Securities Representation. SECTION 9.23. UNENFORCEABILITY OF ORAL AGREEMENTS; (TEXAS STATUTORY LANGUAGE) . . . . . . . . . . . . . Schedule I - Manner of Payment and Communications to Parties Schedule II - Pricing Grid Schedule 4.01(l) - Existing Encumbrances Appendix A - Definitions Exhibit A - Form of Lease Exhibit B - Form of Agency Agreement Exhibit C - Form of Declaration of Trust Exhibit D - Form of Instrument Guaranty Exhibit E - Form of Services Agreement Exhibit F - Form of Requisition Exhibit G - Form of Final Completion Certificate Exhibit H - Form of Independent Engineer's Certificate Exhibit I - Form of Commitment Reduction Notice Execution Copy PARTICIPATION AGREEMENT dated as of October 31, 1995 (as it may be amended from time to time, this "Agreement"), by and among Ferro Corporation, an Ohio corporation (the "COMPANY"); State Street Bank and Trust Company, a Massachusetts trust company ("SSBTC"), not in its individual capacity except as expressly stated herein, but solely as Trustee under the Declaration (herein, together with any successor trustee under the Declaration, the "TRUSTEE"); the financial institutions named as purchasers on Schedule I hereto, and/or any assignee thereof who may, from time to time, become a party to this Agreement pursuant to the terms hereof (collectively, the "PURCHASERS"); and Citibank, N.A. ("CITIBANK"), in its capacity as agent for the Purchasers hereunder. Capitalized terms used but not otherwise defined in this Agreement shall have the meanings set forth in Appendix A hereto. Preliminary Statement --------------------- A. Synthetic Products Company, a Delaware corporation ("SYNPRO"), is the owner of (i) certain parcels of land described on Schedule A to the Ohio Deed and located in Cleveland, Ohio (the "OHIO FEE PARCELS"), (ii) an easement interest in a certain parcel of land described on Schedule A to the Ohio Deed and located in Cleveland, Ohio (the "OHIO EASEMENT PARCEL" and together with the Ohio Fee Parcels, the "OHIO PARCELS") (iii) a license interest with respect to a parcel of land in Cleveland, Ohio as described on Schedule A to the License Agreement (the "LICENSE PARCEL"), (iv) two parcels of land described on Schedule A to the Texas Deed and located in Fort Worth, Texas (the "TEXAS FEE PARCELS", and together with the Ohio Fee Parcels, collectively, the "FEE PARCELS"), (v) certain parcels of land described in the Easements and Option to Purchase between Synpro and the Company dated as of October 31, 1995 and located in Fort Worth, Texas (the "TEXAS EASEMENT PARCELS"), (vi) a leasehold interest in certain parcels of land described in the Easement and located in Fort Worth, Texas (the "TEXAS LEASEHOLD PARCELS" and together with the Ohio Easement Parcel and Texas Easement Parcels, collectively, the "EASEMENT PARCELS"), (vii) a plant for the manufacture of stearates, lubricants and stabilizers and related facilities located on the Ohio Fee Parcels (the "OHIO PLANT"), (viii) a plant for the manufacture of stearates, lubricants and stabilizers located on the Texas Fee Parcels (the "Texas Plant" and together with the Ohio Plant, collectively, the "PLANTS"), (ix) certain improvements located on the Texas Leasehold Parcel and used in connection with the operation of the Texas Plant (the "TEXAS LEASEHOLD IMPROVEMENTS"), (x) certain improvements located on the Texas Easement Parcel and used in connection with the Texas Plant (the "TEXAS EASEMENT IMPROVEMENTS"), (xi) certain fixtures, equipment and other personal property used in connection with the Plants and presently located on (a) the Ohio Fee Parcels (the "INITIAL OHIO FEE IMPROVEMENTS"), (b) on the Texas Fee Parcels (the "INITIAL TEXAS FEE IMPROVEMENTS") and (c) on the License Parcel (the "INITIAL LICENSE IMPROVEMENTS") (collectively, the "ASSETS" and together with the Plants, the "INITIAL IMPROVEMENTS") as described on Schedule A to the Bill of Sale. B. On the Financing Closing Date, the ▇▇▇stee will acquire from Synpro fee title to the Ohio Fee Parcels and the Texas Fee Parcels, an easement interest in the Ohio Easement Parcel, a license to the License Parcel and title to a portion of the Initial Improvements pursuant to an Asset Purchase Agreement dated as of October 25, 1995 among Synpro, Cookson Group, plc, Cookson America, Inc. and the Company (as the s▇▇▇ ▇▇▇ be amended f▇▇▇ ▇▇▇e to time, the "PURCHASE AGREEMENT"). In addition, on the Financing Closing Date, (a) the Company will acquire from Synpro (i) the leasehold estate to the Texas Leasehold Parcel pursuant to the Purchase Agreement, and (ii) easements over the Texas Easement Parcel pursuant to the Purchase Agreement, and (b) the Trustee will acquire from the Company (i) easements over the Texas Leasehold Parcel and to the Texas Easement Improvements pursuant to the Easement, and (ii) the easements over the Texas Easement Parcels pursuant to the Second Easement. Thereafter, certain improvements to the Initial Improvements (the "FINANCED IMPROVEMENTS") will be constructed, as more fully described in Exhibit A to the Agency Agreement referred to below. The Initial Improvements and the Financed Improvements, together with all future structures, buildings, fixtures and other immovable improvements now or hereafter on the Fee Parcels, the Easement Parcels and the License Parcel and all integral equipment to be located thereon or therein are collectively defined as the "IMPROVEMENTS". The Company shall have a one-time option to exclude from the Financed Improvements certain equipment and other personal property (other than Improvements with respect to the installation at the Ohio Plant of certain components of the Connecticut Equipment) (the "EXCLUDED ASSETS"), by submission to the Agent and the Trustee of a Commitment Reduction Notice in accordance with Section 1.05 below. The Trustee's fee interest in the Fee Parcels, easement interests in the Easement Parcels, license to the License Parcel and interest in the Improvements are sometimes referred to herein as the "PROPERTY". After acquiring the Property as described above, the Trustee will lease (or grant a license to portions of) the Property to the Company pursuant to a lease dated as of the date hereof substantially in the form of Exhibit A hereto (as the same may be amended from time to time, the "LEASE"). C. The Company, acting as the Trustee's Construction Agent under an agency agreement dated as of the date hereof substantially in the form of Exhibit B hereto (as the same may be amended from time to time, the "AGENCY AGREEMENT"), will complete the construction of the Financed Improvements. D. To finance the Trustee's acquisition of the Parcels and the Initial Improvements, the Trustee, on the Financing Closing Date, will issue to the Certificate Purchaser the Series 1 Certificates and will issue to the Note Purchasers Series 1 A-Notes and Series 1 B-Notes pursuant to a declaration of trust dated as of the date hereof substantially in the form of Exhibit C hereto (as the same may be amended from time to time, the "DECLARATION" or "DECLARATION OF TRUST"). To finance the construction of the Financed Improvements, the Trustee will issue on the Financing Closing Date, Interim Notes to the Note Purchasers and Series 2 Certificates to the Certificate Purchasers pursuant to the Declaration. E. Subject to the terms and conditions hereof and pursuant to Requisitions, the Note Purchasers shall make Advances on the Financing Closing Date and from time to time thereafter, and each Certificate Purchaser shall make Investments for all amounts paid or payable as costs for the acquisition of the Parcels and the Improvements and the design, engineering, construction, operation, testing and licensing of the Improvements, as well as interest, distributions, fees and expenses paid or payable on or with respect to the Interim Notes and Series 2 Certificates on or prior to the Interim Note Maturity Date, the Operative Documents or otherwise related to the transactions contemplated hereby (collectively, the "ACTUAL PROJECT COSTS"). Upon the Interim Note Maturity Date, the Trustee shall refinance the Interim Notes through the issuance of a specified proportion of Series 2 A-Notes and Series 2 B-Notes, to be issued pursuant to the Declaration in the same aggregate principal amount as the Interim Notes. The Instruments will be issued, dated and mature and be payable as provided in the Declaration. The Instruments shall be entitled to the benefit of the Trust Estate held pursuant to the Declaration. F. The Company shall also enter into a guaranty agreement dated as of the date hereof substantially in the form of Exhibit D hereto (as the same may be amended from time to time, the "INSTRUMENT GUARANTY") pursuant to which the Company will guaranty repayment by the Trustee of the Instruments to the extent provided therein. G. In addition, the Company will enter into a services agreement dated as of the date hereof, substantially in the form of Exhibit E hereto (as the same may be amended from time to time, the "SERVICES AGREEMENT") pursuant to which it will be obligated to provide certain services to the Trustee and with respect to the Property in the event the Company does not purchase the Property at the expiration or other termination of the Lease.
Appears in 1 contract
Sources: Participation Agreement (Ferro Corp)
Securities Representation. SECTION 9.23. UNENFORCEABILITY OF ORAL AGREEMENTS; (TEXAS STATUTORY LANGUAGE) . . . . . . . . . . . . . Schedule I - Manner of Payment and Communications to Parties Schedule II - Pricing Grid Schedule 4.01(l) - Existing Encumbrances Appendix A - Definitions Exhibit A - Form of Lease Exhibit B - Form of Agency Agreement Exhibit C - Form of Declaration of Trust Exhibit D - Form of Instrument Guaranty Exhibit E - Form of Services Agreement Exhibit F - Form of Requisition Exhibit G - Form of Final Completion Certificate Exhibit H - Form of Independent Engineer's Certificate Exhibit I - Form of Commitment Reduction Notice Execution Copy PARTICIPATION AGREEMENT dated as of October 31, 1995 (as it may be amended from time to time, this "Agreement"), by and among Ferro Corporation, an Ohio corporation (the "COMPANY"); State Street Bank and Trust Company, a Massachusetts trust company ("SSBTC"), not in its individual capacity except as expressly stated herein, but solely as Trustee under the Declaration (herein, together with any successor trustee under the Declaration, the "TRUSTEE"); the financial institutions named as purchasers on Schedule I hereto, and/or any assignee thereof who may, from time to time, become a party to this Agreement pursuant to the terms hereof (collectively, the "PURCHASERS"); and Citibank, N.A. ("CITIBANK"), in its capacity as agent for the Purchasers hereunder. Capitalized terms used but not otherwise defined in this Agreement shall have the meanings set forth in Appendix A hereto. Preliminary Statement ---------------------
A. Synthetic Products Company, a Delaware corporation ("SYNPRO"), is the owner of (i) certain parcels of land described on Schedule A to the Ohio Deed and located in Cleveland, Ohio (the "OHIO FEE PARCELS"), (ii) an easement interest in a certain parcel of land described on Schedule A to the Ohio Deed and located in Cleveland, Ohio (the "OHIO EASEMENT PARCEL" and together with the Ohio Fee Parcels, the "OHIO PARCELS") (iii) a license interest with respect to a parcel of land in Cleveland, Ohio as described on Schedule A to the License Agreement (the "LICENSE PARCEL"), (iv) two parcels of land described on Schedule A to the Texas Deed and located in Fort Worth, Texas (the "TEXAS FEE PARCELS", and together with the Ohio Fee Parcels, collectively, the "FEE PARCELS"), (v) certain parcels of land described in the Easements and Option to Purchase between Synpro and the Company dated as of October 31, 1995 and located in Fort Worth, Texas (the "TEXAS EASEMENT PARCELS"), (vi) a leasehold interest in certain parcels of land described in the Easement and located in Fort Worth, Texas (the "TEXAS LEASEHOLD PARCELS" and together with the Ohio Easement Parcel and Texas Easement Parcels, collectively, the "EASEMENT PARCELS"), (vii) a plant for the manufacture of stearates, lubricants and stabilizers and related facilities located on the Ohio Fee Parcels (the "OHIO PLANT"), (viii) a plant for the manufacture of stearates, lubricants and stabilizers located on the Texas Fee Parcels (the "Texas Plant" and together with the Ohio Plant, collectively, the "PLANTS"), (ix) certain improvements located on the Texas Leasehold Parcel and used in connection with the operation of the Texas Plant (the "TEXAS LEASEHOLD IMPROVEMENTS"), (x) certain improvements located on the Texas Easement Parcel and used in connection with the Texas Plant (the "TEXAS EASEMENT IMPROVEMENTS"), (xi) certain fixtures, equipment and other personal property used in connection with the Plants and presently located on (a) the Ohio Fee Parcels (the "INITIAL OHIO FEE IMPROVEMENTS"), (b) on the Texas Fee Parcels (the "INITIAL TEXAS FEE IMPROVEMENTS") and (c) on the License Parcel (the "INITIAL LICENSE IMPROVEMENTS") (collectively, the "ASSETS" and together with the Plants, the "INITIAL IMPROVEMENTS") as described on Schedule A to the Bill of Sale.
B. On the Financing Closing Date, the ▇▇▇stee will acquire from Synpro fee title to the Ohio Fee Parcels and the Texas Fee Parcels, an easement interest in the Ohio Easement Parcel, a license to the License Parcel and title to a portion of the Initial Improvements pursuant to an Asset Purchase Agreement dated as of October 25, 1995 among Synpro, Cookson Group, plc, Cookson America, Inc. and the Company (as the s▇▇▇ ▇▇▇ be amended f▇▇▇ ▇▇▇e to time, the "PURCHASE AGREEMENT"). In addition, on the Financing Closing Date, (a) the Company will acquire from Synpro (i) the leasehold estate to the Texas Leasehold Parcel pursuant to the Purchase Agreement, and (ii) easements over the Texas Easement Parcel pursuant to the Purchase Agreement, and (b) the Trustee will acquire from the Company (i) easements over the Texas Leasehold Parcel and to the Texas Easement Improvements pursuant to the Easement, and (ii) the easements over the Texas Easement Parcels pursuant to the Second Easement. Thereafter, certain improvements to the Initial Improvements (the "FINANCED IMPROVEMENTS") will be constructed, as more fully described in Exhibit A to the Agency Agreement referred to below. The Initial Improvements and the Financed Improvements, together with all future structures, buildings, fixtures and other immovable improvements now or hereafter on the Fee Parcels, the Easement Parcels and the License Parcel and all integral equipment to be located thereon or therein are collectively defined as the "IMPROVEMENTS". The Company shall have a one-time option to exclude from the Financed Improvements certain equipment and other personal property (other than Improvements with respect to the installation at the Ohio Plant of certain components of the Connecticut Equipment) (the "EXCLUDED ASSETS"), by submission to the Agent and the Trustee of a Commitment Reduction Notice in accordance with Section 1.05 below. The Trustee's fee interest in the Fee Parcels, easement interests in the Easement Parcels, license to the License Parcel and interest in the Improvements are sometimes referred to herein as the "PROPERTY". After acquiring the Property as described above, the Trustee will lease (or grant a license to portions of) the Property to the Company pursuant to a lease dated as of the date hereof substantially in the form of Exhibit A hereto (as the same may be amended from time to time, the "LEASE").
C. The Company, acting as the Trustee's Construction Agent under an agency agreement dated as of the date hereof substantially in the form of Exhibit B hereto (as the same may be amended from time to time, the "AGENCY AGREEMENT"), will complete the construction of the Financed Improvements.
D. To finance the Trustee's acquisition of the Parcels and the Initial Improvements, the Trustee, on the Financing Closing Date, will issue to the Certificate Purchaser the Series 1 Certificates and will issue to the Note Purchasers Series 1 A-Notes and Series 1 B-Notes pursuant to a declaration of trust dated as of the date hereof substantially in the form of Exhibit C hereto (as the same may be amended from time to time, the "DECLARATION" or "DECLARATION OF TRUST"). To finance the construction of the Financed Improvements, the Trustee will issue on the Financing Closing Date, Interim Notes to the Note Purchasers and Series 2 Certificates to the Certificate Purchasers pursuant to the Declaration.
E. Subject to the terms and conditions hereof and pursuant to Requisitions, the Note Purchasers shall make Advances on the Financing Closing Date and from time to time thereafter, and each Certificate Purchaser shall make Investments for all amounts paid or payable as costs for the acquisition of the Parcels and the Improvements and the design, engineering, construction, operation, testing and licensing of the Improvements, as well as interest, distributions, fees and expenses paid or payable on or with respect to the Interim Notes and Series 2 Certificates on or prior to the Interim Note Maturity Date, the Operative Documents or otherwise related to the transactions contemplated hereby (collectively, the "ACTUAL PROJECT COSTS"). Upon the Interim Note Maturity Date, the Trustee shall refinance the Interim Notes through the issuance of a specified proportion of Series 2 A-Notes and Series 2 B-Notes, to be issued pursuant to the Declaration in the same aggregate principal amount as the Interim Notes. The Instruments will be issued, dated and mature and be payable as provided in the Declaration. The Instruments shall be entitled to the benefit of the Trust Estate held pursuant to the Declaration.
F. The Company shall also enter into a guaranty agreement dated as of the date hereof substantially in the form of Exhibit D hereto (as the same may be amended from time to time, the "INSTRUMENT GUARANTY") pursuant to which the Company will guaranty repayment by the Trustee of the Instruments to the extent provided therein.
G. In addition, the Company will enter into a services agreement dated as of the date hereof, substantially in the form of Exhibit E hereto (as the same may be amended from time to time, the "SERVICES AGREEMENT") pursuant to which it will be obligated to provide certain services to the Trustee and with respect to the Property in the event the Company does not purchase the Property at the expiration or other termination of the Lease.
Appears in 1 contract
Sources: Lease Agreement (Ferro Corp)