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PARTICIPATION AGREEMENT
Dated as of December 15, 1997
Re:
MW 1997-1 TRUST
Synthetic Lease of Envelope and Commercial Printing Equipment
to
Mail-Well I Corporation
Among
Mail-Well I Corporation
Lessee
KEYBANK NATIONAL ASSOCIATION
KEY CORPORATE CAPITAL INC.
Trust Certificate Purchasers
KEYBANK NATIONAL ASSOCIATION,
not in its individual capacity, except as expressly
provided herein, but solely as trustee under
MW 1997-1 Trust
Lessor Trustee
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TABLE OF CONTENTS
SECTION HEADING PAGE
Parties...................................................................... 1
Recitals..................................................................... 1
SECTION 1. COMMITMENTS OF THE TRUST CERTIFICATE PURCHASERS............ 1
Section 1.1. Advances by Trust Certificate Purchasers................. 1
Section 1.2. The Closing Date......................................... 2
Section 1.3. Expiration of Commitments................................ 2
Section 1.4. Several Commitments...................................... 2
Section 1.5. Acquisition of Equipment by the Lessor Trustee........... 2
SECTION 2. INTEREST AND CHANGE IN CIRCUMSTANCES....................... 2
Section 2.1. Interest Rate............................................ 2
Section 2.2. Computation of Interest.................................. 3
Section 2.3. Adverse Determination.................................... 3
Section 2.4. Invoicing of Periodic Rent............................... 3
SECTION 3. REPRESENTATIONS AND WARRANTIES............................. 3
Section 3.1. Warranties and Representations of KeyBank National
Association and the Lessor Trustee....................... 3
Section 3.2. Warranties and Representations of the Lessee............. 6
Section 3.3. Private Offering......................................... 9
Section 3.4. Representations of the Trust Certificate Purchasers;
Transfer of Trust Certificates; Participations........... 9
SECTION 4. CLOSING CONDITIONS......................................... 12
Section 4.1. Conditions Precedent to Investment on the Closing Date... 12
Section 4.2. Conditions Subsequent to Investment on the Closing Date.. 14
SECTION 5. SPECIAL RIGHTS OF TRUST CERTIFICATE PURCHASERS............. 15
SECTION 6. LESSEE'S INDEMNITIES....................................... 15
Section 6.1. General Indemnification.................................. 15
Section 6.2. Proceedings in Respect of Claims......................... 17
Section 6.3. General Tax Indemnity.................................... 18
Section 6.4. Indemnity Payments in Addition to Lease Obligations...... 21
Section 6.5. Increased Costs, etc..................................... 21
Section 6.6. Funding Losses........................................... ▇▇
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▇▇▇▇▇▇▇ ▇. INDEMNITIES OF THE LESSOR TRUSTEE AND THE TRUST CERTIFICATE
PURCHASERS................................................. 23
SECTION 8. CERTAIN INTENTIONS OF THE PARTIES.......................... 23
Section 8.1. Nature of Transaction.................................... 23
Section 8.2. Amounts Due Under the Lease.............................. 24
SECTION 9. [INTENTIONALLY OMITTED].................................. 25
SECTION 10. MISCELLANEOUS............................................ 25
Section 10.1. Amendments............................................... 25
Section 10.2. Notices.................................................. 25
Section 10.3. Survival................................................. 25
Section 10.4. Successors and Assigns................................... 25
Section 10.5. Governing Law............................................ 25
Section 10.6. Counterparts............................................. 25
Section 10.7. Headings and Table of Contents........................... 26
Section 10.8. Limitations of Liability................................. 26
Section 10.9. Transactional Expenses................................... 27
Signatures................................................................... 28
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ATTACHMENTS TO THE PARTICIPATION AGREEMENT:
Schedule I -- Schedule of Trust Certificate Purchasers;
Commitments; Applicable Percentages
Schedule II -- Description of the Account
Schedule III -- Subsidiaries of the Lessee and Ownership of
Subsidiary Stock
Annex I -- Definitions
Annex II -- Forms of Opinions of Counsel
Exhibit A -- Lessor Trust Agreement
Exhibit B -- Equipment Lease
Exhibit C -- Guaranty Agreement
Exhibit D -- Form of Notice of Closing
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PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT dated as of December 15, 1997 is among
MAIL-WELL I CORPORATION, a Delaware corporation (the "LESSEE"), KEYBANK
NATIONAL ASSOCIATION and KEY CORPORATE CAPITAL INC. (the "TRUST CERTIFICATE
PURCHASERS"), and KEYBANK NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity, except as expressly provided
herein, but solely as trustee (the "LESSOR TRUSTEE") under MW 1997-1 Trust
created under the Lessor Trust Agreement referred to below.
RECITALS:
A. The capitalized terms used in this Participation Agreement shall
have the respective meanings specified in Annex I attached hereto, unless
otherwise herein defined or the context hereof shall otherwise require.
B. The Lessor Trustee and the Trust Certificate Purchasers have
entered into a Lessor Trust Agreement dated as of December 15, 1997
substantially in the form attached hereto as Exhibit A and pursuant to the
authorities and directions contained in the said Lessor Trust Agreement, the
Lessor Trustee has entered into or proposes to enter into an Equipment Lease
substantially in the form attached hereto as Exhibit B between the Lessor
Trustee, as lessor, and the Lessee, as lessee, providing for the lease of
envelope and commercial printing equipment acquired by the Lessor Trustee
under the Operative Agreements.
C. Concurrently with the execution and delivery of this Agreement, the
Guarantors and the Lessee will enter into a Guaranty Agreement substantially
in the form attached hereto as Exhibit C.
SECTION 1. COMMITMENTS OF THE TRUST CERTIFICATE PURCHASERS.
SECTION 1.1. ADVANCES BY TRUST CERTIFICATE PURCHASERS. (a) ADVANCES.
Subject to the terms and conditions hereof and on the basis of the
representations and warranties hereinafter set forth, each Trust Certificate
Purchaser agrees to advance to the Lessor Trustee, on the Closing Date, an
amount (an "ADVANCE") equal to the lesser of (i) its Applicable Percentage of
the Equipment Cost (set forth opposite such Trust Certificate Purchaser's
name on Schedule I hereto) of the Equipment to be funded on the Closing Date
and (ii) its Commitment, against delivery by the Lessor Trustee of Trust
Certificates in the aggregate principal amount of such Advance and of the
series to be purchased by such Trust Certificate Purchaser (set forth
opposite such Trust Certificate Purchaser's name on Schedule I hereto). The
Trust Certificates delivered to each Trust Certificate Purchaser on the
Closing Date will, unless otherwise requested by a Trust Certificate
Purchaser, be in the form of a single Trust Certificate registered in the
manner set forth on Schedule I hereto.
(b) FAILURE TO ADVANCE, ETC. If on the Closing Date any Trust
Certificate Purchaser shall fail to make the Advance to be made by such Trust
Certificate Purchaser on such
MW 1997-1 Trust Participation Agreement
Closing Date pursuant to Section 1.1(a) or if the conditions to the
obligation of any Trust Certificate Purchaser specified in Section 4 have not
been fulfilled, the Trust Certificate Purchasers may thereupon elect to be
relieved of all further obligations under this Agreement. Nothing in this
Section shall operate to relieve the Lessee from its obligations hereunder or
to waive any of the Trust Certificate Purchasers' rights against the Lessee.
SECTION 1.2. THE CLOSING DATE. The Advances to be made by the Trust
Certificate Purchasers hereunder shall be made on one date (the "CLOSING
DATE"), not later than the expiration of the commitment of the Trust
Certificate Purchasers as set forth in Section 1.3, which date shall be the
date designated by the Lessee for delivery and acceptance of the Equipment to
be funded on such Closing Date under the Lease. The Lessee shall designate
the date on which the Equipment is to be delivered and accepted by the Lessee
under the Lease by not less than 3 Business Days' prior written notice to
each Trust Certificate Purchaser and the Lessor Trustee, which notice shall
be substantially in the form attached hereto as Exhibit D and shall specify
the amount of the Advance to be made by each Trust Certificate Purchaser.
Each Trust Certificate Purchaser's Advance shall be made available to the
Lessor Trustee (Account No. 470589990154) no later than 12:00 Noon, Seattle,
Washington time on the Closing Date in Federal Reserve or otherwise
immediately available funds current in Seattle, Washington.
SECTION 1.3. EXPIRATION OF COMMITMENTS. The commitment of each Trust
Certificate Purchaser under Section 1.1(a) shall expire on December 31, 1997.
SECTION 1.4. SEVERAL COMMITMENTS. The obligations hereunder of the Trust
Certificate Purchasers shall be several and not joint and no Trust
Certificate Purchaser shall be liable or responsible for the acts or defaults
of any other Trust Certificate Purchaser.
SECTION 1.5. ACQUISITION OF EQUIPMENT BY THE LESSOR TRUSTEE. Subject to
the terms and conditions hereof and on the basis of the representations and
warranties hereinafter set forth and set forth in the other Operative
Agreements, the Lessor Trustee agrees to acquire the Equipment to be settled
for on the Closing Date at a price equal to the Equipment Cost therefor.
SECTION 2. INTEREST AND CHANGE IN CIRCUMSTANCES.
SECTION 2.1. INTEREST RATE. Each Trust Certificate shall bear interest on
the Outstanding Certificate Balance for Interest Calculations set forth on
Schedule 1-A or Schedule 1-B, as the case may be, to the Trust Agreement for
each Interest Period at a rate per annum determined by adding the Applicable
Margin for such Interest Period to the Adjusted LIBOR for such Interest
Period, provided that if the principal of or interest on any Trust
Certificate is not paid when due (whether by lapse of time, acceleration or
otherwise) such overdue principal and (to the extent permitted by Applicable
Law) overdue interest shall bear interest, whether before or after judgment,
until payment in full thereof at the Overdue Rate. Interest on the Trust
Certificates shall be due and payable on the last day of each Interest Period
applicable thereto, PROVIDED that any payment of interest which is due on a
date which is not a Business Day shall be payable on the next succeeding
Business Day,
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MW 1997-1 Trust Participation Agreement
unless the result of such extension would be that such payment would be made
in another calendar month in which event such payment shall be made on the
immediately preceding Business Day, and interest on overdue principal and (to
the extent permitted by Applicable Law) interest shall be due and payable
upon demand.
SECTION 2.2. COMPUTATION OF INTEREST. All interest on the Trust
Certificates shall be computed on the basis of a year of 360 days for the
actual number of days elapsed.
SECTION 2.3. ADVERSE DETERMINATION. Notwithstanding any other provisions
of this Agreement or of the Trust Certificates or any other Operative
Agreement, if at any time any Trust Certificate Purchaser or Certificate
Holder shall in good faith make an Adverse Determination, such Trust
Certificate Purchaser or Certificate Holder shall promptly so notify the
Lessor Trustee and the Lessee and from and after the date specified in such
notice the Trust Certificates held by such Trust Certificate Purchaser or
Certificate Holder shall bear interest at the Alternate Rate. Any
determination made by a Trust Certificate Purchaser or Certificate Holder
shall, absent manifest error, be final and conclusive and binding upon all
parties.
SECTION 2.4. INVOICING OF PERIODIC RENT. Prior to each Interest Period,
the Lessor Trustee shall calculate the interest due on the Trust Certificates
for such Interest Period and shall promptly give notice to the Lessee and
(with respect to the Trust Certificates held by any Certificate Holder) the
Certificate Holders as to the amount so calculated. In addition, the Lessor
Trustee shall, at least three Business Days prior to the payment date for any
installment of Periodic Rent, give notice to the Lessee and the Lessor
Trustee of the amount of such installment. The calculations and notices to
be made by the Lessor Trustee pursuant to this Section 2.4 are for the
convenience only of the parties hereto; and, any error made by the Lessor
Trustee in the calculation of interest due on the Trust Certificates or in
the amount of any installment of Periodic Rent or any failure by the Lessor
Trustee to give any notice required by this Section 2.4, shall not affect the
amount of interest due on the Trust Certificates, the obligation of the
Lessee to make the payments of Periodic Rent payable under the Lease or the
amount of any such payments of Periodic Rent.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
SECTION 3.1. WARRANTIES AND REPRESENTATIONS OF KEYBANK NATIONAL ASSOCIATION
AND THE LESSOR TRUSTEE. The Lessor Trustee warrants and represents to the
Lessee and the Trust Certificate Purchasers in its individual capacity,
notwithstanding the provisions of Section 10.8 hereof or any similar
provision of any other Operative Agreement, that:
(a) KeyBank National Association
(i) is a national banking association duly organized, validly
existing and in good standing under the laws of the United States; and
(ii) has the corporate power and authority to enter into and perform
its obligations under the Trust Agreement.
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MW 1997-1 Trust Participation Agreement
(b) There are no proceedings pending, or to the knowledge of KeyBank
National Association threatened, and to the knowledge of KeyBank National
Association there is no existing basis for any such proceedings, against or
affecting KeyBank National Association in any court or before any
governmental authority or arbitration board or tribunal which, if adversely
determined, might materially and adversely affect the Lessor Trust Estate
or would call into question the right, power and authority of KeyBank
National Association or the Lessor Trustee to enter into or perform the
Lessor Trustee Agreements.
(c) The Lessor Trust Estate is free and clear of any Lessor Liens
attributable to KeyBank National Association. Except as contemplated by
the Operative Agreements, neither KeyBank National Association nor the
Lessor Trustee has by affirmative act conveyed any interest in the Lessor
Trust Estate to any Person.
(d) Neither the nature of the Lessor Trust Estate, nor any
relationship between KeyBank National Association and any other Person, nor
any circumstance in connection with the offer, issue, sale or delivery of
Trust Certificates or the execution and delivery of the Lessor Trustee
Agreements is such as to require a consent, approval or authorization of,
or filing, registration or qualification on the part of KeyBank National
Association with, any Federal governmental authority governing the banking
and trust powers of KeyBank National Association or any Washington
governmental authority in connection with the execution, delivery and
performance of the Lessor Trustee Agreements or the offer, issue, sale or
delivery of the Trust Certificates.
(e) This Agreement and the Trust Agreement have been duly authorized
by all necessary corporate action on the part of KeyBank National
Association, have been duly executed and delivered by KeyBank National
Association and constitute the valid and binding obligations of KeyBank
National Association, enforceable against KeyBank National Association in
accordance with their terms, except as such terms may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting the
rights of creditors generally and except as equitable remedies such as
specific performance may be in the discretion of the courts.
(f) The execution and delivery of this Agreement (to the extent
entered into in its individual capacity) and the Trust Agreement and
compliance by KeyBank National Association, in its individual capacity,
with all of the provisions thereof do not and will not contravene any law
of the United States or the State of Ohio affecting the banking or trust
powers of KeyBank National Association or any order of any court or
governmental authority or agency applicable to or binding on the banking
and trust powers of KeyBank National Association, or its charter documents
or its By-laws, or any indenture, mortgage, contract or other agreement or
instrument to which KeyBank National Association is a party or by which it
or any of its Property may be bound or affected.
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MW 1997-1 Trust Participation Agreement
The Lessor Trustee, in its fiduciary capacity, warrants and represents to
the Trust Certificate Purchasers that:
(a) The Lessor Trustee, as trustee under the Trust Agreement,
assuming due authorization, execution and delivery of the Trust Agreement
by the Trust Certificate Purchasers, has full right, power and authority
under the Trust Agreement to enter into and perform its obligations, as
Lessor Trustee, under the Lessor Trustee Agreements other than the Trust
Agreement.
(b) There are no proceedings pending, or to the knowledge of the
Lessor Trustee threatened, and to the knowledge of the Lessor Trustee there
is no existing basis for any such proceedings, against or affecting the
Lessor Trustee or the Lessor Trust in any court or before any governmental
authority or arbitration board or tribunal which, if adversely determined,
might materially and adversely affect the Lessor Trust Estate or would call
into question the right, power and authority of the Lessor Trustee to enter
into or perform the Lessor Trustee Agreements.
(c) Except as contemplated by the Operative Agreements, the Lessor
Trustee has not by affirmative act conveyed any interest in the Lessor
Trust Estate to any Person.
(d) The Lessor Trustee is not in violation of any term of any of the
Lessor Trustee Agreements.
(e) Neither the nature of the Lessor Trust Estate, nor any
relationship between the Lessor Trustee or the Lessor Trust and any other
Person, nor any circumstance in connection with the offer, issue, sale or
delivery of the Trust Certificates or the execution and delivery of the
Lessor Trustee Agreements is such as to require a consent, approval or
authorization of, or filing, registration or qualification on the part of
the Lessor Trustee or the Lessor Trust with, any United States or
Washington governmental authority governing the banking or trust powers of
the Lessor Trustee in connection with the execution, delivery and
performance of the Lessor Trustee Agreements or the offer, issue, sale or
delivery of the Trust Certificates.
(f) The Lessor Trustee Agreements (other than the Trust Agreement)
are duly authorized by the Trust Agreement, have been (or, in the case of
the Lease Supplement and the Trust Certificates to be delivered on the
Closing Date, will on the Closing Date have been) duly executed and
delivered by the Lessor Trustee and constitute (or, in the case of the
Lease Supplement and the Trust Certificates to be delivered on the Closing
Date, will on the Closing Date constitute) the valid and binding
obligations of the Lessor Trustee, enforceable against the Lessor Trustee
in accordance with their terms, except as such terms may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting the
rights of creditors generally and except as equitable remedies such as
specific performance may be in the discretion of the courts.
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MW 1997-1 Trust Participation Agreement
(g) The execution and delivery of the Lessor Trustee Agreements and
compliance by the Lessor Trustee with all of the provisions thereof do not
and will not contravene any law or any order of any court or governmental
authority or agency applicable to or binding on the banking and trust
powers of the Lessor Trustee, or any indenture, mortgage, contract or other
agreement or instrument to which the Lessor Trustee is a party or by which
it or any of its Property may be bound or affected.
SECTION 3.2. WARRANTIES AND REPRESENTATIONS OF THE LESSEE. The Lessee
warrants and represents that:
(a) The Lessee is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation,
is duly qualified to do business as a foreign corporation and is in good
standing in all jurisdictions in which failure to be so qualified would
have a materially adverse effect on its business or the performance of its
obligations under the Lessee Agreements, and has full corporate power and
authority and all necessary licenses and permits to carry on its present
business and operations, to own or lease its Properties and to enter into
and perform its obligations under the Lessee Agreements.
(b) The Lessee Agreements have been duly authorized, executed and
delivered (or, in the case of the Lease Supplement to be delivered on the
Closing Date, will on the Closing Date have been duly executed and
delivered) by the Lessee and constitute (or, in the case of the Lease
Supplement to be delivered on the Closing Date, will on the Closing Date
constitute, as the case may be) legal, valid and binding obligations of the
Lessee enforceable against the Lessee in accordance with the respective
terms thereof.
(c) The execution and delivery of the Lessee Agreements and
compliance by the Lessee with all of the provisions thereof do not and will
not contravene any law, governmental rule or regulation or any order of any
court or governmental authority or agency applicable to or binding on the
Lessee or contravene the provisions of, or constitute a default under, or
result in the creation (except as contemplated by the Operative Agreements)
of any Lien upon the Property of the Lessee under, its Certificate of
Incorporation or By-laws or any indenture, mortgage, contract or other
agreement or instrument to which the Lessee is a party or by which it or
any of its Properties may be bound or affected.
(d) There are no proceedings pending or, to the knowledge of the
Lessee, threatened, and to the knowledge of the Lessee there is no existing
basis for any such proceedings, against or affecting the Lessee in any
court or before any governmental authority or arbitration board or tribunal
which, if adversely determined, might individually or in the aggregate
materially and adversely affect the Properties, business, profits or
condition (financial or otherwise) of the Lessee or impair the ability of
the Lessee to perform its obligations under the Lessee Agreements. The
Lessee is not in default with respect to any order of any court or
governmental authority or arbitration board or tribunal.
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MW 1997-1 Trust Participation Agreement
(e) Neither the nature of the Lessee, or of any of its businesses or
Properties, nor any relationship between the Lessee and any other Person,
nor any circumstance in connection with the execution and delivery of the
Lessee Agreements, nor the consummation of any of the transactions by the
Lessee contemplated by the Lessee Agreements, is such as to require a
consent, approval or authorization of, or filing, registration or
qualification with, any governmental authority on the part of the Lessee in
connection with the execution, delivery and performance of the Lessee
Agreements.
(f) The Lessor Trustee will on the Closing Date have good title to
the Equipment, free and clear of all Liens other than Permitted Liens.
(g) None of the transactions contemplated by the Operative Agreements
(including, without limitation, the making by the Trust Certificate
Purchasers of the Advances) will result in a violation of Section 7 of the
Securities Exchange Act of 1934, as amended, or any regulations issued
pursuant thereto, including, without limitation, Regulations G, T, U and X
of the Board of Governors of the Federal Reserve System, 12 C.F.R.,
Chapter II. The Lessee does not own or intend to carry or purchase any
"margin security" within the meaning of said Regulation G, including margin
securities originally issued by it. None of the proceeds from the sale of
the Trust Certificates will be used to purchase or carry (or refinance any
borrowing the proceeds of which were used to purchase or carry) any
"security" within the meaning of the Exchange Act.
(h) On the Closing Date, all filings necessary or desirable to
establish and perfect the Lessor Trustee's title to and interest in the
Equipment as against the Lessee and any third parties and to perfect the
lien and security interest of the Lessor Trustee under the Lease in the
Equipment as against creditors of and purchasers from the Lessee will have
been duly made, and the Lease will on the Closing Date create a valid and
perfected first priority lien and security interest in the Equipment,
effective as against creditors of and purchasers from the Lessee, securing
the payment of all obligations of the Lessee under the Lessee Agreements.
(i) On the Closing Date, the Equipment will be covered by the
insurance required by Section 13 of the Lease.
(j) No Default or Event of Default has occurred and is continuing.
The Lessee is not and, but for the passage of time, will not be in
violation in any material respect of any term of any charter instrument,
by-law or other material agreement or instrument to which it is a party or
by which it may be bound. The Lessee is in compliance with all laws,
ordinances, governmental rules and regulations to which it is subject, the
failure to comply with which would have a material and adverse effect on
its operations or condition, financial or otherwise, or would impair the
ability of the Lessee to perform its obligations under the Lessee
Agreements, and has obtained all licenses, permits, franchises and other
governmental authorizations material to the conduct of its business.
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MW 1997-1 Trust Participation Agreement
(k) The execution and delivery of this Participation Agreement and
the creation of the Lessor Trust and the issuance and sale of the Trust
Certificates under the Operative Agreements will not involve any
transaction which is subject to the prohibitions of Section 406 of ERISA or
in connection with which a tax could be imposed pursuant to Section 4975 of
the Code. The representation by the Lessee in the preceding sentence is
made in reliance upon and subject to the accuracy of the representations of
the Trust Certificate Purchasers in Section 3.4(b).
(l) On the Closing Date, all sales, use or transfer taxes payable
upon the acquisition by the Lessor Trustee of the Equipment and on the
lease of such Equipment to the Lessee will have been paid or such
transactions will then be exempt from any such taxes.
(m) On the Closing Date, no taxes, fees or other charges in
connection with the execution and delivery of the Operative Agreements or
the issuance and sale of the Trust Certificates are payable.
(n) Schedule III is (except as noted therein) a complete and correct
list of the Lessee's Subsidiaries, showing, as to each Subsidiary, the
correct name thereof, the jurisdiction of its organization, and the
percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by the Lessee and each other Subsidiary.
(o) The Lessee's chief executive office and principal place of
business, and the place where its records concerning the Equipment and all
documents relating thereto are kept, is at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
(▇) On the Closing Date, the description of the Equipment set forth
on Schedule 1 to the Lease Supplement delivered on the Closing Date will be
true and correct in all material respects and the legal description of any
Site attached to the Uniform Commercial Code fixture filings filed on the
Closing Date will be true and correct in all material respects.
(q) The Trust Certificates are not of the same class (within the
meaning of Rule 144A under the Act) as securities which are listed on a
national securities exchange registered under Section 6 of the Exchange Act
or quoted in a U.S. automated inter-dealer quotation system.
(r) Neither the Lessee nor any person acting on its behalf has
offered or sold the Trust Certificates by means of any general solicitation
or general advertising within the meaning of Rule 502(c) under the Act; and
the Lessee shall not take any action to cause the resale of the Trust
Certificates by the Trust Certificate Purchasers to violate Section 5 of
the Act.
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MW 1997-1 Trust Participation Agreement
(s) The Lessee has not offered, sold, contracted to sell or otherwise
disposed of any securities (as defined in the Act) that are or will be
integrated with the sale of the Trust Certificates in a manner that would
require registration of the Trust Certificates under the Act.
SECTION 3.3. PRIVATE OFFERING. (a) The Lessee warrants and represents to the
Lessor Trustee and the Trust Certificate Purchasers that neither any Guarantor,
the Lessee nor Key Global Finance Ltd. (the only Person authorized or employed
by the Lessee or the Guarantors as agent, broker, dealer or otherwise in
connection with the offering of the Equipment or the offering or sale of the
Trust Certificates or any similar Security) has offered any of the Equipment or
the Trust Certificates or any similar Security for sale to, or solicited offers
to buy any thereof from, or otherwise approached or negotiated with respect
thereto with, any prospective purchaser, other than the Trust Certificate
Purchasers, each of which was offered a portion of the Trust Certificates at
private sale for investment and each of which the Lessee or such agent had
reasonable grounds to believe and did believe, and as to the Trust Certificate
Purchasers after reasonable inquiry does believe, has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of investment in the Trust Certificates.
(b) Each of the Lessor Trustee and the Lessee agrees as to itself that
neither it nor anyone acting on the behalf of it will offer the Equipment or the
Trust Certificates or any part thereof or any similar Security for issue or sale
to, or solicit any offer to acquire the Equipment or any of the Trust
Certificates from, anyone so as to bring the offering of the Equipment or the
issuance and sale of the Trust Certificates within the provisions of Section 5
of the Act.
SECTION 3.4. REPRESENTATIONS OF THE TRUST CERTIFICATE PURCHASERS; TRANSFER OF
TRUST CERTIFICATES; PARTICIPATIONS.
(a) PURCHASE FOR INVESTMENT. Each Trust Certificate Purchaser represents
to each other Trust Certificate Purchaser, the Lessor Trustee and the Lessee
that either:
(i) such Trust Certificate Purchaser is purchasing the Trust
Certificates to be purchased by it on the Closing Date for the account of
such Trust Certificate Purchaser, for investment and with no present
intention of distributing or reselling such Trust Certificates or any part
thereof, but without prejudice, however, to the right of such Trust
Certificate Purchaser at all times to sell or otherwise dispose of all or
any part of such Trust Certificates under a registration under the Act, or
under an exemption from such registration available under such Act;
PROVIDED that the disposition of such Trust Certificates shall at all times
be within its control; or
(ii) such Trust Certificate Purchaser proposes to offer the Trust
Certificates for resale upon the terms set forth herein and hereby
represents and warrants to, and agrees with, the Lessee and the other Trust
Certificate Purchasers, as to itself, that:
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MW 1997-1 Trust Participation Agreement
(A) Such Trust Certificate Purchaser will offer or sell the Trust
Certificates only to (1) persons who it reasonably believes are "qualified
institutional buyers" within the meaning of Rule 144A under the Act in
transactions meeting the requirements of such Rule 144A and (2) persons who
such Trust Certificate Purchaser reasonably believes are institutional
"accredited investors" within the meaning of Rule 501(a)(1), (2), (3) or
(7) under the Act.
(B) Such Trust Certificate Purchaser will not offer or sell any of
the Trust Certificates in any jurisdiction except under circumstances that
will result in compliance with the Applicable Laws thereof, and that such
Trust Certificate Purchaser will take whatever action is required to permit
its resale of the Trust Certificates. Trust Certificate Purchaser
understands that no action has been taken to permit a public offering in
any jurisdiction where action would be required for such purpose.
(C) Such Trust Certificate Purchaser has not offered or sold and will
not offer or sell the Trust Certificates by any form of general
solicitation or general advertising, including but not limited to, the
methods described in Rule 502(c) under the Act.
(b) SOURCE OF FUNDS. Each Trust Certificate Purchaser represents to each
other Trust Certificate Purchaser, the Lessor Trustee and the Lessee that at
least one of the following statements is an accurate representation as to the
source of funds (the "SOURCE") to be used by such Trust Certificate Purchaser to
make its Advances:
(i) if such Trust Certificate Purchaser is an insurance company, the
Source does not include assets allocated to any separate account maintained
by it in which any employee benefit plan (or its related trust) has any
interest, other than a separate account that is maintained solely in
connection with its fixed contractual obligations under which the amounts
payable, or credited, to such plan and to any participant or beneficiary of
such plan (including any annuitant) are not affected in any manner by the
investment performance of the separate account; or
(ii) the Source is either (1) an insurance company pooled separate
account, within the meaning of Prohibited Transaction Exemption ("PTE")
90-1 (issued January 29, 1990), or (2) a bank collective investment fund,
within the meaning of the PTE 91-38 (issued July 12, 1991) and no employee
benefit plan or group of plans maintained by the same employer or employee
organization beneficially owns more than 10% of all assets allocated to
such pooled separate account or collective investment fund; or
(iii) the Source is an "investment fund" managed by a "qualified
professional asset manager" or "QPAM" (as defined in Part V of PTE 84-14,
issued March 13, 1984), provided that the Lessee and no "affiliate" of the
Lessee (as defined in Section V(c) of PTE 84-14) has at this time, or
during the immediately preceding one year has exercised, the authority to
appoint or terminate said QPAM as manager of the
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assets of any plan whose assets are included in such investment fund or
to negotiate the terms of said QPAM's management agreement on behalf of
any such plan; or
(iv) the Source is a governmental plan; or
(v) the Source does not include assets of any employee benefit plan,
other than a plan exempt from the coverage of ERISA.
(c) REAFFIRMATION ON THE CLOSING DATE. The advance of funds by each Trust
Certificate Purchaser on the Closing Date shall constitute a reaffirmation by
such Trust Certificate Purchaser of its representations set forth in this
Section 3.4 as of the Closing Date.
(d) TRANSFER OF TRUST CERTIFICATES. Upon the transfer by any Certificate
Holder of any Trust Certificate or a participation therein, the transferee shall
be deemed by its acceptance of such Trust Certificate to have made the same
representation to the Lessor Trustee, the other Certificate Holders and the
Lessee regarding the purchase of such Trust Certificate as the original Trust
Certificate Purchasers made pursuant to Section 3.4(b):
(e) PARTICIPATIONS. Each Trust Certificate Purchaser may sell, transfer,
grant or assign participations in all or any part of such Trust Certificate
Purchaser's interests and obligations hereunder; PROVIDED that (i) such selling
Trust Certificate Purchaser shall remain a "TRUST CERTIFICATE PURCHASER" or
"CERTIFICATE HOLDER", as the case may be, for all purposes under the Operative
Agreements (such selling Trust Certificate Purchaser's obligations under the
Operative Agreements remaining unchanged) and the participant shall not
constitute a Trust Certificate Purchaser or a Certificate Holder, as the case
may be, hereunder, (ii) no such participant shall have, or be granted, rights to
approve any amendment or waiver relating to the Operative Agreements except to
the extent any such amendment or waiver would (A) reduce the principal of or
rate of interest on the Trust Certificates in which the participant is
participating, (B) postpone the date fixed for any payment of principal of or
interest on the Trust Certificates in which the participant is participating or
date fixed for payment of the closing fee payable pursuant to Section 1.3 to the
extent the participant is participating therein, or (C) release, in whole or in
part, the Liens of the Lessor Trustee in the Equipment (except as expressly
provided in the Operative Agreements) or terminate, in whole or in part, the
Guaranty Agreement or modify the obligations guaranteed thereunder, or the
unconditional nature of the guaranty thereof, to the extent the participant is
participating therein, (iii) sub-participations by the participant (except to an
Affiliate, parent company or Affiliate of a parent company of the participant)
shall be prohibited and (iv) written notice of each such participation is given
to the Lessee. In the case of any such participation, the participant shall not
have any rights under the Operative Agreements (the participant's rights against
the selling Trust Certificate Purchaser in respect of such participation to be
those set forth in the participation agreement with such Trust Certificate
Purchaser creating such participation) and all amounts payable by the Lessee
hereunder shall be determined as if such Trust Certificate Purchaser had not
sold such participation; PROVIDED, HOWEVER, that such participant shall be
entitled to receive additional amounts under Section 6 on the same basis as if
it were a Trust Certificate
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Purchaser (but only to the extent that such Trust Certificate Purchaser would
have been entitled to receive such additional amounts with respect to the
interest participated had it not sold such participation). The Lessee shall
not be responsible for any costs or expenses incurred by any Trust
Certificate Purchaser in connection with a sale, transfer, grant or
assignment of participations pursuant to this clause (e) of Section 3.4.
Section 4. CLOSING CONDITIONS.
SECTION 4.1. CONDITIONS PRECEDENT TO INVESTMENT ON THE CLOSING DATE. The
obligations of each Trust Certificate Purchaser to make its Advance pursuant
hereto on the Closing Date and of the Lessor Trustee to acquire and lease the
Equipment shall be subject to the following conditions:
(a) EXECUTION OF OPERATIVE AGREEMENTS. On or before the Closing Date,
the following documents shall have been duly executed and delivered by the
parties thereto (and copies thereof shall have been provided to the Trust
Certificate Purchasers) and shall be in full force and effect, and no default
shall exist in the performance by any party thereto (other than such Trust
Certificate Purchaser) of any of its obligations thereunder:
(1) the Lease;
(2) the Lease Supplement covering the Equipment and dated the Closing
Date;
(3) the Trust Agreement;
(4) the Guaranty Agreement; and
(5) a warranty ▇▇▇▇ of sale, executed by the Seller, dated the
Closing Date (a "▇▇▇▇ OF SALE"), in favor of the Lessor Trustee, covering
the Equipment.
(b) TITLE. On the Closing Date, (i) the Lessor Trustee shall have good
title to the Equipment, free and clear of liens, encumbrances and rights of
others except Permitted Liens; and (ii) the Lessor Trustee and such Trust
Certificate Purchaser shall have received evidence satisfactory to it with
respect to the matters covered by this Section 4.1(b).
(c) FILINGS. On or before the Closing Date, all filings and other actions
shall have been made and taken as are deemed necessary or appropriate by such
Trust Certificate Purchaser in order to (i) perfect the Lessor Trustee's title
to and interest in the Equipment as against the Lessee and any third parties,
and (ii) perfect the lien and security interest of the Lessor Trustee under the
Lease in the Equipment as against creditors of and purchasers from the Lessee
will have been duly made.
(d) CLOSING CERTIFICATE OF LESSOR TRUSTEE. On the Closing Date, such
Trust Certificate Purchaser shall have received an Officer's Certificate of the
Lessor Trustee dated the Closing Date, the truth and accuracy of which shall be
a condition to the obligation of such Trust Certificate Purchaser to make its
Advance on the Closing Date, to the effect that
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the warranties and representations of the Lessor Trustee set forth in Section
3.1 are true on the Closing Date with the same effect as though made on and
as of that date and that, to the knowledge of the Lessor Trustee, no Default
or Event of Default has occurred and is continuing.
(e) CLOSING CERTIFICATE OF LESSEE AND GUARANTORS. On the Closing Date,
such Trust Certificate Purchaser shall have received an Officer's Certificate
of (i) the Lessee dated the Closing Date, the truth and accuracy of which
shall be a condition to the obligation of such Trust Certificate Purchaser to
make its Advance on the Closing Date, to the effect that the warranties and
representations of the Lessee set forth in Sections 3.2 and 3.3(a) are true
on the Closing Date with the same effect as though made on and as of that
date, and (ii) the Guarantors dated the Closing Date, the truth and accuracy
of which shall be a condition to the obligation of such Trust Certificate
Purchaser to make its Advance on the Closing Date, to the effect that the
warranties and representations of the Guarantors contained in Section 5 of
the Guaranty Agreement are true on the Closing Date with the same effect as
though made on and as of that date.
(f) CONSENTS UNDER OTHER OBLIGATIONS. All approvals and consents of
any trustee or holders of any indebtedness or obligations of the Lessee which
in the opinion of such Trust Certificate Purchaser are required in connection
with any of the transactions contemplated by this Agreement, shall have been
duly obtained, and copies thereof, in form and substance satisfactory to such
special counsel, certified by the Secretary or an Assistant Secretary of the
Lessee, shall have been delivered to the Lessor Trustee.
(g) OPINIONS OF COUNSEL. On the Closing Date, such Trust Certificate
Purchaser shall have received the favorable written opinions of Rothgerber,
Appel, Powers & ▇▇▇▇▇▇▇, counsel for the Lessee and the Guarantors and
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, special counsel for the Trust Certificate Purchasers,
substantially in the respective forms set forth in Annex II hereto.
(h) INSURANCE CERTIFICATE. On or before the Closing Date, such Trust
Certificate Purchaser shall have received the report of the Lessee's
insurance broker and certificates of insurance required pursuant to Section
13.3 of the Lease and such other evidence of the maintenance of the insurance
required pursuant to Section 13 of the Lease as such Trust Certificate
Purchaser shall request.
(i) RELATED TRANSACTIONS. Each of the other Trust Certificate
Purchasers shall make the Advance to be made by it on the Closing Date.
(j) TRUST CERTIFICATES. The Lessor Trustee shall have issued to such
Trust Certificate Purchaser the Trust Certificate evidencing the Advance made
by such Trust Certificate Purchaser on the Closing Date.
(k) NOTICE OF CLOSING. Each Trust Certificate Purchaser shall have
received, at least three (3) Business Days prior to the Closing Date, a
notice covering the Equipment to be
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funded on the Closing Date. The Equipment Cost set forth in such notice of
each Item of Equipment shall not exceed the value of such Item of Equipment
set forth in the Appraisal.
(l) APPRAISAL. At least five (5) Business Days prior to the Closing
Date, the Lessor Trustee and the Trust Certificate Purchasers shall have
received an Appraisal of the Equipment, in form and substance satisfactory to
the Lessor Trustee and the Trust Certificate Purchasers, which Appraisal
shall show the current fair market value of such Equipment and the estimated
future fair market value of such Equipment at the end of the Lease Term.
(m) GOVERNMENTAL APPROVALS. All necessary approvals of any
Governmental Authority required by any Requirement of Law for the purpose of
authorizing the Lessor Trustee to acquire the Equipment shall have been
obtained or made and be in full force and effect.
(n) LEGAL INVESTMENT. The Trust Certificates Purchaser shall on the
Closing Date qualify as a legal investment for such Trust Certificate
Purchaser under any laws regulating investments to which it may be subject.
(o) PAYMENT OF CLOSING FEE. Key Global Finance Ltd. shall have
received from the Lessee its structuring fee payable by the Lessee pursuant
to the Off Balance Sheet Debt Proposal dated December 10, 1997 between Lessee
and Key Global Finance Ltd.
(p) UCC SEARCHES. On or before the Closing Date, the Lessor Trustee
shall have received such Uniform Commercial Code searches with respect to the
Equipment as it shall reasonably request.
(q) PROCEEDINGS SATISFACTORY. All proceedings taken in connection with
the transactions contemplated hereby and all documents and papers relating
thereto shall be satisfactory to such Trust Certificate Purchaser, and such
Trust Certificate Purchaser shall have received copies of such documents and
papers as such Trust Certificate Purchaser may reasonably request in
connection therewith, all in form and substance satisfactory to such Trust
Certificate Purchaser.
SECTION 4.2. CONDITIONS SUBSEQUENT TO INVESTMENT ON THE CLOSING DATE. On
or prior to January 31, 1998, the Lessee shall deliver or cause to be
delivered to the Lessor Trustee the following:
(a) an original Landlord Waiver executed by each owner (other than
the Lessee) of each Site on which the Equipment is located; and
(b) original Uniform Commercial Code termination statements, in form
and substance satisfactory to the Lessor Trustee, executed by each secured
party of record of each Uniform Commercial Code financing statement (other
than any such financing statements filed pursuant hereto) filed with
respect to the Equipment and reflected in
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the Uniform Commercial Code searches received by the Lessor Trustee in
accordance with Section 4.1(p).
Section 5. SPECIAL RIGHTS OF TRUST CERTIFICATE PURCHASERS.
Notwithstanding any provision to the contrary in this Agreement, the Trust
Agreement or any Trust Certificate relating to the manner and place of payment,
all amounts payable to each Trust Certificate Purchaser with respect to any
Trust Certificate held by such Trust Certificate Purchaser or a nominee for such
Trust Certificate Purchaser shall be paid by the Lessor Trustee to such Trust
Certificate Purchaser (without any presentment thereof and without any notation
of such payment being made thereon) by check, duly mailed, by first class mail,
postage prepaid, or delivered to such Trust Certificate Purchaser at the address
for payments for such Trust Certificate Purchaser appearing on Schedule I hereto
or, if wire transfer to a bank account is designated for such Trust Certificate
Purchaser on Schedule I hereto or in a written notice from such Trust
Certificate Purchaser to the Lessor Trustee, by wire transfer of immediately
available Federal Reserve funds to the bank so designated for credit to the
account and marked for attention as so designated, provided that such bank has
facilities for the receipt of a wire transfer, or in such other manner or to
such other address in the United States as may be designated by such Trust
Certificate Purchaser in a written notice from such Trust Certificate Purchaser
to the Lessor Trustee. In the case of any wire transfer, the Lessor Trustee
will transfer or cause to be transferred not later than 12:00 noon, Seattle,
Washington time, on each date any payment or prepayment of principal or interest
on the Trust Certificate is due, provided funds therefor have been received by
the Lessor Trustee in cash or in solvent credits acceptable to it by 10:00 A.M.,
Seattle, Washington time, on such date or if not so received promptly upon
receipt. Each Trust Certificate Purchaser agrees that if such Trust Certificate
Purchaser shall sell or transfer any Trust Certificate, such Trust Certificate
Purchaser will notify the Lessee and the Lessor Trustee of the name and address
of the transferee and such Trust Certificate Purchaser will, prior to the
delivery of such Trust Certificate, make a notation on such Trust Certificate of
the date to which interest has been paid thereon and of the amount of any
payments or prepayments made on account of the principal thereof.
Section 6. LESSEE'S INDEMNITIES.
SECTION 6.1. GENERAL INDEMNIFICATION. The Lessee agrees whether or not any of
the transactions contemplated hereby shall be consummated, to assume liability
for, and to indemnify, protect, defend, save and keep harmless each Indemnified
Party, on an After Tax Basis, from and against any and all Claims that may be
imposed on, incurred by or asserted against such Indemnified Party (whether
because of action or omission by such Indemnified Party or otherwise), whether
or not such Indemnified Party shall also be indemnified as to any such Claim by
any other Person and whether or not such Claim arises or accrues prior to the
Closing Date or after the Expiration Date, in any way relating to or arising out
of:
(a) any of the Operative Agreements or any of the transactions
contemplated thereby, and any amendment, modification or waiver in respect
thereof;
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(b) the Equipment or any part thereof or interest therein;
(c) the purchase, design, construction, preparation, installation,
inspection, delivery, nondelivery, acceptance, rejection, ownership,
management, possession, operation, rental, lease, sublease, repossession,
maintenance, repair, alteration, modification, addition or substitution,
storage, transfer of title, redelivery, use, financing, refinancing
disposition, operation, condition, sale (including without limitation, any
sale pursuant to Section 16.2(f) of the Lease or any sale pursuant to
Section 18 of the Lease), return or other disposition of all or any part or
any interest in the Equipment or the imposition of any Lien (or incurring
of any liability to refund or pay over any amount as a result of any Lien)
thereon, including, without limitation: (1) Claims or penalties arising
from any violation of law or in tort (on the basis of strict liability or
otherwise), (2) latent or other defects, whether or not discoverable,
(3) any Claim based upon a violation or alleged violation of the terms of
any matter affecting title to the Equipment, (4) the making of any
Alterations in violation of any standards imposed by any insurance policies
required to be maintained by Lessee pursuant to the Lease which are in
effect at any time with respect to the Equipment or any part thereof and
(5) any Claim for patent, trademark or copyright infringement;
(d) the breach by Lessee or any Guarantor of any covenant,
representation or warranty made by it or deemed made by it in any Operative
Agreement or any certificate required to be delivered by any Operative
Agreement;
(e) the retaining or employment of any broker, finder or financial
advisor by Lessee to act on its behalf in connection with this
Participation Agreement or any other Operative Agreement;
(f) the existence of any Lien on or with respect to the Equipment,
any Periodic Rent or Supplemental Rent, title thereto, or any interest
therein including any Liens which arise out of the possession, use or
repair of the Equipment, except Lessor Liens; or
(g) subject to the accuracy of any Trust Certificate Purchaser's
representation set forth in Section 3.4, as to such Trust Certificate
Purchaser, the transactions contemplated by the Lease or by any other
Operative Agreement, in respect of the application of Parts 4 and 5 of
Subtitle B of Title I of ERISA and any prohibited transaction described in
Section 4975(c) of the Code.
PROVIDED, HOWEVER, that the Lessee shall not be required to indemnify any
Indemnified Party under this Section 6.1 for any of the following: (1) any
Claim to the extent resulting from the willful misconduct or gross negligence of
such Indemnified Party (it being understood that the Lessee shall be required to
indemnify an Indemnified Party even if the ordinary (but not gross) negligence
of such Indemnified Party caused or contributed to such Claim) or the breach of
any representation, warranty or covenant of such Indemnified Party set forth in
any Operative Agreement, (2) any Claim resulting from Lessor's Liens which the
Lessor Trustee or any Certificate Holder is responsible for discharging under
the Operative
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Agreements, (3) any Claim arising from a breach or alleged breach by the
Certificate Holders of any agreement entered into in connection with the
assignment or participation of any Trust Certificate, (4) any Claim resulting
from the failure of the Lessee to satisfy the conditions set forth in Section
4.1, PROVIDED that nothing in this clause (4) shall limit the Lessee's
liability for any amounts payable pursuant to the Off Balance Sheet Debt
Proposal dated December 10, 1997 between the Lessee and Key Global Finance
Ltd. and (5) any Claim arising in respect to the Equipment in the period
after the Lessee ceases to lease the Equipment from the Lessor Trustee under
the Lease, PROVIDED that the facts supporting such Claim occur after such
period. It is expressly understood and agreed that the indemnity provided
for herein shall survive the expiration or termination of and shall be
separate and independent from any remedy under the Lease or any other
Operative Agreement. Without limiting the express rights of any Indemnified
Party under this Section 6.1, this Section 6.1 shall be construed as an
indemnity only and not a guaranty of residual value of the Equipment or as a
guaranty of the Trust Certificates.
SECTION 6.2. PROCEEDINGS IN RESPECT OF CLAIMS. In case any action, suit or
proceeding shall be brought against any Indemnified Party, such Indemnified
Party shall notify the Lessee of the commencement thereof, and the Lessee
shall be entitled, at the Lessee's expense, to participate in, and, to the
extent that the Lessee desires to, assume and control the defense thereof;
PROVIDED, HOWEVER, that the Lessee shall have acknowledged in writing its
obligation to fully indemnify such Indemnified Party in respect of such
action, suit or proceeding, and the Lessee shall keep such Indemnified Party
fully apprised of the status of such action, suit or proceeding and shall
provide such Indemnified Party with all information with respect to such
action, suit or proceeding as such Indemnified Party shall reasonably
request, and PROVIDED, FURTHER, that the Lessee shall not be entitled to
assume and control the defense of any such action, suit or proceeding if and
to the extent that, (A) in the reasonable opinion of such Indemnified Party,
(x) such action, suit or proceeding involves any risk of imposition of
criminal liability or will involve a material risk of the sale, forfeiture or
loss of, or the creation of any Lien (other than a Permitted Lien) on the
Equipment or any part thereof unless, in the case of civil liability, the
Lessee shall have posted a bond or other security satisfactory to the
relevant Indemnified Parties in respect to such risk or (y) the control of
such action, suit or proceeding would involve an actual or potential conflict
of interest, (B) such proceeding involves Claims not fully indemnified by the
Lessee which the Lessee and the Indemnified Party have been unable to sever
from the indemnified claim(s), or (C) an Event of Default has occurred and is
continuing. The Indemnified Party will join in the Lessee's efforts to sever
such action. The Indemnified Party may participate at its own expense and
with its own counsel in any proceeding conducted by the Lessee in accordance
with the foregoing. The Lessee shall not enter into any settlement or other
compromise with respect to any Claim which is entitled to be indemnified
under Section 6.1 without prior written consent of the Indemnified Party,
which consent shall not be unreasonably withheld in the case of a money
settlement not involving an admission of liability of such Indemnified Party.
No Indemnified Party shall enter into any settlement or other compromise
with respect to any Claim to which is entitled to be indemnified under
Section 6.1 without the prior written consent of the Lessee, which consent
shall not be unreasonably withheld, unless
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such Indemnified Party waives its right to be indemnified under Section 6.1
with respect to such Claim.
Each Indemnified Party shall at the expense of the Lessee supply the
Lessee with such information and documents reasonably requested by the Lessee
as are necessary or advisable for the Lessee to participate in any action,
suit or proceeding to the extent permitted by Section 6.1.
Upon payment in full of any Claim by the Lessee pursuant to Section 6.1
to or on behalf of an Indemnified Party, the Lessee, without any further
action, shall be subrogated to any and all claims that such Indemnified Party
may have relating thereto (other than claims in respect of insurance policies
maintained by such Indemnified Party at its own expense), and such
Indemnified Party shall execute such instruments of assignment and
conveyance, evidence of claims and payment and such other documents,
instruments and agreements as may be necessary to preserve any such claims
and otherwise cooperate with the Lessee and give such further assurances as
are necessary or advisable to enable the Lessee vigorously to pursue such
claims.
Any amount payable to an Indemnified Party pursuant to Section 6.1 shall
be paid to such Indemnified Party promptly upon receipt of a written demand
therefor from such Indemnified Party, accompanied by a written statement
describing in reasonable detail the basis for such indemnity and the
computation of the amount so payable.
SECTION 6.3. GENERAL TAX INDEMNITY. (a) INDEMNIFICATION. The Lessee shall
pay and assume liability for, and does hereby agree to indemnify, protect and
defend the Equipment and all Indemnified Parties from, and hold them harmless
against, all Impositions on an After Tax Basis.
(b) CONTESTS. If any claim shall be made against any Indemnified Party
or if any proceeding shall be commenced against any Indemnified Party
(including a written notice of such proceeding) for any Imposition as to
which the Lessee may have an indemnity obligation pursuant to this Section
6.3, or if any Indemnified Party shall determine that any Imposition with
respect to which the Lessee may have an indemnity obligation pursuant to this
Section 6.3 may be payable, such Indemnified Party shall promptly notify the
Lessee in writing (PROVIDED that failure to so notify the Lessee shall not
alter such Indemnified Party's rights under this Section 6.3 except to the
extent such failure effectively precludes or materially adversely affects the
ability to conduct a contest of any Impositions) and shall not take any
action with respect to such claim, proceeding or Imposition without the
written consent of the Lessee (such consent not to be unreasonably withheld
or unreasonably delayed) for 30 days after the receipt of such notice by the
Lessee; PROVIDED, HOWEVER, that in the case of any such claim or proceeding,
if such Indemnified Party shall be required by law or regulation to take
action prior to the end of such 30-day period, such Indemnified Party shall
in such notice to the Lessee, so inform the Lessee and such Indemnified Party
shall not take any action with respect to such claim, proceeding or
Imposition without the consent of the Lessee (such consent not to be
unreasonably withheld or unreasonably delayed) for 10 days after the receipt
of such notice by the Lessee unless such Indemnified
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Party shall be required by law or regulation to take action prior to the end
of such 10-day period.
The Lessee shall be entitled for a period of 30 days from receipt of
such notice from such Indemnified Party (or such shorter period as such
Indemnified Party has notified the Lessee is required by law or regulation
for such Indemnified Party to commence such contest), to request in writing
that such Indemnified Party contest in good faith the imposition of such Tax,
at the Lessee's expense. If (x) such contest can be pursued in the name of
the Lessee and independently from any other proceeding involving a Tax
liability of such Indemnified Party for which the Lessee has not agreed to
indemnify such Indemnified Party, (y) such contest must be pursued in the
name of such Indemnified Party, but can be pursued independently from any
other proceeding involving a Tax liability of such Indemnified Party for
which the Lessee has not agreed to indemnify such Indemnified Party or (z)
such Indemnified Party so requests, then the Lessee shall be permitted to
control the contest of such claim, PROVIDED that in the case of a contest
described in clause (y), if such Indemnified Party determines reasonably and
in good faith that such contest by the Lessee could have a material adverse
impact on the business or operations of such Indemnified Party and provides a
written explanation to the Lessee of such determination, such Indemnified
Party may elect to control or reassert control of the contest, and PROVIDED
that by taking control of the contest, the Lessee acknowledges that it is
responsible for the Imposition ultimately determined to be due by reason of
such claim, and PROVIDED, FURTHER, that in determining the application of
clauses (x) and (y) above, each Indemnified Party shall take any and all
reasonable steps to segregate claims for any Taxes for which the Lessee
indemnifies hereunder from Taxes for which the Lessee is not obligated to
indemnify hereunder, so that the Lessee can control the contest of the
former. In all other claims requested to be contested by the Lessee, such
Indemnified Party shall control the contest of such claim, acting through
counsel reasonably acceptable to the Lessee. In no event shall the Lessee be
permitted to contest (or such Indemnified Party be required to contest) any
claim, (A) if such Indemnified Party provides the Lessee with a legal opinion
of counsel reasonably acceptable to the Lessee that such action, suit or
proceeding involves a risk of imposition of criminal liability or will
involve a material risk of the sale, forfeiture or loss of, or the creation
of any Lien (other than a Permitted Lien) on the Equipment or any part
thereof unless the Lessee shall have posted and maintained a bond or other
security satisfactory to the relevant Indemnified Party in respect to such
risk, (B) if an Event of Default has occurred and is continuing, (C) unless
the Lessee shall have agreed to pay and shall pay, to such Indemnified Party
on demand all reasonable out-of-pocket costs, losses and expenses that such
Indemnified Party actually incurs in connection with contesting such
Imposition including all reasonable legal, accounting and investigatory fees
and disbursements, or (D) if such contest shall involve the payment of the
Tax prior to the contest, unless the Lessee shall provide to such Indemnified
Party an interest-free advance in an amount equal to the Imposition that the
Indemnified Party is required to pay (with no additional net after-tax costs
to such Indemnified Party). In addition for Indemnified Party controlled
contests and claims contested in the name of such Indemnified Party in a
public forum, no contest shall be required: (A) unless the amount of the
potential indemnity (taking into account all similar or logically related
claims that have been or could be raised in any audit involving any or all
such Indemnified Parties with respect to any period for which the Lessee may
be liable to
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pay an indemnity under this Section 6.3(b)) exceeds $250,000 and
(B) unless, if requested by such Indemnified Party, the Lessee shall have
provided to such Indemnified Party an opinion of counsel selected by the
Lessee (which may be in-house counsel) (except, in the case of income Taxes
indemnified hereunder, in which case such opinion shall be an opinion of
independent tax counsel selected by such Indemnified Party and reasonably
acceptable to the Lessee) that a reasonable basis exists to contest such
claim (or, in the case of an appeal of any adverse determination, an opinion
of such counsel to the effect that the position asserted in such appeal will
more likely than not prevail). In no event shall an Indemnified Party be
required to appeal an adverse judicial determination to the United States
Supreme Court.
The party controlling the contest shall consult in good faith with the
other party and its counsel with respect to the contest of such claim for
Taxes (or claim for refund) but the decisions regarding what actions are to
be taken shall be made by the controlling party in its sole judgment,
PROVIDED, HOWEVER, that if such Indemnified Party is the controlling party
and the Lessee recommends the acceptance of a settlement offer made by the
relevant Governmental Authority and such Indemnified Party rejects such
settlement offer then the amount for which the Lessee will be required to
indemnify such Indemnified Party with respect to the Taxes subject to such
offer shall not exceed the amount which it would have owed if such settlement
offer had been accepted. In addition, the controlling party shall keep the
non-controlling party reasonably informed as to the progress of the contest,
and shall provide the non-controlling party with a copy of (or appropriate
excerpts from) and reports or claims issued by the relevant auditing agents
or taxing authority to the controlling party thereof, in connection with such
claim or the contest thereof.
Each Indemnified Party shall, at the Lessee's expense, supply the Lessee
with such information and documents reasonably requested by the Lessee as are
necessary or advisable for the Lessee to participate in any action, suit or
proceeding to the extent permitted by this Section 6.3(b). Notwithstanding
anything in this Section 6.3(b) to the contrary, no Indemnified Party shall
enter into any settlement or other compromise or fail to appeal an adverse
ruling with respect to any claim for which it may be entitled to be
indemnified under this Section 6.3 (and with respect to which contest is
required under this Section 6.3(b)) without the prior written consent of the
Lessee, unless such Indemnified Party waives its right to be indemnified
under this Section 6.3 with respect to such claim.
Notwithstanding anything contained herein to the contrary, an
Indemnified Party will not be required to contest (and the Lessee shall not
be permitted to contest) a claim with respect to the imposition of any Tax if
such Indemnified Party shall waive its right to indemnification under this
Section 6.3 with respect to such claim (and any claim with respect to such
year or any other taxable year the contest of which is materially adversely
affected as a result of such waiver).
(c) [Intentionally omitted]
(d) PAYMENTS. Any Imposition indemnifiable under this Section 6.3
shall be paid directly when due to the applicable taxing authority if direct
payment is practicable and permitted. If direct payment to the applicable
taxing authority is not permitted or is
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otherwise not made, any amount payable to an Indemnified Party pursuant to
this Section 6.3 shall be paid within thirty (30) days after receipt of a
written demand therefor from such Indemnified Party accompanied by a written
statement describing in reasonable detail the amount so payable, but not
before two (2) Business Days prior to the date that the relevant Taxes are
due. Any payments made pursuant to this Section 6.3 shall be made directly
to such Indemnified Party entitled thereto or the Lessee, as the case may be,
in immediately available funds at such bank or to such account as specified
by the payee in written directions to the payor, or, if no such direction
shall have been given, by check of the payor payable to the order of the
payee by certified mail, postage prepaid at its address as set forth in
Schedule I hereto or beneath its signature below, as the case may be. Upon
the request of any Indemnified Party with respect to a Tax that the Lessee is
required to pay, the Lessee shall furnish to such Indemnified Party the
original or a certified copy of a receipt for the Lessee's payment of such
Tax or such other evidence of payment as is reasonably acceptable to such
Indemnified Party.
(e) REPORTS. In the case of any report, return or statement required
to be filed with respect to any Taxes that are subject to indemnification
under this Section 6.3 and of which the Lessee has knowledge, the Lessee
shall promptly notify such Indemnified Party of such requirement and, at the
Lessee's expense (i) if the Lessee is permitted (unless otherwise required by
such Indemnified Party) by Applicable Law, timely file such report, return or
statement in its own name or (ii) if such report, return or statement is
required to be in the name of or filed by such Indemnified Party or such
Indemnified Party otherwise requests that such report, return or statement be
filed in its name (if allowed under Applicable Law), prepare and finish such
statement for filing by such Indemnified Party in such manner as shall be
satisfactory to such Indemnified Party and send the same to such Indemnified
Party for filing no later than 15 days prior to the due date therefor. In
any case in which such Indemnified Party will file any such report, return or
statement, the Lessee shall, upon written request of such Indemnified Party,
provide such Indemnified Party with such information as is reasonably
necessary to allow such Indemnified Party to file such report, return or
statement.
(f) TAX OWNERSHIP. Each Indemnified Party represents and warrants that
it will not, prior to the termination of the Lease, claim ownership of (or
any tax benefits, including depreciation, with respect to) the Equipment for
any income tax purposes (unless required to do so by a Governmental
Authority), it being understood that it is the intention of all parties to
this transaction that the Lessee is and will remain the owner of the
Equipment for such income tax purposes until the termination of the Lease.
SECTION 6.4. INDEMNITY PAYMENTS IN ADDITION TO LEASE OBLIGATIONS. The
Lessee acknowledges and agrees that the Lessee's obligations to make
indemnity payments under this Section 6 are separate from, in addition to,
and do not reduce, the Lessee's obligation to pay any amounts owing from time
to time under the Lease.
SECTION 6.5. INCREASED COSTS, ETC. If the adoption of or any change in a
Requirement of Law or in the interpretation or application thereof applicable
to any Certificate Holder, or compliance by any Certificate Holder with any
request or directive (whether or not having
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the force of law) from any central bank or other Governmental Authority, in
each case made subsequent to the Closing Date (or, if later, the date on
which such Certificate Holder becomes a Certificate Holder):
(i) shall subject such Certificate Holder or the Trust Certificates
to any tax of any kind whatsoever with respect to any Advance made,
continued or maintained by it or its obligation to make, continue or
maintain Advances, or shall change the basis of taxation of payments to
such Certificate Holder in respect thereof (except for any changes in taxes
measured by or imposed upon the overall gross or net income, franchise or
other taxes (imposed in lieu of such net income tax), of such Certificate
Holder or its applicable lending office or branch); or
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, Trust Certificates,
loans or other extensions of credit by, or any other acquisition of funds
by, any office of such Certificate Holder which is not otherwise already
included in the determination hereunder of the interest rate applicable to
the Trust Certificates held by such Certificate Holder; or
(iii) shall change the basis of taxation of payments of principal
and interest due from the Lessee to such Certificate Holder hereunder or
under the Trust Certificates (other than by a change in taxation of the
overall gross or net income of such Certificate Holder); or
(iv) shall impose on such Certificate Holder any other condition
(excluding any Tax of any kind) affecting its Advances or its obligation to
make Advances;
and the result of any of the foregoing is to increase the cost to such
Certificate Holder of making, continuing or maintaining any Advance hereunder
or to reduce any amount receivable by such Certificate Holder in respect
thereof, then, in any such case, upon notice to the Lessee from such
Certificate Holder, through the Lessor Trustee, in accordance herewith, the
Lessee shall pay such Certificate Holder any additional amounts necessary to
compensate such Certificate Holder for such increased cost or reduced amount
receivable. All payments required by this Section 6.5 shall be made by the
Lessee within fifteen (15) Business Days after demand by the affected
Certificate Holder. If any Certificate Holder makes a claim for
compensation, it shall provide to the Lessee a certificate setting forth the
computation of the increased cost or reduced amount as a result of any event
mentioned herein in reasonable detail and such certificate shall be
conclusive if reasonably determined. This covenant shall survive the
termination of this Participation Agreement and the payment of the Trust
Certificates and all other amounts payable hereunder.
SECTION 6.6. FUNDING LOSSES. The Lessee agrees to indemnify each
Indemnified Party and to hold each Indemnified Party harmless from any loss
or expense which such Indemnified Party may sustain or incur (other than
through such Person's own gross negligence or willful misconduct) as a
consequence of (a) failure of the Closing Date to occur as scheduled or the
Lease to be renewed pursuant to Section 18.2 of the Lease after
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Lessee has given a notice requesting the same in accordance with the
provisions of this Participation Agreement or the Lease, as the case may be,
(b) default by the Lessee in making any payment of Rent after the Lessee has
given a notice of a termination of the Lease in accordance with the
provisions of the Lease, or (c) the making of a payment or prepayment of
Trust Certificates on a day which is not the last day of an Interest Period
with respect thereto. This covenant shall survive the termination of this
Participation Agreement or any other Operative Agreement and the payment of
the Trust Certificates and all other amounts payable under the Operative
Agreements.
SECTION 7. INDEMNITIES OF THE LESSOR TRUSTEE AND THE TRUST CERTIFICATE
PURCHASERS.
Each of KeyBank National Association and each Trust Certificate Purchaser
(referred to in this Section as the "INDEMNITORS") hereby severally agrees for
the benefit of each other Indemnitor (referred to in this Section as the
"INDEMNITEES") that at all times the Lessor Trust Estate shall be free of any
Lessor's Liens attributable to such Indemnitor and that such Indemnitor will at
its own cost and expense promptly take such action as may be necessary duly to
discharge any such Lessor's Lien, provided that no such Lessor's Lien need be
discharged so long as it is being contested by a Permitted Contest. Each
Indemnitor further agrees to indemnify and hold harmless the Indemnitees from
and against any costs or expenses (including reasonable legal fees and expenses)
incurred, in each case, as a result of the imposition or enforcement of any such
Lessor's Lien.
Each Indemnitor hereby severally agrees for the benefit of the Lessee
that at all times the Equipment shall be free of any Lessor's Lien
attributable to such Indemnitor which impairs the right, title or interest of
the Lessee under the Lease and that such Indemnitor will at its own cost and
expense promptly take such action as may be necessary duly to discharge any
such Lessor's Lien, provided that no such Lessor's Lien need be discharged so
long as it is being contested by a Permitted Contest; and such Indemnitor
further agrees to indemnify and hold harmless the Lessee from and against any
costs or expenses (including reasonable legal fees and expenses) incurred, in
each case, as a result of the imposition or enforcement of any such Lessor's
Lien which impairs the right, title or interest of the Lessee under the Lease.
The agreements of KeyBank National Association in this Section 7 are
made in its individual capacity and not as Lessor Trustee.
SECTION 8. CERTAIN INTENTIONS OF THE PARTIES.
SECTION 8.1. NATURE OF TRANSACTION. (a) The parties hereto intend that (i)
for financial accounting purposes with respect to the Lessee, the Lessor
Trust will be treated as the owner and the lessor of the Property and the
Lessee will be treated as the lessee of the Property and (ii) for all other
purposes, including federal and all state and local income tax purposes,
state real estate and commercial law and bankruptcy purposes,
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MW 1997-1 Trust Participation Agreement
(A) the Lease will be treated as a financing arrangement,
(B) the Certificate Holders will be deemed lenders making loans to
the Lessee in an amount equal to the principal amount of the Trust
Certificates from time to time outstanding, which amounts are secured by
the Equipment, and
(C) the Lessee will be treated as the owner of the Equipment and will
be entitled to all tax benefits ordinarily available to an owner of
equipment like the Equipment for such tax purposes.
Nevertheless, the Lessee acknowledges and agrees that neither the Trust
Certificate Purchasers nor any of the Certificate Holders has made any
representations or warranties to the Lessee concerning the tax, accounting or
legal characteristics of the Operative Agreements and that the Lessee has
obtained and relied upon such tax, accounting and legal advice concerning the
Operative Agreements as it has deemed appropriate.
(b) Specifically, without limiting the generality of clause (a) of this
Section 8.1, the parties hereto intend and agree that in the event of any
insolvency or receivership proceedings or a petition under the United States
bankruptcy laws or any other applicable insolvency laws or statute of the
United States of America or any State or Commonwealth thereof affecting the
Lessee, any Guarantor, the Lessor Trust, the Lessor Trustee or the
Certificate Holders or any collection actions, the transactions evidenced by
the Operative Agreements shall be regarded as loans made by the Certificate
Holders as unrelated third party lenders of the Lessee.
SECTION 8.2. AMOUNTS DUE UNDER THE LEASE. Anything herein or elsewhere in
the Operative Agreements to the contrary notwithstanding, it is the intention
of the Lessee and the Trust Certificate Purchasers that except for
unindemnified taxes: (i) the amount and timing of installments of Periodic
Rent due and payable from time to time from the Lessee under the Lease shall
be equal to the aggregate payments due and payable as mandatory prepayments
pursuant to Section 6.2(b) of the Trust Agreement and as interest on the
Trust Certificates on each Scheduled Payment Date; (ii) if the Lessee becomes
obligated to purchase the Equipment under the Lease (including, but not
limited to, Section 18.1 thereof), the unpaid principal of and interest on
the Trust Certificates and all other obligations of the Lessee owing to the
Trust Certificate Purchasers, the Lessor Trustee and the Certificate Holders
shall be due and payable in full by the Lessee on the date set forth in the
Lease (iii) if the Lessee shall sell the Equipment pursuant to Section 18.3
of the Lease, the Lessee shall only be required to pay to the Lessor Trustee
the proceeds of the sale of the Equipment, and any other amounts due under
Section 18.4 of the Lease (which aggregate amounts may be less than the Lease
Balance, with any amount in excess of the Lease Balance being payable to the
Lessee); and (iv) upon an Event of Default resulting in an acceleration of
the Lessee's obligation to purchase the Equipment under the Lease, the
amounts then due and payable by the Lessee under the Lease shall include all
amounts necessary to pay in full the Lease Balance, plus all other amounts
then due from the Lessee to the Lessor Trustee and the Trust Certificate
Purchasers under the Operative Agreements.
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MW 1997-1 Trust Participation Agreement
SECTION 9. [INTENTIONALLY OMITTED]
SECTION 10. MISCELLANEOUS.
SECTION 10.1. AMENDMENTS. This Agreement may, from time to time and at any
time, be amended or supplemented, by an instrument or instruments in writing
executed by the parties hereto.
SECTION 10.2. NOTICES. All notices and other communications provided for
herein (unless otherwise provided for by the specific provisions hereof)
shall be in writing. Notices and other communications shall be deemed to
have been given (unless otherwise required by the specific provisions hereof
in respect of any matter) when delivered personally or otherwise actually
received or five days after being deposited in the United States mail,
registered, postage prepaid, or when sent by facsimile (with receipt of such
facsimile confirmed by telephone and a copy of such notice or communication
sent by a prepaid courier having a national reputation for reliability (e.g.,
Federal Express)) to the parties hereto at their addresses set forth on
Schedule I hereto in the case of the Trust Certificate Purchasers, and
beneath their respective signatures below, in the case of the other parties
hereto, or at such other place as any such party may designate by notice duly
given in accordance with this Section to the other parties.
SECTION 10.3. SURVIVAL. All warranties, representations and covenants made
by any party herein or in any certificate or other instrument delivered by
any party to any other party under this Agreement shall be considered to have
been relied upon by such other party and shall survive the consummation of
the transactions contemplated hereby on the Closing Date regardless of any
investigation made by such other party or on behalf of such other party. All
statements in any such certificate or other instrument by the Lessor Trustee
or the Lessee, or on behalf of the Lessor Trustee or the Lessee, under this
Agreement shall constitute warranties and representations by the Lessor
Trustee or, as the case may be, the Lessee hereunder.
SECTION 10.4. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of, and shall be enforceable by, the parties
hereto and their respective successors and assigns including each successive
holder of any Trust Certificate issued and delivered pursuant to this
Agreement and the Trust Agreement whether or not an express assignment to any
such holder of rights under this Agreement has been made.
SECTION 10.5. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (excluding
choice-of-law principles of the law of such State that would require the
application of the laws of a jurisdiction other than such State).
SECTION 10.6. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each executed counterpart constituting an original but all
together only one Agreement.
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MW 1997-1 Trust Participation Agreement
SECTION 10.7. HEADINGS AND TABLE OF CONTENTS. The headings of the Sections
of this Agreement and the Table of Contents are inserted for purposes of
convenience only and shall not be construed to affect the meaning or
construction of any of the provisions hereof and any reference to numbered
Sections, unless otherwise indicated, are to Sections of this Agreement.
SECTION 10.8. LIMITATIONS OF LIABILITY.
(a) LIABILITIES OF THE TRUST CERTIFICATE PURCHASERS. No Trust
Certificate Purchaser shall have any obligation or duty to the Lessee, to any
other Trust Certificate Purchaser or to others with respect to the
transactions contemplated hereby except those obligations or duties of such
Trust Certificate Purchaser expressly set forth in this Agreement and the
other Operative Agreements and no Trust Certificate Purchaser shall be liable
for performance by any other party hereto of such other party's obligations
or duties hereunder. Without limitation of the generality of the foregoing,
under no circumstances whatsoever shall any Trust Certificate Purchaser be
liable to the Lessee, nor shall any Trust Certificate Purchaser be liable to
any other Trust Certificate Purchaser, for any action or inaction on the part
of the Lessor Trustee in connection with the transactions contemplated
herein, whether or not such action or inaction is caused by willful
misconduct or gross negligence of the Lessor Trustee.
(b) NO RECOURSE TO KEYBANK NATIONAL ASSOCIATION. It is expressly
understood and agreed by and between the Lessor Trustee, the Lessee and the
Trust Certificate Purchasers and any Certificate Holder and their respective
successors and assigns that, subject to the proviso to this paragraph, this
Agreement is (except as otherwise expressly provided herein) executed by
KeyBank National Association, not individually or personally but solely as
trustee under the Trust Agreement in the exercise of the power and authority
conferred and vested in it as such trustee, that each and all of the
representations, warranties, undertakings and agreements herein made on the
part of the Lessor Trustee are made and intended not as personal
representations, warranties, undertakings and agreements by KeyBank National
Association or for the purpose or with the intention of binding KeyBank
National Association personally, but are made and intended for the purpose of
binding only the Lessor Trust Estate, that this Agreement is executed and
delivered by KeyBank National Association solely in the exercise of the
powers expressly conferred upon KeyBank National Association as trustee under
the Trust Agreement, that actions to be taken by the Lessor Trustee pursuant
to its obligations hereunder may be taken by the Lessor Trustee only upon
specific authority of the Certificate Holders, that nothing herein contained
shall be construed as creating any liability of KeyBank National Association,
individually or personally, or any incorporator or any past, present or
future subscriber to the capital stock of, or stockholder, officer or
director of KeyBank National Association, to perform any covenant either
express or implied contained herein, all such liability, if any, being
expressly waived by the Lessee, each Trust Certificate Purchaser and any
Certificate Holder and any person claiming by, through or under such persons,
and that so far as KeyBank National Association, individually or personally
is concerned, subject to the proviso to this paragraph, the Lessee, each
Trust Certificate Purchaser and any Certificate Holder and any person
claiming by, through or under such persons shall look solely to the Lessor
Trust Estate for the
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MW 1997-1 Trust Participation Agreement
performance of any obligation of KeyBank National Association under this
Agreement; PROVIDED, HOWEVER, that nothing in this Section 10.8 shall be
construed (i) to limit in scope or substance those representations,
warranties, undertakings and agreements of KeyBank National Association made
expressly in its individual capacity set forth in Section 3.1 or the
indemnities of KeyBank National Association in its individual capacity set
forth in Section 7, or (ii) to relieve KeyBank National Association from
liability for its own willful misconduct or gross negligence. The term
"LESSOR TRUSTEE" as used in this Participation Agreement shall include any
trustee succeeding KeyBank National Association as trustee under the Trust
Agreement. Nothing contained in this Agreement shall restrict the operation
of the provisions of the Trust Agreement, including, without limitation, the
resignation or removal of the Lessor Trustee thereunder.
SECTION 10.9. TRANSACTIONAL EXPENSES. Whether or not the transactions
contemplated by this Agreement are consummated, the Lessee will pay all
expenses relating to the transactions contemplated by this Agreement. If the
transactions contemplated by this Agreement are consummated, the Lessee shall
in any event pay: (i) the fees and expenses of counsel for the Lessee; (ii)
the fees and expenses of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, special counsel for the Trust
Certificate Purchasers; (iii) the cost of delivering to or from the home
office of each Trust Certificate Purchaser from or to the Lessor Trustee,
insured to the satisfaction of such Trust Certificate Purchaser, the Trust
Certificates issued to such Trust Certificate Purchaser on the Closing Date
and any Trust Certificates surrendered pursuant to the Trust Agreement and
the Trust Certificates issued in substitution or replacement for the
surrendered Trust Certificates; (iv) all stamp, transfer and other similar
taxes, fees and excise, if any, including any interest and penalties, which
are payable in connection with the transactions contemplated by this
Agreement, the Trust Certificates and the other Operative Agreements; (v) the
expenses of the Lessor Trustee and the Trust Certificate Purchasers,
including fees and expenses of their counsel, in connection with any
amendments, waivers or consents requested by any party in connection with any
of the Operative Agreements and all recording and filing fees, stamp taxes
and other recording or filing taxes in connection with the recordation or
filing of any such amendments, waivers and consents and in connection with
any continuation statements or other documents filed to maintain and protect
the rights of the parties under the Operative Agreements; (vi) the initial
and ongoing fees and expenses of the Lessor Trustee under the Trust
Agreement, including fees and expenses incurred in connection with the
enforcement of the obligations of the Lessee and the Guarantors under the
Operative Agreements; (vii) the fees of Key Global Finance Ltd., as arranger,
in connection with the transactions contemplated hereby as specified in
Section 4.1(o); and (viii) the fees and expenses relating to the Appraisal
delivered on the Closing Date.
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IN WITNESS WHEREOF, the parties hereto have caused this Participation
Agreement to be executed and delivered, all as of the date first above
written.
LESSEE MAIL-WELL I CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Its Vice President-Treasurer
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: 303-397-7400
LESSOR TRUSTEE
KEYBANK NATIONAL ASSOCIATION, as
trustee under MW 1997-1 Trust and to the
extent expressly provided above individually
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Its Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Large Corporate Group
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
TRUST CERTIFICATE PURCHASER KEYBANK NATIONAL ASSOCIATION
- SERIES A
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Its Vice President
MW 1997-1 Trust Participation Agreement
TRUST CERTIFICATE PURCHASER KEY CORPORATE CAPITAL INC.
- SERIES B
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Its Vice President