\n SECTION 14.12. Further Assurances…………………………………………………………..52
\n SECTION 14.13. WAIVER OF JURY TRIAL…………………………………………………………53
\n SECTION 14.14. Limitations on Recourse Against Lessor…………………………………………53
\n SECTION 14.15. Limitation on Recourse Against Facility Lender………………………………….53<\/p>\nAPPENDICES
\n APPENDIX 1 Definitions and Interpretation
\n APPENDIX 2 Property Costs
\n APPENDIX 3 Pricing Provisions for Lessor Investment Amount<\/p>\n
EXHIBITS
\n EXHIBIT A Opinion of Counsel to Lessee
\n EXHIBIT B Opinion of Counsel to Facility Lender
\n EXHIBIT C Opinion of Counsel to Lessor
\n EXHIBIT D Assignment of Lease and Consent to Assignment
\n EXHIBIT E Master Assignment and Consent to Master Assignment
\n EXHIBIT F Form of Lease
\n EXHIBIT G Form of Opinion of Counsel to Lessee Required for Substitution of Properties
\n EXHIBIT H Form of Compliance Certificate
\n<\/c><\/c><\/s><\/table>\n
5<\/p>\n
PARTICIPATION AGREEMENT<\/p>\n
THIS PARTICIPATION AGREEMENT, dated as of October 22, 1998 (this
\n“Agreement” or “Participation Agreement”), is entered into by and among THE HOME
\nDEPOT, INC., a Delaware corporation, as Guarantor (the “Guarantor”), HOME DEPOT
\nU.S.A., INC. a Delaware corporation, as Lessee (“Lessee”), HD REAL ESTATE
\nFUNDING CORP. II, a Delaware corporation (“Facility Lender”), CREDIT SUISSE
\nLEASING 92A, L.P., a Delaware limited partnership, as lessor (“Lessor”), THE
\nBANK OF NEW YORK, a banking corporation organized and existing under the laws of
\nthe State of New York, as Indenture Trustee for the Noteholders (in such
\ncapacity, the “Indenture Trustee”) and CREDIT SUISSE FIRST BOSTON CORPORATION
\nand INVEMED ASSOCIATES, INC. (collectively, the “Initial Purchasers”).<\/p>\n
PRELIMINARY STATEMENT<\/p>\n
In accordance with the terms of this Participation Agreement, the
\nLease, the Loan Agreement, the Indenture of Trust and the other Operative
\nDocuments,<\/p>\n
A. the Lessor is the owner of certain parcels of Land on
\n which certain Improvements have been constructed for the use of Lessee;<\/p>\n
B. the Lessor wishes to refinance approximately 97% of the
\n total cost of the acquisition of such Land and the construction of such
\n Improvements;<\/p>\n
C. the Facility Lender has agreed to issue Fixed Rate Notes at
\n par to the Initial Purchasers pursuant to the Indenture of Trust in an
\n aggregate principal amount equal to the Maximum Debt Amount, with the
\n gross proceeds of the sale of the Fixed Rate Notes to be lent to the
\n Lessor pursuant to the Loan Agreement for the refinancing of the
\n existing indebtedness secured by Liens on the Properties;<\/p>\n
D. the Lessee wishes to lease the Properties from the Lessor
\n under the Lease and the Guarantor is willing to guarantee the Lessee’s
\n obligations under the Operative Documents;<\/p>\n
E. the Lessee, in consideration of the obligations of the
\n Facility Lender pursuant to the Operative Documents, is willing to pay
\n all costs and fees of the Participants incurred in connection with the
\n transactions contemplated hereby, subject to the limitations contained
\n herein;<\/p>\n
F. to secure its obligations to the Facility Lender pursuant
\n to the Loan Agreement, the Lessor is granting a lien to the Facility
\n Lender, pursuant to the Mortgages and the other Security Documents, on
\n all of the Lessor’s right, title and interest in the Properties and
\n substantially all of the Lessor’s rights under the Lease with respect
\n to the Properties; and<\/p>\n
6<\/p>\n
G. to secure its obligations to the Indenture Trustee and the
\n Noteholders under the Indenture of Trust, the Facility Lender is
\n pledging to the Indenture Trustee, for the benefit of the Noteholders,
\n pursuant to the Master Assignment, substantially all of its right,
\n title and interest in and to the Loan Agreement, the Note and Security
\n Documents received from the Lessor.<\/p>\n
In consideration of the mutual agreements contained in this
\nParticipation Agreement and other good and valuable consideration, the receipt
\nand sufficiency of which are hereby acknowledged, the parties hereto agree as
\nfollows:<\/p>\n
SECTION 1.<\/p>\n
DEFINITIONS; INTERPRETATION<\/p>\n
Unless the context shall otherwise require, capitalized terms used and
\nnot defined herein shall have the meanings assigned thereto in Appendix 1
\nattached hereto and made a part hereof by this reference for all purposes
\nhereof; and the rules of interpretation set forth in Appendix 1 hereto shall
\napply to this Participation Agreement.<\/p>\n
SECTION 2.<\/p>\n
CLOSING DATE<\/p>\n
The Closing Date shall occur on the earliest date (on or before October
\n30, 1998) on which all the conditions precedent thereto set forth in this
\nAgreement shall have been satisfied or waived by the applicable parties as set
\nforth therein (such date referred to herein as the “Closing Date”).<\/p>\n
SECTION 3.<\/p>\n
LEASE OF LAND AND FACILITIES; FINANCING ARRANGEMENTS<\/p>\n
SECTION 3.1. Lessor’s Agreement to Refinance and Lease. Subject to the
\nconditions and terms of this Participation Agreement and the other Operative
\nDocuments, the Lessor agrees to take the following actions on the Closing Date:<\/p>\n
(a) to refinance the existing indebtedness secured by the
\n Properties listed on Appendix 2 hereto in the amount of
\n $273,278,000 with the proceeds of the Loan from the Facility
\n Lender;
\n 7<\/p>\n
(b) to have invested its own funds in the Properties in an amount
\n of not less than the Minimum Equity Amount; and<\/p>\n
(c) to lease the Properties listed on Appendix 2 to the Lessee
\n under the Lease.<\/p>\n
Notwithstanding any other provision hereof, after giving effect to the
\ntransactions contemplated hereby, the following statements shall be true (i) the
\nLessor shall have invested the Lessor Investment Amount in the Properties in the
\namount shown on Appendix 2, (ii) the aggregate Property Costs with respect to
\nthe Properties shall not exceed the Maximum Property Cost, (iii) the aggregate
\nProperty Costs with respect to the Properties listed on Appendix 2 shall not
\nexceed 100% of the aggregate As Built Value of such Properties; and (iv) each of
\nthe Properties shall be a Facility located in the continental United States.<\/p>\n
SECTION 3.2. Facility Lender’s Agreements. Subject to the conditions
\nand terms of this Participation Agreement and the other Operative Documents, the
\nFacility Lender agrees to make the Loan to the Lessor on the Closing Date
\npursuant to the Loan Agreement in an aggregate principal amount equal to the
\nMaximum Debt Amount for the Lessor to refinance the existing indebtedness
\nsecured by the Properties. Notwithstanding any other provision hereof, the
\nFacility Lender shall not be obligated to make the Loan if the Facility Lender
\nis unable to issue Fixed Rate Notes in an amount sufficient to fund such Loan
\npursuant to Section 3.3.<\/p>\n
SECTION 3.3. Issuance of Fixed Rate Notes. Subject to the terms and
\nconditions of this Participation Agreement, the Purchase Agreement and the other
\nOperative Documents, in order to fund its obligation to make the Loan to the
\nLessor pursuant to the Loan Agreement, the Facility Lender shall on the Closing
\nDate, issue the Fixed Rate Notes pursuant to the Indenture of Trust to the
\nInitial Purchasers at par in an aggregate principal amount equal to the Maximum
\nDebt Amount.<\/p>\n
SECTION 3.4. Allocation of Lessor Investment Amount and Loan.
\nNotwithstanding any provision of this Participation Agreement to the contrary,
\nthe outstanding Facility Lender Property Balance and Lessor Property Balance
\nwith respect to each Property shall equal the amount set forth for each Property
\non Appendix 2, or in the event of any Property substituted therefor after the
\nClosing Date, in the applicable Lease Supplement, as such amounts may be reduced
\nfrom time to time pursuant to the terms of the Operative Documents.<\/p>\n
SECTION 3.5. Use of Proceeds. The proceeds of the Loan shall be used
\nto refinance the existing indebtedness in the principal amount of $273,278,000
\nsecured by the Properties (the “Existing Indebtedness”).<\/p>\n
3
\n 8<\/p>\n
SECTION 4.<\/p>\n
CERTIFICATE EARNINGS; INTEREST; COMMITMENT FEES<\/p>\n
SECTION 4.1. Certificate Earnings. (a) The amount of the Lessor
\nInvestment Amount outstanding from time to time shall accrue earnings
\n(“Certificate Earnings”) at the Certificate Earnings Rate. If all or any portion
\nof the Lessor Investment Amount, any Certificate Earnings payable thereon or any
\nother amount payable by Guarantor or Lessee hereunder shall not be paid within
\nthirty (30) days of the date when due (whether at stated maturity, the
\nacceleration or otherwise), such overdue amount shall bear interest at a rate
\nper annum which is equal to the Overdue Rate which, in the event such amount is
\nnot paid within such thirty (30) day period, shall be deemed to have begun to
\naccrue on the due date thereof.<\/p>\n
(b) Lessor shall select the applicable Certificate Earnings
\nRate in accordance with the terms and conditions set forth on Appendix 3
\nattached hereto and incorporated herein by this reference.<\/p>\n
(c) On each Payment Date, the Lessor shall, subject to the
\nprovisions of Section 5, receive the Lessor Basic Rent (determined on the basis
\nof accrued Certificate Earnings) received from payments of Basic Rent made by
\nthe Lessee under the Lease from time to time as provided in Section 5.<\/p>\n
SECTION 4.2. Interest on Loan. (a) The Loan shall accrue interest
\ncomputed and payable in accordance with the terms of the Loan Agreement.<\/p>\n
(b) The interest on the Loan shall be paid through the payment
\nof the Lender Basic Rent (determined on the basis of interest on the Loan)
\nreceived from payments of Basic Rent made by the Lessee under the Lease from
\ntime to time as provided in Section 5.<\/p>\n
SECTION 5.<\/p>\n
DISTRIBUTIONS OF PAYMENTS AND COLLATERAL PROCEEDS<\/p>\n
In order to provide for the priority and allocation of payments
\nreceived from the Lessee and Guarantor and the proceeds of the exercise of
\nremedies by any of the Participants pursuant to the Security Documents, the
\nparties hereto agree as follows:<\/p>\n
SECTION 5.1. Agreement of Indenture Trustee and Participants. Pursuant
\nto the Master Assignment, all of the payments (other than the Excepted Payments)
\nunder the Lease, the Mortgages, the Note, the Participation Agreement and the
\nLoan Agreement have been assigned to the Indenture Trustee for the benefit of
\nthe Noteholders. The Indenture Trustee hereby agrees to deposit all such
\npayments, receipts and other consideration of any kind whatsoever (other than
\nthe Excepted Payments) received by the Indenture Trustee pursuant to the Master
\nAssignment and any other Security Document in the form received into a
\nsegregated cash collateral account <\/p>\n
4
\n 9<\/p>\n
maintained by the Indenture Trustee for such purpose, which account shall be an
\nEligible Account (as defined in the Indenture of Trust) (the “Cash Collateral
\nAccount”); provided however, each of the Participants expressly agrees that
\nunless the Lessee has received notice that a Loan Agreement Default or Loan
\nAgreement Event of Default has occurred and is continuing, the Lessee may make
\nany payments of Basic Rent constituting Certificate Earnings directly to the
\nLessor on each Payment Date. Each Participant hereby agrees that any payment
\nreceived pursuant to the Guaranty shall immediately be delivered in the form
\nreceived to the Indenture Trustee for deposit in the Cash Collateral Account and
\napplication as set forth herein. The Indenture Trustee shall make distributions
\nfrom the Cash Collateral Account pursuant to the requirements of this Section 5
\nto each Participant or other Person entitled thereto as promptly as possible (it
\nbeing understood that any such payment received on a timely basis in accordance
\nwith the provisions of the Lease, this Participation Agreement and the other
\nOperative Documents shall be distributed by the Indenture Trustee on the same
\nBusiness Day to the extent practicable).<\/p>\n
SECTION 5.2. Basic Rent. Subject to Section 5.8, each payment of Basic
\nRent (and any payment of interest on overdue installments of Basic Rent) shall
\nbe made by Lessee to the Indenture Trustee (subject to the proviso set forth in
\nSection 5.1 hereof) and shall be distributed by the Indenture Trustee as follows
\n(in the following order of priority):<\/p>\n
first, an amount equal to the Lender Basic Rent shall be
\n distributed to the Noteholders for application to pay in full all
\n accrued but unpaid interest owing to the Noteholders pursuant to the
\n terms of the Indenture of Trust and the Fixed Rate Notes, with a
\n corresponding reduction of accrued interest on the Loan, and<\/p>\n
second, subject to the last paragraph of this Section 5.2, to
\n the extent received by the Indenture Trustee, an amount equal to the
\n Lessor Basic Rent shall be distributed to the Lessor for application to
\n pay in full all accrued but unpaid Certificate Earnings (together with
\n any overdue interest thereon).<\/p>\n
Notwithstanding any provision of this Section 5.2 to the contrary, in
\nthe event that a Loan Agreement Default under Section 5(a) or (e) of the Loan
\nAgreement or a Loan Agreement Event of Default shall have occurred and be
\ncontinuing, any such payments which would otherwise be paid to the Lessor
\npursuant to clause second of this Section 5.2 shall be instead held in the Cash
\nCollateral Account until the earliest to occur of (i) the first date thereafter
\non which all such Loan Agreement Defaults and Loan Agreement Events of Default
\nshall have been cured (in which case such payment under clause second shall then
\nbe made), (ii) the date of any acceleration of the Loan (in which case such
\npayment shall then be applied in the manner contemplated by Section 5.8), or
\n(iii) the 180th day after the occurrence of such Loan Agreement Default or Loan
\nAgreement Event of Default (in which case such payment under clause second shall
\nthen be made); provided, however, that notwithstanding the disposition of any
\nprior installment of Lessor Basic Rent under this Section 5.2, each time an
\ninstallment of Lessor Basic Rent is received by the Indenture Trustee,
\ndistribution of such funds shall be made pursuant to clause second, subject to<\/p>\n
5
\n 10<\/p>\n
the terms of this paragraph.<\/p>\n
SECTION 5.3. Purchase Payments by Lessee. Subject to Section 5.8, any
\npayment made by the Lessee pursuant to the Lease as a result of:<\/p>\n
(a) the purchase of the Properties in connection with Lessee’s
\n exercise of its Lease Termination Date Purchase Option
\n pursuant to Section 22.2 of the Lease, or<\/p>\n
(b) the Lessee’s purchase of a Property or Properties pursuant to
\n Section 15.4, 16.2 or 17.6 of the Lease, or<\/p>\n
(c) payment of the Property Balance in accordance with Section
\n 15.4, Section 16.2(b), Section 20.1, or Section 22.3(b) of the
\n Lease,<\/p>\n
shall be distributed by the Indenture Trustee in the following order of
\npriority:<\/p>\n
first, an amount equal to the Facility Lender Property Balance
\n with respect to such Property and all accrued and unpaid interest
\n thereon shall be distributed to the Noteholders, with a corresponding
\n reduction in the principal and interest due on the Loan, such amount to
\n be paid pro rata to the Noteholders in accordance with the terms of the
\n Indenture of Trust, and<\/p>\n
second, an amount equal to the Lessor Property Balance with
\n respect to such Property and all accrued and unpaid Certificate
\n Earnings thereon shall be distributed to the Lessor, and the Lessor
\n Investment Amount and accrued and unpaid Certificate Earnings
\n thereunder shall be reduced by such amount, provided, however, that if
\n a Loan Agreement Default under Section 5(a) or (e) of the Loan
\n Agreement or a Loan Agreement Event of Default shall have occurred and
\n be continuing, any such payments which would otherwise be paid to the
\n Lessor pursuant to clause second of this Section 5.3 shall be instead
\n held in the Cash Collateral Account until the earliest to occur of (i)
\n the first date thereafter on which all such Loan Agreement Defaults and
\n Loan Agreement Events of Default shall have been cured (in which case
\n such payment under clause second shall then be made), (ii) the date of
\n any acceleration of the Loan (in which case such payment shall then be
\n applied in the manner contemplated by Section 5.8), or (iii) the 180th
\n day after the occurrence of such Loan Agreement Default or Loan
\n Agreement Event of Default (in which case such payment under clause
\n second shall then be made); provided, further, that notwithstanding the
\n disposition of any prior installment of Lessor Basic Rent under this
\n clause second, each time an installment of Lessor Basic Rent is
\n received by the Indenture Trustee, distribution of such funds shall be
\n made pursuant to this clause second, subject to the terms of the
\n immediately preceding proviso.<\/p>\n
SECTION 5.4. Residual Value Guaranty. Subject to Section 5.8, the
\nResidual Value<\/p>\n
6
\n 11<\/p>\n
Guaranty paid by Lessee pursuant to Article XXII of the Lease shall be
\ndistributed by the Indenture Trustee on the Lease Termination Date to the
\nNoteholders in accordance with the terms of the Indenture of Trust, with a
\ncorresponding reduction in the Loan.<\/p>\n
No amount of the Residual Value Guaranty shall be applied pursuant to
\nthis Section 5.4 to reduce any portion of the Lessor Investor Amount.<\/p>\n
SECTION 5.5. Sales Proceeds of Remarketing of Properties. Subject to
\nSection 5.8, any payments received by the Indenture Trustee as Gross Proceeds
\nfrom the sale of the Properties sold pursuant to Lessee’s exercise of the
\nRemarketing Option pursuant to Article XXII of the Lease or otherwise sold by
\nIndenture Trustee, or following the repayment in full of all of the Fixed Rate
\nNotes and the termination of the Master Assignment, the Facility Lender or
\nLessor, together with any payment made by Lessee as a result of an indemnity
\npayment pursuant to Section 13.4, shall be distributed by Indenture Trustee,
\nFacility Lender or Lessor, as the case may be, on the Lease Termination Date (or
\nfollowing the Lease Termination Date, upon receipt), in the following order of
\npriority:<\/p>\n
first, to the Noteholders in an amount sufficient to repay the
\n outstanding Fixed Rate Notes in full, including all accrued interest
\n and Premium thereon, if any, (with a corresponding reduction in the
\n Loan) such amount to be paid pro rata to the Noteholders in accordance
\n with the Indenture of Trust,<\/p>\n
second, the balance, if any, to be distributed to the Lessor
\n to be applied to payment of Certificate Earnings and overdue interest
\n and to repay the Lessor Investment Amount, and<\/p>\n
third, the balance, if any, shall be distributed to the Lessee
\n to the extent permitted by Section 5.12;<\/p>\n
provided, however, that if a Loan Agreement Default under Section 5(a) or (e) of
\nthe Loan Agreement or a Loan Agreement Event of Default shall have occurred and
\nbe continuing, any such payments which would otherwise be paid to the Lessor
\npursuant to clause second of this Section 5.6 shall be instead held in the Cash
\nCollateral Account until the earliest to occur of (i) the first date thereafter
\non which all such Loan Agreement Defaults and Loan Agreement Events of Default
\nshall have been cured (in which case such payment under clause second shall then
\nbe made), (ii) the date of any acceleration of the Loan (in which case such
\npayment shall then be applied in the manner contemplated by Section 5.8), or
\n(iii) the 180th day after the occurrence of such Loan Agreement Default or Loan
\nAgreement Event of Default (in which case such payment under clause second shall
\nthen be made); provided, further, that notwithstanding the disposition of any
\nprior installment of Lessor Basic Rent under clause second, each time an
\ninstallment of Lessor Basic Rent is received by the Indenture Trustee,
\ndistribution of such funds shall be made pursuant to clause second, subject to
\nthe terms of the immediately preceding proviso.<\/p>\n
7
\n 12<\/p>\n
To the extent that any amounts received pursuant to this Section 5.5
\nrelate to a specific Property, the Property Balance relating to such Property
\nshall be deemed to be reduced by the amounts applied pursuant hereto, with a
\ncorresponding reduction in the principal amount of the Note and Lessor
\nInvestment Amount.<\/p>\n
SECTION 5.6. Supplemental Rent. Subject to Section 5.7, all payments of
\nSupplemental Rent received by the Indenture Trustee (excluding any amounts
\npayable pursuant to the preceding provisions of this Section 5) shall be
\ndistributed promptly by the Indenture Trustee upon receipt thereof to the
\nPersons entitled thereto pursuant to the Operative Documents.<\/p>\n
SECTION 5.7. Excepted Payments. Notwithstanding any other provision of
\nthis Participation Agreement or the Operative Documents, any Excepted Payment
\nreceived at any time by the Indenture Trustee or any Participant shall, subject
\nto the penultimate sentence of Section 5.1, be distributed promptly to the
\nPerson entitled to receive such Excepted Payment.<\/p>\n
SECTION 5.8. Distribution of Payments after Lease Event of Default or
\nLoan Agreement Event of Default. (a) Subject to Section 5.6, all payments (other
\nthan Excepted Payments) received and amounts realized or held by the Indenture
\nTrustee, Facility Lender or Lessor after a Lease Event of Default has occurred
\nand is continuing, including proceeds from the sale of any of the Properties or
\nother collateral, proceeds of any amounts from any insurer or any Governmental
\nAuthority in connection with any Casualty or Condemnation, from the Lessee as
\npayment in accordance with the Lease, including any payment received from the
\nLessee pursuant to Section 17 of the Lease (but excluding Section 17.6 of the
\nLease), or from the Guarantor pursuant to the Guaranty shall, be paid to the
\nIndenture Trustee as promptly as possible and shall be distributed by Indenture
\nTrustee in the following order of priority:<\/p>\n
first, so much of such payment or amount as shall be required
\n to reimburse the Indenture Trustee or the Noteholders for any tax,
\n expense or other loss incurred by the Indenture Trustee or the
\n Noteholders in connection with the collection of such amounts (to the
\n extent not previously reimbursed) shall be distributed to the Indenture
\n Trustee or the Noteholders, as applicable (to be divided amongst such
\n parties pro rata to the extent insufficient to satisfy all claims);<\/p>\n
second, so much of such amount as shall be required to pay in
\n full the outstanding principal amount, and all accrued interest and
\n premium, if any, on the Fixed Rate Notes shall be distributed on a pro
\n rata basis to the Noteholders in accordance with the terms of the
\n Indenture of Trust with a corresponding reduction of amounts due with
\n respect to the Loan;<\/p>\n
third, so much of such amount as shall be required to
\n reimburse the Facility Lender <\/p>\n
8
\n 13<\/p>\n
or the Lessor for any tax, expense or other loss incurred by the
\n Facility Lender or the Lessor in connection with the collection of such
\n amounts (to the extent not previously reimbursed) shall be distributed
\n to the Facility Lender or the Lessor, as applicable (to be divided
\n amongst such parties pro rata to the extent insufficient to satisfy all
\n claims);<\/p>\n
fourth, so much of such amount or amounts as shall be required
\n to pay in full the Participant Balance of Lessor shall be distributed
\n to the Lessor; and<\/p>\n
fifth, the balance, if any, of such payment or amounts
\n remaining thereafter shall be promptly distributed to, or as directed
\n by, the Lessor, pursuant to the Operative Documents.<\/p>\n
(b) During the occurrence and continuance of a Loan Agreement Event of
\nDefault if the Loan has been accelerated, all amounts (other than Excepted
\nPayments) received or realized by any Participant and otherwise distributable
\npursuant to Sections 5.2 and 5.3 shall be distributed as provided for in Section
\n5.8 (a) above except that if such Loan Agreement Default does not arise out of,
\nor is not attributable to a Lease Event of Default, clause fifth shall, subject
\nto Section 5.12, be directed by the Lessee.<\/p>\n
SECTION 5.9. Other Payments. (a) Except as otherwise provided in this
\nSection 5 and paragraph (b) below,<\/p>\n
(i) any payment received by Indenture Trustee for which no
\n provision as to the application thereof is made in the Operative
\n Documents or elsewhere in this Section 5, and<\/p>\n
(ii) all payments received and amounts realized by any
\n Participant under the Lease or otherwise with respect to the Properties
\n to the extent received or realized at any time after payment in full of
\n the Participant Balances of all of the Participants and any other
\n amounts due and owing to the Lessor, Facility Lender, Noteholders or
\n the Indenture Trustee,<\/p>\n
shall be distributed forthwith by the Indenture Trustee in the order of priority
\nset forth in Section 5.3 (in the case of any payment described in clause (i)
\nabove) or in Section 5.8 hereof (in the case of any payment described in clause
\n(ii) above).<\/p>\n
(b) Except as otherwise provided in this Section 5 hereof and except
\nafter a Lease Event of Default has occurred and is continuing, any payment
\nreceived by the Indenture Trustee for which provision as to the application
\nthereof is made in an Operative Document but not elsewhere in this Section 5
\nshall be distributed forthwith by the Indenture Trustee to the Person and for
\nthe purpose for which such payment was made in accordance with the terms of such
\nOperative Document.<\/p>\n
9
\n 14<\/p>\n
SECTION 5.10. Casualty and Condemnation Amounts. Any amounts payable to
\nthe Indenture Trustee, Lessor or Facility Lender as a result of a Casualty or
\nCondemnation pursuant to Section 15.1 of the Lease (but excluding any amounts
\npayable pursuant to Section 16.2 of the Lease) shall, if no Lease Event of
\nDefault exists, be paid over to the Lessee to reimburse Lessee for any amounts
\nexpended by Lessee for the rebuilding or restoration of the Property to which
\nsuch Casualty or Condemnation applied, and any excess proceeds shall be paid in
\naccordance with the Lease. If a Lease Event of Default exists, then during the
\ncontinuance of such Lease Event of Default, all such amounts shall be held by
\nthe Indenture Trustee in the Cash Collateral Account and upon exercise of the
\nIndenture Trustee’s remedies under the Operative Documents shall be distributed
\npursuant to Section 5.8.<\/p>\n
SECTION 5.11. Order of Application. To the extent any payment made to
\nany Participant pursuant to Sections 5.2, 5.3, 5.4, 5.5 or 5.8 is insufficient
\nto pay in full (without duplication) the Participant Balance of such
\nParticipant, then each such payment shall first be applied to overdue interest,
\nthen to accrued interest and premium, if any, and then to principal.<\/p>\n
SECTION 5.12. Remaining Funds. Upon the payment in full of (i) the
\nFixed Rate Notes (and the Note), including all interest and premium, if any,
\nowing with respect thereto and the Lessor Investment Amount, including principal
\nand all accrued and unpaid Certificate Earnings, and (ii) all amounts owing by
\nthe Lessee or Guarantor to any Person under the Operative Documents, all
\nremaining moneys in the Cash Collateral Account shall be paid to the Lessee.<\/p>\n
SECTION 5.13. Time of Payment. Each payment due from Lessee or
\nGuarantor under the Operative Documents shall be made prior to 2:00 p.m. (New
\nYork time) on the date when due in immediately available funds consisting of
\nlawful currency of the United States of America, unless such date shall not be a
\nBusiness Day, in which case payment shall be made on the next succeeding
\nBusiness Day. Payments received after 2:00 p.m. (New York time) shall be deemed
\nreceived on the next succeeding Business Day.<\/p>\n
SECTION 6.<\/p>\n
CERTAIN INTENTIONS OF THE PARTIES<\/p>\n
Anything else herein, in any other Operative Document, or elsewhere to
\nthe contrary notwithstanding, it is the intention of Guarantor, the Lessee, the
\nLessor, the Facility Lender and the Indenture Trustee (and, assuming enforcement
\nof the Operative Documents in accordance with their terms, it is the
\nrepresentation and warranty of the Guarantor and the Lessee) that: (i) the
\namount and timing of installments of Basic Rent due and payable from time to
\ntime from the Lessee under the Lease shall be equal to the aggregate payments
\ndue and payable for interest on the Loan and Certificate Earnings on the Lessor
\nInvestment Amount on each Payment Date and<\/p>\n
10
\n 15<\/p>\n
that such interest amount payable on the Loan shall at all times equal the
\naggregate accrued interest on the principal amount of the Fixed Rate Notes; (ii)
\nif the Lessee elects the Lease Termination Date Purchase Option or becomes
\nobligated to purchase any Property under the Lease, the Loan, the Lessor
\nInvestment Amount, all interest, Certificate Earnings and Premium related to
\nsuch Property and all other obligations of the Lessee owing to the Lessor, the
\nFacility Lender, the Noteholders and the Indenture Trustee relating thereto
\nshall be paid in full by the Lessee so that the aggregate Property Costs shall
\nat all times equal the sum of (x) the Principal Amount of the Fixed Rate Notes,
\nplus (y) the Lessor Investment Amount not previously prepaid; (iii) if the
\nLessee properly elects the Remarketing Option with respect to a Property and
\nprovided that no Lease Event of Default has occurred and is continuing, Lessee
\nshall only be required to pay to the Lessor the Gross Proceeds of the sale of
\nsuch Property, the Residual Value Guaranty for such Property, any amounts
\npayable pursuant to Section 13 of this Participation Agreement and any Rent with
\nrespect to such Property (which aggregate amounts may be less than the Property
\nBalance under the Lease with respect to such Property); and (iv) upon a Lease
\nEvent of Default, the amounts then due and payable by the Lessee under the Lease
\nshall include the Lease Balance which shall be sufficient to repay the Fixed
\nRate Notes and Lessor Investment Amount in full.<\/p>\n
SECTION 7.<\/p>\n
CONDITIONS PRECEDENT TO
\n CLOSING DATE<\/p>\n
SECTION 7.1. Conditions Precedent — Documentation. The obligations of
\nthe Lessor and Facility Lender on the Closing Date are subject to satisfaction
\nof the following conditions precedent and to the conditions precedent set forth
\nin Section 7.2:<\/p>\n
(a) Operative Documents. Each of the Operative Documents to be entered
\ninto on the Closing Date shall have been duly authorized, executed and delivered
\nby the parties thereto, and shall be in full force and effect, including (i)
\nthis Participation Agreement, (ii) the Lease, (iii) the Loan Agreement, (iv) the
\nNote, (v) the Indenture of Trust, (vi) the Fixed Rate Notes, (vii) the
\nAssignment of Lease (together with all supplemental assignments, the “Assignment
\nof Lease”), from the Lessor to the Facility Lender, and consented to by Lessee
\npursuant to that certain Lessee’s Consent, dated as of the Closing Date (the
\n“Consent to Assignment”) by Lessee, in favor of the Facility Lender, in each
\ncase, substantially in the respective forms set forth as Exhibit D to this
\nAgreement, with such modifications thereto as local law or custom may indicate
\nand are agreed to by the participants, (viii) the Guaranty, (ix) the Master
\nAssignment (together with all supplemental assignments, the “Master Assignment”)
\nfrom the Facility Lender to the Indenture Trustee for the benefit of the
\nNoteholders, and consented to by the Lessor and Lessee pursuant to that certain
\nConsent to Master Assignment, dated as of the Closing Date (the “Consent to
\nMaster Assignment”) by the Lessor and the Lessee in favor of the Indenture
\nTrustee for the benefit of the Noteholders, <\/p>\n
11
\n 16<\/p>\n
and the Lessor, Lessee, the Indenture Trustee and the Facility Lender shall each
\nhave received a fully executed copy of each of the Operative Documents.<\/p>\n
(b) No Default. No Default or Event of Default shall exist (both before
\nand after giving effect to the transactions contemplated by the Operative
\nDocuments).<\/p>\n
(c) Recordation of Documents. The Operative Documents (or memoranda
\nthereof), any supplements thereto and any financing statements in connection
\ntherewith required under the Uniform Commercial Code shall have been recorded,
\nregistered and filed, if necessary, in such manner as to enable Lessee’s counsel
\nto render its opinion referred to in clause (e) below and local counsel to
\nrender the opinions required by Section 7.2(f).<\/p>\n
(d) Taxes. All taxes, fees and other charges in connection with the
\nexecution, delivery, recording, filing and registration of the Operative
\nDocuments shall have been paid or provisions for such payment shall have been
\nmade to the satisfaction of the Lessor, Facility Lender and the Initial
\nPurchasers.<\/p>\n
(e) Opinion of Counsel. King & Spalding, counsel to Guarantor and
\nLessee, shall have issued to the Lessor, the Indenture Trustee, the Noteholders
\nand the Facility Lender its opinion to the effect and in the form set forth on
\nExhibit A attached to this Agreement.<\/p>\n
(f) Governmental Approvals. All necessary (or, in the reasonable
\nopinion of the Lessor or the Indenture Trustee or any of their respective
\ncounsel advisable) Governmental Actions, in each case required by any
\nRequirement of Law, shall have been obtained or made and be in full force and
\neffect.<\/p>\n
(g) Litigation. No action or proceeding shall have been instituted, nor
\nshall any action or proceeding be threatened, before any Governmental Authority,
\nnor shall any order, judgment or decree have been issued or proposed to be
\nissued by any Governmental Authority (i) to set aside, restrain, enjoin or
\nprevent the full performance of this Participation Agreement, any other
\nOperative Document or any transaction contemplated hereby or thereby or (ii)
\nwhich could have a Material Adverse Effect.<\/p>\n
(h) Requirements of Law. The transactions contemplated by the Operative
\nDocuments do not and will not violate any applicable Requirement of Law and do
\nnot and will not subject the Lessor, the Facility Lender, the Indenture Trustee
\nor any Noteholder to any adverse regulatory prohibitions or constraints.<\/p>\n
(i) Officer’s Certificate of Guarantor and Lessee. The Lessor, the
\nFacility Lender and the Indenture Trustee shall each have received an Officer’s
\nCertificate, dated as of the Closing Date, of each of Guarantor and Lessee
\nstating that (i) each and every representation and warranty of Guarantor or
\nLessee, as the case may be, contained in the Operative Documents to which it is
\na <\/p>\n
12
\n 17<\/p>\n
party is true and correct on and as of the Closing Date; (ii) no Default or
\nEvent of Default has occurred and is continuing under any Operative Document;
\n(iii) each Operative Document to which Guarantor or Lessee, as the case may be,
\nis a party is in full force and effect with respect to it; and (iv) Guarantor or
\nLessee, as the case may be, has duly performed and complied with all covenants,
\nagreements and conditions contained herein or in any Operative Document required
\nto be performed or complied with by it on or prior to the Closing Date.<\/p>\n
(j) Guarantor and Lessee’s Resolutions and Incumbency Certificate, etc.
\nThe Lessor, the Facility Lender and the Indenture Trustee shall each have
\nreceived (i) a certificate of the Secretary or an Assistant Secretary of each of
\nGuarantor and Lessee attaching and certifying as to (A) the resolutions of the
\nBoard of Directors duly authorizing the execution, delivery and performance by
\nGuarantor or Lessee, as the case may be, of each Operative Document to which it
\nis or will be a party, (B) its certificate of incorporation and bylaws, in each
\ncase certified as of a recent date by the Secretary of State of Delaware, and
\n(C) the incumbency and signature of persons authorized to execute and deliver on
\nits behalf the Operative Documents to which it is a party, and (ii) a good
\nstanding certificate from the appropriate officer of the state in which such
\nPerson is incorporated and the state in which such Person’s principal place of
\nbusiness is located.<\/p>\n
(k) Officer’s Certificate of Facility Lender. Lessee, Guarantor, the
\nIndenture Trustee and the Lessor shall have received an Officer’s Certificate of
\nthe Facility Lender, dated as of the Closing Date, stating that (i) each and
\nevery representation and warranty of the Facility Lender contained in the
\nOperative Documents to which it is a party is true and correct on and as of the
\nClosing Date, (ii) each Operative Document to which the Facility Lender is a
\nparty is in full force and effect with respect to it, and (iii) the Facility
\nLender has duly performed and complied with all covenants, agreements and
\nconditions contained herein or in any Operative Document required to be
\nperformed or complied with by it on or prior to the Closing Date.<\/p>\n
(l) Facility Lender’s Resolutions and Incumbency Certificate. etc.
\nLessee, Guarantor, the Indenture Trustee and the Lessor shall have received a
\ncertificate of the Secretary or an Assistant Secretary of the Facility Lender
\nattaching and certifying as to (A) the resolutions of the Board of Directors
\nduly authorizing the execution, delivery and performance by the Facility Lender
\nof each Operative Document to which it is or will be a party, (B) its articles
\nof incorporation, certified as of a recent date by the Secretary of State of the
\nState of its incorporation, (C) its by-laws and (D) the incumbency and signature
\nof persons authorized to execute and deliver on its behalf the Operative
\nDocuments to which it is a party.<\/p>\n
(m) Opinions of Counsel to Facility Lender. Ropes & Gray, counsel to
\nthe Facility Lender and Hunton & Williams, special counsel to the Facility
\nLender, shall have issued to Lessee, Guarantor, Lessor and the Indenture Trustee
\ntheir opinion to the effect and in the form set forth on Exhibit B attached to
\nthis Agreement.<\/p>\n
(n) Officer’s Certificate of Lessor. Lessee, Guarantor, the Indenture
\nTrustee and the <\/p>\n
13
\n 18<\/p>\n
Facility Lender shall have received an Officer’s Certificate of the Lessor,
\ndated as of the Closing Date, stating that (i) each and every representation and
\nwarranty of the Lessor contained in the Operative Documents to which it is a
\nparty is true and correct on and as of the Closing Date, (ii) each Operative
\nDocument to which the Lessor is a party is in full force and effect with respect
\nto it, and (iii) the Lessor has duly performed and complied with all covenants,
\nagreements and conditions contained herein or in any Operative Document required
\nto be performed or complied with by it on or prior to the Closing Date.<\/p>\n
(o) Lessor’s Partnership Certificate, etc. Lessee, Guarantor, the
\nIndenture Trustee and the Facility Lender shall have received a certificate of
\nthe Secretary or an Assistant Secretary of the Lessor attaching and certifying
\nas to (A) the resolutions of the Board of Directors of its general partner and
\nother evidence of partner approval duly authorizing the execution, delivery and
\nperformance by the Lessor of each Operative Document to which it is or will be a
\nparty, (B) its certificate of limited partnership, certified as of a recent date
\nby the Secretary of State of the State of its organization, (C) its partnership
\nagreement and (D) the incumbency and signature of persons authorized to execute
\nand deliver on its behalf the Operative Documents to which it is a party.<\/p>\n
(p) Opinion of Counsel to Lessor. Hunton & Williams, counsel to the
\nLessor, shall have issued to Lessee, the Guarantor, the Facility Lender and the
\nIndenture Trustee their opinion to the effect and in the form set forth on
\nExhibit C attached to this Agreement and made a part hereof by this reference.<\/p>\n
(q) Rating of Fixed Rate Notes. Moody’s and\/or S&P shall have issued a
\nrating of the Fixed Rate Notes as of the Closing Date satisfactory to satisfy
\nthe requirements of the Indenture of Trust and all conditions precedent to the
\nissuance of the Fixed Rate Notes under the Indenture of Trust shall have been
\nsatisfied or waived.<\/p>\n
(r) Pay-Off of Existing Indebtedness; Release of Liens. Existing
\nIndebtedness shall have been repaid in full, all mortgages, deeds of trust and
\nother Liens against the Properties securing the Existing Indebtedness shall have
\nbeen released or removed and all of the existing leases on the Properties
\nexecuted in connection with the Existing Indebtedness shall have been
\nterminated.<\/p>\n
(s) Note Purchase Agreement. The satisfaction or waiver by the Initial
\nPurchasers of all conditions to the closing of the transactions contemplated by
\nthe Purchase Agreement.<\/p>\n
SECTION 7.2. Conditions Precedent — Properties. The obligation of the
\nLessor and Facility Lender on the Closing Date are subject to satisfaction of
\nthe following conditions precedent with respect to each Property listed on
\nAppendix 2 hereto and to the conditions precedent set forth in Section 7.1:<\/p>\n
(a) Environmental Audits. An Environmental Audit for each Property
\n shall have been delivered to and shall be reasonably
\n satisfactory in form and substance to the Initial<\/p>\n
14
\n 19<\/p>\n
Purchasers and the Lessor.<\/p>\n
(b) Appraisals. An Appraisal of each Property shall have been
\n delivered to and shall be reasonably satisfactory to the
\n Initial Purchasers and the Lessor.<\/p>\n
(c) Memoranda of Lease. The Lessee and the Lessor shall have
\n delivered an original counterpart of the Lease Supplement and
\n a Memorandum of Lease (in form suitable for recording in the
\n state in which such Property is located) executed by the
\n Lessee and the Lessor with respect to each Property listed on
\n Appendix 2 hereto to the Indenture Trustee, with a copy to the
\n Facility Lender.<\/p>\n
(d) Mortgages. The Lessor shall have delivered to the Indenture
\n Trustee a Mortgage executed by the Lessor with respect to such
\n Property, together with accompanying UCC fixture filings (in
\n form suitable for recording in the state in which such
\n Property is located).<\/p>\n
(e) Assignment of Lease. The Lessor shall have delivered to the
\n Indenture Trustee a supplement to Assignment of Lease and the
\n Assignment of Lease executed by the Lessor with respect to the
\n Properties, together with a consent to the Assignment of Lease
\n and Supplement of Assignment of Lease executed by the Lessee
\n with respect to each Property.<\/p>\n
(f) Opinion of Local Counsel. The Indenture Trustee, the Lessor
\n and the Facility Lender shall have received an opinion of
\n counsel, which counsel and whose opinion shall be reasonably
\n satisfactory to the Initial Purchasers and the Lessor and
\n which shall be qualified with respect to the laws of the
\n jurisdiction in which such Property is located.<\/p>\n
(g) Survey. The Lessee shall have delivered a survey of each of
\n the Properties, to the Lessor and the Initial Purchasers in
\n form and substance reasonably satisfaction to them.<\/p>\n
(h) Title Insurance Policy. The Lessee shall deliver, or cause to
\n be delivered, to the Indenture Trustee, the Facility Lender,
\n and the Lessor an ALTA extended leaseholder’s (with respect to
\n Lessee) and lender’s (with respect to the Facility Lender and
\n the Indenture Trustee) title insurance commitment covering
\n such Property in favor of the Indenture Trustee, the Facility
\n Lender, and the Lessee reasonably satisfactory in form and
\n substance to the Initial Purchasers, Facility Lender and
\n Lessor, with customary coverage over the general exceptions to
\n such policy and customary endorsements issued by the title
\n company and evidencing the first priority status of the
\n Mortgage, subject only to the exceptions noted therein.<\/p>\n
15
\n 20<\/p>\n
(i) Evidence of Completion. Completion shall have been reached
\n with respect to each Property and each Property shall be ready
\n for occupancy and operation and shall be free and clear of all
\n Liens except for Permitted Liens.<\/p>\n
(j) Representations and Warranties. On such date the
\n representations and warranties of Guarantor and Lessee
\n contained herein and in each of the other Operative Documents
\n shall be true and correct in all material respects as though
\n made on and as of such date, except to the extent such
\n representations and warranties relate solely to an earlier
\n date, in which case such representations and warranties shall
\n have been true and correct in all material respects as of such
\n earlier date.<\/p>\n
(k) Performance by Other Parties. The other parties hereto shall
\n have performed their respective agreements contained herein
\n and in the other Operative Documents to be performed by them
\n on or prior to such date.<\/p>\n
(l) No Default. There shall not have occurred and be continuing
\n any Default or Event of Default and not Default or Event of
\n Default will have occurred after giving effect to the
\n transactions contemplated hereby.<\/p>\n
SECTION 7.3. INTENTIONALLY OMITTED.<\/p>\n
SECTION 7.4. Conditions Precedent to Substitution of Properties. In
\naddition to Section 16.3 and Article XV of the Lease and the other requirements
\nof the Operative Documents in connection with the substitution of any
\nReplacement Property pursuant to the terms of the Lease, the Lessee’s right to
\nsubstitute a Replacement Property is subject to the following requirements on
\nthe part of the Lessee to be completed as of the date of such substitution:<\/p>\n
(a) Environmental Audits. An Environmental Audit for such
\n Replacement Property shall have been delivered to and shall be
\n reasonably satisfactory in form and substance to the Lessor
\n and prepared in a manner consistent with the customary and
\n usual practices that Lessee and the Guarantor utilize with
\n respect to all other real properties owned or leased by Lessee
\n and the Guarantor.<\/p>\n
(b) Appraisals. An Appraisal of such Property shall have been
\n delivered to and shall be reasonably satisfactory to the
\n Lessor and prepared in a manner consistent with the customary
\n and usual practices that Lessee and the Guarantor utilizes
\n with respect to all other real properties owned or leased by
\n Lessee and the Guarantor.<\/p>\n
(c) Lease Supplement and Memoranda of Lease. The Lessee and the
\n Lessor shall have delivered an original counterpart of a Lease
\n Supplement and a Memorandum of Lease (in form suitable for
\n recording in the state in which such Property is located)
\n executed by the Lessee and the Lessor with respect to such
\n Replacement Property<\/p>\n
16
\n 21<\/p>\n
to the Indenture Trustee, with a copy to the Facility Lender.<\/p>\n
(d) Supplement to Assignment of Lease and Master Assignment. The
\n Lessor and the Facility Lender shall have executed and
\n delivered to the Indenture Trustee a Supplement to Assignment
\n of Lease and a Supplement to Master Assignment in form
\n suitable for recording in the state where such Replacement
\n Property is located, together with a consent of Lessee and the
\n Facility Lender with respect thereto.<\/p>\n
(e) Mortgages. The Lessor shall have delivered to the Indenture
\n Trustee a Mortgage executed by the Lessor with respect to such
\n Replacement Property, together with accompanying UCC fixture
\n filings (in form suitable for recording in the state in which
\n such Property is located).<\/p>\n
(f) Opinion of Local Counsel. The Indenture Trustee, the Lessor
\n and the Facility Lender shall have received an opinion of
\n counsel, which counsel and whose opinion shall be reasonably
\n satisfactory to the Lessor and qualified with respect to the
\n laws of the jurisdiction in which such Replacement Property is
\n located.<\/p>\n
(g) Survey. The Lessee shall have delivered a survey of such
\n Replacement Property to the Lessor in form and substance
\n reasonably satisfaction to Lessor and prepared in a manner
\n consistent with the customary and usual practices that Lessee
\n and the Guarantor utilizes with respect to all other real
\n properties owned or leased by Lessee and the Guarantor.<\/p>\n
(h) Title Insurance Policy. The Lessee shall deliver, or cause to
\n be delivered, to the Indenture Trustee, the Facility Lender
\n and the Lessor an ALTA extended leasehold owner’s (with
\n respect to Lessee) and lender’s (with respect to the Facility
\n Lender and the Indenture Trustee) title insurance commitment
\n covering such Replacement Property in favor of the Indenture
\n Trustee, the Facility Lender and the Lessee reasonably
\n satisfactory in form and substance to the Facility Lender and
\n Lessor, with customary coverage over the general exceptions to
\n such policy and customary endorsements issued by the title
\n company and evidencing the first priority status of the
\n Mortgage, subject only to the exceptions noted therein.<\/p>\n
(i) Evidence of Completion. Completion shall have been reached
\n with respect to such Replacement Property and such Property
\n shall be ready for occupancy and operation and shall be free
\n and clear of all Liens except for Permitted Liens.<\/p>\n
(j) Opinion of Counsel. The Lessee shall deliver an opinion of
\n counsel to Lessor substantially in the form and to the effect
\n set forth on Exhibit H to this Agreement.<\/p>\n
(k) Limit on Substitution. The Replacement Property shall be a
\n warehouse-style retail<\/p>\n
17
\n 22<\/p>\n
home improvement center which (1) is located in a
\n substantially similar locale, based on a current market
\n analysis, and in the same region of the United States to the
\n Property to be released, and (2) has a substantially similar
\n appraised value as determined by an Appraiser based on
\n projected net cash flow (after reserves) at stabilized
\n occupancy (assuming the Lease has been terminated and the
\n Lessee is not available as a tenant of the Replacement
\n Property or the Property to be released) as the Property to be
\n released and any substitution pursuant to the Lease shall be
\n permitted only where the aggregate Property Costs of the
\n Properties remaining subject to the Lease after giving effect
\n to the proposed substitution (exclusive of any Replacement
\n Properties that previously became subject to the Lease
\n pursuant to Section 16.3 or Article XV thereof) is not less
\n than the Permitted Amount.<\/p>\n
SECTION 8.<\/p>\n
REPRESENTATIONS<\/p>\n
SECTION 8.1. Representations of the Lessor. Lessor represents and
\nwarrants to each of the other parties hereto as follows:<\/p>\n
(a) Due Organization; etc. It is a limited partnership duly
\n organized and validly existing and in good standing under the
\n laws of the State of Delaware and has the power and authority
\n to enter into and perform its obligations under the Operative
\n Documents to which it is or will be a party and each other
\n agreement, instrument and document to be executed and
\n delivered by it in connection with or as contemplated by each
\n such Operative Document to which it is or will be a party. It
\n is duly qualified to transact business in every jurisdiction
\n where the failure to qualify would have a material adverse
\n effect on its ability to perform its obligations under the
\n Operative Documents as contemplated on the Closing Date.<\/p>\n
(b) Authorization; No Conflict. The execution, delivery and
\n performance of each Operative Document to which it is or will
\n be a party, has been duly authorized by all necessary action
\n on its part and on the part of its general partner and neither
\n the execution and delivery thereof, nor the consummation of
\n the transactions contemplated thereby, nor compliance by it
\n with any of the terms and provisions thereof (i) does or will
\n require any approval or consent of any trustee or holders of
\n any of its indebtedness or obligations or those of its general
\n partner, (ii) does or will contravene any current law,
\n governmental rule or regulation relating to it or its general
\n partner, (iii) does or will contravene or result in any breach
\n of or constitute any default under, or result in the creation
\n of any Lien upon any of it or its general partner’s property
\n under its partnership agreement or any Contractual Obligation
\n of the Lessor or its general partner, or (iv) does or will
\n require any Governmental Action by any Governmental Authority.<\/p>\n
18
\n 23<\/p>\n
(c) Enforceability; etc. Each Operative Document to which the
\n Lessor is or will be a party has been, or on or before any
\n Closing Date on which such Operative Document is to be signed
\n will be, duly executed and delivered by the Lessor and each
\n such Operative Document to which the Lessor is a party
\n constitutes, or upon execution and delivery will constitute,
\n assuming the due authorization, execution and delivery hereof
\n and thereof by the other parties hereto and thereto, a legal,
\n valid and binding obligation enforceable against the Lessor in
\n accordance with the terms thereof, except as such
\n enforceability may be limited or denied by (i) applicable
\n bankruptcy, insolvency, reorganization, moratorium or similar
\n laws effecting creditors’ rights and the enforcement of
\n debtors’ obligations generally, and (ii) general principles of
\n equity, regardless of whether enforcement is pursuant to a
\n proceeding in equity or at law.<\/p>\n
(d) Litigation. There is no action or proceeding pending or, to
\n Lessor’s knowledge, threatened to which it or, to the best of
\n its knowledge, its general partner is or will be a party,
\n before any Governmental Authority that, if adversely
\n determined, could reasonably be expected to have a material
\n adverse effect on the property, operations or financial
\n condition of the Lessor or, to the best of its knowledge, its
\n general partner.<\/p>\n
(e) Assignment. It has not assigned or transferred any of its
\n right, title or interest in or under the Lease or the Guaranty
\n except in accordance with the Operative Documents.<\/p>\n
(f) Defaults. No Default or Event of Default under the Operative
\n Documents attributable to it has occurred and is continuing.<\/p>\n
(g) Securities Act. Neither the Lessor nor any Person authorized
\n by the Lessor to act on its behalf has offered or sold any
\n interest in the Lessor Investment Amount or the Note, or in
\n any similar security relating to a Property, or in any
\n security the offering of which for the purposes of the
\n Securities Act would be deemed to be part of the same offering
\n as the offering of the aforementioned securities to, or
\n solicited any offer to acquire any of the same from, any
\n Person other than the parties hereto and neither the Lessor
\n nor any Person authorized by the Lessor to act on its behalf
\n will take any action which would subject the issuance or sale
\n of any interest in the Lessor Investment Amount or the Note to
\n the provisions of Section 5 of the Securities Act or require
\n the qualification of any Operative Document under the Trust
\n Indenture Act.<\/p>\n
(h) Chief Place of Business. The Lessor’s chief place of business,
\n chief executive office and office where the documents,
\n accounts and records relating to the transactions<\/p>\n
19
\n 24<\/p>\n
contemplated by this Participation Agreement and each other
\n Operative Document are kept are located at 11 Madison Avenue,
\n 23rd Floor, New York, New York 10010.<\/p>\n
(i) Federal Reserve Regulations. The Lessor is not engaged
\n principally in, and does not have as one of its important
\n activities, the business of extending credit for the purpose
\n of purchasing or carrying any margin stock (within the meaning
\n of Regulation U of the Federal Reserve Board).<\/p>\n
(j) Investment Company Act. The Lessor is not an “investment
\n company” or a company controlled by an “investment company”
\n within the meaning of the Investment Company Act of 1940, as
\n amended.<\/p>\n
(k) General Partner. Credit Suisse First Boston is the sole
\n general partner of the Lessor.<\/p>\n
SECTION 8.2. Representations of the Guarantor and the Lessee. Each of
\nthe Guarantor and the Lessee represents and warrants to each of the other
\nparties hereto that:<\/p>\n
(a) Corporate Existence and Power. Each of the Guarantor and the
\n Lessee is a corporation duly organized, validly existing and
\n in good standing under the laws of the jurisdiction of its
\n incorporation, is duly qualified to”transact business in every
\n jurisdiction where each Property is located (in the case of
\n Lessee) and where the failure to so qualify would reasonably
\n be expected to have or cause a Material Adverse Effect, and
\n has all corporate powers and all governmental licenses,
\n authorizations, consents and approvals required to carry on
\n its business as now conducted, except where the failure to
\n possess any such licenses, authorizations, consents, or
\n approvals would not reasonably be expected to have or cause a
\n Material Adverse Effect.<\/p>\n
(b) Corporate and Governmental Authorization; No Contravention.
\n The execution, delivery and performance by each of the
\n Guarantor and the Lessee of this Participation Agreement and
\n the other Operative Documents to which it is a party (i) are
\n within its corporate powers, (ii) have been duly authorized by
\n all necessary corporate action, (iii) require no Governmental
\n Action by or in respect of or filing with, any Governmental
\n Authority, (iv) do not contravene, or constitute a default
\n under, any Applicable Law or of the certificate of
\n incorporation or by-laws of the Guarantor, Lessee, or of any
\n material agreement, judgment, injunction, order, decree or
\n other instrument binding upon the Guarantor or the Lessee, and
\n (v) do not result in the creation or imposition of any Lien on
\n any asset of the Guarantor or the Lessee.<\/p>\n
20<\/p>\n
25<\/p>\n
(c) Binding Effect. This Participation Agreement constitutes a
\n valid and binding agreement of each of the Guarantor and the
\n Lessee enforceable in accordance with its terms, and the other
\n Operative Documents to which it is, or will become a party,
\n when executed and delivered in accordance with this
\n Participation Agreement, will constitute valid and binding
\n obligations of the Guarantor or Lessee enforceable in
\n accordance with their respective terms, provided that the
\n enforceability hereof and thereof is subject in each case to
\n general principles of equity and to bankruptcy, insolvency and
\n similar laws affecting the enforcement of creditors’ rights
\n generally.<\/p>\n
(d) Trust Indenture Act. Assuming that the Initial Purchasers’
\n representations and warranties contained in the Purchase
\n Agreement are true and assuming compliance by the Initial
\n Purchasers with the covenants set forth in Section 4 of the
\n Purchase Agreement, it is not necessary in connection with the
\n offer, sale and delivery of the Fixed Rate Notes in the manner
\n contemplated by the Indenture of Trust to register the Fixed
\n Rate Notes under the Securities Act or to qualify the
\n Indenture or Trust under the United States Trust Indenture Act
\n of 1939 (the “Trust Indenture Act”).<\/p>\n
(e) Rule 144 A Representations. (i) When the Fixed Rate Notes are
\n issued and delivered pursuant to the Indenture of Trust, such
\n Fixed Rate Notes will not be of the same class (within the
\n meaning of Rule 144A) as securities of the Guarantor which are
\n listed on a national securities exchange registered under
\n Section 6 of the Exchange Act or quoted in a U.S. automated
\n inter-dealer quotation system; (ii) the Guarantor is not
\n subject to Section 13 or 15(d) of the Exchange Act; (iii) the
\n Guarantor is not an open-end investment company, unit
\n investment trust or face-amount certificate company that is or
\n is required to be registered under Section 8 of the United
\n States Investment Company Act of 1940 (the “Investment Company
\n Act”); (iv) neither the Guarantor nor any affiliate (as
\n defined in Rule 501 (b) under the Securities Act) of the
\n Guarantor has, directly or through any agent, sold, offered
\n for sale, solicited offers to buy or otherwise negotiated in
\n respect of, any security (as defined in the Securities Act)
\n which is or will be integrated with the sale of the Fixed Rate
\n Notes in a manner that would require the registration of the
\n Fixed Rate Notes under the Securities Act; and (v) neither the
\n Guarantor nor any person acting on its behalf (other than the
\n Initial Purchasers, as to which the Guarantor makes no
\n representation) has engaged or will engage, in connection with
\n the offering of the Fixed Rate Notes, in any form of general
\n solicitation or general advertising within the meaning of Rue
\n 502(c) under the Securities Act, or with respect to Fixed Rate
\n Notes sold in reliance on Rule 903 (“Rule 903”) under the
\n Securities Act, in any directed selling efforts within the
\n meaning of Rule 903 with respect to the Fixed Rate Notes and
\n each of them has complied and will comply with the offering
\n restrictions requirement of Regulation S.<\/p>\n
(f) No Default. Neither the Guarantor nor any of its Subsidiaries
\n is in default under or <\/p>\n
21
\n 26<\/p>\n
with respect to any agreement, instrument or undertaking to
\n which it is a party or by which it or any of its property is
\n bound which could reasonably be expected to have or cause a
\n Material Adverse Effect. No Default or Event of Default has
\n occurred and is continuing.<\/p>\n
(g) Environmental Matters. (i) Neither the Guarantor nor any
\n Subsidiary is subject to any claim under the Environmental
\n Laws with respect to the Properties which could have or cause
\n a Material Adverse Effect and neither the Guarantor nor any
\n Subsidiary has been designated as a potentially responsible
\n party under CERCLA or under any state statute similar to
\n CERCLA. None of the Properties has been identified on any
\n current or proposed (x) National Priorities List under 40
\n C.F.R. ss. 300, (y) CERCLIS list or (z) any list arising from
\n a state statute similar to CERCLA.<\/p>\n
(ii) No Hazardous Substances have been or are being
\n used, produced, manufactured, processed, treated, recycled,
\n generated, stored, disposed of, managed or otherwise handled
\n at, or shipped or transported to or from the Properties or are
\n otherwise present at, on, in or under the Properties, or, to
\n the best of the knowledge of the Guarantor and Lessee, at or
\n from any adjacent site or facility, except for Hazardous
\n Substances, such as cleaning solvents, pesticides and other
\n materials used, produced, manufactured, processed, treated,
\n recycled, generated, stored, disposed of, managed, or
\n otherwise handled in minimal amounts in the ordinary course of
\n business in compliance with all applicable Environmental Laws.<\/p>\n
(iii) Each of the Guarantor and each of its
\n Subsidiaries and Affiliates, (x) has procured all permits and
\n authorizations required under the Environmental Laws necessary
\n for the conduct of its business on the Properties, and (y) is
\n in compliance with all Environmental Laws in connection with
\n the operation of the Properties and the Guarantor’s and each
\n of its Subsidiary’s and Affiliate’s, respective businesses, in
\n each case set forth in either of clause (x) or (y) where the
\n failure to procure or non-compliance with which would
\n reasonably be expected to have or cause a Material Adverse
\n Effect.<\/p>\n
(h) Facility Lender. The representations and warranties of the
\n Facility Lender, set forth in the Operative Documents
\n (including the representations and warranties set forth in
\n Sections 8.4) are true and correct in all material respects
\n and the Facility Lender is in compliance with its obligations
\n under the Operative Documents.<\/p>\n
(i) Disclosure. All written information heretofore furnished by
\n the Guarantor or the Lessee to the Facility Lender, Indenture
\n Trustee, Initial Purchasers or Lessor for purposes of or in
\n connection with this Participation Agreement or any
\n transaction contemplated hereby is, and all such information
\n hereafter furnished by the <\/p>\n
22
\n 27<\/p>\n
Guarantor or the Lessee to the Facility Lender, Indenture
\n Trustee, any Noteholder or Lessor will be, true and correct in
\n all material respects or based on what the Guarantor or the
\n Lessee in good faith believes to be reasonable estimates on
\n the date as of which such information is stated or certified.<\/p>\n
(j) No Litigation. There is no action, suit or proceeding pending,
\n or to the knowledge of the Guarantor or Lessee, threatened,
\n against or affecting the Guarantor, Lessee or any of their
\n Subsidiaries, before any court or arbitrator or any
\n Governmental Authority which would reasonably be expected to
\n have or cause a Material Adverse Effect.<\/p>\n
SECTION 8.3. Representations of Guarantor and Lessee as to Properties.
\nEach of the Guarantor and the Lessee hereby represents and warrants as of the
\nClosing Date with respect to each Property, as follows:<\/p>\n
(a) Property. Each Property consists of Land on which a Facility
\n has been constructed. Such Property is located in the
\n continental United States.<\/p>\n
(b) Insurance. Lessee has obtained insurance coverage covering
\n such Property or is self-insured in a manner which meets the
\n requirements of Article XIV of the Lease, and such coverage is
\n in full force and effect.<\/p>\n
(c) Lease. Upon the execution and delivery of a Lease Supplement
\n to the Lease and Memorandum of Lease, (i) Lessee will have
\n unconditionally accepted the Land and existing Improvements
\n subject to such Lease Supplement and will have good and
\n marketable title to a valid and subsisting leasehold interest
\n in the Land and existing Improvements, subject only to
\n Permitted Exceptions, (ii) no offset will exist with respect
\n to any Rent or other sums payable under the Lease and (iii) no
\n Rent under the Lease will have been prepaid.<\/p>\n
(d) Protection of Interests. Upon recordation, each Mortgage and
\n each Supplement to Assignment of Lease delivered on the
\n Closing Date will constitute a valid and perfected first Lien
\n on the Property that is subject to such Mortgage and
\n Supplement to Assignment of Lease and all of the Lessor’s
\n right, title and interest in and to the Improvements located
\n thereon, subject only to Permitted Exceptions.<\/p>\n
(e) Flood Hazards. No portion of any Property is located in an
\n area identified as a special flood hazard area by the Federal
\n Emergency Management Agency or other applicable agency, or if
\n any such Property is located in an area identified as a
\n special flood hazard area by the Federal Emergency Management
\n Agency or other applicable agency, then flood insurance has
\n been obtained for such Property in accordance with Section XI
\n of the Lease and in accordance with the National Flood<\/p>\n
23
\n 28<\/p>\n
Insurance Act of 1968, as amended.<\/p>\n
SECTION 8.4. Representations of Facility Lender. Facility Lender
\nrepresents and warrants to each of the other parties hereto that:<\/p>\n
(a) Corporate Status. It (i) is a duly organized and validly
\n existing corporation in good standing under the laws of the
\n state of its incorporation and has the corporate power and
\n authority to own its property and assets and to transact the
\n business in which it is engaged and (ii) has duly qualified
\n and is authorized to do business and is in good standing in
\n all jurisdictions where it is required to be so qualified and
\n where the failure to be so qualified could have a material
\n adverse effect on the property, operations or financial
\n condition of Facility Lender.<\/p>\n
(b) Corporate Power and Authority. It has the corporate power and
\n authority to execute, deliver and carry out the terms and
\n provisions of the Operative Documents to which it is or will
\n be a party, has taken all necessary corporate action to
\n authorize the execution, delivery and performance of the
\n Operative Documents to which it is or will be a party, has
\n duly executed and, assuming the due authorization, execution
\n and delivery hereof and thereof by the other parties hereto
\n and thereto, delivered each Operative Document required to be
\n executed and delivered by it and each such Operative Document
\n constitutes a legal, valid and binding obligation enforceable
\n against it in accordance with its terms, except as such
\n enforceability may be limited or denied by (i) applicable
\n bankruptcy, insolvency, reorganization, moratorium or similar
\n laws effecting creditors’ rights and the enforcement of
\n debtors’ obligations generally, and (ii) general principles of
\n equity, regardless of whether enforcement is pursuant to a
\n proceeding in equity or at law.<\/p>\n
(c) No Violation. Neither the execution, delivery and performance
\n by it of the Operative Documents to which it is or will be a
\n party nor compliance with the terms and provisions thereof,
\n nor the consummation of the transactions contemplated therein
\n (i) will contravene any Applicable Law, or (iii) will violate
\n any provision of its certificate of incorporation or by-laws.<\/p>\n
(d) No Other Activities. It does not hold any assets, conduct any
\n business nor is it party to any Contractual Obligation except
\n as expressly contemplated by the Operative Documents.<\/p>\n
(e) Indenture of Trust. Each of the representations and warranties
\n of the Facility Lender set forth in the Indenture of Trust are
\n true and correct in all material respects and the Facility
\n Lender is in compliance with its obligations under the
\n Operative Documents.<\/p>\n
24
\n 29<\/p>\n
(f) No Litigation. There is no action, suit or proceeding pending,
\n or to the knowledge of the Facility Lender, threatened,
\n against or affecting the Facility Lender, before any court or
\n arbitrator or any Governmental Authority which would
\n reasonably be expected to have or cause a Material Adverse
\n Effect.<\/p>\n
SECTION 8.5. Representations and Warranties of the Indenture Trustee.
\nThe Indenture Trustee hereby represents and warrants to each of the other
\nParticipants that:<\/p>\n
(a) Corporate Existence and Power. It is, respectively, a banking
\n association or corporation duly organized, validly existing
\n and in good standing under the laws of the jurisdiction of its
\n organization and has all corporate powers and all material
\n governmental licenses, authorizations and approvals required
\n to perform its obligations hereunder.<\/p>\n
(b) Binding Effect. This Participation Agreement and each other
\n Operative Document to which the Indenture Trustee is a party
\n constitutes a valid and binding agreement of it enforceable
\n against it in accordance with its terms, provided that the
\n enforceability hereof is subject in each case to general
\n principles of equity and to bankruptcy, insolvency and similar
\n laws affecting the enforcement of creditors’ rights generally.<\/p>\n
SECTION 9.<\/p>\n
PAYMENT OF CERTAIN EXPENSES<\/p>\n
Guarantor and Lessee agree, jointly and severally, for the benefit of
\nthe Lessor, the Facility Lender, the Indenture Trustee and the Noteholders, to:<\/p>\n
SECTION 9.1. Transaction Expenses. On the Closing Date (if statements
\nare received in satisfactory form within a reasonable time prior to such date
\nand in any event within thirty (30) days after receipt thereof), pay, or cause
\nto be paid, all reasonable fees, expenses and disbursements of the respective
\ncounsel (including local counsel) for each of the Lessor, the Facility Lender
\nand the Indenture Trustee in connection with the transactions contemplated by
\nthe Operative Documents and incurred in connection with the Closing Date
\n(subject to any negotiated fee arrangements which shall survive the execution
\nand delivery of this Agreement), including all other Transaction Expenses (in
\nconnection with the Closing Date) and all other expenses in connection with the
\nClosing Date, including, without limitation, all expenses relating to
\nEnvironmental Audits, Appraisals, title insurance, surveys and all fees, taxes
\nand expenses for the recording, registration and filing of documents.<\/p>\n
SECTION 9.2. Brokers’ Fees and Stamp Taxes. Pay, or cause to be paid,
\nany brokers’<\/p>\n
25
\n 30<\/p>\n
fees and any and all stamp, transfer and other similar taxes, fees and excises,
\nif any, including any interest and penalties, which are payable in connection
\nwith the transactions contemplated by this Participation Agreement and the other
\nOperative Documents.<\/p>\n
SECTION 9.3. Certain Fees and Expenses. Pay or cause to be paid (i)
\nany and all Transaction Expenses of the Facility Lender (or any successor to the
\nFacility Lender), the Lessor and the Indenture Trustee (subject to any
\nnegotiated fee arrangements which shall survive the execution and delivery of
\nthis Agreement), (ii) all Transaction Expenses incurred by the Facility Lender,
\nthe Indenture Trustee or the Lessor in entering into any future amendments or
\nsupplements with respect to any of the Operative Documents, whether or not such
\namendments or supplements are ultimately entered into, or giving or withholding
\nof waivers of consents hereto or thereto, which have been requested by Lessee or
\nGuarantor, (iii) all Transaction Expenses incurred by Lessor, the Indenture
\nTrustee or the Facility Lender in connection with a transfer made pursuant to
\nSection 12.2 of this Participation Agreement or any substitution of a Property
\npursuant to Section 7.4, and (iv) all Transaction Expenses incurred by the
\nLessor, the Facility Lender or the Indenture Trustee in connection with any
\npurchase or substitution of any Property by the Lessee or other Person pursuant
\nto Articles XVI, XVII, XX or XXII of the Lease.<\/p>\n
SECTION 10.<\/p>\n
OTHER COVENANTS AND AGREEMENTS<\/p>\n
SECTION 10.1. Covenants of Guarantor and Lessee. Guarantor and Lessee
\nhereby agree that so long as this Participation Agreement is in effect:<\/p>\n
(a) Information. To the extent not already provided, the Guarantor
\n will deliver to the Lessor, S&P and Moody’s.<\/p>\n
(i) as soon as available and in any event within ninety
\n (90) days after the end of each Fiscal Year, a
\n consolidated balance sheet of the Guarantor and its
\n Subsidiaries as of the end of such Fiscal Year and
\n the related consolidated statements of income,
\n stockholders’ equity and cash flows for such Fiscal
\n Year, setting forth in each case in comparative form
\n the figures for the previous Fiscal Year, all
\n certified by KPMG Peat Marwick, LLP or other
\n independent public accountants of nationally
\n recognized standing;<\/p>\n
(ii) as soon as available and in any event within
\n forty-five (45) days after the end of each of the
\n first three (3) Fiscal Quarters of each Fiscal Year,
\n a consolidated balance sheet of the Guarantor and its
\n Consolidated Subsidiaries as of the end of such
\n Fiscal Quarter and the related statement of income
\n and statement of cash flows for such Fiscal Quarter
\n and for the <\/p>\n
26
\n 31<\/p>\n
portion of the Fiscal Year ended at the end of such
\n Fiscal Quarter, setting forth in each case in
\n comparative form the figures for the corresponding
\n Fiscal Quarter (Fiscal Year only in the case of
\n balance sheets) and the corresponding portion of the
\n previous Fiscal Year;<\/p>\n
(iii) promptly upon the mailing thereof to the stockholders
\n of the Guarantor generally, copies of all financial
\n statements, reports and proxy statements so mailed;
\n and<\/p>\n
(iv) promptly upon the filing thereof, copies of all
\n registration statements (other than the exhibits
\n thereto and any registration statements on Form S-8
\n or its equivalent) and annual, quarterly, monthly or
\n other periodic reports (including reports on Form
\n 8-K) which the Guarantor shall have filed with the
\n Securities and Exchange Commission.<\/p>\n
(v) simultaneously with the delivery of each set of
\n financial statements referred to in paragraphs (i)
\n and (ii) above, a certificate, substantially in the
\n form of Exhibit H (a “Compliance Certificate”), of
\n the chief financial officer or the chief accounting
\n officer of the Guarantor stating whether any Event of
\n Default exists on the date of such certificate and,
\n if any Event of Default then exists, setting forth
\n the details thereof and the action which the
\n Guarantor or Lessee is taking or proposes to take
\n with respect thereto;<\/p>\n
(vi) within five (5) Business Days after any of the chief
\n executive, chief financial, chief operating, chief
\n legal or chief accounting officer of the Guarantor or
\n Lessee becomes aware of the occurrence of any Event
\n of Default, a certificate of the chief financial
\n officer or the chief accounting officer of the
\n Guarantor or Lessee setting forth the details thereof
\n and the action which the Guarantor or Lessee is
\n taking or proposes to take with respect thereto;<\/p>\n
(vii) from time to time such additional information
\n regarding the financial position or business of the
\n Guarantor or any of its Subsidiaries or any of the
\n Properties, as the Facility Lender, the Lessor, the
\n Indenture Trustee (at the request of a Noteholder) or
\n a Rating Agency may reasonably request, including
\n without limitation, information regarding the
\n Property Balance and the related amount of the Loan
\n and Lessor Investment Amounts allocated to each
\n Property.<\/p>\n
(b) Inspection of Property, Books and Records. The Guarantor will
\n (i) keep, and cause each domestic Subsidiary to keep, proper
\n books of record and account in which full, true and correct
\n entries in conformity with GAAP shall be made of all dealings
\n and transactions in relation to its business and activities;
\n and (ii) permit, and cause each <\/p>\n
27
\n 32<\/p>\n
Subsidiary to permit, representatives of the Facility Lender,
\n the Lessor, the Indenture Trustee (acting at the request of a
\n Noteholder) or a Rating Agency, at such person’s expense prior
\n to the occurrence of a Default and at the Guarantor’s expense
\n after the occurrence of a Default, to visit and inspect any of
\n their respective properties, to examine and make abstracts
\n from any of their respective books and records and to discuss
\n their respective affairs, finances and accounts with their
\n respective officers, employees and independent public
\n accountants. The Guarantor and the Lessee agree to cooperate
\n and assist in such visits and inspections, in each case at
\n such reasonable times and as often as may reasonably be
\n requested.<\/p>\n
(c) Payment of Obligations. The Guarantor and the Lessee each
\n covenants and agrees for the benefit of each Participant and
\n the Noteholders that it will duly and punctually pay its
\n respective obligations under the Operative Documents in
\n accordance with the terms thereof.<\/p>\n
(d) Corporate Existence. Subject to Section 10.1(g) below, the
\n Guarantor will do, or cause to be done, all things necessary
\n to preserve and keep in full force and effect its corporate
\n existence and the corporate existence of the Lessee.<\/p>\n
(e) Limitations on Liens. (i) The Guarantor will not, and will not
\n permit any Subsidiary to, issue, assume or guarantee any
\n notes, bonds, debentures or other similar evidences of
\n indebtedness for money borrowed (herein referred to as
\n “indebtedness”) secured by any mortgage, security interest,
\n pledge or lien (herein referred to as “mortgage”) of or upon
\n any Principal Property, or upon shares of capital stock or
\n evidences of indebtedness for borrowed money issued by any
\n Subsidiary that owns Principal Property and owned by the
\n Guarantor or any Subsidiary, whether owned at the date of this
\n Agreement or thereafter acquired, without making effective
\n provision, and the Guarantor in each case will make or cause
\n to be made effective provision, whereby the obligations of the
\n Guarantor pursuant to the Guaranty shall be secured equally
\n and ratably with (or at the option of the Guarantor, prior to)
\n any and all other indebtedness thereby secured, so long as
\n such indebtedness shall be so secured; provided, however, that
\n this subsection (e) shall not apply to indebtedness secured by
\n any of the following:<\/p>\n
(1) mortgages for taxes or other governmental charges either
\n not yet delinquent or the nonpayment of which is being contested in
\n good faith by appropriate proceedings, provided enforcement of any lien
\n has been stayed; mortgages comprising landlord’s liens or liens of
\n carriers, warehousemen, mechanics or materialmen incurred in the
\n ordinary course of business for sums not yet due and payable or which
\n are being contested in good faith by appropriate proceedings; and any
\n other mortgages incurred or created in the ordinary course of business
\n not arising in connection with indebtedness that do not in the
\n aggregate materially<\/p>\n
28
\n 33<\/p>\n
impair the use or value of the properties or assets of the Guarantor
\n and its Subsidiaries, taken as a whole;<\/p>\n
(2) mortgages existing on the date hereof;<\/p>\n
(3) mortgages on any property existing at the time of
\n acquisition thereof;<\/p>\n
(4) mortgages on property of a corporation existing at the
\n time such corporation is merged into or consolidated with the Guarantor
\n or a Subsidiary or at the time of a sale, lease or other disposition of
\n the properties of such corporation (or a division thereof) as an
\n entirety or substantially as an entirety to the Guarantor or a
\n Subsidiary, provided that such mortgage as a result of such merger,
\n consolidation, sale, lease or other disposition is not extended to
\n property owned by the Guarantor or such Subsidiary immediately prior
\n thereto;<\/p>\n
(5) mortgages on property of a corporation, shares of capital
\n stock or debt of any corporation existing at the time such corporation
\n becomes a Subsidiary;<\/p>\n
(6) mortgages securing indebtedness of a Subsidiary to the
\n Guarantor or to another Subsidiary;<\/p>\n
(7) mortgages on property to secure all or part of the cost of
\n acquiring, substantially repairing or altering, constructing,
\n developing or substantially improving such property, or to secure
\n indebtedness incurred to provide funds for any such purpose or for
\n reimbursement of funds previously expended for any such purpose,
\n provided the commitment of the creditor to extend the credit secured by
\n any such mortgage shall have been obtained not later than twelve months
\n after the later of (a) the completion of the acquisition, substantial
\n repair or alteration, construction, development or substantial
\n improvement of such property or (b) the placing in operation of such
\n property or of such property as so substantially repaired or altered,
\n constructed, developed or substantially improved;<\/p>\n
(8) mortgages securing indebtedness payable on demand or not
\n more than one year after the date as of which the determination is made
\n (excluding any indebtedness renewable or extendable at the option of
\n the debtor for a period or periods ending more than one year after the
\n date as of which such determination is made), which indebtedness in
\n accordance with generally accepted accounting practices would be
\n included among current liabilities;<\/p>\n
(9) any extension, renewal or replacement (or successive
\n extensions, renewals or replacements), in whole or in part, of any
\n mortgage referred to in the foregoing clauses (1) to (8) inclusive;
\n provided, however, that the principal amount<\/p>\n
29
\n 34<\/p>\n
of indebtedness secured thereby and not otherwise authorized by said
\n clauses (1) to (8) inclusive shall not exceed the principal amount of
\n indebtedness, plus any premium or fee payable in connection with any
\n such extension, renewal or replacement, so secured at the time of such
\n extension, renewal or replacement;<\/p>\n
(10) mortgages in favor of the United States of America or any
\n State thereof, or any department, agency or instrumentality or
\n political subdivision of the United States of America or any State
\n thereof, to secure partial progress, advance or other payments pursuant
\n to any contract or statute or to secure any indebtedness incurred for
\n the purpose of financing all or any part of the purchase price or the
\n cost of constructing or improving the property subject to such
\n mortgages;<\/p>\n
(11) mortgages arising out of any final judgment for the
\n payment of money aggregating not in excess of $10,000,000 or mortgages
\n created by or relating to any legal proceeding or final judgment which
\n at the time is being contested in good faith by appropriate
\n proceedings, provided enforcement of any lien has been stayed; or<\/p>\n
(12) easements or similar encumbrances, the existence of which
\n do not materially impair the use of the property subject thereto for
\n the purposes for which it is held or was acquired.<\/p>\n
(ii) Notwithstanding the provisions of subsection (e)(i), the Guarantor
\nor any Subsidiary may issue, assume or guarantee indebtedness secured by
\nmortgages which would otherwise be subject to the restrictions of subsection
\n(e)(i) in an aggregate amount which, together with all Attributable Debt
\noutstanding pursuant to subsection (f)(ii) and all indebtedness outstanding
\npursuant to this subsection (e), does not at the time exceed 15% of Consolidated
\nCapitalization.<\/p>\n
(f) Limitations on Sale and Lease-Back Transactions. (i) The
\n Guarantor will not, nor will it permit any Subsidiary to,
\n enter into any Sale and Lease-Back Transaction with respect to
\n any Principal Property (except for a transaction providing for
\n a lease for a term, including any renewal thereof, of not more
\n than three years and except for a transaction between the
\n Guarantor and a Subsidiary or between Subsidiaries), unless
\n either (x) the Guarantor or such Subsidiary would be entitled
\n pursuant to subsection (e)(i) to issue, assume or guarantee
\n indebtedness secured by a mortgage on such Principal Property
\n in an amount at least equal to the Attributable Debt in
\n respect of such Sale and Lease-Back Transaction without being
\n required by subsection (e)(i) to equally and ratably secure
\n the obligations of the Guarantor pursuant to the Guaranty or
\n (y) the Guarantor shall apply or cause to be applied, in the
\n case of a sale or transfer for cash, an amount equal to the
\n net proceeds thereof (but not in excess of the net book value
\n of such Principal Property at the date of such sale or
\n transfer) and, in the case of a sale or transfer otherwise
\n than for cash, an amount equal to the fair value (as
\n determined by the Board of Directors) of the Principal
\n Property so leased to the retirement, within 180 days after
\n the effective<\/p>\n
30
\n 35<\/p>\n
date of such Sale and Lease-Back Transaction, of Senior Funded
\n Indebtedness of the Guarantor or a Subsidiary; provided,
\n however, that the amount to be applied to such retirement of
\n Senior Funded Indebtedness shall be reduced by an amount equal
\n to the principal amount, plus any premium or fee paid in
\n connection with any redemption in accordance with the terms,
\n of Senior Funded Indebtedness voluntarily retired by the
\n Guarantor within 180 days after the effective date of such
\n Sale and Lease-Back Transaction, excluding retirements
\n pursuant to mandatory sinking fund or prepayment provisions
\n and payments at maturity.<\/p>\n
(ii) Notwithstanding the provisions of subsection (f)(i), the
\nGuarantor or any Subsidiary may enter into a Sale and Lease-Back Transaction
\nwhich would otherwise be subject to the restrictions of subsection (f)(i) so as
\nto create an aggregate amount of Attributable Debt which, together with all
\nindebtedness outstanding pursuant to subsection (e)(ii) and all Attributable
\nDebt outstanding pursuant to this subsection (f)(ii), does not exceed 15% of
\nConsolidated Capitalization.<\/p>\n
(g) Consolidations, Mergers, Conveyance or Transfer. Neither the
\n Guarantor nor Lessee shall consolidate with or merge into any
\n other Person or convey or transfer its properties and assets
\n substantially as an entirety to any Person, unless:<\/p>\n
(1) the Person formed by such consolidation or into
\n which the Guarantor or the Lessee is merged or the Person
\n which acquires by conveyance or transfer the properties and
\n assets of the Guarantor or the Lessee, as applicable,
\n substantially as an entirety shall be a Person organized and
\n existing under the laws of the United States of America or any
\n State or the District of Columbia, and shall expressly assume,
\n by an assumption agreement executed and delivered to the
\n Lessor, the Facility Lender and the Indenture Trustee, all
\n obligations of the Guarantor or the Lessee, as applicable,
\n pursuant to the Operative Documents and the performance or
\n observance of every covenant of this Agreement on the part of
\n the Guarantor or the Lessee, as applicable, to be performed or
\n observed;<\/p>\n
(2) immediately after giving effect to such
\n transaction, no Event of Default, and no event which, after
\n notice or lapse of time, or both, would become an Event of
\n Default, shall have happened and be continuing; and<\/p>\n
(3) the Guarantor or the Lessee, as applicable, has
\n delivered to the Lessor, the Facility Lender and the Indenture
\n Trustee an Officers’ Certificate and an Opinion of Counsel
\n each stating that such consolidation, merger, conveyance or
\n transfer and, if an assumption agreement is required in
\n connection with such transaction, such assumption agreement
\n comply with this Section 10.1(g) and that all conditions
\n precedent herein provided for relating to such transaction
\n have been complied with.<\/p>\n
Upon any consolidation or merger, or any conveyance or transfer of the
\n properties and <\/p>\n
31
\n 36<\/p>\n
assets of the Guarantor or the Lessee, as applicable, substantially as
\n an entirety in accordance with this subsection, the successor Person
\n formed by such consolidation or into which the Guarantor or the Lessee,
\n as applicable, is merged or to which such conveyance or transfer is
\n made shall succeed to, and be substituted for, and may exercise every
\n right and power of, the Guarantor or the Lessee, as applicable, under
\n the Operative Documents with the same effect as if such successor
\n corporation had been named as the Guarantor or the Lessee, as
\n applicable, herein and thereafter the predecessor corporation shall be
\n released from all obligations and covenants under this Agreement and
\n the other Operative Documents. In the event of any such conveyance or
\n transfer, the Guarantor or the Lessee, as applicable, as the
\n predecessor corporation may be dissolved, wound up and liquidated at
\n any time thereafter.<\/p>\n
(h) Actions Under Indenture of Trust. The Guarantor shall fulfill
\n all obligations of the Facility Lender pursuant to Sections
\n 9.01 and 9.02 of the Indenture of Trust.<\/p>\n
SECTION 10.2. Cooperation with the Lessee. The Lessor, the Facility
\nLender and the Indenture Trustee shall, to the extent reasonably requested by
\nLessee (but without assuming additional liabilities on account thereof), at
\nLessee’s expense, cooperate with Lessee in connection with its covenants
\ncontained herein including, without limitation, at any time and from time to
\ntime, upon the request of Lessee, to promptly and duly execute and deliver any
\nand all such further instruments, documents and financing statements and
\ncontinuation statements related thereto) as Lessee may reasonably request in
\norder to perform such covenants. Each of the Lessor, the Facility Lender and the
\nIndenture Trustee agrees that, to the extent it shall obtain actual knowledge of
\nthe occurrence of an Event of Default, a Loan Agreement Event of Default or an
\nIndenture Event of Default under the Operative Documents, it shall promptly
\nnotify Lessee describing the same in reasonable detail.<\/p>\n
SECTION 10.3. Release of Properties. If the Lessee shall at any time
\npurchase any Property pursuant to the terms of the Lease, or if all of the
\nProperties shall be sold in accordance with, and the Lessee otherwise satisfies
\neach of the obligations and conditions set forth in the Lease for the release or
\nsubstitution of a Property therefrom, then, upon application of the proceeds of
\nany such sale pursuant to Section 5 (except in the case of a substitution) and
\nall accrued interest and any other payments due and owing from Lessee to the
\nIndenture Trustee, the Noteholders, the Facility Lender or Lessor on such date,
\nincluding without limitation pursuant to Section 13 of this Agreement, such
\nProperty shall be released from the Liens created by the Security Documents and
\nthe Indenture Trustee, Lessor and the Facility Lender shall, at the expense of
\nthe Lessee, execute and deliver such instruments as are legally required in
\norder to effectuate such release. In addition, upon the payment in full of all
\nother amounts owing by the Lessee hereunder or under any other Operative
\nDocument, the Properties shall be released from the Liens created by the
\nSecurity Documents. Upon request of the Lessee or Lessor following any such
\nrelease, the Indenture Trustee and Facility Lender shall, at the sole cost and
\nexpense of the Lessee or Lessor execute and deliver to the Lessor or the Lessee
\nsuch documents as the Lessee or Lessor shall reasonably request <\/p>\n
32
\n 37<\/p>\n
to evidence such release.<\/p>\n
SECTION 10.4. Discharge of Liens. (a) Each of the Facility Lender and
\nthe Lessor hereby severally agrees that it will not create or permit to exist at
\nany time, and will, at its own cost and expense, promptly take such action as
\nmay be necessary duly to discharge, or to cause to be discharged, all Lessor
\nLiens on the Properties (and its rights under the Operative Documents)
\nattributable to it; provided, however, that such Participants shall not be
\nrequired to so discharge any such Lessor Lien prior to any sale of the
\nProperties while the same is being contested in good faith by appropriate
\nproceedings.<\/p>\n
(b) The Indenture Trustee hereby severally agrees that it will not
\n create or permit to exist at any time, and will, at its own cost
\n and expense, promptly take such action as may be necessary duly to
\n discharge, or to cause to be discharged, all Trustee’s Liens on
\n the Properties attributable to it; provided, however, that the
\n Indenture Trustee shall not be required to so discharge any such
\n Trustee’s Lien prior to any sale of the Properties while the same
\n is being contested in good faith by appropriate proceedings.<\/p>\n
SECTION 10.5. Notice of Credit Rating. The Lessor agrees that it shall
\nimmediately notify the Guarantor and the Lessee in writing in the event that its
\ngeneral partner’s long or short term debt rating is downgraded, withdrawn, or
\nqualified by any Rating Agency or if Lessor (or its general partner) is placed
\non credit watch with negative implications by any Rating Agency.<\/p>\n
SECTION 10.6. Covenants of the Facility Lender and the Lessor. Each of
\nthe Facility Lender and the Lessor hereby agrees, severally and not jointly,
\nthat so long as this Participation Agreement is in effect:<\/p>\n
(a) Maintenance of Existence. It shall maintain its corporate or
\n partnership existence and qualification as a foreign
\n corporation or foreign limited partnership in each state in
\n which a Property is located and in which the failure to
\n maintain such existence or qualification would have a
\n materially adverse effect on its ability to perform its
\n obligations under the Operative Documents as contemplated on
\n the Closing Date.<\/p>\n
(b) Certificate of Incorporation. Facility Lender shall not allow
\n an amendment to its certificates of incorporation or other
\n governing documents without the consent of the Lessee,
\n Indenture Trustee and Lessor.<\/p>\n
(c) Prepayment. Other than as provided in Section 5, the Facility
\n Lender will not prepay, redeem or refinance any of the Fixed
\n Rate Notes. Except as permitted by the Operative Documents,
\n the Lessor shall not prepay the Loan in whole or in part;
\n provided, however, that subject to Section 5, Lessor may
\n prepay or cause to be prepaid all or any portion of the Note
\n at any time following an Event of Default where the
\n Participants are exercising remedies.<\/p>\n
33
\n 38<\/p>\n
(d) Indebtedness; Other Business. The Facility Lender shall not
\n contract for, create, incur or assume any Indebtedness, or
\n enter into any business or other activity, other than pursuant
\n to, under or as contemplated by the Operative Documents.<\/p>\n
(e) Change of Chief Place of Business. Each of the Lessor and the
\n Facility Lender, with respect to itself only, shall give
\n prompt notice to Lessee and the Indenture Trustee if the
\n Lessor’s or the Facility Lender’s chief place of business or
\n chief executive office, or the office where the records
\n concerning the accounts or contract rights relating to a
\n Property are kept, shall cease to be located at the address
\n set forth in Section 14.3 or if it shall change its name,
\n identity or corporate structure.<\/p>\n
(f) Subordination of Liens. During the Term, the Liens created by
\n the Security Documents related to each Property shall be
\n expressly made subject and subordinate to the Lease related to
\n such Property.<\/p>\n
(g) No Voluntary Bankruptcy. Neither the Lessor (unless the Lessee
\n shall give its prior written consent) nor the Facility Lender
\n shall (A) commence any case, proceeding or other action under
\n any existing or future law of any jurisdiction, domestic or
\n foreign, relating to bankruptcy, insolvency, reorganization,
\n arrangement, winding-up, liquidation, dissolution, composition
\n or other relief with respect to it or its debts, or (B) seek
\n appointment of a receiver, trustee, custodian or other similar
\n official for it or for all or any substantial benefit of its
\n creditors; and neither the Lessor nor the Facility Lender
\n shall take any action in furtherance of, or indicating its
\n consent to, approval of, or acquiescence in, any of the acts
\n set forth in this paragraph.<\/p>\n
(h) No Sale of Properties. Neither the Lessor nor the Facility
\n Lender shall transfer any of their respective interests in the
\n Properties except as provided in the Operative Documents.<\/p>\n
(i) No Powers of Attorney. The Facility Lender shall not grant any
\n powers of attorney to any Person for any purposes except (i)
\n for the purpose of permitting any Person to perform any
\n ministerial or administrative functions on behalf of the
\n Facility Lender which are not inconsistent with the terms of
\n the Operative Documents, (ii) to the Indenture Trustee for the
\n purposes of the Security Documents, or (iii) where provided
\n for or permitted by the Operative Documents.<\/p>\n
(j) Same Business. Unless the Lessee otherwise consents in
\n writing, Lessor shall stay engaged in substantially the same
\n business (including engaging in the business of leasing
\n personal and real property as lessor, or acting as agent,
\n broker or advisor in leasing such property and making,
\n acquiring or servicing loans or other investments or
\n extensions of credit in connection therewith or incidental
\n thereto) as conducted<\/p>\n
34
\n 39<\/p>\n
on the Closing Date.<\/p>\n
SECTION 10.7. No Bankruptcy Proceedings. The Guarantor, Lessee and each
\nParticipant hereby agrees that it will not institute against, or join any other
\nPerson in instituting against, the Facility Lender or the Lessor any bankruptcy,
\nreorganization, arrangement, insolvency or liquidation proceeding, or other
\nproceeding under any Federal or state bankruptcy or similar law, for one year
\nand a day after the Fixed Rate Notes are paid. Nothing in this Section 10.7
\nshall preclude, or be deemed to estop, the Guarantor, Lessee or any Participant
\n(i) from taking or omitting to take any action prior to such date in (A) any
\ncase or proceeding voluntarily filed or commenced by or on behalf of the
\nFacility Lender under or pursuant to any such law or (B) any involuntary case or
\nproceeding pertaining to the Facility Lender which is filed or commenced by or
\non behalf of a Person other than the Guarantor, Lessee or any Participant under
\nor pursuant to any such law, or (ii) from commencing or prosecuting any legal
\naction which is not an involuntary case or proceeding under or pursuant to any
\nsuch law against the Participant or any of its properties or otherwise
\nexercising its remedies under the Operative Documents.<\/p>\n
SECTION 10.8. Notice of Claims Against Lessor. Lessor shall promptly
\nnotify the Lessee and the Guarantor in writing in the event that Lessor defaults
\nin any obligation or any Claim is asserted against Lessor (including any
\nEnvironmental Claim) which, exceeds $5,000,000 in any one instance or
\n$10,000,000 in the aggregate (other than defaults or Claims arising in
\nconnection with the Operative Documents and the transactions contemplated
\nthereby). Upon receipt of such notice the Lessee may either:<\/p>\n
(i) Replace the Lessor pursuant to Section 12.2; or<\/p>\n
(ii) Require that the Lessor promptly execute, deliver and
\n record mortgages in form satisfactory to Lessee granting to Lessee a
\n Lien on the Properties to secure the performance of all obligations of
\n Lessor pursuant to the Lease and the other Operative Documents, which
\n Lien shall be second in priority to the Mortgages. Each of the
\n Participants hereby acknowledges and agrees that any such Liens granted
\n to the Lessee hereunder shall constitute “Permitted Liens” pursuant to
\n clause (i) of such definition.<\/p>\n
SECTION 11.<\/p>\n
LESSEE DIRECTIONS<\/p>\n
SECTION 11.1. Lessee Directions. The Lessor, the Guarantor, the
\nIndenture Trustee and the Facility Lender agree that, so long as no Default or
\nEvent of Default exists:<\/p>\n
(a) Lessee shall have the right to give all notices pursuant to
\n the Indenture of Trust with respect to the redemption,
\n defeasance, prepayment or other matters relating to the <\/p>\n
35
\n 40<\/p>\n
Fixed Rate Notes and to direct the Facility Lender and Lessor
\n to take all actions necessary to accomplish such directions;
\n provided, however, that any such directions shall not conflict
\n with any provision of any of the Operative Documents;<\/p>\n
(b) [INTENTIONALLY OMITTED];<\/p>\n
(c) Lessee shall have the right to approve any successor
\n “Indenture Trustee” to the extent permitted pursuant to
\n Section 8.11 of the Indenture of Trust;<\/p>\n
(d) without limiting the foregoing clauses (a) through (c) and in
\n addition thereto, Lessee shall have the right to exercise any
\n other right of the Lessor under the Loan Documents and the
\n Facility Lender under the Indenture of Trust upon not less
\n than three (3) Business Days’ prior written notice from Lessee
\n to the Lessor, Indenture Trustee, and the Facility Lender,
\n unless such party objects to such exercise within three (3)
\n Business Days of receipt of such notice; and<\/p>\n
(e) Lessee shall have the right to give notices pursuant to
\n Appendix 3 of this Participation Agreement.<\/p>\n
SECTION 12.<\/p>\n
TRANSFER OF INTEREST<\/p>\n
SECTION 12.1. Restrictions on and Effect of Transfer. Except for the
\ntransactions contemplated hereby, no Participant shall assign, convey or
\notherwise transfer (including pursuant to a participation) all or any portion of
\nits right, title or interest in, to or under any of the Operative Documents,
\nexcept (x) with respect to the Noteholders, as provided in Article 2.08 of the
\nIndenture of Trust, and (y) with respect to the Facility Lender and the Lessor,
\nwith the prior written consent of the Indenture Trustee and Lessee, which
\nconsent, in the case of the Indenture Trustee, shall not be unreasonably
\nwithheld, and (z) with respect to the Lessor, with the prior written consent of
\nthe Lessee and only if the Lessor shall have provided written confirmation from
\neach of Moody’s and S&P that immediately after giving effect to such transfer
\nthe Fixed Rate Notes shall not be rated lower than the Fixed Rate Notes are
\nrated immediately prior to such transfer and such transfer shall not result in a
\ndowngrade, withdrawal or qualification of the ratings assigned to the Fixed Rate
\nNotes by Moody’s and S&P; provided that, in the event that an Event of Default
\nhas occurred and is continuing pursuant to which the Participants have begun to
\nexercise remedies against the Lessee or Guarantor, the consent of the Lessee
\nshall not be required for any such transfer by the Lessor. Any transfer made
\npursuant to the Operative Documents shall be subject to the Security Documents
\nand any transferee or assignee shall expressly agree in writing to be bound by
\nthe terms of this Participation Agreement.<\/p>\n
36
\n 41<\/p>\n
SECTION 12.2. Replacement of Lessor or Facility Lender. (A) If the
\nLessor or Facility Lender (i) defaults in any of its material obligations
\npursuant to the Operative Documents or, with respect to Facility Lender, any
\nIndenture Event of Default shall occur, or with respect to Lessor, any Loan
\nAgreement Event of Default shall occur (which in either case, does not arise out
\nof, or is not attributable to, an Event of Default), or (ii) in the case of the
\nLessor, (x) the Lessor or its general partner suffer a downgrade, qualification
\nor withdrawal or, in the reasonable judgment of the Lessee, potential downgrade,
\nqualification or withdrawal, of its long or short term credit rating by any
\nRating Agency or (y) Credit Suisse First Boston ceases to be the sole general
\npartner of Lessor, the Lessee shall be permitted to replace the Lessor at any
\ntime, or (B) if the Lessor or its general partner suffers a downgrade,
\nwithdrawal or qualification of its credit rating to the extent that such
\ndowngrade, withdrawal or qualification results or would result in the credit
\nrating assigned to the Fixed Rate Notes by either of the Rating Agencies being
\nlower than the credit rating then assigned by the Rating Agencies to the
\nGuarantor, the Lessee shall be required to replace the Lessor; provided that in
\nany instance described in clause (a) or (b) above (i) such replacement does not
\nconflict with any Requirement of Law, (ii) any replacement Lessor shall
\npurchase, at par, the Lessor Investment Amount, all accrued and unpaid
\nCertificate Earnings thereon and other amounts owing to Lessor under the
\nOperative Documents on or prior to the date of replacement, (iii) the
\nreplacement Lessor or Facility Lender shall be reasonably satisfactory to the
\nIndenture Trustee, (iv) the Guarantor and Lessee shall be obligated to pay any
\nTransaction Expenses arising in connection therewith, (v) the replacement Lessor
\nor Facility Lender shall agree in writing to be subject to all of the terms and
\nconditions of the Operative Documents and this Participation Agreement and (vi)
\nas a condition precedent to such replacement, the Guarantor or Lessee shall have
\nprovided written confirmation from each of Moody’s and S&P that immediately
\nafter having given effect to such replacement, the Fixed Rate Notes shall not be
\nrated lower than the Fixed Rate Notes are rated immediately prior to such
\nreplacement and such replacement shall not result in a downgrade, withdrawal or
\nqualification of the rating assigned to the Fixed Rate Notes by Moody’s or S&P.
\nThe Lessor and the Facility Lender agree to cooperate with the Lessee in its
\nefforts to arrange replacements as contemplated by this Section 12.2.<\/p>\n
SECTION 13.<\/p>\n
INDEMNIFICATION<\/p>\n
SECTION 13.1. General Indemnification. The Guarantor and Lessee,
\njointly and severally, whether or not any of the transactions contemplated
\nhereby shall be consummated, hereby assume liability for, and indemnify,
\nprotect, defend, save and keep harmless each Indemnitee, on an After Tax Basis,
\nfrom and against any and all Claims that may be imposed on, incurred by or
\nasserted against such Indemnitee in any way relating to or arising out of:<\/p>\n
(a) any of the Operative Documents or any of the transactions
\n contemplated thereby, and any amendment, modification or
\n waiver in respect thereof; or<\/p>\n
37
\n 42<\/p>\n
(b) the Properties or any part thereof or interest therein;<\/p>\n
(c) the purchase, design, construction, preparation, installation,
\n inspection, delivery, non-delivery, acceptance, rejection,
\n ownership, management, possession, operation, rental, lease,
\n sublease, repossession (whether by summary proceedings or
\n otherwise), maintenance, repair, alteration, modification,
\n addition, substitution, storage, transfer of title,
\n redelivery, use, financing, refinancing, disposition,
\n operation, condition, sale (including, without limitation, any
\n sale pursuant to the Lease), return or other disposition of
\n all or any part of any interest in the Properties or the
\n imposition of any Lien (or incurring of any liability to
\n refund or pay over any amount as a result of any Lien)
\n thereon, including, without limitation: (l) personal injury,
\n death or property damage, including Claims or penalties
\n arising from any violation of law or in tort (strict liability
\n or otherwise), (2) latent or other defects, whether or not
\n discoverable, (3) any Claim based upon a violation or alleged
\n violation of the terms of any Applicable Law or any
\n restriction, easement, condition or covenant or other matter
\n affecting title to the Properties or any part thereof, (4) the
\n making of any Modifications in violation of any Insurance
\n Requirements, (5) any Claim for patent, trademark or copyright
\n infringement, and (6) Claims arising from any public
\n improvements with respect to the Properties resulting in any
\n change or special assessments being levied against the
\n Properties or any Claim for utility “tap-in” fees;<\/p>\n
(d) the offer, issuance, sale or delivery of the Fixed Rate Notes
\n or the Note;<\/p>\n
(e) the breach or alleged breach by the Guarantor or the Lessee of
\n any representation or warranty made by it or deemed made by it
\n in any Operative Document or any certificate required to be
\n delivered by any Operative Document or the breach or alleged
\n breach by the Guarantor or the Lessee of any covenant or
\n obligation made by it in any Operative Document;<\/p>\n
(f) the retaining or employment of any broker, finder or financial
\n advisor by the Guarantor or Lessee to act on its behalf in
\n connection with the Operative Documents, or the authorization
\n of any broker or financial adviser retained or employed by the
\n Guarantor or the Lessee so to act, or the incurring of any
\n fees or commissions by the Lessee or the Guarantor to which
\n the Indemnitees might be subjected by virtue of their entering
\n into the transactions contemplated by the Operative Documents;<\/p>\n
(g) the existence of any Lien on or with respect to the
\n Properties, any Basic Rent or Supplemental Rent, title
\n thereto, or any interest therein, including any Liens which
\n arise out of the possession, use, occupancy, construction,
\n repair or rebuilding of any <\/p>\n
38
\n 43<\/p>\n
of the Properties or by reason of labor or materials furnished
\n or claimed to have been furnished to the Lessee, or any of its
\n contractors or agents or by reason of the financing of any
\n personalty or equipment purchased or leased by the Lessee or
\n Modifications constructed by the Lessee, except in all cases
\n Permitted Liens;<\/p>\n
(h) any breach of any requirement, condition, restriction or
\n limitation in any other Operative Document on the part of
\n Lessee or Guarantor to be performed; or<\/p>\n
(i) any easement, license, right-of-way, covenant, restriction or
\n other document or agreement entered into by Lessor at the
\n request of Lessee;<\/p>\n
provided, however, neither the Guarantor nor the Lessee shall be required to
\nindemnify any Indemnitee under this Section 13.1 for any of the following: (1)
\nany Claim to the extent that such Claim resulted from the willful misconduct or
\ngross negligence of such Indemnitee, (2) any Claim to the extent resulting from
\nLessor Liens which the Indemnitee is responsible for discharging under the
\nOperative Documents, (3) any Claim to the extent directly resulting from a
\nbreach of an Operative Document or Applicable Law by such Indemnitee (except for
\na breach by the Facility Lender that is arising out of or attributable to a
\nbreach by the Lessee or Guarantor of any of its obligations under any of the
\nOperative Documents), and (4) any Claim related to the Properties to the extent
\nattributable to acts or events occurring after the Lease Termination Date unless
\nan Event of Default has occurred and is continuing and the Participants are
\nexercising remedies against the Lessee or the Properties in respect of the
\nOperative Documents (in which event all of the foregoing provisions of this
\nSection 13.1 shall remain in full force and effect). It is expressly understood
\nand agreed that the indemnity provided for herein shall survive the expiration
\nor termination of the Lease and the other Operative Documents and the payment by
\nLessee and Guarantor of all amounts due thereunder for a period of three (3)
\nyears (but shall continue in full force and effect following such date with
\nrespect to any Claim asserted prior to such date), and shall be separate and
\nindependent from any remedy under the Lease or any other Operative Document;
\nprovided that, to the extent that any Claim arises after such three (3) year
\nperiod which was not asserted during such three (3) year period due to a failure
\nto discover such Claim or for any other reason, the indemnity provided for in
\nthis Section 13.1 shall be revived upon the assertion of such Claim solely with
\nrespect to such Claim.<\/p>\n
SECTION 13.2. Environmental Indemnity. In addition to, and not in
\nderogation of, the indemnities contained in Section 13.1 and 13.4 the Guarantor
\nand the Lessee, jointly and severally, hereby indemnify, hold harmless and
\ndefend each Indemnitee from and against any and all Claims, including, but not
\nlimited to, all costs incurred in connection with any investigation or
\nmonitoring of site conditions or any clean-up, remediation, removal or
\nrestoration work by or at the direction of any Governmental Authority, related
\nto the Properties or the Lessee’s use of the Properties, arising directly or
\nindirectly, in whole or in part, out of<\/p>\n
(i) the presence on or under any Property of any
\n Hazardous Substances, or <\/p>\n
39
\n 44<\/p>\n
any releases or discharges of any Hazardous Substances on,
\n under, from or onto any Property or any other Hazardous
\n Condition with respect to any Property,<\/p>\n
(ii) any Hazardous Activity, including, without
\n limitation, construction, carried on or undertaken on or off
\n any Property, and whether by the Lessee, or any predecessor in
\n title or any employees, Indenture Trustee, contractors or
\n subcontractors of the Lessee, or any predecessor in title, or
\n any other Persons, in connection with the handling, treatment,
\n removal, storage, decontamination, clean-up, transport or
\n disposal of any Hazardous Substances that at any time are
\n located or present on or under any Property or that at any
\n time migrate, flow, percolate, diffuse or in any way move onto
\n or under any Property,<\/p>\n
(iii) loss of or damage to any property or the
\n environment (including, without limitation, clean-up costs,
\n response costs, remediation and removal costs, cost of
\n corrective action, costs of financial assurance, fines and
\n penalties and natural resource damages), or death or injury to
\n any Person, and all expenses associated with the protection of
\n wildlife, aquatic species, vegetation, flora and fauna, and
\n any mitigative action required by or under Environmental Laws,<\/p>\n
(iv) any Claim concerning lack of compliance with
\n Environmental Laws with respect to the Properties, or any act
\n or omission causing an environmental condition with respect to
\n the Properties that requires remediation or would allow any
\n governmental agency to record a lien or encumbrance on the
\n land records with respect to the Properties,<\/p>\n
(v) any residual contamination on or under any
\n Property, including any such contamination affecting any
\n natural resources, and to any such contamination of any
\n property or natural resources arising in connection with the
\n generation, use, handling, storage, transport or disposal of
\n any Hazardous Substances associated with such Property and
\n related to the residual contamination, the obligation
\n existing, irrespective of whether any of such activities were
\n or will be undertaken in accordance with applicable laws,
\n regulations, codes and ordinances,<\/p>\n
(vi) in any case with respect to the matters
\n described in the foregoing clauses (i) through (v) that arise
\n or occur<\/p>\n
(w) during the Term,<\/p>\n
(x) at any time during which the Lessee or
\n any Affiliate thereof owns any interest in or
\n otherwise occupies, controls or possesses the
\n relevant Property or any portion thereof, or<\/p>\n
40
\n 45<\/p>\n
(y) during any period after and during the
\n continuance of any Event of Default, or<\/p>\n
(vii) a breach of the representations and warranties
\n of the Guarantor and the Lessee provided herein;<\/p>\n
provided, however, that neither the Guarantor nor the Lessee shall be required
\nto indemnify any Indemnitee under this Section 13.2 for any of the following:
\n(1) any Claim to the extent that such Claim resulted from the willful misconduct
\nor gross negligence of such Indemnitee, (2) any Claim to the extent proximately
\ncaused by any action on the part of such Indemnitee or, to the extent such Claim
\nrelates to or is attributable to, events occurring after the Term where such
\nIndemnitee is in control of the Property or Properties, inaction on the part of
\nsuch Indemnitee, and (3) any Claim related to the Properties to the extent
\nattributable to acts or events occurring before or after the Term unless, in the
\ncase of Claims attributable to acts or events occurring after the Lease
\nTermination Date, an Event of Default has occurred and is continuing and the
\nParticipants are exercising remedies against the Lessee or the Properties under
\nthe Operative Documents (in which event all of the foregoing provisions of this
\nSection 13.2 shall remain in full force and effect), or the Claim arises out of
\na breach of the representations and warranties of the Guarantor or Lessee
\ncontained herein. It is expressly understood and agreed that the indemnity
\nprovided for herein shall survive the expiration or termination of the Lease and
\nthe other Operative Documents and the payment by Lessee and Guarantor of all
\namounts due thereunder for a period of three (3) years (but shall continue in
\nfull force and effect following such date with respect to any Claim asserted
\nprior to such date) and shall be separate and independent from any remedy under
\nthe Lease or any other Operative Document; provided that, to the extent that any
\nClaim arises after such three (3) year period which was not asserted during such
\nthree (3) period due to a failure to discover such Claim or for any other
\nreason, the indemnity provided for in this Section 13.2 shall be revived upon
\nthe assertion of such Claim solely with respect to such Claim.<\/p>\n
SECTION 13.3. Proceedings in Respect of Claims. With respect to any
\namount that the Guarantor or the Lessee is requested by an Indemnitee to pay by
\nreason of Section 13.1 or 13.2, such Indemnitee shall, if so requested by the
\nGuarantor or the Lessee and prior to any payment, submit such additional
\ninformation to the Guarantor or the Lessee as the Guarantor or the Lessee may
\nreasonably request and which is in the possession of such Indemnitee to
\nsubstantiate properly the requested payment. In case any action, suit or
\nproceeding shall be brought against any Indemnitee, such Indemnitee shall notify
\nthe Guarantor or the Lessee of the commencement thereof, and the Guarantor or
\nthe Lessee shall be entitled, at its expense, to participate in, and, to the
\nextent that the Guarantor or the Lessee desires to, assume and control the
\ndefense thereof; provided, however, that the Guarantor or the Lessee shall have
\nacknowledged in writing its obligation to fully indemnify such Indemnitee in
\nrespect of such action, suit or proceeding and the Guarantor or the Lessee shall
\nkeep such Indemnitee fully apprised of the status of such action, suit or
\nproceeding and shall provide such Indemnitee with all information with respect
\nto such action suit or proceeding as such Indemnitee shall reasonably request,
\nand, provided further, that the Guarantor or the Lessee shall not be entitled to
\nassume and control the defense of any such action, suit or proceeding if and to
\nthe extent that, (A) in the reasonable opinion of such Indemnitee, (x) such
\naction, suit or proceeding involves any possibility of imposition of criminal
\nliability or any material risk of material civil liability on such Indemnitee or
\nwill involve a material risk of the sale, forfeiture or loss of, or the creation
\nof any Lien (other than a Permitted Lien) on the Properties or any part thereof
\nunless the<\/p>\n
41
\n 46<\/p>\n
Guarantor or the Lessee shall have posted a bond or other security satisfactory
\nto the relevant Indemnitees in respect to such risk or (y) the control of such
\naction, suit or proceeding would involve an actual or potential conflict of
\ninterest (in which case each Indemnitee may retain separate counsel at the
\nexpense of Lessee and Guarantor), (B) such proceeding involves Claims not fully
\nindemnified by the Guarantor or the Lessee which the Guarantor or the Lessee and
\nthe Indemnitee have been unable to sever from the indemnified claim(s), or (C)
\nan Event of Default has occurred and is continuing. The Indemnitee may
\nparticipate in a reasonable manner at its own expense and with its own counsel
\nin any proceeding conducted by the Guarantor or the Lessee in accordance with
\nthe foregoing. Neither the Guarantor nor the Lessee shall enter into any
\nsettlement or other compromise with respect to any Claim which is entitled to be
\nindemnified under Section 13.1 or 13.2 without the prior written consent of the
\nrelated Indemnitee, which consent shall not be unreasonably withheld.<\/p>\n
No Indemnitee shall enter into any settlement or other compromise with
\nrespect to any Claim which is entitled to be indemnified under Section 13.1 or
\n13.2 without the prior written consent of the Lessee, which consent shall not be
\nunreasonably withheld, unless such Indemnitee waives its right to be indemnified
\nunder Section 13.1 or 13.2 with respect to such Claim.<\/p>\n
Upon payment in full of any Claim by the Guarantor or the Lessee
\npursuant to Section 14.1 or 13.2 to or on behalf of an Indemnitee, the Guarantor
\nor the Lessee, as the case may be, without any further action, shall be
\nsubrogated to any and all claims that such Indemnitee may have relating thereto
\n(other than claims in respect of insurance policies maintained by such
\nIndemnitee at its own expense) to the extent of such payment, and such
\nIndemnitee shall execute such instruments of assignment and conveyance, evidence
\nof claims and payment and such other documents, instruments and agreements as
\nmay be reasonably necessary to preserve any such claims and otherwise cooperate
\nwith the Guarantor and the Lessee and give such further assurances as are
\nreasonably necessary or advisable to enable the Guarantor or the Lessee
\nvigorously to pursue such claims.<\/p>\n
Any amount payable to an Indemnitee pursuant to Section 13.1 or 13.2
\nshall be paid to such Indemnitee promptly upon receipt of a written demand
\ntherefor from such Indemnitee, accompanied by a written statement describing in
\nreasonable detail the basis for such indemnity and the computation of the amount
\nso payable.<\/p>\n
SECTION 13.4. End of Term Indemnity. In addition to the indemnities
\nprovided in Sections 13.1 and 13.2, if the Lessee elects the Remarketing Option
\nset forth at Section 22.1 of the Lease with respect to the Properties subject to
\nthe Lease and there is a Shortfall Amount with<\/p>\n
42
\n 47<\/p>\n
respect to such Properties, then prior to the Lease Termination Date and as a
\ncondition to Lessee’s right to complete the remarketing of such Property
\npursuant to Section 22.1 of the Lease, Lessee shall cause to be delivered to
\nLessor no later than the Lease Termination Date, at Lessee’s sole cost and
\nexpense, a report from an Appraiser in form and substance reasonably
\nsatisfactory to the Indenture Trustee and the Lessor (the “End of the Term
\nReport”) to establish the reason for any impairment to the value of any of such
\nProperty which was sold for an amount less than the Property Balance for such
\nProperty or not sold. On the Lease Termination Date, the Lessee shall pay to
\nLessor an amount equal to the Shortfall Amount that the End of the Term Report
\ndemonstrates was the result of an impairment to the value in such Property due
\nto:<\/p>\n
(a) extraordinary use, failure to maintain, to repair, to restore,
\n to rebuild or to replace, failure to comply with all
\n Requirements of Law, failure to use quality workmanship,
\n method of installation or removal or maintenance, repair,
\n rebuilding or replacement, (excepting in each case ordinary
\n wear and tear), or<\/p>\n
(b) the existence of any Hazardous Activity, Hazardous Substance
\n or Environmental Violations occurring or discovered after the
\n Closing Date for such Property (regardless of the Person so
\n discovering any of the foregoing), or<\/p>\n
(c) any restoration or rebuilding carried out by the Lessee or any
\n failure to complete any Modification, restoration or
\n rebuilding, in either case, by the Lease Termination Date,<\/p>\n
(d) any grant, release, dedication, transfer, annexation or
\n amendment made pursuant to Section 12.2 of the Lease or any
\n release of a portion of the Property made pursuant to Section
\n 12.3 of the Lease; or<\/p>\n
(e) the failure of the Lessor to have good and marketable title to
\n such Property free and clear of all Liens (including Permitted
\n Liens (other than Lessor Liens and Trustee’s Liens)) and
\n exceptions to title.<\/p>\n
SECTION 13.5. General Tax Indemnity. (a) Indemnification.
\nGuarantor and Lessee, jointly and severally, shall pay and assume liability for,
\nand do hereby agree to indemnify, protect and defend each Property and all Tax
\nIndemnitees, and hold them harmless against, all Impositions on an After Tax
\nBasis.<\/p>\n
(b) Contests. If any claim shall be made against any Tax
\nIndemnitee or if any proceeding shall be commenced against any Tax Indemnitee
\n(including a written notice of such proceeding) for any Imposition as to which
\nthe Lessee may have an indemnity obligation pursuant to Section 13.5(a), or if
\nany Tax Indemnitee shall determine that any Imposition as to which the Lessee
\nmay have an indemnity obligation pursuant to Section 13.5(a) may be payable,
\nsuch Tax Indemnitee shall promptly notify Lessee in writing and shall not take
\nany action with respect to <\/p>\n
43
\n 48<\/p>\n
such claim, proceeding or Imposition without the written consent of Lessee (such
\nconsent not to be unreasonably withheld or unreasonably delayed) for thirty (30)
\ndays after the receipt of such notice by Lessee; provided, however, that in the
\ncase of any such claim or proceeding, if such Tax Indemnitee shall be required
\nby law or regulation to take action prior to the end of such thirty (30) day
\nperiod, such Tax Indemnitee shall in such notice to Lessee, so inform Lessee,
\nand such Tax Indemnitee shall not take any action with respect to such claim,
\nproceeding or Imposition without the consent of Lessee (such consent not to be
\nunreasonably withheld or unreasonably delayed) for ten (10) days after the
\nreceipt of such notice by Lessee unless the Tax Indemnitee shall be required by
\nlaw or regulation to take action prior to the end of such ten (10)-day period.<\/p>\n
Lessee shall be entitled for a period of thirty (30) days from receipt
\nof such notice from the Tax Indemnitee (or such shorter period as the Tax
\nIndemnitee has notified Lessee is required by law or regulation for the Tax
\nIndemnitee to commence such contest) to request in writing that such Tax
\nIndemnitee contest the imposition of such Tax, at Guarantor’s and Lessee’s joint
\nand several expense and the Tax Indemnitee shall, at the joint and several
\nexpense of Guarantor and Lessee, in good faith conduct and control such contest
\n(including, without limitation, by pursuit of appeals) related to the validity,
\napplicability or amount of such Impositions (provided, however, that (A) if such
\ncontest involves a tax other than a tax on net income and can be pursued
\nindependently from any other proceeding involving a tax liability of such Tax
\nIndemnitee, the Tax Indemnitee, at Lessee’s request, shall allow Guarantor or
\nLessee to conduct and control such contest and (B) in the case of any contest,
\nthe Tax Indemnitee may request Guarantor or Lessee to conduct and control such
\ncontest) by, in the sole discretion of the Person conducting and controlling
\nsuch contest, (l) resisting payment thereof, (2) not paying the same except
\nunder protest, if protest is necessary and proper, (3) if the payment be made,
\nusing reasonable efforts to obtain a refund thereof in appropriate
\nadministrative and judicial proceedings, or (4) taking such other action as is
\nreasonably requested by Guarantor or Lessee from time to time.<\/p>\n
The party controlling any contest shall consult in good faith with the
\nnon-controlling party and shall keep the noncontrolling party reasonably
\ninformed as to the conduct of such contest; provided that, all decisions
\nultimately shall be made in the sole discretion of the controlling party. The
\nparties agree that a Tax Indemnitee may at any time decline to take further
\naction with respect to the contest of any Imposition and may settle such contest
\nif such Tax Indemnitee shall waive its rights to any indemnity from Lessee that
\notherwise would be payable in respect of such claim (and any future claim by any
\ntaxing authority, the contest of which is precluded by reason of such resolution
\nof such claim) and shall pay to Lessee any amount previously paid or advanced by
\nLessee pursuant to this Section 13.5 by way of indemnification or advance for
\nthe payment of an Imposition other than expenses of such contest.<\/p>\n
Notwithstanding the foregoing provisions of this Section 13.5, a Tax
\nIndemnitee shall not be required to take any action and neither Guarantor nor
\nLessee shall be permitted to contest any Impositions in its own name or that of
\nthe Tax Indemnitee unless (A) Lessee shall have agreed to pay and shall pay to
\nsuch Tax Indemnitee on demand and on an After Tax Basis all reasonable <\/p>\n
44
\n 49<\/p>\n
costs, losses and expenses that such Tax Indemnitee actually incurs in
\nconnection with contesting such Impositions, including, without limitation, all
\nreasonable legal, accounting and investigatory fees and disbursements, (B) Tax
\nIndemnitee shall have reasonably determined that the action to be taken will not
\nresult in any material danger of sale, forfeiture or loss of any Property, or
\nany part thereof or interest therein, will not interfere with the payment of
\nRent, and will not result in risk of criminal liability, (C) if such contest
\nshall involve the payment of the Imposition prior to the contest, Lessee shall
\nprovide to the Tax Indemnitee an interest-free advance in an amount equal to the
\nImposition that the Tax Indemnitee is required to pay (with no additional net
\nafter-tax cost to such Tax Indemnitee), (D) in the case of a claim that must be
\npursued in the name of a Tax Indemnitee (or an Affiliate thereof), Lessee shall
\nhave provided to such Tax Indemnitee an opinion of independent tax counsel
\nselected by the Lessee and reasonably satisfactory to Tax Indemnitee stating
\nthat a reasonable basis exists to contest such claim (or, in the case of an
\nappeal of an adverse determination, an opinion of such counsel to the effect
\nthat the position asserted in such appeal will more likely than not prevail) and
\n(E) no Event of Default hereunder shall have occurred and be continuing.<\/p>\n
Each Tax Indemnitee shall at Lessee’s expense supply Lessee with such
\ninformation and documents reasonably requested by Lessee as are in such Tax
\nIndemnitee’s possession and as are necessary or advisable for Lessee to
\nparticipate in any action, suit or proceeding to the extent permitted by this
\nSection 13.5(b); provided that, such Tax Indemnitee shall not be required to
\ndisclose its tax return to Lessee to the extent that the information deemed
\nnecessary or desirable by Lessee contained therein is otherwise made available
\nto the Lessee in a form which will not hinder Lessee’s contest of such action,
\nsuit or proceeding.<\/p>\n
Notwithstanding anything contained herein to the contrary, a Tax
\nIndemnitee will not be required to contest a claim with respect to the
\nimposition of any Tax if such Tax Indemnitee shall waive its right to
\nindemnification under this Section 13.5 with respect to such claim and any
\nrelated claim with respect to other taxable years the contest of which is
\nprecluded or otherwise materially adversely affected as a result of such waiver.<\/p>\n
(c) Reimbursement for Tax Savings. If (x) a Tax Indemnitee
\nshall obtain a credit or refund of any Taxes paid by Lessee pursuant to this
\nSection 13.5 or (y) by reason of the incurrence or imposition of any Tax for
\nwhich a Tax Indemnitee is indemnified hereunder or any payment made to or for
\nthe account of such Tax Indemnitee by Lessee pursuant to this Section 13.5 or
\nany payment made by a Tax Indemnitee to Lessee by reason of this Section
\n13.5(c), such Tax Indemnitee at any time actually realizes a reduction in any
\nTaxes for which Lessee is not required to indemnify such Tax Indemnitee pursuant
\nto this Section 13.5 which reduction in Taxes was not taken into account in
\ncomputing such payment by Lessee to or for the account of such Tax Indemnitee or
\nby the Tax Indemnitee to Lessee, then such Tax Indemnitee shall promptly pay to
\nLessee on an After Tax Basis (xx) the amount of such credit or refund, together
\nwith the amount of any interest received by such Tax Indemnitee on account of
\nsuch credit or refund or (yy) an amount equal to such reduction in Taxes, as the
\ncase may be; provided that no such payment shall be made <\/p>\n
45
\n 50<\/p>\n
so long as an Event of Default shall have occurred and be continuing but shall
\nbe paid promptly after cure of such Event of Default. Each Tax Indemnitee agrees
\nto take such actions as Lessee may reasonably request (provided in the good
\nfaith judgment of the Tax Indemnitee, such actions would not result in any
\nadverse effect on the Tax Indemnitee for which the Tax Indemnitee is not
\nentitled to indemnification from Lessee) and to otherwise act in good faith to
\nclaim such refunds and other available Tax benefits, and take such other actions
\nas may be reasonable to minimize any payment due from Lessee pursuant to this
\nSection 13.5. The disallowance or reduction of any credit, refund or other tax
\nsavings with respect to which a Tax Indemnitee has made a payment to Lessee
\nunder this Section 13.5(c) shall be treated as a Tax for which Lessee is
\nobligated to indemnify such Tax Indemnitee hereunder without regard to the
\nexclusions set forth in the definition of Impositions.<\/p>\n
(d) Payments. Any Imposition indemnifiable under this Section
\n13.5 shall be paid directly when due to the applicable taxing authority if
\ndirect payment is practicable and permitted. If direct payment to the applicable
\ntaxing authority is not permitted or is otherwise not made, any amount payable
\nto a Tax Indemnitee pursuant to this Section 13.5 shall be paid within thirty
\n(30) days after receipt of a written demand therefor from such Tax Indemnitee
\naccompanied by a written statement describing in reasonable detail the amount so
\npayable, but not before two (2) Business Days prior to the date that the
\nrelevant Taxes are due. Any payments made pursuant to Section 13.5 shall be made
\nin immediately available funds at such bank or to such account as specified by
\nthe payee in written directions to the payor, or, if no such direction shall
\nhave been given, by check of the payor payable to the order of the payee by
\ncertified mail, postage prepaid at its address as set forth in this
\nParticipation Agreement. Upon the request of any Tax Indemnitee with respect to
\na Tax that Lessee is required to pay, Lessee shall furnish to such Tax
\nIndemnitee the original or a certified copy of a receipt for Lessee’s payment of
\nsuch Tax or such other evidence of payment as is reasonably acceptable to such
\nTax Indemnitee.<\/p>\n
(e) Reports. In the case of any report, return or statement
\nrequired to be filed with respect to any Taxes that are subject to
\nindemnification under this Section 13.5, Lessee shall promptly notify the Tax
\nIndemnitee of such requirement and, at Lessee’s expense (i) if Lessee is
\npermitted (unless otherwise requested by the Tax Indemnitee) by Applicable Law,
\ntimely file such report, return or statement in its own name or (ii) if such
\nreport, return or statement is required to be in the name of or filed by such
\nTax Indemnitee or the Tax Indemnitee otherwise requests that such report, return
\nor statement be prepared for filing by such Tax Indemnitee, prepare such report,
\nreturn or statement in such manner as shall be satisfactory to such Tax
\nIndemnitee and send the same to the Tax Indemnitee for filing no later than
\nfifteen (15) days prior to the due date therefor. In any case in which the Tax
\nIndemnitee will file any such report, return or statement, Lessee shall, upon
\nwritten request of such Tax Indemnitee, provide such Tax Indemnitee with such
\ninformation as is reasonably necessary to allow the Tax Indemnitee to file such
\nreport, return or statement.<\/p>\n
(f) Verification. At Lessee’s request, the amount of any
\nindemnity payment by Lessee or any payment by a Tax Indemnitee to Lessee
\npursuant to this Section 13.5 shall be verified <\/p>\n
46
\n 51<\/p>\n
and certified by an independent public accounting firm mutually acceptable to
\nLessee and the Tax Indemnitee. The costs of such verification shall be borne by
\nLessee unless such verification shall result in an adjustment in Lessee’s favor
\nof ten percent (10%) of the payment as computed by the Tax Indemnitee, in which
\ncase such fee shall be paid by the Tax Indemnitee. In no event shall Lessee have
\nthe right to review the Tax Indemnitee’s tax returns or receive any other
\nconfidential information from the Tax Indemnitee in connection with such
\nverification. Any information provided to such accountants by any Person shall
\nbe and remain the exclusive property of such Person and shall be deemed by the
\nparties to be (and the accountants will confirm in writing that they will treat
\nsuch information as) the private, proprietary and confidential property of such
\nPerson, and no Person other than such Person and the accountants shall be
\nentitled thereto and all such materials shall be returned to such Person. Such
\naccounting firm shall be requested to make its determination within thirty (30)
\ndays of Lessee’s request for verifications and the computations of the
\naccounting firm shall be final, binding and conclusive upon Lessee and the Tax
\nIndemnitee. The parties agree that the sole responsibility of the independent
\npublic accounting firm shall be to verify the amount of a payment pursuant to
\nthis Participation Agreement and that matters of interpretation of this
\nParticipation Agreement are not within the scope of the independent accounting
\nfirm’s responsibilities.<\/p>\n
SECTION 14.<\/p>\n
MISCELLANEOUS<\/p>\n
SECTION 14.1. Survival of Agreements. The representations, warranties,
\ncovenants, indemnities and agreements of the parties provided for in the
\nOperative Documents, and the parties’ obligations under any and all thereof,
\nshall survive the execution and delivery of this Participation Agreement, the
\ntransfer of any Property to the Lessor, any disposition of any interest of the
\nLessor in any Property or any Improvements, the payment of the Note and any
\ndisposition thereof shall be and continue in effect notwithstanding any
\ninvestigation made by any party and the fact that any party may waive compliance
\nwith any of the other terms, provisions or conditions of any of the Operative
\nDocuments. Except as expressly provided herein, it is expressly understood and
\nagreed that each of the indemnities provided for herein shall survive the
\nexpiration or termination of the Lease and the other Operative Documents and the
\npayment by Lessee and Guarantor of all amounts due thereunder for a period of
\nthree (3) years (but shall continue in full force and effect following such date
\nwith respect to any Claim asserted prior to such date) and shall be separate and
\nindependent from any remedy under the Lease or any other Operative Document;
\nprovided that, to the extent that any Claim arises after such three (3) year
\nperiod which was not asserted during such three (3) period due to a failure to
\ndiscover such Claim or for any other reason, such indemnity shall be revived
\nupon the assertion of such Claim solely with respect to such Claim.<\/p>\n
SECTION 14.2. No Broker; etc. Each of the parties hereto represents to
\nthe others <\/p>\n
47
\n 52<\/p>\n
that it has not retained or employed any broker, finder or financial adviser,
\nother than Credit Suisse First Boston Corporation and Invemed Associates, Inc.,
\nto act on its behalf in connection with this Participation Agreement or the
\ntransactions contemplated herein, nor has it authorized any broker, finder or
\nfinancial adviser retained or employed by any other Person so to act. Any party
\nwho is in breach of this representation shall indemnify and hold the other
\nparties harmless from and against any liability arising out of such breach of
\nthis representation.<\/p>\n
SECTION 14.3. Notices. Unless otherwise specifically provided herein,
\nall notices, consents, directions, approvals, instructions, requests and other
\ncommunications required or permitted by the terms hereof to be given to any
\nPerson shall be given in writing by United States mail, by nationally recognized
\ncourier service, by hand or by facsimile communication and any such notice shall
\nbecome effective five (5) Business Days after being deposited in the mails,
\ncertified or registered with appropriate postage prepaid or one (1) Business Day
\nafter delivery to a nationally recognized courier service specifying overnight
\ndelivery or, if delivered by hand, when received, or, if sent by facsimile
\ncommunication, when confirmed by electronic or other means during business hours
\non a Business Day (or, if confirmed after business hours or on a non-Business
\nDay, on the next Business Day) and shall be directed to the address of such
\nPerson as indicated:<\/p>\n
If to Guarantor, to it at:<\/p>\n
The Home Depot, Inc.
\n 2455 Paces Ferry Road
\n Atlanta, Georgia 30339<\/p>\n
Attn: Treasurer<\/p>\n
Telephone No.: (770) 384-5735
\n Telecopy No.: (770) 384-4522<\/p>\n
with a copy to:<\/p>\n
L.A. Smith
\n Senior Vice President\/Legal
\n 2455 Paces Ferry Road
\n Atlanta, Georgia 30339
\n Telephone No.: (770) 384-2737
\n Telecopy No.: (770) 384-2752<\/p>\n
If to Lessee, to it at:<\/p>\n
Home Depot U.S.A., Inc.
\n 2455 Paces Ferry Road
\n Atlanta, Georgia 30339<\/p>\n
Attn: Treasurer<\/p>\n
Telephone No.: (770) 384-5735
\n Telecopy No.: (770) 384-4522<\/p>\n
48
\n 53<\/p>\n
with a copy to:<\/p>\n
L.A. Smith
\n Senior Vice President\/Legal
\n 2455 Paces Ferry Road
\n Atlanta, Georgia 30339
\n Telephone No.: (770) 384-2737
\n Telecopy No.: (770) 384-2752<\/p>\n
If to the Lessor, to it at:<\/p>\n
11 Madison Avenue, 23rd Floor
\n New York, New York 10010<\/p>\n
Attn: Director<\/p>\n
Telecopy No.: (212) 325-8094
\n Telephone No.: (212) 325-9138<\/p>\n
If to the Indenture Trustee, to it at:<\/p>\n
The Bank of New York
\n 101 Barclay Street, 21st Floor
\n Corporate Trust Administration
\n New York, New York 10286
\n Telephone No.: (212) 815-5092
\n Telecopy No.: (212) 815-5915<\/p>\n
If to Facility Lender, to it at:<\/p>\n
HD Real Estate Funding Corp. II
\n c\/o JH Management Corporation
\n Room 520
\n One International Place
\n Boston, Massachusetts 02110<\/p>\n
Attn: R. Douglas Donaldson<\/p>\n
Telecopy No.: (617) 951-7050
\n Telephone No.: (617) 951-7690<\/p>\n
49
\n 54
\n If to Moody’s, to it at:<\/p>\n
Moody’s Investors Service
\n 99 Church Street
\n New York, New York 10007<\/p>\n
Telecopier No.: (212) 553-1350
\n Telephone No.: (212) 553-4595<\/p>\n
If to S&P, to it at:<\/p>\n
Standard & Poors
\n 25 Broadway
\n New York, New York 10004<\/p>\n
Telecopier No.: (212) 325-8094
\n Telephone No.: (212) 325-9138<\/p>\n
From time to time any party may designate a new address for purposes of
\nnotice hereunder by notice to each of the other parties hereto. The Lessee shall
\nreceive a copy of each notice delivered pursuant to the Operative Documents and
\nLessee hereby agrees to notify promptly Moody’s and S&P of any termination of
\nthe Lease.<\/p>\n
SECTION 14.4. Counterparts. This Participation Agreement may be
\nexecuted by the parties hereto in separate counterparts, each of which when so
\nexecuted and delivered shall be an original, but all such counterparts shall
\ntogether constitute but one and the same agreement.<\/p>\n
SECTION 14.5. Amendments. No Operative Document nor any of the terms
\nthereof may be terminated, amended, supplemented, waived or modified with
\nrespect to Guarantor, Lessee, the Lessor, the Facility Lender or the Indenture
\nTrustee, except (a) in the case of a termination, amendment, supplement, waiver
\nor modification to be binding on Guarantor, Lessee, the Lessor, the Facility
\nLender or the Indenture Trustee, with the written agreement or consent of such
\nparty, and (b) in the case of a termination, amendment, supplement, waiver or
\nmodification to the Indenture of Trust, in accordance with the terms thereof;
\nprovided, however, that<\/p>\n
(1) no such termination, amendment, supplement, waiver or
\nmodification shall without written agreement or consent of each Participant
\n(other than Facility Lender):<\/p>\n
50
\n 55<\/p>\n
(x)(i) modify any of the provisions of this Section 14.5; (ii)
\n reduce, modify, amend or waive any fees or indemnities in favor of any
\n Participant, including without limitation amounts payable pursuant to
\n Section 13 (except that any Person (other than the Facility Lender) may
\n consent to any reduction, modification, amendment or waiver of any
\n indemnity payable to it); (iii) modify, postpone, reduce or forgive, in
\n whole or in part, any payment of Rent (other than pursuant to the terms
\n of any Operative Document), any Loan or Lessor Investment Amount, the
\n Lease Balance, Residual Value Guaranty, amounts due pursuant to Section
\n 22.2 of the Lease, interest or Certificate Earnings or, subject to
\n clause (ii) above, any other amount payable under any Lease or this
\n Participation Agreement, or modify the definition or method of
\n calculation of Rent (other than pursuant to the terms of any Operative
\n Document), any Loan or Lessor Investment Amount, Lease Balance,
\n Shortfall Amount, Residual Value Guaranty, Maximum Property Costs, or
\n any other definition which would affect the amounts to be advanced or
\n which are payable under the Operative Documents or any of the other
\n matters set forth above; or<\/p>\n
(y) consent to any assignment of the Lease or the Guaranty,
\n releasing Lessee from its obligations in respect of the payments of
\n Rent and the Lease Balance or changing the absolute and unconditional
\n character of such obligation or releasing the Guarantor from its
\n obligations in respect of the payments under the Guaranty or changing
\n the absolute and unconditional character of such obligation;<\/p>\n
(2) no other termination, amendment, supplement, waiver or
\nmodification shall, without the written agreement or consent of the Lessor and
\nthe Indenture Trustee, be made to Sections 5 or 7 of this Participation
\nAgreement or the definition of “Lease Event of Default”.<\/p>\n
Notwithstanding the foregoing, any termination, amendment, supplement, waiver or
\nmodification to any provision of any of the Operative Documents (other than an
\namendment, supplement, waiver or modification made to cure any ambiguity, to
\ncorrect or supplement any provision in such Operative Document which may be
\ndefective or inconsistent with any other provision in such Operative Document or
\nany related Operative Document shall not be effective unless, as a condition
\nprecedent thereto, each of Moody’s and S&P shall have provided written
\nconfirmation that immediately after giving effect to such modification,
\nsupplement, amendment, waiver or termination, the Fixed Rate Notes shall not be
\nrated lower than such Fixed Rate Notes are rated immediately prior to giving
\neffect thereto and such supplement, amendment, modification, waiver or
\ntermination shall not result in a downgrade, withdrawal or qualification of the
\nrating assigned to the Fixed Rate Notes by Moody’s and S&P.<\/p>\n
SECTION 14.6. Usury. It is the intent of the parties hereto not to
\nviolate any federal or state law, rule or regulation pertaining either to usury
\nor to the contracting for or charging or collecting of interest, and each of the
\nparties hereto agree that, should any provision of this Participation Agreement
\nor of any of the Operative Documents, or any act performed hereunder or<\/p>\n
51
\n 56<\/p>\n
thereunder, violate any such law, rule or regulation, then the excess of
\ninterest contracted for or charged or collected over the maximum lawful rate of
\ninterest shall be applied to the outstanding principal indebtedness due to the
\nParticipants under the applicable Operative Document.<\/p>\n
SECTION 14.7. Confidentiality. Each Participant agrees to exercise
\ncommercially reasonable efforts to keep any information delivered or made
\navailable by the Guarantor or Lessee to it which is clearly indicated or stated
\nto be confidential information (or when the circumstances under which such
\ninformation is delivered or when the content thereof would cause a reasonable
\nperson to believe that such information is confidential), confidential from
\nanyone other than persons employed or retained by such Participant who are or
\nare expected to become engaged in evaluating, approving, structuring or
\nadministering any of the Operative Documents (such Persons to likewise be under
\nsimilar obligations of confidentiality with respect to such information);
\nprovided, however that nothing herein shall prevent any Participant from
\ndisclosing such information (i) to any other Participant, (ii) upon the order of
\nany court or administrative agency, (iii) upon the request or demand of any
\nregulatory agency or authority having jurisdiction over such Participant, (iv)
\nwhich has been publicly disclosed, (v) to the extent reasonably required in
\nconnection with any litigation to which any Participant or its Affiliates may be
\na party, (vi) to the extent reasonably required in connection with the exercise
\nof any remedy hereunder or under any other Operative Document, (vii) to such
\nParticipant’s legal counsel, independent auditors and to such Participant’s
\nAffiliates, (viii) to any actual or proposed Participant, assignee or other
\ntransferee of all or part of its rights hereunder which has agreed in writing to
\nbe bound by the provisions of this Section 14.7, and (ix) to the Rating
\nAgencies; provided, that, should disclosure of any such confidential information
\nbe required by virtue of clause (ii) or (v) of the immediately preceding
\nprovisos, any relevant Participant shall notify Lessee and Guarantor of the same
\nso as to allow the Lessee or Guarantor, at Lessee’s or Guarantor’s sole cost and
\nexpense, to seek a protective order or to take any other appropriate action;
\nprovided, further, that, no Participant shall be required to delay compliance
\nwith any directive to disclose beyond the last date such delay is legally
\npermissible any such information so as to allow the Lessee or Guarantor to
\neffect any such action.<\/p>\n
SECTION 14.8. Headings; etc. The Table of Contents and headings of the
\nvarious Articles and Sections of this Participation Agreement are for
\nconvenience of reference only and shall not modify, define, expand or limit any
\nof the terms or provisions hereof.<\/p>\n
SECTION 14.9. Parties in Interest. Except as expressly provided
\nherein, none of the provisions of this Participation Agreement are intended for
\nthe benefit of any Person except the parties hereto.<\/p>\n
SECTION 14.10. GOVERNING LAW. THIS PARTICIPATION AGREEMENT SHALL IN ALL
\nRESPECTS BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS
\nOF CONSTRUCTION, VALIDITY AND PERFORMANCE (INCLUDING SECTIONS 5-1401 AND 5-1402
\nOF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER CHOICE OF LAW
\nAND<\/p>\n
52
\n 57<\/p>\n
CONFLICTS OF LAW RULES).<\/p>\n
SECTION 14.11. Severability. Any provision of this Participation
\nAgreement that is prohibited or unenforceable in any jurisdiction shall, as to
\nsuch jurisdiction, be ineffective to the extent of such prohibition or
\nunenforceability without invalidating the remaining provisions hereof, and any
\nsuch prohibition or unenforceability in any jurisdiction shall not invalidate or
\nrender unenforceable such provision in any other jurisdiction.<\/p>\n
SECTION 14.12. Further Assurances. The parties hereto shall promptly
\ncause to be taken, executed, acknowledged or delivered, at the sole, joint and
\nseveral expense of Guarantor and Lessee, all such further acts, conveyances,
\ndocuments and assurances as the other parties may from time to time reasonably
\nrequest in order to carry out and effectuate the intent and purposes of this
\nParticipation Agreement, the other Operative Documents, and the transactions
\ncontemplated hereby and thereby (including, without limitation, the preparation,
\nexecution and filing of any and all Uniform Commercial Code financing statements
\nand other filings or registrations which the parties hereto may from time to
\ntime request to be filed or effected). Lessee will, at its own expense and
\nwithout need of any prior request from any other party, take such action as may
\nbe necessary (including any action specified in the preceding sentence), or (if
\nthe Lessor or Indenture Trustee shall so request) as so requested, in order to
\nmaintain and protect all security interests provided for hereunder or under any
\nother Operative Document.<\/p>\n
SECTION 14.13. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY
\nAPPLICABLE LAW, EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT
\nTO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE
\nOPERATIVE DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.<\/p>\n
SECTION 14.14. Limitations on Recourse Against Lessor. Notwithstanding
\nanything contained in this Participation Agreement or any other Operative
\nDocuments to the contrary, each of the parties hereto agrees to look solely to
\nLessor’s (or to any partner thereof’s) estate and interest in the Properties and
\nthe Improvements thereon and rights under the Operative Documents for the
\ncollection of any judgment requiring the payment of money by Lessor in the event
\nof liability by Lessor, and no other property or assets of Lessor or any
\nshareholder, owner or partner (direct or indirect) in or of Lessor, or any
\ndirector, officer, employee, beneficiary, Affiliate of any of the foregoing
\nshall be subject to levy, execution or other enforcement procedure for the
\nsatisfaction of the remedies of any party hereto against Lessor under or with
\nrespect to the Operative Documents, the relationship of Lessor and any other
\nparty hereto hereunder or any other liability of Lessor to any other party
\nhereto under the Operative Documents; provided that, nothing herein shall limit
\nrecourse against the Lessor or its partners for the gross negligence or willful
\nmisconduct of such Persons or claims proximately caused by Lessor’s breach of
\nits obligations pursuant to Sections 9.1, 10.2 (solely with respect to the first
\nsentence thereof), 10.3, 10.4, 10.6(a), (g), (h) or 10.7 of this Participation
\nAgreement; provided further, that the foregoing proviso is intended to allow a
\nclaim <\/p>\n
53
\n 58<\/p>\n
for damages against Lessor but shall not be construed as creating a full
\nrecourse obligation on the part of Lessor (or any partner thereof) to repay the
\nLoan in whole or in part or any amounts relating to the Loan arising under the
\nLoan Agreement and the Note.<\/p>\n
SECTION 14.15. Limitation on Recourse Against Facility Lender. The
\nprovisions of Section 2.14 of the Indenture of Trust are hereby incorporated
\nherein by this reference and made a part hereof and of each of the Operative
\nDocuments and each party hereto agrees to be bound by the limitations set forth
\ntherein.<\/p>\n
[SIGNATURE PAGES BEGIN ON THE FOLLOWING PAGE]<\/p>\n
54
\n 59<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Participation
\nAgreement to be duly executed by their respective officers thereunto duly
\nauthorized as of the day and year first above written.<\/p>\n
THE HOME DEPOT, INC., as Guarantor<\/p>\n
By: \/s\/ Lawrence A. Smith
\n ——————————————
\n Name: Lawrence A. Smith
\n Title: Senior Vice President – Legal<\/p>\n
Attest: \/s\/ Larry B. Appel
\n ————————————–
\n Name: Larry B. Appel
\n Title: Assistant Secretary<\/p>\n
[CORPORATE SEAL]<\/p>\n
55
\n 60<\/p>\n
HOME DEPOT U.S.A., INC., as Lessee<\/p>\n
By: \/s\/ Carol B. Tome
\n ——————————————
\n Name: Carol B. Tome
\n Title: Vice President and Treasurer<\/p>\n
Attest: \/s\/ Mary Beth Lamoree
\n ————————————–
\n Name: Mary Beth Lamoree
\n Title: Assistant Secretary<\/p>\n
[CORPORATE SEAL]<\/p>\n
56
\n 61<\/p>\n
HD REAL ESTATE FUNDING CORPORATION II, as
\n Facility Lender<\/p>\n
By: \/s\/ R. Douglas Donaldson
\n ——————————————
\n Name: R. Douglas Donaldson
\n Title: Treasurer<\/p>\n
CREDIT SUISSE LEASING 92A, L.P., a
\n Delaware limited partnership, as Lessor<\/p>\n
BY: CREDIT SUISSE FIRST BOSTON,
\n its general partner<\/p>\n
By: \/s\/Carl Weatherley-White
\n ——————————————
\n Name: Carl Weatherley-White
\n Title: Associate<\/p>\n
By: \/s\/ Darcy Sledge
\n ——————————————
\n Name: Darcy Sledge
\n Title: Vice President<\/p>\n
57<\/p>\n
62<\/p>\n
THE BANK OF NEW YORK, as Indenture Trustee<\/p>\n
By: \/s\/ Marie E. Trimboli
\n ——————————————
\n Name: Marie E. Trimboli
\n Title: Assistant Treasurer<\/p>\n
CREDIT SUISSE FIRST BOSTON
\n CORPORATION, as Initial Purchaser<\/p>\n
By: \/s\/ Andrew R. Taussig
\n ——————————————
\n Name: Andrew R. Taussig
\n Title: Managing Director<\/p>\n
INVEMED ASSOCIATES, INC.,
\n as Initial Purchaser<\/p>\n
By: \/s\/ Cristina H. Kepner
\n ——————————————
\n Name: Cristina H. Kepner
\n Title: Executive Vice President<\/p>\n
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