Exhibit 4.5
===============================================================================
OWNER LESSOR SUBORDINATION AGREEMENT
dated as of December __, 2001
by and among
XXXXX CITY OL[1] LLC,
as the Owner Lessor,
[GENERAL ELECTRIC CAPITAL CORPORATION][FULL SERVICE LEASING CORP.],
as the Owner Participant,
AND
THE BANK OF NEW YORK,
as successor to
UNITED STATES TRUST COMPANY OF NEW YORK
as the Lease Indenture Trustee
================================================================================
This OWNER LESSOR SUBORDINATION AGREEMENT, dated as of December __,
2001 (this "AGREEMENT"), is by and among XXXXX CITY OL[1] LLC, as the Owner
Lessor under the Facility Lease referred to below (the "OWNER Lessor"), [GENERAL
ELECTRIC CAPITAL CORPORATION][FULL SERVICE LEASING CORP.], as the Owner
Participant under the Participation Agreement referred to below (the "OWNER
PARTICIPANT"), and THE BANK OF NEW YORK, as successor to UNITED STATES TRUST
COMPANY, not in its individual capacity but solely as the Lease Indenture
Trustee under the Lease Indenture.
RECITALS
WHEREAS, the holders of the Initial Lessor Notes (as such term is
defined in the Participation Agreement) have purchased the Initial Lessor Notes
from the Owner Lessor and have been granted a security interest in the Facility
Lease as collateral for the Initial Lessor Notes;
WHEREAS, contemporaneously herewith EME Homer City Generation, L.P.
("XXXXX CITY"), a wholly owned subsidiary of Edison Mission Midwest Holdings Co.
("HOLDINGS"), will enter into a transaction pursuant to the Participation
Agreement by and among Xxxxx City, the Owner Lessor, Xxxxx Fargo Bank
Northwest, National Association, not in its individual capacity but solely as
Owner Manager, the Owner Participant, Xxxxx City Funding LLC, as Lender, the
Lease Indenture Trustee and United States Trust Company of New York, not in its
individual capacity but solely as Bondholder Trustee (as amended, modified and
supplemented and in effect from time to time, the "PARTICIPATION AGREEMENT")
whereby Xxxxx City would sell certain of its generating assets to the Owner
Lessor and the Owner Lessor would lease such generating assets to Xxxxx City
under the Facility Lease;
WHEREAS, in connection with the transactions contemplated by the
Participation Agreement, Holdings and Xxxxx City requested the Lender to approve
such sale and lease-back of such generating assets;
WHEREAS, the Owner Lessor has entered into a loan agreement, dated
as of December __, 2001 (the "INTERCOMPANY LOAN AGREEMENT"), with the Owner
Participant, pursuant to which the Owner Participant has agreed to make loans
(the "INTERCOMPANY LOANS") to the Owner Lessor from time to time on the terms
and subject to the conditions contained in the Loan Agreement and set forth
herein; and
WHEREAS, as a consideration for the transactions contemplated by the
Participation Agreements, the parties hereto will agree to subordinate the
Intercompany Loans and all obligations of the Owner Lessor with respect to
Intercompany Loan Agreement to the obligations of the Owner Lessor with respect
to the Lessor Notes, Debt Service Letter of Credit and the Lease Indenture.
WHEREAS, the execution and delivery of this Agreement is a condition
precedent to the effectiveness of the Participation Agreement;
NOW THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, each of the parties hereto hereby agrees as follows:
ARTICLE I
DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1 DEFINITIONS.
(a) Unless otherwise expressly provided herein, capitalized terms
used but not defined in this Agreement shall have the meanings given to such
terms in the Participation Agreement.
(b) Other Defined Terms. The following terms, when used herein,
shall have the following meanings:
"INTERCOMPANY LOAN" shall mean the indebtedness by the Owner Lessor
relating to the Intercompany Loan Agreement.
"INTERCOMPANY LOAN AGREEMENT" shall mean the loan extended pursuant
to the Intercompany Loan Agreement and any other loan agreement to be entered
into from time to time by the Owner Lessor and the Subordinated Party.
"INTERCOMPANY LOAN OBLIGATIONS" shall mean all obligations of the
Owner Lessor under the Intercompany Loan Agreement, including principal of,
premium, if any, interest and any other amount owing on the Intercompany Loans,
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred or created.
"OBLIGATIONS" shall mean all of the Owner Lessor's obligations under
the Operative Documents (i) in respect of the Lessor Notes, the Debt Service
Letter of Credit and the Lease Indenture of whatsoever nature and howsoever
evidenced (including, but not limited to, principal, interest, make-whole or
other premium, reimbursement obligations, cash cover obligations, penalties,
indemnities and legal and other expenses, whether due after acceleration or
otherwise) to the Noteholders, the issuer of the Debt Service Letter of Credit,
the Lease Indenture Trustee, the Security Agent, or to any agent, trustee or
other representative of the Noteholders or such issuer, agent, trustee or
representative under or pursuant to each agreement, document, or instrument
evidencing, securing, guaranteeing or relating to any of the foregoing
obligations, in each case, direct or indirect, primary or secondary, fixed or
contingent, now or hereafter arising out of or relating to any such agreement,
document or instrument; and (ii) the costs and expenses of collection and
enforcement of the obligations referred to in clause (i) (including, without
limitation, (A) the costs and expenses of retaking, holding, preparing for sale
or lease, selling or otherwise disposing of or realizing on any collateral
securing such obligations, (B) the costs and expenses of exercise by the Lease
Indenture Trustee, Security Agent or any other Person of its rights under the
Security Documents or any other security documents related to the obligations
referred to in clause (i) and (C) reasonable attorneys' fees and court costs).
3
"PROCEEDING" shall have the meaning given to such term in Section
3.2.
"SENIOR CLAIMS" shall have the meaning given to such term in Section
2.1(a).
"SUBORDINATED CLAIMS" shall mean as at any date of determination,
the aggregate amount of all Intercompany Loan Obligations.
"SUBORDINATED NOTES" shall have the meaning given to such term in
Section 2.1(c).
"SUBORDINATED PARTY" shall mean the Owner Participant in its
capacity as lender under the Intercompany Loan Agreement.
Section 1.2 PRINCIPLES OF CONSTRUCTIOn. Unless otherwise expressly provided
herein, the principles of construction set forth in the Participation Agreement
shall apply to this Agreement.
ARTICLE II
SUBORDINATION PROVISIONS
Section 2.1 SUBORDINATION OF INTERCOMPANY LOANS. Until all
Obligations shall have been indefeasibly paid in full:
(a) (i) the Subordinated Claims shall be subordinated, to the extent
and in the manner hereinafter set forth, to the prior payment of, and junior in
right of payment to, any and all Obligations whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred or created (collectively, "SENIOR CLAIMS");
(b) without the consent of the Lease Indenture Trustee, the Owner
Lessor shall not, directly or indirectly, make any payment of principal or
interest on account of, or transfer any collateral for any part of, any
Subordinated Claims; provided, however, that the Owner Lessor may (and upon
direction from the Owner Participant shall) make payments (including
prepayments) of interest and principal on account of the Subordinated Claims to
the extent of proceeds received from payments of Rent permitted to be made
pursuant to the terms of Section 2.1(b) of the Lease Subordination Agreement and
clause third of Section 3.1 of the Lease Indenture or proceeds from common
equity received from the Owner Participant;
(c) without the consent of the Lease Indenture Trustee, the
Subordinated Party shall not demand, xxx for or accept any payment or collateral
in respect of any Subordinated Claims, or take any other action to enforce their
rights or exercise any remedies in respect of any Subordinated Claims (whether
upon the occurrence or during the continuation of an event of default under any
promissory notes evidencing Subordinated Claims (collectively, "SUBORDINATED
NOTES") or otherwise) or cancel, set off or otherwise discharge any part of any
Subordinated Claims; and
4
(d) without the consent of the Lease Indenture Trustee, neither the
Owner Lessor nor the Subordinated Party shall otherwise take any action
prejudicial to or inconsistent with the priority position of the Senior Claims
over the Subordinated Claims created by this Section 2.1.
Section 2.2 RELIANCE. All Senior Claims shall conclusively be deemed
to have been created, contracted or incurred in reliance on the subordination
provisions contained in this Agreement and all dealings between the Owner Lessor
and each of the holders of Senior Claims shall be deemed to have been
consummated in reliance upon the subordination provisions contained herein.
Section 2.3 OTHER HOLDERS. The subordination provisions set forth in
this Agreement shall be binding upon transferees or assignees of the
Subordinated Party and upon each other holder of Subordinated Claims and shall
inure to the benefit of transferees or assignees of the Indenture Estate and
every other holder of Senior Claims.
ARTICLE III
WRONGFUL COLLECTIONS
Section 3.1 TURNOVER. Should any payment on account of, or any
collateral for any part of, any Subordinated Claims be received by the
Subordinated Party in violation of this Agreement, such payment or collateral
shall be delivered forthwith to the Lease Indenture Trustee for application in
accordance with the Lease Indenture. The Lease Indenture Trustee is irrevocably
authorized to supply any required endorsement or assignment which may have been
omitted which the Lease Indenture Trustee may reasonably deem necessary or
advisable to enforce its rights under this Agreement. Until so delivered, any
such payment or collateral shall be held by the Subordinated Party in trust for
the holders of the Senior Claims and shall not be commingled with other funds or
property of the Subordinated Party.
Section 3.2 SURVIVAL OF OBLIGATION. The obligation of the
Subordinated Party to deliver to the Lease Indenture Trustee any payment or
collateral received in connection with any Subordinated Claims, set forth in
Section 3.1, shall survive and shall not be in any way affected by the result of
any(a) insolvency, bankruptcy, receivership, liquidation, reorganization,
readjustment, composition or other similar proceeding relating to any Owner
Lessor, its property or its creditors as such, (b) proceeding for any
liquidation, dissolution or other winding-up of any Owner Lessor, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings, (c)
assignment for the benefit of creditors, (d) other marshalling of the assets of
any Owner Lessor or (e) general meeting of creditors of any Owner Lessor, in
each case, under the laws of the United States or any other jurisdiction (any
such event, a "PROCEEDING").
ARTICLE IV
PROCEEDINGS
Section 4.1 COMMENCEMENT OF PROCEEDINGS. The Subordinated Party
shall not commence, or join with any other creditor or creditors of the Owner
Lessor in
5
commencing, any Proceeding against the Owner Lessor without the consent of the
Lease Indenture Trustee.
Section 4.2 PAYMENTS AND DISTRIBUTIONS. In the event of any
Proceeding, until all Obligations shall have been indefeasibly paid in full, in
cash or cash equivalent, any payment or distribution of any kind or character,
whether in cash, property or securities, which, but for the subordination
provisions of this Agreement would otherwise be payable or deliverable upon or
in respect of Subordinated Claims, shall instead be paid over or delivered to
the Lease Indenture Trustee in accordance with Article III and no holder of
Subordinated Claims shall receive any such payment or distribution or any
benefit therefrom.
Section 4.3 ENFORCEMENT OF SUBORDINATED CLAIMS.
(a) ENFORCEMENT BY THE HOLDERS OF THE SENIOR CLAIMS. At any
Proceeding, until all Obligations shall have been indefeasibly paid in full, in
cash or cash equivalent, the holders of the Senior Claims are hereby irrevocably
authorized (but not required) to:
(i) enforce claims comprising Subordinated Claims in the name
of the Subordinated Party by proof of debt, proof of claim, suit or
otherwise;
(ii) collect any assets of any Owner Lessor distributed,
divided or applied by way of dividend or payment, and any securities
issued, in each case, on account of Subordinated Claims and apply
the same, or the proceeds of any realization upon the same that the
Indenture Estate in their discretion elect to effect, to Senior
Claims until all Obligations shall have been indefeasibly paid in
full, in cash or cash equivalent; provided, however, that the Lease
Indenture Estate shall render any surplus to the Subordinated Party
or its affiliates, as their interests appear, or interplead such
surplus with a court of competent jurisdiction;
(iii) vote claims comprising Subordinated Claims to accept or
reject any plan of partial or complete liquidation, reorganization,
arrangement, composition or extension; and
(iv) take generally any action in connection with any such
Proceeding which the Subordinated Party might otherwise take.
(b) COOPERATION. The Subordinated Party shall cooperate fully with
the Lease Indenture Trustee and perform all acts requested by the Lease
Indenture Trustee to enable the Lease Indenture Trustee to enforce any
Subordinated Claims pursuant to clause (a) above, including, without limitation,
filing appropriate proofs of claim and executing and delivering all necessary
powers of attorney, assignments or other instruments.
6
(c) ENFORCEMENT BY THE SUBORDINATED PARTY. After the commencement of
any Proceeding, the Subordinated Party may inquire in writing of the Lease
Indenture Trustee whether the Lease Indenture Trustee intends to exercise its
rights set forth in clause (a) above with respect to any Subordinated Claims.
Should the Lease Indenture Trustee fail, within a reasonable time after receipt
of such inquiry, either to file a proof of claim with respect to any
Subordinated Claims and to furnish a copy thereof to the Subordinated Party, or
to inform the Subordinated Party in writing that the Lease Indenture Trustee
intends to exercise its rights to assert such Subordinated Claims in the manner
provided in clause (a) above, the Subordinated Party may (but shall not be
required to) proceed to file a proof of claim with respect to such Subordinated
Claims and take such further steps with respect thereto, not inconsistent with
this Agreement, as the Subordinated Party may deem proper.
(d) SUBROGATION. The Subordinated Party shall not have any
subrogation or other rights as holders of Senior Claims, and the Subordinated
Party hereby irrevocably waives all such rights of subrogation and all rights of
reimbursement or indemnity whatsoever and all rights of recourse to any security
for any Senior Claims, until such time as all Obligations shall have been
indefeasibly paid in full, in cash or cash equivalent. Subject to and from and
after the indefeasible payment in full of all Obligations, the Subordinated
Party shall be subrogated to any rights of the Lease Indenture Trustee to
receive payment or distributions of cash, property or securities of the Owner
Lessor applicable to any Subordinated Claims until all amounts owing on such
Subordinated Claims shall be paid in full, in cash or cash equivalent.
ARTICLE V
LIMITATION ON ACTIONS
Section 5.1 ACTIONS PROHIBITED. Until all Obligations shall have
been indefeasibly paid in full, the Subordinated Party shall not, without the
prior written consent of the Lease Indenture Trustee:
(a) take, obtain or hold (or permit anyone acting on its behalf to
take, obtain or hold) any assets of the Owner Lessor, whether as a result of any
administrative, legal or equitable action, or otherwise, in violation of the
subordination provisions contained in this Agreement.
(b) accelerate payment of any Subordinated Claims or otherwise
require such Subordinated Claims to be paid prior to their stated or scheduled
maturity date;
(c) commence, prosecute or participate in (i) any administrative,
legal or equitable action against or involving the Owner Lessor relating to any
Subordinated Claims, including, without limitation, any Proceeding, or (ii) any
administrative, legal or equitable action to (a) enforce or collect any judgment
obtained in respect of any Subordinated Claims, (b) enforce or exercise remedies
arising under or pursuant to any Subordinated Claims, (c) enforce or exercise
remedies under or pursuant to any lien or other security interest securing any
Subordinated Claims;
7
(d) exercise any other rights or remedies to enforce any
Subordinated Claims, any collateral security provided with respect to such
Subordinated Claims or any covenant, agreement, representation or other
undertaking contained in any Subordinated Notes.
Section 5.2 DEFENSE IN ACTION. If the Subordinated Party, in
violation of the provisions herein set forth, shall commence, prosecute or
participate in any suit, action, case or Proceeding referred to in Section 5.1,
the Owner Lessor may interpose as a defense or plea the provisions set forth
herein, and any holder of any Senior Claims may intervene and interpose such
defense or plea in its own name or in the name of the Owner Lessor, and shall,
in any event, be entitled to restrain the enforcement of the provisions of any
Subordinated Claims in its own name or in the name of the Owner Lessor, as the
case may be, in the same suit, action, case or Proceeding or in any independent
suit, action, case or Proceeding.
ARTICLE VI
SUBORDINATION ABSOLUTE
Section 6.1 SURVIVAL OF RIGHTS. The rights under this Agreement of
the holders of Senior Claims as against the Subordinated Party shall remain in
full force and effect without regard to, and shall not be impaired or affected
by:
(a) any act or failure to act on the part of the Owner Lessor;
(b) any extension or indulgence in respect of any payment or
prepayment of any Senior Claims or any part thereof or in respect of any other
amount payable to any holder of any Senior Claims;
(c) any amendment, modification or waiver of, or addition or
supplement to, or deletion from, or compromise, release, consent or other action
in respect of, any of the terms of any Senior Claims or the Operative Documents;
(d) (i) any exercise or non-exercise by the holder of any Senior
Claims of any right, power, privilege or remedy under or in respect of such
Senior Claims, the Operative Documents or the subordination provisions contained
herein, (ii) any waiver by the holder of any Senior Claims of any right, power,
privilege or remedy or of any default in respect of such Senior Claims, the
Operative Documents or the subordination provisions contained herein or (iii)
any receipt by the holder of any Senior Claims or any failure by such holder to
perfect a security interest in, or any release by such holder of, any security
for the payment of such Senior Claims;
(e) any merger or consolidation of the Owner Lessor into or with any
other Person, or any sale, lease or transfer of any or all of the assets of the
Owner Lessor to any other Person;
(f) any payment or other distribution to any holder of any Senior
Claims in any Proceeding;
8
(g) absence of any notice to, or knowledge by, the Subordinated
Party of the existence or occurrence of any of the matters or events set forth
in the foregoing clauses (a) through (f); or
(h) any other circumstance.
Section 6.2 WAIVERS.
(a) WAIVER OF DEFENSES. The Subordinated Party hereby irrevocably
waives, in any proceeding by the Lease Indenture Trustee to endorse its rights
under this Agreement, (i) any defense based on the adequacy of a remedy at law
which might be asserted as a bar to the remedy of specific performance of this
Agreement and (ii) the defense that claims asserted by the Lease Indenture
Trustee pursuant to this Agreement are res judicata as a result of any decision
rendered in any prior Proceeding.
(b) OTHER WAIVERS. The Subordinated Party hereby irrevocably waives
(i) notice of any of the matters referred to in Section 6.1, (ii) all notices
which may be required, whether by statute, rule of law or otherwise, to preserve
intact any rights of any holder of any Senior Claims against the Owner Lessor,
including, without limitation, any demand, presentment and protest, or any proof
of notice of nonpayment under any document evidencing such Senior Claims or
under the Operative Documents, (iii) notice of the acceptance of or reliance on
this Agreement by the Indenture Estate, (iv) notice of any renewal, extension or
accrual of any Senior Claims, or any loans made or other action taken in
reliance on this Agreement, (v) any right to the enforcement, assertion or
exercise by any holder of any Senior Claims of any right, power, privilege or
remedy conferred in any document evidencing such Senior Claims or in the
Operative Documents, or otherwise, (vi) any requirement of diligence on the part
of any holder of any Senior Claims, (vii) any requirement on the part of any
holder of any Senior Claims to mitigate damages resulting from any default under
any documents evidencing such Senior Claims or under the Operative Documents and
(viii) any notice of any sale, transfer or other disposition of any Senior
Claims by any holder thereof.
Section 6.3 ASSENT. The Subordinated Party hereby irrevocably
assents to (a) any renewal, extension or postponement of the time of payment of
any Senior Claims or any other indulgence with respect thereto, (b) any increase
in the amount of any Senior Claims, (c) any substitution, exchange or release of
collateral for any Senior Claims, (d) the addition or release of any Person
primarily or secondarily liable for any Senior Claims and (e) the provisions of
any instrument, security or other writing evidencing any Senior Claims.
ARTICLE VII
OWNER LESSOR OBLIGATIONS
The provisions of this Agreement are intended solely for the purpose
of defining the relative rights and obligations of the Subordinated Party and
the holders of the Senior Claims. Nothing contained herein (a) is intended to or
shall impair, as among the Owner Lessor, its creditors and the Subordinated
Party, the obligation of the Owner
9
Lessor, which is absolute and unconditional, to pay to the Subordinated Party,
as and when the same shall become due and payable in accordance with its terms,
all amounts payable in respect of the Subordinated Claims, or (b) is intended to
affect the relative rights of the Subordinated Party and creditors of the Owner
Lessor other than holders of the Senior Claims.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1 WAIVERS, AMENDMENTS.
(a) The provisions of this Agreement may from time to time be
amended, modified or waived, if such amendment, modification or waiver is in
writing and consented to by each of the parties hereto.
(b) No failure or delay in exercising any power or right under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand on
any party in any case shall entitle it to any notice or demand in similar or
other circumstances. No waiver or approval under this Agreement shall, except as
may be otherwise stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder.
Section 8.2 ACKNOWLEDGMENT. The Owner Participant expressly
acknowledges that it will take all actions necessary to cause the Owner Lessor
to comply with SECTION 3.4 and SECTION 3.5 of the Lease Indenture.
Section 8.3 NOTICES. Except as otherwise specifically provided
herein, all notices, consents, directions, approvals, instructions, requests and
other communications required or permitted by the terms hereof to be given to
any Person shall be in writing and shall be deemed to have been duly given or
made when delivered if delivered by hand or courier or when received if sent by
mail or telecopy, in each case addressed to the party to which such notice is
required or permitted to be given or made hereunder set forth below its
signature hereto, or such other address as may be specified from time to time by
such party in a notice to the other parties hereto.
Section 8.4 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 8.5 HEADINGS. The various headings of this Agreement are
inserted for convenience only and shall not affect the meaning or interpretation
of this Agreement or any provisions hereof or thereof.
10
Section 8.6 EXECUTION IN COUNTERPARTS, EFFECTIVENESS. This Agreement
may be executed by the parties hereto in several counterparts, each of which
shall be deemed to be an original and all of which shall constitute together but
one and the same agreement.
Section 8.7 GOVERNING LAW; ENTIRE AGREEMENT. THIS AGREEMENT SHALL IN
ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK. This Agreement constitutes the entire understanding among the
parties hereto with respect to the subject matter hereof and supersede any prior
agreements, written or oral, with respect thereto.
Section 8.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
Section 8.9 FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. EACH PARTY HERETO HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH LITIGATION. EACH PARTY HERETO FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT.
Section 8.10 WAIVER OF JURY TRIAL. EACH PARTY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. EACH
PARTY ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE OTHER PARTIES ENTERING INTO THIS AGREEMENT.
11
Section 8.11 LIMITATIONS OF LIABILITY OF THE INDEPENDENT MANAGER. It
is expressly understood and agreed by the parties hereto that this Agreement is
executed by Xxxxx Fargo, not individually or personally, but solely as
Independent Manager under the Lessor LLC Agreement in the exercise of the
power and authority conferred and vested in it as such Independent Manager,
that each and all of the representations, undertakings and agreements herein
made on the part of the Independent Manager or the Owner Lessor are intended not
as personal representations, undertakings and agreements by Xxxxx Fargo, or for
the purpose or with the intention of binding Xxxxx Fargo, personally, but are
made and intended for the purpose of binding only the Lease Indenture Estate,
that nothing herein contained shall be construed as creating any liability of
Xxxxx Fargo, or any incorporator or any past, present or future subscriber to
the capital stock of, or stockholder, officer or director of Xxxxx Fargo, to
perform any covenant either express or implied contained herein or in the other
Operative Documents to which the Independent Manager or the Owner Lessor is
a party, and that so far as Xxxxx Fargo is concerned, any Person shall look
solely to the Lease Indenture Estate for the performance of any obligation
hereunder or thereunder or under any of the instruments referred to herein
or therein; PROVIDED, that nothing contained in this SECTION shall be construed
to limit in scope or substance any general corporate liability of Xxxxx Fargo
as expressly provided in the Lessor LLC Agreement or in the Participation
Agreement.
12
IN WITNESS WHEREOF, the parties hereto have each caused this
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
XXXXX CITY OL[1] LLC
By: Xxxxx Fargo Bank Northwest, National
Association, not in its individual capacity,
but solely as Owner Manager under the LLC
Agreement
By:____________________________
Name:
Title:
Address for Notices:
Xxxxx Fargo Bank Minnesota, N.A.,
Corporate Trustee Services
MAC; N2691-090
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
With a copy to:
Xxxxx Fargo Bank Northwest, N.A.,
Corporate Trust Services
MAC; X0000-000
Xxxx Xxxx Xxxx, XX 00000
[GENERAL ELECTRIC CAPITAL
CORPORATION][FULL SERVICE LEASING CORP.]
By:____________________________
Name:
Title:
Address for Notices:
THE BANK OF NEW YORK, as Lease Indenture
Trustee
By:____________________________
Name:
Title:
Address for Notices:
[114 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000]
13
