Exhibit 10.94
CONFIDENTIAL TREATMENT REQUESTED
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PARTICIPATION AGREEMENT
Dated as of June 1, 2003
among
▇▇▇ RESEARCH CORPORATION,
as Lessee,
SELCO SERVICE CORPORATION,
as Lessor,
KEY CORPORATE CAPITAL INC.,
as Lender,
and
KEY CORPORATE CAPITAL INC.,
as Administrative Agent
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KEY LEASE ADVISORY SERVICES,
Arranger
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* THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
TABLE OF CONTENTS
SECTION HEADING PAGE
Parties......................................................................................................... 1
Recitals........................................................................................................ 1
ARTICLE I DEFINITIONS; INTERPRETATION........................................................................... 1
ARTICLE II DOCUMENTATION DATE.................................................................................. 2
Section 2.1. Documentation Date....................................................................... 2
ARTICLE III FUNDING OF ADVANCES................................................................................. 4
Section 3.1. Advances................................................................................. 4
Section 3.2. Lessor Commitment........................................................................ 4
Section 3.3. Lenders' Commitments..................................................................... 5
Section 3.4. Procedures for Advances.................................................................. 5
Section 3.5. Interest Rate; Yield Rate................................................................ 5
ARTICLE IV YIELD; INTEREST; FEES................................................................................ 6
Section 4.1. Yield.................................................................................... 6
Section 4.2. Interest on Loans........................................................................ 6
Section 4.3. Payments of Rent; Payments and Prepayments of Loans and Lessor Amounts................... 6
Section 4.4. Fees..................................................................................... 6
Section 4.5. Place and Manner of Payments............................................................. 7
Section 4.6. Pro Rata Treatment....................................................................... 7
Section 4.7. Sharing of Payments...................................................................... 7
ARTICLE V CERTAIN INTENTIONS OF THE PARTIES..................................................................... 8
Section 5.1. Nature of Transaction.................................................................... 8
Section 5.2. Amounts Due Under the Lease.............................................................. 9
ARTICLE VI CONDITIONS PRECEDENT: ACQUISITION DATES............................................................. 9
Section 6.1. Acquisition Dates........................................................................ 9
Section 6.2. Delivery of Documents.................................................................... 13
ARTICLE VII DISTRIBUTIONS....................................................................................... 13
Section 7.1. Basic Rent............................................................................... 13
Section 7.2. Purchase Payments by the Lessee.......................................................... 13
Section 7.3. Payment of Maximum Recourse Amounts...................................................... 13
Section 7.4. Sales Proceeds of Remarketing of the Properties.......................................... 14
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Section 7.5. Supplemental Rent........................................................................ 14
Section 7.6. Distribution of Payments after Lease Event of Default.................................... 14
Section 7.7. Casualty and Condemnation Amounts........................................................ 16
Section 7.8. Other Payments........................................................................... 16
Section 7.9. Order of Application..................................................................... 17
Section 7.10. Payments to Account..................................................................... 17
ARTICLE VIII REPRESENTATIONS.................................................................................... 17
Section 8.1. Representations of the Lenders........................................................... 17
Section 8.2. Representations of the Lessee............................................................ 17
Section 8.3. Representations of the Lessor............................................................ 21
ARTICLE IX PAYMENT OF CERTAIN EXPENSES.......................................................................... 22
Section 9.1. Transaction Expenses..................................................................... 22
Section 9.2. Brokers' Fees and Stamp Taxes............................................................ 22
Section 9.3. Loan Agreement and Related Obligations................................................... 23
ARTICLE X OTHER COVENANTS AND AGREEMENTS........................................................................ 23
Section 10.1. Covenants of the Lessee................................................................. 23
Section 10.2. SELCO Status............................................................................ 28
Section 10.3. Covenants of Each Participant........................................................... 28
Section 10.4. Release of Properties................................................................... 29
ARTICLE XI [INTENTIONALLY OMITTED].............................................................................. 29
ARTICLE XII TRANSFERS OF PARTICIPANTS' INTERESTS................................................................ 29
Section 12.1. Assignments............................................................................. 29
Section 12.2. Participations.......................................................................... 31
Section 12.3. Withholding Taxes; Disclosure of Information; Pledge Under Regulation A................. 31
ARTICLE XIII INDEMNIFICATION.................................................................................... 32
Section 13.1. General Indemnification................................................................. 32
Section 13.2. End of Term Indemnity................................................................... 33
Section 13.3. Environmental Indemnity................................................................. 34
Section 13.4. Proceedings in Respect of Claims........................................................ 36
Section 13.5. General Tax Indemnity................................................................... 37
Section 13.6. Indemnity Payments in Addition to Lease Obligations..................................... 41
Section 13.7. Eurodollar Rate Lending Unlawful........................................................ 41
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Section 13.8. Deposits Unavailable.................................................................... 41
Section 13.9. Increased Costs, etc.................................................................... 42
Section 13.10. Funding Losses; Break Costs............................................................ 43
Section 13.11. Capital Adequacy....................................................................... 43
ARTICLE XIV [INTENTIONALLY RESERVED]............................................................................ 44
ARTICLE XV MISCELLANEOUS........................................................................................ 44
Section 15.1. Survival of Agreements.................................................................. 44
Section 15.2. No Broker, Etc.......................................................................... 45
Section 15.3. Notices................................................................................. 45
Section 15.4. Counterparts............................................................................ 45
Section 15.5. Amendments, Etc......................................................................... 45
Section 15.6. Headings, Etc........................................................................... 46
Section 15.7. Parties in Interest..................................................................... 46
Section 15.8. Governing Law........................................................................... 47
Section 15.9. Severability............................................................................ 47
Section 15.10. Liability Limited...................................................................... 47
Section 15.11. Submission to Jurisdiction............................................................. 47
Section 15.12. Setoff................................................................................. 47
Section 15.13. No Participant Responsible for Other Participants...................................... 48
Section 15.14. Partial Purchase Option................................................................ 48
Appendix A -- Definitions
Schedule I -- Commitments
Schedule II -- Notice Information, Wire Instructions and Funding Offices
Schedule III -- Lease Balance Allocations
Exhibit 8.2(l) -- Disclosure of Certain Matters
Exhibit A-1 -- Form of Legal Opinion of In-House Counsel to Lessee
Exhibit A-2 -- Form of Legal Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇▇ LLP
Exhibit B -- Form of Funding Request
Exhibit C -- Form of Master Lease
Exhibit D -- Form of Loan Agreement
Exhibit E -- Form of Compliance Certificate
Exhibit F -- Form of Assignment Agreement
Exhibit G -- [Intentionally Reserved]
Exhibit H -- Form of Assignment of Lease and Rent
Exhibit I -- Form of Mortgage
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PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT (this "Participation Agreement"), dated as
of June 1, 2003, is entered into by and among ▇▇▇ RESEARCH CORPORATION, a
Delaware corporation, as Lessee, (the "Lessee"); SELCO SERVICE CORPORATION, an
Ohio corporation, as Lessor (the "Lessor"); KEY CORPORATE CAPITAL, INC., a
Michigan corporation, as Lender, (together with any other holder of a Note the
"Lenders"); and KEY CORPORATE CAPITAL INC., a Michigan corporation, as
Administrative Agent (the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, on the Acquisition Date, the Lessor will purchase the
Properties from one or more third parties designated by the Lessee;
WHEREAS, the Lessor desires to lease the Properties to the Lessee, and
the Lessee desires to lease the Properties from the Lessor;
WHEREAS, the Lessor is willing to provide a portion of the funding of
the costs of the acquisition of the Properties;
WHEREAS, the Lenders are willing to provide the remaining portion of
the funding of the costs of the acquisition of the Properties; and
WHEREAS, to secure such financing (a) the Lessor will have the benefit
of a first priority Lien on the Properties and the Cash Collateral, and (b) the
Lenders will have the benefit of (i) a Lien on the Lessor's right, title and
interest in the Properties and the Cash Collateral, and (ii) an assignment of
certain of the Lessor's rights against the Lessee under the Lease;
NOW THEREFORE, in consideration of the mutual agreements contained in
this Participation Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS; INTERPRETATION
Unless the context shall otherwise require, capitalized terms used and
not defined herein shall have the meanings assigned thereto in Appendix A hereto
for all purposes hereof (as such Appendix A may be amended, supplemented,
amended and restated or otherwise modified from time to time, "Appendix A to
this Participation Agreement"); and the rules of interpretation set forth in
Appendix A to this Participation Agreement shall apply to this Participation
Agreement.
▇▇▇ Research Corporation Participation Agreement
ARTICLE II
DOCUMENTATION DATE
Section 2.1. Documentation Date. The Documentation Date (the
"Documentation Date") shall be deemed to have occurred and all rights and
obligations of the parties to the Operative Documents (each subject to any
conditions specified therein) shall be in effect, upon satisfaction or waiver of
each of the following conditions precedent:
(a) Participation Agreement. This Participation Agreement
shall have been duly authorized, executed and delivered by the parties
hereto.
(b) Master Lease. The Master Lease shall have been duly
authorized, executed and delivered by the parties thereto.
(c) Loan Agreement and Notes. The Loan Agreement and each
Lender's Note shall have been duly authorized, executed and delivered
by the parties thereto.
(d) Assignment of Lease and Rent. The Assignment of Lease
and Rent shall have been duly authorized, executed and delivered by the
Lessor, as assignor, to the Administrative Agent, as assignee, and the
Assignment of Lease and Rent shall have been consented to and
acknowledged by the Lessee.
(e) Transaction Expenses and Fees. The applicable Person
shall have received all Fees payable on the Documentation Date and all
Transaction Expenses, to the extent then invoiced, shall have been
paid.
(f) Corporate Documents; Certificates. The Lessee shall
have delivered, or shall have caused to be delivered, to the
Administrative Agent and each Participant the following:
(i) Certificate of Incorporation. Copies of its
certificate of incorporation, certified to be true and
complete as of a recent date by the appropriate governmental
authority of the jurisdiction of its incorporation.
(ii) Resolutions. Copies of resolutions or other
authority documentation of its Board of Directors approving
and adopting the Operative Documents, the transactions
contemplated therein and authorizing execution and delivery
thereof, certified by a secretary or assistant secretary as of
the Documentation Date to be true and correct and in full
force and effect as of such date and evidence of corporate
authority of the Lessee with respect to the Operative
Documents and the transactions contemplated therein.
(iii) Bylaws. A copy of the Lessee's bylaws
certified by its secretary or assistant secretary as of the
Documentation Date to be true and correct and in full force
and effect as of such date.
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(iv) Good Standing. Copies of certificates of
good standing, existence or its equivalent for the Lessee,
certified as of a recent date by the appropriate governmental
authority of the jurisdiction of its incorporation.
(v) Opinions of Counsel. Opinions of counsel for
the Lessee addressed to the Administrative Agent and each of
the Participants in forms acceptable to the Administrative
Agent and each of the Participants.
(g) Lessor Corporate Documents; Certificates. The Lessor
shall have delivered, or shall have caused to be delivered to each of
the other parties hereto the following:
(i) Articles of Incorporation. Copies of its
articles of incorporation, certified to be true and complete
as of a recent date by the appropriate governmental authority
of the state of its incorporation.
(ii) Resolutions. Copies of resolutions of its
Board of Directors approving and adopting the Operative
Documents to which it is or is to be a party, the transactions
contemplated therein and authorizing execution and delivery
thereof, certified by its secretary or assistant secretary as
of the Documentation Date to be true and correct and in full
force and effect as of such date.
(iii) Regulations. A copy of its regulations
certified by its secretary or assistant secretary as of the
Documentation Date to be true and correct and in full force
and effect as of such date.
(iv) Good Standing. A copy of a certificate of
good standing, existence or its equivalent, certified as of a
recent date by the appropriate governmental authority of the
State of Ohio.
(h) Representations and Warranties. On the Documentation
Date, the representations and warranties of each of the parties hereto
contained in Sections 8.1, 8.2 and 8.3 shall be true and correct as
though made on and as of such date, except to the extent such
representations or warranties relate solely to an earlier date, in
which case such representations and warranties shall have been true and
correct in all material respects on and as of such earlier date and
each of the Lessee and the Lessor shall have delivered a certificate to
such effect with respect to its representations and warranties.
(i) No Default. No Default or Event of Default shall have
occurred and be continuing on the Documentation Date unless such
Default or Event of Default shall have been waived in accordance with
the Operative Documents.
(j) Governmental Approvals. All Governmental Actions
required by any Requirement of Law for the purpose of authorizing the
Lessee, the Administrative Agent or any Participant to enter into the
Operative Documents shall have been obtained or made and be in full
force and effect.
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▇▇▇ Research Corporation Participation Agreement
(k) Litigation. No action or proceeding shall have been
instituted or threatened, nor shall any governmental action be
instituted or threatened before any Governmental Authority, nor shall
any order, judgment or decree have been issued or proposed to be issued
by any Governmental Authority, to set aside, restrain, enjoin or
prevent the performance of this Participation Agreement or any
transaction contemplated hereby or by any other Operative Document or
which is reasonably likely, in the sole opinion of each Participant, to
have a Material Adverse Effect.
(l) Requirements of Law. In the opinion of each
Participant, no change shall have occurred or been proposed in
Applicable Law that would make it uneconomic or illegal for any party
to any Operative Document to participate in any of the transactions
contemplated by the Operative Documents or otherwise would prohibit the
consummation of any transaction contemplated by the Operative Documents
or expand the duties, obligations and risks of any Participant.
All documents and instruments required to be delivered pursuant to this
Section 2.1 shall be delivered at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other location as may be
determined by the Lessee, the Lessor and the Administrative Agent and in such
numbers as shall be reasonably requested. Unless otherwise agreed among the
Lessee, the Lessor and the Administrative Agent, the Documentation Date shall
coincide with the first Acquisition Date.
ARTICLE III
FUNDING OF ADVANCES
Section 3.1. Advances. Subject to the conditions and terms hereof, the
Lessor shall take the following actions at the written request of the Lessee:
(a) the Lessor shall make Advances (out of funds provided
by itself and the Lenders) for the purpose of financing the acquisition
by the Lessor of the Properties and the payment of Transaction Expenses
and Fees relating thereto; and
(b) the Lessor shall lease the Properties to the Lessee
under the Master Lease and the respective Lease Supplements.
Notwithstanding any other provision hereof, (i) no Advance shall be made with
respect to any Property after the Acquisition Date therefor, and (ii) the
Participants shall not be obligated to make any Advance with respect to any
Property if, after giving effect thereto, (x) the aggregate outstanding amounts
of the Loans and the Lessor Amounts would exceed the Aggregate Commitment
Amount, or (y) the Property Cost thereof would exceed the Fair Market Sales
Value of such Property as set forth in the Appraisal thereof delivered pursuant
to Section 6.1(d) hereof.
Section 3.2. Lessor Commitment. Subject to the conditions and terms
hereof, on each Acquisition Date during the Commitment Period, the Lessor shall
make available at the written request of the Lessee during the Commitment Period
on each Acquisition Date, an amount (a
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"Lessor Amount") in immediately available funds equal to the Lessor's Commitment
Percentage of the amount of the Advance being funded on such Acquisition Date.
Notwithstanding any other provision hereof, the Lessor shall not be obligated to
make available any Lessor Amount if, after giving effect to the proposed Lessor
Amount, the outstanding aggregate amount of the Lessor Amounts would exceed the
Lessor Commitment.
Section 3.3. Lenders' Commitments. Subject to the conditions and terms
hereof, on each Acquisition Date during the Commitment Period, each Lender shall
make a Loan to the Lessor at the written request of the Lessee in an aggregate
amount in immediately available funds equal to such Lender's Commitment
Percentage of the amount of the Advance being funded on such Acquisition Date.
Notwithstanding any other provision hereof, no Lender shall be obligated to make
any Loan if, after giving effect to the proposed Loan, the outstanding amount of
such Lender's Loans would exceed such Lender's Commitment.
Section 3.4. Procedures for Advances. (a) With respect to each
Acquisition Date, the Lessee shall give the Lessor, the Administrative Agent and
each Lender prior written notice pursuant to a Funding Request substantially in
the form of Exhibit B (a "Funding Request"), which Funding Request shall be
delivered not later than 11:00 a.m. (New York time), two (2) Business Days prior
to the proposed Acquisition Date. Such Funding Request shall set forth (i) the
proposed Acquisition Date, (ii) the amount of the Advance requested, (iii) a
description of the Property to which such Funding Request relates, (iv) the
seller of the Property being acquired, and (v) wire transfer instructions for
the disbursement of the proceeds of such Advance. Subject to timely delivery of
a Funding Request and the other terms and conditions of the Operative Documents,
(x) each Lender shall make its Commitment Percentage available to the
Administrative Agent at the Account by 2:00 p.m. (New York time) on the
requested Acquisition Date and (y) the Lessor shall make its Commitment
Percentage of the requested Advance available to the Administrative Agent at the
Account by 2:00 p.m. (New York time) on the requested Acquisition Date. Promptly
upon the Administrative Agent's receipt of such funds from the Participants, the
Administrative Agent shall wire such funds on the applicable Acquisition Date to
the Persons entitled thereto and to such accounts as the Lessee shall have
indicated in the Funding Request. Each Advance shall consist of (i) a Lessor
Amount equal to 6.0% of such Advance and (ii) Loans in an aggregate amount equal
to 94.0% of such Advance, such Loans to be allocated between Series A Notes and
Series B Notes in accordance with Schedule I hereto.
(b) Except as the Participants may otherwise agree in writing,
Advances shall be made solely to pay the Property Cost of each Property and
related Fees and Transaction Expenses.
Section 3.5. Interest Rate; Yield Rate. Each Loan shall accrue interest
as set forth in Section 2.5 of the Loan Agreement, and each Lessor Amount shall
accrue Yield by reference to the Adjusted Eurodollar Rate, in each case subject
to the provisions of Sections 13.7, 13.8 and 13.9 (to the extent applicable).
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▇▇▇ Research Corporation Participation Agreement
ARTICLE IV
YIELD; INTEREST; FEES
Section 4.1. Yield. (a) The amount of the Lessor Amounts outstanding
from time to time shall accrue yield ("Yield") at the Yield Rate. If all or any
portion of the Lessor Amounts, any Yield payable thereon or any other amount
payable hereunder shall not be paid when due (whether at stated maturity,
acceleration thereof or otherwise), such overdue amount shall bear interest at a
rate per annum which is equal to the Overdue Rate. The Lessor shall, as soon as
practicable, but in no event later than 11:00 a.m. (New York time) two (2)
Business Days before the effectiveness of each recomputation of the Adjusted
Eurodollar Rate applicable to Lessor Amounts, cause to be determined such
Adjusted Eurodollar Rate.
(b) The Administrative Agent shall distribute, in accordance with
Article VII, the Lessor Basic Rent and all other amounts due with respect to the
Lessor Amounts paid to the Administrative Agent by the Lessee under the Lease
from time to time.
(c) If not repaid sooner, the outstanding aggregate Lessor Amounts
shall be repaid in full on the Maturity Date, subject to the provisions of
Article XX of the Master Lease.
Section 4.2. Interest on Loans. (a) Each Loan shall accrue interest
computed and payable in accordance with the terms of the Loan Agreement. Each
Loan shall become due and payable at the dates and times provided under the Loan
Agreement.
(b) The Administrative Agent shall distribute, in accordance with
Article VII, the Lender Basic Rent and all other amounts due with respect to the
Loans paid to the Administrative Agent by the Lessee under the Lease from time
to time.
Section 4.3. Payments of Rent; Payments and Prepayments of Loans and
Lessor Amounts. (a) The Lessor hereby directs the Lessee to pay to the
Administrative Agent the Rent from time to time (other than Excepted Payments,
which the Lessor hereby directs the Lessee to make directly to the applicable
Person entitled thereto).
(b) All amounts payable by the Lessee pursuant to Article XIV, XV,
XVI, XVIII or XX of the Master Lease shall be applied to the Loans and the
Lessor Amounts in the manner set forth in Article VII hereof. Each of the
Participants hereby acknowledges that its Loans or Lessor Amounts, as the case
may be, may be so prepaid without any prepayment premium (other than Break
Costs, if any).
(c) Notice. The Lessee will provide notice to the Administrative
Agent, the Lessor and the Lenders of any voluntary prepayment by 9:00 a.m. (New
York time) at least three (3) Business Days prior to the date of such voluntary
prepayment.
Section 4.4. Fees. The Lessee agrees to pay the fees set forth in this
Section 4.4 (collectively, the "Fees"), which as to the Structuring Fee and the
Commitment Fee may be paid out of Advances.
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▇▇▇ Research Corporation Participation Agreement
(a) Structuring Fee. The Lessee agrees to pay to the
Arranger on the Documentation Date the fee (the "Structuring Fee") in
the amount specified in the Summary of Terms.
(b) Commitment Fee. The Lessee agrees to pay to each
Participant a fee (the "Commitment Fee") on the Documentation Date
equal to [***]% of the amount of such Participant's Commitment.
Section 4.5. Place and Manner of Payments. Except as otherwise
specifically provided herein, all payments by the Lessee hereunder, under the
Master Lease or under any other Operative Document shall be made to the
Administrative Agent in Dollars in immediately available funds, without offset,
deduction, counterclaim or withholding of any kind, to the Account in Cleveland,
Ohio not later than 2:00 p.m. (New York time) on the date when due. Payments
received after such time shall be deemed to have been received on the next
succeeding Business Day. The Lessee shall, at the time it makes any payment
under any Operative Document, specify to the Administrative Agent the Basic
Rent, Property Cost, Fees, Supplemental Rent or other amounts payable by the
Lessee hereunder to which such payment is to be applied (and in the event that
it fails so to specify, or if such application would be inconsistent with the
terms hereof, the Administrative Agent shall distribute such payment to the
Participants in such manner as the Administrative Agent may determine to be
appropriate in respect of obligations owing by the Lessee subject to the terms
of Article VII). The Administrative Agent will distribute such payments to such
Participants in accordance with Article VII, if any such payment is received
prior to 3:00 p.m. (New York time) on a Business Day in like funds as received
prior to such time, and otherwise the Administrative Agent shall distribute such
payment to such Participants on the next succeeding Business Day. Whenever any
payment hereunder shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next Business Day (subject to
accrual of interest and fees for the period of such extension), except that in
the case of Eurodollar Loans/Lessor Amounts, if the extension would cause the
payment to be made in the next following calendar month, then such payment shall
instead be made on the next preceding Business Day.
Section 4.6. Pro Rata Treatment. Except to the extent otherwise
provided herein, each payment or repayment of principal on the outstanding Loans
and each payment of interest shall be allocated pro rata among the relevant
Lenders in accordance with their respective Loan Balances.
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
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▇▇▇ Research Corporation Participation Agreement
Section 4.7. Sharing of Payments. The Participants agree among
themselves that, in the event that any Participant shall obtain payment in
respect of any Loan or Lessor Amount or any other obligation owing to such
Participant under the Operative Documents through the exercise of a right of
setoff, banker's lien or counterclaim, or pursuant to a secured claim under
Section 506 of the Bankruptcy Code or other security or interest arising from,
or in lieu of, such secured claim, received by such Participant under any
applicable bankruptcy, insolvency or other similar law or otherwise, or by any
other means, in excess of its pro rata share of such payment as provided for in
this Participation Agreement, such Participant shall promptly pay such excess to
the Administrative Agent to pay to the other Participants such that all
Participants shall share such payment in accordance with their respective
ratable shares as provided for in this Participation Agreement. The Participants
further agree among themselves that if payment to a Participant obtained by such
Participant through the exercise of a right of setoff, banker's lien,
counterclaim or other event as aforesaid shall be rescinded or must otherwise be
restored, each Participant which shall have shared the benefit of such payment
shall, return its share of that benefit (together with its share of any accrued
interest payable with respect thereto) to each Participant whose payment shall
have been rescinded or otherwise restored. Except as otherwise expressly
provided herein, if any Participant or the Administrative Agent shall fail to
remit to the Administrative Agent or any other Participant an amount payable by
such party to the Administrative Agent or such other Participant pursuant to the
Operative Documents on the date when such amount is due, such payments shall be
made together with interest thereon for each date from the date such amount is
due until the date such amount is paid to the Administrative Agent or such other
Participant at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Participant receives
a secured claim in lieu of a setoff to which this Section 4.7 applies, such
Participant shall, to the extent practicable, exercise its rights in respect of
such secured claim in a manner consistent with the rights of the Participants
under this Section 4.7 to share in the benefits of any recovery on such secured
claim.
ARTICLE V
CERTAIN INTENTIONS OF THE PARTIES
Section 5.1. Nature of Transaction. (a) The parties hereto intend that
(i) for financial accounting purposes with respect to the Lessee, the Lessor
will be treated as the owner and the lessor of the Properties and the Lessee
will be treated as the lessee of the Properties pursuant to an operating lease
under GAAP and (ii) for federal and all state and local income tax purposes,
state real estate and commercial law and bankruptcy purposes,
(A) the Lease will be treated as a financing arrangement,
(B) the Lessor and the Lenders will be deemed lenders
making loans to the Lessee in an amount equal to the sum of the Lessor
Amounts and the outstanding principal amount of the Loans, which
amounts are secured by the Properties, and
(C) the Lessee will be treated as the owner of the
Properties described in the Lease Supplements and will be entitled to
all tax benefits ordinarily available to an owner of properties like
the Properties for such tax purposes. Nevertheless, the Lessee
acknowledges and agrees that neither the Lessor, the Administrative
Agent, the Arranger nor any of the Lenders has made any representations
or warranties to the Lessee concerning the tax, Lessee's accounting or
legal characteristics of the Operative
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▇▇▇ Research Corporation Participation Agreement
Documents and that the Lessee has obtained and relied upon such tax,
accounting and legal advice concerning the Operative Documents as it
deems appropriate.
(b) Specifically, without limiting the generality of
clause (a) of this Section 5.1, 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, the Lessor
or the Lenders or any collection actions, the transactions evidenced by
the Operative Documents shall be regarded as loans made by the Lessor
and the Lenders as unrelated third party lenders of the Lessee.
Section 5.2. Amounts Due Under the Lease. Anything herein or elsewhere
to the contrary notwithstanding, it is the intention of the Lessee, the Lessor
and the Lenders that: (i) the amount and timing of installments of Basic 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 interest on the Loans and Yield on
the Lessor Amounts on each Scheduled Payment Date; (ii) if the Lessee elects the
Purchase Option with respect to all of the Properties or the Lessee becomes
obligated to purchase all of the Properties under the Lease, the Loans, the
Lessor Amounts, and all interest, Yield, Commitment Fees and all other
obligations of the Lessee owing to the Administrative Agent, the Lessor and the
Lenders shall be due and payable in full by the Lessee on the date set forth in
the Lease; (iii) if the Lessee properly elects the Remarketing Option, the
Lessee shall only be required to pay to the Administrative Agent the proceeds of
the sale of each Property, the Maximum Recourse Amount for such Property and any
amounts due pursuant to Article XIII hereof and Section 20.2 of the Master Lease
(which aggregate amounts may be less than the Property Cost of such Properties),
together with all other due and payable Supplemental Rent; (iv) upon a Lease
Event of Default resulting in an acceleration of the Lessee's obligation to
purchase each Property 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
aggregate Property Costs of all of the Properties, plus all other amounts then
due from the Lessee under the Operative Documents; and (v) if the Lessee elects
to purchase or is required to purchase any Property pursuant to Section 14.1,
Article XV or XVIII of the Master Lease, the amounts then due and payable by the
Lessee shall include all amounts necessary to pay the Property Balance of such
Property.
ARTICLE VI
CONDITIONS PRECEDENT: ACQUISITION DATES
Section 6.1. Acquisition Dates. The closing date with respect to the
acquisition of any Property (each such date, an "Acquisition Date") shall occur
on a Business Day on or after the Documentation Date (but not later than June
24, 2003) on which all the conditions precedent thereto set forth in this
Section 6.1 shall have been satisfied or waived by the applicable parties as set
forth herein. The obligation of the Lessor to acquire such Property (for
purposes of this Article VI, the "Subject Property") on the respective
Acquisition Date, the obligation of the Lessor to make available any related
Lessor Amount on the respective Acquisition Date and the obligation of each
Lender to make any related Loan on the respective Acquisition Date, are subject
to satisfaction or waiver of the following conditions precedent (provided that a
failure on
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the part of any Participant to perform or otherwise satisfy any condition
applicable to it shall not be a condition precedent to the performance of its
obligations under the Operative Documents):
(a) Funding Request. Each of the Administrative Agent and
each Participant shall have received a fully executed counterpart of
the applicable Funding Request in accordance with Section 3.4.
(b) Transaction Expenses. All Fees and Transaction
Expenses due and payable by the Lessee to the Participants and the
Arranger shall have been paid or will be paid through Advances on such
Acquisition Date.
(c) Representations and Warranties. On such Acquisition
Date, the representations and warranties of the Lessee set forth in
Section 8.2 shall be true and correct.
(d) Appraisal. On or prior to such Acquisition Date, the
Administrative Agent and each Participant shall have received an
Appraisal of the Subject Property, in form and substance reasonably
satisfactory to such persons, which Appraisal shall show, as of such
Acquisition Date, the Fair Market Sales Value of the Subject Property.
(e) Governmental Approvals. All necessary Governmental
Actions (including pursuant to any Environmental Laws) required by any
Requirement of Law as of such Acquisition Date for the purpose of
authorizing the Lessor to acquire the Subject Property shall have been
obtained or made and be in full force and effect.
(f) Responsible Officer's Certificate. Each Participant
and the Administrative Agent shall have received a Responsible
Officer's Certificate of the Lessee, addressed to the Administrative
Agent and each Participant and dated such Acquisition Date, stating
that (w) the representations and warranties of the Lessee contained in
Section 8.2 hereof, are true and correct on and as of such Acquisition
Date; (x) no Lease Default or Lease Event of Default has occurred and
is continuing under any Operative Document; (y) each Operative Document
to which the Lessee is a party is in full force and effect with respect
to it; and (z) the Lessee has duly performed and complied with all
conditions contained herein or in any other Operative Document required
to be performed and complied with by it on or prior to such Acquisition
Date.
(g) Evidence of Insurance. Each Participant and the
Administrative Agent shall have received evidence that the insurance
maintained by the Lessee with respect to the Subject Property satisfies
the requirements set forth in Article XIII of the Master Lease setting
forth the respective coverage, limits of liability, carrier, policy
number and period of coverage, and shall have received a letter and/or
certificate signed by the Lessee's insurance broker confirming that the
coverage with respect to the Subject Property complies with the
requirements of Article XIII of the Master Lease.
(h) Environmental Audit. At least five (5) Business Days
prior to such Acquisition Date, each Participant and the Administrative
Agent shall have received an
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Environmental Audit performed by an environmental consultant reasonably
acceptable to each Participant and the Administrative Agent and either
addressed to such Persons or accompanied by a letter allowing such
Persons to rely thereon with respect to the Subject Property and in
form and substance reasonably satisfactory to each Participant and the
Administrative Agent and stating that the applicable assessment has
revealed no evidence of recognized environmental conditions in
connection with the site except for specified matters, which matters
each Participant, the Administrative Agent and the Lessee reasonably
agree are not material. If such Environmental Audit reveals the need
for additional review or testing, the Lessee shall have provided such
additional assessments as are recommended by such consultant.
(i) Deed. The Lessor shall have received at least five
(5) Business Days prior to the Acquisition Date a copy of the proposed
Deed with respect to the Subject Property, and on or prior to such
Acquisition Date, such Deed duly executed conveying fee simple title to
such Property to the Lessor and containing customary seller's
warranties in the applicable jurisdiction and subject only to Permitted
Property Liens. The legal description, tax lot designation and zoning
of the related Land shall be reasonably acceptable to the
Administrative Agent and each Participant.
(j) ▇▇▇▇ of Sale. If the Subject Property includes any
Equipment, then on or prior to such Acquisition Date, the Lessor shall
have received a ▇▇▇▇ of sale (a "▇▇▇▇ of Sale"), conveying title to the
Lessor in any Equipment comprising part of the Subject Property.
(k) [Intentionally Reserved].
(l) Lease Supplement; Mortgage. On or prior to such
Acquisition Date, the Lessee and the Lessor shall have executed and
delivered a Lease Supplement with respect to the Subject Property and
shall have delivered the original counterpart of such Lease Supplement
to the Administrative Agent, and the Lessor shall have delivered a
Mortgage to the Administrative Agent with respect to the Subject
Property.
(m) Financing Statements. On or prior to such Acquisition
Date, the Lessee and the Lessor shall have delivered all UCC financing
statements relating to the Subject Property as the Lessor or the
Administrative Agent may reasonably request in order to protect the
interests of the Lessor under the Lease relating to the Subject
Property to the extent the Master Lease constitutes a security
agreement and to protect and perfect the interests of the
Administrative Agent in the Subject Property.
(n) Recordation of Lessor Mortgage; Lessor Financing
Statements; Search Results. The Lessor and the Administrative Agent
shall have received (x) evidence reasonably satisfactory to it that
each of (i) the applicable Lease Supplement and any other instrument
constituting a Lessor Mortgage, (ii) the financing statements relating
to the Subject Property and (iii) the Mortgage relating to the Subject
Property has been, or is being, recorded or filed in a manner
sufficient to properly perfect each of their interests therein and (y)
copies of file search reports from the Uniform Commercial Code filing
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officer in the jurisdiction (i) in which the Subject Property is
located and (ii) in which is located the jurisdiction of incorporation
of the Lessee, setting forth the results of such Uniform Commercial
Code file searches.
(o) Property Survey. On or prior to such Acquisition
Date, the Lessee shall have delivered to each Participant and the
Administrative Agent a 1999 ALTA/ACSM Survey of the Subject Property
certified to each Participant and the Administrative Agent and the
title company and otherwise in form and substance acceptable to such
Persons.
(p) Title Insurance. On or prior to such Acquisition
Date, the Lessee shall have delivered to the Administrative Agent and
the Lessor an ALTA (or, as the case may be, CLTA) owners and ALTA (or,
as the case may be, CLTA) lenders title insurance policy covering the
Subject Property in favor of the Lessor and the Administrative Agent,
respectively, such policies to be in an amount not less than the
Property Cost of the Subject Property, and to be reasonably
satisfactory to the Lessor and the Administrative Agent with
alternative estates endorsements and such other customary endorsements
and affirmative assurances issued by the title company as a routine
matter (including, without limitation ALTA Form 3.1 (with Parking),
ALTA Form 6.2, ALTA Form 9, a survey endorsement, an endorsement
deleting the standard exceptions, and an endorsement regarding
recharacterization), to the extent reasonably available in the state
where the Subject Property is located.
(q) No Default. There shall not have occurred and be
continuing any Default or Event of Default under any of the Operative
Documents, and no Default or Event of Default under any of the
Operative Documents will have occurred after giving effect to the
acquisition of the Subject Property.
(r) Opinion of Counsel and of Local Counsel to the
Lessee. Each Participant and the Administrative Agent shall have
received an opinion of counsel qualified with respect to the laws of
the jurisdiction in which the Subject Property is situated, addressed
to such Persons and in form and substance satisfactory to the
Administrative Agent and each Participant.
(s) Plans and Specifications. On or prior to July 22,
2003, the Lessor and the Administrative Agent shall have received
copies of the Plans and Specifications for the Subject Property,
certified by the Lessee to be a true, correct and complete copy thereof
as in effect on such Acquisition Date.
(t) Good Standing Certificates. The Lessee and the Lessor
shall have delivered to each Participant and the Administrative Agent a
certificate of good standing (or its equivalent) to the effect that the
Lessee and the Lessor are qualified to do business in the jurisdiction
where the Subject Property is located.
(u) Cash Collateral. On or prior to such Acquisition
Date, there shall have been delivered to the Administrative Agent the
Cash Collateral and the Cash Collateral Documents in form and substance
satisfactory to the Administrative Agent and the
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Participants, together with a completed Form FR U-1 and any other
documents which the Administrative Agent may reasonably require in
connection with the Cash Collateral.
(v) Additional Matters. On such Acquisition Date each
Participant and the Administrative Agent shall have received such
additional documents and instruments related to the acquisition and
financing of the Subject Property as any of them shall reasonably
request in order to establish the rights and interests of the
Administrative Agent and each Participant intended to be created under
the Operative Documents in respect of the Subject Property and the Cash
Collateral.
Section 6.2. Delivery of Documents. All documents and instruments
required to be delivered pursuant to this Article VI shall be delivered at the
offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or
at such other location as may be determined by the Lessor, the Administrative
Agent and the Lessee.
ARTICLE VII
DISTRIBUTIONS
Section 7.1. Basic Rent. Each payment of Basic Rent (and any payment of
interest on overdue installments of Basic Rent) received by the Administrative
Agent shall be distributed by the Administrative Agent, first, to the Lessor and
the Lenders pro rata without priority of one over the other for application to,
the Lender Basic Rent and Lessor Basic Rent respectively, then due, and, second,
to the Lenders and the Lessor pro rata without priority of one over the other
for application to any overdue interest or Yield (to the extent permitted by
Applicable Law).
Section 7.2. Purchase Payments by the Lessee. Any payment received by
the Administrative Agent as a result of:
(a) the purchase of all of the Properties in connection
with the exercise of the Purchase Option under Section 18.1 of the
Master Lease, or compliance with the obligation to purchase (or cause
its designee to purchase) all of the Properties in accordance with
Section 18.2 or 18.3 of the Master Lease, or
(b) compliance with the obligation to purchase all of the
Properties in accordance with Section 16.2(f) of the Master Lease, or
(c) failure to fulfill one or more of the conditions to
the exercise of the Remarketing Option with respect to any Property
pursuant to Section 20.1 of the Master Lease and the receipt by the
Lessor of the Lease Balance pursuant to the last paragraph of Section
20.2 of the Master Lease, or
(d) the payment of the Property Balance with respect to
any Property in accordance with Article XV or XVIII of the Master
Lease,
shall be distributed by the Administrative Agent to the Participants pro rata
without priority of one over the other, in the proportion that the Participant
Balance of each bears to the aggregate of
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all of the Participant Balances provided that if there is a shortfall in payment
of any such amount, the Lenders shall be paid in full prior to any payment to
the Lessor.
Section 7.3. Payment of Maximum Recourse Amounts. The payment of the
Maximum Recourse Amount to the Administrative Agent pursuant to Section 20.2(f)
of the Master Lease upon the exercise of the Remarketing Option shall be
distributed to the Lenders holding Series A Notes for application to the
outstanding principal amount of the Series A Notes.
Section 7.4. Sales Proceeds of Remarketing of the Properties. Any
payments received by the Administrative Agent as proceeds from the sale of each
Property sold pursuant to the exercise of the Remarketing Option pursuant to
Article XX of the Master Lease, together with any payment made as a result of an
End of Term Report pursuant to Section 13.2 and any amounts in excess of the
Maximum Recourse Amount (other than amounts in respect of accrued and unpaid
Rent) received by the Administrative Agent pursuant to Section 20.2(f) of the
Master Lease, shall be distributed by the Administrative Agent in the funds so
received in the following order of priority:
first, to the Lenders holding Series B Notes, an amount equal
to the aggregate principal amount of the Series B Notes then
outstanding with respect to such Property for application to the
outstanding principal amount of Series B Notes of each such Lender, pro
rata among such Lenders without priority of one over the other in the
proportion that the outstanding principal amount of Series B Notes of
each such Lender bears to the aggregate outstanding principal amount of
Series B Notes and, in the case where the amounts so distributed shall
be insufficient to pay in full as aforesaid, then pro rata among the
Lenders without priority of one over the other in the proportion that
the outstanding principal amount of Series B Notes of each such Lender
bears to the aggregate outstanding principal amount of Series B Notes;
second, to the extent not previously paid as required by
Section 7.3 hereof, an amount equal to the Maximum Recourse Amount
shall be distributed to the Lenders holding Series A Notes as set forth
in Section 7.3;
third, an amount equal to the aggregate Lessor Balance shall
be distributed to the Lessor for application to pay in full the Lessor
Balance; and
fourth, the balance, if any, shall be promptly paid to the
Lessee as provided in Section 20.5 of the Master Lease.
Section 7.5. Supplemental Rent. All payments of Supplemental Rent
received by the Administrative Agent (excluding any amounts payable pursuant to
the preceding provisions of this Article VII) shall be distributed promptly by
the Administrative Agent upon receipt thereof to the Persons entitled thereto
pursuant to the Operative Documents.
Section 7.6. Distribution of Payments after Lease Event of Default. (a)
During the continuance of a Lease Event of Default and subject to clause (b)
below, all proceeds from the
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sale of the Properties shall be distributed by the Administrative Agent in the
following order of priority:
first, so much of such payment or amount as shall be required
to pay or reimburse the Administrative Agent for any tax, fees,
expense, indemnification or other loss incurred by the Administrative
Agent (to the extent incurred in connection with any duties as the
Administrative Agent), shall be distributed to the Administrative
Agent;
second, so much of such payments or amounts as shall be
required to pay the Participants the amounts payable to them pursuant
to any expense reimbursement or indemnification provisions of the
Operative Documents shall be distributed to each such Participant
without priority of one over the other in accordance with the amount of
such payment or payments payable to each such Person;
third, to the Lenders for application to pay in full the Loan
Balance, pro rata among the Lenders without priority of one over the
other in the proportion that the Participant Balance of each such
Lender bears to the aggregate Participant Balances of all Lenders and,
in the case where the amounts so distributed shall be insufficient to
pay in full as aforesaid, then pro rata among the Lenders without
priority of one over the other in the proportion that the Participant
Balance of each such Lender bears to the aggregate Participant Balances
of all Lenders;
fourth, an amount equal to the Lessor Balance shall be
distributed to the Lessor for application to pay in full the Lessor
Balance;
fifth, to the Participants and the Administrative Agent for
any other amounts payable to them under the Operative Documents, pro
rata based on the amounts payable; and
sixth, the balance, if any, of such payment or amounts
remaining thereafter shall be promptly distributed to, or as directed
by, the Lessee.
(b) All payments received and amounts realized by the
Administrative Agent in connection with any Casualty or Condemnation during the
continuance of a Lease Event of Default shall be distributed by the
Administrative Agent as follows:
(i) in the event that the Lessor and the Administrative
Agent elect to pay all or a portion of such amounts to the Lessee for
the repair of damage caused by such Casualty or Condemnation in
accordance with Section 14.2 of the Master Lease, then such amounts
shall be distributed to the Lessee, and
(ii) in the event that the Lessor and the Administrative
Agent elect to apply all or a portion of such amounts to the purchase
price of the related Property in accordance with Section 14.2 and
Article XV of the Master Lease, then such amounts shall be distributed
in accordance with clause (a).
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(c) All amounts (other than amounts described in clause (a) or (b)
above) received by the Administrative Agent during the continuance of a Lease
Event of Default, including, without limitation, the Cash Collateral, shall be
distributed by the Administrative Agent as follows:
first, so much of such payment or amount as shall be required
to pay or reimburse the Administrative Agent for any tax, fees,
expense, indemnification or other loss incurred by the Administrative
Agent (to the extent incurred in connection with any duties as the
Administrative Agent), shall be distributed to the Administrative
Agent;
second, so much of such payments or amounts as shall be
required to pay the Participants the amounts payable to them pursuant
to any expense reimbursement or indemnification provisions of the
Operative Documents shall be distributed to each such Lender and the
Lessor without priority of one over the other in accordance with the
amount of such payment or payments payable to each such Person;
third, to the Lenders for application to pay in full the Loan
Balance, pro rata among the Lenders without priority of one over the
other in the proportion that the Participant Balance of each such
Lender bears to the aggregate Participant Balances of all Lenders and,
in the case where the amounts so distributed shall be insufficient to
pay in full as aforesaid, then pro rata among the Lenders without
priority of one over the other in the proportion that the Participant
Balance of each such Lenders bears to the aggregate Participant
Balances of all Lenders;
fourth, to the Lessor in an amount equal to the Lessor Balance
shall be distributed to the Lessor for application to the Lessor
Balance;
fifth, to the Participants and the Administrative Agent for
any other amounts payable to them under the Operative Documents, pro
rata based on the amounts payable; and
sixth, the balance, if any, of such payment or amounts
remaining thereafter shall be promptly distributed to, or as directed
by, the Lessee.
Section 7.7. Casualty and Condemnation Amounts. Subject to Section
7.6(b), any amounts payable to the Administrative Agent as a result of a
Casualty or Condemnation pursuant to Section 14.2 of the Master Lease and the
Assignment of Lease and Rent shall be distributed as follows:
(a) all amounts payable to the Lessee in accordance with
Section 14.2(a) of the Master Lease shall be distributed to the Lessee,
and
(b) all amounts that are to be applied to the purchase
price of the related Property in accordance with Section 14.2(a) and
Article XV of the Master Lease shall be distributed by the
Administrative Agent to the Lenders and the Lessor pro rata without
priority of one over the other, in the proportion that the Participant
Balance of each bears to the aggregate of all of the Participant
Balances.
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Section 7.8. Other Payments. (a) Except as otherwise provided in
Sections 7.1, 7.2, 7.6 and clause (b) below, any payment received by the
Administrative Agent for which no provision as to the application thereof is
made in the Operative Documents or elsewhere in this Article VII (including any
balance remaining after the application in full of amounts to satisfy any
expressed provision) shall be distributed pro rata among the Participants
without priority of one over the other, in the proportion that the Participant
Balance of each bears to the aggregate of all the Participant Balances.
(b) Except as otherwise provided in Sections 7.1, 7.2 and 7.6, all
payments received and amounts realized by the Administrative Agent or the Lessor
under the Master Lease or otherwise with respect to the Properties to the extent
received or realized at any time after the indefeasible payment in full of the
Participant Balances of all of the Participants and any other amounts due and
owing to the Participants, shall be distributed forthwith by the Administrative
Agent or the Lessor, as the case may be, in the order of priority set forth in
Section 7.6(a).
(c) Except as otherwise provided in Sections 7.1 and 7.2, any
payment received by the Administrative Agent or the Lessor for which provisions
as to the application thereof is made in an Operative Document but not elsewhere
in this Article VII shall be distributed forthwith by the Lessor or the
Administrative Agent to the Person and for the purpose for which such payment
was made in accordance with the terms of such Operative Document.
Section 7.9. Order of Application. To the extent any payment made to
any Participant pursuant to Sections 7.2, 7.3, 7.4, 7.6, 7.7, 7.8 or 7.9 is
insufficient to pay in full the Participant Balance of such Participant, then
each such payment shall first be applied to accrued interest or Yield and then
to principal of the Loans or the Lessor Amounts, as applicable.
Section 7.10. Payments to Account. All payments made to the
Administrative Agent pursuant to the Operative Documents shall be made to the
Account.
ARTICLE VIII
REPRESENTATIONS
Section 8.1. Representations of the Lenders. Each Lender represents and
warrants to the other parties hereto that:
(a) Source of Funds. Such Lender is not and will not be
making its Loans hereunder, and is not performing its obligations under
the Operative Documents, with the assets of an "employee benefit plan"
(as defined in Section 3(3) of ERISA) or "plan" (as defined in Section
4975(e)(1) of the Code).
(b) Acquisition for Investment. Each Lender is
participating in the Transactions for its own account and not with a
view toward redistribution; provided that disposition of its rights
hereunder shall remain in its control and the foregoing shall not
affect the ability of any Lender to assign or sell participations in
its rights in accordance with the Operative Documents.
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Section 8.2. Representations of the Lessee. The Lessee hereby
represents and warrants to the other parties hereto that:
(a) Corporate Existence and Power. The Lessee is duly
incorporated and validly existing in good standing under the laws of
the jurisdiction of its incorporation, is duly qualified and in good
standing as a foreign corporation in the state where the Properties are
located and each other jurisdiction in which the character of the
properties owned or leased by it or the nature of the business
transacted by it is such that failure to maintain such qualification
has resulted or could result in a Material Adverse Effect, and has all
corporate powers and all governmental licenses, authorizations,
consents and approvals required to carry on its business as now
conducted.
(b) Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Lessee of
this Participation Agreement and the other Operative Documents to which
it is a party (i) are within the Lessee's corporate powers and have
been duly authorized by all necessary corporate action, (ii) require no
action by or in respect of, or filing with, any Governmental Authority
and (iii) do not contravene any Requirement of Law or any contractual
restriction, order, decree or other instrument binding upon the Lessee
or any of its Subsidiaries, except, in the case of clauses (ii) and
(iii) above, any such action, filing or contravention which has not
resulted in or could not result in a Material Adverse Effect.
(c) Binding Effect. This Participation Agreement and each
other Operative Document to which the Lessee is a party has been duly
executed and delivered by the Lessee and constitutes a legal, valid and
binding agreement of the Lessee enforceable in accordance with its
terms, except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (ii)
general principles of equity (regardless of whether such enforceability
is considered in a proceeding at law or in equity).
(d) Litigation. There is no action, suit or proceeding
pending against, or to the knowledge of the Lessee threatened against
or affecting the Lessee before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable
possibility of an adverse decision which could have a Material Adverse
Effect and the Lessee does not have any material contingent obligations
not provided for or disclosed in the financial statements referred to
in Section 8.2(q) hereof.
(e) Margin Stock. The Lessee is not engaged in the
business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System), and no proceeds of any
Advance will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin
stock.
(f) Use of Proceeds. The proceeds of each Advance will be
used only for the purpose of financing the acquisition of the
applicable Property and the payment of Transaction Expenses incurred in
connection therewith.
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(g) Compliance with Law. The Lessee is in compliance in
all material respects with all Applicable Laws, including, without
limitation, environmental protection laws, ERISA and the Occupational
Health and Safety Act, except where the failure to so comply would not
have a Material Adverse Effect.
(h) Information. All information relating to the Lessee
and the Properties heretofore furnished by the Lessee to the
Participants and any Appraiser for purposes of or in connection with
this Participation Agreement and the other Operative Documents or any
transaction contemplated hereby or thereby is, and all such information
hereafter furnished by the Lessee to the Participants and any such
Appraiser will be, true and accurate in all material respects and does
not and will not omit to state any material fact or any fact necessary
to make the statements contained therein not misleading.
(i) Investment Company. The Lessee is not an "investment
company", or a company "controlled" by an "investment company", within
the meaning of the Investment Company Act of 1940, as amended.
(j) Liens. The Lessor Mortgage with respect to each
Property creates, or upon its execution will create, a valid security
interest in and mortgage lien on such Property purported to be covered
thereby, and upon recordation of such Lessor Mortgage and the filing of
the Lessor Financing Statements relating to such Property, such
security interest and mortgage lien will constitute perfected security
interests and mortgage liens, prior to all Liens other than Permitted
Property Liens.
(k) Offer of Securities, etc. Neither the Lessee, nor any
Person authorized to act on its behalf has, directly or indirectly, (i)
offered any interest in the Properties (or, if such sale or offer would
be integrated with the sale or offer of such interest in the
Properties, any other interest similar thereto) for sale to any Person
or (ii) solicited from any Person any offer to acquire any interest in
the Properties (or any such other interest), in either case in
violation of the Securities Act.
(l) Properties. Except as disclosed on Exhibit 8.2(l)
attached hereto, each Property and the contemplated use thereof by the
Lessee and its agents, assignees, employees, lessees, sublessees,
licensees, tenants and subtenants shall be in material compliance with
all Requirements of Law (including, without limitation, all zoning and
land use laws and Environmental Laws) and Insurance Requirements,
except for such Requirements of Law as it shall be contesting in good
faith by appropriate proceedings. There is no action, suit or
proceeding (including any proceeding in condemnation or eminent domain
or under any Environmental Law) pending or, to Lessee's knowledge,
threatened with respect to it, or any Property that materially
adversely affects the title to, or the use, operation or value of, such
Property.
(m) Deed. With respect to the acquisition of a Property
on the applicable Acquisition Date, the Deed for such Property will be
sufficient to convey good and marketable title to such Property
(subject only to Permitted Property Liens) to the Lessor.
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(n) Insurance. The Lessee has, on or before the
applicable Acquisition Date, obtained insurance coverage covering each
Property that meets the requirements set forth in Article XIII of the
Master Lease and such coverage is in full force and effect.
(o) Flood Hazard Areas. Except as otherwise identified on
the applicable survey, plat or map with respect to a Property delivered
pursuant to Section 6.1(o), no portion of any Property will be located
within an area identified as a special flood hazardous area by the
Federal Emergency Management Agency.
(p) Solvency. The Lessee is Solvent.
(q) Financial Statements. The June 30, 2002 annual
financial statements of the Lessee and its Consolidated Subsidiaries
and the March 30, 2003 quarterly financial statements of the Lessee and
its Consolidated Subsidiaries were prepared in accordance with GAAP and
fairly present the financial condition of the Lessee and its
Consolidated Subsidiaries at such date and the results of their
operations for the period then ended.
(r) Material Adverse Change. Since March 30, 2003, there
has been no change in the business, properties, condition (financial or
otherwise) or results of operations of the Lessee and its Consolidated
Subsidiaries which could reasonably be expected to have a Material
Adverse Effect.
(s) Taxes. The Lessee has filed all United States federal
income tax returns and all other material tax returns which are
required to be filed and have paid all taxes due pursuant to said
returns or pursuant to any assessment received by the Lessee, except
such taxes, if any, as are being contested in good faith and as to
which adequate reserves have been provided. No material tax liens have
been filed and no material claims are being asserted with respect to
any such taxes. The charges, accruals and reserves on the books of
Lessee in respect of any taxes or other governmental charges are
adequate.
(t) ERISA. No member of the Controlled Group has
incurred, or is reasonably expected to incur, any withdrawal liability
to Multiemployer Plans in excess of $15,000,000 in the aggregate. Each
Plan complies in all material respects with all applicable requirements
of law and regulations, no Reportable Event has occurred with respect
to any Plan, no member of the Controlled Group has withdrawn from any
Plan or initiated steps to do so, and no steps have been taken to
reorganize or terminate any Plan.
(u) Material Agreements. The Lessee is not a party to any
agreement or instrument or subject to any charter or other corporate
restriction which could reasonably be expected to have a Material
Adverse Effect. The Lessee is not in default in the performance,
observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which
default could reasonably be expected to have a Material Adverse Effect
or (ii) any agreement or instrument evidencing or governing any
Indebtedness or Off-Balance Sheet Obligations with an outstanding
principal amount (or implied or attributed principal amount) in excess
of $15,000,000.
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▇▇▇ Research Corporation Participation Agreement
(v) Environmental Matters. In the ordinary course of its
business, the Lessee conducts an ongoing review of the effect of
Environmental Laws on the business, operations and properties of the
Lessee, in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or
operating expenditures required for clean-up or closure of properties
presently or previously owned, any capital or operating expenditures
required to achieve or maintain compliance with environmental
protection standards imposed by law or as a condition of any license,
permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or
reduction in the level of or change in the nature of operations
conducted thereat, any costs or liabilities in connection with off-site
disposal of wastes or hazardous substances, and any actual or potential
liabilities to third parties, including employees, and any related
costs and expenses). On the basis of this review, the Lessee has
concluded that such associated liabilities and costs, including the
costs of compliance with Environmental Laws, would not reasonably be
expected to have a Material Adverse Effect.
Section 8.3. Representations of the Lessor. The Lessor warrants and
represents to the other parties hereto that:
(a) The Lessor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Ohio and
has all requisite corporate power and authority to execute, deliver and
perform its obligations under the Operative Documents to which it is a
party.
(b) The Operative Documents to which it is, or will be, a
party have been duly authorized by all requisite corporate action, have
been duly executed and delivered by the Lessor, and constitute, and
each other Operative Document to which the Lessor is a party when
executed and delivered by the Lessor will constitute, the valid and
binding obligations of the Lessor enforceable against the Lessor in
accordance with the respective terms thereof, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and (ii) general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(c) Neither the execution and delivery of the Operative
Documents, the consummation of the transactions contemplated thereby
nor the fulfillment of or compliance with the provisions thereof will
require consent, approval, authorization, filing, registration or
qualification under or conflict with or violate any Applicable Law
applicable to the Lessor or any of its property, except as contemplated
by the Operative Documents.
(d) There are no Lessor Liens attributable to the Lessor
on the Collateral, the Properties or any part thereof.
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▇▇▇ Research Corporation Participation Agreement
(e) The Lessor is not and will not be funding its Lessor
Amounts hereunder with the assets of an "employee benefit plan" (as
defined in Section 3(3) of ERISA) or "plan" (as defined in Section
4975(e)(1) of the Code).
(f) The Lessor is participating in the Transactions for
its own account and not with a view toward redistribution; provided
that disposition of its rights hereunder shall remain in its control
and the foregoing shall not affect the ability of the Lessor to assign,
transfer or sell participations in its rights in accordance with the
Operative Documents.
(g) There are no actions or proceedings pending, or to
the knowledge of the Lessor, threatened, against or affecting the
Lessor in or before any Governmental Authority which, if adversely
determined, would materially and adversely affect the ability of the
Lessor to enter into or perform the Operative Documents to which it is
a party.
ARTICLE IX
PAYMENT OF CERTAIN EXPENSES
The Lessee agrees, for the benefit of the Arranger, the Lessor, the
Administrative Agent and the Lenders, that:
Section 9.1. Transaction Expenses. (a) The Lessee shall pay, or cause
to be paid, from time to time all Transaction Expenses in respect of the
transactions on the Documentation Date and each Acquisition Date. The Lessor
shall deliver or cause to be delivered to the Lessee written invoices therefor
at least one (1) Business Day prior to the Documentation Date or such
Acquisition Date, as applicable.
(b) The Lessee shall pay or cause to be paid (i) all Transaction
Expenses incurred by the Lessor, the Administrative Agent or the Lenders in
entering into any future amendments or supplements with respect to any of the
Operative Documents, whether or not such amendments or supplements are
ultimately entered into, or giving or withholding of waivers or consents hereto
or thereto, (ii) all Transaction Expenses incurred by the Lessor, the
Administrative Agent or the Lenders in connection with the purchase of any
Property by the Lessee or other Person pursuant to Articles XV, XVIII and XXI of
the Master Lease, (iii) all Transaction Expenses incurred by any of the Lenders,
the Lessor or the Administrative Agent in respect of enforcement of any of their
rights or remedies in respect of the Operative Documents and (iv) all
Transaction Expenses incurred by the Lessor, the Administrative Agent and the
Lenders in connection with the negotiation and documentation of any
restructuring or "workout", whether or not consummated, of any Operative
Document.
Section 9.2. Brokers' Fees and Stamp Taxes. The Lessee shall pay or
cause to be paid any brokers' fees for which the Lessee is responsible pursuant
to Section 15.2 below and any and 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 Participation Agreement
and the other Operative Documents.
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▇▇▇ Research Corporation Participation Agreement
Section 9.3. Loan Agreement and Related Obligations. If a Lease Event
of Default has occurred and is continuing, the Lessee shall pay, without
duplication of any other obligation of the Lessee to pay any such amount under
the Operative Documents, before the due date thereof, all costs, expenses and
other amounts (other than principal and interest on the Loans which are payable
to the extent otherwise required by the Operative Documents) required to be paid
by the Lessor, the Administrative Agent or any of the Lenders under the Loan
Agreement and the Assignment of Lease and Rent.
ARTICLE X
OTHER COVENANTS AND AGREEMENTS
Section 10.1. Covenants of the Lessee. The Lessee hereby covenants and
agrees with the Lessor, the Lenders and the Administrative Agent that it shall
comply with the following provisions of this Section 10.1, it being understood
that the following covenants are in addition to, and not by way of limitation
of, any covenant set forth in the Lease or any other Operative Document.
(a) Financial Reporting. The Lessee will maintain, for
the Lessee and each of its Subsidiaries, a system of accounting
established and administered in accordance with GAAP, and furnish to
the Lessor, the Administrative Agent and each Lender:
(i) Within ninety (90) days after the close of
each of the Lessee's fiscal years, an unqualified audit report
certified by independent certified public accountants of
recognized national standing selected by the Lessee, prepared
in accordance with generally accepted accounting principles on
a consolidated basis for the Lessee and its Consolidated
Subsidiaries, including a consolidated balance sheet as of the
end of such period and related consolidated statements of
earnings and cash flows;
(ii) Within forty-five (45) days after the close
of each of the first three quarterly periods of each of the
Lessee's fiscal years, for the Lessee and the Consolidated
Subsidiaries, an unaudited consolidated balance sheet as at
the close of such period and a consolidated statement of
earnings and cash flows for the period from the beginning of
such fiscal year to the end of such quarter, all certified,
subject to year-end audit adjustments, by an Authorized
Officer;
(iii) Together with the financial statements
required pursuant to clauses (i) and (ii) above, a compliance
certificate in substantially the form of Exhibit E hereto
signed by an Authorized Officer showing the calculations
necessary to determine compliance with Sections 10.1(j), (k)
and (l) of this Participation Agreement and stating that no
Lease Default or Lease Event of Default exists, or if any
Lease Default or Lease Event of Default exists, stating the
nature and status thereof;
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▇▇▇ Research Corporation Participation Agreement
(iv) Promptly upon the furnishing thereof to the
shareholders of the Lessee, copies of all financial
statements, reports and proxy statements so furnished;
(v) Promptly upon the filing thereof, copies of
all registration statements and annual, quarterly or other
regular reports which the Lessee or any of its Subsidiaries
files with the Securities and Exchange Commission;
(vi) If and when the Lessee or any member of the
Controlled Group (A) gives or is required to give notice to
the PBGC of any Reportable Event with respect to any Plan
which would constitute grounds for a termination of such Plan
under ERISA, or knows that the plan administrator of any Plan
has given or is required to give notice of any Reportable
Event, (B) receives notice of complete or partial withdrawal
liability under Title IV of ERISA, (C) receives notice that
any Multiemployer Plan is in reorganization under Section 4242
of ERISA or may become insolvent under Section 4245 of ERISA,
or (D) receives notice from the PBGC that it will institute
proceedings asserting liability under Title IV of ERISA or to
terminate a Plan under Section 4042 of ERISA or will apply to
the appropriate United States District Court to seek the
appointment of a trustee to administer any Plan, then, in each
such event, copies of such notice given, required to be given
or received, as the case may be; and
(vii) Promptly after receipt of a request
therefor, such other information (including non-financial
information) as the Lessor, the Administrative Agent or any
Lender may from time to time reasonably request.
The Lessee shall be deemed to be in compliance if the information
required by Sections 10.1(a)(i), (ii) and (v) is available on "▇▇▇▇▇"
within the time period specified, and such delivery shall satisfy the
Lessee's obligations under such Sections.
(b) Use of Proceeds. The proceeds of the Advances made
under this Participation Agreement will be used to acquire the
Properties and to pay Fees and Transaction Expenses. None of such
proceeds will be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of buying or carrying any "margin
stock" within the meaning of Regulation U.
(c) Notice of Default. Promptly after any Authorized
Officer of the Lessee becomes aware of the occurrence of any Lease
Default or Lease Event of Default, the Lessee will give notice in
writing to the Lessor and the Administrative Agent of the occurrence of
such Lease Default or Lease Event of Default.
(d) Existence. The Lessee will, and will cause each of
its Subsidiaries to, do all things necessary to remain duly
incorporated or otherwise organized, validly existing and (to the
extent applicable) in good standing in its jurisdiction of
incorporation or organization and maintain all requisite authority to
conduct its business in each jurisdiction in which the character of the
properties owned or leased by it therein or in
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▇▇▇ Research Corporation Participation Agreement
which the transaction of its business is such that failure to maintain
such authority has resulted or could result in a Material Adverse
Effect; provided, however, that the existence of any Subsidiary may be
terminated and any right, franchise or license of any Subsidiary may be
terminated or abandoned if in the good faith judgment of the
appropriate officer or officers of the Lessee, such termination or
abandonment is in its best interest and is not materially
disadvantageous to the Lessor or the Lenders.
(e) Taxes. The Lessee will, and will cause each of its
Subsidiaries to, pay when due all material taxes, assessments and
governmental charges and levies upon it or its income, profits or
property, except those which are being contested in good faith by
appropriate proceedings diligently conducted (or, in the case of any
such tax, those the payment of which can be delayed without penalty)
and with respect to which adequate reserves have been set aside.
(f) Insurance. Without limiting the provisions of Article
XIII of the Master Lease, the Lessee will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable
insurance companies, insurance on its property in such amounts and
covering such risks of loss of a character usually insured by
corporations of comparable size and financial strength and with
comparable risks.
(g) Compliance with Laws. The Lessee will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations,
orders, writs, judgments, injunctions, decrees or awards to which it
may be subject (including, without limitation, all laws, rules or
regulations under ERISA and all environmental laws and regulations)
which, if violated, could reasonably be expected to have a Material
Adverse Effect.
(h) Inspection. The Lessee will, and will cause each of
its Subsidiaries to, permit the Lessor and the Lenders, by their
respective representatives and agents, to inspect at all reasonable
times, and at the risk and expense of the inspecting party (so long as
no Lease Event of Default shall have occurred and be continuing and
thereafter at the Lessee's risk and expense), any of the corporate
books and financial records of the Lessee and each of its Subsidiaries,
to examine and make copies of the books of accounts and other financial
records of the Lessee and each of its Subsidiaries, and to discuss the
affairs, finances and accounts of the Lessee and each of its
Subsidiaries with, and to be advised as to the same by, their
respective officers at such reasonable times and intervals as the
Lessor and the Lenders may designate.
(i) Consolidations, Mergers, Dissolution and Sale of
Assets. The Lessee will not sell, lease, transfer or otherwise dispose
of all or substantially all of its assets (whether by a single
transaction or a number of related transactions and whether at one time
or over a period of time) or to dissolve or to consolidate with or
merge into any Person or permit any Person to merge into it, except
that the Lessee may consolidate with or merge into, any other Person,
or permit another Person to merge into it so long as (i) the Lessee
shall be the continuing or surviving Person, (ii) immediately after
such merger or consolidation or sale, there shall not exist any Lease
Default or Lease Event of Default, and (iii) the Lessee shall deliver a
certificate or other evidence showing that it is
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▇▇▇ Research Corporation Participation Agreement
in pro forma compliance with the covenants set forth in Sections
10.1(j), (k) and (l) as of the effective date of such merger or
consolidation or sale after giving effect thereto.
(j) Liens. The Lessee will not, and will not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien in or on (x) any Property, except Permitted Property Liens, and
(y) any of its other properties or assets, except:
(i) Liens existing on the Documentation Date;
(ii) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain
payable without penalty or which are being contested in good
faith by appropriate proceedings which will prevent the sale
or forfeiture of any property of the Lessee or such Subsidiary
or any material interference with the use thereof by the
Lessee or such Subsidiary and as to which the Lessee or such
Subsidiary has set aside on its books reserves deemed by it to
be adequate with respect thereto;
(iii) Carrier's, warehousemen's, mechanics',
landlords', materialmen's, repairmen's, or other similar Liens
arising in the ordinary course of business which are not
delinquent or remain payable without penalty or which are
being contested in good faith by appropriate proceedings which
will prevent the sale or forfeiture of any property of the
Lessee or such Subsidiary or any material interference with
the use thereof by the Lessee or such Subsidiary and as to
which the Lessee or such Subsidiary has set aside on its books
reserves deemed by it to be adequate with respect thereto;
(iv) Liens (other than any Lien imposed by ERISA)
consisting of pledges or deposits required in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other social security legislation;
(v) Liens on the property of the Lessee securing
(a) the non-delinquent performance of bids, trade contracts
(other than for borrowed money), leases, statutory
obligations, (b) contingent obligations on surety and appeal
bonds, and (c) other non-delinquent obligations of a like
nature; in each case, incurred in the ordinary course of
business;
(vi) Liens on the property or assets of any
Person which becomes a Subsidiary of the Lessee or which is
merged into the Lessee in a manner consistent with Section
10.1(i) above, after the Documentation Date; provided that (a)
such Liens exist at the time such Person is acquired by or
merged into the Lessee and (b) such Liens were not created in
contemplation of such acquisition by or merger into the
Lessee;
(vii) Judgment Liens, provided that such Liens do
not have a value in excess of $15,000,000 or such Liens are
released, stayed, vacated or otherwise
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▇▇▇ Research Corporation Participation Agreement
dismissed within sixty (60) days after issue or levy and, if
so stayed, such stay is not thereafter removed;
(viii) Rights of vendors or lessors under
conditional sale agreements, Capitalized Leases or other title
retention agreements (including synthetic leases) entered into
after the Documentation Date, provided that, in such case, (a)
such rights secure or otherwise relate to the Lessee's
obligations arising therefrom, (b) such rights do not extend
to any property other than property acquired or leased with
the proceeds of such obligations (other than cash pledged to
secure obligations under synthetic leases), and (c) both
immediately before and after giving effect to any such Lien,
the Lessee shall be in compliance with Section 10.1(k) below;
(ix) Liens on the property or assets of any
Subsidiary of the Lessee in favor of the Lessee or any other
Subsidiary of the Lessee;
(x) Liens to secure Indebtedness of the type
described in clauses (vi) and (vii) of the definition of
"Indebtedness", entered into by the Lessee with respect to
obligations otherwise permitted under Section 10.1(k) below;
(xi) Liens created after the Documentation Date
on Japanese Assets to secure a Yen-Denominated Facility;
(xii) Liens on accounts receivable created in
connection with a transaction permitted by Section 10.1(l) not
to exceed $100,000,000 at any one time; and
(xiii) Liens in addition to the Liens permitted by
clauses (i) through (xii) above securing additional
obligations of the Lessee permitted under Section 10.1(k)
below of up to $20,000,000 annually and $50,000,000 in the
aggregate.
(k) Minimum Cash. The Lessee shall at all times during
the Lease Term maintain unrestricted cash balances plus Short Term
Investments in an amount equal to the sum of $50,000,000, plus the
outstanding non-cash collateralized (i) notional amount of senior
Indebtedness, (ii) notional amount of subordinated Indebtedness, (iii)
recourse portions of Off-Balance Sheet Obligations, (iv) Guaranties (to
the extent not included in clauses (i), (ii) and (iii) above and
excluding from this clause (iv) any Guaranties constituting standby
letters of credit (which are covered by clause (v) below)), and (v)
standby letters of credit of the Lessee and its Subsidiaries to the
extent of amounts in excess of $5,000,000, but excluding from this
clause (v) any standby letters of credit securing obligations of the
types described in Sections 10.1(j)(iv) and (v) (other than leases)
arising in the ordinary course of business of the Lessee and its
Subsidiaries.
(l) Sale of Receivables. The Lessee will not, and will
not permit any of its Subsidiaries to, sell or otherwise transfer any
of its accounts receivable; provided that the
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▇▇▇ Research Corporation Participation Agreement
Lessee and its Subsidiaries may sell accounts receivable on a
limited-recourse basis under any receivables purchase agreement in an
amount not to exceed $100,000,000 at any one time. For purposes of this
Section 10.1(l), "limited-recourse" means that, on an aggregate basis,
recourse is limited to less than 20% of the notional amount of the
aggregate accounts receivable so sold.
(m) Transactions with Affiliates. The Lessee will not,
and will not permit any Subsidiary to, directly or indirectly, pay any
amount of funds to or for the account of, make any investment (whether
by acquisition of stock or indebtedness, by loan, advance, transfer of
property, guarantee or other agreement to pay, purchase or service,
directly or indirectly, any Indebtedness, or otherwise) in, lease,
sell, transfer or otherwise dispose of any assets, tangible or
intangible, to, or participate in, or effect, any transaction with, any
Affiliate except on an arms-length basis on terms at least as favorable
to the Lessee or such Subsidiary as would have been obtained from a
third party who was not an Affiliate.
(n) Further Assurances. The Lessee, at its cost and
expense, will cause to be promptly and duly taken, executed,
acknowledged and delivered all such further acts, documents and
assurances as the Lessor, the Administrative Agent or any Lender
reasonably may request from time to time in order to carry our more
effectively the intent and purposes of this Agreement and the other
Operative Documents and the Transactions. The Lessee, at its cost and
expense, will cause all financing statements, fixture filings,
mortgages and other documents, to be recorded or filed at such places
and times in such manner, and will take all such other actions or cause
such actions to be taken, as may be necessary or as may be reasonably
requested by the Administrative Agent, any Lender or the Lessor in
order to establish, preserve, protect and perfect the title and Lien of
the Lessor and/or the Administrative Agent in the Properties and the
Collateral and the Lessor's, the Administrative Agent's and/or any
Lender's rights under this Participation Agreement and the other
Operative Documents.
Section 10.2. [***]
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
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▇▇▇ Research Corporation Participation Agreement
Section 10.3. Covenants of Each Participant. Subject at all times to
the terms and provisions of Section 15.10, each Participant hereby severally
agrees that, until payment in full of the Lease Balance or such other time as
the Master Lease shall have terminated with respect to all of the Properties:
(a) it will not create, incur, assume or suffer to exist
any Lessor Lien attributable to it upon any Property; and
(b) it will, at its own cost and expense, promptly take
such action as may be necessary duly to discharge, or to cause to be
discharged, all Lessor Liens on the Properties attributable to it;
provided that such Participant may contest any such Lessor Lien in good
faith and by appropriate proceedings.
Section 10.4. Release of Properties. (a) If the Lessee shall at any
time (i) purchase any Affected Property pursuant to Section 15.1 of the Lease,
(ii) exercise its Purchase Option with respect to the Properties, or if any or
all of the Properties shall be purchased by the Lessee (or its designees) in
accordance with the Master Lease, and in each case, the Lessee satisfies each of
the obligations and conditions set forth in the Master Lease for the release of
a Property therefrom, then, upon application of the proceeds of any such sale
pursuant to Article VII and all accrued interest, Yield and any other payments
due and owing from the Lessee to the Administrative Agent, the Lenders and the
Lessor on such date pursuant to the Operative Documents, including without
limitation all amounts due and owing pursuant to Article XIII of this
Participation Agreement with respect to such Property or Properties purchased by
the Lessee or its designee, (i) each such Property shall be released from the
Liens created by the Operative Documents (including any Liens created by the
Lease Supplement covering such Property, the Mortgage with respect to such
Property and the Assignment of Lease and Rent) and the Administrative Agent and
the Lessor shall, at the expense of the Lessee, execute and deliver such
instruments as the Lessee may reasonably request to effectuate and evidence such
releases, and (ii) the Lessee shall be entitled to the return of a portion of
the Funds held under the Cash Collateral Pledge Agreement equal to the amount in
excess of the amount then required to be maintained under the terms of Section 4
thereof.
(b) In addition, upon the termination of the Commitments of the
Lenders and the payment in full of all other amounts owing to the Lenders by the
Lessee hereunder or under any other Operative Document, the Properties shall be
released from the Liens created by the Mortgages and the Assignment of Lease and
Rent. Upon request of either the Lessee or the Lessor following any such
release, the Administrative Agent shall, at the sole cost and expense of the
Lessee, execute and deliver to the Lessor or the Lessee, as applicable, such
documents as the Lessee or the Lessor shall reasonably request to effectuate and
evidence such release.
ARTICLE XI
[INTENTIONALLY OMITTED]
ARTICLE XII
TRANSFERS OF PARTICIPANTS' INTERESTS
Section 12.1. Assignments. (a) Each Lender may, with the prior written
consent of the Administrative Agent (which consent shall not be unreasonably
withheld), assign all or a portion of its rights and obligations hereunder
pursuant to an assignment agreement substantially in the form of Exhibit F to
one or more Eligible Lender Assignees (or, if a Lease Event of Default has
occurred and is continuing, to any Person). Each such assignment shall be of a
constant, not varying, percentage of all of the assigning Lender's rights and
obligations under the Operative Documents relating to its Series A Notes and/or
Series B Notes. Any such assignment shall be in
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▇▇▇ Research Corporation Participation Agreement
a minimum aggregate amount of $5,000,000 (or the balance of such Loan Commitment
applicable to its Series A Notes and/or Series B Notes, if less). Any assignment
hereunder shall be effective upon delivery to the Administrative Agent and the
Lessor of written notice of the assignment together with a transfer fee of
$3,500.00 payable by the assignor Lender or the assignee Lender to the
Administrative Agent for its own account. The assigning Lender will give prompt
notice to the Administrative Agent and the Lessee of any such assignment. Upon
the effectiveness of any such assignment, the assignee shall become a "Lender"
for all purposes of the Operative Documents (including all representations,
warranties and covenants which will all be deemed made and agreed to by such
assignee) and, to the extent of such assignment, the assigning Lender shall be
relieved of its obligations hereunder to the extent of the Loans and Commitment
components being assigned. The Administrative Agent agrees that upon notice of
any such assignment and surrender of the appropriate Note or Notes, it will
promptly provide to the assigning Lender and to the assignee Lender separate
promissory notes of the series and in the amount of their respective interests
substantially in the form of the original Note (but with notation thereon that
it is given in substitution for and replacement of the original Note or any
replacement notes thereof). So long as no Lease Event of Default has occurred
and is continuing, Key Corporate Capital Inc. agrees that it will not transfer
or assign its Notes if after giving affect to such transfer or assignment, the
principal amount of Notes held by Key Corporate Capital Inc. plus the Lessor
Amounts held by SELCO Service Corporation would be less than $10,000,000.
(b) The Lessor may, with the prior written consent of the
Administrative Agent (which consent shall not be unreasonably withheld), assign
all of its rights and obligations hereunder pursuant to an assignment agreement
in form and substance reasonably satisfactory to the Lessee and the
Administrative Agent (provided that Lessee's approval shall not be required
during the continuance of a Lease Event of Default) to an Eligible Lessor
Assignee (or, if a Lease Event of Default has occurred and is continuing, to any
Person). Any assignment hereunder shall be effective upon the later of (x)
delivery to the Administrative Agent and the Lessee of written notice of the
assignment and (y) the date on which all required consents thereto shall have
been given (or, if applicable, deemed given). The Lessor will deliver written
notice to the Administrative Agent and the Lessee of any such proposed
assignment at least ten (10) Business Days prior to the proposed date of such
assignment, which notice shall contain the name of the proposed assignee and
financial information with respect thereto sufficient to determine whether such
transferee is an Eligible Lessor Assignee (any such notice, a "Notice of
Proposed Assignment"). To the extent any consents to an assignment are required
hereunder, such consents shall be deemed to have been given if the party
entitled to consent thereto does not object to the proposed transferee within
five (5) Business Days of its receipt of the applicable Notice of Proposed
Assignment. The Lessor shall make such filings and give such notices as shall be
necessary to evidence such assignment in all public offices where filings have
been made under the Operative Documents, and the Lessee and the Administrative
Agent shall cooperate with the Lessor in effecting such filings and notices.
Upon the effectiveness of any such assignment, the assignee shall become the
"Lessor" for all purposes of the Operative Documents and the assignor shall be
relieved of its obligations hereunder. In connection with any assignment
pursuant to this Section 12.1(b), the Lessee and the Administrative Agent will,
promptly upon the request of the Lessor and at the Lessor's cost and expense,
execute and deliver an acknowledgment of such assignment and the succession of
the transferee to all rights
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and obligations of the transferor Lessor under the Operative Documents in such
form as the transferee may reasonably request.
Section 12.2. Participations. Each Participant may sell, transfer,
grant or assign participations in all or any part of such Participant's
interests and obligations hereunder; provided that (i) such selling Participant
shall remain a "Lender" or the "Lessor", as the case may be, for all purposes
under the Operative Documents (such selling Participant's obligations under the
Operative Documents remaining unchanged) and the sub-participant shall not
constitute a Participant hereunder, (ii) no such sub-participant shall have, or
be granted, rights to approve any amendment or waiver relating to the Operative
Documents except to the extent any such amendment or waiver would (A) reduce the
principal of or rate of interest on or fees in respect of any Loans or Lessor
Amounts in which the sub-participant is participating, (B) postpone the date
fixed for any payment of principal (including extension of the Expiration Date
or the date of any mandatory prepayment), interest or fees in which the
sub-participant is participating, or (C) release all or substantially all of the
collateral or guarantees (except as expressly provided in the Operative
Documents) supporting any of the Loans or Lessor Amounts or Commitments in which
the sub-participant is participating, (iii) sub-sub-participations by the
sub-participant (except to an Affiliate, parent company or Affiliate of a parent
company of the sub-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 sub-participant shall not have any rights under the Operative
Documents (the sub-participant's rights against the selling Participant in
respect of such participation to be those set forth in the participation
agreement with such Participant creating such participation) and all amounts
payable by the Lessee hereunder shall be determined as if such Participant had
not sold such participation; provided, however, that such sub-participant shall
be entitled to receive additional amounts under Sections 13.5, 13.10 and 13.11
on the same basis as if it were a Participant (but only to the extent that the
Participant would have been entitled to receive such additional amounts with
respect to the interest participated had it not sold such participation).
Section 12.3. Withholding Taxes; Disclosure of Information; Pledge
Under Regulation A. (a) If the assignee of any Participant pursuant to Section
12.1 or the subparticipant of any Participant pursuant to Section 12.2 is (i)
not a citizen or resident of the United States of America, (ii) not a
corporation, partnership or other entity created or organized in or under the
laws of the United States of America (or any jurisdiction thereof), or (iii) not
an estate or trust that is subject to federal income taxation regardless of the
source of its income (each, a "Non-U.S. Transferee"), then such Non-U.S.
Transferee shall deliver (or cause to be delivered) upon the request of the
Lessee to each of the Administrative Agent and the Lessee one of the following
properly completed and signed U.S. tax forms: (i) a form W-8ECI or (ii) a form
W-8BEN claiming a valid exemption under an applicable U.S. tax treaty for all
income payable to such Non-U.S. Transferee under the Operative Documents.
(b) If the assignee of any Participant pursuant to Section 12.1 or
the subparticipant of any Participant pursuant to Section 12.2 is not a Non-U.S.
Transferee (each, a "U.S. Transferee"), then such U.S. Transferee shall deliver
(or cause to be delivered) to each of the Administrative Agent and the Lessee a
properly completed and signed U.S. tax Form W-9.
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(c) Any Participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Article
XII, disclose to such assignee or participant or proposed assignee or
participant, any information relating to the Lessee or the Transactions, subject
to appropriate confidentiality requirements relating to such information.
(d) Anything in this Article XII to the contrary notwithstanding,
any Lender may without the consent of the Lessee, the Administrative Agent or
the Lessor, assign and pledge all or any portion of the Notes held by it to any
Federal Reserve Bank, the United States Treasury or to any other financial
institution as collateral security pursuant to Regulation A of the F.R.S. Board
and any operating circular issued by the Federal Reserve System and/or the
Federal Reserve Bank or otherwise; provided, any payment by the Lessee for the
benefit of the assigning or pledging Participant shall be deemed to satisfy the
Lessee's obligations with respect thereto.
ARTICLE XIII
INDEMNIFICATION
Section 13.1. General Indemnification. (a) 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 Indemnitee, on an After Tax Basis, from and against any and all Claims that
may be imposed on, incurred by or asserted against such Indemnitee (whether
because of action or omission by such Indemnitee or otherwise) whether or not
such Indemnitee 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
Documentation Date or after the Maturity Date, in any way relating to or arising
out of the transactions contemplated by this Participation Agreement and the
other Operative Documents, including, without limitation:
(i) any of the Operative Documents and any amendment,
modification or waiver in respect thereof;
(ii) the Properties or any part thereof or interest
therein;
(iii) the purchase, design, construction, preparation,
installation, inspection, delivery, nondelivery, acceptance, rejection,
ownership, management, possession, operation, rental, lease, sublease,
assignment, 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(d) or 16.2(f) of the Master Lease or any sale pursuant to
Article XV, XVIII or XX of the Master Lease), return or other
disposition of all or any part or any interest in the Properties or the
imposition 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 restriction,
easement, condition or covenant or other matter affecting title to any
Property, (4) the making of any Modifications in violation of any
standards imposed by any insurance policies required to be maintained
by the Lessee pursuant to the Master Lease which are in effect at any
time with respect to any Property or any part thereof,
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(5) any Claim for patent, trademark or copyright infringement with
respect to any Property, and (6) Claims arising from any public
improvements with respect to any Property resulting in any change or
special assessments being levied against any Property or any plans to
widen, modify or realign any street or highway adjacent to any
Property, or any Claim for utility "tap-in" fees;
(iv) the breach or alleged breach by the Lessee of any
covenant, representation or warranty made or deemed made by it in any
Operative Document or any certificate required to be delivered by it by
any Operative Document;
(v) the retaining or employment of any broker, finder or
financial advisor by the Lessee to act on its behalf in connection with
this Participation Agreement or any other Operative Document; and
(vi) the existence of any Lien on or with respect to any
Property, any Basic Rent or Supplemental Rent, title thereto, or any
interest therein including any Liens which arise out of the possession,
use, occupancy, construction, repair or rebuilding of any Property or
by reason of labor or materials furnished or claimed to have been
furnished to the Lessee, or any of its contractors or agents or by
reason of the financing of any personality or equipment purchased or
leased by the Lessee or Modifications constructed by the Lessee.
(b) Notwithstanding the terms of clause (a) of this Section 13.1,
the Lessee shall not be required to indemnify any Indemnitee under this Section
13.1 for any Claim to the extent arising or resulting from (1) the willful
misconduct or gross negligence of such Indemnitee, (2) Lessor Liens attributable
to such Indemnitee, (3) a breach by such Indemnitee of any Operative Document,
(4) a breach by such Indemnitee of any agreement entered into in connection with
the assignment or participation of any Loan or Lessor Amount, any interest
therein or any other interest of such Indemnitee under the Operative Documents,
and (5) acts or events occurring in respect of any Property in the period after
the Lessee ceases to lease such Property from the Lessor under the Lease to the
extent not resulting from any act or event otherwise covered by this indemnity
that occurred during the period the Lessee leased such Property. 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 Document. Without limiting the
express rights of any Indemnitee under this Section 13.1, this Section 13.1
shall be construed as an indemnity only and not a guaranty of residual value of
any Property or as a guaranty of the Notes or the repayment of the Lease
Balance.
Section 13.2. End of Term Indemnity. (a) If the Lessee elects the
Remarketing Option and there would, after giving effect to the proposed
remarketing transaction, be a Shortfall Amount, then as a condition to the
Lessee's right to complete the remarketing of the Properties pursuant to Article
XX of the Master Lease, the Lessee shall cause to be delivered to the
Administrative Agent and the Lessor at least one hundred twenty (120) days prior
to the Expiration Date, at the Lessee's sole cost and expense, a report from the
Appraiser in form and substance satisfactory to the Lessor, the Administrative
Agent and the Lenders (the "End of the
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Term Report") which shall state the appraiser's conclusions as to the reason for
any decline in the Fair Market Sales Value of any Property from the Property
Cost thereof.
(b) On or prior to the Expiration Date, the Lessee shall pay to
the Administrative Agent for the account of each of the Participants an amount
(not to exceed the Shortfall Amount) equal to the portion of any Shortfall
Amount that the End of the Term Report demonstrates was the result of a decline
in the Fair Market Sales Value of any Property due to:
(i) extraordinary use; failure to maintain, repair,
restore, rebuild or replace; failure to comply with any applicable law;
failure to use; workmanship; method of installation or removal or
maintenance, repair, rebuilding or replacement (excepting in each case
ordinary wear and tear and except as otherwise provided in the Lease);
or
(ii) any Modification made to, or any rebuilding of, such
Property or any part thereof by the Lessee, or any sublessee, whether
or not permitted pursuant to the Operative Documents; or
(iii) contamination at such Property resulting from any
Hazardous Activity, Hazardous Materials or Environmental Violations
whether or not such condition existed on the Acquisition Date therefor;
or
(iv) any restoration or rebuilding carried out by the
Lessee; or
(v) any condemnation of any portion of such Property
pursuant to Article XIV of the Master Lease; or
(vi) any use of such Property or any part thereof by the
Lessee other than for its intended purposes as contemplated by the
applicable Appraisal; or
(vii) any grant, release, dedication, transfer, annexation
or amendment made pursuant to Section 11.2 of the Master Lease; or
(viii) the failure of the Lessor to have good and marketable
title to such Property free and clear of all Liens (other than
Permitted Property Liens described in clauses (i), (viii) and (x) of
the definition thereof); or
(ix) the existence of any sublease relating to such
Property that shall survive the Expiration Date.
Section 13.3. Environmental Indemnity. To the fullest extent permitted
by Applicable Law, and without limitation of the other provisions of this
Article XIII, the Lessee hereby agrees to indemnify, hold harmless and defend
each Indemnitee from and against any and all claims (including, without
limitation, third party claims for personal injury or real or personal property
damage), losses, damages, liabilities, fines, penalties, charges, administrative
and judicial proceedings, judgments, remedial actions, requirements, enforcement
actions of any kind, and all reasonable and documented costs and expenses
incurred in connection therewith (including but
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not limited to reasonable attorneys' and/or paralegals' fees and expenses and
costs incurred in connection with any investigation or monitoring of site
conditions or any clean-up, remedial, removal or restoration work with respect
to any Property undertaken or required by any federal, state or local
Governmental Authority), arising or asserted under any Environmental Laws, and
arising in whole or in part, out of:
(a) the presence on or under such Property of any
Hazardous Materials, or any Releases of any Hazardous Materials on,
under, from or at such Property;
(b) any activity, including, without limitation,
construction, carried on or undertaken on or off such Property, whether
by the Lessee (or any predecessor in title) or any employees, agents,
contractors or subcontractors of the Lessee (or any predecessor in
title), or in connection with the handling, treatment, removal,
storage, decontamination, clean-up, transport or disposal of any
Hazardous Materials that at any time are located or present on or under
or that at any time migrate, flow, percolate, diffuse or in any way
move onto or off such Property;
(c) with respect to any Hazardous Materials at such
Property, loss of or damage to any property or the environment
(including, without limitation, clean-up costs, response costs,
remediation and removal costs, costs of corrective action, costs of
financial assurance, fines and penalties and natural resource damages),
or death or injury to any Person, and all expenses associated with the
protection of wildlife, aquatic species, vegetation, flora and fauna,
and any mitigative action required by or under Environmental Laws; or
(d) any noncompliance with Environmental Laws, or any act
or omission causing an environmental condition at such Property that
requires remediation or causing any Governmental Authority to record a
Lien pursuant to Environmental Laws on the land record of such
Property; or
(e) any residual contamination on or under such Property,
including any contamination affecting any natural resources, and any
contamination of any property or natural resources arising in
connection with the generation, use, handling, storage, transport or
disposal of any Hazardous Material associated with such Property, and
irrespective of whether any of such activities were or will be
undertaken in accordance with applicable laws, regulations, codes and
ordinances;
provided, however, that the Lessee shall not be required to indemnify any
Indemnitee under this Section 13.3 for (1) any claim to the extent resulting
from such Indemnitee's gross negligence or willful misconduct, or (2) any claim
arising in respect to such Property to the extent attributable to acts or events
occurring in the period after the Lessee ceases to lease the Property from the
Lessor; 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 the Lease Term with respect to
any claim based on facts or circumstances arising prior to or during the Lease
Term, and shall be separate and independent from any remedy under the Lease or
any other Operative Document.
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Without limiting the generality of the foregoing, the Lessee waives all
rights and defenses that the Lessee may have because the Lessee's obligations
are secured by real property. This means, among other things:
(1) The Indemnitees may collect from the Lessee without
first foreclosing on any real or, if applicable, personal property
collateral pledged by Lessee;
(2) If the Indemnitees foreclose on any real property
collateral pledged by the Lessee:
(A) the amount of the Lessee's obligations may
be reduced only by the price for which that collateral is sold
at the foreclosure sale (even if the collateral is worth more
than the sale price thereof);
(B) the Indemnitees may collect from the Lessee
even if the Indemnitees, by foreclosing on the real property
collateral, have destroyed any right the Lessee may have to
collect from third parties.
This is an unconditional and irrevocable waiver of any rights and defenses the
Lessee may have because Lessee's obligations are secured by real property.
Section 13.4. Proceedings in Respect of Claims. In case any action,
suit or proceeding shall be brought against any Indemnitee in respect of Claims
indemnifiable under Sections 13.1 or 13.3, such Indemnitee shall promptly 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 if the
Lessee shall have exercised its rights to control the defense of such Claim to
the exclusion of the applicable Indemnitee, the Lessee shall have acknowledged
in writing its obligation to fully indemnify such Indemnitee in respect of such
action, suit or proceeding, and the Lessee shall keep such Indemnitee fully
apprised of the status of such action, suit or proceeding and shall provide such
Indemnitee with all information with respect to such action, suit or proceeding
as such Indemnitee 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 Indemnitee's counsel, (x) such action, suit or proceeding
involves any risk of imposition of criminal liability on any Indemnitee or will
involve a material risk of imposition of civil liability on any Indemnitee or
the sale, forfeiture or loss of, or the creation of any Lien (other than a
Permitted Property Lien) on the Properties or any part thereof or any
interference with the payment of Rent unless, in the case of civil liability
only, the Lessee shall have posted a bond or other security reasonably
satisfactory to the relevant Indemnitees in respect of 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 that the Lessee and the Indemnitee have been unable to sever from
the indemnified claim(s), or (C) a Lease Default or Lease Event of Default has
occurred and is continuing. The Indemnitee will join in the Lessee's efforts to
sever such action. In the event that an Indemnitee has assumed control of any
such proceeding, it shall keep the Lessee fully apprised of the status of such
action, suit or proceeding and shall provide the Lessee with all
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▇▇▇ Research Corporation Participation Agreement
information with respect to such action, suit or proceeding as the Lessee may
reasonably request. The Indemnitee 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 13.1
or 13.3 without prior written consent of the Indemnitee, which consent shall not
be unreasonably withheld in the case of a money settlement not involving an
admission of liability of such Indemnitee.
Upon payment in full of any Claim by the Lessee pursuant to Section
13.1 or 13.3 to or on behalf of an Indemnitee, the Lessee, without any further
action, shall be subrogated to any and all claims that such Indemnitee may have
relating thereto (other than claims in respect of insurance policies maintained
by such Indemnitee at its own expense), and such Indemnitee 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 to pursue such
claims.
Any amount payable to an Indemnitee pursuant to Section 13.1 or 13.3
shall be paid to such Indemnitee promptly upon receipt of a written demand
therefor from such Indemnitee, accompanied by a written statement describing in
reasonable detail the basis for such indemnity and the computation of the amount
so payable.
Section 13.5. General Tax Indemnity.
(a) Indemnification. Without limitation of the rights of any Tax
Indemnitee under any other indemnification provision of this Article XIII, the
Lessee shall pay and assume liability for, and does hereby agree to indemnify,
protect and defend the applicable Property and all Tax Indemnitees, and hold
them harmless, on an After Tax Basis, against all Impositions.
(b) Contests. If any claim shall be made against any Tax
Indemnitee or if any proceeding shall be commenced against any Tax Indemnitee
(including a written notice of such proceeding) for any Imposition as to which
the Lessee may have an indemnity obligation pursuant to this Section 13.5, or if
any Tax Indemnitee shall determine that any Imposition to which the Lessee may
have an indemnity obligation pursuant to this Section 13.5 may be payable, such
Tax Indemnitee shall promptly (and in any event, within thirty (30) days) notify
the Lessee in writing (provided that failure to so notify the Lessee within
thirty (30) days shall not alter such Tax Indemnitee's rights under this Section
13.5 except to the extent such failure 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 thirty (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 Tax Indemnitee shall be required by law or regulation to take action
prior to the end of such thirty (30) day period, such Tax Indemnitee shall, in
such notice to the Lessee, so inform the Lessee and such Tax Indemnitee 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 ten (10) days
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▇▇▇ Research Corporation Participation Agreement
after the receipt of such notice by the Lessee unless such Tax Indemnitee shall
be required by law or regulation to take action prior to the end of such ten
(10) day period.
The Lessee shall be entitled for a period of thirty (30) days from
receipt of such notice from such Tax Indemnitee (or such shorter period as such
Tax Indemnitee has notified the Lessee is required by law or regulation for such
Tax Indemnitee to commence such contest), to request in writing that such Tax
Indemnitee contest the Imposition, at the Lessee's sole expense. If (x) such
contest can be pursued in the name of the Lessee and independently from any
other proceeding involving an Imposition of such Tax Indemnitee for which the
Lessee has not agreed to indemnify such Tax Indemnitee, (y) such contest must be
pursued in the name of such Tax Indemnitee, but can be pursued independently
from any other proceeding involving an Imposition on such Tax Indemnitee for
which the Lessee has not agreed to indemnify such Tax Indemnitee or (z) such Tax
Indemnitee so requests, then the Lessee shall be permitted to control the
contest of such claim, provided that in the case of any such contest, if such
Tax Indemnitee 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 Tax Indemnitee and provides a written explanation to the Lessee of such
determination, such Tax Indemnitee 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 solely responsible for the Imposition ultimately
determined to be due by reason of such contest, and provided, further, that in
determining the application of clauses (x) and (y) above, each Tax Indemnitee
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 relating to Impositions requested to be
contested by the Lessee, such Tax Indemnitee shall control the contest of such
claim, acting through counsel reasonably acceptable to the Lessee.
Notwithstanding anything to the contrary contained herein, in no event shall the
Lessee be permitted to pursue or continue any contest (or such Tax Indemnitee be
required to pursue or continue any contest) of any Imposition or claim thereof
through any action, suit or proceeding (A) if such Tax Indemnitee provides the
Lessee with a legal opinion of independent counsel reasonably acceptable to the
Lessee that such action, suit or proceeding involves a risk of imposition of
criminal liability on any Tax Indemnitee or will involve a material risk of
imposition of civil liability on any Tax Indemnitee or the sale, forfeiture or
loss of, or the creation of any Lien (other than a Permitted Property Lien) on
the Properties or any part thereof or any interference with the payment of Rent
unless, with respect to civil liability only, the Lessee shall have posted a
bond or other security reasonably satisfactory to the relevant Tax Indemnitees
in respect of such risk, (B) if a Lease Default or Lease Event of Default has
occurred and is continuing, (C) unless the Lessee shall have agreed to pay and
shall pay to such Tax Indemnitee on demand and on an After Tax Basis all
reasonable out-of-pocket costs, losses and expenses that such Tax Indemnitee may
incur in connection with contesting such Imposition or claim thereof, including
all reasonable legal, accounting and investigatory fees and disbursements as
well as the Impositions which are the subject of such contest to the extent the
contest is unsuccessful, or (D) if such contest shall involve the payment of the
Imposition prior to the contest, unless the Lessee shall provide to such Tax
Indemnitee an interest-free advance in an amount equal to the Imposition that
the Tax Indemnitee is so required to pay on an After Tax Basis and prior to
commencing any contest the Lessee shall have acknowledged its liability for the
Imposition (if and to the extent that the Tax Indemnitee or the Lessee, as the
case may be,
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▇▇▇ Research Corporation Participation Agreement
shall not prevail in the contest in respect of the Imposition). In addition, no
contest of any Imposition shall be required: (A) unless the amount of the
potential indemnities (taking into account all similar or logically related
claims that have been or are likely to be raised in any audit involving any or
all of such Tax Indemnitees for which the Lessee may be liable to pay an
indemnity under this Section 13.5(b)) exceeds $75,000 and (B) unless, if
requested by such Tax Indemnitee, the Lessee shall have provided to such Tax
Indemnitee at the Lessee's sole expense, an opinion of independent counsel
selected by the Lessee and reasonably acceptable to the Tax Indemnitee that a
reasonable basis exists to contest such Imposition (or, in the case of an appeal
from an adverse judicial determination, that there is substantial authority for
a reversal or favorable modification of such decision of such appeal). In no
event shall a Tax Indemnitee be required to appeal an adverse judicial
determination to the United States Supreme Court.
The party conducting and controlling the contest of an Imposition shall
consult in good faith with the other party and its counsel with respect to such
contest (or claim for refund) but the decisions regarding what actions are to be
taken with respect to such contest shall be made by the controlling party in its
sole judgment. In addition, the party controlling the contest shall keep the
non-controlling party reasonably informed as to the progress of the contest, and
shall provide the noncontrolling party with a copy of (or appropriate excerpts
from) any reports or claims issued by the relevant Governmental Authority to the
controlling party thereof, relating to such contest.
Each Tax Indemnitee shall, at the Lessee's sole 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 13.5(b) so long as such
information or documents are not, in the reasonable judgment of the Tax
Indemnitee, confidential information or documents. Notwithstanding anything in
this Section 13.5(b) to the contrary, so long as no Lease Event of Default shall
have occurred and be continuing, no Tax Indemnitee shall enter into any
settlement or other compromise or fail to appeal an adverse determination with
respect to any claim for an Imposition for which it is entitled to be
indemnified under this Section 13.5 (and with respect to which contest is
required under this Section 13.5(b)) without the prior written consent of the
Lessee (which shall not be unreasonably withheld or delayed), unless such Tax
Indemnitee waives its right to be indemnified under this Section 13.5 with
respect to such claim pursuant to the next paragraph.
Notwithstanding anything contained herein to the contrary, a Tax
Indemnitee will not be required to contest or continue to contest (and the
Lessee shall not be permitted to contest or continue to contest) a claim with
respect to any Imposition and shall be permitted to settle or commence any such
claim without the consent of the Lessee if (i) such Tax Indemnitee shall waive
its right to indemnification under this Section 13.5 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) and the
Tax Indemnitee returns to the Lessee all amounts previously advanced to the
Indemnitee with respect to the contest of such claim or (ii) such Imposition is
the sole result of a claim of a continuing and consistent nature, which claim
has previously been resolved against the relevant Tax Indemnitee (unless a
change in law or facts has occurred since such prior adverse resolution and the
Lessee provides an opinion of independent tax counsel reasonably satisfactory to
the Tax Indemnitee to the effect that it is more
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▇▇▇ Research Corporation Participation Agreement
likely than not that such change in law or facts will result in a favorable
resolution of the claim at issue).
(c) [Intentionally omitted]
(d) Payments. Any Imposition indemnifiable under this Section 13.5
shall be paid when due directly to the applicable taxing authority if such
direct payment is practicable and permitted. If direct payment to the applicable
taxing authority is not permitted or is otherwise not made, any amount payable
to a Tax Indemnitee pursuant to this Section 13.5 shall be paid to the Tax
Indemnitee within thirty (30) days after receipt of a written demand therefor
from such Tax Indemnitee, which demand shall be, accompanied by a written
statement describing in reasonable detail the amount so payable, but not before
ten (10) Business Days prior to the date that the relevant Imposition is due.
Any payments made pursuant to this Section 13.5 shall be made directly to such
Tax Indemnitee 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 II hereto. Upon
the request of any Tax Indemnitee with respect to Impositions that the Lessee is
required to pay, the Lessee shall furnish to such Tax Indemnitee the original or
a certified copy of a receipt for the Lessee's payment of such Imposition or
such other evidence of payment as is reasonably acceptable to such Tax
Indemnitee.
(e) Reports. In the case of any report, return or statement
required to be filed with respect to any Impositions that are subject to
indemnification under this Section 13.5, the Lessee shall promptly notify such
Tax Indemnitee of such requirement and, at the Lessee's sole expense (i) if the
Lessee is permitted by Applicable Law, timely file such report, return or
statement in its own name and send a copy of such report, return or statement to
the Tax Indemnitee, or (ii) if such report, return or statement is required to
be in the name of or filed by such Tax Indemnitee, or the Tax Indemnitee
otherwise requests that such report, return or statement be filed in the name of
or by such Tax Indemnitee, the Lessee shall prepare and furnish such report,
return or statement in such manner as shall be satisfactory to such Tax
Indemnitee and shall send the same to such Tax Indemnitee for filing no later
than fifteen (15) days prior to the due date therefor. In any case in which such
Tax Indemnitee will file any such report, return or statement, the Lessee shall,
upon written request of such Tax Indemnitee, provide such Tax Indemnitee with
such information as is reasonably necessary to allow such Tax Indemnitee to file
such report, return or statement.
(f) Tax Ownership. Each Tax Indemnitee represents and warrants
that it will not, prior to the termination of the Lease with respect to a
Property, claim ownership of (or any tax benefits, including depreciation, with
respect to) such Property for any income tax purposes (unless required to do so
by a Governmental Authority), it being understood that the Lessee is and will
remain the owner of such Property for such income tax purposes until the
termination of the Lease with respect thereto.
(g) Disclosure. The parties agree that any party to this
Participation Agreement (and each employee, representative, or other agent of
such party) may disclose the tax aspects of the
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▇▇▇ Research Corporation Participation Agreement
transactions contemplated by this Participation Agreement and the structural
aspects of these transactions as they relate to such tax aspects without
limitation of any kind on such disclosure.
Section 13.6. Indemnity Payments in Addition to Lease Obligations. The
Lessee acknowledges and agrees that the Lessee's obligations to make indemnity
payments under this Article XIII are separate from, in addition to, and do not
reduce, the Lessee's obligations to pay any amounts owing from time to time
under the Lease.
Section 13.7. Eurodollar Rate Lending Unlawful. Notwithstanding any
other provision herein, if the adoption of or any change in any Requirement of
Law or in the interpretation or application thereof occurring after the
Documentation Date shall make it unlawful for any Participant to make, continue
or maintain Eurodollar Loans/Lessor Amounts as contemplated by the Operative
Documents, (i) such Participant shall promptly give written notice of such
circumstances to the Lessee, the Lessor and the Administrative Agent (which
notice shall be withdrawn whenever such circumstances no longer exist), (ii) the
commitment of such Participant hereunder to make, continue or maintain
Eurodollar Loans/Lessor Amounts shall forthwith be canceled and, until such time
as it shall no longer be unlawful for such Participant to make, continue or
maintain Eurodollar Loans/Lessor Amounts, such Participant shall then have a
commitment only to make or maintain Base Rate Loans/Lessor Amounts when
Eurodollar Loans/Lessor Amounts are requested and (iii) such Participant's Loans
and Lessor Amounts then outstanding as Eurodollar Loans/Lessor Amounts, if any,
shall be converted automatically to Base Rate Loans/Lessor Amounts on the
respective last days of the then current Interest Periods with respect to such
Loans and Lessor Amounts or within such earlier period as required by law. If
any such conversion of Eurodollar Loans/Lessor Amounts occurs on a day which is
not the last day of the then current Interest Period with respect thereto, the
Lessee shall pay to such Participant such amounts, if any, as may be required
pursuant to Section 13.10. In any such case, interest and principal (if any)
shall be payable contemporaneously with the related Eurodollar Loans/Lessor
Amounts of the other Participants so affected.
Section 13.8. Deposits Unavailable. If any of the Participants shall
have determined that:
(i) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to such Participant in its
relevant market; or
(ii) by reason of circumstances affecting such
Participant's relevant market adequate means do not exist for
ascertaining the interest rate or Yield, as the case may be, applicable
to such Participant's Eurodollar Loans/Lessor Amounts;
then, upon notice from such Participant to the Lessee, the Administrative Agent
and the other Participants, (x) the obligations of such Participant to make or
continue any Loans or Lessor Amounts as, or to convert any Loans or Lessor
Amounts into Eurodollar Loans/Lessor Amounts shall be suspended, and (y) each
outstanding Eurodollar Loan/Lessor Amount held by such Participant shall
automatically convert into a Base Rate Loan/Lessor Amount on the last day of the
current Interest Period applicable thereto.
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▇▇▇ Research Corporation Participation Agreement
Section 13.9. Increased Costs, etc. (a) If the adoption of or any
change in a Requirement of Law or in the interpretation or application thereof
applicable to any Participant, or compliance by any Participant with any request
or directive (whether or not having the force of law) from any central bank or
other Governmental Authority, in each case made subsequent to the Documentation
Date (or, if later, the date on which such Participant becomes a Participant):
(i) shall subject such Participant to any tax of any kind
whatsoever with respect to any Eurodollar Loans/Lessor Amounts made,
continued or maintained by it or its obligation to make, continue or
maintain Eurodollar Loans/Lessor Amounts, or change the basis of
taxation of payments to such Participant in respect thereof (except for
Taxes that would be excluded from the definition of Impositions, 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 Participant its applicable lending office, branch, or any
affiliate thereof); or
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, or deposits or other liabilities in or for the account of,
Loans, Lessor Amounts, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Participant which is
not otherwise included in the determination of the Adjusted Eurodollar
Rate hereunder; or
(iii) shall impose on such Participant any other condition
(excluding any Tax of any kind) whatsoever in connection with the
Operative Documents;
and the result of any of the foregoing is to increase the cost to such
Participant of making, continuing or maintaining Eurodollar Loans/Lessor Amounts
or to reduce any amount receivable hereunder in respect thereof, then, in any
such case, upon notice to the Lessee from such Participant, the Lessee shall pay
such Participant any additional amounts necessary to compensate such Participant
for such increased cost or reduced amount receivable; provided that, in any such
case, the Lessee may elect to convert the Eurodollar Loans/Lessor Amounts made
or held by such Participant hereunder to Base Rate Loans/Lessor Amounts by
giving the Administrative Agent at least one (1) Business Day's notice of such
election, in which case the Lessee shall promptly pay to such Participant, upon
demand, without duplication, such amounts, if any, as may be required pursuant
to Section 13.10. All payments required by this Section 13.9(a) shall be made by
the Lessee within five (5) Business Days after demand by the applicable
Participant. The Lessee shall not be obligated to reimburse any Participant for
any increased cost or reduced return incurred more than one hundred eighty (180)
days prior to the date that such Participant delivers notice to the Lessee of
such increased cost or reduced return unless such Participant gives notice
thereof to the Lessee in accordance with this Section 13.9 during such one
hundred eighty (180) day period. If any Participant becomes entitled to claim
any additional amounts pursuant to this subsection, it shall provide prompt
notice thereof to the Lessee, certifying (x) that one of the events described in
this clause (a) has occurred and describing in reasonable detail the nature of
such event, (y) as to the increased cost or reduced amount resulting from such
event and (z) as to the additional amount demanded by such Participant and a
reasonably detailed explanation of the calculation thereof (including the method
by which such Participant allocated such amounts to the Lessee). Such a
certificate as to any
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▇▇▇ Research Corporation Participation Agreement
additional amounts payable pursuant to this clause submitted by such
Participant, through the Administrative Agent, to the Lessee shall be conclusive
and binding for all purposes, absent manifest error. This covenant shall survive
the termination of this Participation Agreement and the payment of the Loans and
Lessor Amounts, as the case may be, and all other amounts payable hereunder.
(b) Each Participant shall use its reasonable efforts to reduce or
eliminate any unlawfulness or claim for compensation pursuant to Sections 13.7,
13.8 or 13.9(a), including, without limitation, a change in the office of such
Participant at which its obligations related to this Participation Agreement are
maintained if such change will cure the unlawfulness or avoid the need for, or
reduce the amount of, such compensation and will not, in the reasonable judgment
of such Participant, be otherwise disadvantageous to it.
Section 13.10. Funding Losses; Break Costs. (a) The Lessee agrees to
indemnify each Indemnitee and to hold each Indemnitee harmless from any loss or
expense which such Indemnitee may sustain or incur as a consequence of (i)
default by the Lessee in making a borrowing of Loans or Lessor Amounts which are
Eurodollar Loans/Lessor Amounts after Lessee has given a notice requesting the
same in accordance with the provisions of this Participation Agreement, (ii)
default by the Lessee in making any prepayment of a Loan or Lessor Amount which
is a Eurodollar Loan/Lessor Amount after the Lessee has given a notice thereof
in accordance with the provisions of this Participation Agreement, or (iii) the
making of a payment or prepayment of Loans or Lessor Amounts which are
Eurodollar Loans/Lessor Amounts 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 Document and
the payment of the Loans, Lessor Amounts and all other amounts payable under the
Operative Documents.
(b) The Lessee shall, upon receipt from the Administrative Agent
or any Participant of a statement of the amount of any loss, cost or expense
constituting Break Costs prepared in good faith and in reasonable detail (which
statement shall be binding absent manifest error), pay the amount of such Break
Costs to the requesting Person.
Section 13.11. Capital Adequacy. (a) If the adoption of any applicable
law, rule or regulation regarding capital adequacy, or any change therein, or
any change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Participant with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, in each case made
subsequent to the Documentation Date has or will have the effect of reducing the
rate of return on any Participant's or its parent company's capital, as a
consequence of its commitments or obligations hereunder to a level below that
which such Participant or its parent company could have achieved but for such
adoption, effectiveness, change or compliance (taking into consideration such
Participant's or its parent company's policies with respect to capital
adequacy), then, upon notice from such Participant, the Lessee shall pay to such
Participant such additional amount or amounts as will compensate such
Participant and its parent company for such reduction (it being understood that
such parent company shall not be reimbursed to the extent its subsidiary
Participant is
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▇▇▇ Research Corporation Participation Agreement
reimbursed by the Lessee in connection with the same or a similar law, rule,
regulation, change, request or directive applicable to such Participant). All
payments required by this Section 13.11 shall be made by the Lessee within five
(5) Business Days after demand by such Participant. The Lessee shall not be
obligated to reimburse any Participant for any reduced return incurred more than
one hundred eighty (180) days prior to the date that such Participant delivers
notice to the Lessee of such reduced return unless such Participant gives notice
thereof to the Lessee in accordance with this Section 13.11 during such one
hundred eighty (180) day period. If any Participant becomes entitled to claim
any additional amounts pursuant to this clause, it shall provide prompt written
notice thereof to the Lessee, through the Administrative Agent, certifying (x)
that one of the events described in this clause (a) has occurred and describing
in reasonable detail the nature of such event, (y) as to the increased cost or
reduced amount resulting from such event and (z) as to the additional amount
demanded by such Participant and a reasonably detailed explanation of the
calculation thereof. Such a certificate as to any additional amounts payable
pursuant to this clause submitted by such Participant to the Lessee shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Participation Agreement and the other Operative Documents
and the payment of the Loans, Lessor Amounts and all other amounts payable
hereunder and thereunder.
(b) Each Participant shall use its commercially reasonable efforts
to reduce or eliminate, any claim for compensation pursuant to this Section
13.11, including, without limitation, a change in the office of such Participant
at which its obligations related to the Operative Documents are maintained if
such change will avoid the need for, or reduce the amount of, such compensation
and will not, in the reasonable judgment of such Participant, be otherwise
disadvantageous to it.
ARTICLE XIV
[INTENTIONALLY RESERVED]
ARTICLE XV
MISCELLANEOUS
Section 15.1. Survival of Agreements. The representations, warranties,
covenants, indemnities and agreements of the parties provided for in the
Operative Documents, and the parties' obligations under any and all thereof,
shall survive the execution and delivery of this Participation Agreement, the
transfer of any Property to the Lessor, any disposition of any interest of the
Lessor or any Lender in any Property and the payment of the Notes and the Lessor
Amounts, and shall be and continue in effect to the extent set forth in such
Operative Documents notwithstanding any investigation made by any party and the
fact that any party may waive compliance with any of the other terms, provisions
or conditions of any of the Operative Documents. Except as otherwise expressly
set forth herein or in the other Operative Documents, the indemnities of the
parties provided for in the Operative Documents shall survive the expiration or
termination of any thereof.
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▇▇▇ Research Corporation Participation Agreement
Section 15.2. No Broker, Etc. Each of the parties hereto represents to
the others that it has not retained or employed any broker, finder or financial
adviser to act on its behalf in connection with this Participation Agreement or
the transactions contemplated herein or in the other Operative Documents nor has
it authorized any broker, finder or financial adviser retained or employed by
any other Person so to act, except that the Lessee has engaged the Arranger to
act as placement agent. In the event that any party retains any other broker,
finder or financial advisor, such party will promptly notify the other parties
in writing of such broker, finder or financial advisor and such party shall be
responsible for payment in full of such broker, finder or financial advisor. Any
party which is in breach of this representation shall indemnify and hold the
other parties harmless from and against any liability arising out of such breach
of this representation.
Section 15.3. Notices. Unless otherwise specifically provided herein,
all notices, consents, directions, approvals, instructions, requests and other
communications required or permitted by the terms hereof to be given to any
Person (a) shall be directed to the address or facsimile number of such Person
as indicated on Schedule II hereof and (b) shall be given in writing by United
States mail, by nationally recognized courier service, by hand or by facsimile,
and any such notice shall become effective (i) if delivered by United States
mail, three (3) Business Days after being deposited in the mail, certified or
registered with appropriate postage prepaid, (ii) if delivered by a nationally
recognized courier service, upon delivery to the intended recipient, (iii) if
delivered by hand, when received, or (iv) if delivered by facsimile, when
transmitted (upon electronic confirmation thereof) provided that any facsimile
transmitted after 5:00 p.m. (recipient time) shall be deemed to have been
received on the next Business Day. From time to time any party may designate a
new address or facsimile number for purposes of notice hereunder by written
notice to each of the other parties hereto in accordance with this Section.
Section 15.4. Counterparts. This Participation Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
Section 15.5. Amendments, Etc. Neither any Operative Document nor any
of the terms thereof may be terminated (except as expressly required under the
terms of any Operative Document or upon payment in full of the Lease Balance or
effective exercise and consummation of the Remarketing Option in accordance with
Article XX of the Master Lease and payment in full of all amounts due in
accordance therewith), amended, supplemented, waived or modified without the
written agreement or consent of the Required Participants; provided, however,
that:
(a) no such termination, amendment, supplement, waiver or
modification shall without written agreement or consent of each
Participant:
(i) modify any of the provisions of this Section
15.5, change the definition of "Required Participants" or
modify or waive any provision of any Operative Document
requiring action by the foregoing;
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▇▇▇ Research Corporation Participation Agreement
(ii) amend, modify, waive or supplement any of
the provisions of Section 2.5, 2.6 or 2.7 of the Loan
Agreement;
(iii) reduce, modify, amend or waive any fees or
indemnities in favor of any Participant, including without
limitation amounts payable pursuant to Article XIII (except
that any Person may consent to any reduction, modification,
amendment or waiver of any indemnity payable to it);
(iv) modify, postpone, reduce or forgive, in
whole or in part, any payment of Rent (other than pursuant to
the terms of any Operative Document), any Loan or Lessor
Amount, the Lease Balance, the Loan Balance, the Lessor
Balance, Commitment Fees and any other fee payable hereunder,
amounts due pursuant to Section 20.2 of the Master Lease,
interest or Yield (except that any Person may consent to any
modification, postponement, reduction or forgiveness of any
payment of any fee payable to it) or, subject to subclause
(iii) above, any other amount payable under the Lease or this
Participation Agreement, or modify the definition or method of
calculation of Rent (other than pursuant to the terms of any
Operative Document), Maximum Recourse Amount, Loans or Lessor
Amounts, Lease Balance, Loan Balance, Commitment Fees,
Shortfall Amount, Participant Balance, or any other definition
which would affect the amounts to be advanced or which are
payable under the Operative Documents; or
(v) consent to any assignment of the Master
Lease or any Lease Supplement by the Lessee except as
expressly permitted by the Operative Documents, release Lessee
from its obligations in respect of the payments of Rent or
Lease Balance or change the absolute and unconditional
character of such obligations or release any Collateral from
the Liens created by the Operative Documents; or
(vi) release of any Lien granted by the Lessee or
the Lessor under the Operative Documents, except as provided
in the Operative Documents.
(b) no such termination, amendment, supplement, waiver or
modification of any provision of the Operative Documents relating to
the Structuring Fee or any indemnity in favor of the Arranger shall be
effective without the Arranger's written consent, and the Arranger
shall be a third party beneficiary of such provisions and this Section
15.5(b).
Section 15.6. Headings, Etc. The Table of Contents and headings of the
various Articles and Sections of this Participation Agreement are for
convenience of reference only and shall not modify, define, expand or limit any
of the terms or provisions hereof.
Section 15.7. Parties in Interest. Except as expressly provided herein,
none of the provisions of this Participation Agreement is intended for the
benefit of any Person except the parties hereto. No party hereto shall assign or
transfer any of its rights or obligations under the Operative Documents except
in accordance with the terms and conditions thereof.
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▇▇▇ Research Corporation Participation Agreement
Section 15.8. GOVERNING LAW. THIS PARTICIPATION AGREEMENT AND THE OTHER
OPERATIVE DOCUMENTS (EXCEPT AS OTHERWISE PROVIDED IN ANY OPERATIVE DOCUMENT) AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
Section 15.9. Severability. Any provision of this Participation
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 15.10. Liability Limited. The parties hereto agree that except
as specifically set forth herein or in any other Operative Document, the Lessor
shall not have any personal liability whatsoever to the Administrative Agent,
the Lessee or any Lender or their respective successors and assigns for any
claim based on or in respect hereof or any of the other Operative Documents or
arising in any way from the transactions contemplated hereby or thereby and
recourse, if any, shall be solely had against the Collateral, including the
Properties but excluding the Excluded Payments; provided, however, that Lessor
shall be liable in its individual capacity (a) for its own willful misconduct or
gross negligence, (b) breach of any of its representations, warranties or
covenants under the Operative Documents, or (c) any Lessor Liens attributable to
it. It is understood and agreed that, except as provided in the preceding
sentence: (i) the Lessor shall not have any personal liability under any of the
Operative Documents as a result of acting pursuant to and consistent with any of
the Operative Documents; and (ii) all such personal liability of Lessor is
expressly waived and released as a condition of, and as consideration for, the
execution and delivery of the Operative Documents by Lessor.
Section 15.11. SUBMISSION TO JURISDICTION. EACH PARTY HERETO HEREBY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING
OUT OF OR RELATING TO THIS PARTICIPATION AGREEMENT OR ANY OF THE OTHER OPERATIVE
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section 15.12. Setoff. The Participants shall, upon the occurrence of
any Lease Event of Default, have the right to appropriate and, subject to
Section 4.7, apply to the payment of Lessee's obligations under the Lease, and
the other Operative Documents as security for the payment of such obligations,
any and all balances, credits, deposits, accounts or moneys of Lessee then or
thereafter maintained with any Participant. The rights of the Participants under
this Section are in addition to other rights and remedies (including other
rights of setoff under applicable law or otherwise) which any such Person may
have.
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▇▇▇ Research Corporation Participation Agreement
Section 15.13. No Participant Responsible for Other Participants. The
obligations of each Participant under this Participation Agreement and the other
Operative Documents are several and not joint; and in the event of a failure by
a Participant to perform any of its obligations hereunder or under any other
Operative Document, neither the Administrative Agent, the Lessor nor any other
Lender (other than the defaulting Participant) shall have any liability as a
consequence thereof.
Section 15.14. Partial Purchase Option. So long as no Default or Event
of Default shall have occurred and be continuing, the Lessee shall have the
right to purchase any of Property ▇▇. ▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇ or
Property No. 4 (the "Partial Purchase Option") pursuant to the terms of Section
18.1 of the Master Lease without being required to purchase, at the same time,
the remaining portion of the Property; provided, however, that at the exercise
and consummation of such purchase, the then remaining Property Balance must be
at least $25,000,000; provided, further, that in no event will Lessee be
permitted to exercise the Partial Purchase Option unless the remainder of the
Properties shall (a) have separate tax identification numbers, (b) constitute
properly subdivided parcels pursuant to all Applicable Laws, (c) have adequate
and legal access for vehicular and pedestrian ingress and egress and for all
necessary utilities, and (d) otherwise comply with all Applicable Laws. In
addition to the foregoing, if the Lessee has exercised the Remarketing Option,
the Lessee shall promptly rescind the Remarketing Option as a condition
precedent to its right to exercise the Partial Purchase Option.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Participation
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
▇▇▇ RESEARCH CORPORATION, as Lessee
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name ▇▇▇▇▇ ▇▇▇▇▇▇
Its VP and Treasurer
SELCO SERVICE CORPORATION, as Lessor
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Vice President
KEY CORPORATE CAPITAL INC., as Lender
By /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its Vice President
KEY CORPORATE CAPITAL INC., as
Administrative Agent
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its Vice President
S-1
SCHEDULE I
TO PARTICIPATION AGREEMENT
COMMITMENTS
COMMITMENT
PARTICIPANT COMMITMENT PERCENTAGE
LENDERS
Key Corporate Capital Inc. Series A $51,533,331.79 88.8%
Series B $ 3,017,717.63 5.2%
Total Loan Commitment $54,551,049.42 94.0%
LESSOR
SELCO Service Corporation $ 3,481,981.88 6.0%
TOTAL $58,033,031.30 100%
SCHEDULE II
TO PARTICIPATION AGREEMENT
Notice Information, Wire Instructions and Funding Offices
LESSOR:
NOTICES:
SELCO SERVICE CORPORATION
c/o KeyCorp. Leasing
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to
Key Equipment Finance
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to
Key Technology Finance
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
ADMINISTRATIVE AGENT:
NOTICES:
KEY CORPORATE CAPITAL INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
FUNDING, RATE SETS AND OTHER ADMINISTRATIVE:
Key Bank National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Specialty Services Team
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
WIRE TRANSFER INSTRUCTIONS:
Bank: KeyBank National Association
Bellevue, Washington
ABA Number: ▇▇▇▇▇▇▇▇▇
Account Number: 3072
Ref: ▇▇▇ Research Corporation - II
LENDER:
NOTICES:
KEY CORPORATE CAPITAL INC.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
WIRE TRANSFER INSTRUCTIONS:
Bank: KeyBank, N.A.
Bellevue, Washington
ABA Number: ▇▇▇▇▇▇▇▇▇
Account Number: 3072
Ref: ▇▇▇ Research Corporation - II
-2-
LESSEE:
▇▇▇ RESEARCH CORPORATION
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-3-
SCHEDULE III
TO PARTICIPATION AGREEMENT
-------------------------------------------------------------------------------------------------------------
ALLOCATED PERCENTAGE OF LEASE MAXIMUM RECOURSE AMOUNT
PROPERTY BALANCE
-------------------------------------------------------------------------------------------------------------
Property No. 1 ("Property No. 1")
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, 38.09524% 86.0234%
California CA-1
-------------------------------------------------------------------------------------------------------------
Property No. 2 ("Property No. 2") ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ CA-2
-------------------------------------------------------------------------------------------------------------
Land 3.79094% 100%
-------------------------------------------------------------------------------------------------------------
Improvements 10.84751% 85.0410%
-------------------------------------------------------------------------------------------------------------
Property No. 3 ("Property No. 3")
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ CA-8
-------------------------------------------------------------------------------------------------------------
Land 7.40957% 100%
-------------------------------------------------------------------------------------------------------------
Improvements 22.57279% 79.4776%
-------------------------------------------------------------------------------------------------------------
Property No. 4 ("Property No. 4") ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ CA-9
-------------------------------------------------------------------------------------------------------------
Land 6.20336% 100%
-------------------------------------------------------------------------------------------------------------
Improvements 11.08059% 84.4050%
-------------------------------------------------------------------------------------------------------------
APPENDIX A
TO PARTICIPATION AGREEMENT
A. Interpretation. In each Operative Document, unless a clear
contrary intention appears:
(i) the singular number includes the plural number and
vice versa;
(ii) reference to any Person includes such Person's
successors and assigns but, if applicable, only if such successors and
assigns are permitted by the Operative Documents, and reference to a
Person in a particular capacity excludes such Person in any other
capacity or individually;
(iii) reference to any gender includes each other gender;
(iv) reference to any agreement, document or instrument
(including any Operative Document) means such agreement, document or
instrument as amended or modified and in effect from time to time in
accordance with the terms thereof and, if applicable, the terms of the
other Operative Documents, and reference to any promissory note
includes any promissory note which is an extension or renewal thereof
or a substitute or replacement therefor;
(v) reference to any Requirement of Law means such
Requirement of Law as amended, modified, codified, replaced or
reenacted, in whole or in part, and in effect from time to time,
including rules and regulations promulgated thereunder, and reference
to any section or other provision of any Requirement of Law means that
provision of such Requirement of Law from time to time in effect and
constituting the substantive amendment, modification, codification,
replacement or reenactment of such section or other provision;
(vi) reference in any Operative Document to any Article,
Section, Appendix, Schedule or Exhibit means such Article or Section
thereof or Appendix, Schedule or Exhibit thereto, and reference in any
Section of any Operative Document to any clause means such clause of
such Section;
(vii) "hereunder," "hereof," "hereto" and words of similar
import shall be deemed references to an Operative Document as a whole
and not to any particular Article, Section or other provision thereof;
-2-
(viii) "including" (and with correlative meaning "include")
means including without limiting the generality of any description
preceding such term; and
(ix) with respect to any rights and obligations of the
parties under the Operative Documents, all such rights and obligations
shall be construed to the extent permitted by Applicable Law.
B. Computation of Time Periods. Unless otherwise specified in any
Operative Document, for purposes of computation of periods of time under the
Operative Documents, the word "from" means "from and including" and the words
"to" and "until" each mean "to but excluding."
C. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used therein shall be interpreted, all
accounting determinations thereunder shall be made, and all financial statements
required to be delivered thereunder shall be prepared in accordance with GAAP,
applied on a basis consistent (except for changes concurred in by the Lessee's
independent public accountants) with the most recent audited consolidated
financial statements of the Lessee and its Subsidiaries delivered to the
Participants.
D. Conflict in Operative Documents. If there is any conflict
between any Operative Documents, such Operative Documents shall be interpreted
and construed, if possible, so as to avoid or minimize such conflict but, to the
extent (and only to the extent) of such conflict, the Participation Agreement
shall prevail and control.
E. Legal Representation of the Parties. The Operative Documents
were negotiated by the parties with the benefit of legal representation and any
rule of construction or interpretation otherwise requiring the Operative
Documents to be construed or interpreted against any party shall not apply to
any construction or interpretation hereof or thereof.
F. Defined Terms. Unless a clear contrary intention appears,
terms defined herein have the respective indicated meanings when used in each
Operative Document.
"Account" means the account identified by the Administrative Agent in a
writing delivered to the Lessee into which all payments by the Lessee under the
Operative Documents shall be made. The Account shall be specified on Schedule II
to the Participation Agreement, as such Schedule may from time to time be
amended, supplemented, amended and restated or otherwise modified.
"Account Control Agreement" means the Account Control Agreement dated
as of June 1, 2003 among the Administrative Agent, the Lessee and KeyBank
National Association, as depository bank.
"Acquisition Date" is defined in Section 6.1 of the Participation
Agreement.
-3-
"Adjusted Eurodollar Rate" means, as applicable to any Interest Period
for any Loan or Lessor Amount, (x) a rate per annum equal to the quotient
obtained (rounded upwards, if necessary, to the next higher 1/16th of it) by
dividing (i) the applicable London Interbank Offering Rate for such Interest
Period by (ii) 1.00 minus the Eurodollar Reserve Percentage, plus (y) in the
case of Loans, the Loan Margin and in the case of Lessor Amounts, the Lessor
Margin. The Adjusted Eurodollar Rate shall be adjusted automatically on and as
of the effective date of any change in the Eurodollar Reserve Percentage.
"Administrative Agent" means Key Corporate Capital Inc., in its
capacity as Administrative Agent, and any successors or assigns thereto in such
capacity appointed in accordance with Section 7.9 of the Loan Agreement.
"Advance" means an advance of funds by the applicable Lenders to the
Lessor and the Lessor making funds available to acquire a Property pursuant to
Article III of the Participation Agreement.
"Affected Property" is defined in Section 15.1 of the Master Lease.
"Affiliate" means, as to any Person, (i) any other Person (a
"Controlling Person") that directly, or indirectly through one or more
intermediaries, controls such Person or (ii) any Person (other than such Person
and its Subsidiaries) which is controlled by or is under common control with a
Controlling Person. As used herein, the term "control" means possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
"After Tax Basis" means, with respect to any payment to be received,
the amount of such payment increased so that, after deduction of the amount of
all taxes required to be paid by the recipient (less any tax savings realized
and the present value of any tax savings projected to be realized by the
recipient as a result of the payment of the indemnified amount) with respect to
the receipt by the recipient of such amounts, such increased payment (as so
reduced) is equal to the payment otherwise required to be made.
"Aggregate Commitment Amount" means, on any date, $58,033,031.30 as
such amount may be reduced from time to time pursuant to Section 4.3(b) of the
Participation Agreement.
"Applicable Law" means all Federal, state, county, municipal and other
governmental statutes, laws, rules, orders, regulations, ordinances, judgments,
decrees and injunctions affecting the Properties, the Improvements thereon or
the demolition, construction, use or alteration thereof, whether now or
hereafter enacted and in force, including any that require repairs,
modifications or alterations in or to the Properties or in any way limited the
use and enjoyment thereof (including all building, zoning and fire codes and the
Americans with Disabilities Act of 1990, 42 U.S.C. Sections 1201 et seq., and
any other similar Federal, state or local laws or ordinances and the regulations
-4-
promulgated thereunder) and any that may relate to environmental requirements
(including all Environmental Laws), and all permits, certificates of occupancy,
licenses, authorizations and regulations relating thereto, and all covenants,
agreements, restrictions and encumbrances contained in any instruments that are
of record affecting the Properties, the Appurtenant Rights and any easements,
licenses or other agreements entered into pursuant to Section 11.2 of the Master
Lease.
"Appraisal" means, with respect to any Property, an appraisal of the
Fair Market Sales Value of such Property, which appraisal complies in all
material respects with all of the provisions of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989, as amended, the rules and
regulations adopted pursuant thereto, and all other applicable Requirements of
Law, and is addressed to the Administrative Agent, each Lender and the Lessor.
Each Appraisal shall be prepared by an Appraiser selected by the Administrative
Agent and the Lessor and reasonably acceptable to the Lessee.
"Appraiser" means the appraiser that prepared an Appraisal of the
Properties or such other Person selected by the Administrative Agent and the
Lessor.
"Appurtenant Rights" means, with respect to any Land, (i) all
agreements, easements, rights of way or use, rights of ingress or egress,
privileges, appurtenances, tenements, and other rights and benefits at any time
belonging or pertaining to such Land or the Improvements thereon, including,
without limitation, the use of any streets, ways, alleys, vaults or strips of
land adjoining, abutting, adjacent or contiguous to such Land and (ii) all
permits, licenses and rights, whether or not of record, appurtenant to such
Land.
"Arranger" means Key Lease Advisory Services, in its capacity as
arranger.
"Assigned Leases" is defined in Section 2(a) of the Assignment of Lease
and Rent.
"Assignment of Lease and Rent" means the Assignment of Lease and Rent
and Security Agreement dated as of June 1, 2003, from the Lessor, as assignor,
to the Administrative Agent for the benefit of the Lenders, as assignee,
substantially in the form of Exhibit H to the Participation Agreement, as the
same may be amended, supplemented, amended and restated or otherwise modified
from time to time.
"Authorized Officer" means the Chairman of the Board, the President,
the Executive Vice President and Chief Financial Officer, the Vice President and
Treasurer and any other officer of the Lessee authorized by the board of
directors of the Lessee to execute and deliver any Operative Document on behalf
of the Lessee.
"Available Commitments" means the sum of the Available Loan Commitments
and the Available Lessor Commitment.
-5-
"Available Lessor Commitment" means, at any time, an amount equal to
the excess, if any, of (x) the Lessor Commitment, minus (y) the aggregate Lessor
Amounts outstanding.
"Available Loan Commitment" means, at any time, an amount equal to the
excess, if any, of (x) the aggregate amount of the Loan Commitments minus (y)
the aggregate principal amount of all Loans outstanding.
"Bankruptcy Code" means Title 11 of the United States Code entitled
"Bankruptcy" as now or hereafter in effect or any successor thereto.
"Base Rate" means, for any day, the greater of:
(i) the rate of interest announced by KeyBank
National Association from time to time as its prime commercial
rate (the "Prime Rate"), or equivalent, as in effect on such
day, with any change in the Prime Rate resulting from a change
in said prime commercial rate to be effective as of the date
of the relevant change in said prime commercial rate; and
(ii) the sum of (x) the Federal Funds Rate, plus
(y)1/2 of 1% (.50%).
"Base Rate Loan/ Lessor Amount" means a Loan or Lessor Amount, as the
case may be, bearing interest at the Base Rate.
"Basic Rent" means the sum of (i) the Lender Basic Rent plus (ii) the
Lessor Basic Rent, calculated as of the applicable date on which Basic Rent is
due.
"▇▇▇▇ of Sale" is defined in Section 6.1(j) of the Participation
Agreement.
"Break Costs" means an amount equal to the amount, if any, required to
compensate any Participant for any additional losses (including, without
limitation, any loss, cost or expense incurred by reason of the liquidation or
redeployment of deposits or funds acquired by such Participant to fund its
obligations under the Operative Documents) it may incur with respect to
Eurodollar Loan/Lessor Amounts as a result of (v) the Lessee's payment of Rent
other than on a Scheduled Payment Date (except for Rent not due on a Scheduled
Payment Date), (w) any Advance not being made on the date specified therefor in
the applicable Funding Request (other than as a result of a breach by such
Participant of its obligation under Section 3.1, 3.2 or 3.3, as the case may be,
of the Participation Agreement to make Lessor Amounts or Loans available), (x)
the Lessee's payment of the Lease Balance or any Property Balance on any date
other than a Scheduled Payment Date or (y) any conversion of the Eurodollar
Loans/Lessor Amounts in accordance with Section 13.7 or 13.8 of the
Participation Agreement on a day other than the last day of the then current
Interest Period with respect thereto. A statement as
-6-
to the amount of such loss, cost or expense, prepared in good faith and in
reasonable detail and submitted by such Participant, as the case may be, to the
Administrative Agent, shall be correct and binding on the Administrative Agent
and the Lessee absent manifest error.
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banks in San Francisco, California, Cleveland, Ohio and New
York, New York are authorized or required by law to close, except that, when
used in connection with a Eurodollar Loan/Lessor Amount, such day shall also be
a day on which dealings between banks are carried on in Dollar deposits in
London, England.
"Capitalized Lease" means any lease in which the obligation for rentals
with respect thereto is required to be capitalized on a balance sheet of the
lessee in accordance with GAAP.
"Cash Collateral" has the meaning specified in the Cash Collateral
Pledge Agreement.
"Cash Collateral Pledge Agreement" means the Cash Collateral Pledge
Agreement dated as of June 1, 2003 between the Lessee and the Administrative
Agent.
"Cash Collateral Documents" means the Cash Collateral Pledge Agreement,
the Account Control Agreement and any other documents or instruments evidencing
or relating to the Cash Collateral.
"Casualty" means any damage or destruction of all or any portion of any
Property as a result of a fire, flood, earthquake or other casualty.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., as amended by the
Superfund Amendments and Reauthorization Act of 1986.
"Certifying Party" is defined in Section 22.1 of the Master Lease.
"Claims" means any and all obligations, liabilities, losses, actions,
suits, judgments, penalties, fines, claims, demands, settlements, costs and
expenses (including, without limitation, reasonable legal fees and expenses) of
any nature whatsoever, but shall not include Taxes or Impositions.
"Code" means the Internal Revenue Code of 1986 and regulations
promulgated thereunder.
"Collateral" means any collateral pledged by the Lessor to the
Administrative Agent pursuant to the Operative Documents to secure the Lessor's
obligations under the Loan Agreement and the Notes, but excluding any Excepted
Payments.
-7-
"Commitment" means (i) as to any Lender, its Loan Commitment, and (ii)
as to the Lessor, the Lessor Commitment.
"Commitment Fee" is defined in Section 4.4(b) of the Participation
Agreement.
"Commitment Percentage" means, with respect to any Participant, the
percentage set forth opposite such Participant's name under the heading
"Commitment Percentage" on Schedule I to the Participation Agreement, as such
Schedule may be amended, supplemented, amended and restated or otherwise
modified from time to time.
"Commitment Period" means the period from and including the
Documentation Date to and including the date occurring on the earliest of (i)
the date on which the sum of the aggregate outstanding Loans and aggregate
outstanding Lessor Amounts equals the Aggregate Commitment Amount, and (ii) June
21, 2003.
"Condemnation" means any condemnation, requisition, confiscation,
seizure or other taking or sale of the use, access, occupancy, easement rights
or title to any Property or any part thereof, wholly or partially (temporarily
or permanently), by or on account of any actual or threatened eminent domain
proceeding or other taking of action by any Person having the power of eminent
domain, including an action by a Governmental Authority to change the grade of,
or widen the streets adjacent to, such Property or alter the pedestrian or
vehicular traffic flow to such Property so as to result in change in access to
such Property, or by or on account of an eviction by paramount title or any
transfer made in lieu of any such proceeding or action. A "Condemnation" shall
be deemed to have occurred on the earliest of the dates that use, occupancy or
title vests in the condemning authority.
"Consolidated Subsidiary" means, at any date as of which the same is to
be determined, any Subsidiary of the Lessee the account of which would be
consolidated with those of the Lessee in its consolidated financial statements
if such statements were prepared as of such date in accordance with generally
accepted accounting principles.
"Contract Rents" is defined in Section 2(b) of the Assignment of Lease
and Rent.
"Contracts" is defined in Section 2(b) of the Assignment of Lease and
Rent.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Lessee or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Deed" means a grant deed with respect to the real property comprising
a Property, in conformity with Applicable Law and appropriate for recording with
the applicable Governmental Authorities, conveying fee simple title to such real
property to the Lessor, subject only to Permitted Property Liens.
-8-
"Default" means any Event of Default or any condition, occurrence or
event that, after notice or lapse of time or both, would constitute an Event of
Default.
"Documentation Date" is defined in Section 2.1 of the Participation
Agreement.
"Dollar Amount" of any currency at any date means (i) the amount of
such currency if such currency is Dollars or (ii) the equivalent amount of
Dollars if such currency is any currency other than Dollars, calculated at
approximately 11:00 a.m. (London Time) as set forth on the applicable Telerate
Screen on the date of determination; provided that if more than one rate is
listed then the applicable conversion rate shall be the arithmetic average of
such rates. If for any reason such conversion rates are not available, the
Dollar Amount shall be calculated using the arithmetic average of the spot
buying rates for such currency in Dollars as quoted to the Administrative Agent
by three foreign exchange dealers of recognized standing in the United States
selected by the Administrative Agent at approximately 11:00 a.m. (London time)
on any date of determination.
"Dollars" and "$" mean dollars in lawful currency of the United States.
"Eligible Lender Assignee" means (a) a commercial bank organized under
the laws of the United States, or any State thereof, and having combined capital
and surplus of $100,000,000; (b) a commercial bank organized under the laws of
any other country which is a member of the Organization for Economic Cooperation
and Development ("OECD"), or a political subdivision of any such country, and
having a combined capital and surplus of $100,000,000; provided, however, that
such bank is acting through a branch or agency located in the country in which
it is organized or another country which is also a member of the OECD or the
Cayman Islands; and provided, further, that such bank is entitled to a zero
percent (0%) United States withholding tax rate; (c) the central bank of any
country which is a member of the OECD; provided that such bank is entitled to a
zero percent (0%) United States withholding tax rate; (d) a finance company or
other financial institution or fund (whether a corporation, partnership, trust
or other entity) organized under the laws of the United States, or any State
thereof, that is engaged in making, purchasing, or otherwise investing in
commercial loans in the ordinary course of its business and having a combined
capital and surplus of $100,000,000; (e) an insurance company organized under
the laws of the United States, or any State thereof, and having a combined
capital and surplus of $100,000,000; (f) any Lender a party to the Operative
Documents; and (g) any Affiliate of a Lender; provided that any Affiliate of the
Lessee shall not qualify as an Eligible Lender Assignee. So long as no Lease
Event of Default is continuing, the Lessee shall have the right to approve any
Eligible Lender Assignee, which approval shall not be unreasonably withheld.
"Eligible Lessor Assignee" means, with respect to any assignment by the
Lessor pursuant to Section 12.1(b) of the Participation Agreement, any Person
that meets all of the following requirements: (i) such Person is (x) a leasing
company, bank, bank subsidiary or bank Affiliate, insurance company or other
institutional investor with a net worth or, in the case of a bank or lending
institution, combined capital and surplus on a
-9-
consolidated basis at the time of transfer of at least $100,000,000 determined
in accordance with GAAP or (y) a Person described in clause (x) that is an
Affiliate of a financial institution meeting such net worth or capital and
surplus standard, (ii) such assignment to such Person would not result in such
Person or the Properties being consolidated onto the balance sheet of the Lessee
and (iii) so long as no Lease Event of Default is continuing, such Person is
approved by the Lessee, which approval shall not be unreasonably withheld.
"End of the Term Report" is defined in Section 13.2(a) of the
Participation Agreement.
"Environmental Audit" means, with respect to any Property, a Phase One
environmental site assessment (the scope and performance of which meets or
exceeds the then most current ASTM Standard Practice E1527 for Environmental
Site Assessments: Phase One Environmental Site Assessment Process) of such
Property.
"Environmental Laws" means any and all applicable federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances, codes,
permits, licenses, authorizations, decrees or other legal requirement
regulating, relating to or imposing liability or standards of conduct concerning
protection of human health or the environment or the use, storage, recycling,
handling, disposal, discharge, transport, treatment or generation of Hazardous
Materials, as now or may at any time be in effect during the Lease Term,
including CERCLA, RCRA, the Clean Air Act, 42 USC Sections 7401 et seq., the
Toxic Substances Control Act 15 USC Sections 2601 et seq., and any rules and
regulations promulgated thereunder.
"Environmental Violation" means, with respect to any Property, any
activity, occurrence or condition that violates, or results in non-compliance
with any Environmental Law.
"Equipment" means all equipment, apparatus, fittings and personal
property of every kind and nature whatsoever purchased, leased or otherwise
acquired by the Lessor using the proceeds of the Loans and/or the Lessor Amounts
and now or subsequently attached to, contained in or used or usable in any way
in connection with any operation or letting of any Property, including but
without limiting the generality of the foregoing, all furniture and furnishings,
heating, electrical, switch gear, power supply, lightening, plumbing,
ventilation, air conditioning and air cooling systems, refrigerating equipment,
generators, locking and unlocking equipment, communication systems, sprinkler
system and fire prevention systems, security systems and fixtures of all kinds;
provided, however, that the term "Equipment" shall expressly exclude all
inventory.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
-10-
"Eurodollar Loan/Lessor Amount" means a Loan or Lessor Amount, as the
case may be, bearing interest or Yield, respectively, at or based upon the
Adjusted Eurodollar Rate.
"Eurodollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
F.R.S. Board, for determining the maximum reserve requirement for a member bank
of the Federal Reserve System in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Eurodollar Loans/Lessor Amounts is
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of any bank to United States
residents).
"Event of Default" means a Lease Event of Default or a Loan Agreement
Event of Default.
"Event of Loss" means any Significant Casualty or any Significant
Condemnation.
"Event of Loss Purchase" means the payment by the Lessee of the
Property Cost and all other amounts described in Section 15.1 of the Master
Lease with respect to any Property.
"Excepted Payments" means:
(a) all indemnity payments (including indemnity payments
made pursuant to Article XIII of the Participation Agreement) to which
the Administrative Agent, the Arranger, the Lessor, any Lender or any
of their respective Affiliates, agents, officers, directors or
employees is entitled;
(b) any amounts (other than Basic Rent or amounts payable
by the Lessee pursuant to Section 15.1 of the Master Lease or Articles
XVI, XVIII or XX of the Master Lease) payable under any Operative
Document to reimburse the Administrative Agent, the Arranger, the
Lessor, any Lender or any of their respective Affiliates (including the
reasonable expenses of the Administrative Agent, the Arranger, the
Lessor, any Lender or such Affiliates incurred in connection with any
such payment) for performing or complying with any of the obligations
of the Lessee under and as permitted by any Operative Document;
(c) any insurance proceeds (or payments with respect to
risks self-insured or policy deductibles) under liability policies;
(d) any insurance proceeds under policies maintained by
any Participant;
-11-
(e) Transaction Expenses or other amounts or expenses
paid or payable to or for the benefit of the Administrative Agent, the
Lessor, the Arranger or any Lender; and
(f) any payments in respect of interest to the extent
attributable to payments referred to in clauses (a) through (e) above.
"Excess Casualty/Condemnation Proceeds" is defined in Section 14.2(f)
of the Master Lease.
"Excess Sales Proceeds" means with respect to any Property the excess,
if any, of (x) the aggregate of all proceeds received by the Lessor in
connection with any sale or reletting of such Property pursuant to the Lessor's
exercise of remedies under Section 16.2 of the Master Lease or the Lessee's
exercise of the Remarketing Option with respect to such Property under Article
XX of the Master Lease (in either case, less, to the extent not reimbursed by
the Lessee, all fees, costs and expenses of the Lessor in connection with the
exercise of its rights and remedies thereunder or any such sale or reletting),
minus (y) the Property Balance of such Property.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and regulations promulgated thereunder.
"Expiration Date" means, with respect to the Master Lease, the earlier
of (a) the date the Master Lease shall have been terminated in accordance with
the provisions thereof and (b) the fifth anniversary of the Documentation Date,
provided, however, with respect to Article XX of the Master Lease, the
Expiration Date shall be the later of (i) the date set forth in clause (b) above
and (ii) the Extended Expiration Date.
"Expiration Date Purchase Obligation" means the Lessee's obligation,
pursuant to Section 18.2 of the Master Lease, to purchase one or more Properties
on the Expiration Date.
"Extended Expiration Date" is defined in Section 20.3(a) of the Master
Lease.
"Fair Market Sales Value" means, with respect to any Property, the
amount, which in any event shall not be less than zero, that would be paid in
cash in an arm's-length transaction between an informed and willing purchaser
and an informed and willing seller, neither of whom is under any compulsion to
purchase or sell, respectively, for the ownership of such Property. The Fair
Market Sales Value of any Property shall be determined based on the assumption
that, except for purposes of Article XVI of the Master Lease and Section 13.2 of
the Participation Agreement, such Property is in the condition and state of
repair required under Section 9.1 of the Master Lease and the Lessee is in
compliance with the other requirements of the Operative Documents relating to
the condition of such Property.
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"Federal Funds Rate" means, for any day or period, as applicable, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100th of it) at
which Federal funds in the amount equal to the principal or analogous amount of
the related Loans or Lessor Amounts are offered in the interbank market to the
Administrative Agent or the Lessor, as the case may be, as of 11:00 a.m. (New
York time) on such day for such day or for such period, as applicable.
"Fees" is defined in Section 4.4 of the Participation Agreement.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"Funding Office" means the office of each Participant identified on
Schedule II to the Participation Agreement as its funding office.
"Funding Request" is defined in Section 3.4 of the Participation
Agreement.
"GAAP" means accounting principles generally accepted in the United
States from time to time set forth from time to time in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of comparable
stature and authority within the U.S. accounting profession), which are
applicable to the circumstances as of the date of determination.
"Governmental Action" means all permits, authorizations, registrations,
consents, approvals, waivers, exceptions, variances, orders, judgments, written
interpretations, decrees, licenses, exemptions, publications, filings, notices
to and declarations of or with, or required by, any Governmental Authority, or
required by any Applicable Law, and shall include, without limitation, all
environmental and operating permits and licenses that are required for the full
use, occupancy, zoning and operation of any Property.
"Governmental Authority" means the United States Federal government,
any state or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Gross Remarketing Proceeds" is defined in Section 20.2(h) of the
Master Lease.
"Guaranty" of any Person means any agreement by which such Person
assumes, guarantees, endorses, contingently agrees to purchase or provide funds
for the payment of, or otherwise becomes liable upon the obligation of any other
Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person
-13-
or otherwise assures any creditor of such other Person against loss, and shall
include, without limitation, the contingent liability of such Person under or in
relation to any letter of credit (or similar instrument), but shall exclude
endorsements for collection or deposit in the ordinary course of business.
"Hazardous Activity" means any activity, process, procedure or
undertaking that directly or indirectly (i) produces, generates or creates any
Hazardous Material; (ii) causes or results in (or threatens to cause or result
in) the Release of any Hazardous Material into the environment (including air,
water vapor, surface water, groundwater, drinking water, land (including surface
or subsurface), plant, aquatic and animal life); (iii) involves the containment
or storage of any Hazardous Material; or (iv) would be regulated as hazardous
waste treatment, storage or disposal within the meaning of any Environmental
Law.
"Hazardous Materials" means any hazardous, toxic or dangerous
materials, substances, chemicals, wastes or pollutants that from time to time
are defined by or pursuant to or are regulated under any Environmental Laws,
including asbestos, polychlorinated biphenyls, petroleum, petroleum derivatives
or by-products, other hydrocarbons, urea formaldehyde and any material,
substance, pollutant or waste that is defined as a hazardous waste under RCRA or
defined as a hazardous substance under CERCLA.
"Impositions" means any and all liabilities, losses, expenses and costs
of any kind whatsoever for fees, taxes, levies, imposts, duties, charges,
assessments or withholdings of any nature whatsoever (all of the foregoing being
defined as "Taxes") (including, without limitation, (i) real and personal
property taxes, including personal property taxes on any property covered by the
Master Lease that is classified by Governmental Authorities as personal
property, and real estate or ad valorem taxes in the nature of property taxes;
(ii) sales taxes, use taxes and other similar taxes (including rent taxes and
intangibles taxes); (iii) any excise taxes; (iv) real estate transfer taxes,
conveyance taxes, mortgage taxes, intangible taxes, stamp taxes and documentary
recording taxes and fees; (v) taxes that are or are in the nature of franchise,
income, value added, gross receipts, privilege and doing business taxes, license
and registration fees; (vi) assessments on any Property, including all
assessments for public improvements or benefits (whether or not such
improvements are commenced or completed within the Lease Term); and (vii) all
filing and reporting fees and expenses relating thereto, for such Property), and
all interest, additions to tax and penalties, which at any time may be levied,
assessed or imposed by any Federal, state or local authority upon or with
respect to (a) any Tax Indemnitee, any Property or any part thereof or interest
therein, or the Lessee or any sublessee or user of any Property; (b) the
financing, refinancing, demolition, construction, substitution, subleasing,
assignment, control, condition, occupancy, servicing, maintenance, repair,
ownership, possession, purchase, rental, lease, activity conducted on, delivery,
insuring, use, operation, improvement, transfer, return or other disposition of
any Property or any part thereof or interest therein; (c) the Notes, the Lessor
Amounts or other indebtedness with respect to any Property or any part thereof
or interest therein or transfer thereof; (d) the rentals, receipts or earnings
arising from any Property or any part thereof or
-14-
interest therein; (e) the Operative Documents or any payment made or accrued
pursuant thereto; (f) the income or other proceeds received with respect to any
Property or any part thereof or interest therein upon the sale or disposition
thereof; (g) any contract relating to the acquisition or delivery of the
Improvements or any part thereof or interest therein; (h) the issuance of the
Notes and payments thereon; or (i) otherwise in connection with the transactions
contemplated by the Operative Documents.
Notwithstanding anything in the first paragraph of this definition
(except as provided in the final paragraph of this definition) the term
"Imposition" shall not mean or include:
(i) Taxes that are based upon or measured by or with
respect to the net income of any Tax Indemnitee (including, without
limitation, any minimum Taxes, value added Taxes imposed in lieu of net
income Taxes, income or capital gains Taxes, excess profits Taxes,
items of Tax preference, or capital stock, franchise, business
privilege or doing business Taxes), (but Taxes described in this clause
(i) shall not include Taxes imposed under Section 1446 of the Code or
that are, or are in the nature of, sales, use, rental, transfer or
property Taxes), in each case imposed by any Governmental Authority in
the jurisdiction of incorporation or residence of such Tax Indemnitee,
or the jurisdiction in which such Tax Indemnitee maintains its
principal office, applicable lending office or a place of business or a
jurisdiction that imposes such Tax because of such Tax Indemnitee's
activities in such jurisdiction, provided that this clause (i) shall
not be interpreted to prevent a payment from being made on an After Tax
Basis if such payment is otherwise required to be so made, provided,
further that this clause (i) shall not apply to Taxes imposed on a Tax
Indemnitee solely as a result of the Lessee's activities or the
location of any Property in the jurisdiction imposing such Taxes;
(ii) with respect to any Property, any Tax to the extent
such Tax is attributable to any act, event or omission that occurs, or
is attributable to a period beginning after the return of such Property
to the Lessor in accordance with the terms of the Lease, (x) unless a
Lease Event of Default has occurred and is continuing, after the Lease
Termination Date or (y) if the Lessee is required to return such
Property to the Lessor, provided, that there shall not be excluded from
the definition of the term "Impositions" any Taxes to the extent such
Taxes are attributable to events or circumstances occurring, or matters
arising, prior to or ending with the Expiration Date, or if applicable,
the events or circumstances set forth in clause (y) above;
(iii) any Tax for so long as, but only for so long as, it
is being contested in accordance with the provisions of Section 13.5(b)
of the Participation Agreement, provided that the foregoing shall not
limit any obligation under such Section to advance to the relevant Tax
Indemnitee amounts with respect to Taxes that are being contested in
accordance with such Section or any expenses reasonably incurred by
such Tax Indemnitee in connection with such contest;
-15-
(iv) any Taxes (including, without limitation, sales and
transfer Taxes) to the extent imposed with respect to any voluntary
transfer, sale, financing or other voluntary disposition (x) of any
interest in any Property or any part thereof, or any interest therein
or any interest or obligation under the Operative Documents (other than
any transfer in connection with (1) the exercise by the Lessee of its
Purchase Option or Remarketing Option or any termination option or
other purchase of such Property by the Lessee, (2) the occurrence of a
Lease Event of Default (3) a Casualty or Condemnation affecting such
Property or (4) any sublease, modification or addition to such Property
by the Lessee);
(v) Taxes to the extent resulting from, or to the extent
that such Taxes would not have been imposed but for, the gross
negligence or willful misconduct of such Tax Indemnitee or Affiliate
thereof;
(vi) Taxes to the extent imposed solely as a result of a
material breach by the Tax Indemnitee or any Affiliate thereof of any
representations, warranties or covenants set forth in the Operative
Documents (unless such breach is caused by the Lessee's breach of its
representations, warranties or covenants set forth in the Operative
Documents);
(vii) with respect to any Property, Taxes which are
included in the Property Balance, if and to the extent actually paid,
or property taxes to the extent reimbursable by the Lessor pursuant to
the last sentence of Section 12.1(b) of the Participation Agreement;
(viii) Taxes imposed by any Governmental Authority to the
extent that such Taxes would have been imposed in the absence of the
transactions contemplated by the Operative Documents, and Taxes to the
extent imposed by any Governmental Authority arising directly out of,
or imposed solely as a result of, activities of a Tax Indemnitee or
Affiliate thereof unrelated to the Transactions; and
(ix) Taxes arising directly out of or resulting solely
from, or to the extent that such Taxes would not have been imposed but
for the existence of, any Lessor Lien attributable to such Tax
Indemnitee.
Notwithstanding the foregoing, the exclusions from the definition of
Impositions set forth in clauses (i), (ii), (iv), (vii), (viii) and (ix) above,
shall not apply to any aggregate increase in Taxes imposed on or paid by,
directly or indirectly, a Tax Indemnitee or an entity directly or indirectly
owned by a Tax Indemnitee net of any decrease in Taxes realized by such Tax
Indemnitee or entity as a direct result of its payment of such Taxes, to the
extent that such Tax increase would not have occurred if on each Acquisition
Date the Lessor and the Lenders had advanced funds to the Lessee in the form of
a loan secured by the Properties in an amount equal to the Advance funded on
such Acquisition Date, with interest for such loans equal to the Basic Rent
payable on each Scheduled Payment Date on a principal balance at the maturity of
such loans in an
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amount equal to the then outstanding amount of the Advances at the end of the
term of the Master Lease.
"Improvements" means all buildings, structures, fixtures, Equipment and
other improvements of every kind existing at any time and from time to time
(including those purchased with amounts advanced by the Participants pursuant to
the Participation Agreement) on or under any parcel of Land to be acquired
pursuant to the terms of the Operative Documents, together with any and all
appurtenances to such buildings, structures or improvements, including
sidewalks, utility pipes, conduits and lines, parking areas and roadways, and
including all Modifications and other additions to or changes in the
Improvements at any time.
"Imputed Return" means an amount equal to the Base Rate plus 4% per
annum on each Participant's outstanding Loan Amount or Lessor Amount during the
period from the Scheduled Lease Termination Date to the date of determination.
"Indebtedness" means, without duplication, with respect to the Lessee
and each Subsidiary of the Lessee, such Person's (i) obligations for borrowed
money, (ii) obligations representing the deferred purchase price of any of its
property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from any property now or hereafter owned or acquired,
including via merger, by such Person, (iv) obligations which are evidenced by
notes, acceptances, or other instruments, (v) obligations under Capitalized
Leases which would be shown as a liability on a balance sheet of such Person,
(vi) net liabilities under any agreement, device or arrangement designed to
protect at least one of the parties thereto from the fluctuation of interest
rates, exchange rates or forward rates applicable to such party's assets,
liabilities or exchange transactions (including any cancellation, buy back,
reversal, termination or assignment thereof), (vii) derivative interests as
defined in FAS 133 of the Financial Accounting Standards Board; (viii)
Indebtedness of another Person for which such Person is obligated pursuant to a
Guaranty, and (ix) the portion of any accounts receivable for which there is
recourse to such Person; provided, that "Indebtedness shall not include any
overdrafts arising under a Yen-Denominated Facility.
"Indemnitee" means each Participant, the Administrative Agent and the
Arranger.
"Insurance Requirements" means the terms and conditions of any
insurance policy, and the requirements of the issuer of any such policy, which
insurance policy is required to be maintained by the Lessee under the Master
Lease in each case the failure to comply with such terms, conditions and/or
requirements would under applicable law or the terms of such insurance policy
constitute a valid defense to the insurer against payment of insurance proceeds
thereunder.
"Interest Period" means (x) with respect to any Loans or Lessor Amounts
bearing interest or Yield at the Base Rate, the calendar month immediately
preceding a
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Scheduled Payment Date, or a portion of such calendar month during which the
relevant Loans bear interest by reference to the Base Rate and (y) with respect
to any Loans or Lessor Amounts bearing interest or Yield at the applicable
Adjusted Eurodollar Rate that are funded on any Acquisition Date, initially the
period commencing on the Advance date of any such Loan or Lessor Amounts and
ending on May 1, 2003, and thereafter each period commencing on the last day of
the immediately preceding Interest Period applicable to such Loan or Lessor
Amounts and ending one, two, three, or six months thereafter, as selected by the
Lessee and confirmed in writing to the Administrative Agent and the Lessor not
less than three (3) Business Days prior to the last day of the then current
Interest Period with respect thereto; provided that if Lessee fails to provide
notice of its selection as provided above for any period, the Lessee shall be
deemed to have selected a one-month period.
"Japanese Assets" means assets held in ▇▇▇ Research Co., Ltd., a
Japanese joint stock company, or any successor thereto.
"Land" means each individual fee interest or leasehold interest, as the
case may be, in real property described on Schedule I to each Lease Supplement,
and includes all Appurtenant Rights attached thereto.
"Lease" means, collectively, the Master Lease and each Lease
Supplement.
"Lease Balance" means, as of any date of determination, an amount equal
to the sum of the Loan Balance and the Lessor Balance and all other amounts
owing by the Lessee under the Operative Documents (including without limitation,
accrued and unpaid Basic Rent and Supplemental Rent, if any).
"Lease Default" means any event or condition that, with the lapse of
time or the giving of notice, or both, would constitute a Lease Event of
Default.
"Lease Event of Default" is defined in Section 16.1 of the Master
Lease.
"Lease Rents" is defined in Section 2(a)(i) of the Assignment of Lease
and Rent.
"Lease Supplement" means each Lease Supplement substantially in the
form set forth in Exhibit A to the Master Lease, executed by the Lessee, the
Lessor and, if appropriate in the applicable jurisdiction, the trustee described
therein, dated an Acquisition Date and covering the Property (or, in the case of
Property ▇▇. ▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇ and Property No. 4, the respective Land or
Improvements related thereto) described therein as the same may be amended,
supplemented, amended and restated or otherwise modified from time to time.
"Lease Term" is defined in Section 2.3 of the Master Lease.
"Lender Basic Rent" means, as determined as of any Scheduled Payment
Date, interest due on the Loans, determined in accordance with Section 2.5 of
the Loan
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Agreement and excluding (i) any interest at the applicable Overdue Rate on any
installment of Lender Basic Rent not paid when due and (ii) any fine, penalty,
interest or cost assessed or added under any agreement with a third party for
nonpayment or late payment of Lender Basic Rent.
"Lender Commitment" means the Commitment of each Lender in the amount
set forth on Schedule I of the Participation Agreement, as such Schedule may be
amended, supplemented, amended and restated, reduced or otherwise modified from
time to time.
"Lenders" means, collectively, Key Corporate Capital Inc., each
Eligible Lender Assignee and each other holder from time to time of a Note.
"Lessee" means ▇▇▇ Research Corporation, a Delaware corporation.
"Lessor" means SELCO Service Corporation, an Ohio corporation.
"Lessor Amount" is defined in Section 3.2 of the Participation
Agreement.
"Lessor Balance" means, as of any date of determination, an amount
equal to the sum of the outstanding Lessor Amounts together with all accrued and
unpaid Yield thereon and all other amounts owing to the Lessor under the
Operative Documents.
"Lessor Basic Rent" means the amount of accrued and unpaid Yield due on
the Lessor Amounts, determined in accordance with Section 4.1 of the
Participation Agreement as of any Scheduled Payment Date and excluding (i) any
interest at the applicable Overdue Rate on any installment of Lessor Basic Rent
not paid when due and (ii) any fine, penalty, interest or cost assessed or added
under any agreement with a third party for nonpayment or late payment of Lessor
Basic Rent.
"Lessor Commitment" means the Commitment of the Lessor in the amount
set forth on Schedule I of the Participation Agreement, as such Schedule may be
amended, supplemented, amended and restated, reduced or otherwise modified from
time to time.
"Lessor Financing Statements" means UCC financing statements
appropriately completed and executed, if applicable, for filing in the
applicable jurisdiction in order to protect the Lessor's and the Administrative
Agent's respective interests under the Master Lease and each Lease Supplement to
the extent the Master Lease and the Lease Supplements are security agreements.
"Lessor Lien" means any Lien arising as a result of (a) any claim
against any Participant not resulting from the transactions contemplated by the
Operative Documents, (b) any act or omission of any Participant that is not
required or permitted by the Operative Documents or is in violation of any of
the terms of the Operative Documents or (c) any claim against any Participant
with respect to Taxes or Transaction Expenses against which the Lessee is not
required to indemnify such Participant pursuant to Article XIII of the
Participation Agreement.
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"Lessor Margin" means, with respect to any Lessor Amount which is a
Eurodollar Loan/Lessor Amount, [***] per annum.
"Lessor Mortgage" means, with respect to each Property, the applicable
Lease Supplement for such Property and any and all other security instruments in
appropriate recordable form in the relevant jurisdiction sufficient to grant to
the Lessor a first priority Lien on such Property.
"Lien" shall mean any interest in property securing an obligation owed
to, or a claim by, a Person other than the owner of the property, whether such
interest is based on common law, statute or contract, and including but not
limited to the security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale or trust receipt or a lease, consignment or bailment
for security purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances (including, with respect to
stock, stockholder agreements, voting trust agreements, buy-back agreements and
all similar arrangements) affecting property.
"Loan Agreement" means the Loan Agreement, dated as of June 1, 2003,
among the Lessor, as borrower thereunder, the Lenders, and the Administrative
Agent, substantially in the form of Exhibit D to the Participation Agreement, as
the same may be amended, supplemented, amended and restated or otherwise
modified from time to time.
"Loan Agreement Default" means any event, act or condition that with
notice or lapse of time, or both, would constitute a Loan Agreement Event of
Default.
"Loan Agreement Event of Default" is defined in Section 5.1 of the Loan
Agreement.
"Loan Balance" means, as of any date of determination, an amount equal
to the sum of the outstanding Loans together with all accrued and unpaid
interest thereon pursuant to the Loan Agreement.
"Loan Commitment" means, with respect to each Lender, the aggregate
Commitment of such Lender in the amount set forth on Schedule I to the
Participation Agreement, as such Schedule may be amended, supplemented, amended
and restated or otherwise modified from time to time.
"Loan Documents" means the Loan Agreement and the Notes.
"Loan Margin" means, with respect to any Loan that is a Eurodollar
Loan/Lessor Amount, [***] per annum.
The Symbol [***] is used to indicate that a portion of the exhibit has
been omitted and filed separately with the commission. Confidential treatment
has been requested with respect to the omitted portion.
"Loans" is defined in Section 2.1(a) of the Loan Agreement.
-20-
"London Interbank Offering Rate" means, as applicable to any Eurodollar
Loan/Lessor Amount, for the Interest Period of such Eurodollar Loan/Lessor
Amount, the rate per annum determined by the Administrative Agent with respect
to Loans and by the Lessor with respect to Lessor Amounts on the basis of the
offered rate for deposits in Dollars of amounts equal or comparable to the
principal or analogous amount of such Eurodollar Loan/Lessor Amount offered for
a term comparable to such Interest Period, which rates appear on the Reuters
Screen LIBO Page as of 11:00 a.m. (London time) two (2) Business Days prior to
the first day of such Interest Period, provided that (i) if more than one such
offered rate appears on the Reuters Screen LIBO Page, the "London Interbank
Offering Rate" will be the arithmetic average (rounded upwards, if necessary, to
the next higher 1/16th of it) of such offered rates; and (ii) if no such offered
rates appear on such page, the "London Interbank Offering Rate" for such
Interest Period will be the rate per annum quoted by the Administrative Agent,
two (2) Business Days prior to the first day of such Interest Period, for
deposits in Dollars offered to leading banks for a period comparable to such
Interest Period in an amount comparable to the principal or analogous amount of
such Eurodollar Loan/Lessor Amount.
"Margin Stock" has the meaning given such term under Regulation U.
"Marketing Period" means the period commencing on the date 180 days
prior to the Expiration Date and ending on the Expiration Date.
"Master Lease" means the Amended and Restated Master Lease and Deed of
Trust, dated as of June 1, 2003, between the Lessor and the Lessee,
substantially in the form of Exhibit C to the Participation Agreement, as the
same may be amended, supplemented, amended and restated or otherwise modified
from time to time.
"Material" and "Materially" mean material to (i) the ability of the
Lessee to perform its obligations under the Operative Documents, (ii) the value,
condition, utility or useful life of any Property or (iii) the business,
financial condition or results of operations of the Lessee and its Subsidiaries
taken as a whole.
"Material Adverse Change" means any material adverse change in the
financial condition or results of operations of the Lessee and its Subsidiaries
taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, property, condition (financial or otherwise) or results of operations
of the Lessee and its Subsidiaries taken as a whole, (b) the rights and remedies
of the Lessor, the Administrative Agent or any Lender under the Operative
Documents, (c) the ability of the Lessee to perform its obligations under the
Operative Documents or (d) the value, utility, condition or useful life of any
Property.
"Material Subsidiary" means any Subsidiary of the Lessee that has
assets with a value of not less than 5% of the total value of the assets of the
Lessee and its Subsidiaries taken as a whole as of the end of the most recently
completed fiscal year of the Lessee.
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"Maturity Date" means with respect to the Loans and the Lessor Amounts,
the fifth anniversary of the Documentation Date.
"Maximum Lease Term" means the period ending on the fifth anniversary
of the Documentation Date.
"Maximum Recourse Amount" means, with respect to any Property (or, in
the case of Property ▇▇. ▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇ and Property No. 4, the respective
Land or Improvements related thereto), the Property Cost of such Property (or,
in the case of Property ▇▇. ▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇ and Property No. 4, the respective
Land or Improvements related thereto) multiplied by the percentage set forth in
Schedule III to the Participation Agreement.
"Modifications" is defined in Section 10.1 of the Master Lease.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means any Mortgage or Deed of Trust, as the case may be,
between the Lessor and the Administrative Agent, substantially in the form of
Exhibit I to the Participation Agreement.
"Mortgage Foreclosure Act" is defined in Section 16.4 of the Master
Lease.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Lessee or other
member of the Controlled Group is a party and to which more than one employer is
obligated to make contributions.
"Net Proceeds" means the aggregate of all awards, compensation,
insurance proceeds or other amounts received by the Administrative Agent, the
Lessor or any Lender in connection with any Casualty or Condemnation of any
Property and all interest earned thereon, less, to the extent not previously
reimbursed by the Lessee, the expense of claiming and collecting such amounts,
including all costs and expenses in connection therewith for which the Lessor,
the Administrative Agent or any Lender is entitled to be reimbursed pursuant to
the Lease.
"Non-U.S. Transferee" is defined in Section 12.3(a) of the
Participation Agreement.
"Notes" means Series A Notes and Series B Notes, collectively, and
"Note" means any of them.
"Obligations" means all obligations (monetary or otherwise) of the
Lessee arising under or in connection with any of the Operative Documents.
-22-
"Off-Balance Sheet Obligations" means, with respect to the Lessee and
each Subsidiary of the Lessee, (i) the principal portion of such Person's
obligations under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product and (ii)
the recourse portion of the aggregate amount of uncollected accounts receivable
of such Person subject at such time to a sale of receivables (or similar
transaction).
"Operative Documents" means the following:
(a) the Participation Agreement;
(b) the Master Lease;
(c) each Lease Supplement;
(d) the Loan Agreement;
(e) each Note;
(f) the Assignment of Lease and Rent;
(g) each Deed and each ▇▇▇▇ of Sale;
(h) the Lessor Mortgages;
(i) the Lessor Financing Statements;
(j) each Mortgage; and
(k) the Cash Collateral Documents.
"Original Executed Counterpart" is defined in Section 26.9 of the
Master Lease.
"Overdue Rate" means, with respect to any Loan or Lessor Amount, the
Base Rate, or the Adjusted Eurodollar Rate then in effect for such Loan or
Lessor Amount, as the case may be, plus [***] per annum.
THE SYMBOL [***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS
BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTION.
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"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Partial Purchase Option" is defined in Section 15.14 of the
Participation Agreement.
"Partial Termination Date" is defined in Section 15.2 of the Master
Lease.
"Partial Termination Notice" is defined in Section 15.1 of the Master
Lease.
"Participant Balance" means, with respect to any Participant as of any
date of determination: (i) with respect to any Lender, an amount equal to the
aggregate outstanding Loans of such Lender, together with all accrued and unpaid
interest thereon or (ii) with respect to the Lessor, an amount equal to the
aggregate outstanding Lessor Amounts, together with all amounts of accrued and
unpaid Yield thereon.
"Participants" means, collectively, each Lender and the Lessor, and
their successors and permitted assigns.
"Participation Agreement" means the Participation Agreement, dated as
of June 1, 2003, among the Lessee, the Lessor, the Lenders and the
Administrative Agent as the same may be amended, supplemented, amended and
restated or otherwise modified from time to time.
"Payment Date" means each Scheduled Payment Date and each other date on
which Basic Rent is required to be paid by the Lessee.
"Permitted Property Liens" means, with respect to any Property, any of
the following:
(i) the respective rights and interests of the parties to
the Operative Documents as provided in the Operative Documents
(including any Lien created pursuant to the Operative Documents);
(ii) the rights of any sublessee under a sublease
permitted by the terms of the Master Lease;
(iii) Liens for Taxes that either are not yet due or are
being contested in accordance with the provisions of Section 12.1 of
the Master Lease;
(iv) Liens arising by operation of law, materialmen's,
mechanics', workers', repairmen's, employees', carriers',
warehousemen's and other like Liens relating to the construction of the
Improvements or in connection with any Modifications or arising in the
ordinary course of business for amounts that either
-24-
are not more than sixty (60) days past due or are being diligently
contested in good faith by appropriate proceedings, so long as such
proceedings satisfy the conditions for the contest proceedings set
forth in Section 12.1 of the Master Lease;
(v) Liens of any of the types referred to in clause (iii)
or (iv) above that have been bonded for not less than the full amount
in dispute (or as to which other security arrangements satisfactory to
the Lessor and the Administrative Agent have been made), which bonding
(or arrangements) shall comply with applicable Requirements of Law, and
has effectively stayed any execution or enforcement of such Liens;
(vi) Liens arising out of judgments or awards with respect
to which appeals or other proceedings for review are being prosecuted
in good faith and for the payment of which adequate reserves have been
provided as required by GAAP or other appropriate provisions have been
made, so long as such proceedings have the effect of staying the
execution of such judgments or awards and satisfy the conditions for
contest proceedings set forth in Section 12.1 of the Master Lease;
(vii) easements, licenses, rights-of-way and other
encumbrances on title to real property permitted pursuant to Section
11.2 of the Master Lease;
(viii) Lessor Liens;
(ix) Liens created by the Lessee with the consent of the
Required Participants or otherwise permitted by the Operative
Documents; and
(x) Liens described on the title insurance policy
delivered with respect to such Property pursuant to Section 6.1(p) of
the Participation Agreement, other than Liens described in clause (iv)
or (vi) above.
"Permitted Sales Costs" means, with respect to each Property, all
reasonable costs of sale of such Property incurred by the Lessee pursuant to
Section 20.2 of the Master Lease which costs are of a type customarily paid by
sellers of properties comparable to the applicable Property in the market where
such Property is being sold; provided, however, that "Permitted Sales Costs"
shall not include any costs of repairs, alterations or modifications (including
Required Modifications) desired by the purchaser of any Property or required to
cause any Property to comply with the requirements of the Master Lease.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, and a government or
agency or political subdivision thereof.
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"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Lessee or any other member of the Controlled Group may have
any liability.
"Plans and Specifications" means, with respect to each Property the
final plans and specifications or detailed construction drawings for such
Property.
"Property" means (i) the Lessor's fee simple interest in any parcel of
Land, (ii) all of the Improvements at any time located on or under such Land and
(iii) the Equipment at any time located on or under such Land.
"Property Balance" means, with respect to any Property, an amount equal
to the outstanding principal or analogous amount of the Loans and Lessor Amounts
relating to such Property, plus all accrued and unpaid interest and Yield
thereon, plus any Supplemental Rent related to such Property or allocable to
such Property plus any other amounts due and owing to the Participants and the
Administrative Agent with respect to such Property or allocable to such
Property.
"Property Cost" means, with respect to any Property, the amount of the
Advance made under the Participation Agreement with respect to the acquisition
of such Property.
"Property No. 1" is defined in Schedule III of the Participation
Agreement and legally described on Schedule I to the applicable Lease
Supplement.
"Property No. 2" is defined in Schedule III of the Participation
Agreement and legally described on Schedule I to the applicable Lease
Supplement.
"Property No. 3" is defined in Schedule III of the Participation
Agreement and legally described on Schedule I to the applicable Lease
Supplement.
"Property No. 4" is defined in Schedule III of the Participation
Agreement and legally described on Schedule I to the applicable Lease
Supplement.
"Purchase Notice" means an irrevocable written notice by the Lessee
delivered to the Lessor pursuant to Section 18.1 of the Master Lease, notifying
the Lessor of the Lessee's intention to exercise its option pursuant to such
Section, and identifying the proposed purchase date therefor.
"Purchase Option" means the Lessee's option to purchase any or all of
the Properties in accordance with the provisions of Section 18.1 of the Master
Lease.
"Purchase Option Price" is defined in Section 18.1 of the Master Lease.
"RCRA" means the Resource Conservation and Recovery Act of 1976, as
amended by the Solid and Hazardous Waste Amendments of 1984, 42 U.S.C. Sections
6901 et seq.
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"Regulation U" means Regulation U of the F.R.S. Board, as in effect
from time to time.
"Release" means any release, pumping, pouring, emptying, injecting,
escaping, leaching, dumping, seepage, spill, leak, flow, discharge, disposal or
emission of a Hazardous Material.
"Remarketing Option" is defined in Section 20.1 of the Master Lease.
"Rent" means, collectively, the Basic Rent and the Supplemental Rent.
"Rents" is defined in Section 2(b) of the Assignment of Lease and Rent.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within thirty (30)
days of the occurrence of such event.
"Requesting Party" is defined in Section 22.1 of the Master Lease.
"Required Lenders" means, at any time, Lenders having Loan Commitments
representing at least 66-2/3% of the aggregate Loan Commitments of the Lenders
or, for purposes of acceleration pursuant to Section 5.2(a)(ii)(y) of the Loan
Agreement or in the event that the Loan Commitments have been terminated,
Lenders representing at least 66-2/3% of the aggregate principal amount of Loans
outstanding.
"Required Modification" is defined in Section 10.1(a) of the Master
Lease.
"Required Participants" means the Lessor and the Required Lenders.
"Requirement of Law" means, as to any Person (a) the partnership
agreement, certificate of incorporation, bylaws, operating agreement or other
organizational or governing documents of such Person, and (b) all Federal,
state, county, municipal and other governmental statutes, laws, rules, orders,
regulations, ordinances, judgments, decrees and injunctions affecting any
Property, the Improvements or the demolition, construction, use or alteration
thereof, whether now or hereafter enacted and in force, including any that
require repairs, modifications or alterations in or to any Property or in any
way limit the use and enjoyment thereof (including all building, zoning and fire
codes and the Americans with Disabilities Act of 1990, 42 U.S.C. Sections 1201
et seq., and any other similar Federal, state or local laws or ordinances and
the regulations promulgated thereunder) and any that may relate to environmental
requirements (including all Environmental Laws), and all permits, certificates
of occupancy, licenses, authorizations and regulations relating thereto, and all
covenants, agreements, restrictions and encumbrances contained in any
instruments which are of record affecting any
-27-
Property, the Appurtenant Rights and any easements, licenses or other agreements
entered into pursuant to Section 11.2 of the Master Lease.
"Responsible Officer" means (a) as to the Lessee, any Authorized
Officer and (b) as to any other Person, the chief executive officer, the
president, any vice president, the secretary, any assistant secretary or the
treasurer of such Person.
"Responsible Officer's Certificate" means a certificate signed by any
Responsible Officer which certificate shall certify as true and correct the
subject matter being certified to in such certificate.
"Return Conditions" is defined in Section 20.1 of the Master Lease.
"S&P" means Standard & Poor's Rating Service, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Scheduled Payment Date" means (x) for funds accruing interest or Yield
at the Base Rate, the first (1st) day of each calendar month, or if such day is
not a Business Day, the next succeeding Business Day, and (y) for funds accruing
interest or Yield at the Adjusted Eurodollar Rate, the last day of the
applicable Interest Period, or in the case of any Interest Period greater than
three (3) months, three (3) months from the last Scheduled Payment Date, or if
such day is not a Business Day, the next succeeding Business Day unless the
result would be that the Scheduled Payment Date would be in the next succeeding
calendar month, in which case such Payment Date shall be on the next preceding
Business Day.
"SEC" means the Securities and Exchange Commission or any Governmental
Authority succeeding to any of its principal functions.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"Series A Loans" means that portion of the Loans made by the Lenders
allocated as "Series A Loans" pursuant to Schedule I to the Participation
Agreement.
"Series B Loans" means that portion of the Loans made by the Lenders
allocated as "Series B Loans" pursuant to Schedule I to the Participation
Agreement.
"Series A Notes" means promissory notes of the Lessor substantially in
the form of Exhibit A to the Loan Agreement with respect to the amounts of each
Lender's Commitment allocated to Series A Loans.
"Series B Notes" means promissory notes of the Lessor substantially in
the form of Exhibit A to the Loan Agreement with respect to the amounts of each
Lender's Commitment allocated to Series B Loans.
-28-
"Severable Modifications" means modifications (a) that are not Required
Modifications and (b) that can be removed from the applicable Property without
(i) causing damage to such Property that cannot be readily repaired or (ii)
materially impairing the marketability, value, utility or useful life of such
Property from that set forth in the Appraisal thereof delivered in connection
with the Acquisition Date therefor.
"Short-Term Investments" means those assets shown as short term
investments on the Lessee's financial statements prepared in accordance with
GAAP.
"Shortfall Amount" means for each Property, as of the Expiration Date,
an amount equal to (i) the Property Balance, minus (ii) the aggregate Maximum
Recourse Amount minus (iii) the aggregate amount of the highest, binding,
written, unconditional, irrevocable cash offer to purchase such Property
obtained by the Lessee pursuant to Section 20.2(c) of the Master Lease;
provided, however, that if the sale of such Property to the Person or Persons
submitting such offer or offers is not consummated on or prior to the Expiration
Date, then the term "Shortfall Amount" shall mean an amount equal to (i) such
Property Balance, minus (ii) the Maximum Recourse Amount.
"Significant Casualty" with respect to a Property means a Casualty that
in the reasonable, good faith judgment of the Administrative Agent and the
Lessor (a) renders such Property unsuitable for continued use as an office
facility, assembly facility or research and development facility, as applicable
or (b) is so substantial in nature that restoration of such Property to
substantially its condition as it existed immediately prior to such Casualty
would be impracticable or impossible.
"Significant Condemnation" with respect to a Property means (a) a
Condemnation that involves a taking of the Lessor's entire title to the Land or
(b) a Condemnation that in the reasonable, good faith judgment of the
Administrative Agent and the Lessor (i) renders such Property unsuitable for
continued use as an office facility, assembly facility or research and
development facility, as applicable or (ii) is so substantial in nature that
restoration of the remaining portion of such Property to substantially its
condition as it existed immediately prior to such Condemnation would be
impracticable or impossible.
"Single Employer Plan" means a Plan maintained by the Lessee or any
member of the Controlled Group for employees of the Lessee or any member of the
Controlled Group.
"Solvent" means with respect to any Person on a particular date, that
on such date (i) the fair value of the property of such Person is greater than
the total amount of liabilities, including, without limitation, contingent
liabilities of such Person, (ii) the present fair saleable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (iii) such Person is able to realize upon its assets and pay its debts
and other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (iv) such Person does not intend to,
and does not believe that
-29-
it will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature and (v) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's property would constitute unreasonably small capital after giving
due consideration to the prevailing practice in the industry in which such
Person is engaged. In computing the amount of contingent liabilities at any
time, it is intended that such liabilities will be computed at the amount which,
in light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability taking into account any subrogation and contribution rights.
"Structuring Fee" is defined in Section 4.4(a) of the Participation
Agreement.
"Subject Improvements" is defined in each Lease Supplement.
"Subject Land" is defined in each Lease Supplement.
"Subject Property" is defined in each Lease Supplement and, as used in
the Participation Agreement, means in the case of any Acquisition Date, the
Property being acquired by the Lessor on such Acquisition Date.
"Subsidiary" means, as to any Person, any corporation or other entity
of which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person; unless
otherwise specified, "Subsidiary" means a Subsidiary of the Lessee.
"Summary of Terms" means that certain Summary of Terms and Conditions
dated April 24, 2003 between Lessee and the Arranger.
"Supplemental Rent" means all amounts, liabilities and obligations
(other than Basic Rent) that the Lessee assumes or agrees to pay to the
Administrative Agent, any Participant or any other Person under the Master
Lease, or under any of the other Operative Documents, including, without
limitation, Fees, Break Costs, Maximum Recourse Amounts, Shortfall Amounts,
Transaction Expenses, amounts due pursuant to Article XIII of the Participation
Agreement and payments pursuant to Sections 15.2 of the Master Lease and
Articles XVIII and XX of the Master Lease.
"Tax Indemnitee" means each Participant, the Administrative Agent and
the Arranger.
"Taxes" is defined in the definition of Impositions.
"Transaction Expenses" means all costs and expenses incurred in
connection with the preparation, execution and delivery of the Operative
Documents and the transactions contemplated by the Operative Documents including
without limitation:
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(a) the reasonable fees (subject to the limitation
separately agreed to among the parties), out-of-pocket expenses and
disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel for the Lessor
and the Arranger, in preparing and negotiating the terms of the
Operative Documents and the other transaction documents, preparing for
the closing under, and rendering opinions in connection with, the
transactions contemplated thereby and in rendering other services
customary for counsel representing parties to transactions of the types
involved in the transactions contemplated by the Operative Documents;
(b) (i) the reasonable fees, out-of-pocket expenses and
disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇ LLP, special counsel
for the Lessee, in negotiating the terms of the Operative Documents and
the other transaction documents, preparing for the closings under, and
rendering opinions in connection with, the transactions contemplated
thereby and in rendering other services in connection with the
transactions contemplated thereby customary for counsel representing
parties to transactions of the types involved in the transactions
contemplated by the Operative Documents, and the reasonable fees,
out-of-pocket expenses and disbursements of special counsel for the
Lessee in connection with the transactions contemplated to occur on
each Acquisition Date; and (ii) the reasonable fees, out-of-pocket
expenses and disbursements of local counsel for the Lessee in each
applicable jurisdiction in negotiating the terms of the Operative
Documents and the other transaction documents, preparing for the
closings under, and rendering opinions in connection with, the
transactions contemplated to occur on each Acquisition Date and the
Documentation Date and in rendering other services in connection with
the transactions contemplated by the Operative Documents which are
customary for counsel representing parties to transactions of the types
involved in the transactions contemplated by the Operative Documents;
(c) any and all Taxes and fees incurred in recording,
registering or filing any Operative Document or any other transaction
document, any deed, declaration, mortgage, security agreement, notice
or financing statement with any public office, registry or governmental
agency required by the Operative Documents in connection with the
transactions contemplated by the Operative Documents;
(d) all reasonable out-of-pocket expenses, disbursements
and costs of the Administrative Agent, the Arranger, the Lenders and
the Lessor in connection with the transactions contemplated by the
Operative Documents (including without limitation the transactions
contemplated to occur on each Acquisition Date);
(e) all title fees, premiums and escrow costs and other
expenses relating to title insurance and the closing contemplated by
the Operative Documents;
-31-
(f) all expenses relating to Environmental Audits
required to be delivered pursuant to Section 6.1(h) of the
Participation Agreement;
(g) all fees and other expenses relating to Appraisals
required to be delivered pursuant to Section 6.1(d) of the
Participation Agreement;
(h) the Fees payable by the Lessee pursuant to Section
4.4 of the Participation Agreement;
(i) the fees and expenses of any rating agency providing
a rating with respect to the Notes and/or the Lessor's interest in the
Transactions; and
(j) any other expenses incurred by the Lessee in
connection with the Transactions.
"Transactions" shall mean the transactions contemplated under the
Participation Agreement and each of the other Operative Documents.
"Unfunded Vested Liabilities" means the amount (if any) by which the
present value of all currently accrued, vested and nonforfeitable benefits under
all Single Employer Plans exceeds the fair market value of all assets of such
Plan allocable to such benefits, all determined on an ongoing Plan basis as set
forth in the then most recent actuarial valuation for each such Plan.
"Uniform Commercial Code" and "UCC" means the Uniform Commercial Code
as in effect in any applicable jurisdiction.
"United States" means the United States of America.
"U.S. Transferee" is defined in Section 12.3(b) of the Participation
Agreement.
"Yen-Denominated Facility" means any credit facility from time to time
entered into by ▇▇▇ Research Co., Ltd., a Japanese joint stock company or any
successor thereto.
"Yield" is defined in Section 4.1(a) of the Participation Agreement.
"Yield Rate" means the Adjusted Eurodollar Rate applicable to Lessor
Amounts, subject to the provisions of Sections 13.7, 13.8 and 13.9 of the
Participation Agreement.
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