of Care.......................................................12
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL......................................13
8.1 Collection and Allocation of Payments and Other Amounts........................13
8.2 Certain Remedial Matters.......................................................13
8.3 Excepted Payments..............................................................13
SECTION 9. MISCELLANEOUS...................................................................13
9.1 Amendments and Waivers.........................................................13
9.2 Notices........................................................................13
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9.3 No Waiver; Cumulative Remedies.................................................13
9.5 Payment of Expenses and Taxes..................................................14
9.6 Successors and Assigns.........................................................14
9.7 Participations.................................................................14
9.8 Assignments....................................................................14
9.9 The Register; Disclosure; Pledges to Federal Reserve Banks.....................15
9.10 Adjustments; Set-off...........................................................15
9.11 Counterparts...................................................................16
9.12 Severability...................................................................16
9.13 Integration....................................................................16
9.14 GOVERNING LAW..................................................................16
9.15 SUBMISSION TO JURISDICTION; VENUE..............................................16
9.16 Acknowledgements...............................................................17
9.17 WAIVERS OF JURY TRIAL..........................................................17
9.18 Nonrecourse....................................................................17
9.19 USURY SAVINGS PROVISION........................................................17
SCHEDULES
Schedule 2.1 Commitments and Addresses of Lenders
EXHIBITS
Exhibit A-1 Form of Tranche A Note
Exhibit A-2 Form of Tranche B Note
Exhibit B Form of Assignment and Acceptance
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of October 19, 2000 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
the "Agreement") is among FIRST SECURITY BANK, NATIONAL ASSOCIATION, as Owner
Trustee under the Lexi Trust 2000-1 (the "Owner Trustee" or the "Borrower"), the
several banks and other financial institutions from time to time parties to this
Agreement (the "Lenders") and BANK OF AMERICA, N.A., a national banking
association, as a Lender and as the agent for the Lenders (the "Agent").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINITIONS.
For purposes of this Agreement, capitalized terms used in this Agreement
and not otherwise defined herein shall have the meanings assigned to them in
Appendix A to that certain Participation Agreement dated as of October 19, 2000
(as amended, modified, extended, supplemented, restated and/or replaced from
time to time in accordance with the applicable provisions thereof, the
"Participation Agreement") among Lexicon Genetics Incorporated, as Lessee and
Construction Agent, the Borrower, the various banks and other lending
institutions which are parties thereto from time to time, as the Holders, the
various banks and other lending institutions which are parties thereto from time
to time, as the Lenders, and Bank of America, N.A., as agent for the Lenders and
respecting the Security Documents, as the agent for the Secured Parties. Unless
otherwise indicated, references in this Agreement to articles, sections,
paragraphs, clauses, appendices, schedules and exhibits are to the same
contained in this Agreement.
1.2 INTERPRETATION.
The rules of usage set forth in Appendix A to the Participation
Agreement shall apply to this Agreement.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 COMMITMENTS.
(a) Subject to the terms and conditions hereof, each of the Lenders
severally agrees to make the portion of the Tranche A Loans and the Tranche B
Loans to the Borrower from time to time during the Commitment Period in an
amount up to such Lender's Commitment as is set forth adjacent to such Lender's
name in Schedule 2.1 hereto for the purpose of enabling the Borrower to purchase
the Properties and to pay Property Acquisition Costs, Property Costs and
Transaction Expenses, provided, that the aggregate principal amount at any one
time outstanding with respect to each of the Tranche A Loans and the Tranche B
Loans shall not exceed the amount of the Tranche A Commitments and the Tranche B
Commitments respectively. Any prepayments of the Loans, whether mandatory or at
the Borrower's election, shall not be subject to reborrowing except as set forth
in Section 5.2(d) of the Participation Agreement.
(b) The Loans may from time to time be (i) Eurodollar Loans, (ii) ABR
Loans, or (iii) a combination thereof, as determined by the Borrower and
notified to the Agent in accordance with Sections 2.3 and 2.7. In the event the
Borrower fails to provide notice pursuant to Section 2.3, the Loan shall be an
ABR Loan. Further, any Loans by the Lenders on a given date in an aggregate
amount less than $100,000 shall be ABR Loans, unless the remaining Available
Commitment for the Lenders in the aggregate is less than $100,000, in which
case, the Borrower may elect a Eurodollar Loan for such remaining amount.
(c) The Commitment of each Lender to make Tranche A Loans and Tranche B
Loans shall be pro rata in accordance with its respective Lender Commitment.
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2.2 NOTES.
The Loans made by each Lender shall be evidenced by promissory notes of
the Borrower, substantially in the form of Exhibit A-1 in the case of the
Tranche A Loans (each, a "Tranche A Note") or Exhibit A-2 in the case of the
Tranche B Loans (each, a "Tranche B Note," and with the Tranche A Notes, the
"Notes"), with appropriate insertions as to payee, payable to the order of such
Lender and in a principal amount up to the Tranche A Commitment or Tranche B
Commitment, as the case may be, of such Lender. Each Lender is hereby authorized
to record the date, Type and amount of each Loan made by such Lender, each
continuation thereof, each conversion of all or a portion thereof to another
Type, and the date and amount of each payment or prepayment of principal thereof
on the schedule annexed to and constituting a part of its Note, and any such
recordation shall constitute prima facie evidence of the accuracy of the
information so recorded, provided, that the failure to make any such recordation
or any error in such recordation shall not affect the Borrower's obligations
hereunder or under such Note. Each Note shall (i) be dated the Initial Closing
Date, (ii) be stated to mature on the Maturity Date and (iii) provide for the
payment of principal in accordance with Section 2.6(d) and the payment of
interest in accordance with Section 2.8.
2.3 PROCEDURE FOR BORROWING.
(a) The Borrower may borrow under the Commitments during the Commitment
Period on any Business Day that an Advance may be requested pursuant to the
terms of Section 5.2 of the Participation Agreement, provided, that the Borrower
shall give the Agent irrevocable notice (which must be received by the Agent
prior to 12:00 Noon, Austin, Texas time at least three (3) Business Days prior
to the requested Borrowing Date specifying (i) the amount to be borrowed (which
on any date shall not be in excess of the then Available Commitments), (ii) the
requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof, (iv) if the borrowing is to be a
combination of Eurodollar Loans and ABR Loans, the respective amounts of each
Type of Loan and (v) the Interest Period applicable to each Eurodollar Loan.
Pursuant to the terms of the Participation Agreement, the Borrower shall be
deemed to have delivered such notice upon the delivery of a notice by the
Construction Agent or the Lessee containing such required information. Upon
receipt of any such notice from the Borrower, the Agent shall promptly notify
each Lender thereof. Each Lender will make the amount of its pro rata share of
each borrowing available to the Agent for the account of the Borrower at the
office of the Agent specified in Section 9.2 prior to 12:00 Noon, Austin, Texas
time, on the Borrowing Date requested by the Borrower in funds immediately
available to the Agent. Such borrowing will then be made available to the
Borrower by the Agent crediting an account designated, subject to Section 9.1 of
the Participation Agreement, by the Borrower on the books of such office with
the aggregate of the amounts made available to the Agent by the Lenders and in
like funds as received by the Agent or in reliance on Section 2.10(b) hereof. No
amount of any Loan which is repaid or prepaid by the Borrower may be reborrowed
hereunder, except as set forth in Section 5.2(d) of the Participation Agreement.
(b) Interest accruing on each Loan during the Construction Period with
respect to any Property shall, subject to the limitations set forth in Section
5.1(b) of the Participation Agreement be added to the principal amount of such
Loan on the relevant Scheduled Interest Payment Date. On each such Scheduled
Interest Payment Date, the Loan Property Cost and Construction Loan Property
Cost shall be increased by the amount of interest added to the Loans.
2.4 LENDER UNUSED FEES.
Promptly after receipt from the Lessee of the payment of the Lender
Unused Fee payable pursuant to Section 7.4 of the Participation Agreement, the
Agent shall distribute such payments to the Lenders pro rata in accordance with
their respective Commitments.
2.5 TERMINATION OF COMMITMENTS.
(a) The Borrower shall have the right, upon not less than three (3)
Business Days' written notice to the Agent, to terminate the Commitments.
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(b) The Commitments respecting any particular Property shall
automatically be reduced to zero (0) upon the occurrence of the Rent
Commencement Date respecting such Property. On any date on which the Commitments
shall automatically be reduced to zero (0) pursuant to Section 6, the Borrower
shall prepay all outstanding Loans, together with accrued unpaid interest
thereon and all other amounts owing under the Operative Agreements.
2.6 PREPAYMENTS AND PAYMENTS.
(a) The Borrower may at any time and from time to time prepay the Loans,
in whole or in part, without premium or penalty (but with payment of all amounts
then due and owing pursuant to the Operative Agreements including without
limitation pursuant to Sections 11.2(e), 11.3 and 11.4 of the Participation
Agreement) and without setoff, deduction or counterclaim, upon at least three
(3) Business Days' irrevocable notice to the Agent, specifying the date and
amount of prepayment and whether the prepayment is of Eurodollar Loans, ABR
Loans or a combination thereof, and, if a combination thereof, the amount
allocable to each. Upon receipt of any such notice the Agent shall promptly
notify each Lender thereof. If any such notice is given, the amount specified in
such notice shall be due and payable on the date specified therein. Amounts
prepaid may not be reborrowed, and shall reduce the Commitments and the
Available Commitments, except in each case as set forth in Section 5.2(d) of the
Participation Agreement.
(b) If on any date the Agent or the Lessor shall receive any payment in
respect of (i) any Casualty, Condemnation or Environmental Violation pursuant to
Sections 15.1(a) or 15.1(g) or Article XVI of the Lease (excluding any payments
in respect thereof which are payable to the Lessee in accordance with the
Lease), or (ii) the Termination Value of any Property in connection with the
delivery of a Termination Notice pursuant to Article XVI of the Lease, or (iii)
the Termination Value of any Property in connection with the exercise of the
Purchase Option under Article XX of the Lease or the exercise of the option of
the Lessor to transfer the Properties to the Lessee pursuant to Section 20.3 of
the Lease, or (iv) any payment required to be made or elected to be made by the
Construction Agent to the Lessor pursuant to the terms of the Agency Agreement,
then in each case, the Borrower shall pay such amounts to the Agent and the
Agent shall be required to apply and pay such amounts in accordance with the
provisions of Section 8.7(b)(ii) of the Participation Agreement.
(c) Each prepayment of the Loans pursuant to Section 2.6(a) shall be
allocated to reduce the respective Loan Property Costs of all Properties pro
rata according to the Loan Property Costs of such Properties immediately before
giving effect to such prepayment. Each prepayment of the Loans pursuant to
Section 2.6(b) shall be allocated to reduce the Loan Property Cost of the
Property or Properties subject to the respective Casualty, Condemnation,
Environmental Violation, termination, purchase, transfer or other circumstance
giving rise to such prepayment. Any amounts applied to reduce the Loan Property
Cost of any Construction Period Property pursuant to this paragraph (c) shall
also be applied to reduce the Construction Loan Property Cost of such Property
until such Construction Loan Property Cost has been reduced to zero (0).
On the Rent Commencement Date, the Borrower shall repay the outstanding
principal balance of the Loans in part in an amount equal to (i) in the case of
the Tranche A Loans, the Extra Budget Costs paid for with Tranche A Loans and
(ii) in the case of Tranche B Loans, the Extra Budget Costs paid for with
Tranche B Loans. On the Payment Date immediately following the Final Completion
Date, the Borrower shall repay the outstanding principal balance of the Loans in
an amount equal to (A) in the case of Tranche A Loans, the product of the Final
Completion Escrow Balance multiplied by eighty-six and thirty-one one hundredths
percent (86.31%) and (B) in the case of Tranche B Loans, the product of the
Final Completion Escrow Balance multiplied by nine and nineteen one-hundredths
percent (9.19%).
(d) The outstanding principal balance of the Loans and all other amounts
then due and owing under this Agreement or otherwise with respect to the Loans
shall be due and payable in full on the Basic Term Expiration Date; provided,
however, in the event the Lease is extended for a Renewal Term pursuant to the
terms of Section 2.2 of the Lease, the Lenders and the Holders may elect to
extend the maturity date of the Loans and Holder Amount, as applicable, to the
last day of such Renewal Term (it being acknowledged and agreed that no such
extension shall be granted unless consented to by each of the Lenders as to its
extension pursuant to the terms of this Section 2.6(d) and by each of the
Holders as to its extension pursuant to the terms of Section 3.3 of the Trust
Agreement). The date that the Loans are due and payable in full pursuant to the
terms of the preceding sentence may be referred to herein
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and in the other Operative Agreements from time to time as the "Maturity Date".
As a condition to any such extension, the Lenders, in their sole and absolute
discretion, may require such modifications and amendments to this Credit
Agreement as the Lenders determine to be appropriate or necessary in connection
with such extension, including without limitation increasing the spread over the
Eurodollar Rate and ABR applicable to outstanding Loans and/or requiring the
Borrower to amortize all or any part of the outstanding Loans over such Renewal
Term and/or requiring the Lessee to provide collateral for any or all of the
Lessee's obligations under the Operative Agreements during such Renewal Term.
The Borrower agrees to execute any amendments to this Credit Agreement as may be
requested by the Lenders to reflect any such modification of terms of this
Credit Agreement.
2.7 CONVERSION AND CONTINUATION OPTIONS.
(a) The Borrower may elect from time to time to convert Eurodollar Loans
to ABR Loans by giving the Agent at least three (3) Business Days' prior
irrevocable notice of such election, provided, that any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto, and provided, further, to the extent an Event of Default has
occurred and is continuing on the last day of any such Interest Period, the
applicable Eurodollar Loan shall automatically be converted to an ABR Loan. The
Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans by
giving the Agent at least three (3) Business Days' prior irrevocable notice of
such election. Upon receipt of any such notice, the Agent shall promptly notify
each Lender thereof. All or any part of outstanding Eurodollar Loans or ABR
Loans may be converted as provided herein, provided, that (i) no ABR Loan may be
converted into a Eurodollar Loan after the date that is one (1) month prior to
the Maturity Date and (ii) such notice of conversion regarding any Eurodollar
Loan shall contain an election by the Borrower of an Interest Period for such
Eurodollar Loan to be created by such conversion and such Interest Period shall
be in accordance with the terms of the definition of the term "Interest Period"
including without limitation subparagraphs (A) through (D) thereof.
(b) Subject to the restrictions set forth in Section 2.3 hereof, any
Eurodollar Loan may be continued as such upon the expiration of the current
Interest Period with respect thereto by the Borrower giving irrevocable notice
to the Agent, in accordance with the applicable notice provision for the
conversion of ABR Loans to Eurodollar Loans set forth herein, of the length of
the next Interest Period to be applicable to such Loans, provided, that no
Eurodollar Loan may be continued as such after the date that is one (1) month
prior to the Maturity Date, provided, further, no Eurodollar Loans may be
continued as such if an Event of Default has occurred and is continuing as of
the last day of the Interest Period for such Eurodollar Loan, and provided,
further, that if the Borrower shall fail to give any required notice as
described above or otherwise herein, or if such continuation is not permitted
pursuant to the proceeding proviso, such Loan shall automatically be converted
to an ABR Loan on the last day of such then expiring Interest Period.
(c) Each such conversion and continuation of a Loan shall be made
pursuant to submission of an interest rate/holder yield selection notice in the
form of Exhibit K to the Participation Agreement.
2.8 INTEREST RATES AND PAYMENT DATES.
(a) The Loans outstanding hereunder from time to time shall bear
interest at a rate per annum equal to either (i) with respect to a Eurodollar
Loan, the Eurodollar Rate determined for the applicable Interest Period plus the
Applicable Percentage or (ii) with respect to an ABR Loan, the ABR, as selected
by the Borrower in accordance with the provisions hereof; provided, however, (A)
upon delivery by the Agent of the notice described in Section 2.9(c), the Loans
of each of the Lenders shall bear interest at the ABR applicable from time to
time from and after the dates and during the periods specified in Section
2.9(c), (B) upon the delivery by a Lender of the notice described in Section
11.3(e) of the Participation Agreement, the Loans of such Lender shall bear
interest at the ABR applicable from time to time from and after the dates and
during the periods specified in Section 11.3(e) of the Participation Agreement
and (C) in such other circumstances as expressly provided herein, the Loans
shall bear interest at the ABR.
(b) If (i) all or a portion of (A) the principal amount of any Loan, (B)
any interest payable thereon or (C) any other amount payable hereunder shall not
be paid when due (whether at the stated maturity, by acceleration or otherwise)
or (ii) (A) a replacement Construction Agent is hired in accordance with the
provisions of the Agency Agreement, (B) Completion of all Properties has not
occurred on or prior to the Construction Period Termination
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Date or (C) the cost of any Property exceeds the original Construction Budget
therefor (or the applicable Construction Budget modified in accordance with the
Operative Agreements), in each case as previously delivered to the Agent, such
overdue amount (in the case of Section 2.8(b)(i)) or all Loans, including
without limitation principal and interest, and all other amounts payable
hereunder (in the case of Section 2.8(b)(ii)) shall bear interest at a rate per
annum which is the lesser of (x) the ABR plus two percent (2%) and (y) the
highest interest rate permitted by applicable law, in each case from the date of
such non-payment until such payment is paid in full (whether after or before
judgment) (in the case of Section 2.8(b)(i)) or Completion of all Properties (in
the case of Section 2.8(b)(ii)). All such amounts referenced in this Section
2.8(b) shall be paid upon demand.
(c) Interest shall be payable in arrears on the applicable Scheduled
Interest Payment Date, provided, that (i) interest accruing pursuant to
paragraph (b) of this Section 2.8 shall be payable from time to time on demand
and (ii) each prepayment of the Loans shall be accompanied by accrued interest
to the date of such prepayment on the amount prepaid.
2.9 COMPUTATION OF INTEREST.
(a) Whenever it is calculated on the basis of the Prime Lending Rate,
interest shall be calculated on the basis of a year of three hundred sixty-five
(365) days (or three hundred sixty-six (366) days, as the case may be) for the
actual days elapsed; and, otherwise, interest shall be calculated on the basis
of a year of three hundred sixty (360) days for the actual days elapsed. The
Agent shall as soon as practicable notify the Borrower and the Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the ABR or the Eurocurrency Reserve Requirements
shall become effective as of the day on which such change becomes effective. The
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error.
(c) If the Eurodollar Rate cannot be determined by the Agent in the
manner specified in the definition of the term "Eurodollar Rate", the Agent
shall give telecopy or telephonic notice thereof to the Borrower and the Lenders
as soon as practicable thereafter. Until such time as the Eurodollar Rate can be
determined by the Agent in the manner specified in the definition of such term,
no further Eurodollar Loans shall be made or shall be continued as such at the
end of the then current Interest Period nor shall the Borrower have the right to
convert ABR Loans to Eurodollar Loans.
2.10 PRO RATA TREATMENT AND PAYMENTS.
(a) Each borrowing by the Borrower from the Lenders hereunder and any
reduction of the Commitments of the Lenders shall be made pro rata according to
their respective Commitments. Subject to the provisions of Section 8.7 of the
Participation Agreement and Section 2.11(b) hereof, each payment (including
without limitation each prepayment) by the Borrower on account of principal of
and interest on the Loans shall be made pro rata according to the respective
outstanding principal amounts on the Loans then held by the Lenders. All
payments (including without limitation prepayments) to be made by the Borrower
hereunder and under the Notes, whether on account of principal, interest or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, Austin, Texas time, on the due date thereof to the Agent, for the
account of the Lenders, at the Agent's office specified in Section 9.2, in
Dollars and in immediately available funds. The Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder becomes due and payable on a day other than a Business Day,
such payment shall be extended to the next succeeding Business Day; provided,
however, if such payment includes an amount of interest calculated with
reference to the Eurodollar Rate and the result of such extension would be to
extend such payment into another calendar month, then such payment shall be made
on the immediately preceding Business Day. In the case of any extension of any
payment of principal pursuant to the preceding two (2) sentences, interest
thereon shall be payable at the then applicable rate during such extension.
(b) Unless the Agent shall have been notified in writing by any Lender
prior to a borrowing that such Lender will not make its share of such borrowing
available to the Agent, the Agent may assume that such Lender is
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making such amount available to the Agent, and the Agent may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to the Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available to
the Agent. A certificate of the Agent submitted to any Lender with respect to
any amounts owing under this Section 2.10(b) shall be conclusive in the absence
of manifest error. If such Lender's share of such borrowing is not made
available to the Agent by such Lender within three (3) Business Days of such
Borrowing Date, the Agent shall also be entitled to recover such amount with
interest thereon at the rate as set forth above on demand from the Borrower.
2.11 NOTICE OF AMOUNTS PAYABLE; MANDATORY ASSIGNMENT.
(a) In the event that any Lender becomes aware that any amounts are or
will be owed to it pursuant to Sections 11.2(e), 11.3 or 11.4 of the
Participation Agreement or that it is unable to make Eurodollar Loans, then it
shall promptly notify the Borrower, the Lessee and the Agent thereof and, as
soon as possible thereafter, such Lender shall submit to the Borrower (with a
copy to the Agent) a certificate indicating the amount owing to it and the
calculation thereof. The amounts set forth in such certificate shall be prima
facie evidence of the obligations of the Borrower hereunder.
(b) In the event that any Lender delivers to the Borrower a certificate
in accordance with Section 2.11(a) in connection with amounts payable pursuant
to Sections 11.2(e) or 11.3 of the Participation Agreement or such Lender is
required to make Loans as ABR Loans in accordance with Section 11.3(e) of the
Participation Agreement then, subject to Section 9.1 of the Participation
Agreement, the Borrower may, at its own expense (provided, such amounts shall be
reimbursed or paid entirely (as elected by the Borrower) by the Lessee, as
Supplemental Rent) and in the discretion of the Borrower, (i) require such
Lender to transfer or assign, in whole or (with such Lender's consent) in part,
without recourse (in accordance with Section 9.8), all or (with such Lender's
consent) part of its interests, rights (except for rights to be indemnified for
actions taken while a party hereunder) and obligations under this Agreement to a
replacement bank or institution if the Borrower (subject to Section 9.1 of the
Participation Agreement), with the full cooperation of such Lender, can identify
a Person who is ready, willing and able to be such replacement bank or
institution with respect thereto and such replacement bank or institution (which
may be another Lender) shall assume such assigned obligations, or (ii) during
such time as no Default or Event of Default has occurred and is continuing,
terminate the Commitment of such Lender and prepay all outstanding Loans of such
Lender; provided, however, that (x) subject to Section 9.1 of the Participation
Agreement, the Borrower or such replacement bank or institution, as the case may
be, shall have paid to such Lender in immediately available funds the principal
of and interest accrued to the date of such payment on the Loans made by it
hereunder and all other amounts owed to it hereunder (and, if such Lender is
also a Holder, all Holder Advances and Holder Yield accrued and unpaid thereon)
and (y) such assignment or termination of the Commitment of such Lender and
prepayment of Loans does not conflict with any law, rule or regulation or order
of any court or Governmental Authority.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this Agreement and to
make the Loans, each of the Trust Company and the Owner Trustee hereby makes and
affirms the representations and warranties set forth in Section 6.1 of the
Participation Agreement to the same extent as if such representations and
warranties were set forth in this Agreement in their entirety.
SECTION 4. CONDITIONS PRECEDENT
4.1 CONDITIONS TO EFFECTIVENESS.
The effectiveness of this Agreement is subject to the satisfaction of
all conditions precedent set forth in Section 5.3 of the Participation Agreement
required by said Section to be satisfied on or prior to the Initial Closing
Date.
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4.2 CONDITIONS TO EACH LOAN.
The agreement of each Lender to make any Loan requested to be made by it
on any date is subject to the satisfaction of all conditions precedent set forth
in Section 5.3 and 5.4 of the Participation Agreement required by said Sections
to be satisfied on or prior to the date of the applicable Loan.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date of such Loan that the conditions
contained in this Section 4.2 have been satisfied.
SECTION 5. COVENANTS
So long as any Loan or Note remains outstanding and unpaid or any other
amount is owing to any Lender or the Agent hereunder:
5.1 OTHER ACTIVITIES.
Except as otherwise expressly contemplated by the Trust Agreement, the
Borrower shall not conduct, transact or otherwise engage in, or commit to
transact, conduct or otherwise engage in, any business or operations other than
the entry into, and exercise of rights and performance of obligations in respect
of, the Operative Agreements and other activities incidental or related to the
foregoing.
5.2 OWNERSHIP OF PROPERTIES, INDEBTEDNESS.
Except as otherwise expressly contemplated by the Trust Agreement, the
Borrower shall not own, lease, manage or otherwise operate any properties or
assets other than in connection with the activities described in Section 5.1, or
incur, create, assume or suffer to exist any Indebtedness or other consensual
liabilities or financial obligations other than as may be incurred, created or
assumed or as may exist in connection with the activities described in Section
5.1 (including without limitation the Loans and other obligations incurred by
the Borrower hereunder).
5.3 DISPOSITION OF ASSETS.
The Borrower shall not convey, sell, lease, assign, transfer or
otherwise dispose of any of its property, business or assets, whether now owned
or hereafter acquired, except to the extent expressly contemplated by the
Operative Agreements.
5.4 COMPLIANCE WITH OPERATIVE AGREEMENTS.
The Borrower shall at all times (a) observe and perform all of the
covenants, conditions and obligations required to be performed by it (whether in
its capacity as the Lessor, the Owner Trustee or otherwise) under each Operative
Agreement to which it is a party and (b) observe and perform, or cause to be
observed and performed, all of the covenants, conditions and obligations of the
Lessor under the Lease, even in the event that the Lease is terminated at stated
expiration following a Lease Event of Default or otherwise.
5.5 FURTHER ASSURANCES.
At any time and from time to time, upon the written request of the
Agent, and at the expense of the Borrower (provided, such amounts shall be
reimbursed or paid entirely (as elected by the Borrower) by the Lessee, as
Supplemental Rent), the Borrower will promptly and duly execute and deliver such
further instruments and documents and take such further action as the Agent or
the Majority Lenders may reasonably request for the purpose of obtaining or
preserving the full benefits of this Agreement and the other Operative
Agreements and of the rights and powers herein or therein granted.
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5.6 NOTICES.
If on any date, a Responsible Officer of the Borrower shall obtain
actual knowledge of the occurrence of a Default or Event of Default, the
Borrower will give written notice thereof to the Agent within five (5) Business
Days after such date.
5.7 DISCHARGE OF LIENS.
Neither the Borrower nor the Trust Company will create or permit to
exist at any time, and will, at its own expense, promptly take such action as
may be necessary duly to discharge, or cause to be discharged, all Lessor Liens
attributable to it, provided, that the Borrower and the Trust Company shall not
be required to discharge any Lessor Lien while the same is being contested in
good faith by appropriate proceedings diligently prosecuted so long as such
proceedings shall not involve any material danger of impairment of any of the
Liens contemplated by the Security Documents or of the sale, forfeiture or loss
of, and shall not materially interfere with the disposition of, any Property or
title thereto or any interest therein or the payment of Rent.
5.8 TRUST AGREEMENT.
Without prejudice to any right under the Trust Agreement of the Owner
Trustee to resign, the Owner Trustee (a) agrees not to terminate or revoke the
trust created by the Trust Agreement except as permitted by Article VIII of the
Trust Agreement, (b) agrees not to amend, supplement, terminate, revoke or
otherwise modify any provision of the Trust Agreement in any manner which could
reasonably be expected to have an adverse effect on the rights or interests of
the Agent or the Lenders hereunder or under the other Operative Agreements and
(c) agrees to comply with all of the terms of the Trust Agreement.
SECTION 6. EVENTS OF DEFAULT
Upon the occurrence of any of the following specified events (each an
"Event of Default"):
(a) Except as provided in Sections 6(c), the Borrower shall default in
the payment when due of any principal on the Loans or default in the payment
when due of any interest on the Loans, and in either such case, such default
shall continue for three (3) or more days; or
(b) Except as provided in Sections 6(a) and 6(c), the Borrower shall
default, and such default shall continue for three (3) or more days, in the
payment of any amount owing under any Credit Document; or
(c) (i) The Borrower shall default in the payment of any amount due on
the Maturity Date owing under any Credit Document or (ii) the Borrower shall
default in the payment when due of any principal or interest on the Loans
payable with regard to any obligation of Lessee to pay Termination Value or
Maximum Amount when due or to pay Basic Rent or Supplemental Rent at such time
as any Termination Value or Maximum Amount is due; or
(d) The Borrower shall default in the due performance or observance by
it of any term, covenant or agreement contained in any Credit Document to which
it is a party (other than those referred to in paragraphs (a), (b) and (c)
above), provided, that in the case of any such default under Sections 5.4, 5.5
or 5.8(c), such default shall have continued unremedied for a period of at least
fifteen (15) days after notice to the Borrower by the Agent or the Majority
Lenders.
(e) Any representation, warranty or statement made or deemed made by the
Borrower herein or in any other Credit Document or by the Borrower or the Lessee
in the Participation Agreement, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto, shall prove to be untrue in
any material respect on the date as of which made or deemed made; or
(f) (i) Any Lease Event of Default shall have occurred and be
continuing, or (ii) the Owner Trustee shall default in the due performance or
observance by it of any term, covenant or agreement contained in the
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Participation Agreement or in the Trust Agreement to or for the benefit of the
Agent or a Lender, provided, that in the case of this clause (ii) such default
shall have continued unremedied for a period of at least fifteen (15) days after
notice to the Owner Trustee and Lessee by the Agent or the Majority Lenders; or
(g) The Borrower shall commence a voluntary case concerning itself under
the Bankruptcy Code or an involuntary case is commenced against the Borrower and
the petition is not controverted within ten (10) days after commencement of the
case or an involuntary case is commenced against the Borrower and the petition
is not dismissed within sixty (60) days after commencement of the case; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge
of, all or substantially all of the property of the Borrower; or the Borrower
commences any other proceeding under any reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency or liquidation or similar
law of any jurisdiction whether now or hereafter in effect relating to the
Borrower, or there is commenced against the Borrower any such proceeding which
remains undismissed for a period of sixty (60) days; or the Borrower is
adjudicated insolvent or bankrupt, or any order of relief or other order
approving any such case or proceeding is entered; or the Borrower suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of sixty (60) days;
or the Borrower makes a general assignment for the benefit of creditors; or any
corporate or partnership action is taken by the Borrower for the purpose of
effecting any of the foregoing; or
(h) Any Security Document shall, for any reason not the fault of the
Agent or any Lender, cease to be in full force and effect, or shall cease to
give the Agent the Liens, rights, powers and privileges purported to be created
thereby (including without limitation a first priority perfected security
interest in, and Lien on, all of the Properties), in favor of the Agent on
behalf of the Lenders and the Holders, superior to and prior to the rights of
all third Persons and subject to no other Liens (except in each case to the
extent expressly permitted herein or in any Operative Agreement) other than any
Ground Lease; or
(i) The Lease shall cease to be enforceable against the Lessee; or
(j) One (1) or more judgments or decrees shall be entered against the
Borrower involving a liability of $100,000 or more in the aggregate for all such
judgments and decrees for the Borrower and any such judgments or decrees shall
not have been vacated, discharged or stayed or bonded pending appeal within
sixty (60) days from the entry thereof,
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (g) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the Notes
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i) with
the consent of the Majority Lenders, the Agent may, or upon the request of the
Majority Lenders, the Agent shall, by notice to the Borrower declare the
Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (ii) with the consent of the Majority Lenders, the
Agent may, or upon the request of the Majority Lenders, the Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the Notes to be
due and payable forthwith, whereupon the same shall immediately become due and
payable (any of the foregoing occurrences or actions referred to in clause (A)
or (B) above, an "Acceleration"). Except as expressly provided above in this
Section 6, presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
Upon the occurrence of any Event of Default and at any time thereafter
so long as any Event of Default shall be continuing, the Agent shall, upon the
written instructions of the Majority Secured Parties, exercise any or all of the
rights and powers and pursue any and all of the remedies available to it
hereunder and (subject to the terms thereof) under the other Credit Documents,
the Lease and the other Operative Agreements and shall have any and all rights
and remedies available under the Uniform Commercial Code or any provision of
law.
Upon the occurrence of any Event of Default and at any time thereafter
so long as any Event of Default shall be continuing, the Agent may, and upon
request of the Majority Secured Parties shall, proceed to protect and enforce
this Agreement, the Notes, the other Credit Documents and the Lease by suit or
suits or proceedings in equity, at law or in bankruptcy, and whether for the
specific performance of any covenant or agreement herein contained or in
execution or aid of any power herein granted, or for foreclosure hereunder, or
for the appointment of
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a receiver or receivers for the Property or for the recovery of judgment for the
indebtedness secured thereby or for the enforcement of any other proper, legal
or equitable remedy available under applicable laws.
The Borrower shall be liable for any and all accrued and unpaid amounts
due hereunder before, after or during the exercise of any of the foregoing
remedies, including without limitation all reasonable legal fees and other
reasonable costs and expenses incurred by the Agent or any Lender by reason of
the occurrence of any Event of Default or the exercise of remedies with respect
thereto.
SECTION 7. THE AGENT
7.1 APPOINTMENT.
Each Lender hereby irrevocably designates and appoints the Agent as the
agent of such Lender under this Agreement and the other Operative Agreements,
and each such Lender irrevocably authorizes the Agent, in such capacity, to
execute the Operative Agreements as agent for and on behalf of such Lender, to
take such action on behalf of such Lender under the provisions of this Agreement
and the other Operative Agreements and to exercise such powers and perform such
duties as are expressly delegated to the Agent by the terms of this Agreement
and other Operative Agreements, together with such other powers as are
reasonably incidental thereto. Without limiting the generality of the foregoing,
each of the Lenders hereby specifically acknowledges the terms and provisions of
the Participation Agreement and directs the Agent to exercise such powers, make
such decisions and otherwise perform such duties as are delegated to the Agent
thereunder without being required to obtain any specific consent with respect
thereto from any Lender, unless the matter under consideration is a Unanimous
Vote Matter or otherwise requires the consent of the Majority Lenders and/or the
Majority Secured Parties. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Operative Agreement or otherwise exist against the Agent.
7.2 DELEGATION OF DUTIES.
The Agent may execute any of its duties under this Agreement and the
other Operative Agreements by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by it with reasonable care.
7.3 EXCULPATORY PROVISIONS.
Neither the Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
this Agreement or any other Operative Agreement (except for its or such Person's
own gross negligence or willful misconduct) or (b) responsible in any manner to
any of the Lenders for any recitals, statements, representations or warranties
made by the Borrower or the Lessee or any officer thereof contained in this
Agreement or any other Operative Agreement or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Operative
Agreement or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Operative Agreement or for any
failure of the Borrower or the Lessee to perform its obligations hereunder or
thereunder. The Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Operative
Agreement, or to inspect the properties, books or records of the Borrower or the
Lessee.
7.4 RELIANCE BY THE AGENT.
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any Note, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the
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proper Person or Persons and upon advice and statements of legal counsel
(including without limitation counsel to the Borrower or the Lessee),
independent accountants and other experts selected by the Agent. The Agent may
deem and treat the payee of any Note as the owner thereof for all purposes
unless a written notice of assignment, negotiation or transfer thereof shall
have been filed with the Agent. The Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Operative
Agreement unless it shall first receive such advice or concurrence of the
Majority Lenders, the Majority Secured Parties or all Secured Parties, as the
case may be, as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Operative Agreements in accordance
with a request of the Majority Lenders, the Majority Secured Parties or all
Secured Parties, as the case may be, and such and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Notes (or all Secured Parties, as the case may be).
7.5 NOTICE OF DEFAULT.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the Agent has
received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Agent receives such a
notice, the Agent shall give notice thereof to the Lenders. The Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Majority Secured Parties; provided, that unless and
until the Agent shall have received such directions, the Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Secured Parties; provided, further, the foregoing shall
not limit (a) the rights of the Majority Secured Parties to elect remedies as
set forth in Section 6 and/or (b) the rights of the Majority Secured Parties or
all Secured Parties, as the case may be, as described in the Participation
Agreement (including without limitation Sections 8.2(h) and 8.6 of the
Participation Agreement).
7.6 NON-RELIANCE ON THE AGENT AND OTHER LENDERS.
Each Lender expressly acknowledges that neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Agent hereinafter
taken, including without limitation any review of the affairs of the Borrower or
the Lessee, shall be deemed to constitute any representation or warranty by the
Agent to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower and the
Lessee and made its own decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without
reliance upon the Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Operative Agreements, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and the Lessee. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of the
Borrower or the Lessee which may come into the possession of the Agent or any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates.
7.7 INDEMNIFICATION.
The Lenders agree to indemnify the Agent, in its capacity as such (to
the extent not reimbursed by the Borrower and without limiting the obligation of
the Borrower to do so), ratably according to their respective Commitment
Percentages in effect on the date on which indemnification is sought under this
Section 7.7 (or, if indemnification is sought after the date upon which the
Commitments shall have terminated and the Loans shall have been paid in full,
ratably in accordance with their Commitment Percentages immediately prior to
such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
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expenses or disbursements of any kind whatsoever which may at any time
(including without limitation at any time following the payment of the Notes) be
imposed on, incurred by or asserted against any of them in any way relating to
or arising out of, the Commitments, this Agreement, any of the other Operative
Agreements or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by any of them under or in connection with any of the foregoing; provided, that
no Lender shall be liable for the payment of any portion of such liabilities,
obligations, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the gross negligence or willful misconduct
of the Agent. The agreements in this Section 7.7 shall survive the payment of
the Notes and all other amounts payable hereunder.
7.8 THE AGENT IN ITS INDIVIDUAL CAPACITY.
The Agent and its Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower or the Lessee as
though the Agent were not the Agent hereunder and under the other Operative
Agreements. With respect to its Loans made or renewed by it and any Note issued
to it, the Agent shall have the same rights and powers under this Agreement and
the other Operative Agreements as any Lender and may exercise the same as though
it were not the Agent, and the terms "Lender" and "Lenders" shall include the
Agent in its individual capacity.
7.9 SUCCESSOR AGENT.
The Agent may resign at any time as the Agent upon thirty (30) days'
notice to the Lenders, the Borrower and, so long as no Lease Event of Default
shall have occurred and be continuing, the Lessee. If the Agent shall resign as
the Agent under this Agreement, the Majority Lenders shall appoint from among
the Lenders a successor Agent which successor Agent shall be subject to the
approval of the Borrower and, so long as no Lease Event of Default shall have
occurred and be continuing, the Lessee, such approval not to be unreasonably
withheld or delayed. If no successor Agent is appointed prior to the effective
date of the resignation of the resigning Agent, the Agent may appoint, after
consulting with the Lenders and subject to the approval of the Borrower and, so
long as no Lease Event of Default shall have occurred and be continuing, the
Lessee, such approval not to be unreasonably withheld or delayed, a successor
Agent from among the Lenders (or such other Person as shall be acceptable to the
Majority Lenders). If no successor Agent has accepted appointment as the Agent
by the date which is thirty (30) days following a retiring Agent's notice of
resignation, the retiring Agent's notice of resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Agent until such time, if any, as the Majority Lenders appoint a successor
Agent, as provided for above. Upon the effective date of such resignation, only
such successor Agent shall succeed to all the rights, powers and duties of the
retiring Agent and the term "Agent" shall mean such successor agent and the
retiring Agent's rights, powers and duties in such capacity shall be terminated.
After any retiring Agent resigns hereunder as the Agent, the provisions of this
Article VII and Section 9.5 shall inure to their respective benefit as to any
actions taken or omitted to be taken by it while it was the Agent under this
Agreement.
7.10 ACTIONS OF THE AGENT ON BEHALF OF HOLDERS.
The parties hereto specifically acknowledge and consent to the Agent's
acting on behalf of the Holders as provided in the Participation Agreement, and,
in any such case, the Lenders acknowledge that the Holders shall be entitled to
vote as "Secured Parties" hereunder to the extent required or permitted by the
Operative Agreements (including without limitation Sections 8.2(h) and 8.6 of
the Participation Agreement).
7.11 THE AGENT'S DUTY OF CARE.
Other than the exercise of reasonable care to assure the safe custody of
the Collateral while being held by the Agent hereunder or under any other
Operative Agreement, the Agent shall have no duty or liability to preserve
rights pertaining thereto, it being understood and agreed that the Lessee shall
be responsible for preservation of all rights in the Collateral, and the Agent
shall be relieved of all responsibility for the Collateral upon surrendering it
or tendering the surrender of it to the Lessee. The Agent shall be deemed to
have exercised reasonable care in the custody and preservation of the Collateral
in its possession if the Collateral is accorded treatment substantially equal to
that which the Agent accords its own property, which shall be no less than the
treatment employed by a
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reasonable and prudent agent in the industry, it being understood that the Agent
shall not have responsibility for taking any necessary steps to preserve rights
against any parties with respect to any of the Collateral.
SECTION 8. MATTERS RELATING TO PAYMENT AND COLLATERAL
8.1 COLLECTION AND ALLOCATION OF PAYMENTS AND OTHER AMOUNTS.
The Lessee, the Construction Agent, the Agent, the Lenders, the Holders
and the Borrower have agreed pursuant to the terms of Section 8.7 of the
Participation Agreement to a procedure for the allocation and distribution of
certain payments and distributions, including without limitation the proceeds of
Collateral.
8.2 CERTAIN REMEDIAL MATTERS.
Notwithstanding any other provision of this Agreement or any other
Credit Document:
(a) the Borrower shall at all times retain to the exclusion of all other
parties, all rights to Excepted Payments payable to it and to demand, collect or
commence an action at law to obtain such payments and to enforce any judgment
with respect thereto; and
(b) the Borrower and each Holder shall at all times retain the right,
but not to the exclusion of the Agent, (i) to retain all rights with respect to
insurance that Article XIV of the Lease specifically confers upon the "Lessor",
(ii) to provide such insurance as the Lessee shall have failed to maintain in
accordance with the Operative Agreements or as the Borrower or any Holder may
desire, and (iii) to bring an action to enforce compliance by the Lessee with
the provisions of Articles VIII, IX, X, XI, XIV and XVII of the Lease.
8.3 EXCEPTED PAYMENTS.
Notwithstanding any other provision of this Agreement or the Security
Documents, any Excepted Payment received at any time by the Agent shall be
distributed promptly to the Person entitled to receive such Excepted Payment.
SECTION 9. MISCELLANEOUS
9.1 AMENDMENTS AND WAIVERS.
None of the terms or provisions of this Agreement may be terminated,
amended, supplemented, waived or modified except in accordance with the terms of
Section 12.4 of the Participation Agreement.
9.2 NOTICES.
All notices required or permitted to be given under this Agreement shall
be given in accordance with Section 12.2 of the Participation Agreement.
9.3 NO WAIVER; CUMULATIVE REMEDIES.
No failure to exercise and no delay in exercising, on the part of the
Agent or any Lender, any right, remedy, power or privilege hereunder or under
the other Credit Documents shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or future exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies, powers
and privileges provided by law.
9.4 [reserved]
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9.5 PAYMENT OF EXPENSES AND TAXES.
The Borrower agrees to (with funds provided by the Lessee as
Supplemental Rent): (a) pay all reasonable out-of-pocket costs and expenses of
(i) the Agent whether or not the transactions herein contemplated are
consummated, in connection with the negotiation, preparation, execution and
delivery of the Operative Agreements and the documents and instruments referred
to therein (including without limitation the reasonable fees and disbursements
of Xxxxx & Xxx Xxxxx, PLLC) and any amendment, waiver or consent relating
thereto (including without limitation the reasonable fees and disbursements of
counsel to the Agent) and (ii) the Agent and each of the Lenders in connection
with the enforcement of the Operative Agreements and the documents and
instruments referred to therein (including without limitation the reasonable
fees and disbursements of counsel for the Agent and for each of the Lenders) and
(b) pay and hold each of the Lenders harmless from and against any and all
present and future stamp and other similar taxes with respect to the foregoing
matters and save each of the Lenders harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other than
to the extent attributable to such Lender) to pay such taxes.
9.6 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Agent, all future holders of the Notes and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement except in
accordance with Section 10.1 of the Participation Agreement and the other
applicable provisions of the Operative Agreements.
9.7 PARTICIPATIONS.
Subject to and in accordance with Section 10.1 of the Participation
Agreement, each Lender may sell participations to one or more Persons (each, a
"Participant") in all or a portion of its rights, obligations or rights and
obligations under the Operative Agreements (including all or a portion of its
Commitment or its Loans); provided, however, that (a) such Lender's obligations
under the Operative Agreements shall remain unchanged, (b) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (c) the Participant shall be entitled to the benefit of the
yield protection provisions contained in Sections 11.2(e), 11.3 and 11.4 of the
Participation Agreement and the right of set-off contained in Section 12.15 of
the Participation Agreement, and (d) the Borrower shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under the Operative Agreements, and such Lender shall retain the
sole right to enforce the obligations of the Borrower relating to its Loans and
its Notes and to approve any amendment, modification, or waiver of any provision
of the Operative Agreements (other than amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which interest is payable
on such Loans or Notes, extending any scheduled principal payment date or date
fixed for the payment of interest on such Loans or Notes, or extending its
Commitment).
Any Lender may furnish any information concerning the Borrower, the
Lessee or any Subsidiaries of the Lessee in the possession of such Lender from
time to time to participants (including prospective participants), subject,
however, to the provisions of Section 12.13 of the Participation Agreement.
9.8 ASSIGNMENTS.
Assignments. (a) Subject to and in accordance with Section 10.1 of
the Participation Agreement, each Lender may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under the Operative
Agreements (including, without limitation, all or a portion of its Loans, its
Notes, and its Commitment); provided, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or an
assignment of all of a Lender's rights and obligations under the
Operative Agreements, any such partial assignment shall be in an amount
at least equal to $5,000,000 or an integral multiple of $1,000,000 in
excess thereof;
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(iii) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all of its rights and obligations under
the Operative Agreements and the Notes; and
(iv) the parties to such assignment shall execute and deliver to
the Agent for its acceptance an Assignment and Acceptance substantially
in the form of Exhibit B hereto, together with any Note subject to such
assignment and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights and benefits of a Lender under the
Operative Agreements and the assigning Lender shall, to the extent of such
assignment, relinquish its rights and be released from its obligations under the
Operative Agreements. Upon the consummation of any assignment pursuant to this
Section, the assignor, the Agent and the Borrower shall make appropriate
arrangements so that, if required, new Notes are issued to the assignor and the
assignee. If the assignee is not incorporated under the laws of the United
States of America or a state thereof, it shall deliver to the Borrower and the
Agent certification as to exemption from deduction or withholding of Taxes in
accordance with Section 11.2(e) of the Participation Agreement.
(b) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit B hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the parties thereto.
(c) Notwithstanding any other provision set forth in any Operative
Agreement, any Lender may at any time assign and pledge all or any portion of
its Loans and its Notes to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning Lender from its
obligations hereunder.
(d) Any Lender may furnish any information concerning the Borrower, the
Lessee or any Subsidiaries of the Lessee in the possession of such Lender from
time to time to assignees (including prospective assignees), subject, however,
to the provisions of Section 12.13 of the Participation Agreement.
9.9 THE REGISTER; DISCLOSURE; PLEDGES TO FEDERAL RESERVE BANKS.
The Agent shall maintain at its address referred to in Section 12.2 of
the Participation Agreement a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Loans owing to, each Lender from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
9.10 ADJUSTMENTS; SET-OFF.
(a) Except as otherwise expressly provided in Section 8.1 hereof and
Section 8.7 of the Participation Agreement where, and to the extent, one (1)
Lender is entitled to payments prior to other Lenders, if any Lender (a
"Benefitted Lender") shall at any time receive any payment of all or part of its
Loans, or interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or
proceedings of the nature referred to in Section 6(g), or otherwise), in a
greater proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans, or interest thereon,
such Benefitted Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lender's Loan, or
shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such Benefitted Lender to
share the excess payment or benefits of such collateral or proceeds ratably with
each of the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the event of such recovery, but without interest.
15
193
(b) In addition to any rights now or hereafter granted under applicable
law or otherwise, and not by way of limitation of any such rights, upon the
occurrence and during the continuation of an Event of Default, the Agent and
each Lender are hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and apply any and all deposits (general or special) and any other
Indebtedness at any time held or owing by the Agent or such Lender (including
without limitation by branches and agencies of the Agent or such Lender wherever
located) to or for the credit or the account of the Borrower against and on
account of the obligations and liabilities of the Borrower to the Agent or such
Lender under this Agreement or under any of the other Operative Agreements,
including without limitation all interests in obligations of the Borrower
purchased by any such Lender pursuant to Section 9.10(a), and all other claims
of any nature or description arising out of or connected with this Agreement or
any other Operative Agreement, irrespective or whether or not the Agent or such
Lender shall have made any demand and although said obligations, liabilities or
claims, or any of them, shall be contingent or unmatured.
9.11 COUNTERPARTS.
This Agreement may be executed by one (1) or more of the parties to this
Agreement on any number of separate counterparts (including without limitation
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one (1) and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Agent.
9.12 SEVERABILITY.
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9.13 INTEGRATION.
THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS REPRESENT THE FINAL
AGREEMENT OF THE BORROWER, THE AGENT, AND THE LENDERS WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND THEREOF, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN OR ORAL AGREEMENTS AMONG THE PARTIES HERETO AND NO PROMISES,
UNDERTAKINGS, REPRESENTATIONS OR WARRANTIES BY THE AGENT OR ANY LENDER RELATIVE
TO THE SUBJECT MATTER HEREOF NOT EXPRESSLY SET FORTH OR REFERRED TO HEREIN OR IN
THE OTHER CREDIT DOCUMENTS.
9.14 GOVERNING LAW.
THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NORTH CAROLINA (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO
CONFLICTS OF LAW).
9.15 SUBMISSION TO JURISDICTION; VENUE.
THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO SUBMISSION TO
JURISDICTION, VENUE ARE HEREBY INCORPORATED BY REFERENCE HEREIN, MUTATIS
MUTANDIS.
16
194
9.16 ACKNOWLEDGEMENTS.
The Borrower hereby acknowledges that:
(a) neither the Agent nor any Lender has any fiduciary relationship with
or duty to the Borrower arising out of or in connection with this Agreement or
any of the other Credit Documents, and the relationship between the Agent (and
the Lenders) and the Borrower, in connection herewith or therewith is solely
that of debtor and creditor; and
(b) no joint venture is created hereby or by the other Credit Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Borrower and the Lenders.
9.17 WAIVERS OF JURY TRIAL.
THE BORROWER, THE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
9.18 NONRECOURSE.
In addition to and not in limitation of Section 12.9 of the
Participation Agreement, anything to the contrary contained in this Agreement or
in any other Operative Agreement notwithstanding, no Exculpated Person shall be
personally liable in any respect for any liability or obligation hereunder or
under any other Operative Agreement including without limitation 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 this Agreement, the
Notes or any of the other Operative Agreements. The Agent and the Lenders agree
that, in the event any of them pursues any remedies available to them under this
Agreement, the Notes or any other Operative Agreement, neither the Agent nor the
Lenders shall have any recourse against the Borrower, nor any other 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; 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 in
this Agreement, the Notes or any other Operative Agreement. The Agent and the
Lenders further agree that the Borrower shall not be responsible for the payment
of any amounts owing hereunder (excluding principal and interest (other than
Overdue Interest) in respect of the Loans) (such non-excluded amounts,
"Supplemental Amounts") except to the extent that payments of Supplemental Rent
designated by the Lessee for application to such Supplemental Amounts shall have
been paid by the Lessee pursuant to the Lease (it being understood that the
failure by the Lessee for any reason to pay any Supplemental Rent in respect of
such Supplemental Amounts shall nevertheless be deemed to constitute a default
by the Borrower for the purposes of Section 6). Notwithstanding the foregoing
provisions of this Section 9.18, nothing in this Agreement or any other
Operative Agreement shall (a) constitute a waiver, release or discharge of any
obligation evidenced or secured by this Agreement or any other Credit Document,
(b) limit the right of the Agent or any Lender to name the Borrower as a party
defendant in any action or suit for judicial foreclosure and sale under any
Security Document, or (c) affect in any way the validity or enforceability of
any guaranty (whether of payment and/or performance) given to the Lessor, the
Agent or the Lenders, or of any indemnity agreement given by the Borrower, in
connection with the Loans made hereunder.
9.19 USURY SAVINGS PROVISION.
IT IS THE INTENT OF THE PARTIES HERETO TO CONFORM TO AND CONTRACT IN
STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME TO TIME IN EFFECT AND THAT
N.C. GEN. STAT. Section 24-9 SHALL APPLY WITH RESPECT TO THIS AGREEMENT. TO THE
EXTENT N.C. GEN. STAT. Section 24-9 IS HEREAFTER DEEMED NOT TO APPLY BY A COURT
OF COMPETENT JURISDICTION AND ANY PAYMENTS HEREUNDER ARE HEREINAFTER
CHARACTERIZED BY ANY COURT OF COMPETENT JURISDICTION AS THE REPAYMENT OF
PRINCIPAL AND INTEREST THEREON, THE FOLLOWING PROVISIONS OF THIS SECTION 9.19
SHALL APPLY. ANY SUCH PAYMENTS SO CHARACTERIZED AS INTEREST MAY BE REFERRED TO
HEREIN AS "INTEREST." ALL
17
195
AGREEMENTS AMONG THE PARTIES HERETO ARE HEREBY LIMITED BY THE PROVISIONS OF THIS
PARAGRAPH WHICH SHALL OVERRIDE AND CONTROL ALL SUCH AGREEMENTS, WHETHER NOW
EXISTING OR HEREAFTER ARISING AND WHETHER WRITTEN OR ORAL. IN NO WAY, NOR IN ANY
EVENT OR CONTINGENCY (INCLUDING WITHOUT LIMITATION PREPAYMENT OR ACCELERATION OF
THE MATURITY OF ANY OBLIGATION), SHALL ANY INTEREST TAKEN, RESERVED, CONTRACTED
FOR, CHARGED, OR RECEIVED UNDER THIS AGREEMENT OR OTHERWISE, EXCEED THE MAXIMUM
NONUSURIOUS AMOUNT PERMISSIBLE UNDER APPLICABLE LAW. IF, FROM ANY POSSIBLE
CONSTRUCTION OF ANY OF THE OPERATIVE AGREEMENTS OR ANY OTHER DOCUMENT OR
AGREEMENT, INTEREST WOULD OTHERWISE BE PAYABLE IN EXCESS OF THE MAXIMUM
NONUSURIOUS AMOUNT, ANY SUCH CONSTRUCTION SHALL BE SUBJECT TO THE PROVISIONS OF
THIS PARAGRAPH AND SUCH AMOUNTS UNDER SUCH DOCUMENTS OR AGREEMENTS SHALL BE
AUTOMATICALLY REDUCED TO THE MAXIMUM NONUSURIOUS AMOUNT PERMITTED UNDER
APPLICABLE LAW, WITHOUT THE NECESSITY OF EXECUTION OF ANY AMENDMENT OR NEW
DOCUMENT OR AGREEMENT. IF THE AGENT OR ANY LENDER SHALL EVER RECEIVE ANYTHING OF
VALUE WHICH IS CHARACTERIZED AS INTEREST WITH RESPECT TO THE OBLIGATIONS OWED
HEREUNDER OR UNDER APPLICABLE LAW AND WHICH WOULD, APART FROM THIS PROVISION, BE
IN EXCESS OF THE MAXIMUM LAWFUL AMOUNT, AN AMOUNT EQUAL TO THE AMOUNT WHICH
WOULD HAVE BEEN EXCESSIVE INTEREST SHALL, WITHOUT PENALTY, BE APPLIED TO THE
REDUCTION OF THE COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL AND NOT TO THE
PAYMENT OF INTEREST, OR REFUNDED TO THE BORROWER OR ANY OTHER PAYOR THEREOF, IF
AND TO THE EXTENT SUCH AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE EXCEEDS THE
COMPONENT OF PAYMENTS DEEMED TO BE PRINCIPAL. THE RIGHT TO DEMAND PAYMENT OF ANY
AMOUNTS EVIDENCED BY ANY OF THE OPERATIVE AGREEMENTS DOES NOT INCLUDE THE RIGHT
TO RECEIVE ANY INTEREST WHICH HAS NOT OTHERWISE ACCRUED ON THE DATE OF SUCH
DEMAND, AND NEITHER THE AGENT NOR ANY LENDER INTENDS TO CHARGE OR RECEIVE ANY
UNEARNED INTEREST IN THE EVENT OF SUCH DEMAND. ALL INTEREST PAID OR AGREED TO BE
PAID TO THE AGENT OR ANY LENDER SHALL, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, BE AMORTIZED, PRORATED, ALLOCATED, AND SPREAD THROUGHOUT THE FULL STATED
TERM (INCLUDING WITHOUT LIMITATION ANY RENEWAL OR EXTENSION) OF THIS AGREEMENT
SO THAT THE AMOUNT OF INTEREST ON ACCOUNT OF SUCH PAYMENTS DOES NOT EXCEED THE
MAXIMUM NONUSURIOUS AMOUNT PERMITTED BY APPLICABLE LAW.
[signature pages to follow]
18
196
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
FIRST SECURITY BANK, NATIONAL ASSOCIATION, as
Owner Trustee under the Lexi Trust 2000-1
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
------------------------------------
Title: Vice President
------------------------------------
BANK OF AMERICA, N.A., as the Agent and the
Lender
By: /s/ C. Xxxxx Xxxxxxx
------------------------------------
Name: C. Xxxxx Xxxxxxx
------------------------------------
Title: Vice President
------------------------------------
197
Schedule 2.1
Tranche A Tranche B
Commitment Commitment
Name and Address of Lender Amount Percentage Amount Percentage
------ ---------- ------ ----------
Bank of America, N.A. $38,839,500 100% $4,135,500 100%
Bank of America Tower
000 Xxxxxxxx Xxxxxx
Mail Code: TX9-329-11-01
Xxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
TOTAL $38,839,500 100% $4,135,500 100%
198
Exhibit A-1
TRANCHE A NOTE
(Lexi Trust 2000-1)
[___________, 200__]
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as the Owner Trustee
under the Lexi Trust 2000-1 (the "Borrower"), hereby unconditionally promises to
pay to the order of [LENDER] (the "Lender"), at the office of Bank of America,
N.A., located at Austin, Texas, or at such other address as may be specified by
[LENDER], in lawful money of the United States of America and in immediately
available funds, on the Rent Commencement Date, the Tranche A Loan amount
referenced in Section 2.6(d) of the Credit Agreement, on the Payment Date
immediately following the Final Completion Date, the Tranche A Loan Amount
referenced in Section 2.6(c) of the Credit Agreement, and on the Maturity Date,
the aggregate unpaid principal amount of all Tranche A Loans made by the Lender
to the Borrower pursuant to Section 2.1 of the Credit Agreement (as defined
below). The Borrower agrees to pay interest in like money at such office on the
unpaid principal amount hereof from time to time outstanding at the rates and on
the dates specified in Section 2.8 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each
Tranche A Loan made pursuant to the Credit Agreement and the date and amount of
each payment or prepayment of principal thereof, each continuation thereof and
each conversion of all or a portion thereof to another Type. Each such
endorsement shall constitute prima facie evidence of the accuracy of the
information endorsed. The failure to make any such endorsement or any error in
such endorsement shall not affect the obligations of the Borrower in respect of
such Loan.
This Note (a) is one of the Notes referred to in the Credit Agreement
dated as of October 19, 2000 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Borrower, the Lender, the
other banks and financial institutions from time to time parties thereto and
Bank of America, N.A., as the Agent, (b) is subject to the provisions of the
Credit Agreement (including without limitation Section 9.18 thereof) and (c) is
subject to optional and mandatory prepayment in whole or in part as provided in
the Credit Agreement. Reference is hereby made to the Credit Documents for a
description of the properties and assets in which a security interest has been
granted, the nature and extent of the security and the guarantees, the terms and
conditions upon which the security interests and each guarantee were granted and
the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind except as
expressly set forth to the contrary in the Credit Agreement or the Participation
Agreement.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NORTH CAROLINA (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
A1-1
199
A1-2
200
IN WITNESS WHEREOF, THE UNDERSIGNED AUTHORIZED OFFICER OF THE BORROWER
HAS EXECUTED THIS NOTE AS OF THE DATE FIRST SET FORTH ABOVE.
FIRST SECURITY BANK, NATIONAL ASSOCIATION, as
Owner Trustee under the Lexi Trust 2000-1
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
A1-3
201
Exhibit A-2
TRANCHE B NOTE
(Lexi Trust 2000-1)
[_________, 200__]
FOR VALUE RECEIVED, the undersigned, FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity, but solely as the Owner Trustee
under the Lexi Trust 2000-1 (the "Borrower"), hereby unconditionally promises to
pay to the order of [LENDER] (the "Lender") at the office of Bank of America,
N.A. located at Austin, Texas, or at such other address as may be specified by
[LENDER], in lawful money of the United States of America and in immediately
available funds, on the Rent Commencement Date, the Tranche B Loan Amount
referenced in Section 2.6(c) of the Credit Agreement, on the Payment Date
immediately following the Final Completion Date, the Tranche B Loan Amount
referenced in Section 2.6(c) of the Credit Agreement, and on the Maturity Date,
the aggregate unpaid principal amount of all Tranche B Loans made by the Lender
to the Borrower pursuant to Section 2.1 of the Credit Agreement (as defined
below). The Borrower agrees to pay interest in like money at such office on the
unpaid principal amount hereof from time to time outstanding at the rates and on
the dates specified in Section 2.8 of such Credit Agreement.
The holder of this Note is authorized to endorse on the schedules
annexed hereto and made a part hereof or on a continuation thereof which shall
be attached hereto and made a part hereof the date, Type and amount of each
Tranche B Loan made pursuant to the Credit Agreement and the date and amount of
each payment or prepayment of principal thereof, each continuation thereof and
each conversion of all or a portion thereof to another Type. Each such
endorsement shall constitute prima facie evidence of the accuracy of the
information endorsed. The failure to make any such endorsement or any error in
such endorsement shall not affect the obligations of the Borrower in respect of
such Loan.
This Note (a) is one of the Notes referred to in the Credit Agreement
dated as of October 19, 2000 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Borrower, the Lender, the
other banks and financial institutions from time to time parties thereto and
Bank of America, N.A., as the Agent, (b) is subject to the provisions of the
Credit Agreement (including without limitation Section 9.18 thereof) and (c) is
subject to optional and mandatory prepayment in whole or in part as provided in
the Credit Agreement. Reference is hereby made to the Credit Documents for a
description of the properties and assets in which a security interest has been
granted, the nature and extent of the security and the guarantees, the terms and
conditions upon which the security interests and each guarantee were granted and
the rights of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Note shall become, or may be declared to
be, immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note, whether
maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind except as
expressly set forth to the contrary in the Credit Agreement or the Participation
Agreement.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NORTH CAROLINA (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
A2-1
202
IN WITNESS WHEREOF, THE UNDERSIGNED AUTHORIZED OFFICER OF THE BORROWER
HAS EXECUTED THIS NOTE AS OF THE DATE FIRST SET FORTH ABOVE.
FIRST SECURITY BANK, NATIONAL ASSOCIATION, as
Owner Trustee under the Lexi Trust 2000-1
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
A2-2
203
Exhibit B
ASSIGNMENT AND ACCEPTANCE
THIS ASSIGNMENT AND ACCEPTANCE dated as of ____________, 200__ (as
amended, modified, supplemented, restated and/or replaced from time to time, the
"Assignment and Acceptance") is between [____________________] (the "Assignor")
and [_______________] (the "Assignee").
Reference is made to the Credit Agreement, dated as of October 19, 2000
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its
individual capacity, but solely as the Owner Trustee under the Lexi Trust 2000-1
(the "Owner Trustee" or the "Borrower"), the Lenders named therein and Bank of
America, N.A., as the Agent. Unless otherwise defined herein, terms defined in
the Credit Agreement (or pursuant to Section 1 of the Credit Agreement, defined
in other agreements) and used herein shall have the meanings given to them in or
pursuant to the Credit Agreement.
The Assignor and the Assignee agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), a [___%] interest (the "Assigned Interest")
in and to the Assignor's rights and obligations under the Credit Agreement with
respect to the credit facility contained in the Credit Agreement as are set
forth on Schedule 1 hereto (the "Assigned Facility"), in a principal amount for
the Assigned Facility as set forth on Schedule 1.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Operative
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Operative Agreement or
any other instrument or document furnished pursuant thereto, other than that it
has not created any adverse claim upon the interest being assigned by it
hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, or any other obligor or the
performance or observance by the Borrower, or any other obligor of any of their
respective obligations under the Credit Agreement or any other Operative
Agreement or any other instrument or document furnished pursuant hereto or
thereto; and (c) attaches the Note held by it evidencing the Assigned Facility
and requests that the Agent exchange such Note for a new Note payable to the
Assignee and (if the Assignor has retained any interest in the Assigned
Facility) a new Note payable to the Assignor in the respective amounts which
reflect the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received copies of the Operative Agreements, and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor, the Agent or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement, the other Operative Agreements or any other
instrument or document furnished pursuant hereto or thereto; (d) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Operative
Agreements or any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and the other Operative Agreements to which
Assignee is a party and will perform in accordance herewith all the obligations
which by the terms of the Credit Agreement and the other Operative Agreements to
which Assignee is a party are required to be performed by it as a Lender
including without limitation, if it is organized under the laws of a
jurisdiction outside the U.S., its obligation pursuant to Section 11.2(e) of the
Participation Agreement.
B-1
204
4. The effective date of this Assignment and Acceptance shall be
[________, 200__] (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Agent for acceptance by
it and recording by the Agent pursuant to Section 9.9 of the Credit Agreement,
effective as of the Effective Date (which shall not, unless otherwise agreed to
by the Agent, be earlier than five (5) Business Days after the date of such
acceptance and recording by the Agent).
5. Upon such acceptance and recording, from and after the Effective
Date, the Agent shall make all payments in respect of the Assigned Interest
(including without limitation payments of principal, interest, fees and other
amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the Agent for
periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party
to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Operative Agreements and shall be bound by the provisions thereof and (b)
the Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement and the other Operative Agreements.
7. This Assignment and Acceptance shall be governed by, and construed,
INTERPRETED AND ENFORCED in accordance with the INTERNAL laws of the State of
north carolina (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO
CONFLICTS OF LAW).
B-2
205
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
[Name of Assignor]
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
[Name of Assignor]
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Consented To:
FIRST SECURITY BANK, NATIONAL ASSOCIATION, as
Owner Trustee under the Lexi Trust 2000-1
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
BANK OF AMERICA, N.A., as the Agent
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
[consents required only to the extent expressly provided in Section 9.8 of the
Credit Agreement]
B-3
206
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE
RELATING TO THE CREDIT AGREEMENT,
DATED AS OF OCTOBER 19, 2000,
AMONG
FIRST SECURITY BANK, NATIONAL ASSOCIATION
AS OWNER TRUSTEE,
THE LENDERS NAMED THEREIN
AND
BANK OF AMERICA, N.A., AS THE AGENT
FOR THE LENDERS (IN SUCH CAPACITY, THE "AGENT")
Name of Assignor:
---------------------------------
Name of Assignee:
---------------------------------
Effective Date of Assignment:
---------------------
Credit Facility Principal Amount Commitment Percentage
Assigned Assigned Assigned
$ %
-------------------- ----------------------- ----------------------
[Name of Assignor]
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
[Name of Assignee]
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
B-4
207
--------------------------------------------------------------------------------
LEASE AGREEMENT
Dated as of October 19, 2000
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Owner Trustee under the Lexi Trust 2000-1,
as Lessor
and
LEXICON GENETICS INCORPORATED,
as Lessee
--------------------------------------------------------------------------------
This Lease Agreement is subject to a security interest in favor of Bank of
America, N.A., as the agent for the Lenders and respecting the Security
Documents, as the agent for the Secured Parties (the "Agent") under a Security
Agreement dated as of October 19, 2000, between First Security Bank, National
Association, as Owner Trustee under the Lexi Trust 2000-1 and the Agent, as
amended, modified, extended, supplemented, restated and/or replaced from time to
time in accordance with the applicable provisions thereof. This Lease Agreement
has been executed in several counterparts. To the extent, if any, that this
Lease Agreement constitutes chattel paper (as such term is defined in the
Uniform Commercial Code as in effect in any applicable jurisdiction), no
security interest in this Lease Agreement may be created through the transfer or
possession of any counterpart other than the original counterpart containing the
receipt therefor executed by the Agent on the signature page hereof.
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TABLE OF CONTENTS
ARTICLE I.........................................................................................................1
1.1 Definitions.....................................................................................1
-----------
1.2 Interpretation..................................................................................1
--------------
ARTICLE II........................................................................................................1
2.1 Property........................................................................................1
--------
2.2 Lease Term......................................................................................2
----------
2.3 Title...........................................................................................2
-----
2.4 Lease Supplements...............................................................................2
-----------------
ARTICLE III.......................................................................................................2
3.1 Rent............................................................................................2
----
3.2 Payment of Basic Rent...........................................................................3
---------------------
3.3 Supplemental Rent...............................................................................3
-----------------
3.4 Performance on a Non-Business Day...............................................................3
---------------------------------
3.5 Rent Payment Provisions.........................................................................3
-----------------------
ARTICLE IV........................................................................................................3
4.1 Taxes; Utility Charges..........................................................................3
----------------------
ARTICLE V.........................................................................................................4
5.1 Quiet Enjoyment.................................................................................4
---------------
ARTICLE VI........................................................................................................4
6.1 Net Lease.......................................................................................4
---------
6.2 No Termination or Abatement.....................................................................4
---------------------------
ARTICLE VII.......................................................................................................5
7.1 Ownership of the Properties.....................................................................5
---------------------------
ARTICLE VIII......................................................................................................6
8.1 Condition of the Properties.....................................................................6
---------------------------
8.2 Possession and Use of the Properties............................................................6
------------------------------------
8.3 Integrated Properties...........................................................................9
---------------------
ARTICLE IX........................................................................................................7
9.1 Compliance With Legal Requirements, Insurance Requirements and Manufacturer's
-----------------------------------------------------------------------------
Specifications and Standards.............................................................................7
----------------------------
ARTICLE X.........................................................................................................8
10.1 Maintenance and Repair; Return..................................................................8
------------------------------
10.2 Environmental Inspection........................................................................9
------------------------
ARTICLE XI........................................................................................................9
11.1 Modifications...................................................................................9
-------------
11.2 Other Property.................................................................................10
--------------
ARTICLE XII......................................................................................................10
12.1 Warranty of Title..............................................................................10
-----------------
ARTICLE XIII.....................................................................................................11
13.1 Permitted Contests Other Than in Respect of Indemnities........................................11
-------------------------------------------------------
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13.2 Impositions, Utility Charges, Other Matters; Compliance with Legal Requirements................11
-------------------------------------------------------------------------------
ARTICLE XIV......................................................................................................11
14.1 Commercial Liability and Workers' Compensation Insurance.......................................11
--------------------------------------------------------
14.2 Permanent Hazard and Other Insurance...........................................................12
------------------------------------
14.3 Coverage.......................................................................................12
--------
14.4 Additional Insurance Requirements..............................................................18
---------------------------------
ARTICLE XV.......................................................................................................13
15.1 Casualty and Condemnation......................................................................13
-------------------------
15.2 Environmental Matters..........................................................................14
---------------------
15.3 Notice of Environmental Matters................................................................15
-------------------------------
ARTICLE XVI......................................................................................................15
16.1 Termination Upon Certain Events................................................................15
-------------------------------
16.2 Procedures.....................................................................................15
----------
ARTICLE XVII.....................................................................................................16
17.1 Lease Events of Default........................................................................16
-----------------------
17.2 Surrender of Possession........................................................................18
-----------------------
17.3 Reletting......................................................................................18
---------
17.4 Damages........................................................................................18
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17.5 Power of Sale..................................................................................19
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17.6 Final Liquidated Damages.......................................................................19
------------------------
17.7 Environmental Costs............................................................................19
-------------------
17.8 Waiver of Certain Rights.......................................................................20
------------------------
17.9 Assignment of Rights Under Contracts...........................................................20
------------------------------------
17.10 Remedies Cumulative............................................................................20
-------------------
17.11 Lessee's Right to Cure by Purchase of All Properties...........................................20
----------------------------------------------------
ARTICLE XVIII....................................................................................................20
18.1 Lessor's Right to Cure Lessee's Lease Defaults.................................................20
----------------------------------------------
ARTICLE XIX......................................................................................................21
19.1 Provisions Relating to Lessee's Exercise of its Purchase Option................................21
---------------------------------------------------------------
19.2 No Purchase or Termination With Respect to Less than All of a Property.........................21
----------------------------------------------------------------------
ARTICLE XX.......................................................................................................21
20.1 Purchase Option, Sale Option or Walk-Away Option - General Provisions..........................21
---------------------------------------------------------------------
20.2 Lessee Purchase Option.........................................................................22
----------------------
20.3 Third Party Sale Option........................................................................22
-----------------------
20.4 Walk-Away Option...............................................................................23
----------------
ARTICLE XXI......................................................................................................23
21.1 [Intentionally Omitted]........................................................................23
ARTICLE XXII.....................................................................................................24
22.1 Sale Procedure.................................................................................24
--------------
22.2 Application of Proceeds of Sale................................................................26
-------------------------------
22.3 Indemnity for Excessive Wear...................................................................26
----------------------------
22.4 Appraisal Procedure............................................................................36
-------------------
22.5 Certain Obligations Continue..................................................................37
----------------------------
ARTICLE XXIII....................................................................................................27
23.1 Holding Over...................................................................................27
------------
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ARTICLE XXIV.....................................................................................................27
24.1 Risk of Loss...................................................................................27
------------
ARTICLE XXV......................................................................................................27
25.1 Assignment.....................................................................................27
----------
25.2 Subleases......................................................................................28
---------
ARTICLE XXVI.....................................................................................................28
26.1 No Waiver......................................................................................28
---------
ARTICLE XXVII....................................................................................................28
27.1 Acceptance of Surrender........................................................................28
-----------------------
27.2 No Merger of Title.............................................................................28
------------------
ARTICLE XXVIII...................................................................................................28
28.1 [Intentionally Omitted]........................................................................28
---------------------
ARTICLE XXIX.....................................................................................................29
29.1 Notices........................................................................................29
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ARTICLE XXX......................................................................................................29
30.1 Miscellaneous..................................................................................29
-------------
30.2 Amendments and Modifications...................................................................29
----------------------------
30.3 Successors and Assigns.........................................................................29
----------------------
30.4 Headings and Table of Contents.................................................................29
------------------------------
30.5 Counterparts...................................................................................29
------------
30.6 GOVERNING LAW..................................................................................29
-------------
30.7 Calculation of Rent............................................................................30
-------------------
30.8 Memoranda of Lease and Lease Supplements.......................................................30
----------------------------------------
30.9 Allocations between the Lenders and the Holders................................................30
-----------------------------------------------
30.10 Limitations on Recourse........................................................................30
-----------------------
30.11 WAIVERS OF JURY TRIAL..........................................................................30
---------------------
30.12 Exercise of Lessor Rights......................................................................30
-------------------------
30.13 SUBMISSION TO JURISDICTION; VENUE..............................................................31
---------------------------------
30.14 USURY SAVINGS PROVISION........................................................................31
-----------------------
EXHIBITS
EXHIBIT A - Lease Supplement No. ____
EXHIBIT B - Memorandum of Lease and Lease Supplement No. ____
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LEASE AGREEMENT
THIS LEASE AGREEMENT dated as of October 19, 2000 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
this "Lease") is between FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association, having its principal office at 00 Xxxxx Xxxx Xxxxxx, Xxxx
Xxxx Xxxx, Xxxx 00000, as Owner Trustee under the Lexi Trust 2000-1, as lessor
(the "Lessor"), and LEXICON GENETICS INCORPORATED, a Delaware corporation,
having its principal place of business at 4000 Research Xxxxxx Xxxxx, Xxx
Xxxxxxxxx, Xxxxx, Xxxxxxxxxx Xxxxxx, 00000, Texas, as lessee (the "Lessee").
W I T N E S S E T H:
A. WHEREAS, subject to the terms and conditions of the Participation
Agreement and the Agency Agreement, Lessor will (i) purchase or ground lease
various parcels of real property, some of which will (or may) have existing
Improvements thereon, from one (1) or more third parties designated by Lessee
and (ii) fund the acquisition, installation, testing, use, development,
construction, operation, maintenance, repair, refurbishment and restoration of
the Properties by the Construction Agent; and
B. WHEREAS, the Basic Term shall commence with respect to each Property
upon the Property Closing Date with respect thereto; provided, Basic Rent with
respect thereto shall not be payable until the applicable Rent Commencement
Date; and
C. WHEREAS, Lessor desires to lease to Lessee, and Lessee desires to
lease from Lessor, each Property;
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
1.1 DEFINITIONS.
For purposes of this Lease, capitalized terms used in this
Lease and not otherwise defined herein shall have the meanings assigned to them
in Appendix A to that certain Participation Agreement dated as of October 19,
2000 (as amended, modified, extended, supplemented, restated and/or replaced
from time to time in accordance with the applicable provisions thereof, the
"Participation Agreement") among Lessee, Lessor, the various banks and other
lending institutions which are parties thereto from time to time, as the
Holders, the various banks and other lending institutions which are parties
thereto from time to time, as the Lenders, and Bank of America, N.A., as agent
for the Lenders and respecting the Security Documents, as the agent for the
Secured Parties. Unless otherwise indicated, references in this Lease to
articles, sections, paragraphs, clauses, appendices, schedules and exhibits are
to the same contained in this Lease.
1.2 INTERPRETATION.
The rules of usage set forth in Appendix A to the Participation
Agreement shall apply to this Lease.
ARTICLE II
2.1 PROPERTY.
Subject to the terms and conditions hereinafter set forth and
contained in the respective Lease Supplement relating to each Property, Lessor
hereby leases to Lessee and Lessee hereby leases from Lessor, each Property.
212
2.2 LEASE TERM.
The basic term of this Lease with respect to each Property (the "Basic
Term") shall begin upon the Property Closing Date for such Property (in each
case the "Basic Term Commencement Date") and shall end on the sixth annual
anniversary of the Initial Closing Date (the "Basic Term Expiration Date"),
unless the Basic Term is earlier terminated or the term of this Lease is renewed
(as described below) in accordance with the provisions of this Lease.
Notwithstanding the foregoing, Lessee shall not be obligated to pay Basic Rent
until the Rent Commencement Date with respect to such Property.
To the extent no Lease Default or Lease Event of Default has occurred
and is continuing, and if, at least one hundred twenty (120) days prior to the
Basic Term Expiration Date or such Renewal Term, as applicable, Lessee has (a)
not provided written notice to Lessor of its determination to exercise its
purchase option, sale option or walk-away option under Article XX hereof and (b)
provided the Agent with a written request for extension, the term of this Lease
for all Properties may, in the sole and absolute discretion of the Lenders and
the Holders, be extended one (1) additional term of one (1) year's duration from
the Basic Term Expiration Date or such Renewal Term, as applicable, (each, a
"Renewal Term"); provided, that (i) the initial request for extension may not be
made earlier than the fifth anniversary of the Initial Closing Date and (ii) no
more than seven (7) Renewal Terms may be granted.
2.3 TITLE.
Each Property is leased to Lessee without any representation or
warranty, express or implied, by Lessor and subject to the rights of parties in
possession (if any), the existing state of title (including without limitation
the Permitted Liens) and all applicable Legal Requirements. Lessee shall in no
event have any recourse against Lessor for any defect in Lessor's title to any
Property or any interest of Lessee therein other than for Lessor Liens.
2.4 LEASE SUPPLEMENTS.
On or prior to each Basic Term Commencement Date, Lessee and Lessor
shall each execute and deliver a Lease Supplement for the Property to be leased
effective as of such Basic Term Commencement Date in substantially the form of
Exhibit A hereto.
ARTICLE III
3.1 RENT.
(a) Lessee shall pay Basic Rent in arrears on each
Payment Date, and on any date on which this Lease shall terminate with
respect to any or all Properties during the Term; provided, however,
with respect to each individual Property Lessee shall have no
obligation to pay Basic Rent with respect to such Property until the
Rent Commencement Date with respect to such Property (notwithstanding
that Basic Rent for such Property shall accrue from and including the
Scheduled Interest Payment Date immediately preceding such Rent
Commencement Date).
(b) Basic Rent shall be due and payable in lawful money
of the United States and shall be paid by wire transfer of immediately
available funds to the Agent on the due date therefor (or within the
applicable grace period) to such account or accounts at such bank or
banks as Lessor shall from time to time direct.
(c) Lessee's inability or failure to take possession of
all or any portion of any Property when delivered by Lessor, whether or
not attributable to any act or omission of Lessor, the Construction
Agent, Lessee or any other Person or for any other reason whatsoever,
shall not delay or otherwise affect Lessee's obligation to pay Rent for
such Property in accordance with the terms of this Lease.
(d) Lessee shall make all payments of Rent prior to 12:00
Noon, Austin, Texas time, on the applicable date for payment of such
amount.
2
213
3.2 PAYMENT OF BASIC RENT.
Basic Rent shall be paid absolutely net to Lessor or its designee, so
that this Lease shall yield to Lessor the full amount thereof, without setoff,
deduction or reduction.
3.3 SUPPLEMENTAL RENT.
Lessee shall pay to the Person entitled thereto any and all
Supplemental Rent when and as the same shall become due and payable, and if
Lessee fails to pay any Supplemental Rent within five (5) days after the same is
due to any Financing Party or within ten (10) Business Days after the same is
due to any Person other than a Financing Party, Lessor shall have all rights,
powers and remedies provided for herein or by law or equity or otherwise in the
case of nonpayment of Basic Rent. All such payments of Supplemental Rent shall
be in the full amount thereof, without setoff, deduction or reduction. Lessee
shall pay to the appropriate Person, as Supplemental Rent due and owing to such
Person, among other things, on demand, (a) any and all payment obligations
(except for amounts payable as Basic Rent) owing from time to time under the
Operative Agreements by any Person to the Agent, any Lender, any Holder or any
other Person, (b) interest at the applicable Overdue Rate on any installment of
Basic Rent not paid when due (subject to the applicable grace period) for the
period for which the same shall be overdue and on any payment of Supplemental
Rent not paid when due or demanded by the appropriate Person (subject to any
applicable grace period) for the period from the due date or the date of any
such demand, as the case may be, until the same shall be paid and (c) amounts
referenced as Supplemental Rent obligations pursuant to Section 8.3 of the
Participation Agreement. It shall be an additional Supplemental Rent obligation
of Lessee to pay to the appropriate Person all rent and other amounts when such
become due and owing from time to time under each Ground Lease and without the
necessity of any notice from Lessor with regard thereto. The expiration or other
termination of Lessee's obligations to pay Basic Rent hereunder shall not limit
or modify the obligations of Lessee with respect to Supplemental Rent. Unless
expressly provided otherwise in this Lease, in the event of any failure on the
part of Lessee to pay and discharge any Supplemental Rent as and when due,
Lessee shall also promptly pay and discharge any fine, penalty, interest or cost
which may be assessed or added for nonpayment or late payment of such
Supplemental Rent, all of which shall also constitute Supplemental Rent.
3.4 PERFORMANCE ON A NON-BUSINESS DAY.
If any Basic Rent is required hereunder on a day that is not a Business
Day, then such Basic Rent shall be due on the corresponding Scheduled Interest
Payment Date, or, to the extent such Basic Rent is not due on a Scheduled
Interest Payment Date, then on the next succeeding Business Day. If any
Supplemental Rent is required hereunder on a day that is not a Business Day,
then such Supplemental Rent shall be due on the next succeeding Business Day.
3.5 RENT PAYMENT PROVISIONS.
Lessee shall make payment of all Basic Rent and Supplemental Rent when
due (subject to the applicable grace periods) regardless of whether any of the
Operative Agreements pursuant to which same is calculated and is owing shall
have been rejected, avoided or disavowed in any bankruptcy or insolvency
proceeding involving any of the parties to any of the Operative Agreements. Such
provisions of such Operative Agreements and their related definitions are
incorporated herein by reference and shall survive any termination, amendment or
rejection of any such Operative Agreements.
ARTICLE IV
4.1 TAXES; UTILITY CHARGES.
Lessee shall pay or cause to be paid all Impositions with respect to
the Properties and/or the use, occupancy, operation, repair, access, maintenance
or operation thereof and all charges for electricity, power, gas, oil, water,
telephone, sanitary sewer service and all other rents, utilities and operating
expenses of any kind or type used in or on any Property and related real
property during the Term. Upon Lessor's request, Lessee shall provide from
3
214
time to time Lessor with evidence of all such payments referenced in the
foregoing sentence. Lessee shall be entitled to receive any credit or refund
with respect to any Imposition or utility charge paid by Lessee. Unless an Event
of Default shall have occurred and be continuing, the amount of any credit or
refund received by Lessor on account of any Imposition or utility charge paid by
Lessee, net of the costs and expenses incurred by Lessor in obtaining such
credit or refund, shall be promptly paid over to Lessee. All charges for
Impositions or utilities imposed with respect to any Property for a period
during which this Lease expires or terminates shall be adjusted and prorated on
a daily basis between Lessor and Lessee, and each party shall pay or reimburse
the other for such party's pro rata share thereof.
ARTICLE V
5.1 QUIET ENJOYMENT.
Subject to the rights of Lessor contained in Sections 17.2, 17.3 and
20.3 and the other terms of this Lease and the other Operative Agreements and so
long as no Event of Default shall have occurred and be continuing, Lessee shall
peaceably and quietly have, hold and enjoy each Property for the applicable
Term, free of any claim or other action by Lessor or anyone rightfully claiming
by, through or under Lessor (other than Lessee) with respect to any matters
arising from and after the applicable Basic Term Commencement Date.
ARTICLE VI
6.1 NET LEASE.
This Lease shall constitute a net lease, and the obligations of Lessee
hereunder are absolute and unconditional. Lessee shall pay all operating
expenses arising out of the use, operation and/or occupancy of each Property.
Any present or future law to the contrary notwithstanding, this Lease shall not
terminate, nor shall Lessee be entitled to any abatement, suspension, deferment,
reduction, setoff, counterclaim, or defense with respect to the Rent, nor shall
the obligations of Lessee hereunder be affected (except as expressly herein
permitted and by performance of the obligations in connection therewith) for any
reason whatsoever, including without limitation by reason of: (a) any damage to
or destruction of any Property or any part thereof; (b) any taking of any
Property or any part thereof or interest therein by Condemnation or otherwise;
(c) any prohibition, limitation, restriction or prevention of Lessee's use,
occupancy or enjoyment of any Property or any part thereof, or any interference
with such use, occupancy or enjoyment by any Person or for any other reason; (d)
any title defect, Lien or any matter affecting title to any Property; provided,
that the foregoing shall not relieve any Person from its responsibility to
remove any Lessor Liens attributable to it; (e) any eviction by paramount title
or otherwise; (f) any default by Lessor hereunder; (g) to the fullest extent
permitted by applicable law, any action for bankruptcy, insolvency,
reorganization, liquidation, dissolution or other proceeding relating to or
affecting the Agent, any Lender, Lessor, Lessee, any Holder or any Governmental
Authority; (h) the impossibility or illegality of performance by Lessor, Lessee
or both; (i) any action of any Governmental Authority or any other Person; (j)
Lessee's acquisition of ownership of all or part of any Property; (k) breach of
any warranty or representation with respect to any Property or any Operative
Agreement; (l) any defect in the condition, quality or fitness for use of any
Property or any part thereof; or (m) any other cause or circumstance whether
similar or dissimilar to the foregoing and whether or not Lessee shall have
notice or knowledge of any of the foregoing. The parties intend that the
obligations of Lessee hereunder shall be covenants, agreements and obligations
that are separate and independent from any obligations of Lessor hereunder and
shall continue unaffected unless such covenants, agreements and obligations
shall have been modified or terminated in accordance with an express provision
of this Lease. Lessor and Lessee acknowledge and agree that the provisions of
this Section 6.1 have been specifically reviewed and subjected to negotiation.
6.2 NO TERMINATION OR ABATEMENT.
Lessee shall remain obligated under this Lease in accordance with its
terms and shall not take any action to terminate, rescind or avoid this Lease,
notwithstanding any action for bankruptcy, insolvency, reorganization,
liquidation, dissolution, or other proceeding affecting any Person or any
Governmental Authority, or any action with respect to this Lease or any
Operative Agreement which may be taken by any trustee, receiver or liquidator of
any
4
215
Person or any Governmental Authority or by any court with respect to any
Person, or any Governmental Authority. Lessee hereby waives all right (a) to
terminate or surrender this Lease (except as permitted under the terms of the
Operative Agreements) or (b) to avail itself of any abatement, suspension,
deferment, reduction, setoff, counterclaim or defense with respect to any Rent.
Lessee shall remain obligated under this Lease in accordance with its terms and
Lessee hereby waives, to the fullest extent permitted by applicable law, any and
all rights now or hereafter conferred by statute or otherwise to modify or to
avoid strict compliance with its obligations under this Lease. Notwithstanding
any such statute or otherwise, Lessee, to the fullest extent permitted by
applicable law, shall be bound by all of the terms and conditions contained in
this Lease.
ARTICLE VII
7.1 OWNERSHIP OF THE PROPERTIES.
(a) Lessor and Lessee intend that for federal and all
state and local income tax purposes, bankruptcy purposes, regulatory
purposes (other than for purposes of Regulation S-X under the
Securities Act), commercial law and real estate purposes and all other
purposes (other than for financial reporting and accounting purposes)
(A) this Lease will be treated as a secured financing arrangement and
(B) Lessee will be treated as the owner of the Properties and will be
entitled to all tax benefits ordinarily available to owners of property
similar to the Properties for such tax purposes. Notwithstanding the
foregoing, neither party hereto has made, or shall be deemed to have
made, any representation or warranty as to the availability of any of
the foregoing treatments under applicable accounting rules, tax,
bankruptcy, regulatory, commercial or real estate law or under any
other set of rules. Lessee shall claim the cost recovery deductions
associated with each Property, and Lessor shall not, to the extent not
prohibited by Law, take on its tax return a position inconsistent with
Lessee's claim of such deductions.
(b) For all purposes described in Section 7.1(a), Lessor
and Lessee intend this Lease to constitute a finance lease and not a
true lease. In order to secure the obligations of Lessee now existing
or hereafter arising under any and all Operative Agreements, Lessee
hereby (i) conveys, grants, assigns, transfers, hypothecates, mortgages
and sets over to Lessor, for the benefit of the Secured Parties, a
first priority security interest (but subject to the security interest
in the assets granted by Lessee in favor of the Agent in accordance
with the Security Agreement) in and lien on all right, title and
interest of Lessee (now owned or hereafter acquired) in and to all
Properties to the extent such is personal property and (ii) irrevocably
grants and conveys to Xxx Xxxxxxxx Xxxxxxx, a resident of Mecklenburg
County, North Carolina, trustee in trust for the benefit of Lessor and
the Secured Parties, and grants a lien, deed of trust and mortgage on
all right, title and interest of Lessee (now owned or hereafter
acquired) in and to all Properties to the extent such is a real
property. Lessor and Lessee further intend and agree that, for the
purpose of securing the obligations of Lessee and/or the Construction
Agent now existing or hereafter arising under the Operative Agreements,
(i) this Lease shall be a security agreement and financing statement
within the meaning of Article 9 of the Uniform Commercial Code
respecting each of the Properties and all proceeds (including without
limitation insurance proceeds thereof) to the extent such is personal
property and an irrevocable grant and conveyance of a lien, deed of
trust and mortgage on each of the Properties and all proceeds
(including without limitation insurance proceeds thereof) to the extent
such is real property; (ii) the acquisition of title by Lessor (or to
the extent applicable, a leasehold interest pursuant to a Ground Lease)
in each Property referenced in Article II constitutes a grant by Lessee
to Lessor of a security interest, lien, deed of trust and mortgage in
all of Lessee's right, title and interest in and to each Property and
all proceeds (including without limitation insurance proceeds thereof)
of the conversion, voluntary or involuntary, of the foregoing into
cash, investments, securities or other property, whether in the form of
cash, investments, securities or other property, and an assignment of
all rents, profits and income produced by each Property; and (iii)
notifications to Persons holding such property, and acknowledgments,
receipts or confirmations from financial intermediaries, bankers or
agents (as applicable) of Lessee shall be deemed to have been given for
the purpose of perfecting such lien, security interest, mortgage lien
and deed of trust under applicable law. Lessee shall promptly take such
actions as necessary (including without limitation the filing of
Uniform Commercial Code Financing Statements, Uniform Commercial Code
Fixture Filings and memoranda (or short forms) of this Lease and the
various Lease Supplements) to ensure that the lien, security interest,
mortgage lien and deed of trust in each
5
216
Property and the other items referenced above will be deemed to be a
perfected lien, security interest, mortgage lien and deed of trust of
first priority under applicable law and will be maintained as such
throughout the Term.
ARTICLE VIII
8.1 CONDITION OF THE PROPERTIES.
LESSEE ACKNOWLEDGES AND AGREES THAT IT IS LEASING EACH PROPERTY "AS-IS
WHERE-IS" WITHOUT REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR IMPLIED) BY
LESSOR (EXCEPT THAT LESSOR SHALL KEEP EACH PROPERTY FREE AND CLEAR OF LESSOR
LIENS) AND IN EACH CASE SUBJECT TO (A) THE EXISTING STATE OF TITLE, (B) THE
RIGHTS OF ANY PARTIES IN POSSESSION THEREOF (IF ANY), (C) ANY STATE OF FACTS
REGARDING ITS PHYSICAL CONDITION OR WHICH AN ACCURATE SURVEY MIGHT SHOW, (D) ALL
APPLICABLE LEGAL REQUIREMENTS AND (E) VIOLATIONS OF LEGAL REQUIREMENTS WHICH MAY
EXIST ON THE DATE HEREOF AND/OR THE DATE OF THE APPLICABLE LEASE SUPPLEMENT.
NEITHER LESSOR NOR THE AGENT NOR ANY LENDER NOR ANY HOLDER HAS MADE OR SHALL BE
DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR
IMPLIED) (EXCEPT THAT LESSOR SHALL KEEP EACH PROPERTY FREE AND CLEAR OF LESSOR
LIENS) OR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER AS TO THE TITLE,
VALUE, HABITABILITY, USE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY OR
FITNESS FOR USE OF ANY PROPERTY (OR ANY PART THEREOF), OR ANY OTHER
REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY PROPERTY (OR ANY PART THEREOF), AND NEITHER LESSOR NOR THE AGENT
NOR ANY LENDER NOR ANY HOLDER SHALL BE LIABLE FOR ANY LATENT, HIDDEN, OR PATENT
DEFECT THEREON OR THE FAILURE OF ANY PROPERTY, OR ANY PART THEREOF, TO COMPLY
WITH ANY LEGAL REQUIREMENT. LESSEE HAS OR PRIOR TO THE BASIC TERM COMMENCEMENT
DATE WILL HAVE BEEN AFFORDED FULL OPPORTUNITY TO INSPECT EACH PROPERTY AND THE
IMPROVEMENTS THEREON (IF ANY), IS OR WILL BE (INSOFAR AS LESSOR, THE AGENT, EACH
LENDER AND EACH HOLDER ARE CONCERNED) SATISFIED WITH THE RESULTS OF ITS
INSPECTIONS AND IS ENTERING INTO THIS LEASE SOLELY ON THE BASIS OF THE RESULTS
OF ITS OWN INSPECTIONS, AND ALL RISKS INCIDENT TO THE MATTERS DESCRIBED IN THE
PRECEDING SENTENCE, AS BETWEEN LESSOR, THE AGENT, THE LENDERS AND THE HOLDERS,
ON THE ONE HAND, AND LESSEE, ON THE OTHER HAND, ARE TO BE BORNE BY LESSEE.
8.2 POSSESSION AND USE OF THE PROPERTIES.
(a) At all times during the Term with respect to each
Property, such Property shall be a Permitted Facility and shall be used
by Lessee in the ordinary course of its business. Lessee shall pay, or
cause to be paid, all charges and costs required in connection with the
use of the Properties as contemplated by this Lease. Lessee shall not
commit or permit any waste of the Properties or any part thereof.
(b) The address stated in Section 29.1 of this Lease is
the principal place of business and chief executive office of Lessee
(as such terms are used in Section 9-103(3) of the Uniform Commercial
Code of any applicable jurisdiction), and Lessee will provide Lessor
with prior written notice of any change of location of its principal
place of business or chief executive office. Regarding a particular
Property, each Lease Supplement correctly identifies the initial
location of the related Equipment (if any) and Improvements (if any)
and contains an accurate legal description for the related parcel of
Land or a copy of the Ground Lease (if any). The Equipment and
Improvements respecting each particular Property will be located only
at the location identified in the applicable Lease Supplement.
(c) Lessee will not attach or incorporate any item of
Equipment to or in any other item of equipment or personal property or
to or in any real property in a manner that could give rise to the
assertion of any Lien on such item of Equipment by reason of such
attachment or the assertion of a claim that such
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item of Equipment has become a fixture and is subject to a Lien in
favor of a third party that is prior to the Liens thereon created by
the Operative Agreements.
(d) On the Basic Term Commencement Date for each
Property, Lessor and Lessee shall execute a Lease Supplement in regard
to such Property which shall contain an Equipment Schedule that has a
general description of the Equipment which shall comprise the Property,
an Improvement Schedule that has a general description of the
Improvements which shall comprise the Property and a legal description
of the Land to be leased hereunder (or in the case of any Property
subject to a Ground Lease to be subleased hereunder) as of such date.
Each Property subject to a Ground Lease shall be deemed to be ground
subleased from Lessor to Lessee as of the Basic Term Commencement Date,
and such ground sublease shall be in effect until this Lease is
terminated or expires, in each case in accordance with the terms and
provisions hereof. Lessee shall satisfy and perform all obligations
imposed on Lessor under each Ground Lease. Simultaneously with the
execution and delivery of each Lease Supplement, such Equipment,
Improvements, Land, ground subleasehold interest, all additional
Equipment and all additional Improvements which are financed under the
Operative Agreements after the Basic Term Commencement Date and the
remainder of such Property shall be deemed to have been accepted by
Lessee for all purposes of this Lease and to be subject to this Lease.
(e) At all times during the Term with respect to each
Property, Lessee will comply with all obligations under and (to the
extent no Event of Default exists and provided that such exercise will
not impair the value, utility or remaining useful life of such
Property) shall be permitted to exercise all rights and remedies under,
all operation and easement agreements and related or similar agreements
applicable to such Property.
8.3 INTEGRATED PROPERTIES.
On the Rent Commencement Date for each Property, Lessee shall, at its
sole cost and expense, cause such Property and the applicable property subject
to a Ground Lease to constitute (and for the duration of the Term shall continue
to constitute) all of the equipment, facilities, rights and other personal
property necessary or appropriate to operate, utilize, maintain and control a
Permitted Facility in a commercially reasonable manner. Lessee confirms and
agrees that the real property subject to Lease Supplement No. 1 shall constitute
all the real property that is necessary or appropriate to operate, utilize,
maintain and control all the Structures, other than for the Existing Blue
Building.
ARTICLE IX
9.1 COMPLIANCE WITH LEGAL REQUIREMENTS, INSURANCE REQUIREMENTS AND
MANUFACTURER'S SPECIFICATIONS AND STANDARDS.
Subject to the terms of Article XIII relating to permitted contests,
Lessee, at its sole cost and expense, shall (a) comply with all applicable Legal
Requirements (including without limitation all Environmental Laws) and all
Insurance Requirements relating to the Properties, (b) procure, maintain and
comply with all licenses, permits, orders, approvals, consents and other
authorizations required for the acquisition, installation, testing, use,
development, construction, operation, maintenance, repair, refurbishment and
restoration of the Properties and (c) comply with all manufacturer's
specifications and standards, including without limitation the acquisition,
installation, testing, use, development, construction, operation, maintenance,
repair, refurbishment and restoration of the Properties, whether or not
compliance therewith shall require structural or extraordinary changes in any
Property or interfere with the use and enjoyment of any Property, unless the
failure to procure, maintain and comply with such items identified in
subparagraphs (b) and (c), individually or in the aggregate, shall not have and
could not reasonably be expected to have a Material Adverse Effect. Lessor
agrees to take such actions as may be reasonably requested by Lessee in
connection with the compliance by Lessee of its obligations under this Section
9.1.
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ARTICLE X
10.1 MAINTENANCE AND REPAIR; RETURN.
(a) From and after the Rent Commencement Date for a
particular Property, Lessee, at its sole cost and expense, shall
maintain such Property in good condition, repair and working order
(ordinary wear and tear excepted) and in the repair and condition as
when originally delivered to Lessor and make all necessary repairs
thereto and replacements thereof, of every kind and nature whatsoever,
whether interior or exterior, ordinary or extraordinary, structural or
nonstructural or foreseen or unforeseen, in each case as required by
Section 9.1 and on a basis consistent with the operation and
maintenance of properties or equipment comparable in type and function
to the applicable Property, such that such Property is capable of being
immediately utilized by a third party and in compliance with standard
industry practice subject, however, to the provisions of Article XV
with respect to Casualty and Condemnation; provided, notwithstanding
the foregoing provisions of this Section 10.1(a), Lessee, at its sole
cost and expense, shall pay all such amounts referenced in or arising
pursuant to this Section 10.1(a) (including such amounts arising before
the Rent Commencement Date for a particular Property) which are
incurred as a result of the actions or inactions of any Lessee Related
Party or as a result of the use of any applicable Property by any
Lessee Related Party.
(b) Lessee shall not use or locate any component of any
Property outside of the Approved State therefor. Lessee shall not move
or relocate any component of any Property beyond the boundaries of the
Land (comprising part of such Property) described in the applicable
Lease Supplement, except for the temporary removal of Equipment and
other personal property for repair or replacement.
(c) From and after the Rent Commencement Date for a
particular Property, if any component of such Property becomes worn
out, lost, destroyed, damaged beyond repair or otherwise permanently
rendered unfit for use, Lessee, at its own expense, will within a
reasonable time replace such component with a replacement component
which is free and clear of all Liens (other than Permitted Liens and
Lessor Liens) and has a value, utility and useful life at least equal
to the component replaced (assuming the component replaced had been
maintained and repaired in accordance with the requirements of this
Lease); provided, notwithstanding the foregoing provisions of this
Section 10.1(c), Lessee, at its sole cost and expense, shall pay all
such amounts referenced in or arising pursuant to this Section 10.1(c)
(including such amounts arising before the Rent Commencement Date for a
particular Property) which are incurred as a result of the actions or
inactions of any Lessee Related Party or as a result of the use of any
applicable Property by any Lessee Related Party. All such replacement
components which are added to any Property shall immediately become the
property of (and title thereto shall vest in) Lessor and shall be
deemed incorporated in such Property and subject to the terms of this
Lease as if originally leased hereunder.
(d) Upon reasonable advance notice, Lessor and its agents
shall have the right to inspect each Property and all maintenance
records with respect thereto at any reasonable time during normal
business hours but shall, in the absence of an Event of Default, use
reasonable efforts to minimize the disruption and burden on the
business of Lessee.
(e) Lessee shall cause to be delivered to Lessor (at
Lessee's sole expense) one or more additional Appraisals (or
reappraisals of Property) as Lessor may request (i) if any one of
Lessor, the Agent, the Trust Company, any Lender or any Holder is
required pursuant to any applicable Legal Requirement to obtain such
Appraisals (or reappraisals) from and after the Rent Commencement Date
for any applicable Property or if such Appraisals (or reappraisals) are
required pursuant to any particular Legal Requirement before the Rent
Commencement Date for any applicable Property as a result of the
actions or inactions of any Lessee Related Party or as a result of the
use of any applicable Property by any Lessee Related Party or (ii) upon
the occurrence of any Event of Default.
(f) From and after the Rent Commencement Date for a
particular Property, Lessor shall under no circumstances be required
(i) to build any improvements or install any equipment on such
Property, make any repairs, replacements, alterations or renewals of
any nature or description to such Property, make any expenditure
whatsoever in connection with this Lease or maintain such Property in
any
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way or (ii) to maintain, repair or rebuild all or any part of such
Property, and Lessee waives the right to (A) require Lessor to
maintain, repair, or rebuild all or any part of such Property, or (B)
make repairs at the expense of Lessor pursuant to any Legal
Requirement, Insurance Requirement, contract, agreement, covenant,
condition or restriction at any time in effect; provided,
notwithstanding the foregoing provisions of this Section 10.1(f),
Lessee, at its sole cost and expense, shall pay all such amounts
referenced in or arising pursuant to this Section 10.1(f) (including
such amounts arising before the Rent Commencement Date for a particular
Property) which are incurred as a result of the actions or inactions of
any Lessee Related Party or as a result of the use of any applicable
Property by any Lessee Related Party.
(g) Lessee shall, upon the expiration or earlier
termination of this Lease with respect to a Property, if Lessee shall
not have exercised its Purchase Option with respect to such Property
and purchased such Property, surrender such Property (i) pursuant to
the exercise of the applicable remedies upon the occurrence of a Lease
Event of Default, to Lessor or (ii) pursuant to Article XX hereof and
the second paragraph of Section 22.1(a) hereof, to Lessor or the third
party purchaser, as the case may be, subject to Lessee's obligations
under this Lease (including without limitation the obligations of
Lessee at the time of such surrender under Sections 9.1, 10.1(a)
through (f), 10.2, 11.1, 12.1, 22.1 and 23.1).
10.2 ENVIRONMENTAL INSPECTION.
If Lessee has not given notice of exercise of its Purchase Option on
the Expiration Date pursuant to Section 20.1 or for whatever reason Lessee does
not purchase a Property in accordance with the terms of this Lease, then not
more than one hundred eighty (180) days nor less than sixty (60) days prior to
the Expiration Date, Lessee shall cause to be delivered to Lessor a Phase I
environmental site assessment recently prepared (no more than thirty (30) days
prior to the date of delivery) by an independent recognized professional
reasonably acceptable to Lessor, and in form, scope and content reasonably
satisfactory to Lessor. The cost incurred respecting such Phase I environmental
site assessment shall be paid for in accordance with the provisions set forth in
Section 20.3(b).
ARTICLE XI
11.1 MODIFICATIONS.
(a) Lessee at its sole cost and expense, at any time and
from time to time without the consent of Lessor may make modifications,
alterations, renovations, improvements and additions to any Property or
any part thereof and substitutions and replacements therefor
(collectively, "Modifications"), and Lessee shall make any and all
Modifications required to be made pursuant to all Legal Requirements,
Insurance Requirements and manufacturer's specifications and standards;
provided, that: (i) no Modification shall materially impair the value,
utility or useful life of any Property from that which existed
immediately prior to such Modification; (ii) each Modification shall be
done expeditiously and in a good and workmanlike manner; (iii) no
Modification shall adversely affect the structural integrity of any
Property; (iv) to the extent required by Section 14.2(a), Lessee shall
maintain builders' risk insurance at all times when a Modification is
in progress; (v) subject to the terms of Article XIII relating to
permitted contests, Lessee shall pay all costs and expenses and
discharge any Liens arising with respect to any Modification; (vi) each
Modification shall comply with the requirements of this Lease
(including without limitation Sections 8.2 and 10.1); and (vii) no
Improvement shall be demolished or otherwise rendered unfit for use
unless Lessee shall finance the proposed replacement Modification
outside of this lease facility; provided, further, Lessee shall not
make any Modification (unless required by any Legal Requirement) to the
extent any such Modification, individually or in the aggregate, shall
have or could reasonably be expected to have a Material Adverse Effect.
All Modifications required pursuant to Legal Requirements, Insurance
Requirements and/or manufacturer's specifications and standards and all
other Modifications that are not severable from the applicable Property
without material damage or other material loss of value shall
immediately and without further action upon their incorporation into
the applicable Property (1) become property of Lessor, (2) be subject
to this Lease and (3) be titled in the name of Lessor. Title to all
other Modifications shall vest with Lessee; provided, if Lessee fails
to remove any such Modification prior to the Expiration Date or earlier
termination of this Lease, title to such Modifications shall revert to
Lessor. Lessee, at its sole cost and expense, shall repair any damage
to any Property relating to the removal of any
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Modification. Lessee shall not remove or attempt to remove any
Modification titled to Lessor from any Property. Each Ground Lease for
a Property shall expressly provide for the provisions of this
paragraph. Lessee, at its own cost and expense, will pay for the
repairs of any damage to any Property caused by the removal or
attempted removal of any Modification.
(b) The construction process provided for in the Agency
Agreement is acknowledged by Lessor to be consistent with and in
compliance with the terms and provisions of this Article XI.
11.2 OTHER PROPERTY.
During the Term, Lessee may from time to time own or hold under lease
from Persons other than Lessor, furniture, trade fixtures, equipment and other
tangible personal property located on or about any Property that is not subject
to this Lease and does not constitute a portion of the property covered by this
Lease. Lessor shall from time to time during the Term, upon the reasonable
request of the Lessee, and at the cost and expense of Lessee (but in any event
only after the review and consent of Lessor and the Agent), which request shall
be accompanied by such supporting information and documents as Lessor may
reasonably require (including without limitation that the particular items of
furniture, trade fixtures and equipment in question (x) are not Modifications
specified as the property of Lessor pursuant to Section 11.1(a) and (y) are not
required to operate the particular Property as a Permitted Facility in a
commercially reasonable manner), promptly acknowledge in writing to Lessee or
other Persons designated by Lessee that the particular items of furniture, trade
fixtures and equipment in question are not part of any Property and that,
subject to the rights of Lessor and the Financing Parties hereunder and under
any other Operative Agreements, Lessor does not own or have any other right or
interest in or to such furniture, trade fixtures and equipment.
ARTICLE XII
12.1 WARRANTY OF TITLE.
(a) Lessee hereby acknowledges and shall cause title in
each Property (including without limitation all Equipment, all
Improvements, all replacement components to each Property and all
Modifications) immediately and without further action to vest in and
become the property of Lessor subject to any Permitted Liens affecting
same and to be subject to the terms of this Lease (provided, respecting
each Property subject to a Ground Lease, Lessor's interest therein is
acknowledged to be a leasehold interest pursuant to such Ground Lease)
from and after the date hereof or such date of incorporation into any
Property. Lessee agrees that, subject to the terms of Article XIII
relating to permitted contests, Lessee shall not directly or indirectly
create or allow to remain, and shall promptly discharge at its sole
cost and expense, any Lien, defect, attachment, levy, title retention
agreement or claim upon any Property, any component thereof or any
Modifications or any Lien, attachment, levy or claim with respect to
the Rent or with respect to any amounts held by Lessor, the Agent, any
Lender or any Holder pursuant to any Operative Agreement, other than
Permitted Liens and Lessor Liens. Lessee shall promptly notify Lessor
in the event it receives actual knowledge that a Lien other than a
Permitted Lien or Lessor Lien has occurred with respect to a Property,
the Rent or any other such amounts, and Lessee represents and warrants
to, and covenants with, Lessor that the Liens in favor of Lessor and/or
the Agent created by the Operative Agreements are (and until the
Financing Parties under the Operative Agreements have been paid in full
shall remain) first priority perfected Liens subject only to Permitted
Liens and Lessor Liens. At all times subsequent to the Basic Term
Commencement Date respecting a Property, Lessee shall (i) cause a
valid, perfected, first priority Lien on each applicable Property to be
in place in favor of the Agent (for the benefit of the Secured Parties)
and (ii) file, or cause to be filed, all necessary documents under the
applicable real property law and Article 9 of the Uniform Commercial
Code to perfect such title and Liens.
(b) Nothing contained in this Lease shall be construed as
constituting the consent or request of Lessor, expressed or implied, to
or for the performance by any contractor, mechanic, laborer,
materialman, supplier or vendor of any labor or services or for the
furnishing of any materials for any construction, alteration, addition,
repair or demolition of or to any Property or any part thereof. NOTICE
IS HEREBY GIVEN THAT LESSOR IS NOT AND SHALL NOT BE LIABLE FOR ANY
LABOR,
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SERVICES OR MATERIALS FURNISHED OR TO BE FURNISHED TO LESSEE, OR TO
ANYONE HOLDING A PROPERTY OR ANY PART THEREOF THROUGH OR UNDER LESSEE,
AND THAT NO MECHANIC'S OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR
MATERIALS SHALL ATTACH TO OR AFFECT THE INTEREST OF LESSOR IN AND TO
ANY PROPERTY.
ARTICLE XIII
13.1 PERMITTED CONTESTS OTHER THAN IN RESPECT OF INDEMNITIES.
Except to the extent otherwise provided for in Section 11 of the
Participation Agreement, Lessee, on its own or on Lessor's behalf but at
Lessee's sole cost and expense, may contest, by appropriate administrative or
judicial proceedings conducted in good faith and with due diligence, the amount,
validity or application, in whole or in part, of any Legal Requirement,
Imposition or utility charge payable pursuant to Section 4.1 or any Lien,
attachment, levy, encumbrance or encroachment, and Lessor agrees not to pay,
settle or otherwise compromise any such item, provided, that (a) the
commencement and continuation of such proceedings shall suspend the collection
of any such contested amount from, and suspend the enforcement thereof against,
the applicable Properties, Lessor, each Holder, the Agent and each Lender; (b)
there shall not be imposed a Lien (other than Permitted Liens and Lessor Liens)
on any Property and no part of any Property nor any Rent would be in any danger
of being sold, forfeited, lost or deferred; (c) at no time during the permitted
contest shall there be a risk of the imposition of criminal liability or
material civil liability on Lessor, any Holder, the Agent or any Lender for
failure to comply therewith; and (d) in the event that, at any time, there shall
be a material risk of extending the application of such item beyond the end of
the Term, then Lessee shall deliver to Lessor an Officer's Certificate
certifying as to the matters set forth in clauses (a), (b) and (c) of this
Section 13.1. Lessor, at Lessee's sole cost and expense, shall execute and
deliver to Lessee such authorizations and other documents as may reasonably be
required in connection with any such contest and, if reasonably requested by
Lessee, shall join as a party therein at Lessee's sole cost and expense.
13.2 IMPOSITIONS, UTILITY CHARGES, OTHER MATTERS; COMPLIANCE WITH
LEGAL REQUIREMENTS.
Except with respect to Impositions, Legal Requirements, utility charges
and such other matters referenced in Section 13.1 which are the subject of
ongoing proceedings contesting the same in a manner consistent with the
requirements of Section 13.1, Lessee shall cause (a) all Impositions, utility
charges and such other matters to be timely paid, settled or compromised, as
appropriate, with respect to each Property and (b) each Property to comply with
all applicable Legal Requirements.
ARTICLE XIV
14.1 COMMERCIAL LIABILITY AND WORKERS' COMPENSATION INSURANCE.
During the Term for each Property, Lessee shall procure and carry, at
Lessee's sole cost and expense, commercial general liability and umbrella
liability insurance for claims for injuries or death sustained by persons or
damage to property while on such Property or respecting the Equipment and such
other public liability coverages as are then customarily carried by similarly
situated companies conducting business similar to that conducted by Lessee. Such
insurance shall be on terms and in amounts that are no less favorable than
insurance maintained by Lessee with respect to similar properties and equipment
that it owns and are then carried by similarly situated companies conducting
business similar to that conducted by Lessee, and in no event shall have a
minimum combined single limit per occurrence coverage (i) for commercial general
liability of less than $1,000,000 and (ii) for umbrella liability of less than
$5,000,000. The policies shall name Lessee as the insured and shall be endorsed
to name Lessor, the Holders, the Agent and the Lenders as additional insureds.
The policies shall also specifically provide that such policies shall be
considered primary insurance which shall apply to any loss or claim before any
contribution by any insurance which Lessor, any Holder, the Agent or any Lender
may have in force. In the operation of the Properties, Lessee shall comply with
applicable workers' compensation laws and protect Lessor, each Holder, the Agent
and each Lender against any liability under such laws.
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14.2 PERMANENT HAZARD AND OTHER INSURANCE.
(a) During the Term for each Property, Lessee shall keep
such Property insured against all risk of physical loss or damage by
fire and all other risks and shall maintain builders' risk insurance
during construction of any Improvements or Modifications in each case
in amounts no less than the then current replacement value of such
Property (assuming that such Property was in the condition required by
the terms of this Lease immediately prior to such loss) and on terms
that (i) are no less favorable than insurance covering other similar
properties owned by Lessee and (ii) are then carried by similarly
situated companies conducting business similar to that conducted by
Lessee. The policies shall name Lessee as the insured and shall be
endorsed to name Lessor and the Agent (on behalf of the Secured
Parties) as a named additional insured and loss payee; provided, so
long as no Event of Default exists, any loss payable under the
insurance policies required by this Section for losses up to $1,000,000
will be paid to Lessee.
(b) If, during the Term with respect to a Property the
area in which such Property is located is designated a "flood-prone"
area pursuant to the Flood Disaster Protection Act of 1973, or any
amendments or supplements thereto or is in a zone designated A or V,
then Lessee shall comply with the National Flood Insurance Program as
set forth in the Flood Disaster Protection Act of 1973. In addition,
Lessee will fully comply with the requirements of the National Flood
Insurance Act of 1968 and the Flood Disaster Protection Act of 1973, as
each may be amended from time to time, and with any other Legal
Requirement, concerning flood insurance to the extent that it applies
to any such Property. During the Term, Lessee shall, in the operation
and use of each Property, maintain workers' compensation insurance
consistent with that carried by similarly situated companies conducting
business similar to that conducted by Lessee and containing minimum
liability limits of no less than $100,000. In the operation of each
Property, Lessee shall comply with workers' compensation laws
applicable to Lessee, and protect Lessor, each Holder, the Agent and
each Lender against any liability under such laws.
14.3 COVERAGE.
(a) As of the date of this Lease and annually thereafter
during the Term, Lessee shall furnish the Agent (on behalf of Lessor
and the other beneficiaries of such insurance coverage) with
certificates prepared by the insurers or insurance broker of Lessee
showing the insurance required under Sections 14.1 and 14.2 to be in
effect, naming (to the extent of their respective interests) Lessor,
the Holders, the Agent and the Lenders as additional insureds and loss
payees and evidencing the other requirements of this Article XIV. All
such insurance shall be at the cost and expense of Lessee and provided
by nationally recognized, financially sound insurance companies having
an A or better rating by A.M. Best's Key Rating Guide. Lessee shall
cause such certificates to include a provision for thirty (30) days'
advance written notice by the insurer to the Agent (on behalf of Lessor
and the other beneficiaries of such insurance coverage) in the event of
cancellation or material alteration of such insurance. If an Event of
Default has occurred and is continuing and the Agent (on behalf of
Lessor and the other beneficiaries of such insurance coverage) so
requests, Lessee shall deliver to the Agent (on behalf of Lessor and
the other beneficiaries of such insurance coverage) copies of all
insurance policies required by Sections 14.1 and 14.2.
(b) Lessee agrees that the insurance policy or policies
required by Sections 14.1, 14.2(a) and 14.2(b) shall include an
appropriate clause pursuant to which any such policy shall provide that
it will not be invalidated should Lessee or any Contractor, as the case
may be, waive, at any time, any or all rights of recovery against any
party for losses covered by such policy or due to any breach of
warranty, fraud, action, inaction or misrepresentation by Lessee or any
Person acting on behalf of Lessee. Lessee hereby waives any and all
such rights against Lessor, the Holders, the Agent and the Lenders to
the extent of payments made to any such Person under any such policy.
(c) Neither Lessor nor Lessee shall carry separate
insurance concurrent in kind or form or contributing in the event of
loss with any insurance required under this Article XIV, except that
Lessor may carry separate liability insurance at Lessor's sole cost so
long as (i) Lessee's insurance is designated as primary and in no event
excess or contributory to any insurance Lessor may have in force which
would apply to a loss covered under Lessee's policy and (ii) each such
insurance policy will not cause Lessee's insurance required under this
Article XIV to be subject to a coinsurance exception of any kind.
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(d) Lessee shall pay as they become due all premiums for
the insurance required by Section 14.1 and Section 14.2, shall renew or
replace each policy prior to the expiration date thereof or otherwise
maintain the coverage required by such Sections without any lapse in
coverage.
(e) During the Construction Period (but in no event past
the Construction Period Termination Date), the insurance coverage
required herein shall be satisfied to the extent Lessee or the
Construction Agent causes such coverage to be maintained by the general
contractor hired to perform the construction work for the Property in
question and such coverage otherwise complies with the requirements
hereof. Also, during the Construction Period no self-insurance amounts
shall be maintained or permitted with respect to such required
coverage.
14.4 ADDITIONAL INSURANCE REQUIREMENTS.
Not in limitation of any provision of the Operative Agreements but in
addition thereto, Lessee shall obtain any and all additional insurance policies
(including without limitation with respect to Condemnation) with regard to the
Properties or otherwise with respect to the transactions contemplated by the
Operative Agreements as requested from time to time by Lessor.
ARTICLE XV
15.1 CASUALTY AND CONDEMNATION.
(a) Subject to the provisions of the Agency Agreement and
this Article XV and Article XVI (in the event Lessee delivers, or is
obligated to deliver or is deemed to have delivered, a Termination
Notice), and prior to the occurrence and continuation of a Default or
an Event of Default, Lessee shall be entitled to receive (and Lessor
hereby irrevocably assigns to Lessee all of Lessor's right, title and
interest in) any condemnation proceeds, award, compensation or
insurance proceeds under Sections 14.2(a) or 14.2(b) hereof to which
Lessee or Lessor may become entitled by reason of their respective
interests in a Property (i) if all or a portion of such Property is
damaged or destroyed in whole or in part by a Casualty or (ii) if the
use, access, occupancy, easement rights or title to such Property or
any part thereof is the subject of a Condemnation; provided, however,
if a Default or an Event of Default shall have occurred and be
continuing or if such award, compensation or insurance proceeds shall
exceed $1,000,000, then such award, compensation or insurance proceeds
shall be paid directly to Lessor or, if received by Lessee, shall be
held in trust for Lessor, and shall be paid over by Lessee to Lessor
and held in accordance with the terms of this Article XV. All amounts
held by Lessor hereunder from time to time on account of any award,
compensation or insurance proceeds either paid directly to Lessor or
turned over to Lessor (x) (respecting Properties for which the Rent
Commencement Date has occurred as of the given date) shall be held as
security for the performance of Lessee's obligations hereunder and
under the other Operative Agreements and when all such obligations of
Lessee with respect to such matters (and all other obligations of
Lessee which should have been satisfied pursuant to the Operative
Agreements as of such date) have been satisfied, all amounts so held by
Lessor shall be paid over to Lessee and (y) (respecting Properties for
which the Rent Commencement Date has not occurred as of the given date)
shall be available to fund additional Work on the applicable Property
if, and to the extent, the conditions precedent set forth in Section
5.4 of the Participation Agreement are satisfied or waived.
(b) Lessee may appear in any proceeding or action to
negotiate, prosecute, adjust or appeal any claim for any award,
compensation or insurance payment on account of any such Casualty or
Condemnation and shall pay all expenses thereof. At Lessee's reasonable
request, and at Lessee's sole cost and expense, Lessor and the Agent
shall participate in any such proceeding, action, negotiation,
prosecution or adjustment. Lessor and Lessee agree that this Lease
shall control the rights of Lessor and Lessee in and to any such award,
compensation or insurance payment.
(c) If Lessee shall receive notice of a Casualty or a
Condemnation of a Property or any interest therein where damage to the
affected Property (when aggregated with damage to the other
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Properties at any time from and after the Initial Closing Date) is
estimated to equal or exceed fifty percent (50%) of the aggregate
Property Cost of all Properties, Lessee shall give notice thereof to
Lessor promptly after Lessee's receipt of such notice. In the event
such a Casualty or Condemnation occurs (regardless of whether Lessee
gives notice thereof), then Lessee shall be deemed to have delivered a
Termination Notice to Lessor and the provisions of Sections 16.1 and
16.2 shall apply.
(d) In the event of a Casualty or a Condemnation
(regardless of whether notice thereof must be given pursuant to
paragraph (c)), this Lease shall terminate with respect to all
Properties in accordance with Section 16.1 if Lessee, within thirty
(30) days after such occurrence, delivers to Lessor a notice to such
effect.
(e) If pursuant to this Section 15.1 this Lease shall
continue in full force and effect following a Casualty or Condemnation
with respect to the affected Property, Lessee shall, at its sole cost
and expense (subject to reimbursement in accordance with Section
15.1(a)) promptly and diligently repair any damage to the applicable
Property caused by such Casualty or Condemnation in conformity with the
requirements of Sections 10.1 and 11.1, using the as-built Plans and
Specifications or manufacturer's specifications for the applicable
Improvements, Equipment or other components of the applicable Property
(as modified to give effect to any subsequent Modifications, any
Condemnation affecting the applicable Property and all applicable Legal
Requirements), so as to restore the applicable Property to the same or
a greater remaining economic value, useful life, utility, condition,
operation and function as existed immediately prior to such Casualty or
Condemnation (assuming all maintenance and repair standards have been
satisfied). In such event, title to the applicable Property shall
remain with Lessor.
(f) In no event shall a Casualty or Condemnation affect
Lessee's obligations to pay Rent pursuant to Article III.
(g) Notwithstanding anything to the contrary set forth in
Section 15.1(a) or Section 15.1(e), if during the Term with respect to
a Property a Casualty occurs with respect to such Property or Lessee
receives notice of a Condemnation with respect to such Property, and
following such Casualty or Condemnation, the applicable Property cannot
reasonably be restored, repaired or replaced on or before the day one
hundred eighty (180) days prior to the Expiration Date or the date
twelve (12) months after the occurrence of such Casualty or
Condemnation (if such Casualty or Condemnation occurs during the Term)
to the same or a greater remaining economic value, useful life,
utility, condition, operation and function as existed immediately prior
to such Casualty or Condemnation (assuming all maintenance and repair
standards have been satisfied) or on or before such day such Property
is not in fact so restored, repaired or replaced, then Lessee shall be
required to exercise its Purchase Option for all Properties on the next
Payment Date (notwithstanding the limits on such exercise contained in
Section 20.2) and pay Lessor the Termination Value for all Properties;
provided, if any Default or Event of Default has occurred and is
continuing, Lessee shall also promptly (and in any event within three
(3) Business Days) pay Lessor any award, compensation or insurance
proceeds received on account of any Casualty or Condemnation with
respect to any Property; provided, further, that if no Default or Event
of Default has occurred and is continuing, any Excess Proceeds shall be
paid to Lessee. If a Default or an Event of Default has occurred and is
continuing and any Loans, Holder Advances or other amounts are owing
with respect thereto, then any Excess Proceeds (to the extent of any
such Loans, Holder Advances or other amounts owing with respect
thereto) shall be paid to Lessor, held as security for the performance
of Lessee's obligations hereunder and under the other Operative
Agreements and applied to such obligations upon the exercise of
remedies in connection with the occurrence of an Event of Default, with
the remainder of such Excess Proceeds in excess of such Loans, Holder
Advances and other amounts owing with respect thereto being distributed
to the Lessee.
15.2 ENVIRONMENTAL MATTERS.
Promptly upon Lessee's actual knowledge (and in any event within thirty
(30) days of Lessee having acquired such actual knowledge) of the presence of
Hazardous Substances in any portion of any Property or Properties in
concentrations and conditions that constitute an Environmental Violation and
which, in the reasonable opinion of Lessee, the cost to undertake any legally
required response, clean up, remedial or other action will or
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might result in a cost to Lessee of more than $25,000, Lessee shall notify
Lessor in writing of such condition. In the event of any Environmental Violation
(regardless of whether notice thereof must be given), Lessee shall, not later
than thirty (30) days after Lessee has actual knowledge of such Environmental
Violation, either (a) deliver to Lessor a Termination Notice with respect to all
Properties pursuant to Section 16.1, if applicable, or (b) at Lessee's sole cost
and expense, promptly and diligently undertake and diligently complete any
response, clean up, remedial or other action (including without limitation the
pursuit by Lessee of appropriate action against any off-site or third party
source for contamination) necessary to remove, cleanup or remediate the
Environmental Violation in accordance with all Environmental Laws.
Any such undertaking shall be timely completed in accordance with
prudent industry standards. If Lessee does not deliver a Termination Notice with
respect to all Properties pursuant to Section 16.1, Lessee shall, upon
completion of remedial action by Lessee, cause to be prepared by a reputable
environmental consultant acceptable to Lessor a report describing the
Environmental Violation and the actions taken by Lessee (or its agents) in
response to such Environmental Violation, and a statement by the consultant that
the Environmental Violation has been remedied in full compliance with applicable
Environmental Law. The Lessee shall also comply with its obligations regarding
the delivery of environmental site assessments in connection with its exercising
of the Sale Option (as set forth in Section 20.3) or its election of the
Walk-Away Option (as set forth in Section 20.4).
15.3 NOTICE OF ENVIRONMENTAL MATTERS.
Promptly, but in any event within five (5) Business Days from the date
Lessee has actual knowledge thereof, Lessee shall provide to Lessor written
notice of any pending or threatened claim, action or proceeding involving any
Environmental Law or any Release on or in connection with any Property or
Properties. All such notices shall describe in reasonable detail the nature of
the claim, action or proceeding and Lessee's proposed response thereto. In
addition, Lessee shall provide to Lessor, within five (5) Business Days of
receipt, copies of all material written communications with any Governmental
Authority relating to any Environmental Law in connection with any Property.
Lessee shall also promptly provide such detailed reports of any such material
environmental claims as may reasonably be requested by Lessor.
ARTICLE XVI
16.1 TERMINATION UPON CERTAIN EVENTS.
If Lessee has delivered, or is deemed to have delivered, written notice
of a termination of this Lease with respect to one or more of the Properties to
Lessor in the form described in Section 16.2(a) (a "Termination Notice")
pursuant to the provisions of this Lease, then following the applicable
Casualty, Condemnation or Environmental Violation, this Lease shall terminate
with respect to all the Properties on the applicable Termination Date.
16.2 PROCEDURES.
(a) A Termination Notice shall contain: (i) notice of
termination of this Lease with respect to all the Properties on a
Payment Date not more than sixty (60) days after Lessor's receipt of
such Termination Notice (the "Termination Date"); and (ii) a binding
and irrevocable agreement of Lessee to pay the Termination Value for
all the Properties and purchase all the Properties on such Termination
Date.
(b) On each Termination Date, Lessee shall pay to Lessor
the Termination Value for all the Properties, and Lessor shall convey
all the Properties to Lessee (or Lessee's designee), all in accordance
with Section 20.2.
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ARTICLE XVII
17.1 LEASE EVENTS OF DEFAULT.
If any one (1) or more of the following events (each a "Lease Event of
Default") shall occur:
(a) Lessee shall fail to make payment of (i) any Basic
Rent (except as set forth in clause (ii)) within three (3) days after
the same has become due and payable or (ii) any Termination Value or
Maximum Amount, on the date any such payment is due and payable, or any
payment of Basic Rent or Supplemental Rent due on the due date of any
such payment of Termination Value or Maximum Amount, or (iii) any
amount due on the Expiration Date on such date;
(b) Lessee shall fail to make payment of any Supplemental
Rent (other than Supplemental Rent referred to in Section 17.1(a)(ii))
which has become due and payable within five (5) days after receipt of
notice that such payment is due to any Financing Party or within ten
(10) Business Days after receipt of notice that such payment is due to
any Person other than a Financing Party;
(c) Lessee shall fail to maintain insurance as required
by Article XIV of this Lease or to deliver any requisite annual
certificate with respect thereto within ten (10) days of the date such
certificate is due under the terms hereof;
(d) (i) Lessee shall fail to observe or perform any term,
covenant, obligation or condition of Lessee under this Lease or any
other Operative Agreement to which Lessee is a party other than those
set forth in Sections 17.1(a), (b) or (c) hereof, and such failure
shall continue for twenty (20) days after notice thereof to the Lessee;
provided, solely with respect to Sections 8.3(d), 8.3(g), 8.3(j),
8.3(p), 8.3(u), 8.3A(a)(iv), 8.3A(a)(ix), 8.3A(d) or 8.3B(b) of the
Participation Agreement or Sections 10.1(a), 10.1(c), 10.1(e), 15.1(e)
or subsection (b) of Section 15.2 of this Lease, if any such failure is
not capable of remedy within such twenty (20) day period but may be
remedied with further diligence and if Lessee has and continues to
diligently pursue such remedy, then Lessee shall be granted additional
time to pursue such remedy but in no event more than an additional
twenty (20) days beyond the expiration of the twenty (20) day period
referenced immediately above, or (ii) any representation or warranty
made by Lessee set forth in this Lease or in any other Operative
Agreement or in any document entered into in connection herewith or
therewith or in any document, certificate or financial or other
statement delivered in connection herewith or therewith shall be false
or inaccurate in any material way when made;
(e) An Agency Agreement Event of Default shall have
occurred and be continuing;
(f) Lessee or any of its Subsidiaries shall default
(beyond applicable periods of grace and/or notice and cure) in the
payment when due of any principal of or interest on any Indebtedness
having an outstanding principal amount of at least $5,000,000; or any
other event or condition shall occur which results in a default of any
such Indebtedness or enables the holder of any such Indebtedness or any
Person acting on such holder's behalf to accelerate the maturity
thereof;
(g) The liquidation or dissolution of Lessee, or the
suspension of the business of Lessee, or the filing by Lessee of a
voluntary petition or an answer seeking reorganization, arrangement,
readjustment of its debts or for any other relief under the United
States Bankruptcy Code, as amended, or under any other insolvency act
or law, state or federal, now or hereafter existing, or any other
action of Lessee indicating its consent to, approval of or acquiescence
in, any such petition or proceeding; the application by Lessee for, or
the appointment by consent or acquiescence of Lessee of a receiver, a
trustee or a custodian of Lessee for all or a substantial part of its
property; the making by Lessee of any assignment for the benefit of
creditors; the admission by Lessee in writing of its inability to pay
its debts as they mature or Lessee is generally not paying its debts
and other financial obligations as they become due and payable; or
Lessee taking any corporate action to authorize any of the foregoing;
(h) The filing of an involuntary petition against Lessee
in bankruptcy or seeking reorganization, arrangement, readjustment of
its debts or for any other relief under the United States
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Bankruptcy Code, as amended, or under any other insolvency act or law,
state or federal, now or hereafter existing; or the involuntary
appointment of a receiver, a trustee or a custodian of Lessee for all
or a substantial part of its property; or the issuance of a warrant of
attachment, execution or similar process against any substantial part
of the property of Lessee, and the continuance of any of such events
for ninety (90) days undismissed or undischarged;
(i) The adjudication of Lessee as bankrupt or insolvent;
(j) The entering of any order in any proceedings against
Lessee or any Subsidiary decreeing the dissolution, divestiture or
split-up of Lessee or any Subsidiary, and such order remains in effect
for more than sixty (60) days;
(k) Any report, certificate, financial statement or other
instrument delivered to Lessor by or on behalf of Lessee pursuant to
the terms of this Lease or any other Operative Agreement is false or
misleading in any material respect when made or delivered;
(l) [RESERVED];
(m) A final judgment or judgments for the payment of
money shall be rendered by a court or courts against Lessee or any of
its Subsidiaries or any of their assets in excess of $15,000,000 in the
aggregate, and (i) the same shall not be discharged (or provision shall
not be made for such discharge), or a stay of execution thereof shall
not be procured, within thirty (30) days from the date of entry
thereof, or (ii) Lessee or such Subsidiary shall not, within said
period of thirty (30) days, or such longer period during which
execution of the same shall have been stayed, appeal therefrom and
cause the execution thereof to be stayed during such appeal, or (iii)
such judgment or judgments shall not be discharged (or provisions shall
not be made for such discharge) within thirty (30) days after a
decision has been reached with respect to such appeal and the related
stay has been lifted;
(n) Lessee or any member of the Controlled Group shall
fail to pay when due an amount or amounts aggregating in excess of
$2,000,000 which it shall have become liable to pay to the PBGC or to a
Pension Plan under Title IV of ERISA; or notice of intent to terminate
a Pension Plan or Pension Plans having aggregate Unfunded Liabilities
in excess of $2,000,000 shall be filed under Title IV of ERISA by
Lessee or any member of the Controlled Group, any plan administrator or
any combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause a trustee
to be appointed to administer any such Pension Plan or Pension Plans or
a proceeding shall be instituted by a fiduciary of any such Pension
Plan or Pension Plans against Lessee or any member of the Controlled
Group to enforce Section 515 or 4219(c)(5) of ERISA; or a condition
shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any such Pension Plan or Pension Plans must be
terminated;
(o) (i) As a result of one (1) or more transactions after
the date of this Lease, any "person" or "group" of persons (x) which
does not have a rating then assigned by Standard and Poor's Rating
Services, a division of The McGraw Hill Companies, Inc., or any
successors thereto of AA or better (for purposes of this Section
17.1(o), the "Required S&P Rating") or (y) which does have the Required
S&P Rating but is determined by the Agent, in the exercise of its
reasonable discretion, to be otherwise unacceptable: shall have (in the
case of the foregoing subsections (x) or (y)) "beneficial ownership"
(within the meaning of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended, and the applicable rules and
regulations thereunder) of fifty percent (50%) or more of the
outstanding Voting Stock of Lessee; or (ii) without limiting the
generality of the foregoing, during any period of twelve (12)
consecutive months, commencing after the date of this Lease,
individuals who at the beginning of such period of twelve (12) months
were directors of Lessee shall cease for any reason to constitute a
majority of the board of directors of Lessee, provided, that the
relationships among the respective shareholders of Lessee on the
Initial Closing Date shall not be deemed to constitute all or any
combination of them as a "group" for purposes of clause (o)(i);
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(p) Any Operative Agreement shall cease to be in full
force and effect due to the actions or inactions of any Person other than a
Financing Party; or
(q) the Lessee or any of its Subsidiaries shall have
committed any material Environmental Violation;
then, in any such event, Lessor may, in addition to the other rights and
remedies provided for in this Article XVII and in Section 18.1, terminate this
Lease by giving Lessee five (5) days notice of such termination; provided,
notwithstanding the foregoing, this Lease shall be deemed to be automatically
terminated without the giving of notice upon the occurrence of a Lease Event of
Default under Sections 17.1(g), (h), (i) or (j), and this Lease shall terminate,
and all rights of Lessee under this Lease shall cease. Lessee shall, to the
fullest extent permitted by law, pay as Supplemental Rent all costs and expenses
incurred by or on behalf of Lessor or any other Financing Party, including
without limitation reasonable fees and expenses of counsel, as a result of any
Lease Event of Default hereunder.
A POWER OF SALE HAS BEEN GRANTED IN THIS LEASE. A POWER OF SALE MAY
ALLOW LESSOR TO TAKE THE PROPERTIES AND SELL THE PROPERTIES WITHOUT GOING TO
COURT IN A FORECLOSURE ACTION UPON THE OCCURRENCE OF A LEASE EVENT OF DEFAULT.
17.2 SURRENDER OF POSSESSION.
If a Lease Event of Default shall have occurred and be continuing, and
whether or not this Lease shall have been terminated pursuant to Section 17.1,
Lessee shall, upon thirty (30) days written notice, surrender to Lessor
possession of the Properties. Lessor may enter upon and repossess the Properties
by such means as are available at law or in equity, and may remove Lessee and
all other Persons and any and all personal property and Lessee's equipment and
personalty and severable Modifications from the Properties. Lessor shall have no
liability by reason of any such entry, repossession or removal performed in
accordance with applicable law. Upon the written demand of Lessor, Lessee shall
return the Properties promptly to Lessor, in the manner and condition required
by, and otherwise in accordance with the provisions of, Section 22.1(c) hereof.
17.3 RELETTING.
If a Lease Event of Default shall have occurred and be continuing, and
whether or not this Lease shall have been terminated pursuant to Section 17.1,
Lessor may, but shall be under no obligation to, relet any or all of the
Properties, for the account of Lessee or otherwise, for such term or terms
(which may be greater or less than the period which would otherwise have
constituted the balance of the Term) and on such conditions (which may include
concessions or free rent) and for such purposes as Lessor may determine, and
Lessor may collect, receive and retain the rents resulting from such reletting.
Lessor shall not be liable to Lessee for any failure to relet any Property or
for any failure to collect any rent due upon such reletting.
17.4 DAMAGES.
Neither (a) the termination of this Lease as to all or any of the
Properties pursuant to Section 17.1; (b) the repossession of all or any of the
Properties; nor (c) the failure of Lessor to relet all or any of the Properties,
the reletting of all or any portion thereof, nor the failure of Lessor to
collect or receive any rentals due upon any such reletting, shall relieve Lessee
of its liabilities and obligations hereunder, all of which shall survive any
such termination, repossession or reletting. If any Lease Event of Default shall
have occurred and be continuing and notwithstanding any termination of this
Lease pursuant to Section 17.1, Lessee shall forthwith pay to Lessor all Rent
and other sums due and payable hereunder to and including without limitation the
date of such termination. Thereafter, on the days on which the Basic Rent or
Supplemental Rent, as applicable, are payable under this Lease or would have
been payable under this Lease if the same had not been terminated pursuant to
Section 17.1 and until the end of the Term hereof or what would have been the
Term in the absence of such termination, Lessee shall pay Lessor, as current
liquidated damages (it being agreed that it would be impossible accurately to
determine actual damages) an amount equal to the Basic Rent and Supplemental
Rent that are payable under this Lease or would have been payable by Lessee
hereunder if this Lease had not been terminated pursuant to Section 17.1, less
the net proceeds, if any, which are actually received by Lessor with respect to
the period in question of any reletting of any
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Property or any portion thereof; provided, that Lessee's obligation to make
payments of Basic Rent and Supplemental Rent under this Section 17.4 shall
continue only so long as Lessor shall not have received the amounts specified in
Section 17.6. In calculating the amount of such net proceeds from reletting,
there shall be deducted all of Lessor's, any Holder's, the Agent's and any
Lender's reasonable expenses in connection therewith, including without
limitation repossession costs, brokerage or sales commissions, fees and expenses
for counsel and any necessary repair or alteration costs and expenses incurred
in preparation for such reletting. To the extent Lessor receives any damages
pursuant to this Section 17.4, such amounts shall be regarded as amounts paid on
account of Rent. Lessee specifically acknowledges and agrees that its
obligations under this Section 17.4 shall be absolute and unconditional under
any and all circumstances and shall be paid and/or performed, as the case may
be, without notice or demand and without any abatement, reduction, diminution,
setoff, defense, counterclaim or recoupment whatsoever.
17.5 POWER OF SALE.
Without limiting any other remedies set forth in this Lease, Lessor and
Lessee agree that Lessee has granted, pursuant to Section 7.1(b) hereof and each
Lease Supplement, a Lien against the Properties WITH POWER OF SALE, and that,
upon the occurrence and during the continuance of any Lease Event of Default,
Lessor (acting through Xxx Xxxxxxxx Xxxxxxx, a resident of Mecklenburg County,
North Carolina, as trustee) shall have the power and authority, to the extent
provided by law, after prior notice and lapse of such time as may be required by
law, to foreclose its interest (or cause such interest to be foreclosed) in all
or any part of the Properties. Lessor is authorized and permitted to accomplish
a foreclosure sale by following the procedures permitted or required by Section
51.002 of the Texas Property Code, as same may be amended from time to time.
Lessor may also appoint in writing at any time a substitute trustee, succeeding
to all rights and interests of the aforementioned Xxx Xxxxxxxx Xxxxxxx, as
trustee.
17.6 FINAL LIQUIDATED DAMAGES.
If a Lease Event of Default shall have occurred and be continuing,
whether or not this Lease shall have been terminated pursuant to Section 17.1
and whether or not Lessor shall have collected any current liquidated damages
pursuant to Section 17.4, Lessor shall have the right to recover, by demand to
Lessee and at Lessor's election, and Lessee shall pay to Lessor, as and for
final liquidated damages, but exclusive of the indemnities payable under Section
11 of the Participation Agreement (which, if requested, shall be paid
concurrently), and in lieu of all current liquidated damages beyond the date of
such demand (it being agreed that it would be impossible accurately to determine
actual damages) the Termination Value. Upon payment of the amount specified
pursuant to the first sentence of this Section 17.6, Lessee shall be entitled to
receive from Lessor, either at Lessee's request or upon Lessor's election, in
either case at Lessee's cost, an assignment of Lessor's entire right, title and
interest in and to the Properties, Improvements, Fixtures, Modifications,
Equipment and all components thereof, in each case in recordable form and
otherwise in conformity with local custom and free and clear of the Lien of this
Lease (including without limitation the release of any memoranda of Lease and/or
the Lease Supplement recorded in connection therewith) and any Lessor Liens. The
Properties shall be conveyed to Lessee "AS-IS, WHERE-IS" and in their then
present physical condition. If any statute or rule of law shall limit the amount
of such final liquidated damages to less than the amount agreed upon, Lessor
shall be entitled to the maximum amount allowable under such statute or rule of
law; provided, however, Lessee shall not be entitled to receive an assignment of
Lessor's interest in the Properties, the Improvements, Fixtures, Modifications,
Equipment or the components thereof unless Lessee shall have paid in full the
Termination Value. Lessee specifically acknowledges and agrees that its
obligations under this Section 17.6 shall be absolute and unconditional under
any and all circumstances and shall be paid and/or performed, as the case may
be, without notice or demand and without any abatement, reduction, diminution,
setoff, defense, counterclaim or recoupment whatsoever.
17.7 ENVIRONMENTAL COSTS.
If a Lease Event of Default shall have occurred and be continuing, and
whether or not this Lease shall have been terminated pursuant to Section 17.1,
Lessee shall pay directly to any third party (or at Lessor's election, reimburse
Lessor) for the cost of any environmental testing and/or remediation work
undertaken respecting any Property, as such testing or work is deemed
appropriate in the reasonable judgment of Lessor, and shall indemnify and hold
harmless Lessor and each other Indemnified Person therefrom. Lessee shall pay
all amounts referenced in
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the immediately preceding sentence within ten (10)
days of any request by Lessor for such payment. The provisions of this Section
17.7 shall not limit the obligations of Lessee under any Operative Agreement
regarding indemnification obligations, environmental testing, remediation and/or
work.
17.8 WAIVER OF CERTAIN RIGHTS.
If this Lease shall be terminated pursuant to Section 17.1, Lessee
waives, to the fullest extent permitted by Law, (a) any notice of re-entry or
the institution of legal proceedings to obtain re-entry or possession; (b) any
right of redemption, re-entry or possession; (c) the benefit of any laws now or
hereafter in force exempting property from liability for rent or for debt; and
(d) any other rights which might otherwise limit or modify any of Lessor's
rights or remedies under this Article XVII.
17.9 ASSIGNMENT OF RIGHTS UNDER CONTRACTS.
If a Lease Event of Default shall have occurred and be continuing, and
whether or not this Lease shall have been terminated pursuant to Section 17.1,
Lessee shall upon Lessor's demand immediately assign, transfer and set over (to
the fullest extent assignable) to Lessor all of Lessee's right, title and
interest in and to each agreement executed by Lessee in connection with the
acquisition, installation, testing, use, development, construction, operation,
maintenance, repair, refurbishment and restoration of the Properties (including
without limitation all right, title and interest of Lessee with respect to all
warranty, performance, service and indemnity provisions), as and to the extent
that the same relate to the acquisition, installation, testing, use,
development, construction, operation, maintenance, repair, refurbishment and
restoration of the Properties or any of them.
17.10 REMEDIES CUMULATIVE.
The remedies herein provided shall be cumulative and in addition to
(and not in limitation of) any other remedies available at law, equity or
otherwise, including without limitation any mortgage foreclosure remedies.
17.11 LESSEE'S RIGHT TO CURE BY PURCHASE OF ALL PROPERTIES.
Notwithstanding anything in this Lease or in any of the other Operative
Agreements to the contrary, upon the occurrence and continuation of a Lease
Event of Default, Lessee may, but shall not be obligated to, cure such Lease
Event of Default by purchasing all the Properties for an amount equal to the
Termination Value, such purchase to be consummated as provided in Sections 19.1,
20.1 and 20.2 (provided, that to the extent a monetary Lease Default exists and
is continuing (whether or not related to any Property) such monetary Lease
Default shall also be cured (concurrently with and in addition to the purchase
of all the Properties) by the payment of the outstanding amounts giving rise to
such monetary Lease Default). In order to cure such Lease Event of Default,
Lessee must provide (within three (3) Business Days after notice of the
occurrence of such Lease Event of Default from the Agent or Lessor) the Agent
and Lessor with written notice of the intent of Lessee to effect such a cure.
Thereafter, the purchase of all Properties and payment of other amounts (if any)
shall occur on a Business Day specified by the Agent (upon direction from the
Agent) or Lessor to Lessee that is not earlier than fifteen (15) days nor later
than sixty (60) days after the delivery of the above-referenced notice to
Lessee.
ARTICLE XVIII
18.1 LESSOR'S RIGHT TO CURE LESSEE'S LEASE DEFAULTS.
Lessor, without waiving or releasing any obligation or Lease Event of
Default, may (but shall be under no obligation to) remedy any Lease Event of
Default for the account and at the sole cost and expense of Lessee, including
without limitation the failure by Lessee to maintain the insurance required by
Article XIV, and may, to the fullest extent permitted by law, and
notwithstanding any right of quiet enjoyment in favor of Lessee, enter upon any
Property, and take all such action thereon as may be necessary or appropriate
therefor. No such entry shall be deemed an eviction of any lessee. All
out-of-pocket costs and expenses so incurred (including without limitation fees
and expenses of counsel), together with interest thereon at the Overdue Rate
from the date on which such sums or expenses are paid by Lessor, shall be paid
by Lessee to Lessor on demand.
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ARTICLE XIX
19.1 PROVISIONS RELATING TO LESSEE'S EXERCISE OF ITS PURCHASE
OPTION.
Subject to Section 19.2, in connection with any termination of this
Lease with respect to all the Properties pursuant to the terms of Section 16.2,
or in connection with Lessee's exercise of its Purchase Option, upon the date on
which this Lease is to terminate with respect to all the Properties, and upon
tender by Lessee of the amounts set forth in Sections 16.2(b) or 20.2, as
applicable, Lessor shall execute and deliver to Lessee (or to Lessee's designee)
at Lessee's cost and expense an assignment (by special warranty deed, xxxx of
sale and/or other appropriate instruments) of Lessor's entire interest in all
the Properties together with an assignment of any rights of Lessor under the
Xxxxxxx Money Contract for the purchase of all the Properties from The Woodlands
Land Development Company, L.P., pursuant to which Lessor first acquired the
Properties in each case in recordable form and otherwise in conformity with
local custom and free and clear of this Lease and any Lessor Liens attributable
to Lessor but without any other warranties (of title or otherwise) from Lessor.
Such Property shall be conveyed to Lessee "AS-IS, "WHERE-IS" and in then present
physical condition. Additionally, Lessor shall cause all Mortgage Instruments
and other Security Documents executed in connection herewith (with respect to
all the Properties) to be released.
19.2 NO PURCHASE OR TERMINATION WITH RESPECT TO LESS THAN ALL OF A
PROPERTY.
Lessee shall not be entitled to exercise its Purchase Option or the
Sale Option separately with respect to a portion of any Property consisting of
Land, Equipment, Improvements and/or any interest pursuant to a Ground Lease but
shall be required to exercise its Purchase Option or the Sale Option with
respect to an entire Property.
ARTICLE XX
20.1 PURCHASE OPTION, SALE OPTION OR WALK-AWAY OPTION - GENERAL
PROVISIONS.
Not less than one hundred twenty (120) days and no more than one
hundred eighty (180) days prior to the Expiration Date or (respecting the
Purchase Option only) not less than thirty (30) days nor more than one hundred
eighty (180) days prior to any Purchase Option Date, Lessee may give Lessor
irrevocable written notice (the "Election Notice") that Lessee is electing to
exercise either (a) the option to purchase all, but not less than all, the
Properties on the Purchase Option Date specified in the Election Notice or cause
its nominee to complete such purchase (the "Purchase Option"), (b) with respect
to an Election Notice given in connection with the Expiration Date only, the
option to remarket all, but not less than all, the Properties to a Person other
than Lessee or any Affiliate of Lessee and cause a sale of such Properties to
occur on the Expiration Date pursuant to the terms of Section 22.1 (the "Sale
Option") or (c) with respect to an Election Notice given in connection with the
Expiration Date only, the option to pay the Maximum Residual Guarantee Amount on
the Expiration Date and surrender, or cause to be surrendered, all, but not less
than all, of the Properties in accordance with the terms and conditions of
Section 10.1(g) (the "Walk-Away Option"). If Lessee does not give an Election
Notice indicating the Purchase Option, the Sale Option or the Walk-Away Option
at least one hundred twenty (120) days and not more than one hundred eighty
(180) days prior to the Expiration Date, then, unless such Expiration Date is
the final Expiration Date to which the Term may be extended, the Lessee shall be
deemed to have requested an extension of the Term in accordance with Section 2.2
hereof; if such Expiration Date is the final Expiration Date, then Lessee shall
be deemed to have elected the Purchase Option. If Lessee shall either (i) elect
(or be deemed to have elected) to exercise the Purchase Option, (ii) elect the
Sale Option and fail to cause all, but not less than all, the Properties to be
sold in accordance with the terms of Section 22.1 on the Expiration Date or
(iii) elect the Walk-Away Option and fail to either pay the Maximum Residual
Guarantee Amount on the Expiration Date or to surrender, or cause to be
surrendered, each of the Properties in accordance with the terms and conditions
of Section 10.1(g) on the Expiration Date, then in any such case Lessee shall
pay to Lessor on the date on which such purchase or sale is scheduled to occur
an amount equal to the Termination Value for all, but not less than all, the
Properties (which the parties do not intend to be a "bargain" purchase price)
and, upon receipt of such amounts and satisfaction of such obligations, Lessor
shall transfer to Lessee all of Lessor's right, title and interest in and to
all, but not less than all, the Properties in accordance with Sections 19.1 and
20.2.
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20.2 LESSEE PURCHASE OPTION.
Provided, that the Election Notice has been appropriately given
specifying the Purchase Option, Lessee shall or shall cause its nominee to
purchase all the Properties on the specified Purchase Option Date at a price
equal to the Termination Value for all the Properties (which the parties do not
intend to be a "bargain" purchase price).
Subject to Section 19.2, in connection with any termination of this
Lease with respect to all the Properties pursuant to the terms of Section 16.2,
or in connection with Lessee's exercise of its Purchase Option, upon the date on
which this Lease is to terminate with respect to all of the Properties, and upon
tender by Lessee of the amounts set forth in Section 16.2(b) or this Section
20.2, as applicable, Lessor shall execute, acknowledge (where required) and
deliver to Lessee, at Lessee's cost and expense, each of the following together
with the items set forth in Section 19.1: (a) a termination or assignment (as
requested by the Lessee) of each applicable Ground Lease and a Deed conveying
each Property (to the extent it is real property not subject to a Ground Lease)
to Lessee free and clear of the Lien of this Lease, the Lien of the Credit
Documents and any Lessor Liens (but without any other representation as to title
or any other matter); (b) a Xxxx of Sale conveying each Property (to the extent
it is personal property) to Lessee free and clear of the Lien of this Lease, the
Lien of the Credit Documents and any Lessor Liens; (c) any real estate tax
affidavit or other document required by law to be executed and filed in order to
record the applicable Deed and/or the applicable Ground Lease termination; (d)
Foreign Investment in Real Property Tax Act (FIRPTA) affidavits; and (e) closing
or settlement statements and other such documents as may be reasonably required
by any title company closing such transaction (but, except for the
representations and warranties referenced in the foregoing clauses (a) and (b)
of this Section 20.2, without any other representations or warranties as to
title or any other matter). All of the foregoing documentation must be in form
and substance reasonably satisfactory to Lessor. Each Property shall be conveyed
to Lessee "AS-IS, WHERE-IS" and in then present physical condition.
If any Property is the subject of remediation efforts respecting
Hazardous Substances at the Expiration Date which could materially and adversely
impact the Fair Market Sales Value of such Property (with materiality determined
in Lessor's discretion), then Lessee shall be obligated to purchase each such
Property pursuant to Section 20.2.
On the Expiration Date and/or any Purchase Option Date on which Lessee
has elected to exercise its Purchase Option, Lessee shall pay (or cause to be
paid) to Lessor, the Agent and all other parties, as appropriate, the sum of all
costs and expenses incurred by any such party in connection with the election by
Lessee to exercise its Purchase Option and all Rent and all other amounts then
due and payable or accrued under this Lease and/or any other Operative
Agreement.
20.3 THIRD PARTY SALE OPTION.
(a) Provided, that (i) no Default or Event of Default
shall have occurred and be continuing and (ii) the Election Notice has
been appropriately given specifying the Sale Option, Lessee shall
undertake to cause a sale of the Properties on the Expiration Date (all
as specified in the Election Notice) in accordance with the provisions
of Section 22.1 hereof.
(b) In the event Lessee exercises the Sale Option then,
as soon as practicable and in all events not less than sixty (60) days
and not more than one hundred eighty (180) days prior to the date of
delivery, Lessee shall cause to be delivered to Lessor a Phase I
environmental site assessment for each of the Properties recently
prepared (no more than thirty (30) days old prior to the date of
delivery) by an independent recognized professional reasonably
acceptable to Lessor and in form, scope and content reasonably
satisfactory to Lessor. Lessor (at the direction of the Agent) shall
elect whether the costs incurred respecting the above-referenced Phase
I environmental site assessment shall be paid by either (i) sales
proceeds from the Properties, (ii) Lessor (but only the extent amounts
are available therefor with respect to the Available Commitments and
the Available Holder Commitments or each Lender and each Holder
approves the necessary increases in the Available Commitments and the
Available Holder Commitments to fund such costs) or (iii) Lessee;
provided, amounts funded by the Lenders and the Holders with respect to
the foregoing shall be added to the Property Cost of each applicable
Property; provided, further, amounts funded by Lessee with respect to
the foregoing shall be a part of (and limited by) the
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Maximum Residual Guarantee Amount. In the event that Lessor shall not
have received such environmental site assessment (or, if remediation
has been undertaken to address any Environmental Violation or potential
Environmental Violation, an addition environmental site assessment
prepared on the same basis as referenced above in this paragraph) by
the date sixty (60) days prior to the Expiration Date or in the event
that such environmental site assessment (or, if remediation has been
undertaken to address any Environmental Violation or potential
Environmental Violation, an addition environmental site assessment
prepared on the same basis as referenced above in this paragraph) shall
reveal the existence of any material violation of Environmental Laws,
other material Environmental Violation or potential material
Environmental Violation (with materiality determined in each case by
Lessor in its reasonable discretion), then Lessee on the Expiration
Date shall pay to Lessor an amount equal to the Termination Value for
all the Properties and any and all other amounts due and owing
hereunder. Upon receipt of such payment and all other amounts due under
the Operative Agreements, Lessor shall transfer to Lessee all of
Lessor's right, title and interest in and to all the Properties in
accordance with Sections 19.1 and 20.2.
20.4 WALK-AWAY OPTION.
(a) Provided, that (i) no Lease Default or Lease Event of
Default shall have occurred and be continuing and (ii) the Election
Notice has been appropriately given specifying the Walk-Away Option,
Lessee shall pay the Maximum Residual Guarantee Amount and all other
amounts then due and owing by Lessee pursuant to the operative
Agreements on the Expiration Date and surrender, or cause to be
surrendered, each of the Properties in accordance with the terms of
Section 10.1(g).
(b) In the event Lessee exercises the Walk-Away Option
then, as soon as practicable and in all events not less than sixty (60)
days and not more than one hundred eighty (180) days prior to the
Expiration Date, Lessee shall cause to be delivered to Lessor a Phase I
environmental site assessment for each of the Properties recently
prepared (no more than one hundred eighty (180) days prior to the
Expiration Date) by an independent recognized professional reasonably
acceptable to Lessor and in form, scope and content reasonably
satisfactory to Lessor. Lessor (at the direction of the Agent) shall
elect whether the costs incurred respecting the above-referenced Phase
I environmental site assessment shall be paid by either (i) sales
proceeds from the Properties (to the extent a sale has been arranged at
such time), (ii) Lessor (but only to the extent the Majority Secured
Parties elect to fund such costs) or (iii) Lessee; provided, amounts
funded by the Lenders and the Holders with respect to the foregoing
shall be added to the Property Cost of each applicable Property;
provided, further, amounts funded by Lessee with respect to the
foregoing shall be a part of (and limited by) the Maximum Residual
Guarantee Amount. In the event that Lessor shall not have received such
environmental site assessment (or, if remediation has been undertaken
to address any Environmental Violation or potential Environmental
Violation, an additional environmental site assessment prepared on the
same basis as referenced above in this paragraph) by the date sixty
(60) days prior to the Expiration Date or in the event that such
environmental site assessment (or, if remediation has been undertaken
to address any Environmental Violation or potential Environmental
Violation, an additional environmental site assessment prepared on the
same basis as referenced above in this paragraph) shall reveal the
existence of any material violation of Environmental Laws, other
material Environmental Violation or potential material Environmental
Violation (with materiality determined in each case by Lessor in its
reasonable discretion), then Lessee on the Expiration Date shall pay to
Lessor an amount equal to the Termination Value for all the Properties
and any and all other amounts due and owing hereunder. Upon receipt of
such payment and all other amounts due under the Operative Agreements,
Lessor shall transfer to Lessee all of Lessor's right, title and
interest in and to all Properties in accordance with Sections 19.1 and
20.2.
ARTICLE XXI
21.1 [INTENTIONALLY OMITTED].
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ARTICLE XXII
22.1 SALE PROCEDURE.
(a) Nothing in this Article XXII shall adversely affect
Lessee's rights with respect to the Walk-Away Option to the extent
exercised in accordance with Section 20.4. During the Marketing Period,
Lessee, on behalf of Lessor, shall obtain bids for the cash purchase of
all the Properties in connection with a sale to one (1) or more third
party purchasers to be consummated on the Expiration Date or such
earlier date as is acceptable to the Agent and the Lessee (the "Sale
Date") for the highest price available, shall notify Lessor promptly of
the name and address of each prospective purchaser and the cash price
which each prospective purchaser shall have offered to pay for each
such Property and shall provide Lessor with such additional information
about the bids and the bid solicitation procedure as Lessor may
reasonably request from time to time. All such prospective purchasers
must be Persons other than Lessee or any Affiliate of Lessee. On the
Sale Date, Lessee shall pay (or cause to be paid) to Lessor and all
other parties, as appropriate, all Rent and all other amounts then due
and payable or accrued under this Lease and/or any other Operative
Agreement and Lessor (at the direction of the Agent) shall elect
whether the costs and expenses incurred by Lessor and/or the Agent
respecting the sale of one or more Properties shall be paid by either
(i) sales proceeds from the Properties, (ii) Lessor (but only the
extent amounts are available therefor with respect to the Available
Commitments and the Available Holder Commitments or each Lender and
each Holder approves the necessary increases in the Available
Commitments and the Available Holder Commitments to fund such costs and
expenses) or (iii) Lessee; provided, amounts funded by the Lenders and
the Holders with respect to such costs and expenses shall be added to
the Property Cost of each applicable Property; provided, further,
amounts funded by Lessee with respect to such costs and expenses shall
be a part of (and limited by) the Maximum Residual Guarantee Amount.
Lessor may reject any and all bids and may solicit and obtain
bids by giving Lessee written notice to that effect; provided, however,
that notwithstanding the foregoing, Lessor may not reject the bids
submitted by Lessee if such bids, in the aggregate, are greater than or
equal to the sum of the Limited Recourse Amount for all the Properties,
and represent bona fide offers from one (1) or more third party
purchasers. If the highest price which a prospective purchaser or the
prospective purchasers shall have offered to pay for all the Properties
on the Sale Date is less than the sum of the Limited Recourse Amount
for all the Properties or if such bids do not represent bona fide
offers from one or more third parties or if there are no bids, Lessor
may elect to retain all the Properties by giving Lessee prior written
notice of Lessor's election to retain the same, and promptly upon
receipt of such notice, Lessee shall surrender, or cause to be
surrendered, all the Properties in accordance with the terms and
conditions of Section 10.1(g). Upon acceptance of any bid, Lessor
agrees, at Lessee's request and expense, to execute a contract of sale
with respect to such sale, so long as the same is consistent with the
terms of this Article 22 and provides by its terms that it is
nonrecourse to Lessor.
Unless Lessor shall have elected to retain all the Properties
pursuant to the provisions of the preceding paragraph, Lessee shall
arrange for Lessor to sell all the Properties free and clear of the
Lien of this Lease, any Lessor Liens attributable to Lessor and the
Lien of the Credit Documents, but without any other representation or
warranty (of title or otherwise), for cash on the Sale Date to the
purchaser or purchasers offering the highest cash sales price, as
identified by Lessee or Lessor, as the case may be; provided, however,
solely as to Lessor or the Trust Company, in its individual capacity,
any Lessor Lien shall not constitute a Lessor Lien so long as Lessor or
the Trust Company, in its individual capacity, is diligently and in
good faith contesting, at the cost and expense of Lessor or the Trust
Company, in its individual capacity, such Lessor Lien by appropriate
proceedings in which event the applicable Sale Date, all without
penalty or cost to Lessee, shall be delayed for the period of such
contest (but in no event shall such delay be in excess of sixty (60)
days). To effect such transfer and assignment, Lessor shall execute,
acknowledge (where required) and deliver to the appropriate purchaser
each of the following: (a) a Deed conveying each Property (to the
extent it is real property titled to Lessor) and an assignment of the
Ground Lease conveying the leasehold interest of Lessor in each
Property (to the extent it is real property and subject to a Ground
Lease) to the appropriate purchaser free and clear of the Lien of this
Lease, the Lien of the Credit Documents and any Lessor Liens (but
without any other representation or warranty of title or otherwise);
(b) a Xxxx of Sale conveying each Property (to the extent it is
personal property) titled to Lessor
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to the appropriate purchaser free and clear of the Lien of this Lease,
the Lien of the Credit Documents and any Lessor Liens (but without any
other representation or warranty of title or otherwise); (c) any real
estate tax affidavit or other document required by law to be executed
and filed in order to record each Deed and/or each Ground Lease
assignment; (d) FIRPTA affidavits, as appropriate; and (e) closing or
settlement statements and other such documents as may be reasonably
required by any title company closing such transaction (but, except for
the representations and warranties referenced in clauses (a) and (b) of
Section 20.2, without any other representations or warranties as to
title or any other matter). All of the foregoing documentation must be
in form and substance reasonably satisfactory to Lessor. Lessee shall
surrender the Properties so sold or subject to such documents to each
purchaser in the condition specified in Section 10.1(g), or in such
other condition as may be agreed between Lessee and such purchaser.
Lessee shall not take or fail to take any action which would have the
effect of unreasonably discouraging bona fide third party bids for any
Property. If each of the Properties is not either (i) sold on the Sale
Date in accordance with the terms of this Section 22.1, or (ii)
retained by Lessor pursuant to an affirmative election made by Lessor
pursuant to the second sentence of the second paragraph of this Section
22.1(a), then (x) Lessee shall be obligated to pay Lessor on the Sale
Date an amount equal to the aggregate Termination Value for all the
Properties less any sales proceeds received by the Lessor, and (y)
Lessor shall transfer each applicable Property to Lessee in accordance
with Sections 19.1 and 20.2.
(b) If the Properties are sold on a Sale Date to one (1)
or more third party purchasers in accordance with the terms of Section
22.1(a) and the aggregate purchase price paid for all the Properties is
less than the sum of the aggregate Property Cost for all the Properties
(hereinafter such difference shall be referred to as the "Deficiency
Balance"), then Lessee hereby unconditionally promises to pay to Lessor
on the Sale Date all Rent and all other amounts then due and owing
pursuant to the Operative Agreements and the lesser of (i) the
Deficiency Balance, or (ii) the Maximum Residual Guarantee Amount for
all the Properties. On a Sale Date if (x) Lessor receives the aggregate
Termination Value for all the Properties from one (1) or more third
party purchasers, (y) Lessor and such other parties receive all other
amounts specified in the last sentence of the first paragraph of
Section 22.1(a) and (z) the aggregate purchase price paid for all the
Properties on such date exceeds the sum of the aggregate Property Cost
for all the Properties, then Lessee may retain such excess. If one or
more of the Properties are retained by Lessor pursuant to an
affirmative election made by Lessor pursuant to the provisions of
Section 22.1(a), then Lessee hereby unconditionally promises to pay to
Lessor on the Sale Date all Rent and all other amounts then due and
owing pursuant to the Operative Agreements and an amount equal to the
Maximum Residual Guarantee Amount for the Properties so retained. Any
payment of the foregoing amounts described in this Section 22.1(b)
shall be made together with a payment of all other amounts referenced
in the last sentence of the first paragraph of Section 22.1(a).
(c) In the event that all the Properties are either sold
to one (1) or more third party purchasers on the Sale Date or retained
by Lessor in connection with an affirmative election made by Lessor
pursuant to the provisions of Section 22.1(a), then in either case on
the applicable Sale Date Lessee shall provide Lessor or such third
party purchaser (unless otherwise agreed by such third party purchaser)
with (i) all permits, certificates of occupancy, governmental licenses
and authorizations necessary to use, operate, repair, access and
maintain each such Property for the purpose it is being used by Lessee,
and (ii) such manuals, permits, easements, licenses, intellectual
property, know-how, rights-of-way and other rights and privileges in
the nature of an easement as are reasonably necessary or desirable in
connection with the use, operation, repair, access to or maintenance of
each such Property for its intended purpose or otherwise as Lessor or
such third party purchaser(s) shall reasonably request (and a
royalty-free license or similar agreement to effectuate the foregoing
on terms reasonably agreeable to Lessor or such third party
purchaser(s), as applicable) but excluding trade secrets or other
technical information relating to Lessee's business activities. All
assignments, licenses, easements, agreements and other deliveries
required by clauses (i) and (ii) of this paragraph (c) shall be in form
reasonably satisfactory to Lessor or such third party purchaser(s), as
applicable, and shall be fully assignable (including without limitation
both primary assignments and assignments given in the nature of
security) without payment of any fee, cost or other charge. Lessee
shall also execute any documentation requested by Lessor or such third
party purchaser(s), as applicable, evidencing the continuation or
assignment of each Ground Lease.
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22.2 APPLICATION OF PROCEEDS OF SALE.
In the event Lessee receives any proceeds of sale of any Property, such
proceeds shall be deemed to have been received in trust on behalf of Lessor and
Lessee shall promptly remit such proceeds to Lessor. Lessor shall apply the
proceeds of sale of any Property in the following order of priority:
(a) FIRST, to pay or to reimburse Lessor (and/or the
Agent, as the case may be) for the payment of all reasonable costs and
expenses incurred by Lessor (and/or the Agent, as the case may be) in
connection with the sale (to the extent Lessee has not satisfied its
obligation to pay such costs and expenses);
(b) SECOND, so long as the Credit Agreement is in effect
and any Loans or Holder Advances or any amount is owing to the
Financing Parties under any Operative Agreement, to the Agent to be
applied pursuant to intercreditor provisions among Lessor, the Lenders
and the Holders contained in the Operative Agreements; and
(c) THIRD, to Lessee.
22.3 INDEMNITY FOR EXCESSIVE WEAR.
If the proceeds of the sale described in Section 22.1 with respect to
the Properties shall be less than the Limited Recourse Amount with respect to
the Properties, and at the time of such sale it shall have been reasonably
determined (pursuant to the Appraisal Procedure) that the Fair Market Sales
Value of the Properties shall have been impaired by greater than expected wear
and tear during the term of the Lease, Lessee shall pay to Lessor within ten
(10) days after receipt of Lessor's written statement (i) the amount of such
excess wear and tear determined by the Appraisal Procedure or (ii) the amount of
the Sale Proceeds Shortfall, whichever amount is less.
22.4 APPRAISAL PROCEDURE.
For determining the Fair Market Sales Value of the Properties or any
other amount which may, pursuant to any provision of any Operative Agreement, be
determined by an appraisal procedure, Lessor and Lessee shall use the following
procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach
a mutual agreement as to such amount for a period of ten (10) days from
commencement of the Appraisal Procedure under the applicable section of the
Lease, and if they cannot agree within ten (10) days, then two (2) qualified
appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall
mutually agree thereupon, but if either party shall fail to choose an appraiser
within twenty (20) days after notice from the other party of the selection of
its appraiser, then the appraisal by such appointed appraiser shall be binding
on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20)
days after both shall have been appointed, then a third appraiser shall be
selected by the two (2) appraisers or, failing agreement as to such third
appraiser within thirty (30) days after both shall have been appointed, by the
American Arbitration Association. The decisions of the three (3) appraisers
shall be given within twenty (20) days of the appointment of the third appraiser
and the decision of the appraiser most different from the average of the other
two (2) shall be discarded and such average shall be binding on Lessor and
Lessee; provided, that if the highest appraisal and the lowest appraisal are
equidistant from the third appraisal, the third appraisal shall be binding on
Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee
shall be paid by Lessee; the fees and expenses of the appraiser appointed by
Lessor shall be paid by Lessor (such fees and expenses not being indemnified
pursuant to Section 11 of the Participation Agreement); and the fees and
expenses of the third appraiser shall be divided equally between Lessee and
Lessor.
22.5 CERTAIN OBLIGATIONS CONTINUE.
During the Marketing Period, the obligation of Lessee to pay Rent with
respect to the Properties (including without limitation the installment of Basic
Rent due on the Expiration Date) shall continue undiminished until payment in
full to Lessor of the sale proceeds, if any, the lesser of the Deficiency
Balance and the Maximum Residual Guarantee Amount, the amount due under Section
22.3, if any, and all other amounts due to Lessor or any other Person with
respect to all Properties or any Operative Agreement. Lessor shall have the
right, but shall be
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under no duty, to solicit bids, to inquire into the efforts of Lessee to obtain
bids or otherwise to take action in connection with any such sale, other than as
expressly provided in this Article XXII.
ARTICLE XXIII
23.1 HOLDING OVER.
If Lessee shall for any reason remain in possession of a Property after
the expiration or earlier termination of this Lease as to such Property (unless
such Property is conveyed to Lessee), such possession shall be as a tenancy at
sufferance during which time Lessee shall continue to pay Supplemental Rent that
would be payable by Lessee hereunder were the Lease then in full force and
effect with respect to such Property and Lessee shall, subject to Section 30.14
hereof, continue to pay Basic Rent at one hundred ten percent (110%) of the last
payment of Basic Rent due with respect to such Property prior to such expiration
or earlier termination of this Lease. Such Basic Rent shall be payable from time
to time upon demand by Lessor and such additional amount of Basic Rent shall be
applied by Lessor ratably to the Lenders and the Holders based on their relative
amounts of the then outstanding aggregate Property Cost for all Properties.
During any period of tenancy at sufferance, Lessee shall, subject to the second
preceding sentence, be obligated to perform and observe all of the terms,
covenants and conditions of this Lease, but shall have no rights hereunder other
than the right, to the extent given by law to tenants at sufferance, to continue
their occupancy and use of such Property. Nothing contained in this Article
XXIII shall constitute the consent, express or implied, of Lessor to the holding
over of Lessee after the expiration or earlier termination of this Lease as to
any Property and nothing contained herein shall be read or construed as
preventing Lessor from maintaining a suit for possession of such Property or
exercising any other remedy available to Lessor at law or in equity.
ARTICLE XXIV
24.1 RISK OF LOSS.
During the Term, unless Lessee shall not have been in occupancy of any
Property in question, the risk of loss or decrease in the enjoyment and
beneficial use of such Property as a result of the damage or destruction thereof
by fire, the elements, casualties, thefts, riots, wars or otherwise is assumed
by Lessee, and Lessor shall in no event be answerable or accountable therefor.
ARTICLE XXV
25.1 ASSIGNMENT.
(a) Subject to Section 25.1(b), Lessee may assign its
Purchase Option and its rights under Section 17.11 to any Person
without the consent of the Agent, the Lenders, the Holders or Lessor.
Except as described in the preceding sentence, Lessee may not otherwise
assign this Lease or any of its rights or obligations hereunder or with
respect to any Property in whole or in part to any Person without the
prior written consent of the Agent, the Lenders, the Holders and
Lessor, which consent shall be in the sole discretion of the Agent, the
Lenders, the Holders and Lessor.
(b) No assignment by Lessee (referenced in this Section
25.1 or otherwise) or other relinquishment of possession to any
Property shall in any way discharge or diminish any of the obligations
of Lessee to Lessor hereunder and Lessee shall remain directly and
primarily liable under the Operative Agreements as to any rights or
obligations assigned by Lessee or regarding any Property in which
rights or obligations have been assigned or otherwise transferred.
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25.2 SUBLEASES.
(a) Promptly, but in any event within five (5) Business
Days, following the execution and delivery of any sublease permitted by
this Article XXV, Lessee shall notify Lessor of the execution of such
sublease. As of the date of each Lease Supplement, Lessee shall lease
the respective Property described in such Lease Supplement from Lessor,
and any existing tenant respecting such Property shall automatically be
deemed to be a subtenant of Lessee and not a tenant of Lessor.
(b) Without the prior written consent of the Agent, any
Lender, any Holder or Lessor, but subject to the other provisions of
this Section 25.2, Lessee may sublet any Property or portion thereof to
any Person provided that any subleasing (i) shall be done on market
terms and (ii) shall in no way diminish the fair market value or useful
life of any applicable Property.
(c) No sublease (referenced in this Section 25.2 or
otherwise) or other relinquishment of possession to any Property shall
in any way discharge or diminish any of Lessee's obligations to Lessor
hereunder and Lessee shall remain directly and primarily liable under
this Lease as to such Property, or portion thereof, so sublet. During
the Basic Term, the term of any such sublease shall not extend beyond
the Basic Term. During any Renewal Term, the term of any such sublease
shall not extend beyond such Renewal Term. Each sublease shall be
expressly subject and subordinate to this Lease.
ARTICLE XXVI
26.1 NO WAIVER.
No failure by Lessor or Lessee to insist upon the strict performance of
any term hereof or to exercise any right, power or remedy upon a default
hereunder, and no acceptance of full or partial payment of Rent during the
continuance of any such default, shall constitute a waiver of any such default
or of any such term. To the fullest extent permitted by law, no waiver of any
default shall affect or alter this Lease, and this Lease shall continue in full
force and effect with respect to any other then existing or subsequent default.
ARTICLE XXVII
27.1 ACCEPTANCE OF SURRENDER.
No surrender to Lessor of this Lease or of all or any portion of any
Property or of any part of any thereof or of any interest therein shall be valid
or effective unless agreed to and accepted in writing by Lessor and no act by
Lessor or the Agent or any representative or agent of Lessor or the Agent, other
than a written acceptance, shall constitute an acceptance of any such surrender.
27.2 NO MERGER OF TITLE.
There shall be no merger of this Lease or of the leasehold estate
created hereby by reason of the fact that the same Person may acquire, own or
hold, directly or indirectly, in whole or in part, (a) this Lease or the
leasehold estate created hereby or any interest in this Lease or such leasehold
estate, (b) any right, title or interest in any Property, (c) any Notes, or (d)
a beneficial interest in Lessor.
ARTICLE XXVIII
28.1 [INTENTIONALLY OMITTED].
28
239
ARTICLE XXIX
29.1 NOTICES.
All notices required or permitted to be given under this Lease shall be
in writing and delivered as provided in the Participation Agreement.
ARTICLE XXX
30.1 MISCELLANEOUS.
Anything contained in this Lease to the contrary notwithstanding, all
claims against and liabilities of Lessee or Lessor arising from events
commencing prior to the expiration or earlier termination of this Lease shall
survive such expiration or earlier termination. If any provision of this Lease
shall be held to be unenforceable in any jurisdiction, such unenforceability
shall not affect the enforceability of any other provision of this Lease and
such jurisdiction or of such provision or of any other provision hereof in any
other jurisdiction.
30.2 AMENDMENTS AND MODIFICATIONS.
Neither this Lease nor any Lease Supplement may be amended, waived,
discharged or terminated except in accordance with the provisions of Section
12.4 of the Participation Agreement.
30.3 SUCCESSORS AND ASSIGNS.
All the terms and provisions of this Lease shall inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
30.4 HEADINGS AND TABLE OF CONTENTS.
The headings and table of contents in this Lease are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
30.5 COUNTERPARTS.
This Lease may be executed in any number of counterparts, each of which
shall be an original, but all of which shall together constitute one (1) and the
same instrument.
30.6 GOVERNING LAW.
THIS LEASE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES, EXCEPT AS TO MATTERS RELATING TO THE CREATION OF
THE LEASEHOLD ESTATES HEREUNDER AND THE EXERCISE OF REMEDIES WITH RESPECT TO ONE
OR MORE LEASE EVENTS OF DEFAULT, WHICH SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. WITHOUT LIMITING THE FOREGOING,
IN THE EVENT THAT THIS LEASE IS DEEMED TO CONSTITUTE A FINANCING, WHICH IS THE
INTENTION OF THE PARTIES, THE LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES, SHALL GOVERN THE CREATION, TERMS AND
PROVISIONS OF THE INDEBTEDNESS EVIDENCED HEREBY, BUT ANY LIEN CREATED HEREBY AND
THE ENFORCEMENT OF SAID LIEN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS.
29
240
30.7 CALCULATION OF RENT.
All calculation of Rent payable hereunder shall be computed based on
the actual number of days elapsed over a year of three hundred sixty (360) days
or, to the extent such Rent is based on the Prime Lending Rate, three hundred
sixty-five (365) (or three hundred sixty-six (366), as applicable) days.
30.8 MEMORANDA OF LEASE AND LEASE SUPPLEMENTS.
This Lease shall not be recorded; provided, Lessor and Lessee shall
promptly record (a) a memorandum of this Lease and the applicable Lease
Supplement (in substantially the form of Exhibit B attached hereto) or a short
form lease (in form and substance reasonably satisfactory to Lessor) regarding
each Property promptly after the acquisition thereof in the local filing office
with respect thereto and as required under applicable law to sufficiently
evidence this Lease and any such Lease Supplement in the applicable real estate
filing records. Lessor (at the direction of the Agent) shall elect whether the
costs and expenses incurred by Lessor and/or the Agent respecting the
recordation of the above-referenced items shall be paid by either (i) Lessor
(but only the extent amounts are available therefor with respect to the
Available Commitments and the Available Holder Commitments or each Lender and
each Holder approves the necessary increases in the Available Commitments and
the Available Holder Commitments to fund such costs and expenses) or (ii)
Lessee; provided, amounts funded by the Lenders and the Holders with respect to
such costs and expenses shall be added to the Property Cost of each applicable
Property; provided, further, amounts funded by Lessee with respect to such costs
and expenses shall be a part of (and limited by) the Maximum Residual Guarantee
Amount.
30.9 ALLOCATIONS BETWEEN THE LENDERS AND THE HOLDERS.
Notwithstanding any other term or provision of this Lease to the
contrary, the allocations of the proceeds of the Properties and any and all
other Rent and other amounts received hereunder shall be subject to the
inter-creditor provisions between the Lenders and the Holders contained in the
Operative Agreements (or as otherwise agreed among the Lenders and the Holders
from time to time).
30.10 LIMITATIONS ON RECOURSE.
Notwithstanding anything contained in this Lease to the contrary,
Lessee agrees to look solely to Lessor's estate and interest in the Properties
(and in no circumstance to the Agent, the Lenders, the Holders or otherwise to
Lessor) for the collection of any judgment requiring the payment of money by
Lessor in the event of liability by Lessor, and no other property or assets of
Lessor or any shareholder, owner or partner (direct or indirect) in or of
Lessor, or any director, officer, employee, beneficiary, Affiliate of any of the
foregoing shall be subject to levy, execution or other enforcement procedure for
the satisfaction of the remedies of Lessee under or with respect to this Lease,
the relationship of Lessor and Lessee hereunder or Lessee's use of the
Properties or any other liability of Lessor to Lessee. Nothing in this Section
shall be interpreted so as to limit the terms of Sections 6.1 or 6.2 or the
provisions of Section 12.9 of the Participation Agreement.
30.11 WAIVERS OF JURY TRIAL.
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY, TO THE
FULLEST EXTENT ALLOWED BY APPLICABLE LAW, WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS LEASE AND FOR ANY
COUNTERCLAIM THEREIN.
30.12 EXERCISE OF LESSOR RIGHTS.
Lessee hereby acknowledges and agrees that the rights and powers of
Lessor under this Lease have been assigned to the Agent pursuant to the terms of
the Security Agreement and the other Operative Agreements. Lessor and Lessee
hereby acknowledge and agree that (a) the Agent shall, in its discretion, direct
and/or act on behalf of Lessor pursuant to the provisions of Sections 8.2(h) and
8.6 of the Participation Agreement, (b) all notices to be given to Lessor shall
be given to the Agent and (c) all notices to be given by Lessor may be given by
the Agent, at its election.
30
241
30.13 SUBMISSION TO JURISDICTION; VENUE.
THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING TO SUBMISSION TO
JURISDICTION, VENUE ARE HEREBY INCORPORATED BY REFERENCE HEREIN, MUTATIS
MUTANDIS.
30.14 USURY SAVINGS PROVISION.
(a) IT IS THE INTENT OF THE PARTIES HERETO TO CONFORM TO
AND CONTRACT IN STRICT COMPLIANCE WITH APPLICABLE USURY LAW FROM TIME
TO TIME IN EFFECT. TO THE EXTENT ANY RENT OR PAYMENTS HEREUNDER ARE
HEREINAFTER CHARACTERIZED BY ANY COURT OF COMPETENT JURISDICTION AS THE
REPAYMENT OF PRINCIPAL AND INTEREST THEREON, THIS SECTION 30.14 SHALL
APPLY. ANY SUCH RENT OR PAYMENTS SO CHARACTERIZED AS INTEREST MAY BE
REFERRED TO HEREIN AS "INTEREST." ALL AGREEMENTS AMONG THE PARTIES
HERETO ARE HEREBY LIMITED BY THE PROVISIONS OF THIS PARAGRAPH WHICH
SHALL OVERRIDE AND CONTROL ALL SUCH AGREEMENTS, WHETHER NOW EXISTING OR
HEREAFTER ARISING AND WHETHER WRITTEN OR ORAL. IN NO WAY, NOR IN ANY
EVENT OR CONTINGENCY (INCLUDING WITHOUT LIMITATION PREPAYMENT OR
ACCELERATION OF THE MATURITY OF ANY OBLIGATION), SHALL ANY INTEREST
TAKEN, RESERVED, CONTRACTED FOR, CHARGED, OR RECEIVED UNDER THIS LEASE
OR OTHERWISE, EXCEED THE MAXIMUM NONUSURIOUS AMOUNT PERMISSIBLE UNDER
APPLICABLE LAW. IF, FROM ANY POSSIBLE CONSTRUCTION OF ANY OF THE
OPERATIVE AGREEMENTS OR ANY OTHER DOCUMENT OR AGREEMENT, INTEREST WOULD
OTHERWISE BE PAYABLE IN EXCESS OF THE MAXIMUM NONUSURIOUS AMOUNT, ANY
SUCH CONSTRUCTION SHALL BE SUBJECT TO THE PROVISIONS OF THIS PARAGRAPH
AND SUCH AMOUNTS UNDER SUCH DOCUMENTS OR AGREEMENTS SHALL BE
AUTOMATICALLY REDUCED TO THE MAXIMUM NONUSURIOUS AMOUNT PERMITTED UNDER
APPLICABLE LAW, WITHOUT THE NECESSITY OF EXECUTION OF ANY AMENDMENT OR
NEW DOCUMENT OR AGREEMENT. IF LESSOR SHALL EVER RECEIVE ANYTHING OF
VALUE WHICH IS CHARACTERIZED AS INTEREST WITH RESPECT TO THE
OBLIGATIONS OWED HEREUNDER OR UNDER APPLICABLE LAW AND WHICH WOULD,
APART FROM THIS PROVISION, BE IN EXCESS OF THE MAXIMUM LAWFUL AMOUNT,
AN AMOUNT EQUAL TO THE AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE INTEREST
SHALL, WITHOUT PENALTY, BE APPLIED TO THE REDUCTION OF THE COMPONENT OF
PAYMENTS DEEMED TO BE PRINCIPAL AND NOT TO THE PAYMENT OF INTEREST, OR
REFUNDED TO LESSEE OR ANY OTHER PAYOR THEREOF, IF AND TO THE EXTENT
SUCH AMOUNT WHICH WOULD HAVE BEEN EXCESSIVE EXCEEDS THE COMPONENT OF
PAYMENTS DEEMED TO BE PRINCIPAL. THE RIGHT TO DEMAND PAYMENT OF ANY
AMOUNTS EVIDENCED BY ANY OF THE OPERATIVE AGREEMENTS DOES NOT INCLUDE
THE RIGHT TO RECEIVE ANY INTEREST WHICH HAS NOT OTHERWISE ACCRUED ON
THE DATE OF SUCH DEMAND, AND LESSOR DOES NOT INTEND TO CHARGE OR
RECEIVE ANY UNEARNED INTEREST IN THE EVENT OF SUCH DEMAND. ALL INTEREST
PAID OR AGREED TO BE PAID TO LESSOR SHALL, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, BE AMORTIZED, PRORATED, ALLOCATED, AND SPREAD
THROUGHOUT THE FULL STATED TERM (INCLUDING WITHOUT LIMITATION ANY
RENEWAL OR EXTENSION) OF THIS LEASE SO THAT THE AMOUNT OF INTEREST ON
ACCOUNT OF SUCH PAYMENTS DOES NOT EXCEED THE MAXIMUM NONUSURIOUS AMOUNT
PERMITTED BY APPLICABLE LAW.
(b) AS STATED ABOVE, IT IS THE INTENTION OF THE PARTIES
HERETO TO COMPLY STRICTLY WITH ALL APPLICABLE USURY LAWS. IN
FURTHERANCE OF THE FOREGOING, IF, CONTRARY TO THE INTENTION OF THE
PARTIES HERETO, ANY MATTERS (OTHER THAN THOSE RELATING TO THE CREATION
OF THE LEASEHOLD ESTATES UNDER THIS LEASE AND THE EXERCISE OF REMEDIES
WITH RESPECT TO ONE OR MORE LEASE EVENTS OF DEFAULT), INCLUDING THE
PAYMENT OF ANY RENT (REGARDLESS OF HOW CHARACTERIZED) OR ANY OTHER
AMOUNT PURSUANT TO THIS LEASE OR ANY OF THE
31
242
OTHER OPERATIVE AGREEMENTS IS DETERMINED TO BE GOVERNED BY THE LAWS OF
THE STATE OF TEXAS OR IF THIS LEASE, ALONE OR IN COMBINATION WITH THE
OTHER OPERATIVE AGREEMENTS, IS DETERMINED TO CONSTITUTE NOT A LEASE BUT
A FINANCING GOVERNED BY THE LAWS OF THE STATE OF TEXAS SECURED BY THE
PROPERTY THEN, AND IN ANY SUCH EVENT, EACH OF THE PARTIES HERETO AGREES
THAT IT IS ITS INTENTION TO COMPLY WITH ALL USURY LAWS APPLICABLE TO IT
REGARDING THE CONTRACTING FOR, AND THE TAKING, RESERVING, CHARGING,
COLLECTION, PAYMENT AND RECEIPT OF, INTEREST (WHICH, FOR PURPOSES OF
THIS SECTION 30.14, SHALL BE DEEMED TO INCLUDE ANY COMPENSATION
RECEIVED BY LESSOR FOR THE USE, FORBEARANCE OR DETENTION OF MONEY (AS
SUCH TERMS ARE USED IN THE TEXAS FINANCE CODE) UNDER OR IN CONNECTION
WITH THIS LEASE AND THE OTHER OPERATIVE AGREEMENTS), WHETHER SUCH LAWS
ARE NOW OR HEREAFTER IN EFFECT AND WHETHER SUCH LAWS ARE THOSE OF THE
UNITED STATES, OR OF THE STATE OF TEXAS OR ANY OTHER APPLICABLE
JURISDICTION. IN THIS CONNECTION, INSOFAR AS TEXAS LAW IS ULTIMATELY
DETERMINATIVE OF THE MAXIMUM NONUSURIOUS AMOUNT PERMISSIBLE UNDER
APPLICABLE LAW, SAME SHALL BE COMPUTED ON THE BASIS OF THE "WEEKLY
CEILING" FROM TIME TO TIME IN EFFECT REFERRED TO IN SECTIONS 303.002,
303.003 AND 303.009 OF THE TEXAS FINANCE CODE; PROVIDED, HOWEVER, THAT
TO THE FULLEST EXTENT PERMITTED BY THE TEXAS FINANCE CODE LESSOR
RESERVES THE RIGHT TO CHANGE FROM TIME TO TIME THE CEILING ON WHICH THE
MAXIMUM NONUSURIOUS AMOUNT PERMISSIBLE UNDER APPLICABLE LAW IS BASED
UNDER SUCH TEXAS LAWS BY GIVING WRITTEN NOTICE THEREOF TO THE LESSEE IN
THE MANNER AND TO THE EXTENT REQUIRED BY SUCH TEXAS LAWS.
[signature page follows]
243
IN WITNESS WHEREOF, the parties have caused this Lease to be duly
executed and delivered as of the date first above written.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION, as
Owner Trustee under the
Lexi Trust 2000-1, as
Lessor
By: /s/ C. Xxxxx Xxxxxxx
------------------------------------
Name: C. Xxxxx Xxxxxxx
------------------------------------
Title: Vice President
------------------------------------
LEXICON GENETICS INCORPORATED, as Lessee
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: EVP & CFO
------------------------------------
Receipt of this original counterpart of the foregoing
Lease is hereby acknowledged as the date hereof
BANK OF AMERICA, N.A.,
as the Agent
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
------------------------------------
Title: Vice President
------------------------------------
244
EXHIBIT A TO THE LEASE
LEASE SUPPLEMENT NO. ___
THIS LEASE SUPPLEMENT NO. ___ (this "Lease Supplement") dated as of
_____________, 200___ between FIRST SECURITY BANK, NATIONAL ASSOCIATION, a
national banking association, as Owner Trustee under the Lexi Trust 2000-1, as
lessor (the "Lessor"), and LEXICON GENETICS INCORPORATED, a Delaware
corporation, as lessee (the "Lessee").
WHEREAS, Lessor is the owner or will be the owner of the Property
described on Schedule 1 hereto (the "Leased Property") and wishes to lease the
same to Lessee;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS; RULES OF USAGE. For purposes of this Lease
Supplement, capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in Appendix A to the Participation Agreement,
dated as of October 19, 2000, among Lessee, Lessor, not individually, except as
expressly stated therein, but solely as the Owner Trustee under the Lexi Trust
2000-1, the various banks and other lending institutions which are parties
thereto from time to time, as the Holders, the various banks and other lending
institutions which are parties thereto from time to time, as the Lenders, and
Bank of America, N.A., as the Agent for the Lenders and respecting the Security
Documents, as the Agent for the Secured Parties, as such may be amended,
modified, extended, supplemented, restated and/or replaced from time to time.
SECTION 2. THE PROPERTIES. Attached hereto as Schedule 1 is the
description of the Leased Property, with an Equipment Schedule attached hereto
as Schedule 1-A, an Improvement Schedule attached hereto as Schedule 1-B and [A
LEGAL DESCRIPTION OF THE LAND / A COPY OF THE GROUND LEASE] attached hereto as
Schedule 1-C. Effective upon the execution and delivery of this Lease Supplement
by Lessor and Lessee, the Leased Property shall be subject to the terms and
provisions of the Lease. Without further action, any and all additional
Equipment funded under the Operative Agreements and any and all additional
Improvements made to the Land shall be deemed to be titled to the Lessor and
subject to the terms and conditions of the Lease and this Lease Supplement.
This Lease Supplement together with the provisions of the Lease shall
constitute a mortgage, deed of trust, security agreement and financing statement
under the laws of the state in which the Leased Property is situated. The
maturity date of the obligations secured hereby shall be October 19, 2006 unless
extended to not later than October 19, 2013. Lessee hereby ratifies the
provisions of Section 7.1(b) and 17.5 of the Lease and grants liens and security
interests in the Leased Property in accordance with such provisions.
For purposes of provisions of the Lease and this Lease Supplement
related to the creation and enforcement of the Lease and this Lease Supplement
as a security agreement and a fixture filing, Lessee is the debtor and Lessor is
the secured party. The mailing addresses of the debtor (Lessee herein) and of
the secured party (Lessor herein) from which information concerning security
interests hereunder may be obtained are set forth on the signature pages hereto.
A carbon, photographic or other reproduction of the Lease and this Lease
Supplement or of any financing statement related to the Lease and this Lease
Supplement shall be sufficient as a financing statement for any of the purposes
referenced herein.
SECTION 3. USE OF PROPERTY. At all times during the Term with respect
to each Property, Lessee will comply with all obligations under and (to the
extent no Event of Default exists and provided, that such exercise will not
impair the value of such Property) shall be permitted to exercise all rights and
remedies under, all operation and easement agreements and related or similar
agreements applicable to such Property.
SECTION 4. RATIFICATION; INCORPORATION BY REFERENCE. Except as
specifically modified hereby, the terms and provisions of the Lease and the
Operative Agreements are hereby ratified and confirmed and remain in full force
and effect. The Lease is hereby incorporated herein by reference as though
restated herein in its entirety.
A-1
245
SECTION 5. ORIGINAL LEASE SUPPLEMENT. The single executed original of
this Lease Supplement marked "THIS COUNTERPART IS THE ORIGINAL EXECUTED
COUNTERPART" on the signature page thereof and containing the receipt of the
Agent therefor on or following the signature page thereof shall be the original
executed counterpart of this Lease Supplement (the "Original Executed
Counterpart"). To the extent that this Lease Supplement constitutes chattel
paper, as such term is defined in the Uniform Commercial Code as in effect in
any applicable jurisdiction, no security interest in this Lease Supplement may
be created through the transfer or possession of any counterpart other than the
Original Executed Counterpart.
SECTION 6. GOVERNING LAW. THIS LEASE SUPPLEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH
CAROLINA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES, EXCEPT AS TO MATTERS
RELATING TO THE CREATION OF THE LEASEHOLD ESTATES HEREUNDER AND THE EXERCISE OF
REMEDIES WITH RESPECT TO ONE OR MORE LEASE EVENTS OF DEFAULT, WHICH SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
WITHOUT LIMITING THE FOREGOING, IN THE EVENT THAT THE LEASE AS MODIFIED BY THIS
LEASE SUPPLEMENT IS DEEMED TO CONSTITUTE A FINANCING, WHICH IS THE INTENTION OF
THE PARTIES, THE LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES, SHALL GOVERN THE CREATION, TERMS AND PROVISIONS OF
THE INDEBTEDNESS EVIDENCED HEREBY, BUT ANY LIEN CREATED HEREBY AND THE
ENFORCEMENT OF SAID LIEN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS.
SECTION 7. MORTGAGE; POWER OF SALE. Without limiting any other remedies
set forth in the Lease, in the event that a court of competent jurisdiction
rules that the Lease constitutes a mortgage, deed of trust or other secured
financing as is the intent of the parties, then Lessor and Lessee agree that
Lessee hereby grants a Lien against the Leased Property WITH POWER OF SALE, and
that, upon the occurrence of any Lease Event of Default, Lessor shall have the
power and authority, to the extent provided by law, after prior notice and lapse
of such time as may be required by law, to foreclose its interest (or cause such
interest to be foreclosed) in all or any part of the Leased Property.
SECTION 8. COUNTERPART EXECUTION. This Lease Supplement may be executed
in any number of counterparts and by each of the parties hereto in separate
counterparts, all such counterparts together constituting but one and the same
instrument.
For purposes of the provisions of this Lease Supplement concerning this
Lease Supplement constituting a security agreement and fixture filing, the
addresses of the debtor (Lessee herein) and the secured party (Lessor herein),
from whom information may be obtained about this Lease Supplement, are as set
forth on the signature pages hereto.
[The remainder of this page has been intentionally left blank.]
A-2
246
IN WITNESS WHEREOF, each of the parties hereto has caused this Lease
Supplement to be duly executed by an officer thereunto duly authorized as of the
date and year first above written.
FIRST SECURITY BANK,
NATIONAL ASSOCIATION, as
Owner Trustee under the
Lexi Trust 2000-1, as
Lessor
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
First Security Bank, National Association
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxx X. Xxxxx
Vice President
LEXICON GENETICS INCORPORATED, as Lessee
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxx
Receipt of this original counterpart
of the foregoing Lease Supplement
is hereby acknowledged as the date hereof.
BANK OF AMERICA, N.A., as the Agent
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Bank of America Tower
Mailcode: TX9-329-11-01
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxx Xxxxxx
A-3
247
SCHEDULE 1
TO LEASE SUPPLEMENT NO. ____
(Description of the Leased Property)
A-4
248
SCHEDULE 1-A
TO LEASE SUPPLEMENT NO. ____
(Equipment)
A-5
249
SCHEDULE 1-B
TO LEASE SUPPLEMENT NO. ____
(Improvements)
A-6
250
SCHEDULE 1-C
TO LEASE SUPPLEMENT NO. ____
[(LAND)/
(GROUND LEASE)]
A-7
251
EXHIBIT B TO THE LEASE
[MODIFY OR SUBSTITUTE SHORT FORM LEASE AS
NECESSARY FOR LOCAL LAW REQUIREMENTS]
Recordation requested by:
Xxxxx & Xxx Xxxxx, PLLC
After recordation return to:
Xxxxx & Xxx Xxxxx, PLLC (WMA)
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxx, XX 00000-0000
Space above this line for Recorder's use
--------------------------------------------------------------------------------
MEMORANDUM OF LEASE AGREEMENT
AND
LEASE SUPPLEMENT NO. ____
THIS MEMORANDUM OF LEASE AGREEMENT AND LEASE SUPPLEMENT NO. ___
("Memorandum"), dated as of _____________, 200___, is by and between FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, as Owner
Trustee under the Lexi Trust 2000-1, with an office at 00 Xxxxx Xxxx Xxxxxx,
Xxxx Xxxx Xxxx, Xxxx 00000 (hereinafter referred to as "Lessor") and LEXICON
GENETICS INCORPORATED, a Delaware corporation, with an office at 4000 Research
Forest Drive, The Woodlands, Xxxxxxxxxx County, Texas, 77381 (hereinafter
referred to as "Lessee").
WITNESSETH:
That for value received, Lessor and Lessee do hereby covenant, promise
and agree as follows:
1. DEMISED PREMISES AND DATE OF LEASE. Lessor has leased to Lessee, and
Lessee has leased from Lessor, for the Term (as hereinafter defined), certain
real property and other property located in ________________, which is described
in the attached Schedule 1 (the "Property"), pursuant to the terms of a Lease
Agreement between Lessor and Lessee dated as of October 19, 2000 (as such may be
amended, modified, extended, supplemented, restated and/or replaced from time to
time, "Lease") and a Lease Supplement No. _____ between Lessor and Lessee dated
as of ______________ (the "Lease Supplement").
The Lease and the Lease Supplement shall constitute a mortgage, deed of
trust and security agreement and financing statement under the laws of the state
in which the Property is situated. The maturity date of the obligations secured
thereby shall be October 19, 2006, unless extended to not later than October 19,
2013.
For purposes of provisions of the Lease and the Lease Supplement
related to the creation and enforcement of the Lease and the Lease Supplement as
a security agreement and a fixture filing, Lessee is the debtor and Lessor is
the secured party. The mailing addresses of the debtor (Lessee herein) and of
the secured party (Lessor herein) from which information concerning security
interests hereunder may be obtained are as set forth on the signature pages
hereof. A carbon, photographic or other reproduction of this Memorandum or of
any financing statement related to the Lease and the Lease Supplement shall be
sufficient as a financing statement for any of the purposes referenced herein.
B-1
252
2. TERM, RENEWAL, EXTENSION AND PURCHASE OPTION. The term of the
Lease for the Property ("Term") commenced as of [__________, 200__] and shall
end as of [_________, 200__], unless the Term is extended or earlier terminated
in accordance with the provisions of the Lease. The Lease contains provisions
for renewal and extension. The tenant has a purchase option under the Lease.
3. TAX PAYER NUMBERS.
Lessor's tax payer number: __________________.
Lessee's tax payer number: __________________.
4. MORTGAGE; POWER OF SALE. Without limiting any other remedies
set forth in the Lease, in the event that a court of competent jurisdiction
rules that the Lease constitutes a mortgage, deed of trust or other secured
financing as is the intent of the parties, then Lessor and Lessee agree that
Lessee has granted, pursuant to the terms of the Lease and the Lease Supplement,
a Lien against the Property WITH POWER OF SALE, and that, upon the occurrence
and during the continuance of any Lease Event of Default, Lessor shall have the
power and authority, to the extent provided by law, after prior notice and lapse
of such time as may be required by law, to foreclose its interest (or cause such
interest to be foreclosed) in all or any part of the Property.
5. EFFECT OF MEMORANDUM. The purpose of this instrument is to
give notice of the Lease and the Lease Supplement and their respective terms,
covenants and conditions to the same extent as if the Lease and the Lease
Supplement were fully set forth herein. This Memorandum shall not modify in any
manner the terms, conditions or intent of the Lease or the Lease Supplement and
the parties agree that this Memorandum is not intended nor shall it be used to
interpret the Lease or the Lease Supplement or determine the intent of the
parties under the Lease or the Lease Supplement.
[The remainder of this page has been intentionally left blank.]
B-2
253
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument as of the day and year first written.
LESSOR:
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Owner Trustee under the Lexi Trust 2000-1
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
First Security Bank, National Association
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxx X. Xxxxx
Vice President
LESSEE:
LEXICON GENETICS INCORPORATED, as Lessee
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxx
B-3
254
SCHEDULE 1
(Description of Property)
B-4
255
[CONFORM TO STATE LAW REQUIREMENTS]
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Memorandum of Lease Agreement and Lease Supplement No.
_____ was acknowledged before me, the undersigned Notary Public, in the County
of _________________ this _____ day of ______________, by ________________, as
__________________ of FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national
banking association, as Owner Trustee under the Lexi Trust 2000-1, on behalf of
the Owner Trustee.
[Notarial Seal]
---------------------------
Notary Public
My commission expires: ____________
STATE OF _______________ )
) ss:
COUNTY OF ______________ )
The foregoing Memorandum of Lease Agreement and Lease Supplement No.
_____ was acknowledged before me, the undersigned Notary Public, in the County
of _________________ this _____ day of ______________, by ________________, as
__________________ of LEXICON GENETICS INCORPORATED, a Delaware corporation, on
behalf of the corporation.
[Notarial Seal]
---------------------------
Notary Public
My commission expires:____________
B-5
256
--------------------------------------------------------------------------------
SECURITY AGREEMENT
Dated as of October 19, 2000
between
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Owner Trustee under the Lexi Trust 2000-1,
and
BANK OF AMERICA, N.A.,
as the Agent for the Lenders and the Holders
and accepted and agreed to by
LEXICON GENETICS INCORPORATED,
as Lessee and Construction Agent
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TABLE OF CONTENTS
1. Definitions.......................................................................1
2. Grant of Security Interest........................................................3
3. Payment of Obligations............................................................5
4. Other Covenants...................................................................5
5. Default; Remedies.................................................................5
6. Remedies Not Exclusive............................................................6
7. Performance by the Agent of the Borrower's Obligations............................6
8. Duty of the Agent.................................................................6
9. Powers Coupled with an Interest...................................................7
10.Execution of Financing Statements.................................................7
00.Xxxxxxxx Agreement Under Uniform Commercial Code..................................7
12.Authority of the Agent............................................................8
13.Notices...........................................................................8
14.Severability......................................................................8
15.Amendment in Writing; No Waivers; Cumulative Remedies.............................8
16.Section Headings..................................................................9
17.Successors and Assigns............................................................9
18.The Borrower's Waiver of Rights...................................................9
19.GOVERNING LAW.....................................................................9
20.Obligations Are Without Recourse.................................................10
21.Partial Release; Full Release....................................................10
22.Miscellaneous....................................................................10
23.Conflicts with Participation Agreement...........................................11
24.LESSEE as a Party................................................................11
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SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of October 19, 2000 (as amended,
modified, extended, supplemented, restated and/or replaced from time to time,
this "Security Agreement"), is made between FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association, as Owner Trustee under the Lexi
Trust 2000-1 (the "Borrower"), and BANK OF AMERICA, N.A., a national banking
association ("Bank"), as agent for (a) the Lenders (hereinafter defined) under
the Credit Agreement dated as of October 19, 2000 (as amended, modified,
extended, supplemented, restated and/or replaced from time to time, the "Credit
Agreement") by and among the Borrower, the lending institutions from time to
time parties thereto (the "Lenders") and Bank as the agent for the Lenders and
(b) the holders of the certificates issued pursuant to the Trust Agreement dated
as of October 19, 2000 (as amended, modified, extended, supplemented, restated
and/or replaced from time to time, the "Trust Agreement") among the holders from
time to time parties thereto (the "Holders") and the Borrower, in its individual
capacity thereunder and in its capacity as Owner Trustee thereunder. The Agent,
the Lenders and the Holders, together with their successors and permitted
assigns, are collectively referred to hereinafter as the "Secured Parties",
Bank, in its capacity as agent for the Secured Parties is referred to
hereinafter as the "Agent", and this Security Agreement is accepted and agreed
to by LEXICON GENETICS INCORPORATED, a Delaware corporation.
Preliminary Statement
Pursuant to the Credit Agreement, the Lenders have severally agreed to
make Loans to the Borrower in an aggregate amount not to exceed the aggregate
Commitments upon the terms and subject to the conditions set forth therein, to
be evidenced by the Notes issued by the Borrower under the Credit Agreement.
Pursuant to the Trust Agreement, the Holders have agreed to purchase the
ownership interests of the Trust created thereby in an aggregate amount not to
exceed the aggregate Holder Commitments upon the terms and subject to the
conditions set forth therein, to be evidenced by the Certificates issued by the
Borrower under the Trust Agreement. The Borrower is, or shall be upon the date
of the initial Advance with respect to each Property, the legal and beneficial
owner of such Property (except the Borrower may have a ground leasehold interest
in certain Properties pursuant to one or more Ground Leases).
It is a condition, among others, to the obligation of the Lenders to
make their respective Loans to the Borrower under the Credit Agreement and the
Holders to make their respective Holder Advances under the Trust Agreement that
the Borrower shall have executed and delivered this Security Agreement to the
Agent, for the benefit of the Secured Parties.
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders to make their respective Loans under the Credit Agreement and to induce
the Holders to make their respective Holder Advances under the Trust Agreement,
the Borrower hereby agrees with the Agent, for the benefit of the Secured
Parties, as follows:
1. DEFINITIONS.
(a) As used herein, the following terms shall have the following
respective meanings:
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"Accounts" shall mean all "accounts," as such term is defined in
the Uniform Commercial Code, now owned or hereafter acquired by the
Borrower.
"Chattel Paper" shall mean any and all "chattel paper," as such
term is defined in the Uniform Commercial Code, now owned or hereafter
acquired by the Borrower, wherever located.
"Collateral Account" shall mean, the securities collateral
account (including without limitation the Cash Equivalents and other
securities in such accounts) which is the subject of the Collateral
Agreement and held with the Securities Intermediary as account number
873-758.
"Collateral Agreement" shall mean the Assignment of Collateral
Account dated on or about the Initial Closing Date executed by Lexicon
Genetics Incorporated and agreed and accepted by Bank of America, N.A.
"Documents" shall mean any and all "documents", as such term is
defined in the Uniform Commercial Code, now owned or hereafter acquired
by the Borrower, wherever located.
"General Intangibles" shall mean any and all "general
intangibles," as such term is defined in the Uniform Commercial Code,
now owned or hereafter acquired by the Borrower.
"Holders" shall have the meaning specified in the first paragraph
of this Security Agreement.
"Instruments" shall mean any and all "instruments", as such term
is defined in the Uniform Commercial Code, now owned or hereafter
acquired by the Borrower, wherever located.
"Investment Property" shall mean any and all "investment
property," as such term is defined in the Uniform Commercial Code, now
owned or hereafter acquired by the Borrower, wherever located.
"Lenders" shall have the meaning specified in the first paragraph
of this Security Agreement.
"Lessee" shall mean Lexicon Genetics Incorporated, a Delaware
corporation, its successors, permitted assigns and permitted
transferees.
"Obligations" shall mean any and all obligations now existing or
hereafter arising under the Credit Agreement, the Notes, the Trust
Agreement, the Certificates and/or any other Operative Agreement.
"Proceeds" shall mean any and all "proceeds," as such term is
defined in the Uniform Commercial Code, at any time received or acquired
by the Borrower with respect to the Trust Property.
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(b) Capitalized terms used but not otherwise defined in this
Security Agreement shall have the respective meanings specified in the
Credit Agreement or Appendix A to the Participation Agreement dated as
of October 19, 2000 (as amended, modified, extended, supplemented,
restated and/or replaced from time to time in accordance with the
applicable provisions thereof, the "Participation Agreement") among
Lessee, the Borrower, the Holders, the Lenders and BANK OF AMERICA, N.A.
as agent for the Lenders and, respecting the Security Documents, as the
agent for the Secured Parties.
(c) The rules of usage set forth in Appendix A to the
Participation Agreement shall apply to this Agreement.
2. GRANT OF SECURITY INTEREST.
To secure payment of all the amounts advanced under the Credit Agreement
in connection with the Notes, all the amounts advanced or contributed under the
Trust Agreement in connection with the Certificates and all other amounts now or
hereafter owing to the Lenders, the Holders or the Agent thereunder or under any
other Operative Agreement, THE BORROWER HEREBY CONVEYS, GRANTS, ASSIGNS,
TRANSFERS, HYPOTHECATES, MORTGAGES AND SETS OVER TO THE AGENT FOR THE BENEFIT OF
THE SECURED PARTIES, A FIRST PRIORITY SECURITY INTEREST IN AND LIEN ON THE TRUST
ESTATE, WHETHER NOW EXISTING OR HEREAFTER ACQUIRED INCLUDING WITHOUT LIMITATION
THE FOLLOWING:
(a) all right, title and interest of the Borrower in and to
the Operative Agreements now existing or hereafter acquired by the
Borrower (including without limitation all rights to payment and
indemnity rights of the Borrower under the Participation Agreement) (all
of the foregoing in this paragraph (a) being referred to as the "Rights
in Operative Agreements");
(b) all right, title and interest of the Borrower in and to
all of the Equipment;
(c) all right, title and interest of the Borrower in and to
all of the Fixtures;
(d) all the estate, right, title, claim or demand whatsoever
of the Borrower, in possession or expectancy, in and to each Property,
Fixture or Equipment or any part thereof;
(e) all right, title and interest of the Borrower in and to
all substitutes, modifications and replacements of, and all additions,
accessions and improvements to, the Fixtures and Equipment, subsequently
acquired or leased by the Borrower or constructed, assembled or placed
by the Borrower on any Property, immediately upon such acquisition,
lease, construction, assembling or placement, and in each such case,
without any further conveyance, assignment or other act by the Borrower;
(f) all right, title and interest of the Borrower in, to and
under books and records relating to or used in connection with the
operation of one (1) or more Properties
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or any part thereof; all rights of the Borrower to the payment of money
and all property; and all rights in and to any causes of action or
choses in action now or hereafter existing in favor of the Borrower and
all rights to any recoveries therefrom;
(g) all right, title and interest of the Borrower in and to
all unearned premiums under insurance policies now held or subsequently
obtained by the Lessee relating to one or more Properties and the
Borrower's interest in and to all proceeds of any insurance policies
maintained by or for the benefit of the Borrower, including without
limitation any right to collect and receive such proceeds; and all
awards and other compensation, including without limitation the interest
payable thereon and any right to collect and receive the same, made to
the present or any subsequent owner of any Property for the taking by
eminent domain, condemnation or otherwise, of all or any part of any
Property or any easement or other right therein;
(h) all right, title and interest of the Borrower in and to
(i) all consents, licenses, certificates and other governmental
approvals relating to construction, completion, use or operation of any
Property or any part thereof and (ii) all Plans and Specifications
relating to any Property;
(i) all right, title and interest of the Borrower in and to
all Rent and all other rents, payments, purchase prices, receipts,
revenues, issues and profits payable under the Lease or pursuant to any
other lease with respect to any Property;
(j) all right, title and interest of the Borrower in and to
all Instruments and Documents;
(k) all right, title and interest of the Borrower in and to
all General Intangibles;
(l) all right, title and interest of the Borrower in and to
all Chattel Paper (including without limitation all rights under the
Lease) and each Ground Lease;
(m) all right, title and interest of the Borrower in and to
all money, cash or cash equivalent and bank accounts;
(n) all right, title and interest of the Borrower in and to
all Accounts;
(o) all right, title and interest of the Borrower in and to
all proceeds of letters of credit issued in favor of the Borrower in
connection with any Property;
(p) all right, title and interest of the Borrower in and to
all Proceeds, both cash and noncash, of any of the foregoing.
(All of the foregoing property and rights and interests now owned or
held or subsequently acquired by the Borrower and described in the foregoing
clauses (a) through (p) are collectively referred to as the "Trust Property").
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TO HAVE AND TO HOLD the Trust Property and the rights and privileges
hereby granted unto the Agent (for the benefit of the Secured Parties) its
successors and assigns for the uses and purposes set forth, until all of the
obligations owing to the Lenders, the Holders and the Agent under the Operative
Agreements are paid in full; provided, that EXCLUDED from the Trust Property at
all times and in all respects shall be all Excepted Payments.
3. PAYMENT OF OBLIGATIONS.
The Borrower shall pay all Obligations in accordance with the terms of
the Credit Agreement, the Notes, the Trust Agreement, the Certificates and the
other Operative Agreements and perform each term to be performed by it under the
Credit Agreement, the Notes, the Trust Agreement, the Certificates and the other
Operative Agreements.
4. OTHER COVENANTS.
At any time and from time to time, upon the written request of the
Agent, and at the expense of the Borrower (with funds provided by the Lessee for
such purpose), the Borrower will promptly and duly execute and deliver such
further instruments and documents and take such further actions as the Agent
reasonably may request for the purposes of obtaining or preserving the full
benefits of this Security Agreement and of the rights and powers granted by this
Security Agreement.
5. DEFAULT; REMEDIES.
(a) If a Credit Agreement Event of Default has occurred and
is continuing:
(i) the Agent, in addition to all other
remedies available at law or in equity, shall have the right
forthwith to enter upon any Trust Property (or any other place
where any component of any Trust Property is located at such
time) without charge, and take possession of all or any portion
of the Trust Property, and to sell, re-let or otherwise
dispossess itself of the Trust Property and receive the rents,
issues and profits thereof, to make repairs and to apply said
rentals and profits, after payment of all necessary or proper
charges and expenses, on account of the amounts hereby secured
(subject to the Excepted Payments); and
(ii) the Agent, shall, as a matter of right,
be entitled to the appointment of a receiver for the Trust
Property, and the Borrower hereby consents to such appointment
and waives notice of any application therefor.
(b) If a Credit Agreement Event of Default has occurred and
is continuing, the Agent may proceed by an action at law, suit in equity
or other appropriate proceeding, to protect and enforce its rights,
whether for the foreclosure of the Lien of this Security Agreement, or
for the specific performance of any agreement contained herein or for an
injunction against the violation of any of the terms hereof. The
proceeds of any sale of any of the Trust Property shall be applied
pursuant to Section 8.7 of the Participation Agreement. In addition, the
Agent may proceed under Section 11 hereof.
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(c) The Borrower hereby waives the benefit of all
appraisement, valuation, stay, extension and redemption laws now or
hereafter in force and all rights of marshalling in the event of any
sale of the Trust Property or any portion thereof or interest therein.
6. REMEDIES NOT EXCLUSIVE.
The Agent shall be entitled to enforce payment of the indebtedness and
performance of the Obligations and to exercise all rights and powers under this
Security Agreement or under any of the other Operative Agreements or other
agreements or any laws now or hereafter in force, notwithstanding some or all of
the Obligations may now or hereafter be otherwise secured, whether by deed of
trust, mortgage, security agreement, pledge, Lien, assignment or otherwise.
Neither the acceptance of this Security Agreement nor its enforcement, shall
prejudice or in any manner affect the Agent's right to realize upon or enforce
any other security now or hereafter held by the Agent, it being agreed that the
Agent shall be entitled to enforce this Security Agreement and any other
security now or hereafter held by the Agent in such order and manner as the
Agent may determine in its absolute discretion. No remedy conferred hereunder or
under any other Operative Agreement upon or reserved to the Agent is intended to
be exclusive of any other remedy herein or therein or by law provided or
permitted, but each shall be cumulative and shall be in addition to every other
remedy given hereunder or thereunder or now or hereafter existing at law or in
equity or by statute. Every power or remedy given by any of the Operative
Agreements to the Agent or to which it may otherwise be entitled, may be
exercised, concurrently or independently, from time to time and as often as may
be deemed expedient by the Agent. In no event shall the Agent, in the exercise
of the remedies provided in this Security Agreement (including without
limitation in connection with the assignment of Rents to the Agent, or the
appointment of a receiver and the entry of such receiver onto all or any part of
the Land), be deemed a "mortgagee in possession" or a "pledgee in possession",
and the Agent shall not in any way be made liable for any act, either of
commission or omission, in connection with the exercise of such remedies.
7. PERFORMANCE BY THE AGENT OF THE BORROWER'S OBLIGATIONS.
If the Borrower fails to perform or comply with any of its agreements
contained herein the Agent, at its option, but without any obligation so to do,
may perform or comply, or otherwise cause performance or compliance, with such
agreement. The expenses of the Agent incurred in connection with actions
undertaken as provided in this Section 7, together with interest thereon at a
rate per annum equal to the Overdue Rate, from the date of payment by the Agent
to the date reimbursed by the Borrower, shall be payable by the Borrower (with
funds provided by the Lessee for such purpose) to the Agent on demand and
constitutes part of the Obligations secured hereby.
8. DUTY OF THE AGENT.
The Agent's sole duty with respect to the custody, safekeeping and
physical preservation of any Trust Property in its possession, under Section
9-207 of the Uniform Commercial Code or otherwise, shall be to deal with it in
the same manner as the Agent deals with similar property for its own account.
Neither the Agent, any Lender, any Holder nor any of their respective directors,
officers, employees, shareholders, partners or agents shall be liable for
failure to demand, collect
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or realize upon any of the Trust Property or for any delay in doing so or shall
be under any obligation to sell or otherwise dispose of any Trust Property upon
the request of the Borrower or any other Person or to take any other action
whatsoever with regard to the Trust Property or any part thereof.
9. POWERS COUPLED WITH AN INTEREST.
All powers, authorizations and agencies contained in this Security
Agreement are coupled with an interest and are irrevocable until this Security
Agreement is terminated and the Liens created hereby are released.
10. EXECUTION OF FINANCING STATEMENTS.
Pursuant to Section 9-402 of the Uniform Commercial Code, the Borrower
authorizes the Agent at the expense of the Borrower (such amounts to be paid
with funds provided by the Lessee for such purpose) to file financing statements
with respect to the Trust Property under this Security Agreement without the
signature of the Borrower in such form and in such filing offices as the Agent
reasonably determines appropriate to perfect the security interests of the Agent
under this Security Agreement. A carbon, photographic or other reproduction of
this Security Agreement shall be sufficient as a financing statement for filing
in any jurisdiction. For purposes of such financing statement, the Borrower
shall be deemed to be the debtor, and the Agent shall be deemed to be the
secured party. The address of the Borrower is 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx
Xxxx, Xxxx 00000, Attention: Xxx X. Xxxxx, Vice President, and the address of
the Agent is Bank of America, N.A., Bank of America Tower, Mailcode:
TX9-329-11-01, 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxx, 00000-0000, Attention: Xxxx
Xxxxxx.
11. SECURITY AGREEMENT UNDER UNIFORM COMMERCIAL CODE.
(a) It is the intention of the parties hereto that this
Security Agreement as it relates to matters of the grant, perfection and
priority of security interests the subject hereof, shall constitute a
security agreement within the meaning of the Uniform Commercial Code of
the States in which the Trust Property is located. If a Credit Agreement
Event of Default shall occur, then in addition to having any other right
or remedy available at law or in equity, the Agent may proceed under the
applicable Uniform Commercial Code and exercise such rights and remedies
as may be provided to a secured party by such Uniform Commercial Code
with respect to all or any portion of the Trust Property which is
personal property (including without limitation taking possession of and
selling such property). If the Agent shall elect to proceed under the
Uniform Commercial Code, then fifteen (15) days' notice of sale of the
personal property shall be deemed reasonable notice and the reasonable
expenses of retaking, holding, preparing for sale, selling and the like
incurred by the Agent shall include, but not be limited to, attorneys'
fees and legal expenses. At the Agent's request, the Borrower shall
assemble such personal property and make it available to the Agent at a
place designated by the Agent which is reasonably convenient to both
parties.
(b) The Borrower, upon request by the Agent from time to
time, shall execute, acknowledge and deliver to the Agent one or more
separate security agreements, in form satisfactory to the Agent,
covering all or any part of the Trust Property and will further
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execute, acknowledge and deliver, or cause to be executed, acknowledged
and delivered, any financing statement, affidavit, continuation
statement or certificate or other document as the Agent may request in
order to perfect, preserve, maintain, continue or extend the security
interest under, and the priority of the Liens granted by, this Security
Agreement and such security instrument. The Borrower further agrees to
pay to the Agent (with funds provided by the Lessee for such purpose) on
demand all costs and expenses incurred by the Agent in connection with
the preparation, execution, recording, filing and re-filing of any such
document and all reasonable costs and expenses of any record searches
for financing statements the Agent shall reasonably require. The filing
of any financing or continuation statements in the records relating to
personal property or chattels shall not be construed as in any way
impairing the right of the Agent to proceed against any property
encumbered by this Security Agreement.
12. AUTHORITY OF THE AGENT.
The Borrower acknowledges that the rights and responsibilities of the
Agent under this Security Agreement with respect to any action taken by the
Agent or the exercise or non-exercise by the Agent of any option, voting right,
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Security Agreement shall be governed by the Credit Agreement
and Section 8.6 of the Participation Agreement and by such other agreements with
respect thereto as may exist from time to time (until such time as all amounts
due and owing to the Secured Parties and the Agent under the Operative
Agreements have been paid in full), but the Agent shall be conclusively presumed
to be acting as agent for the Secured Parties with full and valid authority so
to act or refrain from acting, and the Borrower shall be under no obligation, or
entitlement, to make any inquiry respecting such authority.
13. NOTICES.
All notices required or permitted to be given under this Security
Agreement shall be in writing and delivered as provided in Section 12.2 of the
Participation Agreement.
14. SEVERABILITY.
Any provision of this Security Agreement which is prohibited or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof.
15. AMENDMENT IN WRITING; NO WAIVERS; CUMULATIVE REMEDIES.
(a) None of the terms or provisions of this Security
Agreement may be waived, amended, supplemented or otherwise modified
except in accordance with the terms of Section 12.4 of the Participation
Agreement.
(b) No failure to exercise, nor any delay in exercising, on
the part of the Agent, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Agent of any right or remedy hereunder on any one
occasion shall not be
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construed as a bar to any right or remedy which the Agent would
otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
16. SECTION HEADINGS.
The section headings used in this Security Agreement are for convenience
of reference only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
17. SUCCESSORS AND ASSIGNS.
This Security Agreement shall be binding upon the successors of the
Borrower, and the Borrower shall not assign any of its rights or obligations
hereunder or with respect to any of the Trust Property without the prior written
consent of the Agent. This Security Agreement shall inure to the benefit of the
Agent, the Lenders, the Holders and their respective successors and assigns, in
accordance with their respective interest herein.
18. THE BORROWER'S WAIVER OF RIGHTS.
Except as otherwise set forth herein, to the fullest extent permitted by
law, the Borrower waives the benefit of all laws now existing or that may
subsequently be enacted providing for (a) any appraisement before sale of any
portion of the Trust Property, (b) any extension of the time for the enforcement
of the collection of the indebtedness or the creation or extension of a period
of redemption from any sale made in collecting such debt and (c) exemption of
any portion of the Trust Property from attachment, levy or sale under execution
or exemption from civil process. Except as otherwise set forth herein, to the
fullest extent the Borrower may do so, the Borrower agrees that the Borrower
will not at any time insist upon, plead, claim or take the benefit or advantage
of any law now or hereafter in force providing for any appraisement, valuation,
stay, exemption, extension or redemption, or requiring foreclosure of this
Security Agreement before exercising any other remedy granted hereunder and the
Borrower, for the Borrower and its successors and assigns, and for any and all
Persons ever claiming any interest in the Trust Property, to the extent
permitted by law, hereby waives and releases all rights of redemption,
valuation, appraisement, stay of execution, notice of election to mature or
declare due the whole of the Obligations and marshalling in the event of
foreclosure of the Liens hereby created.
19. GOVERNING LAW.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 11(a) HEREOF, THIS
SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NORTH CAROLINA (WITHOUT
GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW).
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20. OBLIGATIONS ARE WITHOUT RECOURSE.
The provisions of the Participation Agreement relating to limitations on
liability are hereby incorporated by reference herein, Mutatis Mutandis.
21. PARTIAL RELEASE; FULL RELEASE.
The Agent may release for such consideration as it may require any
portion of the Trust Property without (as to the remainder of the Trust
Property) in any way impairing or affecting the Lien, security interest and
priority herein provided for the Agent compared to any other Lien holder or
secured party. Further, the Agent shall execute and deliver to the Borrower such
documents and instruments as may be required to release the Lien and security
interest created by this Security Agreement with respect to the Properties as
provided in Section 8.8 of the Participation Agreement or to grant the easements
and permit the other matters provided for in Section 8.5 of the Participation
Agreement.
22. MISCELLANEOUS.
(a) This Security Agreement is one (1) of the documents
which create Liens and security interests that secure payment and
performance of the Obligations. The Agent, at its election, may commence
or consolidate in a single action all proceedings to realize upon all
such Liens and security interests. The Borrower hereby waives (i) any
objections to the commencement or continuation of an action to foreclose
the Lien of this Security Agreement or exercise of any other remedies
hereunder based on any action being prosecuted or any judgment entered
with respect to the Obligations or any Liens or security interests that
secure payment and performance of the Obligations and (ii) any
objections to the commencement of, continuation of, or entry of a
judgment in any such other action based on any action or judgment
connected to this Security Agreement. In case of a foreclosure sale, the
Trust Property may be sold, at the Agent's election, in one parcel or in
more than one parcel and the Agent is specifically empowered (without
being required to do so, and in its sole and absolute discretion) to
cause successive sales of portions of the Trust Property to be held.
(b) This Security Agreement may not be amended, waived,
discharged or terminated except in accordance with Section 12.4 of the
Participation Agreement. Upon the prior written consent of the Majority
Secured Parties and unless such matter is a Unanimous Vote Matter, the
Agent may release any portion of the Trust Property or any other
security, and grant such extensions and indulgences in relation to the
Obligations secured hereby without in any manner affecting the priority
of the Lien hereof on any part of the Trust Property.
(c) THE PROVISIONS OF THE PARTICIPATION AGREEMENT RELATING
TO SUBMISSION TO JURISDICTION, VENUE ARE HEREBY INCORPORATED BY
REFERENCE HEREIN, MUTATIS MUTANDIS.
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23. CONFLICTS WITH PARTICIPATION AGREEMENT.
Notwithstanding any other provision hereof, in the event of any conflict
between the terms of this Security Agreement and the Participation Agreement,
the terms of the Participation Agreement shall govern.
24. LESSEE AS A PARTY.
LESSEE HAS EXECUTED THIS SECURITY AGREEMENT FOR THE PURPOSE OF
SUBJECTING TO THE SECURITY INTERESTS GRANTED HEREUNDER ALL OF ITS RIGHT, TITLE,
ESTATE AND INTEREST, IF ANY, IN AND TO THE TRUST PROPERTY TO SECURE ITS
OBLIGATIONS UNDER THE OPERATIVE AGREEMENTS. ACCORDINGLY, LESSEE HEREBY GRANTS TO
THE AGENT (FOR THE BENEFIT OF THE SECURED PARTIES) A SECURITY INTEREST IN AND TO
ALL OF ITS RIGHT, TITLE, ESTATE AND INTEREST, IF ANY, IN AND TO THE TRUST
PROPERTY (TO THE EXTENT LESSEE HAS ANY RIGHT, TITLE OR INTEREST THEREIN AND
WITHOUT REGARD TO ANY LANGUAGE IN SECTION 2 OR THE DEFINITION OF "TRUST
PROPERTY" OR ANY DEFINITION OF ANY ITEM CONSTITUTING THE TRUST PROPERTY WHICH
OTHERWISE WOULD LIMIT THE TRUST PROPERTY TO THE RIGHT, TITLE AND INTEREST OF THE
BORROWER THEREIN) TO SECURE ITS OBLIGATIONS UNDER THE OPERATIVE AGREEMENTS.
LESSEE ACKNOWLEDGES AND AGREES THAT, UPON THE OCCURRENCE OF AN EVENT OF DEFAULT,
THE AGENT SHALL HAVE THE RIGHT TO EXERCISE ANY OR ALL OF ITS REMEDIES HEREUNDER
AS AGAINST ANY SUCH RIGHT, TITLE, ESTATE OR INTEREST OF LESSEE IN OR TO THE
TRUST PROPERTY.
[signature page follows]
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IN WITNESS WHEREOF, each of the undersigned has caused the Security
Agreement to be duly executed and delivered as of the date first above written.
FIRST SECURITY BANK, NATIONAL ASSOCIATION, as
Owner Trustee under the Lexi Trust 2000-1
By: /s/ C. Xxxxx Xxxxxxx
------------------------------------
Name: C. Xxxxx Xxxxxxx
------------------------------------
Title: Vice President
------------------------------------
BANK OF AMERICA, N.A., as the Agent for the
Lenders and the Holders
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
------------------------------------
Title: Vice President
------------------------------------
Accepted and Agreed to:
LEXICON GENETICS INCORPORATED, as Lessee
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: EVP & CFO
------------------------------------
270
ASSIGNMENT OF COLLATERAL ACCOUNT
AND SECURITY AGREEMENT
THIS ASSIGNMENT OF COLLATERAL ACCOUNT AND SECURITY AGREEMENT (as
amended, modified, supplemented, restated and/or replaced from time to time,
this "Assignment") is made as of October 19, 2000, by LEXICON GENETICS
INCORPORATED, a Delaware corporation (the "Pledgor"), to BANK OF AMERICA, N.A.,
a national banking association ("Bank") as agent for the Lenders and, respecting
the Security Documents, as agent for the Secured Parties (Bank, in such
capacity, may be referred to herein as the "Agent").
RECITALS
1. The Pledgor is a party to the Participation Agreement dated as
of October 19, 2000 (as amended, modified, supplemented, restated and/or
replaced from time to time, the "Participation Agreement") among Pledgor, as
Lessee and Construction Agent, First Security Bank, National Association, in its
capacity as Owner Trustee under the Lexi Trust 2000-1 (the "Owner Trustee"), the
various banks and other lending institutions which are parties thereto, as
lenders (the "Lenders"), the various banks and other lending institutions which
are parties thereto, as holders (the "Holders") and the Agent. Capitalized terms
used herein but not otherwise defined shall have the meanings provided in
Appendix A the Participation Agreement.
2. A synthetic lease financing facility has been extended in favor
of the Pledgor pursuant to the Participation Agreement and the other Operative
Agreements.
3. The Pledgor shall from time to time make deposits of Account
Collateral (as hereinafter defined) into the Collateral Account as required by
the terms of the Participation Agreement.
4. The Pledgor shall from time to time purchase certificates of
deposit of Bank of America, N.A., pursuant to the terms of the Participation
Agreement, which certificates of deposit shall be pledged to the Agent as CD
Collateral (as hereinafter defined) pursuant to the terms of this Assignment.
5. The Financing Parties have required Pledgor, and the Pledgor has
agreed, to execute this Assignment in favor of the Agent with respect to the
Account Collateral, the CD Collateral and the deposits of Account Collateral by
the Pledgor into the Collateral Account, and to comply with the other
requirements of this Assignment.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
271
ARTICLE I
Creation and Perfection of Security Interests
Section 1.1 Creation of Security Interest. To secure the prompt
payment and performance in full when and as due, whether by lapse of time or
otherwise, of the obligations of the Pledgor and the Owner Trustee under the
Operative Agreements (the "Secured Obligations"), the Pledgor hereby assigns,
mortgages, conveys, pledges, hypothecates and delivers to the Agent, for the
benefit of the Secured Parties, and hereby grants to the Agent, for the benefit
of the Secured Parties, a security interest in, all right, title and interest of
the Pledgor in and to:
(a) Account number 873-758 maintained by the Securities
Intermediary in the name of Pledgor or for the benefit of Pledgor, and
all successor and replacement accounts, regardless of the numbers of
such accounts or the offices at which such accounts are maintained and
all rights of Pledgor in connection with the Account, and all property
of every kind and character, including all financial assets and
securities entitlements from time to time carried in, credited to or
held by the Securities Intermediary, in the Collateral Account,
including, without limitation, all United States Treasury Bills, all
shares of stock or other equity interests (whether certificated or
uncertificated), all instruments, all general intangibles, and all other
investments or property of any sort now or hereafter carried in,
credited to or held by the Securities Intermediary in the Account
(collectively, any or all of the foregoing may be referred to herein as
the "Account" or the "Collateral Account");
(b) All U.S. dollar denominated, non-negotiable certificates
of deposit issued by Bank of America, N.A., now owned or hereafter
acquired (the "CDs");
(c) All rollovers, renewals or reinvestments of any of the
foregoing property;
(d) All rights to interest, interest payments, dividends,
rights under hedge or derivative transactions, equity swaps, caps,
floors or collars, new securities or other property which Pledgor is or
may hereafter become entitled to receive on account of or related to any
of the foregoing property; and
(e) The proceeds (including, without limitation, insurance
proceeds from the Federal Deposit Insurance Corporation, the Federal
Savings and Loan Insurance Corporation or the Securities Investor
Protection Corporation or any other insurance company), increase and
products of any of the foregoing or replacements thereof or
substitutions therefor (the Account, all rights and property described
in the foregoing subsections (c) and (d) with respect thereto and the
proceeds thereof being hereinafter referred to as the "Account
Collateral" and the CDs, all rights and property described in the
foregoing subsections (c) and (d) with respect thereto and the proceeds
thereof being hereinafter referred to as the "CD Collateral" and,
together with the Account Collateral, the "Securities Collateral");
provided, that (i) prior to the Construction Period Termination Date and subject
to Section 5.16 of the Participation Agreement, the CD Collateral shall only
secure the prompt payment and performance in full when and as due, whether by
lapse of time or otherwise, of the Secured Obligations regarding Properties for
which the Rent Commencement Date has occurred at such time and (ii) on and after
the Construction Period Termination Date, the CD Collateral shall secure the
prompt payment and performance of all of the Secured Obligations.
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272
Section 1.2 The Pledgor:
(a) shall, immediately upon receipt thereof, deliver to the
Agent any certificate, receipt, written confirmation of book entry or
other writing evidencing any CD or other CD Collateral received by the
Pledgor from Bank of America, N.A.;
(b) acknowledges and agrees that, in order to perfect the
security interest of the Agent in the CDs and the other CD Collateral,
the Agent may request Bank of America, N.A., and the Pledgor hereby
authorizes Bank of America, N.A., to place a restriction on withdrawals,
"stop order", "hold" or other restriction on the accounts, books and/or
records of Bank of America, N.A. in which the CDs and the other CD
Collateral are recorded; and
(c) shall execute and deliver to the Agent concurrently with
the execution of this Assignment, and at any time or times hereafter at
the request of Agent, all assignments, conveyances, assignment
statements, financing statements, renewal financing statements, security
agreements, affidavits, notices and all other agreements, instruments
and documents, and all continuations and amendments of the same, that
the Agent may reasonably request, and will execute all necessary
endorsements and take all other actions necessary in order to perfect
and maintain the security interests and liens granted herein by the
Pledgor to the Agent and in order to fully consummate all of the
transactions contemplated herein and under the Operative Agreements. In
furtherance of the foregoing, the Pledgor hereby appoints the Agent as
its attorney-in-fact for the purpose of making any of the foregoing
endorsements, executing any such financing statements, documents and
agreements and taking any such other actions. The foregoing power of
attorney is a power coupled with an interest and shall be irrevocable
until payment in full of the Secured Obligations.
ARTICLE II
Priority of Security Interests
Section 2.1 The Pledgor warrants and represents that the pledge and
security interest created in Section 1.1 hereof is a first-priority security
interest in favor of the Agent, for the benefit of the Secured Parties, and
shall constitute at all times a valid and perfected security interest in and
upon all of the Securities Collateral and that said security interest in the
Securities Collateral shall not become subordinate or junior to the security
interests, liens or claims of any other person, firm or corporation, including
without limitation the United States or any department, agency or
instrumentality thereof, or any state, county or local governmental agency. The
Pledgor shall not (without the prior written approval of the Agent) grant a
security interest in or permit a lien or encumbrance upon the Securities
Collateral to anyone except the Agent as long as all or any portion of the
Secured Obligations remain unsatisfied.
ARTICLE III
Default and Remedies
Section 3.1 Default. An event of default shall exist under the terms
of this Assignment
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273
upon the occurrence of an Event of Default, other than a Credit Agreement Event
of Default (except for any Credit Agreement Event of Default relating directly
to the Lessee and/or its obligations pursuant to the Operative Agreements) (each
such occurrence may be referred to herein as a "Collateral Agreement Event of
Default").
Section 3.2 Remedies Generally. It is the intention of the parties
hereto that this Assignment as it relates to matters of the grant, perfection
and priority of security interests the subject hereof, and the rights and
remedies of the Agent with respect thereto, shall constitute a security
agreement within the meaning of the Uniform Commercial Code as in effect in the
State of Texas (the "UCC"). In respect of the Securities Collateral generally,
upon the occurrence of a Collateral Agreement Event of Default and during the
continuation thereof, the Agent, for and on behalf of the Secured Parties, shall
have all of the following rights and remedies, all of which shall be cumulative
to the extent permitted by law:
(a) the right, immediately and without further action by the
Agent, to set off against the outstanding Secured Obligations (i) all
amounts in the Account and (ii) all amounts represented by the CDs;
(b) all the rights and remedies contained in this
Assignment, the Operative Agreements or otherwise available at law or in
equity;
(c) all the rights and remedies of a secured party under the
UCC; and
(d) the right to proceed by an action at law, suit in equity
or other appropriate proceeding, to protect and enforce its rights,
whether for the foreclosure of the security interest granted herein
against the Securities Collateral, or for the specific performance of
any agreement contained herein or for an injunction against the
violation of any of the terms hereof.
The Pledgor hereby waives the benefit of all appraisement, valuation,
stay, extension and redemption laws now or hereafter in force and all rights of
marshalling in the event of any sale or other disposition of the Securities
Collateral or any portion thereof or interest therein.
Section 3.3 Sale of Securities Collateral. Upon the occurrence of a
Collateral Agreement Event of Default, and during the continuation thereof, the
Agent, for and on behalf of the Secured Parties, shall have the right, in
addition to any other right or remedy under this Assignment, at law or in
equity, upon proper notice provided in accordance with the UCC, forthwith to
sell, transfer or otherwise dispose of any of the Securities Collateral, to
receive the proceeds from such disposition, and to apply said proceeds, after
payment of all necessary or proper charges and expenses, on account of the
Secured Obligations. If the Agent shall elect to proceed to a sale of any of the
Securities Collateral under the UCC, then fifteen (15) days' notice of the date
of any public sale or the date after which any private sale of such Securities
Collateral shall be deemed reasonable notice and the reasonable expenses of
retaking, holding, preparing for sale, selling and the like incurred by the
Agent shall include, but not be limited to, attorneys' fees and legal expenses.
Section 3.4 Deficiency. The proceeds of any sale or other
disposition of any of the Securities Collateral shall be applied pursuant to
Section 8.7 of the Participation Agreement. In the event that the proceeds of
any sale or collection of, set-off against, realization upon or other
disposition of any Securities Collateral are insufficient to pay all of the
Secured Obligations, Pledgor shall be liable for the deficiency, together with
interest thereon. Any surplus remaining after the full payment and satisfaction
of the Secured Obligations shall be returned to the Pledgor or to whomsoever a
court of competent jurisdiction shall determine to be entitled thereto.
Section 3.5 Attorney Costs. If at any time or times hereafter the
Agent employs counsel
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274
to prepare or consider waivers or consents or to intervene, file a petition,
answer, motion or other pleading in any suit or proceeding related to this
Assignment or the other Operative Agreements, or relating to any Securities
Collateral, or to protect, take possession of, or liquidate any Securities
Collateral, to attempt to enforce any Lien in any Securities Collateral, to
enforce any rights of the Agent, or to collect upon any deficiency with respect
thereto, then in any of such events, all of the reasonable attorneys' fees
arising from such services, and any expenses, costs and charges relating
thereto, shall become a part of the Secured Obligations secured by the
Securities Collateral and payable on demand.
Section 3.6 No Waiver. The Agent's failure at any time or times
hereafter to require strict performance by the Pledgor of any of the provisions,
warranties, terms and conditions contained in this Assignment shall not waive,
affect or diminish any right of the Agent at any time or times thereafter to
demand strict performance therewith and with respect to any other provisions,
warranties, terms and conditions contained in this Assignment. Exercise by the
Agent of any of the remedies contained herein shall not limit or affect any
other remedies available to the Agent.
ARTICLE IV
Access to Account/Release of Securities Collateral
Section 4.1 Although the Account and the CDs will be maintained in
the name of the Pledgor, the Pledgor shall not have access to the funds and
other Securities Collateral in the Account or to the CDs, and the Agent shall
have exclusive control and authority over such Securities Collateral except as
expressly provided in the Operative Agreements.
ARTICLE V
Investment Parameters for Securities Collateral in Account
The Agent shall consult from time to time with the Pledgor regarding the
investment of all amounts in the Account and shall invest such amounts as
Pledgor or its designated representatives may request in writing from time to
time; provided, that all such amounts shall be invested at all times in Cash
Equivalents. In addition, so long as no Collateral Agreement Event of Default
shall have occurred and be continuing, no securities or other investment held in
the Account will be sold or otherwise disposed of without the prior written
approval of Pledgor.
ARTICLE VI
Miscellaneous
Section 6.1 This Assignment shall be governed by and construed in
accordance with the laws of the State of Texas.
Section 6.2 Any notice, request or other communication required or
permitted to be given under this Assignment shall be in writing and deemed to
have been properly given when delivered in person, or when sent by telecopy or
other electronic means and electronic confirmation of error free receipt is
received or upon receipt of notice sent by certified or registered United States
mail, return receipt requested, postage prepaid, addressed to the
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275
party at the address set forth on the signature pages attached hereto. Any party
may change its contact information by providing such information in writing to
each other party to this Assignment.
Section 6.3 This Assignment shall be binding upon and inure to the
benefit of the Pledgor, the Agent and their respective successors and assigns
permitted in accordance with the provisions of this Assignment and the other
Operative Agreements.
Section 6.4 This Assignment may be executed in any number of
counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Assignment to produce or account
for more than one such counterpart.
Section 6.5 If any provision of this Assignment is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions hereof shall remain in full force and effect and shall
be construed without giving effect to the illegal, invalid or unenforceable
provision.
Section 6.6 Notwithstanding any provision to the contrary contained
herein or in any of the other Operative Agreements, the Agent may only apply
proceeds realized from its security interest in the Securities Collateral to
satisfy the Secured Obligations.
[remainder of page intentionally left blank]
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276
The Pledgor has caused a counterpart of this Assignment to be duly
executed and delivered as of the date first above written.
LEXICON GENETICS INCORPORATED,
as the Pledgor
By: /s/ Xxxxx X. Xxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxx
-----------------------
Title: EVP & CFO
-----------------------
Address:
Lexicon Genetics Incorporated
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Accepted and agreed as of the date first above written.
BANK OF AMERICA, N.A.,
as the Agent
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
------------------------------------
Title: Vice President
------------------------------------
Address:
Bank of America, N.A.
Bank of America Tower
Mailcode: TX9-329-11-01
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
7
277
CONTROL AGREEMENT
THIS CONTROL AGREEMENT (this "Agreement") is dated as of October 19,
2000 and is by and among BANK OF AMERICA, N.A., in its capacity as agent (in
such capacity, the "Agent") for the benefit of the financial institutions
identified as "Secured Parties" (the "Secured Parties") in the Assignment (as
defined below), LEXICON GENETICS INCORPORATED, a Delaware corporation (the
"Lessee") and BANK OF AMERICA, N.A., in its capacity as Securities Intermediary
with respect to the Collateral Account (in such capacity, the "Securities
Intermediary").
R E C I T A L S
WHEREAS, the Lessee has granted a security interest to the Agent, for
the benefit of the Secured Parties, in a certain account, bearing account number
873-758 (the "Collateral Account") maintained by the Lessee with the Securities
Intermediary pursuant to that certain Assignment of Collateral Account and
Security Agreement dated as of the date hereof (the "Assignment").
WHEREAS, the parties hereto are entering into this Agreement to provide
for the control of the Collateral Account and to perfect the security interest
of Agent in the Collateral Account.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
A G R E E M E N T
SECTION 1. The Account. The Securities Intermediary hereby represents
and warrants to the Agent, and acknowledges and agrees, that (a) the Collateral
Account has been established in the name of the Lessee as recited above and
bears account number 873-758 and (b) except for the claims and interest of the
Agent and the Lessee in the Collateral Account, the Securities Intermediary does
not know of any claim to or interest in the Collateral Account. The Securities
Intermediary further agrees that (i) the Collateral Account is and shall be
maintained by the Securities Intermediary as a "securities account" (within the
meaning of Section 8.501 of the Uniform Commercial Code of the State of Texas
(the "UCC")), (ii) the Securities Intermediary's "jurisdiction" (within the
meaning of Chapter 8 of the UCC) is the State of Texas, (iii) all property in
the Collateral Account will be treated by the Securities Intermediary as
"financial assets" (as defined in Section 8.102(a)(9) of the UCC), (iv) except
as a result of computer system or accounting changes affecting accounts of the
Securities Intermediary generally (in which case, the Securities Intermediary
shall provide prompt notice of such change to the Agent), the Securities
Intermediary shall not change the name or account number of the Collateral
Account without the prior written consent of the Agent and at least five
Business Days prior notice to the Lessee and the Agent, and shall not change the
entitlement holder thereof and (v) the Securities Intermediary shall act as a
"securities intermediary" (within the meaning of Section 8.102(a)(14) of the
UCC) in maintaining the Collateral Account and shall credit to the Collateral
Account each financial asset that is delivered to it by the Agent with a
certification that such asset is to be held in or credited to the Collateral
Account pursuant to the Assignment; provided that all such financial assets
shall be of a type eligible to be held by a Federal Reserve Bank and/or the
Depository Trust Company. Further, all terms used in this Agreement shall be
construed in accordance and consistent with the UCC. For the purposes hereof,
"Business Day" shall mean a day other than a Saturday, Sunday or other day on
which commercial banks in North Carolina, Utah or Texas are authorized or
required by law to close.
SECTION 2. Priority of Lien. The Securities Intermediary hereby
acknowledges the security interest granted to the Agent, for benefit of the
Secured Parties, by the Lessee in the Collateral Account. The Securities
Intermediary hereby waives and releases all liens, encumbrances, claims and
rights of setoff it may have or hereafter acquire against the Collateral Account
or any financial asset carried in the Collateral Account and agrees that it will
not assert any lien, encumbrance, claim or right against the Collateral Account
or any financial asset carried in the Collateral Account except for any lien,
claim, encumbrance, or right against the Collateral Account or any financial
asset carried in the Collateral Account resulting from transactions in the
Collateral Account (including payment of
278
Securities Intermediary's customary fees and commissions). Without the prior
written consent of the Agent and the Lessee, the Securities Intermediary will
not execute and deliver, or otherwise become bound by, any agreement during the
term of this Agreement under which the Securities Intermediary agrees with any
third party that the Securities Intermediary will comply with entitlement orders
concerning the Collateral Account originated by such third party.
SECTION 3. Control. The Securities Intermediary will comply with
entitlement orders originated by the Agent concerning the Collateral Account
without further consent by the Lessee; provided, however, that any entitlement
order from the Agent to pay, deliver over, or transfer to the Agent any or all
financial assets in the Collateral Account may only be submitted after or
together with delivery by the Agent of a written certification to the Securities
Intermediary that an Event of Default has occurred and is continuing; the
Securities Intermediary may rely on such certification and shall have no
obligation to verify the any statement contained therein. For the purposes
hereof, "Event of Default" shall have the meaning ascribed to such term in the
Assignment. All entitlement orders from the Agent must be in writing on bank
letterhead signed by an authorized officer of Agent. For purposes of this
Agreement, "authorized officer of Agent" shall refer in the singular to any
person holding the title of Assistant Vice President or higher. Except as
permitted by Section 4 hereof, the Securities Intermediary shall neither accept
nor comply with any entitlement order from the Lessee withdrawing or making a
free delivery of any financial assets from the Collateral Account nor deliver
any such financial assets to the Lessee without the specific prior written
consent of the Agent. Notwithstanding the foregoing and subject to the
provisions of the next succeeding sentence, Securities Intermediary may comply
with (a) oral or written purchase orders from the Lessee and (b) oral or written
entitlement orders from Lessee to sell financial assets in the Collateral
Account so long as the proceeds thereof are reinvested in financial assets held
in the Collateral Account. After such time when Agent delivers a written notice
to Securities Intermediary that it is exercising exclusive control over the
Collateral Account ("Exclusive Control Notice"), Securities Intermediary shall
cease complying with entitlement orders from Lessee within three Business Days
of receipt of such Exclusive Control Notice. An Exclusive Control Notice shall
designate the account, person or other location to which the financial assets in
the Collateral Account, or cash dividends or interest in connection therewith,
shall thereafter be delivered.
SECTION 4. Payment of Interest and Dividends to Lessee. Agent agrees
that Securities Intermediary is authorized pay to Lessee any interest, interest
equivalent or dividends received by Securities Intermediary with respect to any
financial asset in the Collateral Account until three Business Days following
receipt by the Securities Intermediary of an Exclusive Control Notice. Agent
further agrees that for any non-interest bearing financial asset held in the
Collateral Account "interest equivalent" shall mean the amount of any discount
earned on such asset at the maturity date of such asset.
SECTION 5. Statements, Confirmations and Notices of Adverse Claims. The
Securities Intermediary will send copies of all statements and confirmations
concerning the Collateral Account to the Agent at the address therefor set forth
on the signature pages hereto. Upon receipt of written notice of any lien,
encumbrance or adverse claim against the Collateral Account, the Securities
Intermediary will promptly notify the Agent thereof in writing. Agent shall
promptly deliver copies of such statements, confirmations and notices to the
Lessee, except where such delivery would conflict with the terms of the
Assignment.
SECTION 6. Limited Responsibility of Securities Intermediary. The
Securities Intermediary shall have no responsibility or liability to the Agent
or the Lessee with respect to the value of the Collateral Account or any
property held therein. The Securities Intermediary shall have no duty to
investigate or make any determination as to whether a default or an event of
default exists under any agreement between the Lessee and the Agent with respect
to the Collateral Account. This Agreement does not create any obligation or duty
of the Securities Intermediary other than those expressly set forth herein.
SECTION 7. Release from Liability. Except for any liability arising from
the gross negligence or willful misconduct of the Securities Intermediary,
Lessee and Agent each agree to release Securities Intermediary and its
directors, officers, and employees from and against any and all liability in any
way related to or arising out of or in connection with this Agreement, including
without limitation any liability that may result from Securities Intermediary
complying with entitlement orders from the Agent without the consent of Lessee.
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279
SECTION 8. Conflict. In the event of a conflict between this Agreement
and any other agreement between the Securities Intermediary and the Lessee, the
terms of this Agreement shall prevail. Regardless of any provision in any such
agreement relating to the law governing the Collateral Account, the parties
hereto agree that the establishment and maintenance of the Collateral Account,
and all interests, duties and obligations with respect thereto, shall be
governed by the law of the State of Texas.
SECTION 9. Termination. The obligations of the Securities Intermediary
hereunder shall continue in effect until (a) the Agent has notified the
Securities Intermediary in writing that this Agreement is to be terminated or
(b) the Securities Intermediary has given the Agent and the Lessee at least 30
Business Days' prior written notice that the Securities Intermediary will no
longer be in the business of managing securities accounts and is thus
terminating this Agreement.
SECTION 10. ENTIRE AGREEMENT. THIS AGREEMENT REPRESENTS THE FINAL
AGREEMENT AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES
REGARDING THE SUBJECT MATTER HEREOF.
SECTION 11. Amendments. No amendment, modification or (except as
otherwise specified in Section 9 above) termination of this Agreement, nor any
assignment of any rights hereunder, shall be binding on any party hereto unless
it is in writing and is signed by each of the parties hereto, and any attempt to
so amend, modify, terminate or assign except pursuant to such a writing shall be
null and void. No waiver of any rights hereunder shall be binding on any party
hereto unless such waiver is in writing and signed by the party against whom
enforcement is sought.
SECTION 12. Severability. If any term or provision set forth in this
Agreement shall be invalid or unenforceable, the remainder of this Agreement,
and the application of such terms or provisions to persons or circumstances,
other than that which is held invalid or unenforceable, shall be construed in
all respects as if such invalid or unenforceable term or provision were omitted.
SECTION 13. Notices. Except as otherwise permitted in Section 3, any
notice, request or other communication required or permitted to be given under
this Agreement shall be in writing and deemed to have been properly given when
delivered in person, or when sent by telecopy or other electronic means and
electronic confirmation of error free receipt is received or upon receipt of
notice sent by certified or registered United States mail, return receipt
requested, postage prepaid, addressed to the party at the address set forth on
the signature pages attached hereto; provided that the Securities Intermediary
may deliver any such documents via regular United States mail in accordance with
its established policies. Any party may change its contact information by
providing such information in writing to each other party to this Agreement.
SECTION 14. Counterparts. This Agreement may be executed in any number
of counterparts, all of which shall constitute one and the same instrument, and
any party hereto may execute this Agreement by signing and delivering one or
more counterparts.
SECTION 15. Choice of Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, this Agreement has been executed by a duly
authorized officer of each of the parties set forth below.
LEXICON GENETICS INCORPORATED, as Lessee
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
------------------------------------
Title: EVP & CFO
------------------------------------
Address:
Lexicon Genetics Incorporated
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
000
XXXX XX XXXXXXX, X.X., as Agent
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
------------------------------------
Title: Vice President
------------------------------------
Address:
Bank of America, N.A.
Bank of America Tower
Mailcode: TX9-329-11-01
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA, N.A., as Securities Intermediary
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
------------------------------------
Title: Vice President
------------------------------------
Address:
Bank of America, N.A.
Bank of America Plaza
Mailcode: TX1-492-6305
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Bank of America, N.A.
NC1-004-03-42
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
